Visa applicants might not always be aware that they must make a valid visa application before the division can consider it. This means, that when the request is lodged, certain requirements should be met, for example, paying the correct visa fee, being at the right place (offshore or onshore), or using the correct application form.
Section 48 (S48)
An appeal will also be inacceptable if prevented by a legislative restraint, like, S48 of the Migration Act. S48 is arguably the most significant legislative constraint because it applies more usually to former visa holders. S48 applies to non-citizens in Australia who hold a bridging visa, enforcement visa, or criminal justice visa and have had a visa refused or cancelled since last entering the country. Though the legislation also delivers for an exemption to this rule, and individuals who are subject to S48 may still be able to apply for a limited number of prescribed visas, including:
- Protection visa
- Partner visa
- Child visa
- Medical Treatment visa
- Bridging visa
- The Division has amended the legislation to include more visa types to this list.
S48 bar lifted
From 13th Nov 2021, candidates who are subject to S48 may be capable to make a valid visa application onshore for three skilled visa classes, comprising:
- Skilled Nominated (Permanent) Subclass 190
- Skilled Work Regional (Provisional) Subclass 491
- Skilled Employer-Sponsored Regional (Provisional) Subclass 494
This modification in the legislation will facilitate requests in Australia by those prevented from leaving due to COVID-19 linked travel restrictions but who encounter all other needs for making a visa application.
Skilled immigrants in Australia are currently given the chance to apply onshore for a subclass 190, 491, or 494 skilled migration visa even if they are affected by
S48 of the Migration Act.
- S48 bar applies to candidates who have had a visa refused or cancelled since their last entry into Australia.
- The changes to the legislation will officially commence in Nov 2021
- The central government has edited its migration law to allow requests for the following skilled visa subclasses:
- Subclass 491 :- Skilled Worker Regional Visa
- Subclass 190 :- Skilled Nominated Visa
- Subclass 494 :- Skilled Employer-Sponsored Regional Visa
S48 of the Australian Migration Act has long been the bane of many a visa applicant's dreams. Fundamentally, the section says that if your visa application is refused, you are barred from applying for any other prescribed visa until you have left Australia (with a few exceptions). Usually, denied candidates would have simply left Australia and applied for another visa, but COVID-19 has made such trips difficult if not dangerous. In reply to this difficulty, the Australian Government has edited S48 to allow onshore applicants to lodge applications for three general skilled visas, even if they have already been refused another application.
Why has S48 been changed?
In a descriptive statement from the Federal Government, Citizenship, Minister for Immigration, Multicultural Affairs and Migrant Services Hawke stated, this amendment facilitates requests in Australia by candidates who are prevented from leaving due to COVID-19. Given that the constraints on leaving Australia only ever applied to Australian citizens and permanent residents, it is uncertain to whom exactly Minister Hawke is referring. We can only assume logically that the changes are to help those who have not been able to leave Australia due to the practical and financial implications for COVID-19, and that there will be no responsibility on the applicant to show that COVID-19 has affected their travel choices in any way.
Who do the changes benefit?
To be capable to smear for the 190, 491, or 494 visas, you are required to hold a substantive visa or a bridging visa A, B, or C.
