Refugees – Protection Visa – Big win for Justice – Administrative Appeals Tribunal – AAT
A family from Pakistan came to AR LAW SERVICES: Master Migration Lawyers from another immigration law firm – a firm with a good name – but as often happens with big law firms once clients speak with the big shot partner and sign on the dotted line, the case is handed over to a baby lawyer, who often messes it up – and that is exactly what happened here.
In fact when we got the file, nothing had been done – basically the junior lawyer had filed but had made no submissions or filed any argument or evidence.
To be fair it was a very complex case and the partner was asleep at the wheel and should never have lumber this on such an inexperience junior lawyer.
That having been said – after two day at the AAT before the Deputy President of the Administrative Appeals Tribunal – I won.
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Resolution of Status Visa – Pathway towards permanent residency for Temporary Protection Visa holders (subclass 785) and Safe Haven Enterprise Visa holders (subclass 790)
As noted by the Victorian Immigration Solicitors’ Alliance: VISA corporate sponsor CMT : The Department of Home Affairs has announced that the Australian Government has made a decision to provide a pathway towards permanent residency for Temporary Protection Visa holders (subclass 785) and Safe Haven Enterprise Visa holders (subclass 790).
Individuals under these visa subclasses that meet the requirements can now apply for a Resolution of Status Visa (subclass 851) from 14 February 2023 onwards.
Individuals that have submitted their 785 and 790 visa applications prior to 14 February 2023 and are still awaiting a decision from the Department of Home Affairs will have their application automatically converted to Resolution of Status Visa (subclass 851).
The concept of temporary protection visa (subclass 785) and safe haven enterprise visa (subclass 790) is to provide assistance to refugees that were found in threat in their home countries claiming protection in Australia.
Subclass 851 visa was created to support individuals who met the requirements to be a refugee as set under the Migration Act 1958. By holding this visa, individuals can work, live, travel, study, have access to welfare and Medicare systems in Australia.
The idea is that individuals under this visa could settle and contribute to the Australian society and economy by having the same rights and entitlements as the other permanent residents visa holders.
The general Requirements for Resolution of Status Visa (subclass 851) from 14 February 2023 are:
Hold a Temporary Protection visa (subclass 785) and you first arrival in Australia was before 14 February 2023
Hold a Safe Haven Enterprise visa (subclass 790) and you first arrival in Australia before 14 February 2023
Have applied for Temporary Protection visa (subclass 785) or Safe Haven Enterprise visa (subclass 790) before 14 February 2023 and are still waiting the decision outcome from the Department of Home Affairs;
Meet health and character requirements;
Meet security requirements;
Individuals must not be barred from applying due to a previous visa refusal or cancellation.
There are no Government Fees applied to the Resolution of Status Visa (subclass 851).
The Nuts & Bolts – Criteria – Process
This visa allows for the permanent resolution of status for certain visa holders, including TPV and SHEV holders who arrived in Australia before 14 February 2023.
Eligibility
You must:
- be in Australia at time of application lodgement
be in Australia at time of visa grant
meet the visa requirements including health, character and security
Length of stay
This is a permanent visa. It lets you stay in Australia indefinitely.
You become an Australian permanent resident on the day the visa is granted.
For Australian Citizenship purposes, your permanent residence starts on the day the visa is granted.
Cost
$0 AUD
With this visa, you can…
Processing times for this visa type vary.
- live, work and study in Australia permanently
- access benefits from Services Australia and Medicare
- access short-term counselling for torture and trauma if required
- sponsor eligible family members for permanent residence through the family visa stream
- travel to and from Australia for 5 years
- if eligible become an Australian citizen
- if you are eligible attend English language classes for free
WHY:
The Australian Government has fulfilled its election commitment to make Temporary Protection visa (TPV) (subclass 785) and Safe Haven Enterprise visa (SHEV) (subclass 790) holders eligible to apply for a permanent Resolution of Status (RoS) (subclass 851) visa.
Providing permanent residence to TPV and SHEV holders empowers them to move forward with their lives and increases their ability to contribute to Australian society. Permanent residency will enable TPV/SHEV holders to gain secure employment, grow businesses, study more easily, sponsor eligible family members to Australia and eventually become an Australian citizen.
People who have submitted a TPV or SHEV application prior to 14 February 2023 that has not been finally determined, including any subsequent TPV or SHEV application, will have their existing application automatically converted to a RoS visa application.
