Former Resident Visa

Subclass 151 visa is permanent residency that allows individuals, who had been permanent residents or served in the Australian Defence Force, to settle and live in Australia. This option differs from other resident return visa subclasses, namely the 155 visa, as it is specifically intended for former permanent residents. Depending on circumstances, the applicants must either satisfy:

  • Long residence requirement; or
  • Defence services requirement.

Most applicants will qualify for this former resident visa subclass as a long residence applicant. Long residence applicant’s can effectively regain their permanent residency status on the basis of their business, cultural or personal ties to Australia and having previously been in Australia as a permanent resident under proscribed circumstances.

Defence service applicants are restricted to persons who had served prior to 19 January 1981, and is therefore heavily restrictive in terms of eligibility.

Travel Facilities and the Resident Return Visa

Whist the former resident visa, subclass 151, is a permanent visa, as with any permanent visa subclass, it is issued with a 5 year travel facility. Once you have been issued a former resident visa, subclass 151, you will be able to freely exit and enter Australia for a period of 5 years. After expiry of the 5 year travel facility, a former resident visa holder will need to pursue a returning resident visa, such as the 155 visa.

This requirement to pursue a resident return visa may provide incentive to become an Australian citizen. Unlike permanent residents, an Australian citizen may freely enter and leave Australia and needn’t spent any particular number of years in Australia in order to retain eligibility.

Long Residence Requirement

To qualify for the former resident return visa, subclass 151, as a ling residence applicant, applicants must:
  • Be younger than 45 years of age at the time of the application;
  • If the applicants have turned 18 years or older, they must have spent at least 9 years in Australia as a Permanent resident before turning 18 years of age;
  • If the applicants have not turned 18 years old, they must have spent at least half of their life in Australia as a permanent resident;
  • Applicants must not have become an Australian citizen and denounced an Australia citizenship;
  • Applicants must have maintained close business, cultural or personal ties with Australia.

Age

Long residency applicants must have not turned 45 at the time of lodging their application. There is no exemption or exception to this upper age limit. Those aged 45 years or older must qualify as defence service applicants or pursue an alternative visa for Australia.

Life in Australia before the Age of 18

The former resident visa, subclass 151, is largely limited to persons who had spent a substantial part of their childhood as residents of Australia. The operation of this requirement depends on the age of the applicant at the relevant time. Ultimately, at least half of one’s childhood must have been spent in the country.

For those aged 18 year or older, applicants must have been physically present in Australia as an Australian permanent resident for at least half of their first 18 years of life.

For those under the age of 18, applicants must have been physically present in Australia as an Australian permanent resident for at least half of their life.

Former Australian Citizens

On the bases of the aforementioned “long residence” requirements, persons who, at any point, held Australian citizenship, will be precluded for applying for a former resident visa, subclass 151. If there is any suspicion by the department that you may have once held citizenship in Australia, enquiries will be made and your application will be refused.

If you are a former Australian citizen, avenues may be available to resume your citizenship of Australia under the Australian Citizenship Act 2007.

Business, Cultural or Personal Ties with Australia

Not every former resident will qualify for the former resident visa, subclass 151. Regardless of one’s status as a former resident visa holder, it is imperative that a visa subclass 151 applicant evidence ongoing ties to the country. These ties can relate to a number of factors relating to the applicant’s ongoing ties and associations to Australia.

In establishing business, cultural or personal ties, it is important that former resident visa, subclass 151, applicants consider the following:

  • It is intended under policy that one’s “ties” predate the cessation of one’s permanent resident visa subclass.
  • Children, or those who last departed Australia as a child, are generally subject to less stringent evidentiary standards. Schooling undertaken in Australia will be accepted as evidence of one’s ties.

Adult applicants for the former resident visa, subclass 151, will be expected to provide more substantive evidence than what is required of children or those who last departed the country as children. Evidence must be provided of one’s business, personal and cultural ties, as well as of how said ties have been maintained in the intervening period since the applicant ceased to hold permanent residency in the country.

As an illustrative example of the factors which may support ties to Australia, policy proscribes the following as suggestive of satisfaction of the former resident visa, subclass 151, requirements:

  • Correspondence with and from relatives or friends in Australia.
  • Visits to Australia for business, personal or cultural reasons.
  • Ownership of property in Australia, supported by evidence of the ongoing and active interest in said property.
  • Ongoing and active participation by the applicant in ongoing economic or business activity in Australia.

Establishing sufficient ties to Australia is often an onerous procedure. Understanding the evidentiary threshold can be complex, with a visa refusal potentially resulting in significant delays and added expense in facilitating your return. It is highly advisable, therefore, to seek advice from an accredited migration solicitor before pursuing a former resident visa, subclass 151, application.

Defence Services Requirement

In order to qualify as a “defence service applicant” a visa applicant must satisfy one of the two below-listed preliminary requirements:

  • Applicants must have served at least 3 continual months of Australian defence service; or
  • Applicants must have been discharged on medical grounds after having served fewer than 3 months of Australian defence service.

