What is a s48 bar?
Section 48 of the Migration Act 1958 (Cth) prevents applications being made for a substantive visa while in Australia if an applicant’s visa has been refused or cancelled during their stay. This bar automatically applies to people who have had a visa cancelled or made a visa application which has been refused.
What are the visa types exempt from a s48 bar?
If you are subject to a Section 48 bar, you can only apply for a limited list of prescribed visas within Australia. The exempted visas include partner visas, protection visa, bridging visas, medical treatment visas, subclass 444 for New Zealand citizens and, child visas as well as a few other types of visas.
If you are not eligible to apply for one of the exempted visas you would have to leave Australia and apply for a different visa. However, because of the travel restrictions imposed due to COVID-19 leaving Australia has become difficult.
What is the new change to s48?
The list of prescribed visas has now been expanded by the Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021 to include three popular skilled visas.
The visas that can now be lodged are:
- 491 Visa – Skilled Work Regional (Provisional) visa
- 494 Visa – Skilled Employer Sponsored Regional (Provisional) visa
- 190 Visa – Skilled Nominated visa
The Department of Home Affairs has announced the amendment of the legislation that will officially commence on 13 November 2021.
However, to be able to apply for 190, 491 or 494 visas, you need to hold a substantive visa or a bridging visa A, B or C.
Those that hold a Bridging Visa E will not be able to apply for 190, 491 or 494 visas.
In an Explanatory Statement from the Federal Government, the 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.”
