That dreadful moment when you see the words ‘application refused’ on that one email which can be extremely stressful. We understand the emotional challenges you may experience when you are faced with this notice. But lucky for you there are few new options to consider should you find yourself in this situation.
What is a Section 48 bar?
If you have ever had a visa refused or cancelled whilst you were onshore in Australia, you automatically fell under Section 48 of the migration act. In essence, this section prevents you from applying for a further visa other than protection visas, partner visas, bridging visas and a small number of other visas. The operation of this bar is intended to keep non-citizens from lodging the same repeat applications to delay their departure out of Australia. The Migration Act does not allow for the section 48 bar to be waived in any circumstances. A person who is directly affected by the section 48 bar and who wants to apply for a visa that is not a set visa for this purpose unfortunately must leave Australia and make any future applications for a visa from outside Australia. This generally means that your main options are to either appeal the visa decision with the Administrative Appeal Tribunal, leave the country within 35 days of refusal or cancellation or apply for the other eligible limited visas mentioned above.
The recent Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021 which came into effect on the 13/11/2021 under Schedule 1 has been amended to allow for new types of applications to be lodged in Australia by applicants who have been refused a visa or had a visa cancelled while in Australia. This new amendment gives the opportunity for applications in Australia to be made by applicants who are prevented from leaving due to COVID-19 related travel restrictions, however meet all the other requirements for making an application for the desired visa. However, these only apply to specific limited visas.
Regulation 2.12 of the Migration Regulations 1994 (the Migration Regulations) gives a short list of visas that a person subject to section 48 is allowed to apply for while remaining in Australia. With new changes, regulation 2.12 has been amended to prescribe the additional following skilled visas in the list of visas allowed, for which persons subject to section 48 may apply. The new visa subclasses now include:
This change as mentioned above shows that the government knows that the travel restrictions put in place by many countries in response to the COVID-19 pandemic have greatly affected most non-citizens in Australia who are barred by section 48 of the Act from putting forth an application for a visa while they remain in Australia but on the other hand have been nominated or sponsored for one of the above-mentioned visas. These applications may also be made by members of the family unit of the person who has been nominated!
The Subclasses 190, 491 and 494 have been added to this list of visa classes to allow applicants who have been nominated or invited by states and territories or for regional visas but who are currently s48 barred, to apply onshore.
You don’t have to go back to your home country. Anyone living in Australia can potentially obtain a temporary visa for New Zealand, fly on over and come back! Anyone who possesses a bridging visa type A, which can be converted into a bridging visa B type, can travel to New Zealand, and apply for a visa for Australia whilst in New Zealand and await the visa approval in Australia.
This is due to New Zealand’s large tally of countries where a formal visa is not required for a short and temporary visit, much like the one you can make while applying for your new visa.
Contact a registered experienced migration agent to learn how we can assist you