Using RRV to bypass RSMS 2 year requirement

[verymerryxmas]

Hi, 

Just a question for the migration agents out there, from my understanding whenever you apply for a new visa and it is granted it replaces the current visa you hold. For example if I had a 187 visa, and then applied for, and was granted a 189 it would replace it and I wouldn't be subject to the 2 year requirements. 

My question is this, if I apply for a resident return visa does this replace the 187? It appears to be it's own subclass and visa in its own right. 

 There appears to be nothing in the relevant legislation or visa information that says you can't apply for a RRV sooner, just that you need to be a PR? 

 

Edited December 17, 2017 by verymerryxmas

[Nemesis]

2 hours ago, verymerryxmas said:

Hi, 

Just a question for the migration agents out there, from my understanding whenever you apply for a new visa and it is granted it replaces the current visa you hold. For example if I had a 187 visa, and then applied for, and was granted a 189 it would replace it and I wouldn't be subject to the 2 year requirements. 

My question is this, if I apply for a resident return visa does this replace the 187? It appears to be it's own subclass and visa in its own right. 

 There appears to be nothing in the relevant legislation or visa information that says you can't apply for a RRV sooner, just that you need to be a PR? 

 

No.

A RRV does not replace other visas. A RRV allows the holder of a PR visas to travel into Australia after the 5 year travel rights of the PR visa have ceased. So a RRV would not replace a 187, it would just give the holder of a 187 the right to travel.

[verymerryxmas]

45 minutes ago, Nemesis said:

No.

A RRV does not replace other visas. A RRV allows the holder of a PR visas to travel into Australia after the 5 year travel rights of the PR visa have ceased. So a RRV would not replace a 187, it would just give the holder of a 187 the right to travel.

Are you sure about this?  because the DIBP site states that it replaces the current visa and is a substantive visa in itself.

[VERYSTORMY]

It is a substantive visa. 

It takes on the rules of what ever visa you currently hold. So, in effect, if you are on a 187, it becomes a 187 and carries the same conditions. 

Pin order to gain one, you would need to be eligible for one and have applied for another visa such as a 189. 

[Nemesis]

6 hours ago, VERYSTORMY said:

It is a substantive visa. 

It takes on the rules of what ever visa you currently hold. So, in effect, if you are on a 187, it becomes a 187 and carries the same conditions. 

Pin order to gain one, you would need to be eligible for one and have applied for another visa such as a 189. 

Sorry, I'm clearly missing something here but why would he/she need to apply for another visa in order to get a RRV, while holding a 187? Surely a 187 is a PR visa?

Its not like a Bridging Visa, people apply for it when they need to travel and no longer have travel rights on their existing visa. Their existing visa continues, its not cancelled and they don't need to apply for another visa.

https://www.border.gov.au/Trav/Visa-1/155-

Edited December 17, 2017 by Nemesis

[Raul Senise]

19 hours ago, verymerryxmas said:

Hi, 

Just a question for the migration agents out there, from my understanding whenever you apply for a new visa and it is granted it replaces the current visa you hold. For example if I had a 187 visa, and then applied for, and was granted a 189 it would replace it and I wouldn't be subject to the 2 year requirements. 

My question is this, if I apply for a resident return visa does this replace the 187? It appears to be it's own subclass and visa in its own right. 

 There appears to be nothing in the relevant legislation or visa information that says you can't apply for a RRV sooner, just that you need to be a PR? 

 

As you need at least two years in Australia as an Australian permanent resident to qualify for the RRV, your 187 obligation would be over before you qualify to apply.

[Jay2016]

As you need at least two years in Australia as an Australian permanent resident to qualify for the RRV, your 187 obligation would be over before you qualify to apply.

Unless you can prove Substantial Ties to Oz then you could get granted an RRV for 12mths (not 5yrs)

[Nemesis]

8 hours ago, Jay2016 said:

Unless you can prove Substantial Ties to Oz then you could get granted an RRV for 12mths (not 5yrs)

But what would be the point?

[barker]

I suppose theoretically if it was granted it would take the place of the 187. When a RRV is granted it is literally a whole new visa and the old visa ceases to exist.