We are committed to supporting the transition to a Resolution of Status visa for those who held or have applied for a TPV or SHEV before 14 February 2023. It is expected that the majority of TPV/SHEV holders who meet the requirements for the grant of a RoS visa will be granted within 12 months of processing commencement.
Deep Dive:
Requirements
All applicants will be required to meet health, character and security requirements, and any applicants aged 18 or over must sign the Australian Values Statement.
There is no protection obligations assessment required for the RoS visa. An interview will not be required.
Converted TPV or SHEV applications
If you applied for an initial TPV or SHEV before 14 February 2023 you do not need to apply for a RoS visa. If you are found to meet the criteria for the TPV or SHEV, your application will be automatically converted to an application for a RoS visa. The Department will notify you if you have been granted a RoS visa.
If you hold a TPV or SHEV and have applied for a subsequent TPV or SHEV before 14 February 2023 you do not need to apply for a RoS visa. Your application has automatically been converted to an application for a RoS visa, and if you are found to meet the criteria for the RoS visa you will be granted a RoS visa. The Department will notify you if you have been granted a RoS visa.
Extending your TPV or SHEV
TPV or SHEV holders who make a valid application for a RoS visa will have their TPV or SHEV extended until a decision on the RoS visa has been made.
If you are currently unlawful
If you are currently an unlawful non-citizen (for example because your TPV or SHEV has expired) and you intend to apply for a RoS visa, please note that an application for a RoS visa is also taken to be an application for a bridging visa.
How long can you stay
This is a permanent visa. It lets you stay in Australia indefinitely.
You become an Australian permanent resident on the day your visa is granted.
For Australian citizenship purposes, your permanent residence starts on the day your visa is granted.
Including family members
Family members may apply together on the same application form, however each applicant must meet the requirements for the grant of the visa in their own right.
Newborn child
If a child is born after you submit your application and before a decision is made on your application, the child will be included in that application. You must tell us as soon as possible by:
- completing Form 1022 Notification of change of circumstances (172KB PDF)
- providing a clear colour copy of the child’s original birth certificate, and
- attaching these documents in ImmiAccount or send via email to the address provided in your RoS visa or subsequent TPV or SHEV application acknowledgement letter.
If a child is born in Australia, they are automatically granted the same visa their parents hold at the time of the child’s birth.
If either parent is an Australian citizen or Australian permanent resident at the time of the child’s birth, the child may be an Australian citizen by birth.
Cost
Nil
Apply from
You must be in Australia when you apply for the visa.
Processing times
The majority of the caseload will be processed within 12 months of processing commencement.
You can assist us in finalising your application by responding to any requests from us within the specified timeframes.
Your obligations
You and your family members must obey all Australian laws.
Travel
There are no travel restrictions on the Resolution of Status visa.
You can travel to and from Australia for 5 years from the date the visa is granted. After 5 years you will need a Resident Return visa (RRV) to re-enter Australia.
If you want to travel outside Australia after we grant the visa and you do not have a current passport, you should first contact any Australian Passport Office of the Department of Foreign Affairs and Trade to apply for a travel document.
Visa label
We will digitally link your visa to your travel document or ImmiCard. You will not get a label in your travel document.
Fact sheet
A fact sheet with useful information about the Resolution of Status visa process is available below in the following languages:
- Arabic (684KB PDF)
- Burmese (563KB PDF)
- Dari (575KB PDF)
- English (366KB PDF)
- Farsi (732KB PDF)
- Pashto (758KB PDF)
- Rohingya (264KB PDF)
- Tamil (794KB PDF)
Irregular travel to Australia
The Government remains committed to Operation Sovereign Borders. Australia’s border protection policies have not and will not change. Any person who attempts to travel to Australia irregularly will not settle permanently here.
- Anyone who attempts to travel to Australia by voyage without a valid visa will be turned back to their point of departure, returned to their home country or transferred to another country.
- Australia’s tough border protection policies are designed to protect Australia’s borders, combat people smuggling and deter people from attempting dangerous boat voyages across the open ocean.
The Government’s policy on transitory persons remains unchanged. Transitory persons will not settle in Australia. We encourage them to engage in third country migration options:
- Resettlement in the United States or New Zealand or private sponsorship in Canada, or
- Assisted Voluntary Return (AVR) home or to another country in which they have right of entry.
If you or some one you know feels they did not get what they paid for – feel cheated – talk to us
If you or some one you know feels they did not get what they paid for – feel cheated – talk to us
If you or some one you know feels they did not get what they paid for – feel cheated – talk to us
