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What is the Section 48 bar?
Everything you need to know about the Section 48 bar
The section 48 bar is a provision within the Migration Act that prevents visa applicants who have either had a visa canceled or a visa refused from applying for most visas while onshore in certain circumstances. The bar comes into effect if, at the time of the cancellation or refusal, the applicant ceased to have a substantive visa, meaning they were either unlawful or on a bridging visa, and was within Australia.
This bar can pose a significant challenge to visa applicants who have had a visa canceled or refused while onshore and intend to apply for another visa. This article aims to explain the bar in more detail, as well as the way in which applicants in these situations can navigate the bar to secure their visa in Australia.
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Who does the Section 48 bar affect?
As mentioned above, the section 48 bar will affect applicants who would fall into the following situation:
- Is within Australia; and
- Does not hold a substantive visa (does not include bridging visas); and
- After last entering Australia was either refused a visa or had a visa canceled; and
- The refusal or cancellation was not under character grounds (sections 501, 501A or 501B)
While the bar is in effect, the visa applicants included in the visa that was canceled or refused will be unable to make a further visa application until they leave the country.
How does the Section 48 bar work?
The section 48 bar will apply automatically at the time of refusal or cancellation if the applicant ceases to hold a substantive visa, which does not include a bridging visa. Once applied, any further visa applications will not be possible to lodge, and any paper based applications will be deemed invalid.
The bar will be enforced unless the applicant is applying for a visa subclass that section 48 does not apply to, which we outline below.
As the bar only applies where the refusal or cancellation was made since the Applicant’s last entry to Australia, and applies to applications made while onshore, any further applications made from offshore or after returning to Australia on a further substantive visa will not be subject to the bar.
Can the Section 48 bar be waived or overcome?
There are a few scenarios where the s 48 bar will not apply. The first is if the applicant applied for one of the visas that have been designated as effectively exempt from the bar. These visa subclasses include:
- Onshore partner visas (820/801)
- Protection visas (866)
- Bridging visas
- Skilled Nominated visa (190)
- Skilled Work Regional 491 visas
- Skilled Employer Sponsored Regional 494 visas
As mentioned above, it is also possible to either leave Australia and apply for another substantive visa from offshore, or to go offshore, apply for a substantive visa such as a tourist visa, and then apply for a visa while onshore to receive a bridging visa.
In situations where the applicant has been refused an employer sponsored visa, often the nomination will still be valid, so it is possible to go offshore and lodge another visa application in relation to the same nomination, as long as it has not expired.
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What are the consequences of being under a Section 48 bar?
The main consequence of being subject to the bar is that you will be unable to lodge an application for most visa subclasses until you have left Australia. It may be necessary to then apply for a visa from offshore, or, to return to Australia on a valid visa and make a further visa application.
How to navigate the challenges of Section 48 bar?
It is important to seek expert advice after receiving notification of a visa refusal or cancellation, and to determine whether the bar would apply in your circumstances. This is especially important as you may have a limited amount of time to leave the country before you become unlawful, and relying on applying for a further visa while being barred from applying may result in a further 3 year ban from re-entering Australia under schedule 4 of the Regulations.
As lawyers, we cannot issue guarantees that your next visa will be granted. The decision rests with the Department of Home Affairs, not any one representative, lawyer or migration agent. However, our sound understanding of the law means that we are able to put the best case forward to seek a successful outcome. We can also give you advice to ensure that you navigate the difficult situation of being subject to the bar carefully to prevent any ongoing issues.
We strive to make ourselves as accessible as possible to you
- You can have a consultation with us from anywhere in Australia as our consultations are online
- We can assist you regardless of where you are in the visa process
- We assist with all stages of the process, including the sponsorship, nomination and visa applications
- We can work with both you and your sponsor to ensure consistency and quality throughout the whole application process
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For Section 48 of the Act, the following classes of visas are prescribed:
The following visas have been defined under section 48 of the act to not be subject to the bar. This means that, even where eligible applicants has been refused a visa or had a visa canceled and is barred from applying for most visas, they can still make a valid application for any of the following:
- Partner visa (Temporary) (Class UK);
- Partner visa (Residence) (Class BS);
- Protection visas;
- Medical Treatment (Visitor) (Class UB);
- Territorial Asylum (Residence) (Class BE);
- Border (Temporary) (Class TA);
- Special Category (Temporary) (Class TY);
- Bridging A (Class WA);
- Bridging B (Class WB);
- Bridging C (Class WC);
- Bridging D (Class WD);
- Bridging E (Class WE);
- Bridging F (Class WF);
- Bridging R (Class WR);
- Resolution of Status (Class CD);
- Child (Residence) (Class BT);
- Retirement (Temporary) (Class TQ);
- Investor Retirement (Class UY);
- Skilled—Nominated (Permanent) (Class SN);
- Skilled Work Regional (Provisional) (Class PS);
- Skilled Employer Sponsored Regional (Provisional) (Class PE).
Benefits of using an Australian Migration Lawyer
A section 48 bar can have profound consequences on a visa applicant's plans while in Australia. The bar compounds the already stressful situation of receiving a visa cancellation or visa refusal, and will require you to carefully assess your next steps.
At Australian Migration Lawyers, we provide expert advice and support to make the entire visa application process as seamless as possible. We have a high success rate with our applications, and have dealt with a wide array of complex occupations and situations. We can look into your circumstances to see if there are any relevant exemptions or options for you to remain in Australia, and can provide you with assistance in applying for a further visa to either remain in Australia or ensure that you can return as soon as possible.
- Our team of qualified Australian lawyers draw on their knowledge of legislation, case law, and policy, to give clear and accurate advice on all requirements and strategies relevant to your matter
- As lawyers, we have an obligation to ensure that your application meets all legislative requirements, which greatly improves your chance of success
- We assist in all stages of the process, including the preparation of all necessary applications all the way through to the grant of the visa, including working with you to action any additional requests from the Department of Home Affairs
Frequently asked questions
Read our most commonly asked questions about section 48:
What is a section 48 bar and does it apply to me?
A section 48 bar prevents individuals applying for particular substantive visas if their previous visa has been refused or canceled while they are in Australia. Section 48 will apply when someone is not on a substantive visa in Australia and has had a visa refused or canceled while in Australia.
What is the effect of section 48?
If the section 48 bar applies, it will not be possible to lodge visa applications online for visas that the bar applies to. If a paper application has been made, applicants should be aware that section 48 will render the application invalid.
Does section 48 apply to every visa type?
The section 48 bar does not apply to every Australia visa type and there are exceptions to when section 48 will apply. These exceptions include where applicants are applying for a partner visa, a protection visa or particular skilled visas. This means that these visas can be applied for onshore even if section 48 applies.
I have left Australia, does section 48 still apply?
The section 48 bar only applies when an applicant is applying for a visa onshore in Australia. This means if an applicant has left Australia, section 48 will no longer prevent them from making a valid visa application.
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About the content author
Perry Q Wood is National President of the Australian Institute of Administrative Law and one of Australia’s leading administrative and migration lawyers. To date, he has been involved in 1,000+ migration and refugee matters.
