What is the ‘Section 48 Bar ’?
Section 48 of the Migration Act forces limitations if a visa has been refused or cancelled while in Australia.
Section 48 applies to non-citizens in Australia who hold a bridging visa, criminal justice visa, or enforcement visa and have had a visa refused or cancelled since last entering the country.
However, the legislation also provides for an exemption to this rule, and persons who are subject to section 48 may still be able to apply for a limited number of prescribed visas, including:
- Partner Visa SC 820/801
- Protection visa
- Child visa
- Medical Treatment visa
- Bridging visa
Migration Act | s48
Section 48 of the Migration Act 1958 (Cth) holds that certain applicants who have had a visa refused or cancelled in Australia cannot apply for a further visa from within the country.
The section 48 Bar is the nickname given to a specific law found in the Migration Act. This law says that if you have a visa application refused while in Australia, you are not (in most cases) allowed to apply for another visa until you have first left the country.
For people affected by the Bar, the most common way of dealing with it has been to generally follow these three steps:
- Return to your home country
- Apply for another visa
- Wait for the visa to be granted, and return to Australia
However, much of the world continues living under strict COVID rules. This situation has made the Bar, which was already somewhat frustrating to manage, practically impossible to overcome. Calls for this to be changed have now been acknowledged by the Australian government, who have introduced major changes to the Bar for certain visa subclasses.
Section 48 Waiver – 3 Visa Options
Beginning on 13 November 2021, the Bar will NOT apply to the following visa subclasses:
- Subclass 190 (Skilled Nominated)
- Subclass 491 (Skilled Work Regional)
- Subclass 494 (Skilled Employer Sponsored Regional)
This means that if you are currently in Australia and have had a visa application refused, you can apply for any of the three above visas while in the country.
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. Contact No Borders Law Group for best options available to you.
Note:
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.
FAQs
Can Section 48 Bar be waived?
The short answer is yes. However, the applicant can only waive Section 48 and apply for certain visas from within Australia if Section 48 Bar applies to you.
If you intend to apply to waive Section 48 in order to apply for the relevant visa, contact No Borders Law Group and our Migration Lawyers can help you obtain a waiver and process your next application. Waiving Section 48 is not easy and requires in-depth knowledge of both immigration policy and migration law.
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.
Note: This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.
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