Sec 48 Bar Removal
Subclass 190, 491, and 494 visa holders affected by the Section 48 bar will be able to lodge applications onshore from 13 November 2021
If you are an onshore 190, 491, or 494 visa applicant affected by the sec 48 bar there is a reason to smile due to upcoming changes i.e sec 48 bar is going to be removed from 13 November 2021.
The Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021 (the Regulations) will amend the Migration Regulations 1994 (the Migration Regulations) to allow applications for certain skilled visas by persons in Australia under section 48. Regulation 2.12 prescribes three skilled visa classes as visas for which an application may be made in Australia by applicants who have been refused a visa or had a visa cancelled while in Australia and are prevented by section 48 of the Migration Act from applying for a visa other than a prescribed visa while remaining in Australia. This amendment facilitates applications in Australia by applicants who are prevented from leaving due to COVID-19 related travel restrictions but meet all other requirements for making an application for the visa.
Home Affairs Legislation Amendment (2021 Measures No 1) Regulations 2021
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of Schedule 1 – Allow applications for certain skilled visas by persons in Australia under section 48
Section 48 of the Migration Act 1958 (the Migration Act) prevents certain visa applications from being lodged by a non-citizen in Australia who has had a visa cancelled or refused in Australia and does not hold a substantive visa, except for a visa that is prescribed for the purposes of section 48. The operation of this bar is intended to prevent non-citizens from lodging repeat applications to delay their departure from Australia. The Migration Act does not allow for the section 48 bar to be waived in any circumstances. A person who is affected by the section 48 bar and who wishes to apply for a visa that is not a prescribed visa for this purpose must leave Australia and make any further applications for a visa for Australia from outside Australia.
Regulation 2.12 of the Migration Regulations 1994 (the Migration Regulations) prescribes a list of visas that a person subject to section 48 is permitted to apply for while remaining in Australia. This list includes protection visas, partner visas, bridging visas, and a small number of other visas.
The purpose of this Disallowable Legislative Instrument is to amend regulation 2.12 to prescribe the following skilled visas in the list of visas for which persons subject to section 48 may apply:
- Subclass 190 – Skilled Nominated (Permanent);
- Subclass 494 – Skilled Employer-Sponsored Regional (Provisional); and
- Subclass 491 – Skilled Work Regional (Provisional).
This amendment recognises that the travel limitations imposed by many countries in response to the COVID-19 pandemic may have affected some non‑citizens in Australia who are barred by section 48 of the Act from making an application for a visa while they remain in Australia but who have been nominated or sponsored for one of the above visas.
The changes to the Migration Regulations expands the list of exempted classes of visas prescribed in regulation 2.12 enabling regional and nominated skilled visa applications to be made by people who are affected by the bar, but who may meet the criteria for the grant of one of these visas. These applications may also be made by members of the family unit of the person who has been nominated.
Human rights implications
This Disallowable Legislative Instrument engages the following rights:
- the right to work in Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and
- the right to freedom of movement in article 12 of the International Covenant on Civil and Political Rights (ICCPR).
Right to work
This Disallowable Legislative Instrument engages Article 6(1) of the ICESCR. Article 6(1) states:
The States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
This Disallowable Legislative Instrument positively engages the right to work of some non-citizens in Australia who are barred by section 48 of the Act from making an application for a visa while remaining in Australia as a result of COVID-19, but who have been nominated by an employer or a State or Territory Government, and in some cases a family member, for a visa to remain and work in Australia. The amendments made by this Disallowable Legislative Instrument allow those non-citizens to apply for a visa that permits them to work (and/or continue working) in Australia without having to leave Australia to apply for that visa.
The right to freedom of movement
Article 12 of the ICCPR states:
- Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
- Everyone shall be free to leave any country, including his own.
- The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals, or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant.
- No one shall be arbitrarily deprived of the right to enter his own country.
The right to freedom of movement includes the right to move freely within a country for those who are lawfully within the country.
Prescribing three additional visa subclasses that a person who is barred by section 48 of the Migration Act can apply for, gives those persons more options to remain in Australia and not have to depart Australia to make another visa application. Two of these three subclasses are regionally-focused visas.
People who choose to apply for and are granted one of the regionally-focused visas are expected to live, work and study in a designated regional area. Currently, this is everywhere in Australia with the exception of certain major metropolitan cities. However, they are free to visit other areas of Australia. Although it is a requirement of these visas to be nominated by a state/territory or a regional employer, or, in some cases, by a family member who resides in a regional area, it is the applicant’s decision to do work for an employer who is located in certain areas.
The amendments allow people who already have a nomination for these visas to continue with their applications, despite the bar in section 48 of the Migration Act. These people have already chosen to work in these locations and they are not limited to other movements around the country.
Persons who are barred by section 48 of the Migration Act but who do not wish to live, work and study in a regional area may also seek to apply for one of the other visas which are prescribed in regulation 2.12, including the third visa being added by this Disallowable Legislative Instrument, the subclass 190 visa, which does not have a regional focus.
As such, the ability to apply for a regionally-focused visa is additional to the other options that a person who is barred by section 48 of the Migration Act has for applying for a visa while they remain in Australia. It is expected that the persons who choose to pursue this option will be those who are already living and/or working in a regional area. The amendments, therefore, do not limit the freedom of movement of persons who are barred by section 48 of the Act.
Looking to file your onshore application contact our Registered Migration Agents at Better Life Migration at https://www.betterlifemigration.com.au/ or ring +61415419414.
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Source: Legislation
