Visa applicants may not always be aware that they must make a valid visa application before the Department can consider it. This means, that when the application is lodged, certain requirements must be met, for example, paying the correct visa fee, being at the right place (onshore or offshore) or using the correct application form.
An application will also be invalid if prevented by a “legislative constraint”, for example, section 48 of the Migration Act. Section 48 is arguably the most significant legislative constraint because it applies more generally to former visa holders. Section 48 applies to non-citizens in Australia who hold a bridging visa, criminal justice visa, or enforcement visa and have had a visa refused or cancelled since last entering the country. However, the legislation also provides for an exemption to this rule, and persons who are subject to section 48 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 Department has amended the legislation to include more visa types to this list.
S48 bar lifted
From 13 November 2021, applicants who are subject to section 48 may be able to make a valid visa application onshore for three skilled visa classes, including:
- Skilled Nominated (Permanent) Subclass 190
- Skilled Work Regional (Provisional) Subclass 491
- Skilled Employer-Sponsored Regional (Provisional) Subclass 494
This change in the legislation will facilitate applications in Australia by those prevented from leaving due to COVID-19 related travel restrictions but who meet all other requirements for making a visa application.