S48 barred applicants

Have you heard? S48 barred applicants can now apply for certain visas without first departing Australia.  This is news has been welcomed by the migration industry, who have been advocating for this during the duration of the COVID19 pandemic.

The Australian Federal Government has included new visa subclasses to the very limited list of visas than an applicant in Australia can apply for if they have previously had a visa refused or cancelled and have not yet departed the country.  Applicants within this category are effected by section 48 of the Migration Act.

So what is Section 48?

Section 48 prescribes that if a visa holder has had a visa cancelled or refused while in Australia (and does not currently hold a substantive visa) they can only apply for a few visa subclasses. These include Partner Visas and Protection Visas and some Bridging Visas. If they want to apply for another visa such as a Skilled Visa, Student Visa or Employer Sponsored Visa they must first depart Australia.

Section 48 is often referred to as a ‘ban’ or ‘bar’.

How does someone become ‘Section 48 barred?’

It is easier than you might think. Some very common examples that come to mind are international students who have completed their studies and applied for a Temporary Graduate Visa (subclass 485). This visa requires an Australian Federal Police check to be applied for before the visa can be lodged and an English Test to be taken with sufficient results achieved. Often applicants that lodge these visas by themselves, unaware that these requirements must be met before applying for the visa  resulting in refusal. Similarly, students who have not met their obligations of studying full time or meeting course requirements can see themselves with a cancelled student visa.

Is there any way to overcome a ‘Section 48 bar’ without leaving Australia?

Yes. For visas refused or cancelled in Australia there is generally the option for applicants to take the matter to the Administrative Appeals Tribunal (AAT). The AAT is independent from the Department of Home Affairs and can overturn a decision or remit it to this Department to reconsider. In such cases a section 48 bar would have existed but once a visa is granted after an AAT hearing the bar would essentially disappear. The problem is it can take 2 years or more to have a case heard at the AAT…

So why all the fuss about the recent change?

The change means that as of 13 November 2021, potential applicants who are currently affected by Section 48 can apply for a subclass 190, subclass 491 or subclass 494 visa. These visas have full work rights, the subclass 190 is a permanent residency visa and the others have permanent residency pathways. For this reason, we migration professionals are all still staring at the new legislation with our mouths open!

Two of these visas are regional visas which makes the news doubly exciting for us here at Regional Migration Australia!

If you believe this announcement may affect your eligibility for a Skilled or Employer Sponsored visa please complete an enquiry form on our website, and one of our experienced migration agents will be in touch to help you soon.

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