Subclass 856 what are my rights

[smellypom]

Hello,

I currently hold a PR visa subclass 856 which expires in May 2011. I'm living in the UK but have finally managed to get my employer to agree to a transfer to the Australian side of the business based in Sydney.

I thought that having permanent residency meant that I was free to work for whomever I choose and entitled to full work rights. However I'm now being told that they can only offer me a fixed term contract up until May 2011 when my visa expires. Is this correct? Do I have any other options?

I'm finding this a little strange as the visa states "Holder permitted to stay in Australia indefinitely". Does anyone know if there has been a change in the rules since the visa was issued or is my prospective employer mistaken?

If anyone can offer any advice it would be greatly received.

Thanks in advance,
Tim

[nvoorst]

The duration of the contract and the validity of your visa are 2 different things.

This visa does indeed permit you to stay in Australia indefinitely, just remember to renew the travel facility every 5 years, if you want to leave and re-enter Australia.

I am a bit puzzled though why you are living in the UK, as you applied for and were granted an onshore employer sponsored visa.

The nominated position is supposed to be available for at least 3 years with the possibility of renewal.

[smellypom]

Hi Nick,

We were in Australia originally on a 457 visa and applied for residency on the basis of that visa so were there when it was issued, we were there for 4 years in total. We moved back to the UK for family reasons and now want to return to Australia again.

We're just a bit shocked by the contract duration and need to confirm that we will be eligible to stay and more importantly work in Australia once the visa end date is reached.

Given that we are hoping to move back in Sept what are the requirements for renewing the travel facility and is this something that can be done from the UK or is it better to do this once in Australia.

Thanks
Tim

[nvoorst]

You have a valid visa. You don't work for this company in Australia any more, so the contract is irrelevant and has nothing to do with your visa. To avoid complications just make sure you get back to Australia before your visa expires.Then you can do what you like.

For the travel facility to be renewed you must have been in Australia as an Australian permanent resident for a total of not less than 2 years in the period of five years immediately before applying for the resident return visa.

There are a few exceptions and other ways you could satisfy the requirements that I won't go into here. The simplest way is just as described above.

Your next step will be to apply for Australian citizenship as soon as you qualify. UK citizens can have dual nationality and that way you can apply for an Australian passport and don't need any more visas.

[smellypom]

Nick, thanks once again for the quick reply.

The contract is from my new prospective employer, they are saying that as the visa has an end date they can only give me a fixed term contract to that date. They say that they can extend this when PR status is granted but I thought I already had this in place. Hence the confusion.

I think the bit I'm most concerned about is why are they checking the visa status when it's supposed to be a PR visa and would I have this problem in the future?

Rgds,
Tim

[nvoorst]

I can't really say unless I see your visa. You can contact me privately if you want me to have a look at it.

If you have a sc. 856 granted, then you have PR, which allows you to remain in Australia indefinitely. The travel facility (resident return visa) is a different issue altogether.

Regards,

Nick

[smellypom]

Thanks Nick

[downundervisa]

Sounds like your employer is confused. I'd suggest that you DO contact Nick, and get him a copy of your visa.

[smellypom]

Hi All,

An update for anyone else in a similar position and a thank you to Nick who was extremely helpful off line.

With the info Nick provided and further info from the high commission in London the situation has been clarified and resolved, just waiting for a revised contract to be provided.

Needed to draft a lengthy email to the company painting the picture as clearly as possible quoting Nick and the data on the immi.gov.au but we got there in the end.

Thanks to all involved.
Tim