How Can Visa Applicants Avoid the Section 48 Bar?

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Table of Contents

• When Does the Section 48 Bar Apply?
• When Does the Section 48 Bar Not Apply?
• Substantive vs Non-Substantive Visas
• Visa Exemptions to the Section 48 Bar
• State or Territory Nomination
• Can I Get Around the Section 48 Bar?
• Can I Appeal a Decision?
• Key Terms to Note
• Key Takeaways
• Frequently Asked Questions

Suppose your visa has been refused or cancelled. In that case, section 48 of the Migration Act 1958 (‘Migration Act‘) prohibits you from applying for another visa while you are onshore. This prohibition is known as the section 48 bar and can seriously affect your ability to remain in Australia legally. However, this bar does not apply to all visa applications. Therefore, it is important to identify the situations where it will apply. This article will explain where the section 48 bar does and does not apply.  It will also highlight what to do if you cannot apply for another visa onshore due to the section 48 bar.

When Does the Section 48 Bar Apply?

Section 48 of the Migration Act will apply to you if:

• you are in Australia;
• you do not currently hold a substantive visa; and
• your substantive visa application has been refused or cancelled.

If section 48 applies, you will not be able to apply for another substantive visa while in Australia. However, if you leave the country, you may apply for another visa from outside Australia, provided you:

• are eligible;
• meet the criteria; and 
• are not subject to an exclusion period (such as PIC 4013 or 4014).

When Does the Section 48 Bar Not Apply?

The section 48 bar will not apply where a visa application has been deemed invalid. This does not count as a refusal. This can happen if you apply for a visa and have not met the valid application criteria.

The section 48 bar will not apply in these circumstances. For example, suppose you did not pay the correct visa application fee. Accordingly, your visa application is invalid rather than refused.

Additionally, section 48 will not apply if you hold and continue to hold a substantive visa despite being refused another visa. 

For example, Sarah holds a working holiday visa that expires in 6 months. She applies for a student visa and receives a refusal letter 2 months later. However, Sarah’s working holiday visa does not expire for another 4 months. Accordingly, section 48 will not bar Sarah because she already holds a substantive visa. Thus, she can apply for another visa while in Australia because she still holds a substantive visa. The section 48 bar would only be activated if she did not hold a substantive visa when she was refused the student visa.

If you are dealing with a visa refusal, it is incredibly important to manage your visa pathway and options carefully. Navigating the events that can cause a section 48 after a visa refusal while holding a valid visa can be very complex. We recommend you obtain legal advice regarding this. 

Substantive vs Non-Substantive Visas

A substantive visa is any visa except for a:

• criminal justice visa;
• enforcement visa; or
• bridging visa.

Bridging visas are common visas. Generally, they allow someone who applies for a substantive visa onshore to remain in Australia while the government processes their subsequent visa application. There are six bridging visas, each with different conditions. For example, you may work or study on some bridging visas, while other visas may not allow you to do so. 

A substantive visa is any ‘regular’ visa. These include: 

• tourist visas;
• student visas;
• partner visas; and
• working visas.

Visa Exemptions to the Section 48 Bar

If the Department refuses or cancels your visa, there are still some visas you can apply for while onshore. These visas include: 

• partner visas (subclass 820/801);
• bridging visas;
• medical treatment visas;
• resolution of status visas (temporary and permanent);
• territorial asylum visas (residence);
• protection visas;
• subclass 444 visas for New Zealand citizens;
• child visas (residence); and
• border visas (temporary). 

On 13 November 2021, the Government added the following visas to the list of exemptions. This means you can currently apply for these if you have a section 48 bar:

• subclass 190 skilled State or Territory nominated visas (permanent);
• subclass 491 skilled work regional visa (temporary); and
• subclass 494 employer-sponsored regional visas (temporary).

State or Territory Nomination

Subclass 190 and 491 visas require state or territory nomination. This means you need to consider the specific nomination requirements that each state or territory may have concerning individuals subject to section 48 bar. Some states will not nominate applicants who have a section 48 bar.   

If the section 48 bar applies to you and you are considering a subclass 190 or 491 visa, you must check with the relevant State or Territory government to see what additional criteria you may need to meet (if you can apply).

Regardless of which visa you apply for after a visa refusal, it is important to get the next one right. Be aware that a second visa application refusal may prevent you from reapplying.

Can I Get Around the Section 48 Bar?

A potential solution to address a section 48 bar is to: 

• apply for a Bridging Visa B (BVB);
• leave the country; and 
• apply for another visa offshore from Australia. 

Can I Appeal a Decision?

If the Department refuses or cancels your visa and section 48 applies, you may be able to appeal the decision in the Administrative Appeals Tribunal (AAT). When the Department refuses or cancels your visa, you will receive a notice that sets out your rights for an appeal. However, there is typically a very small timeframe to pursue this option.

You can provide additional supporting information or documents if you are eligible to attend the AAT. Accordingly, the tribunal can reassess the entire visa application. The AAT can then decide to agree with, vary, or set aside the Department’s decision and make a new decision. The tribunal can also re-submit the decision to the Department to reconsider the matter with specific directions. If the AAT affirms your refusal, you may be able to appeal the decision to the Federal Circuit and Family Court of Australia (if there has been a legal error in the decision-making process). Alternatively, you may request Ministerial Intervention as a last resort.   

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Key Terms to Note

Some key terms you should be aware of include:

• Public Interest Criteria (PIC): All visa applications, based on their sub-type, need to satisfy certain criteria or standards set in place to safeguard the Australian community. These are called Public Interest Criteria or PIC. 
• PIC 4013: This criterion applies when a visa is cancelled based on certain circumstances. The applicant may be subject to an exclusionary period (from applying for another visa)
• PIC 4014: This criterion is applies based on the applicant’s immigration status at the time of leaving Australia.
• Ministerial Intervention: On application, following the guidelines, the Minister for Immigration, Citizenship and Multicultural Affairs can intervene to decide on your visa application.

Key Takeaways

If the Department refuses or cancels your visa and you do not hold another substantive visa, it will be difficult to apply for another visa due to section 48. If the section 48 bar applies, you will have several options, depending on your circumstances.  Another option is to depart Australia and apply for a new substantive visa whilst offshore, then re-enter the country on that new visa. Otherwise, you may try to appeal the refusal at the AAT, provided there are good prospects of success. 

If you need help preventing or addressing a section 48 bar, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1800 532 904 or visit our membership page.

Frequently Asked Questions