The Section 48 Bar (s48 Bar), refers to this section of the Migration Act 1958:
Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
This is at least the part that causes most people be in a spot of bother when handling their immigration affairs in Australia. The section goes on talk about other situations, but this is he most relevant for people in Australia that have had their visa refused or cancelled for various reasons.
Essentially what the s48 bar does is stop from you applying from most visas if you have had a visa refused or cancelled since your last entry to Australia. The purpose of this is that there cannot be continuous applications made for visas, that are not likely to have a positive outcome (ie. a visa). Therefore, if you have had a visa refused or cancelled since you last entered Australia (using an airport) the s48 bar will be automatically applied to you.
Historically, the only visas that you could apply for if the s48 bar had been applied to you have been, medical treatment, humanitarian, bridging or partner visas (listed in Reg 2.12, Migration Regulations 1994). However, recently there has been some additions to this list that show the Australian Government is seeking to support regional communities of Australia. The new additions to this list include:
• 491 Visa - Skilled Work Regional (Provisional) visa
• 494 visa - Skilled Employer Sponsored Regional (Provisional) visa
• 190 Visa Skilled Nominated visa
What this means for migrants in Australia that have had a visa refused or cancelled since last entry is that you have additional visas that you may be able to apply for where you can be classified as a skilled worker. Keep in mind though, being able to apply for a visa from a s48 bar is great – but in some circumstances (like for a Partner Visa) there will be extra criteria that will apply to your application. In some cases, you will not meet the additional criteria and as such the fact that you are allowed to apply is redundant because you cannot meet the criteria for the visa application.
The only other way to have the s48 bar lifted is to depart Australia and lodge an application from outside of Australia.
And you should always ensure that you depart Australia lawfully. Always.
That is even if you are barred from lodging any further visa applications, you should continue to keep lawful status in Australia. Don’t let your Bridging Visa run out! You can attend at the Department of Home Affairs offices to seek a further Bridging Visa to depart Australia if you need more time to wrap up your affairs. Staying lawful and departing lawfully is critical to success in a future visa application in Australia. This is because when you depart as an unlawful non-citizen (that is, a non-Australian without any valid visa) you may be barred for a period of up to 3 years.
Immigration law in Australia is tricky. When things go wrong and you have a s48 bar in place, you should get help to navigate your next steps.
Reach out if you need help navigating a s48 bar to hello@passagemigration.consulting.
Otherwise, stay lawful, get festive and have a good day!
Rachael is our Legal Practice Director, Youtube Host and Creator of Passage Migration Consulting.
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