by Zoe Wu
Section 48 bar of the Migration Act 1958 establishes restrictions for individuals whose visas have been refused or canceled while in Australia (other than a visa refused under the s.501-character provisions).
If you are subject to Section 48, your options for applying for a new visa will be limited. The intention behind Section 48 is to prevent individuals from repeatedly lodging visa applications that are unlikely to be approved.
Does Section 48 Apply to You?
Section 48 of the Migration Act 1958 applies if:
- You are currently in Australia.
- You do not hold a substantive visa (i.e. a visa other than a bridging visa).
- Your application for a substantive visa has been refused or canceled (other than a character refusal or cancellation).
Note: If you still hold a substantive visa and have had another visa application refused, you need not be concerned about the application of s.48.
What is a Substantive Visa?
A substantive visa refers to any visa except for:
- Criminal justice visas
- Enforcement visas
- Bridging visas
Exceptions to Section 48 Bars
While being subject to Section 48 may limit your visa options, there are still some onshore visa options available, these include:
- Partner Visa 820/801
- Protection Visa
- Medical Treatment Visa
- Special Category Visa (subclass 444 for NZ Citizens)
- All Bridging Visas
- Child (Residence) Visa
- State sponsored permanent residence visa – Subclass 190
- State sponsored regional temporary visa – Subclass 491
- Regional employer sponsored temporary visa – Subclass 494
It is important to note that Section 48 does not prevent somebody from leaving Australia and applying for another visa offshore.
Can I Circumvent Section 48 with a Bridging Visa B?
A Bridging Visa B allows individuals to exit and re-enter Australia while their substantive visa is being processed. Some individuals have queried whether they can bypass Section 48 by leaving Australia with a Bridging Visa B and submitting a new visa application upon re-entry. However, Australian laws stipulate that if you hold a Bridging Visa B, the Department of Home Affairs may consider you to be continuously residing in Australia regardless of international travel.
In summary, if your visa has been refused or canceled under Section 48 and you do not currently hold a substantive visa, applying for another visa may prove challenging. Nonetheless, avenues for appeal and review may still be available.
Can I Appeal a Section 48 Decision?
You may have the right to lodge an appeal with the Administrative Appeals Tribunal (AAT) if your visa has been canceled or refused. The Migration Review Division of the AAT can hear most appeals related to migration matters. However, it is crucial to be aware that there is often a limited timeframe (sometimes only 7 days) within which to lodge your appeal with the Administrative Appeals Tribunal. Failure to submit your application within the permitted timeframe may result in the loss of your appeal rights.
If you are barred by Section 48 bar of the Migration Act 1958 and wish to appeal it or investigate alternative visa options, please contact us at Longton Migration on (02) 8355 9999.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
