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’.
If you are ‘section 48 barred’ you are prevented from lodging most other visa applications while you are in Australia (there are some very limited exceptions). This means that you would normally need to leave Australia.
Becoming unlawful in Australia or overstaying your visa can negatively affect future visa applications and eligibility for citizenship.
State and Territory Nominated Visas – s48 barred applicants onshore (COVID-19 updates)
The section 48 bar applies to applicants who have had a visa refused or cancelled since their last entry into Australia. If you are subject to a section 48 bar you need to leave Australia before you can reapply for a visa.
The Victorian Government will not re-nominate applicants who are subject to a section 48 bar where their nomination has expired and they are unable to leave Australia.
Migration WA has announced that Section 48 barred applicants are now be eligible for WA State nomination.
If an applicant is currently on a bridging visa and has been invited to lodge documents with BSMQ for a subclass 491 visa, they must notify Business and Skilled Migration Queensland of any past visa refusals or cancellations.
If an applicant has received a visa refusal or cancellation whilst on a bridging visa they are likely to be subject to a section 48 bar – which means they are unable to lodge a state nominated visa (and most other visas) onshore.
Unfortunately during the COVID-19 pandemic, it not possible to go offshore to lodge a visa application, and then return to Australia.
This is because there is an entry ban on temporary visa holders returning to Australia at this time. If you or your client is section 48 barred, BSMQ is unable to nominate for a subclass s491 visa and request that the application be withdrawn.
It may be possible to submit an EOI again at a later date once the entry ban is lifted if Queensland criteria continues to be met.
The Australian Government has amended the Migration Act 1958 to allow applicants subject to a ‘section 48 bar’ to lodge a visa application from within Australia, for certain skilled visa subclasses.
From 13 November 2021, onshore applicants affected by the section 48 bar can apply for the following three skilled visas:
- Skilled Work Regional visa (subclass 491)
- Skilled Nominated visa (subclass 190)
- Skilled Employer Sponsored Regional visa (subclass 494)
The legislative change will mean section 48 will no longer be a barrier to these onshore skilled migrants applying for South Australian state nomination.
As a result, applicants currently subject to a section 48 bar for the subclass 491 and 190 visas are no longer required to provide confirmation they will be travelling offshore to lodge their visa application, when applying for South Australian state nomination.
Tasmania: Applicants who hold a Bridging Visa associated with AAT or Federal Court review will be placed on hold until the travel ban is lifted at which time these applications will be further assessed in consideration of an updated residential location and employment details (if applicable) then finalised.
NSW: If your visa application is affected by a s48 bar, meaning you must be offshore to lodge a new visa application, NSW will re-nominate you once you are able to travel overseas. This will provide a further 60 days to submit your visa application to the Department of Home Affairs.
For section 48 of the Act the following classes of visas are prescribed:
(a) Partner (Temporary) (Class UK);
(b) Partner (Residence) (Class BS);
(ca) Medical Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(ma) Bridging F (Class WF);
(mb) Bridging R (Class WR);
(o) Resolution of Status (Class CD);
(p) Child (Residence) (Class BT);
(q) Retirement (Temporary) (Class TQ);
(r) Investor Retirement (Class UY).
Note: Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.