AFTER the new 491 and 494 visas are granted from the 16th November this year holders of these visas can only use the new 191 visa to lodge PR. This 191 visa will be vastly different to the current 887 version which will remain in place for 489 visa holders.

The current 887 visa requires applicants who hold the 489 to live in a regional low population part of Australia for at least two years. Does the new 191 have the same residency requirement? No, it does not.

In fact there is no residential requirement for the grant of the 191 visa. You need to to hold the 491 visa for 3 years and it does require 3 years of evidence of income from the ATO assessments as we discussed previously but there is no requirement to prove any particular period of residency such as the 887 visa does.

There is of course the condition 8597 of the 491 and 494 that you must reside and can only work in a designated regional area. However, there is nothing stopping you from spending a period of time outside of Australia, just as you can with the current 489 visa.

Do you need to live in Australia for 3 years to apply for the PR 191 visa?

The simple answer is, no. You must hold the 191 visa for 3 years and have an minimum income requirement but it has no residency requirement. Now many of you will scream “but if I’m working in regional Australia to meet Condition 8597 then I have to live for at least three years!” However, that is not actually the case.

Just as now with Condition 8539/8549 applied to the 489 visa, it does not mean you cannot go home, outside Australia, and live there for a period of time. It does not mean you “have to” live in regional Australia all the time the visa is granted, it just means that if you are in Australia you must live in particular regional areas.

Let’s say you work in a very well paid job where you have yearly 6 month contracts working in a regional area. This 6 month period of employment earns you $80,000. Can you then take off and live back home in India for the other 6 months without affecting your future PR 191 visa? Yes you can.

Since the 191 visa has no period of residency requirement the only documents that matter are the 3 years of ATO assessments. Of course whilst working in Australia you must meet Condition 8597 but you can in fact meet that just by part time work. The current 887 visa PR requires at least evidence of 1 year FT work, but the 191 visa does not.

What if I own a business in regional Australia?

If you have a business then of course there is a number of ways your income maybe declared to the ATO. For example, this could be as a salary as an employee or it could be by the Dividends distributed by a company shares arrangement. Either way it is income. Do you then have to be in Australia on your 491 visa whilst earning this income? The answer is no for the purposes of lodging the 191 visa.

What if I own a business in Sydney?

If you run a business in Sydney but are living in regional Australia then there is no breach of the Condition 8597. If you are living in India whilst running that business there is also no breach. Any income you earn from that business in Australia is taxable in Australia so it maybe used to apply for the 191 visa.

What if I’m earning money offshore from investments?

When you are an Australian resident for taxation purposes then all income (including offshore) must be declared to the ATO. It would be possible to include rental incomes from overseas towards your declared income in Australia.

In one 189 New Zealand Citizen Stream application our office prepared, our client was just below the minimum income level required for two ATO notices. We advised him to talk to his accountant and have the amended tax returns submitted to the ATO which included his offshore rental income. His amended returns and assessment notices pushed him over the tax threshold requirement and the family obtained their permanent residency.

What if I my income in Australia is less than the threshold, can I be paid from overseas?

If your’re struggling to earn enough from your regional work in Australia then it is possible you may earn money from overseas say as a contractor. For example, your Uncle has an IT firm in India and knowing you are struggling in Australia, he offers you some contractor work which you can complete part time from home here. The income generated from that work it must be declared to the ATO when you file your tax return. This may in return push up your taxable income and may pass the minimum income threshold.

In summary the two most important aspects of a successful 191 PR application will be to ensure you have substantially complied with the conditions of the TR visa and meet the minimum income requirements. How much time you spend in the regional areas of Australia whilst holding the 491 visa becomes irrelevant.

There is still a long time before the 191 visa begins so be aware the department can yet change the legislation. You should also seek advice from a registered Accountant regarding income matters and lodging tax returns in Australia. Keep reading our newsletters to stay informed and book an appointment if you would like further advice.

Karl Konrad