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Employer Nomination Scheme Visa (Subclass 186) – Section 48 Restriction
I am seeking information about the possibility of waiving the S48 Bar related to Australian migration.
I have received an employment sponsorship offer, yet I am currently unable to submit a new visa application due to a previous visa denial. My situation is still under review with the Administrative Appeals Tribunal (AAT) as I have formally appealed the decision.
Is it possible for the Employer Nomination Scheme Visa (subclass 186) Direct Entry stream to bypass Section 48 restrictions?
Any advice or insights on this issue would be incredibly helpful! 😊
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1 Reply
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G’day Nick and welcome to our forums 🙂
Unfortunately, the Employer Nomination Scheme (ENS) Subclass 186 visa (Direct Entry stream) cannot bypass the Section 48 bar if you are in Australia and have had a visa refused (excluding bridging visas, tourist visas, or certain other limited cases).
Section 48 of the Migration Act 1958 restricts onshore applicants from applying for most visas if they have had a refusal and do not hold a substantive visa.
There are two possible solutions:
1. Wait for the AAT decision – If your appeal is successful, you may regain eligibility to apply for the 186 visa from within Australia.
2. Leave Australia and apply offshore – Section 48 only applies to onshore applications. You may need to travel outside Australia (if feasible) and lodge your ENS 186 application from overseas.
If your occupation is covered under a Designated Area Migration Agreement (DAMA), or if you are eligible for another visa not subject to Section 48, you might have alternative options.
This isn’t a straight forward case so consulting a registered migration agent or lawyer would be advisable. We have a registered agent we can recommend if you need one.
I hope this helps, and best of luck with your appeal! Let me know if you need further clarification.
All the best
Mark
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