Section 48 of the Australian Migration Act has long been the bane of many a visa hopeful's dreams. Essentially, 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). Typically, refused applicants would have simply left Australia and applied for another visa, but Covid has made such trips difficult if not dangerous. In response to this predicament, the Australian Government has amended section 48 (s48) to allow onshore applicants to lodge applications for three popular skilled visas, even if they have already been refused another application.
The visas that can now be applied for after refusal are:
- 491 Visa - Skilled Work Regional (Provisional) visa
- 494 visa - Skilled Employer Sponsored Regional (Provisional) visa
- 190 Visa Skilled Nominated visa
Why has s48 been Changed?
In an Explanatory Statement from the Federal Government, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke stated, "this amendment facilitates applications in Australia by applicants who are prevented from leaving due to COVID-19". Given that the restrictions on leaving Australia only ever applied to Australian citizens and permanent residents, it is unclear 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 inancial implications fo Covid, and that there will be no obligation on the applicant to show that Covid has affected their travel options in any way.
Who do the changes benefit?
To be able to apply for the 190, 491 or 494 visas, you need to hold a substantive visa or a Bridging Visa A, B or C.
Who misses out?
People who hold a Bridging Visa E will not be able to apply for the 190, 491 or 494 visas and therefore get no benefit from the s48 changes.
When does the change come into effect?
The changes to the legislation will officially commence on the 13 November 2021.
Pros and Cons
Obviously these changes will be thrilling to holders of Bridging Visa A, B or C who are currently subject to the s48 bar, and those on Bridging Visa E will be sorely disappointed.
In the Explanatory Statement it is said the Government "recognises that the travel limitations imposed by many countries in response to the COVID-19 pandemic may have affected some non-citizens". Indeed it certainly has, but why then only amend the laws for these visas? Why not simply extend all visas that expired during the Covid period?
We also have to question if this change is wise from a practical perspective. The Administrative Appeals Tribunal has already admitted it cannot handle its current backlog of cases. This amendment will likely cause a surge in AAT appeals, causing longer waits and more frustration for existing cases.
If you are currently subject to a s48 bar, contact Work Visa Lawyers today to see if these new laws can be used to help you.
Author
Chris Johnston, Founder and Principal Lawyer at Work Visa Lawyers
Sources:
Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021, URL: https://www.legislation.gov.au/Details/F2021L01483
Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021 Explanatory Statement, URL: https://www.legislation.gov.au
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Disclaimer
This information is correct at the time of publication but is subject to change without notice. All information provided on this page is provided for purely educational purposes and does not constitute legal advice. For advice on your situation, please speak with an Immigration Lawyer or a Registered Migration Agent.
