Section 48 Bar

Navigating Visa Restrictions After Onshore Refusal or Cancellation

Understanding the s 48 Bar

The Section 48 bar is a legislative provision within the Migration Act 1958 that restricts certain individuals in Australia from lodging new visa applications while they are onshore. It applies to those who have experienced visa refusals or cancellations while in Australia and subsequently hold a Bridging Visa or have become unlawful non-citizens. The primary aim of this provision is to uphold the integrity of the Australian visa system, ensuring compliance with visa conditions and regulations.

Key Aspects of the s 48 Bar:

1. Applies to individuals who have had their visa refused or cancelled while in Australia.

2. Restricts the ability to lodge further visa applications without leaving the country unless certain exemptions apply.

3. Primarily targets non-substantive visa holders (such as those on Bridging Visas) and unlawful non-citizens.

When and How the s 48 Bar is Triggered

The Section 48 bar comes into effect when:

(1) Visa Refusal or Cancellation Occurs Onshore:
If a person’s visa application is refused or an existing visa is cancelled while they are physically present in Australia, they may become subject to the Section 48 bar.

(2) Visa Status at the Time of Refusal or Cancellation:
The bar specifically affects individuals who are either on a non-substantive visa (such as a Bridging Visa) or who have become unlawful (for instance, if their visa has expired).

Being subject to the Section 48 bar means you cannot lodge most new visa applications while in Australia. This can present significant challenges, but there are pathways and exemptions available.

Exemptions to the s 48 Bar

There are certain circumstances and visa types that are not subject to the Section 48 bar or are exempt from the restrictions it imposes. The following visas can be applied for even if you are affected by the bar:

Protection Visa (Subclass 866): For individuals seeking asylum or who fear persecution if they return to their home country.
Partner Visas: Partner (Temporary) Visa (Subclass 820); Partner (Permanent) Visa (Subclass 801) (as a combined application with the subclass 820); Child Visas (e.g., Subclass 445): For dependent children of eligible visa holders.
Bridging Visa Applications: Bridging Visa E (BVE): This visa may allow you to remain in Australia lawfully while awaiting the outcome of an appeal or while making arrangements to depart.
Health Waiver or Special Humanitarian Considerations:In exceptional cases, if there are compelling humanitarian or compassionate grounds, you may still be eligible to lodge a visa application onshore.

Note: Applications lodged offshore are not subject to the Section 48 bar, meaning that departing Australia to make a new visa application is a viable option for many applicants facing restrictions.

Skilled Visa Exemptions under the s 48 Bar

The Australian Government has made provisions to ease restrictions for skilled migrants affected by the Section 48 bar, allowing them to apply for certain skilled visas while remaining in Australia. This amendment, effective from 13 November 2021, applies to the following visa subclasses:

Skilled Nominated Visa (Subclass 190): This is a permanent residency visa for skilled workers nominated by a state or territory government. It allows individuals to live and work in Australia indefinitely. Nomination is based on the applicant's skills and their occupation being in demand within the nominating state or territory.
Skilled Work Regional (Provisional) Visa (Subclass 491): This is a provisional visa for skilled workers nominated by a state or territory government or sponsored by an eligible family member living in a designated regional area. The subclass 491 visa is valid for five years and offers a pathway to permanent residency.
Skilled Employer Sponsored Regional (Provisional) Visa (Subclass 494): This visa allows employers in regional Australia to sponsor skilled workers for positions they cannot fill locally. It is a provisional visa that can lead to permanent residency through the Subclass 191 Permanent Residence (Skilled Regional) visa after three years, provided certain conditions are met.

Benefits of Skilled Visa Exemptions under the s 48 Bar

Onshore Application Opportunity: Individuals affected by the Section 48 bar can lodge applications for the specified skilled visas while staying in Australia, thereby avoiding the need to leave the country.
Support for Skilled Migration Needs: These exemptions support the Australian labour market by facilitating the retention of skilled migrants in critical occupations.
Easing Pathways to Permanent Residency: Skilled visas such as Subclass 190 and Subclass 491 provide pathways to permanent residency, offering long-term security for eligible applicants.

Your Questions Answered

What is the Section 48 bar?

The Section 48 bar is a restriction that applies to individuals in Australia who have had a visa refused or cancelled. It prevents them from lodging most new visa applications while they remain onshore.

Who does the Section 48 bar affect?

It applies to individuals holding non-substantive visas, such as Bridging Visas, or those in unlawful status following a visa cancellation or refusal.

Can I apply for any visa while subject to the Section 48 bar?

You can apply for specific visa subclasses, such as the 190, 491, and 494 skilled visas, as well as certain Partner and Child visas, while onshore under the bar.

How can I overcome the Section 48 bar?

Options include applying for eligible onshore visas, lodging applications offshore, or seeking legal advice to explore exemptions.

Does the Section 48 bar apply to all visa applications?

No, it does not apply to certain visa subclasses, such as the Protection Visa (subclass 866) and Partner Visas.

Can I leave Australia to lodge a new visa application?

Yes, you can lodge new visa applications from offshore as the Section 48 bar only restricts onshore applications.

What should I do if I am subject to the Section 48 bar?

Consult us to explore your options, including any potential exemptions or offshore applications.

How does the bar impact future visa applications?

Being subject to the bar can influence your eligibility for certain visas and impact your immigration history, which may be considered in future applications.