Suppose your visa has been refused or cancelled. In that case, section 48 of the Migration Act prohibits you from applying for another visa onshore, unless you are applying for a permitted type of visa. This prohibition is known as '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 that it will apply to. This article will explain the kinds of visas that section 48 bar applies to. Further, it highlights what to do if you cannot apply for another visa due to section 48.
When Does 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. However, if you were to leave the country, you may apply for another visa from outside Australia, subject to being eligible for that visa type.
When Does Section 48 Bar Not Apply?
A visa application that has been rejected because it is deemed invalid is not a refusal. This is the case when you apply for a visa and did not meet the valid application criteria. In these circumstances, the Department of Home Affairs (the Department) will not process your visa. Your visa application is simply not considered. The section 48 bar will not apply in these circumstances.
For example, if you did not pay the correct visa application charge, your visa application is deemed invalid. This is different from refusal. Subsequently, the section 48 bar will not apply.
Section 48 will not be activated if you hold and continue to hold a substantive visa, despite a refusal of another visa.
For example, suppose Sarah holds a working holding visa that expires in 6 months. She applies for a student visa, and it is subsequently refused. Sarah's working holiday visa does not expire for another three months. Sarah can apply for another visa while in Australia because she still holds a substantive visa. The section 48 bar will activate once she ceases to hold a substantive visa while she remains in Australia (e.g. holding a bridging visa).
It is incredibly important in the event of a refusal to manage your visa pathway and options carefully. Navigating the events that can cause a section 48 after a visa refusal, and while holding a valid visa, can be very complex.
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 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. Generally, they allow someone who has applied for a substantive visa onshore to remain in Australia while the government processes their application. There are six bridging visas, each with different conditions. For example, you may work or study on some bridging visas, while on others, this may not be allowed.
A substantive visa is any 'regular' visa. These include:
Visa Exceptions to Section 48 Bar
If the Department refuses or cancels your visa, there are still some visas you will be able to apply for. The visas that are exceptions to section 48 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).
Additional Visa Subclasses Added
From13 November 2021, the Government will add the following visa subclasses to the list of visas you can apply for even if you are subject to 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 that are section 48 barred. At this stage, the state and territory government have not amended their nomination criteria to reflect the above amendments.
Suppose section 48 bar applies to you, and you are considering a subclass 190 or 491 visa. In that case, you will need to check with the relevant State or Territory government to see what additional criteria you may need to meet.
Regardless of which visa you apply for (after a visa refusal), it is important to get the next one right. Be aware that if a second visa application is refused, you may not be able to apply again.
I'm On a Bridging Visa B. 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. You can then return and await an AAT appeal of the refused visa application.
You will need to consider other issues, such as COVID-19 travel restrictions to Australia that generally do not allow temporary visa holders to enter Australia.
I Have Been Barred. Can I Appeal the Decision?
If the Department 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 Department refuses or cancels your visa, you will receive a notice that sets out your rights for an appeal.
If you are eligible to attend the AAT, you can provide additional supporting information or documents, and 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 Department has refused or cancelled your visa and you do not hold another substantive visa, it will be difficult to apply for another visa due to section 48. If section 48 bar applies, there are only a limited number of visa options open to you, some of which require State or Territory nomination. Some states will not nominate an applicant subject to a section 48 bar. Furthermore, due to COVID-19 travel restrictions, the option to leave Australia on a Bridging Visa B as a temporary visa holder means that you will not be able to re-enter Australia. Until the travel restrictions end for temporary visa holders, this is not a recommended solution.
Suppose the section 48 bar applies to you and you cannot apply for another visa (in Australia). In that case, there may still be options for appeal and review at the Administrative Appeals Tribunal.