Can not apply for the subclass 155 resident return visa to beat a business visa cancellation

 
 

Before a notice of intention to cancel a business visa is issued there is no prohibition therefore on applying onshore for other visas. The obvious visa to apply for is the permanent residence subclass 155 five year resident return visa.

The operative time of application criteria for this visa is paragraph 155.212(2) which reads:

(2)       The applicant meets the requirements of this subclause if the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:

(a)       was:

(i)         the holder of a permanent visa or a permanent entry permit; or

(ii)        an Australian citizen; and

(b)       was not the holder of:

(i)         a temporary visa (other than a Subclass 773 Border visa, Subclass 956 Electronic Travel Authority (Business Entrant – Long Validity) visa, Subclass 976 Electronic Travel Authority (Visitor) visa or Subclass 977 Electronic Travel Authority (Business Entrant – Short Validity) visa held concurrently with the permanent visa or permanent entry permit); or

(ii)        a bridging visa;

For the subclass 155 visa, if the applicant is inside Australia then there is no time of decision criteria. The result is that on simply being resident in Australia for 2 out of the previous 5 as a permanent resident, one is entitled to be granted a subclass 155, five year visa.

There is no obstacle to the offspring of business visa holders applying for this RRV as soon as the 2 years is up.

Holding an RRV may not prevent cancellation but it may create a diversion.

A better strategy is apply for some other permanent visa, like an Employer Nomination Visa or a skilled visa.

Finally note the effect of s. 134(8) of the Migration Act:

(8)     A cancellation under this section has effect on and from:

(a)     if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa – the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(b)     if:

(i)     the person’s visa was cancelled under subsection (4); and

(ii)     the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;

the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(c)     the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;

whichever is the latest.

This means a person still holds a substantive visa after the AAT has affirmed a cancellation. It means even at that stage the person, particularly the secondary visa holders can apply for some other visa even if it is a temporary visa like a student visa, or a medical treatment visa.

Extreme hardship

Being granted the subclass 155 visa also saves the original secondary visa holders from running the gauntlet of ss. 134(4) & (5) of the Act, which say:

(4)       Subject to subsection (5) and to s. 135, if:

(a)       the Minister cancels a person’s business visa under subsection (1) or (3A); and

(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and

(c)       the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;

the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.

(5)       The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.

The effect of those provisions is that if the primary visa holder’s business visa is cancelled then the secondary visa holder’s visa is cancelled also unless the secondary visa holders can show ‘extreme hardship’.

There have been mixed results in the AAT on these ‘extreme hardship’ cases.  In many cases, students who’ve done most of their recent education in Australia still fail in the AAT because, as one AAT member put, there was hardship – yes, but extreme – no.

This occurred in Salim v MIMIA [2002] AATA 899 (8.10.02) where the member concluded:

  1. The [AAT] does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme.

But the offspring would have been eligible to apply for subclass 155 five year resident return visas at any time prior to the AAT handing down its decision as long as they had spent 2 years out of the previous 5 in Australia as holders of permanent residence visas.

Barbara DavidsonCan not apply for the subclass 155 resident return visa to beat a business visa cancellation