An important change has recently been enacted to Section 48 of the Migration Act, which has significant positive implications if you have had a visa refused or cancelled in Australia and you would like to apply for another visa onshore, specifically, for a skilled visa.
As a result of these changes, you will no longer be required to depart Australia to apply for certain skilled visa subclasses.
In this article, we examine section 48, how and when it applies, and the effect of these new changes on prospective skilled migrants in Australia.
What Is Section 48 (s48 bar)?
Section 48 of the Act applies to a non-Australian citizen who:
- is onshore in Australia;
- does not hold a substantive visa (this refers to any visa excluding a bridging visa, criminal justice or enforcement visa); and
- after last entering Australia:
- has had a visa refused (except for a bridging visa, or a visa refusal on character grounds), whether or not that application has been finally determined; or
- has had a visa cancelled (under certain provisions).
In these circumstances, the non-citizen may apply onshore only for a specified visa from a prescribed list of visa subclasses. Otherwise, they must depart Australia and apply for the visa offshore (provided they are eligible).
What Are The Changes?
Under these new changes to Section 48, which come into effect on 13 November 2021, the list of prescribed visas that a non-citizen who is subject to section 48 may apply for now includes the following skilled visa subclasses:
- Subclass 190 Skilled Independent visa;
- Subclass 491 Skilled Work Regional (Provisional) visa; and
- Subclass 494 Skilled Employer Sponsored Regional (provisional) visa.
What Do These Changes Mean?
As a result of these changes to Section 48, if you have had a visa refused or cancelled since you last entered Australia (and you are subject to Section 48) and you do not hold a substantive visa, you may apply for either a subclass 190, 491 or 494 visa whilst you remain in Australia (i.e. you do not need to depart Australia to apply).
This is a significant positive development for skilled migrants who are affected by Section 48, as they are no longer subject to the requirement to leave Australia to apply for one of the prescribed skilled visas noted above.
However be mindful that you must still meet all valid application lodgement and visa grant requirements to be eligible to apply for either a subclass 190, 491 or 494 visa if you are applying as a result of these changes to Section 48. This means that you must hold one of the following bridging visas to be eligible to apply:
- Subclass 010 Bridging A visa;
- Subclass 020 Bridging B visa; or
- Subclass 030 Bridging C visa.
If you do not hold one of these bridging visas, but hold, for example, a Subclass 050 Bridging E visa, you will not be able to apply for a subclass 190, 491 or 494 visa.
Another important point to be aware of is that if you are applying for the subclass 190 visa, you will be subject to an additional requirement whereby if, at the time of application, the last substantive visa that you held was a subclass 491 or 494 visa, then you must have held that visa for at least three years at the time of application.
If you are considering applying for a subclass 190, 491 or 494 visa, it is vital that you have a full understanding of all of the requirements that apply, even if the section 48 bar is not applicable to you as result of these changes. Contact us for a comprehensive assessment of your circumstances and tailored advice on whether you are eligible to apply.
Get More Information
To learn more about applying for a skilled visa including visas apply for s48 bar, please see the following articles:
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Contact us to book a no-obligation consultation to learn about visas you can apply for (despite s48 bar) and whether you are eligible to apply for a prescribed skilled visa in these circumstances.
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Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are interested in applying for a skilled visa in Australia, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this. You will also note that several terms mentioned in the above article are defined in the migration provisions. It is vital to have a good understanding of these terms and how they apply in practice. Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.
For up to date advice on applying for a skilled visa, including the changes to Section 48 of the Act as discussed in this article, contact PAX Migration Australia, a leading immigration service providing advice on a range of visas including skilled migration visas. Contact us for a no obligation discussion on how we may be able to assist you in achieving your migration goals in Australia.