Section 48 of the Migration Act imposes limitations if your visa has been refused or cancelled while in Australia. Essentially, it prevents you from applying for another visa or repeatedly applying for a visa while in Australia. This process or outcome is known as the ‘section 48’ bar and can have serious ramifications on your ability to remain in Australia legally. However, this bar will not apply to all visa applications. Therefore, it is important to identify the situations that it will apply. This article will explain the kinds of visas that the section 48 bar applies to. Further, it highlights what to do if you are not able to apply for another visa under section 48.
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 as long as you remain in Australia. If you were to leave the country, you might be eligible to apply for another visa from outside Australia.
When Does the Section 48 Bar Not Apply?
Sometimes, when you apply for a visa, you may not have met the valid application criteria. In these circumstances, the government won’t process your visa. Therefore, your visa was not considered or, subsequently, refused, and the section 48 bar will not apply.
Section 48 does not apply if you hold a substantive visa.
Substantive Versus Non-Substantive Visas
A substantive visa is any visa except for a:
- criminal justice visa;
- enforcement visa; or
- bridging visa.
Criminal justice visas and enforcement visas are two kinds of visas granted to individuals when they are suspected of a crime. The visa will be granted either because they need to be detained or need a visa to await trial in Australia.
Bridging visas are common visas. They allow someone who has applied for a substantive visa to remain in Australia while the government processes their application. There are six kinds of bridging visas, each with different conditions. On some bridging visas, you may work or study, while on others these kinds of activities may be prevented.
A substantive visa is any ‘regular’ visa. These include:
Exceptions to Section 48 Bar
If the government refuses or cancels your visa, there are still other visas that you will be able to apply for. The visas that are exceptions to the bar include:
- partner visas;
- 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).
If you have already had a visa application refused, it is important to get the next one right. Be aware that if a second visa application is refused, then you may not be able to apply again.
I’m On a Bridging Visa B. Can I Get Around the Section 48 Bar?
A Bridging Visa B allows you to exit and re-enter Australia while a substantive visa is still being processed.
Some people think that they can get around section 48 by applying for a Bridging Visa B, leaving the country and making a new visa application when they re-enter Australia. Unfortunately, Australian law states that if you hold a bridging visa, the government considers you to be continuously residing in Australia despite any international travel.
Therefore, if you are on a Bridging Visa B and the government has refused your substantive visa application, you will not be able to get around the section 48 bar by leaving and re-entering Australia and making a new substantive visa application when you return.
I Have Been Barred. Can I Appeal the Decision?
If the government has refused or cancelled your visa and section 48 applies, you may be able to appeal the decision in the Administrative Appeals Tribunal (AAT). When the government refuses or cancels your visa, you will receive a notice from the Department of Home Affairs that sets out your rights for an appeal.
If you are eligible to attend the AAT, the tribunal can reassess the entire visa application. They can then decide to either 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 of Home Affairs to reconsider the matter with specific directions.
If the government has refused or cancelled your visa under the section 48 bar and you do not currently hold a substantive visa, it will be difficult to apply for another visa. If the section 48 bar applies, there are only a limited number of visa options open to you.
Furthermore, if you are on a Bridging Visa B which allows you to leave Australia, you cannot apply for another visa while outside Australia to try to overcome the bar. If the section 48 bar applies to you and you are prevented from applying for another visa, there may still be options for appeal and review. If you have received a section 48 bar and wish to appeal it, contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.
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