Read under

Section 82 (2)  A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.

 

You'll notice that on the DIBP site the visa is defined as: 

Both the 155 and 157 visas are permanent visas. They let you undertake all of the activities that your original permanent visa let you undertake:

• stay in Australia indefinitely
• work and study in Australia
• enrol in Medicare, Australia's scheme for health-related care and expenses
• sponsor eligible relatives for permanent residence
• travel to and from Australia as many times as you want while the travel facility is valid
• apply for Australian citizenship, if eligible.

Because it is a new visa, the legislation wouldn't cover the cancellation of it because it falls under a different subclass. 

You could technically apply for a 157 RRV but I don't know if you'd meet the third criteria 

From the DIBP site:

You might be granted a subclass 157 visa if all of the following apply to you:

• you lawfully spent at least one day but less than two years in the past five years in Australia immediately before you apply for this visa
• you were an Australian permanent resident or an Australian citizen the whole time you were in Australia
• there is a compelling and compassionate reason for leaving Australia.

 

I suppose that if you actually had a compelling and compassionate reason for leaving, they would have to approve it because it would fall under the primary criteria, but honestly this would be a complex legal question that would be best answered by a RMA or a lawyer. But it is a very interesting argument and I would be curious to see how it panned out if it ever went to tribunal.  

Edited December 18, 2017 by barker

[Nemesis]

16 minutes ago, barker said:

I suppose theoretically if it was granted it would take the place of the 187. When a RRV is granted it is literally a whole new visa and the old visa ceases to exist.

Read under

Section 82 (2)  A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.

 

You'll notice that on the DIBP site the visa is defined as: 

Both the 155 and 157 visas are permanent visas. They let you undertake all of the activities that your original permanent visa let you undertake:

• stay in Australia indefinitely
• work and study in Australia
• enrol in Medicare, Australia's scheme for health-related care and expenses
• sponsor eligible relatives for permanent residence
• travel to and from Australia as many times as you want while the travel facility is valid
• apply for Australian citizenship, if eligible.

Because it is a new visa, the legislation wouldn't cover the cancellation of it because it falls under a different subclass. 

You could technically apply for a 157 RRV but I don't know if you'd meet the third criteria 

From the DIBP site:

You might be granted a subclass 157 visa if all of the following apply to you:

• you lawfully spent at least one day but less than two years in the past five years in Australia immediately before you apply for this visa
• you were an Australian permanent resident or an Australian citizen the whole time you were in Australia
• there is a compelling and compassionate reason for leaving Australia.

 

I suppose that if you actually had a compelling and compassionate reason for leaving, they would have to approve it because it would fall under the primary criteria, but honestly this would be a complex legal question that would be best answered by a RMA or a lawyer. But it is a very interesting argument and I would be curious to see how it panned out if it ever went to tribunal.  

I now have a very worried friend who held a 157 but it has expired. He thought he was safe in oz permanently as the holder of a 100 but it now seems that was replaced by the 157, so his 100 no longer exists and nor does his 157 - expired a few years back as it was only valid for 5 years  and he never renewed it as he doesn't travel. The agent at the time said his 100 was the important one that meant he could live there permanently. Looks like he had better apply for a new visa fast. Where does that leave him in the meantime - is he there illegally?

[MaggieMay24]

21 minutes ago, barker said:

• there is a compelling and compassionate reason for leaving Australia.

I think the OP would have an issue here because he doesn't actually want to leave Australia.  He's simply looking for a loophole to get out of his commitment to remain with his employer in a regional area for 2 years after his 187 is granted.  I think if an RRV was an option, you'd be hearing of a lot more 187 holders applying for one.

[barker]

9 minutes ago, Nemesis said:

I now have a very worried friend who held a 157 but it has expired. He thought he was safe in oz permanently as the holder of a 100 but it now seems that was replaced by the 157, so his 100 no longer exists and nor does his 157 - expired a few years back as it was only valid for 5 years  and he never renewed it as he doesn't travel. The agent at the time said his 100 was the important one that meant he could live there permanently. Looks like he had better apply for a new visa fast. Where does that leave him in the meantime - is he there illegally?

