New Zealand solution is back to overcome the s48 bar

The New Zealand solution is back. NZ has an open door policy on people living in Australia going to New Zealand provided those entering are double vaccinated! Australia has lifted exemptions for those leaving and entering from NZ provided they are double vaccinated.

What this means is that those who have had a visa refusal and are awaiting either merit review or judicial review and holding a bridging visa A, can apply for a bridging visa B and go to NZ and return. While in NZ, the client’s migration advisor (whether in Australia or elsewhere) would apply for a visa of a type which can be granted in Australia. On return the section 48 bar does NOT apply to the visa application applied for while the applicant was outside Australia!  One obvious visa is the Subclass 482 Temporary Skill Shortage visa.

Here is what the NZ government website states about entry to NZ:
“You do not need to be an Australian citizen or permanent resident to travel to New Zealand from Australia quarantine-free if you meet the above criteria.” – see here.

It further states:

“To be eligible, travellers must:

  • present a negative PCR test taken within 3 days prior to departure

  • provide evidence of full vaccination, unless they are medically exempt or under 12 years of age.

  • provide a declaration of having only been in either Australia or New Zealand for 14 days prior to the day of travel.”

Click this link to find the visa waiver countries for NZ.

This includes the usual list of developed countries including Malaysia, South Korea, Hong Kong (SAR or BNO passport holders) and Taiwan but excludes, China, India & most ASEAN countries (the latter passport holders would need to apply for a NZ visa).


Regarding Australia, the Australian position is as follows:

“If you are travelling directly to New Zealand and you have only been in either Australia or New Zealand for the 14 calendar days immediately before the date of your departure, you do not need to apply for an exemption to Australia’s travel restrictions*. You are automatically exempt.” See here.


Many do not appreciate that the section 48 bar on applying for other visas does not apply to a grant of a visa to a person present in Australia, provided that the visa applicant was outside Australia at the time of visa application.

Here is what s48 says:

(1)  A non-citizen in the migration zone who:
(a)  does not hold a substantive visa; and
(b)  after last  entering Australia:
(i)  was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii)  … may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

Some advisers stumble over s48(3) which says:
(3)  For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel. 

Subsection 48(3) only has work to do in relation to subparagraph 48(1)(b) ie “after last  entering Australia”.  Prior to the introduction of s48(3), the technique involved simply leaving Australia on a BVB and on return one could claim that “after last  entering Australia” one did not have a visa application refused.

 Subsection 48(3) closed that loophole. However nothing prevents a person leaving Australia on a BVB and then applying for a visa while offshore, then returning to Australia, with the visa grant occurring after the return to Australia. This is because s48 only prevents an application for a visa while the applicant is present in Australia, it has not work to do for an visa application lodged while the person is outside Australia 

All the above requires careful planning, but assuming the person is eligible for the visa, it is a foolproof strategy. 

The obvious visa is the subclass 482 Temporary Skill Shortage visa, but would also apply to the subclass 407 training visa, the Subclass 188 - Business Innovation and Investment (Provisional) and even the subclass 500 student visa.

Upon return the applicant can later be granted a BVC (or possibly a BVE), if the basis for holding the BVB comes to an end.

Of course the NZ solution is not available to overcome the s48 bar who have had their visas cancelled because they do not hold a bridging visa A (those who have had their visas cancelled can apply for a BVE if they have promptly lodged an application for review to the AAT), anyone who had a visa cancelled on character grounds is restricted by s500E. 

Of course, Immigration has loosened the restrictions on which visas can be applied for, despite the existence of the s48 bar [see subreg 2.12(s), (t) & (u)]. These visas are:

  • Subclass 190 (Skilled - Nominated) visa

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

  • Subclass 494 (Skilled Employer Sponsored Regional (Provisional))


Again these visas are not available onshore to persons who had their visas cancelled because, upon visa cancellation the person becomes an unlawful non-citizen and can obtain a BVE if he or she applies promptly for review to the Administrative Appeals Tribunal.

However in the case of BVE holders, it is, of course, possible to nominate a person for a visa like the subclass 494 visa and even the 186 ENS visa and then once the nomination is approved, the BVE visa holder can go offshore  and apply offshore, if all the evidentiary criteria are in place, like skill assessment etc one could expect a relatively quick visa grant. There is no schedule 3 and PIC 4013, 4014 do not apply.

The subclass 482 would not work because the PIC 4013, 4014 sets up the prima facie 3 year ban on returning (which, of course can be waived but it is an extra hurdle).

Lorenzo Boccabella