Subclass 851 — Resolution of Status

851.1—Interpretation

Note: There are no interpretation provisions specific to this Part.

851.2—Primary criteria

Note: The primary criteria have to be satisfied by all applicants for Subclass 851 visas.

851.21—[No criteria to be satisfied at time of application]

851.22—Criteria to be satisfied at time of decision

851.221A

(1) For an applicant who was taken to have made an application because the criteria in item 5 of the table in subregulation 2.07AQ(3) were satisfied, the criteria set out in clauses 851.221B and 851.221C are satisfied.

(2) For any other applicant, the criteria set out in clauses 851.221 to 851.229 are satisfied.

851.221B

The offer of a permanent stay made by the Australian Government to the applicant has not been withdrawn by the Australian Government.

851.221C

The applicant satisfies public interest criterion 4002.

851.221

(1) Unless subclause (2) of this clause applies to the applicant, the applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner):

(a) a Medical Officer of the Commonwealth;

(b) a medical practitioner approved by the Minister for the purposes of this paragraph;

(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.

(2) This subclause applies to an applicant if the Minister is satisfied that it would be unreasonable to require the applicant to undergo the medical examination mentioned in subclause (1).

851.222

(1) The applicant:

(a) has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia; or

(aa) is a person to whom subclause (2) applies; or

(b) is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested such an examination; or

(c) is a person:

(i) who is confirmed by a relevant medical practitioner to be pregnant; and

(ii) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and

(iii) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and

(iv) who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.

(2) This subclause applies to a person if the Minister is satisfied that it would be unreasonable to require the person to undergo the chest x-ray examination mentioned in paragraph (1)(a).

851.223

A relevant medical practitioner:

(a) has considered:

(i) the results of any tests carried out for the purposes of the medical examination required under clause 851.221; and

(ii) the radiological report (if any) required under clause 851.222 in respect of the applicant; and

(b) if he or she is not a Medical Officer of the Commonwealth and considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, has referred any relevant results and reports to a Medical Officer of the Commonwealth.

851.224

If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.

851.225

The applicant:

(a) satisfies public interest criteria 4001, 4002 and 4003A; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

851.226

If the applicant was taken to have made an application because the criteria in item 4 of the table in subregulation 2.07AQ(3) were satisfied, the applicant and the other person mentioned in that item are members of the family unit.

851.227

If the criteria in item 3 of the table in paragraph 1127AA(3)(c) of Schedule 1 were satisfied, the applicant and the other person mentioned in that item are members of the same family unit.

851.228

(1) This clause applies in relation to the following applications:

(a) an application made on the basis of meeting the requirements of item 4, 4A or 5 of the table in subitem 1127AA(3) of Schedule 1;

(b) an application that is taken to be a valid application for a Resolution of Status (Class CD) visa under regulation 2.08G.

(2) If, in considering the application, the Minister invited the applicant under section 56 of the Act to give information for the purposes of establishing or confirming the applicant’s identity, the applicant has given that information, or has caused that information to be given, in accordance with the invitation.

(3) Subclause (2) does not apply if:

(a) the Minister is satisfied that:

(i) the applicant has a reasonable explanation for refusing or failing to give the information in accordance with the invitation; and

(ii) the applicant has taken reasonable steps to give the information, or to cause the information to be given, in accordance with the invitation; or

(b) the application is an application mentioned in paragraph (1)(b) and the invitation under section 56 of the Act was given before regulation 2.08G started to apply in relation to the application.

(4) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister for the purposes of the application:

(a) a bogus document in relation to the applicant’s identity; or

(b) information that, at the time it was given, was false or misleading in a material particular in relation to the applicant’s identity.

Note: For the definition of bogus document, see subsection 5(1) of the Act.

(5) Subclause (4) applies whether or not the Minister becomes aware of a document or information of a kind referred to in that subclause because of information given by the applicant.

(6) Subclause (4) does not apply if the Minister is satisfied that the applicant has a reasonable explanation for giving a document or information of a kind referred to in that subclause.

851.229

(1) This clause applies if:

(a) the applicant satisfies the criterion in subclause 851.228(2) or is not required to satisfy that criterion because of paragraph 851.228(3)(a); and

(b) the Minister is satisfied that there are substantial identity-related concerns in relation to a relevant matter.

(2) A relevant matter is any of the following:

(a) if a protection finding (within the meaning of section 197C of the Act) was previously made for the applicant—that finding;

(b) if the applicant was previously granted a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa on the basis that the applicant satisfied the criterion mentioned in paragraph 36(2)(b) or 36(2)(c) of the Act—that grant;

(c) if the applicant is taken to have made a valid application for a Resolution of Status (Class CD) visa under regulation 2.08G and the applicant is an applicant described in column 1 of item 3A of the table in subregulation 2.08G(1)—the record made by the Minister in relation to the applicant, as mentioned in column 2 of that item;

(d) if the applicant is taken to have made a valid application for a Resolution of Status (Class CD) visa under regulation 2.08G and the applicant is an applicant described in column 1 of item 5 of the table in subregulation 2.08G(1)—the record made by the Minister in relation to the applicant, as mentioned in column 2 of that item.

(3) One of the following applies in relation to the applicant:

(a) if the applicant had made a valid application for a protection visa at the same time as the applicant made the application for the Subclass 851 (Resolution of Status) visa, the applicant would have satisfied the criteria for the grant of the protection visa;

(b) there is a compelling or compassionate reason to grant the visa to the applicant;

(c) the applicant is a member of the same family unit as a person who holds a Subclass 851 (Resolution of Status) visa.

851.3—Secondary criteria

Note: There are no secondary criteria for the grant of a Subclass 851 visa.

851.4—Circumstances applicable to grant

851.411

The applicant must be in Australia.

851.5—When visa is in effect

851.511

Permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.

851.6—Conditions: Nil.