Resolution of Status Visa (Subclass 851)

Overview

The Subclass 851 Resolution of Status (RoS) visa was introduced for the purposes of enabling people the same benefits and entitlements as a subclass 866 Protection visa which include:

  • Asylum (protection against harm in your home country); and
  • The right to live, work and study in Australia permanently; and
  • Access to government services like Medicare and Centrelink; and
  • If eligible, Australian citizenship
Who can apply?

Persons previously granted a:

  • Temporary Protection visa (subclass 447, 451 or 785); or
  • Certain subclasses of Temporary Humanitarian visas (786 or 790); or
  • Return Pending visa (subclass 695)

can apply for the RoS visa.

Members of the same ‘family unit’ of the visa holders mentioned above may also apply. Members of the family unit for Protection, Refugee and Humanitarian visas are taken to be a:

  • Spouse;
  • De facto partner;
  • Dependent child;
  • Defined as being under 18 years of age; or
  • Being 18 years of age and above but wholly or substantially dependent on you or the main visa holder financially, psychologically and/or physically OR are incapacitated for work due to loss of their bodily or mental function(s)
  • Relative
  • Must be single
  • Dependent (see above definition); and
  • A usual resident of the same household as the main visa holder described above
  • Some examples are grandparent, grandchild, aunt, uncle, niece, nephew, parent, brother, sister (and/or step equivalent) as well as step-child
Where must you apply from?

The RoS visa is applied for onshore (while you are in Australia).

How to apply?

An application for a RoS visa may be validly made by either of the following methods:

  • By completing and lodging a Form 1364 – Application for a Resolution of Status (Subclass 851 visa); or
  • By satisfying one of the following requirements:
    • You made a valid application for a Protection (Class XA) (subclass 447, 451 or 695) visa before 9 August 2008; or
    • You made a valid application for a Protection visa (subclass 447, 451, 695 or 785) on or after 9 August 2008; or
    • You hold a:
      • Temporary subclass 790 Safe Haven (Class UJ) visa; or
      • Temporary subclass 786 (Humanitarian Concern) (Class UO) visa; or
    • You are a member of the ‘family unit’ (see definition above) of one of the persons described in scenarios (1) – (3) and:
      • Were in Australia and a member of that same family unit on 9 August 2008; or
      • Were born on or after 9 August 2008

To ensure a valid visa application was made for the purposes of scenarios (1) and (2):

  • Your 447, 451, 695 or 785 visa must not have been cancelled; and
  • You must not have left Australia since the visa was granted (or if you left, you left and re-entered Australia holding a visa); and
  • You must not have held a permanent visa at the time of lodging your Protection visa application

If scenario (1) applies to you and your visa is close to expiring or is expired (i.e. no longer in effect) when you lodge a further protection or RoS visa application, you will need to obtain a Bridging visa (BV) if you wish to remain lawfully in Australia. To apply for a BV, you may do so by filling out Forms 886 and 790 – Arrangements for Applications for Bridging Visas.

Assessing the RoS visa application

No reassessment of protection claims is required. Most applicants will only need to satisfy ‘primary criteria’. These are:

  • A health examination (including compliance with any health undertakings); and
  • A National Police Check in Australia (and a police check in any other country where they have resided for at least 12 months in the last 10 years since reaching 16 years of age)

In limited circumstances, some applicants will also require a:

  • Offshore penal clearance; and/or
  • Security clearance; and/or
  • Risk assessment

All applicants will need to sign an Australian Values Statement.

Period of stay

The RoS visa is a permanent visa. If granted, it permits you to travel and enter Australia for a period of five (5) years.

Cost

Free. There is no visa application charge for the RoS visa.

Making a decision

If the Department of Home Affairs is satisfied that you meet all the criteria for the RoS visa and a decision is made to grant you a visa, you will be sent a visa grant notification letter together with a Visa Grant Notice providing information about the visa.

If the RoS visa application is refused, you will be notified and advised (in writing) of the reasons for the decision and of your right to have the decision reviewed on its merits. In a merits review, the primary decision maker will reconsider the facts, law and policy aspects that led to the decision to refuse your visa application, and will determine what is the correct and preferable decision.

Next steps?

Australian migration law is difficult to understand and navigate. To find out if you are eligible for this visa, or to discuss other migration-related matters with one of our Registered Migration Agents or Lawyers, you can book a consultation here.

Contact us today to speak with our Registered Migration Agents in Melbourne and find more about your visa options.