491/494/190 visas: Bar from further application lifts from 13 November 2021; Hong Kong pathway to PR from 5 March 2022

/

Section 48 of the Migration Act 1958 (Cth) is one of the most notorious sections in migration legislation. It has affected many non-citizens over the years but has taken on new meaning due to COVID-19 and Australia’s inbound travel restrictions. For the first time in many years, skilled visas have been added to a very short list of allowable applications those affected by this section can make while in Australia.

Section 48 is important to the integrity of Australia’s visa system as it prevents serial, non-genuine visa applications lodged to maintain a de facto residence in Australia without consequence. Section 48 does this by barring any further valid visa applications, unless it is one listed in regulation 2.12 of the Migration Regulations 1994 (Cth), if the visa applicant:

  • Is in the migration zone (effectively in Australia),

  • Does not hold a substantive visa (a visa other than a bridging visa, criminal justice visa, or an enforcement visa), and

  • Since last entering Australia was refused a visa other than a bridging visa or a visa under character grounds, or had a visa cancelled through certain provisions.

This section also applies to those who had an application made on their behalf, such as children or those suffering from a mental impairment. Protection visa applications receive similar treatment in section 48A. Those who have had their visa refused or cancelled on character grounds are barred from making any application other than a Bridging visa R under regulation 2.12AA.

A loophole, since closed in 2009 was leaving and re-entering Australia on a Bridging visa B. Those that have done this since are taken to have been continuously in Australia despite that travel. This does not stop lodging a visa application when outside Australia and returning on a Bridging visa B to await processing, though.

Regulation 2.12 lists very few visas that may be a viable option for a further application in Australia. Some have their own traps. For example, a Subclass 820/801 – Partner visa where section 48 applies requires compelling reasons if not lodged within 28 days of when the applicant’s last substantive visa expired and must provide additional documents with its own strict requirements, among other things.

A great explainer of this section is the Department of Home Affairs’ own information sheet.

Section 48 is a death knell during COVID-19, as leaving Australia to lodge a visa application carries with it the substantial chance of not being able to return as travel exemptions to enter Australia are hard to come by for temporary visa holders.

In recognition of these travel limitations, a new instrument registered over the weekend will add three skilled visas to regulation 2.12:

  • Subclass 190 – Skilled Nominated (Permanent) visa;

  • Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa; and

  • Subclass 491 – Skilled Work Regional (Provisional) visa.

For those wondering why other skilled visas, such as the subclass 482 - Temporary Skill Shortage visa or the subclass 186 - Employer Nomination Scheme visa was not added, this boils down to control. Except for 494 visas, the 190 and 491 visa requires an invitation to lodge. A 494 visa has its own control mechanism, which is the need for a positive skill assessment in most cases to validly lodge an application. A positive skill assessment goes some way in showing the application is genuine.

It is unknown why the subclass 189 - Skilled – Independent visa was omitted, however, it may be because 190 visas and most 491 visas require the input and consideration of the state or territory that nominates these applicants.

An important reminder is that applicants must hold either a substantive visa or a Bridging visa A, B, or C at the time of applying.

This is the first time, in a very long time, any skilled visa has been listed. There were skilled visas inserted 16 years ago but were obviously later removed as these visas no longer exist. Back then an invitation to apply for one of those visas was necessary.

Hong Kong permanent visas commencing 5 March 2022

The promised regulations that will offer Hong Kong nationals a pathway to a permanent visa were registered late last week and will commence from 5 March 2022.

Firstly, holders of a British National (Overseas) passport, a document not recognised by the Hong Kong Special Administrative Region (SAR) Government from 31 January 2021, has been added to the definition in the Regulations.

These passport holders will be provided the same benefit as Hong Kong passport holders in that if they held either a subclass 457 – Temporary Work (Skilled) visa, a subclass 485 – Temporary Graduate visa, or a subclass 482 – Temporary Skill Shortage visa on 9 July 2020, their visas will be extended until 8 July 2025. If they are granted one of these visas on or after 9 July 2020, their duration will be for five years. This places them on the same footing as Hong Kong passport holders.

For both British National (Overseas) and Hong Kong passport holders, there will be additional streams added to the subclass 191 – Permanent Residence (Skilled Regional) visa, and subclass 189 - Skilled – Independent visa.

The Hong Kong stream for a 189 visa requires the primary visa applicant to have held either a 457, 482 or 485 visa for at least four years and granted on the basis of the “Hong Kong” provisions by way of extension or a further 5-year grant, as explained above. Aside from this and general public interest criteria, including access to a health waiver, they only need to have complied substantially with their qualifying visa or visas and any subsequently held bridging visa and must have been usually resident in Australia for a continuous period of at least four years immediately before the date of application.

The 191 visa is similar but reduces the length of time to have held either their 457, 482, or 485 visa to at least three years, however, the applicant must have lived, worked or studied in a part of Australia that was a designated regional area unless exempt by the Minister. They must have been usually resident in Australia for a continuous period of at least three years immediately before the date of application.

Importantly, secondary applicants for these permanent visas do not need to be a member of the family unit of the primary visa holder if they were granted the preceding qualifying visa (457, 482 or 485 visa) as a secondary applicant. An exemption has also been added for a 191 visa under the Regional Provisional visas stream for holders of either a 491 or 494 visa.

This provision affects children as aside from humanitarian visas, the general rule is that a child who has turned 23 (and who is not dependent because of physical or mental incapacity) is no longer a member of the family unit for the purpose of a visa applications. Without this exemption adult children would have to find their own way to migrate or depart Australia.

Lastly, as this pathway will commence on 5 March 2022, the regulations for 191 visas have been brought forward to this date from the originally planned 16 November 2022.