In a big blow to visa applicants unable to leave the country due to the coronavirus-induced travel restrictions, some Australian states have declared that they will not nominate applicants who are subject to a section 48 bar of the Migration Act.
The section 48 bar applies to applicants who are in Australia without a substantive visa and have had a visa refused or cancelled since their last entry into the country. Applicants who are barred by this section need to leave Australia before they can apply for a visa barring some limited exceptions.
But some prospective visa applicants and those who have been able to secure an invite for the state nomination are now finding it difficult to leave the country due to COVID-19 prompted travel restrictions and lack of international flights.
This means they can’t go offshore to lodge a visa, and if they do, they won’t be able to return until they get an exemption from the Australian Border Force.
- Some Australian states suspend nominating applicants subject to a section 48 bar of Migration Act
- S48 bar applies to applicants who have had a visa refused or cancelled since their last entry into Australia
- A petition has been lodged seeking a temporary amendment to the s48 bar
In a statement to SBS Punjabi, the Department of Home Affairs said if section 48 applies, the person will not be able to lodge a valid application for most visas.
There is no ability for the Minister to intervene so that section 48 will no longer apply to a person- Department of Home Affairs
Who is being impacted?
Bridging visa holder Naveen Kumar who came to Australia as a student in October 2008 has been asked to leave the country before September 9.
The 34-year-old network analyst who has called Sydney home for over a decade is subject to the section 48 bar ever since his application for permanent residency was rejected last year.
He, however, lodged an appeal for review with the Administrative Appeals Tribunals (AAT), which too resulted in refusal in July this year. Mr Kumar is now appealing to the Australian government to waive the section 48 bar until the pandemic subsides.
“I now have no choice but to leave the country before September 9. If I were not subject to this bar, I could have stayed here and applied for a visa before the deadline. But in the current circumstances, I will have to find a flight home and probably give up on my Australia dream for the time being,” he said.
Explaining the impact of section 48 bar on visa applicants, Adelaide-based migration agent Mark Glazbrook said it broadly impacts two categories of applicants.
“First, the prospective or intending applicants for state nominations (like Mr Kumar) and the second are those who have been worst affected – the ones who have already been nominated by their state, but now have no choice but to leave the country because they are s48 barred,” he said.
Caught in a similar limbo is Adelaide-based Rahul Verma who has family and friends in Australia. The 30-year-old transport manager said he was over the moon when he received his state nomination in March this year.
“I thought all my problems would now end, but the COVID-19 pandemic brought my life to a stop. Now the issue is that my state nomination invite has expired as I could not return to India before the deadline of 60 days because there were no flights.
“And now given that I have no option but to apply for a state nomination again that is when they open, but even if I secure an invite, I will have to leave the country to lodge a visa application. But the dilemma is, that I won’t be able to return until the international borders open to temporary migrants and God alone knows when that would happen,” said Mr Verma.
In response to SBS Punjabi's query on what recourse is available for a migrant who's invite has ceased, the Department clarified that intending migrants who are invited to apply for certain Skilled visas, including those invited by a State or Territory, have 60 days in which to lodge their visa application.
"This time period cannot be extended. Invitations cease after this time period and cannot be reused by the State or Territory or the intending migrant," said the spokesperson for the Department of Home Affairs.
Mr Glazbrook is currently spearheading a petition seeking a “temporary amendment” to the s48 bar to allow affected applicants to apply for visas while remaining onshore. The petition has so far garnered over 3,000 signatures.
He argues that while he understands the section is imperative to maintain the integrity of the migration program and to prevent lodgement of “false and misleading” applications, it should not come in the way of genuine visa seekers like Rahul who have already qualified for the state nominations.
“It is very unfair and extremely frustrating that the Department has made significant changes for international students and those wanting to apply for a subclass 485 graduate visa but have not made any changes to s48 bar.
“What we are seeing now is many people being forced to leave Australia to lodge an application for permanent residency who if they leave will be stuck offshore indefinitely. In some cases, these people have their entire lives here in Australia, including jobs, families – some with young children and financial commitments,” he added.
Here’s a state-wise update for S 48 barred applicants:
Victoria: The government will not re-nominate applicants who are subject to section 48 bar where their nomination has expired, and they are unable to leave Australia.
Queensland: BSMQ is unable to nominate section 48 barred applicants for Subclass 491 visas and requests that these applications be withdrawn. Nomination applications may be lodged again once the travel restrictions are lifted if the applicant meets the criteria at that time.
South Australia: Subject to the continuation of the current travel restrictions, Immigration SA will hold existing applications affected by a section 48 bar until 30 June 2020. It further states that applicants who have submitted their applications on or after 21 April 2020 and are unable to travel offshore should not submit an application for 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: The state will re-nominate applicants affected by section 48 bar once they are again able to travel overseas. This will provide a further 60 days to submit the visa application to the Department of Home Affairs.
Disclaimer: This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.
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