Skilled visas: Invitations to visa holders affected by Section 48 Bar. [Updated 2020]

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Section 48 problem

If you are in Australia and since last arriving in Australia you have had a visa refused or a visa cancelled then you are subject to section 48 of the Migration Act which significantly limits your ability to make any further application in Australia.

If you are lucky enough to receive an invitation to lodge a skilled migration visa, nominated by a state or territory, there is a real problem. You are likely not to be able to travel outside Australia because of travel restrictions because of COVID-19 or similar events.

If you are unable to exit Australia to lodge your offshore application, you might run out of time to accept the invitation to apply and make the required skilled migration application.

Different states, different treatment

I have heard that some states and territories are providing an extended period of time to make a valid application by way of acceptance of the invitation. 

I’m not sure of the legislative basis for this extension of time to make the valid application.

Please contact me if you have encountered a specific problem in relation to any extension of time issue. I’d like to know if you’re having this problem.

The big s.48 question

“Will section 48 of the Migration Act stop you from making an application for a skilled migration visa whilst remaining in Australia?”

Question: I have been invited to make an application for a state and territory nominated skilled migration visa. However I’m currently in Australia awaiting a hearing and decision of the AAT. I hold a bridging visa in association with that application because I have had a protection visa refused since last arriving in Australia. When I first came to Australia in 2015 I came on the student visa and that student visa has expired. Am barred by section 48 of the Migration Act?

Section 48 impact on skilled applicants

Answer: Unfortunately and inconveniently, the answer to this question does vary from state to state and territory. You should contact your state or territory nominating you the guidance as to what they will do with your invitation. It’s not the same for all parts of Australia. Annoying? Yes!

I would expect that states and territories will not currently nominate you if you are section 48 barred. However, I am aware of clients who are subject to section 48 and who have been invited.

If they have nominated you, then they may decide to withdraw your nomination. Don’t call me. Contact them today first.

Extension of time

There is also an opportunity for the states and territories to provide a further extension of time for you to make a valid application for nomination.

The legislative basis for providing this extension of something which needs some further consideration. 

The designers of the current skilled migration program did not foresee the COVID-19 pandemic.

Once again I would ask you to contact your nominating state or territory if the situation above affects you. 

You should also check with the department or AAT if you hold a bridging visa, and find how much time it will take to get a decision in relation to your application. In most cases your bridging visa will expire 35 days after a final decision is made in relation to your substantive visa application.

Remember

Remember that Section 48 applies to applicants inside Australia and who do not hold a substantive visa. 

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Nilesh Nandan is Australia's most sought after immigration lawyer for visa refusals and visa cancellations. Appeal your visa or get help to relodge your Australian visa application or citizenship application.

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