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What you need to know about the Section 48 Migration Act



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What is the Section 48 Migration Act?

 

Section 48 of the Migration Act forces limitations if a visa has been refused or cancelled while in Australia. Substantially, it prevents the applicant from applying for a different visa or repeatedly applying for a visa while in Australia. This process is known as the 'section 48' bar and can have severe consequences on the applicant's ability to settle in Australia legally. However, this bar will not apply to all visa applications. Therefore, it is essential to classify the situations that it will involve.

 

When Does Section 48 Bar Apply?

 

Section 48 of the Migration Act applies to the applicant if:

  • They are in Australia;
  • The substantive visa application has been refused or cancelled; and
  • They do not currently hold a substantive visa

If section 48 applies, the applicant will not be able to apply for another substantive visa as long as the applicant remains in Australia. If an applicant were to leave the country, they might be eligible to apply for another visa from outside Australia.

 

When Does Section 48 Bar Not Apply?

Often, when applying for a visa, an applicant may not have met the valid application criteria. In these cases, the government will not process the visa. Therefore, the applicant's visa was not considered or, consequently, refused, and the section 48 bar will not apply.

For instance, not paying the exact visa application charge will result in the visa application being invalid. This is different from it being refused. Subsequently, section 48 bar will not apply.

Section 48 does not apply if an applicant holds a substantive visa.

For instance, if the applicant is currently on a valid working visa and has a partner visa application refused, section 48 will not apply. Consequently, they will be able to apply for another substantive visa as long as the present working visa is valid.

 

 

Non-Substantive Visas Substantive Versus

 

A substantive visa is any visa except for a:

  • Bridging visa;
  • Criminal justice visa or;
  • Enforcement visa

Enforcement visas and Criminal justice visas are two types of visas granted to individuals when they are suspected of a crime. The visa will be issued due to the need to be detained or need a visa to await trial in Australia.

Bridging visas are ordinary visas. Bridging visas allow someone who has applied for a substantive visa to remain in Australia while the government processes their application. There are six types of bridging visas, each with specific conditions. Some bridging visas, the applicant may work or study, while on others these kinds of activities may be prevented.

A substantive visa is any 'regular' visa. These include: 

  • Partner visas; and
  • Working visas.
  • Visitor visas;
  • Student visas;

 

 

Exceptions for the Section 48 Bar

 

If the government refuses or cancels the visa, the applicant will be able to apply for another visa. The visas that are exceptions include:

  • Subclass 444 visas for New Zealand citizens;
  • Child visas (residency); and
  • Border visas (temporary).
  • Medical treatment visas;
  • Resolution of Status visas (temporary and permanent);
  • Territorial asylum visas (residence);
  • Protection visas;
  • Partner visas;
  • Bridging visas;

If the applicant has already had a visa application refused, it is imperative to get the next one correct. Please be conscious that if a second visa application is denied, then the applicant may not be able to apply again.

 

 

Bridging Visa B and Getting Around the Section 48 Bar?

 

A Bridging Visa B allows the applicant to exit and re-enter Australia while processing a substantive visa.

Unfortunately, applicants can not avoid section 48 by applying for a Bridging Visa B, leaving the country and processing a new visa application when they re-enter Australia. Australian law states that if an applicant holds a bridging visa, the government considers them to be continuously residing in Australia regardless of any international travel.

Therefore, if an applicant is on a Bridging Visa B and the government has refused the substantive visa application, they will not be able to avoid the section 48 bar by leaving and re-entering Australia and processing a new substantive visa application upon the return.

 

Have you Been Barred? Are You Able to Appeal the Decision?

 

If the government has cancelled or refused the visa and section 48 applies, an applicant can appeal the decision in the Administrative Appeals Tribunal (AAT). The visa is refused the government, the applicant will receive notice from the Department of Home Affairs that sets out an applicant’s rights for an appeal.

If the applicant is eligible to attend the AAT, the tribunal can reassess the whole application. They are then able to decide to either agree with, differ, or push the Department's decision and make a new resolution. The tribunal can also re-submit the decision to the Department of Home Affairs (DOHA) to review the matter with particular directions.

 

Important factors:

If the government has refused or cancelled the visa under section 48 bar, and the applicant does not currently hold a substantive visa, it will not be straightforward to apply for a different visa. If section 48 bar applies, there are only a small number of visa options open.

Moreover, if the applicant is on a Bridging Visa B, which allows them to leave Australia, they cannot apply for another visa while outside Australia to try to overcome the bar. If section 48 bar applies to the applicant and is restricted from applying for a different visa, there may still be options for review and appeal.

 

How can No Borders Migration help you?

 

Have received a section 48 bar and want to appeal? Contact No Borders Migration today for a free, no-obligation assessment with our legal team.

Author: No Borders Webmaster             Readers: 823