Subclass 851 RoS Visa | Who Can Apply

Subclass 851 RoS Visa or Resolution of Status Class CD Subclass 851 is generally for people granted Australia Protection or Humanitarian Visas

You can only apply for a Subclass 851 RoS Visa if you have been granted 1 of the below visas:

1. Subclass 447 (Secondary Movement Offshore Entry (Temporary) visa; or a Subclass 451 (Secondary Movement Relocation (Temporary) visa or a Return Pending Visas Subclass 695; or
2. Held but no longer holds a subclass 447 or subclass 451 or subclass 695 or a subclass 785 (Temporary Protection) visa granted before 09 Aug 2008; and was not cancelled. You must not have left Australia or while holding a visa that permits re-entry to Australia and has left and re-entered Australia; and you must not hold a permanent visa; or
3. A member of the same family unit as a person who made an application for RoS 851 as a result of satisfying the criteria in (1) above or (2) above; or has made a valid application for RoS 851 visa as a result of satisfying the criteria in (1) or (2) above. You must be in Australia on 09 August 2008 and was a member of the same family unit on that date or was born on or after 09 August 2008;
4. Holds a subclass 785 (Temporary Protection) visa or a subclass 790 (Safe Haven Enterprise) visa; and you first entered Australia before the TPV/SHEV transition day; and at the time of applying for the Subclass 851 RoS visa, you have not made a valid application for a subclass 785 or subclass 790 visa that has not been finally decided; or
5. On the TPV/SHEV transition day, you did not hold a subclass 785 or subclass 790 visa; and at any time before the TPV/SHEV transition day, you held a subclass 785 or a subclass 790 visa; and your subclass 785 or subclass 790 was not cancelled; and you have not made an application for a subclass 785 or subclass 790 visa that was refused and finally determined; or
6. A child of a person who meets, or has met, the requirements in (4) and (5) above; and was born in Australia; and the child when applying for a Subclass 851 RoS visa, has not made a valid application for a subclass 785 or subclass 790 visa that has not been finally determined; or
7. A child of a person who holder a Subclass 851 RoS visa granted on the basis of making the application under reg. 2.08G; and was born in Australia; and the child when applying for a Subclass 851 RoS visa, has not made a valid application for a subclass 785 or subclass 790 visa that has not been finally determined.

Purpose of RoS visa

The purpose of RoS visas was to resolve the temporary visa status of TPV/THV/RPV holders. They are given a right to a RoS visa, in some cases, without requiring any further refugee status determination.

However, the grant of the RoS visa did not bestow, or continue the bestowing of, refugee status: GKQK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 37 per Bank-Smith J at 41.

Members of your family unit may make a combined application with you for this visa. Their protection claims will not be assessed.

Normally when you have a visa application refused or a visa cancelled, you are affected by, what is known as, section 48 bar (click here to learn more). However, the Subclass 851 RoS visa is not affected by section 48 bar.

You can apply for a Subclass 851 RoS visa by:

1. completing and lodging certain forms; or
2. applying for a Protection Class XA visa, if you hold Subclass 447 or Subclass 451 or Subclass 695, before 9 August 2008 and the application is still undecided on that date, you have taken to apply for a CD 851 visa; and
3. applying for a Protection visa on or after 9 August 2008 and you hold or previously held a Subclass 447 or Subclass 451 or Subclass 695 or Subclass 785, your undecided application will be considered as an application for the CD 851 visa.

In the above situations (2) and (3), your Subclass 447 or Subclass 451 or Subclass 695 or Subclass 785 was not cancelled, you either have not left Australia or if have left and returned, your visa is still valid, and you did not hold a permanent visa when you lodged your Protection visa application.

Similarly, if you have been allowed permanent stay in Australia by the Department of Immigration, you accepted this invitation and the Department endorsed your acceptance, you will be considered to have made an application for the CD 851 visa.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you apply for this visa or to decide if this is the best visa for you (click here to find out how an immigration lawyer or registered migration agent can help you) or click here to learn more. You may also refer to our FAQs for answers regarding visa application or visa cancellation by clicking here.

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.