Changes to Migration Act – section 48 bar lifted for certain skilled visas


What is section 48 bar?

Section 48 of the Migration Act prevents you from repeatedly applying for a visa if your previous application was refused, or your visa cancelled. This is known as the ‘section 48’ bar, and can make it difficult for you to remain in Australia legally if it applies.

Typically, refused applicants would have simply left Australia and applied for a different visa, but the travel restrictions because of COVID-19 have made such trips difficult.

They must also wait for the results of their new application outside Australia except those who exited to New Zealand with the Trans-Tasman travel bubble,” says ms Tanag.

An application will also be invalid if prevented by a “legislative constraint”, for example, section 48 of the Migration Act. Section 48 is arguably the most significant legislative constraint because it applies more generally to former visa holders. Section 48 applies to non-citizens in Australia who hold a bridging visa, criminal justice visa, or enforcement visa and have had a visa refused or cancelled since last entering the country. However, the legislation also provides for an exemption to this rule, and persons who are subject to section 48 may still be able to apply for a limited number of prescribed visas, including:

  • Protection visa
  • Partner visa
  • Child visa
  • Medical Treatment visa
  • Bridging visa

Section 48 bar – Amendment:

The Department of Home Affairs of Australian Government has made some amendments to the Migration Act 1958. The changes to Migration Act will allow applicants subject to ‘section 48 bar’ to apply for certain skilled visas from within Australia.

In an explanatory statement from the Federal Government, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke stated, “this amendment facilitates applications in Australia by applicants who are prevented from leaving due to COVID-19 related travel restrictions but meet all other requirements for making an application for the visa.”

Being able to lodge a visa is only one step. The applicant also needs to meet criteria at the time of application and then meet another set of criteria at the time a decision is made on your visa application.

If the applicant holds a bridging visa BVE and BVB and BVC holders this change will be very useful. If you hold a BVE, then this latest development would be very useful to you.

Onshore applicants affected by the section 48 bar can apply for the 3 skilled visas from the 13th of November 2021. These skilled visas include;

  • Skilled Work Regional visa (subclass 491)
  • Skilled Nominated visa (subclass 190)
  • Skilled Employer-Sponsored Regional visa (subclass 494)

Skilled Work Regional Visa 491 

  • Skilled work regional visa is a provisional visa. It’s offered to skilled international employees who want to work in regional Australia.
  • Visa 491 allows people to live in Australia for 5 years. It permits people to study and work in the regional area of Australia.
  • 491 visa holders can apply for permanent residency after 3 years from the date they got their Skilled Regional Visa 491.
  • With 491 visas, you can travel from and to Australia as often as you like. You can avail this multiple travel facility until your visa 491 is valid.
  • However, you must be nominated by the Australian state-territory government to apply for visa 491.
  • Skilled work regional visa 491 is points-based. Therefore, applicants must score at least 65 points or more to lodge their application for visa 491.

 Skilled Nominated Visa 190:

  • Skilled Nominated Visa is a permanent visa. It is for qualified employees who want to study or work in Australia permanently.
  • Visa 190 allows people to sponsor their relatives to apply for PR in Australia.
  • To be eligible for visa 190, you must have a nomination from the Australian state/territory government.
  • They’ve to submit their Expression of Interest (EOI) through Skill Select. Subclass 190 is points-based. Applicants must score 65 points or above to be eligible for visa Skilled Nominated Visa 190.
  • Skilled international employees under 45 years of age can apply for a visa 190. They’re required to be competent in the English language.
  • The Department of Home Affairs invites people to apply for visa 190. Therefore, skilled workers will only be eligible to apply for visa 190 if they get the invitation. Skilled employees affected by the section 48 bar can apply for visa 190 from November 13, 2021.

Skilled Employer-Sponsored Regional Visa 494:

  • Visa 494 is a temporary visa. It allows the regional employers of Australia to identify the labour shortages within their region. They can sponsor skilled international workers to fill positions where they can’t find skilled Australian employees.
  • This visa lets you stay in Australia for 5 years. You can live and work in the designated regional areas of Australia. Visa 190 also allows people to enrol in a course study they like.
  • Applicants for a 494 visa must have been nominated to work in the occupation. The nominated occupation of 494 visa applicants must be on the relevant skilled occupation list. Furthermore, they must have a minimum experience of 3 years in their nominated field of occupation.
  • The Australian Government has lifted the section 48 bar for skilled visas, including the Skilled Employer-Sponsored Regional Visa 494. Therefore, skilled employees can now apply for visa 494 to work in regional Australia. 494 visa holders can only work for their sponsor or associated organization in Australia.

Pros and Cons:

Obviously, these changes will be thrilling to holders of Bridging Visa A, B or C who are currently subject to the s48 bar. However, the bar lifted only foe few visas but not for all the visas expired during the covid period. Bridging Visa E will be sorely disappointed. This amendment will likely cause a surge in AAT appeals, causing longer waits and more frustration for existing cases.

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