The 157 does not expire it is a permanent visa as per the DIBP site. Only the travel facility expires. For which you then apply for yet another RRV. 

Edited December 18, 2017 by barker

[barker]

9 minutes ago, MaggieMay24 said:

I think the OP would have an issue here because he doesn't actually want to leave Australia.  He's simply looking for a loophole to get out of his commitment to remain with his employer in a regional area for 2 years after his 187 is granted.  I think if an RRV was an option, you'd be hearing of a lot more 187 holders applying for one.

Yeah, but what I'm getting at is that if you somehow had an actual "reason" they would be hard pressed to not approve it given that it meets the criteria. Ie; if you could prove someone in your family died recently or was ill etc. 

To me this is more an exercise in hypotheticals. But still interesting. 

The fact that you currently have a travel facility on your present visa shouldn't theoretically play a role in deciding whether to grant the new RRV. Similar to how the DIBP will very readily grant you an ETA even though you have PR. 

[Nemesis]

6 hours ago, barker said:

The 157 does not expire it is a permanent visa as per the DIBP site. Only the travel facility expires. For which you then apply for yet another RRV. 

My point was that he has been here for 10 years since his RRV expiry date and he assumed he was on a 100 visa. He's been telling everyone that was his visa type when he applied for jobs and is now rather worried as he has been lying on official form. Even VEVO has him on a 100.

 

Moving on though (while he packs in case he needs to leave fast before he gets done for  fraud) - surely if its as simple as applying for a 157 then more people would be doing that - not just with a 187, but also with a 190 - no more moral dilemmas about staying with the sponsoring state! Just do 12 months then get a RRV.

methinks this loophole should be advertised more widely.

[Nemesis]

6 hours ago, MaggieMay24 said:

I think the OP would have an issue here because he doesn't actually want to leave Australia.  He's simply looking for a loophole to get out of his commitment to remain with his employer in a regional area for 2 years after his 187 is granted.  I think if an RRV was an option, you'd be hearing of a lot more 187 holders applying for one.

As barker seems so sure its true I reckon 187 holders won't be the only ones....190 holders who don't want to jump state will be getting RRVs after only 12 months for instance then they can honestly say they are on a 157 or 155 not a 190. One nice big loophole thats now openly out there for use!

Edited December 18, 2017 by Nemesis

[Raul Senise]

No one needs to leave if their RRV expired as it is only the travel facility which expires. It is a PR visa like any other and allows Indefinite stay.

 

[Raul Senise]

As to the OP's thought experiment; it may be possible to apply in principal (have not researched the  Regulations, so not sure) but unlikely to suceed.

• Considering the whole point of the RRV is to allow travel, you would be applying for a a 1 year RRV even though you still have 4 to 5 years travel facility left on your original PR;
   
• You would need to evidence substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. This would be difficult as you would have only been PR for a very short period. Unlikely that your ties while a TR holder would be considered in the "substantial" equation.

[Jay2016]

On 18/12/2017 at 09:14, Nemesis said:

But what would be the point?

IF as a PR status you have a] not resided in Oz for 2 out of the last 5yrs, b] you currently live outside of Oz......and it can happen on both counts. Then you get to the end of your 5yr period since your original visa was granted....you then have a massive problem if you want to take up residence in Oz....

[Jay2016]

...you can't.  you cant travel there as your 5yr Travel Element has expired.  BUT you can extend this Travel Element for 12mths in this example IF you can prove & get awarded RRV Visa155 based on Substantial Ties.   [visa157 is only for 3mths not 12mths]

[Jay2016]

My point was that he has been here for 10 years since his RRV expiry date and he assumed he was on a 100 visa. He's been telling everyone that was his visa type when he applied for jobs and is now rather worried as he has been lying on official form. Even VEVO has him on a 100.
 
