What is a Section 48 Bar?
Section 48 of the Migration Act 1958 imposes limitations if the applicant’s substantive visa has been refused or cancelled while in Australia or the applicant does not currently hold a substantive visa. This provision (the s48 bar) prevents them from applying for most other Australian visas while in Australia and can have ramifications on their ability to remain in Australia legally.
Section 48| Migration Act 1958
Section 48 Non-citizen refused a visa or whose visa is cancelled may only apply for particular visas
(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q(regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
The s48 bar is only imposed when the applicant is in Australia. If the applicant is subject to the s48 bar, they can still apply for a limited number of substantive visas while onshore. These include:
- Child visas
- Partner visas
- Protection, Territorial Asylum or Border visas
- Medical treatment visas
- Bridging visas
- Resolution of Status visas
The s48 bar will not apply if the applicant applies for a visa, does not meet the valid visa application criteria for whatever reason and the visa application is subsequently not considered or invalid. For eg. An incorrect departmental fee has been paid.
Bridging Visa B
If the applicant is on a Bridging Visa B and the Department of Home Affairs (the Department) has refused the substantive visa application, the applicant will not be able to get around the section 48 bar by leaving and re-entering Australia and making a new substantive visa application when they intend to return. The Department considers the applicant to be continuously residing in Australia despite any international travel.
Review Rights
If the government has refused or cancelled the visa and section 48 applies, the applicant may be able to appeal the decision in the Administrative Appeals Tribunal.
The s48 bar does not prevent the applicant from departing Australia and applying for a subsequent visa.
Getting Assistance
If you need immigration advice and/or assistance, please ensure you speak to OMARA, or you can contact us with your query. At McKkrs, we provide CPD classes for RMAs and lawyers practicing migration law and would be happy to assist you where possible. Please contact us on (02) 4626 1002 or simply email us at admin@mckkrs.com.au.
