The Australian government has announced major changes to the infamous ‘section 48 Bar’. Depending on your current situation, these changes may have an equally major effect on your immigration options.
This article explains what the section 48 Bar is, what the rules used to be, and finally the changes that have been made.
What is the ‘Section 48 Bar ’?
Section 48 of the Migration Act forces limitations if a visa has been refused or cancelled while in Australia.
The section 48 Bar is the nickname given to a specific law found in the Migration Act. This law says that if you have a visa application refused while in Australia, you are not (in most cases) allowed to apply for another visa until you have first left the country.
For people affected by the Bar, the most common way of dealing with it has been to generally follow these three steps:
- Return to your home country
- Apply for another visa
- Wait for the visa to be granted, and return to Australia
However, much of the world continues living under strict COVID rules. Those affected by the Bar have been unable to make use of the traditional three-step method for two main reasons.
Firstly, flights out of Australia are still relatively rare. Flights that do exist are typically subject to incredibly high prices as a result of how few people are booking them.
Secondly, those who do manage to fly out of Australia and apply for another visa have no guarantee of being allowed back into Australia – even if their visa is granted. Australia’s borders are still, in large part, closed to the rest of the world. This includes most visa holders.
This has made the Bar, which was already somewhat frustrating to manage, practically impossible to overcome. Calls for this to be changed have now been acknowledged by the Australian government, who have introduced major changes to the Bar for certain visa subclasses.
What are the consequences of Section 48 Bar
If you have had a visa cancelled or refused since last arriving in Australia and you are either unlawful (that is – you do not hold a visa) or you hold a bridging visa you are then in what is called ‘section 48 bar’.
Substantially, If you are ‘section 48 barred’ you are prevented from applying for a different visa or repeatedly applying for a visa while in Australia. This process is known as the ‘section 48’ bar and can have severe consequences on the applicant’s ability to settle in Australia legally. This means that you would normally need to leave Australia.
However, this bar will not apply to all visa applications.
Therefore, it is essential to classify the situations that it will involve.
From 13 November 2021, a S48 Bar waiver is available for skilled visa applicants for subclasses: sc190, sc491 and sc494. This means that Section 48 bar applicants can apply for sc190, sc491 and sc494 visas Onshore from the above date. If you need to discuss your matter please book a time with No Borders Law Group.
What are the new rules to Section 48 Waiver?
Beginning on 13 November 2021, the Bar will NOT apply to the following visa subclasses:
- Subclass 190 (Skilled Nominated)
- Subclass 491 (Skilled Work Regional)
- Subclass 494 (Skilled Employer Sponsored Regional)
This means that if you are currently in Australia and have had a visa application refused, you can apply for any of the three above visas while in the country.
Previoulsy, certain visa applications are exempted from the S48 bar.
For example, onshore applicants can apply for
- Partner Visa 820/801,
- Protection Visa,
- Medical Treatment Visa,
- Special Category Visa,
- All Bridging Visas and
- Child (Residence) Visa.
Keep in mind that you will still need to be either on a substantive visa, or one of the following Bridging visas: A, B, or C.
Need help with getting Australian Visas or Visa Appealing?
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We will help you by exploring visa options and securing applications. We will assess the eligibility of the application for a partner visa, and provide you with detailed advice on your chances of success. If you would like to discuss your visa options and evaluate the pathway to permanent residency, please make an enquiry or book a consultation to get expert advice with one of our knowledgeable and experienced Migration Agents/Lawyers on 07 3876 4000 or email: [email protected].