Section 48 Bar
On 28th October 2021, legislations were updated in regards to Section 48 bar. You may have heard about this term from time to time, and you may be wondering what it means and whether you are affected. Hopefully, this blog article will give you some answers.
What is Section 48 bar?
As per Section 48 of Migration Act 1958 (hence the name Section 48 bar), if a person ticks the following boxes:
• Does not hold a substantive visa. Most of the time, this means that you are on a bridging visa; AND
• Since last entering Australia, had a visa refusal or visa cancellation.
Then, this person can only apply for a very limited number of visas when they are in Australia, i.e. they are ‘barred’ from applying for most of the visas even if they are eligible.
Section 48 bar has two primary functions:
• Preventing repeat visa applications for certain visa applicants, thus protecting the integrity of the visa system; and
• A consistent and systematic approach with people in Australia that have a history of refusal and cancellation.
This means that regardless of the reason for visa refusal or cancellation, section 48 bar will always apply if you tick the above-mentioned boxes.
What visas can I apply if I am on a Section 48 bar?
Previously, as per Reg 2.12 of Migration Regulations 1994, you can only apply for the following visas if you are on a section 48 bar:
- Subclass 820/Subclass 801 – Partner visa
- Protection visas;
- Subclass 602 – Medical Treatment visa
- Subclass 800 – Territorial Asylum visa
- Subclass 773 – Border visa
- Subclass 444 – Special Category Visa
- Bridging visas
- Subclass 851 – Resolution of Status visa
- Certain child visas
- Certain retirement visas
A lot of these visas listed are quite rare, and not applicable to the majority of visa applicants. Moreover, some of these visa applications may have additional requirements for visa applicants with a section 48 bar.
As per announcement dated 28th October 2021, changes are made to Reg 2.12 of Migration Regulations 1994, i.e. types of visas that can be applied for by a visa applicant under section 48 bar. In this case, from 13th November 2021, the following visas have been added to this list:
- Subclass 190 (Points test, permanent, requires state/territory nomination)
- Subclass 491 (Points test, 5-year temporary visa with permanent residency pathway, requires state/territory nomination)
- Subclass 494 (Employer-sponsored, 5-year temporary visa with permanent residency pathway)
This means that even if you are in Australia on a bridging visa, and you have had a visa refused since you last entered Australia, you can submit a visa application for the above visas.
Why is this important?
This is a significant change towards the right direction. Previously, the only way to ‘get around’ a Section 48 bar for Subclass 190, 491 and 494 visa applicants, is to leave Australia first, and submit a new visa application when they are physically outside Australia. In addition, these applicants may not be able to return to Australia until the new application is approved, unless they have a visa allowing them to come back, such as a Bridging Visa B (Subclass 020, BVB). With the COVID-19 pandemic, this will be even harder due to our current border restrictions.
Therefore, the changes that commenced on 13th November 2021 are giving Section 48 affected visa applicants an opportunity to submit a skilled visa without having to depart Australia, and thus minimizes the interruptions towards their employment and daily life.
It should be noted that despite the changes, we should still avoid a Section 48 bar at all costs, as it can still complicate future visa applications, and may affect your eligibility towards certain visas. Therefore, you should always consult with a migration industry professional to plan your visa pathway in advance, and look for the most suitable pathway for you.
In the meantime, if you are currently affected by Section 48 bar, or would like to know more about whether you are affected, contact our visa team today to conduct a detailed assessment.