The meaning of “Australian defence service” includes the following:

  • service in the Military Forces of the Commonwealth under a notice served under section 26 of the National Service Act 1951 as in force at any time before 26 November 1964; or
  • service before 19 January 1981 in the “Permanent Forces” or by a member of the armed forces of a foreign country on secondment to, or duty with, the Permanent Forces if the member was a permanent resident of Australia during the period of service.

The service, undertaken in satisfaction of the above requirements, need not have been full time but does need to be continuous. No further guidance is provided under regulation, however policy will generally regard any continuous service with the Permanent Forces to suffice.

Note that “Permanent forces” includes the permanent Navy, the Regular Army and the Permanent Air Force, essentially referring to the Australian Defence Force. This definition is contained in section 4 of the Defence Act 1903 and is not expounded upon under migration law. Those having service in the Reserve Defence Force or Emergency Defence Force will not usually be eligible. In rare circumstances, a reserve battalion or unit may include members of the permanent forces and so prior service with the Reserve Defence Force is not determinative of ineligibility. Only regular members of the ADF will satisfy the definition.

Due to the narrow definition of “Australian defence service,” no additional persons may become eligible under these provisions other than those who already qualify. Any new applicants looking to qualify for the Subclass 151 visa must do so as a “long residence applicant.”

Circumstances Applicable to the Grant

Depending on where you were at the time of application, your required location as at the time of grant will differ accordingly:

If you were outside Australia at the time of application, you must be outside Australia at the time of grant.

If you are in Australia at the time of application, you must be in Australia at the time of grant.

Further to the above, the second installment of the visa application charge must be paid prior to the visa being granted.

Relevant Public Interest Criteria

Australia may impose additional public interest criteria depending on the grounds for the application, the location and age of the applicant at the time of application. The applicable criteria usually include:

  • 4001: the person satisfies the Minister that the person passes the character test etc.
  • 4002: The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security etc.
  • 4003: is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests etc.
  • 4004: The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.
  • 4005: The applicant must undertake any medical assessment specified in the instrument and is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community etc.
  • 4009:The applicant intends to live permanently in Australia and if the applicant seeks entry to in Australia as a member of the family unit, also satisfies the Minister that the applicant could obtain support in Australia from other members of the family unit.
  • 4010: If the applicant seeks to remain in Australia permanently, or temporarily for longer than 12 months, the applicant is likely to become established in Australia without undue personal difficulty and without imposing undue difficulties or costs on the Australian community.
  • 4021: The applicant holds a valid passport that was issued to the applicant by an official source, is in the form issued by the official source and is not in a class of passports specified by the Minister in an instrument in writing for this clause, unless it would be unreasonable to require the applicant to hold a passport.
  • 4019 (if applicable): The applicant has signed a statement (a values statement).

Relevant Special Return Criteria:

5001, 5002 and 5010

Visa Application Charge

The costs of the 151 visa application are as follows:

  • Base application charge: $3,955
  • Additional adult applicant: $1,980
  • Additional child applicant: $990

Any applicant over the age of 18, must demonstrate functional English. Failure to do so will result in a second installment of $4,890. This second installment must be paid prior to grant of the visa. A person may evidence functional English via one of the below-listed means

  • Completion of a proscribed English test to a proscribed standard.
  • Completion of all primary school education and 3 years of secondary school education conducted in English.
  • Completion of 5 years of secondary school education conducted in English.
  • Completion of 1 year tertiary study in Australia.
  • Completion of a tertiary qualification resulting in 2 years of tertiary study conducted in English.
  • Evidence of citizenship in one of either the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland.

Visa Conditions

All visas granted to offshore applicants must specify a date of first entry.

Date of First Entry Requirement

If you are issued your 151 visa whilst outside Australia, your visa may be issued with a proscribed date, before which you must enter Australia. Failure to enter Australia by the date specified in your visa grant will permit the Department of Home Affairs to cancel your visa, necessitating a subsequent application.

In some circumstances, a person subject to an “enter-before” date may avoid cancellation if there is sound excuse as to why entry to Australia was not possible. If you have been issued a 151 visa and have received a notice of intention to cancel your visa on such grounds, it is vital you contact a migration solicitor immediately.

Assurance of Support

Though exceedingly rare, some former resident visa applicants may be required to submit an “assurance of support” before being issued a visa to enter the country. This “assurance of support” constitutes a bond, held for a determinate duration, from which the value of any social security entitlement paid out to the visa holder will be subtracted. At the end of the proscribed bond period, the balance of the assurance of support will be refunded by the Department of Social Services in Australia. If you are requested to provide an “assurance of support” it is a requirement of the visa that the bond be provided to and accepted by the Secretary of Social Services. The value of the bond can vary from applicant to applicant.

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