Foreign nationals who do not hold a substantive visa (i.e. they hold a bridging visa) and have had visa applications refused while they are in Australia, may be “barred” from making further substantial visa applications in Australia. This is referred to as a “s 48 bar” or “section 48 bar” which relates to the relevant provision in the Migration Act 1958 (Cth) (see here) (the Act).
This could occur for example if a person holds a valid visa (1st visa), and prior to the expiry of that visa, applies for a further visa application onshore (2nd visa). They would receive a bridging visa which permits them to remain in Australia during the processing of the 2nd visa. Once the 1st visa expires, the person would transition onto their bridging visa. If the 2nd visa application was subsequently refused, they may be caught by this s 48 bar provision.
This is an important consideration not only for people who are in such a position, but also worth being aware of for individuals who are thinking about applying for a further visa onshore close to the expiry of their current substantive visa.
This is outlined in further detail below.
What is the s 48 bar?
Section 48 is a statutory “bar” which prevents non-citizens in Australia who do not hold a substantive visa, and since last entering Australia were refused a visa (or held a visa that was cancelled, except under the character provisions), from making a valid visa application while still in Australia.
This bar applies to visa applications made on the person’s behalf irrespective of whether they knew about or understood the nature of the application due to any mental impairments, or being a minor. For example, if a parent lodges a visa application for them and their child which is refused, the child is also impacted by the s 48 bar.
This bar also applies if the person travels overseas after the refusal (while holding a Bridging Visa B (BVB) for example), re-enters Australia on that bridging visa, and then tries to apply for a substantive visa onshore – as they would be taken to have been continuously in the migration zone despite that travel.
Does this affect visa applications I’ve already lodged?
No – the s 48 bar only prevents new visa applications from being validly made onshore following the visa refusal.
If you have already validly made the visa application before you were subject to the bar (i.e. before the relevant visa was refused), it can still continue processing.
What are the exemptions?
There are very limited exemptions to the s 48 bar which are outlined in the legislation (see here). If subject to a s 48 bar, you can only validly make visa applications for the following:
- Partner visas;
- Protection visas;
- Medical Treatment visas;
- Territorial Asylum visas;
- Border visas;
- Special category visas;
- Bridging Visas (A-F and R);
- Resolution of Status visas;
- Child visas;
- Retirement (and Investor Retirement) visas;
- Skilled Nominated Subclass 190 visas;
- Skilled Work Regional Subclass 491 visas; and
- Skilled Employer Sponsored Regional (SESR) Subclass 494 visas.
There may be additional criteria that you need to meet – such as Schedule 3 criteria for a Partner visa for example – so it may be appropriate to obtain legal advice before making such an application.
Is there any way around the exemptions?
Unfortunately, no. As the above “exemptions” are in the legislation, there are no further powers (or ability) for people who do not meet the above to be able to apply for a further visa onshore. There are no “waivers” of this bar.
Does this bar apply forever?
This bar applies for as long as you remain in Australia on a bridging visa following the visa refusal.
If you:
- were subsequently granted a substantive visa – then this bar would not apply to you for the duration of that substantive visa;
- travelled outside Australia – then the bar would not apply to you (as it only applies while you were in Australia), and you would be able to make a further valid visa application while outside Australia.
There are some nuances around point 1 above, so you may wish to seek appropriate legal advice for your circumstances.
Conclusion
Hannan Tew Lawyers have assisted a significant number of individuals who have been affected by s48 bar and how to navigate such circumstances. We have also given strategic advice to ensure that individuals are not in such situations, and factor this consideration in for each client.
With significant experience with s48 bars, we have the knowledge and experience to understand your circumstances and provide appropriately tailored advice.
Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you have further comments or queries or would like some guidance.