Moving on though (while he packs in case he needs to leave fast before he gets done for  fraud) - surely if its as simple as applying for a 157 then more people would be doing that - not just with a 187, but also with a 190 - no more moral dilemmas about staying with the sponsoring state! Just do 12 months then get a RRV.
methinks this loophole should be advertised more widely.

If he's been in Oz for ten years why hasn't he applied for CITIZENSHIP?

[Jay2016]

But what would be the point?

The point would be dependent on circumstances. Take this as an example, therefore making the point VERY important: if you have a PR visa granted, visited within the first 12mths as stipulated, the PR visa allows you 5yrs of unlimited travel in/out of Oz. But... Let's say You don't actually migrate/live in Oz by the 5yr deadline.... You've then blown it, you cannot after that time migrate/live in Oz even though you're PR visa is for life as you have to physically be in Oz on that day 5years from grant date. What do you do? You could apply for an RRV, but because you fail there (living in Oz for at least 2yrs of the last 5) you will not get RRV ~ 5yrs BUT if you can prove Substantial Ties you could get granted RRV for 12mths..... Effectively extending the 5yr travel portion to 6yrs..... Get your skates on and Move over to Oz. Another point someone testing this might ask....You don't need to apply for the RRV whilst within the 5yr initial period of you're originally granted PR visa; you can do it anytime after no problemo BUT you will hit another snag.... IF you want to enter Oz over 5yrs since you last left (what dates is that??? It's the date you left when you visited within the first 12mths.... As mentioned above) then you have to write to Immigration and explain yourself.... Then this is out of your control!! (Snag) because they then decide yes/no to entry. THE END
Would be curious if anyone understands this better/differently???

[Nemesis]

34 minutes ago, Jay2016 said:

 

 If he's been in Oz for ten years why hasn't he applied for CITIZENSHIP?

 

 

Why did you SHOUT at me?

Because he didn't want to. Its irrelevant now anyway, having realised that he has not been on the 100 visa, therefore has got a government job whilst providing false information, he has returned to Canada. 

[Nemesis]

19 minutes ago, Jay2016 said:

 

The point would be dependent on circumstances. Take this as an example, therefore making the point VERY important: if you have a PR visa granted, visited within the first 12mths as stipulated, the PR visa allows you 5yrs of unlimited travel in/out of Oz. But... Let's say You don't actually migrate/live in Oz by the 5yr deadline.... You've then blown it, you cannot after that time migrate/live in Oz even though you're PR visa is for life as you have to physically be in Oz on that day 5years from grant date. What do you do? You could apply for an RRV, but because you fail there (living in Oz for at least 2yrs of the last 5) you will not get RRV ~ 5yrs BUT if you can prove Substantial Ties you could get granted RRV for 12mths..... Effectively extending the 5yr travel portion to 6yrs..... Get your skates on and Move over to Oz. Another point someone testing this might ask....You don't need to apply for the RRV whilst within the 5yr initial period of you're originally granted PR visa; you can do it anytime after no problemo BUT you will hit another snag.... IF you want to enter Oz over 5yrs since you last left (what dates is that??? It's the date you left when you visited within the first 12mths.... As mentioned above) then you have to write to Immigration and explain yourself.... Then this is out of your control!! (Snag) because they then decide yes/no to entry. THE END
Would be curious if anyone understands this better/differently???

 

I don't understand that paragraph at all, but its not my problem (nor my friend's problem) now. 

[Nemesis]

On 19/12/2017 at 06:02, Raul Senise said:

As to the OP's thought experiment; it may be possible to apply in principal (have not researched the  Regulations, so not sure) but unlikely to suceed.

• Considering the whole point of the RRV is to allow travel, you would be applying for a a 1 year RRV even though you still have 4 to 5 years travel facility left on your original PR;
   
• You would need to evidence substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. This would be difficult as you would have only been PR for a very short period. Unlikely that your ties while a TR holder would be considered in the "substantial" equation.

Interesting, thanks!

[Marisawright]

22 hours ago, Jay2016 said:

 

If he's been in Oz for ten years why hasn't he applied for CITIZENSHIP?

 

You'd be surprised how many people don't, even though they're eligible.  I don't know whether the OP is eligible though.