What is the Section 48 bar?
Section 48 of the Migration Act prevents applications being made for a substantive visa if an applicant’s visa has been refused or cancelled, while in Australia.
Section 48 of the Migration Act will apply to you if:
you do not currently hold a substantive visa while in Australia; and
your substantive application has been refused or cancelled.
If section 48 applies, you will not be able to apply for another substantive visa while in Australia.
The section 48 bar will not apply:
If a visa application has been deemed invalid.
This means, if you applied for a visa and did not meet the valid application criteria (eg: the correct visa application was not paid), then the application is considered as invalid rather than refused. The Department will not process your visa in this case as you have been considered not to have made an application.
If you hold and continue to hold a substantive visa, at the time of refusal of another visa.
For example, Mr. Smith holds a working holiday visa that expires in 6 months. He applies for a student visa and receives a refusal letter 2 months later. However, Smith’s working holiday visa does not expire for another 4 months. Mr. Smith is not section 48 barred because he already holds a substantive visa. The section 48 bar would only effect if he did not hold a substantive visa when he was refused the student visa.
If you are section 48 barred, there are still some visas you can apply for while in Australia. These visas include but not limited to:
partner visas (subclass 820/801);
medical treatment visas;
child visas (residence)
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.
You can provide additional supporting documents if you are eligible to attend the AAT 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 remit the decision to the Department to reconsider the matter.
If the AAT affirms your refusal, you may be able to appeal the decision to the Federal Circuit and Family Court of Australia.
What are my options if I face a section 48 bar?
You can apply for one of the visas that are exempted from the section 48 bar.
You can appeal the refusal or cancellation of your visa at the AAT
You can go offshore and apply for a new visa.
Still have questions? Get in touch with experienced Immigration Lawyers Melbourne.
Let us guide you through your immigration journey