Section 48 Bar Australia

What Is the Section 48 Bar?

Section 48 is designed to prevent certain non-citizens who are already in Australia from repeatedly applying for new visas onshore after a previous visa refusal or cancellation.

The restriction generally becomes relevant where the person:

• Is physically in Australia's migration zone;
• Does not hold a substantive visa; and
• After their last entry to Australia, had a relevant visa refused or had a visa cancelled under specified provisions of the Migration Act.

Where Section 48 applies, the person may only apply for a prescribed class of visa. (legislation.gov.au)

When Does Section 48 Apply?

The legislation generally requires the following circumstances.

1. You are in Australia

You must be in the migration zone.

2. You do not hold a substantive visa

Section 48 applies to a person who does not hold a substantive visa.

A substantive visa is generally a visa other than a bridging visa, criminal justice visa or enforcement visa.

3. You have had a relevant visa refusal or cancellation

After your most recent entry to Australia, you must have:

• Been refused a visa covered by Section 48; or
• Held a visa that was cancelled under one of the provisions specified in Section 48.

The legislation specifically excludes certain refusals, including refusals of bridging visas and refusals under sections 501, 501A and 501B, from the relevant refusal trigger in subsection 48(1)(b)(i). (legislation.gov.au)

Visa Refusals That Can Trigger Section 48

A previous visa refusal can potentially trigger Section 48 where the statutory requirements are met.

However, not every visa refusal automatically creates a Section 48 bar.

For example, the legislation specifically excludes certain refusals from the refusal trigger, including:

• Bridging visa refusals
• Refusals under section 501
• Refusals under section 501A
• Refusals under section 501B

The exact refusal decision and the circumstances surrounding the person's last entry into Australia must therefore be examined. (legislation.gov.au)

Visa Cancellations That Can Trigger Section 48

Section 48 can also apply where, after the person's last entry to Australia, a visa was cancelled under specified provisions.

These include cancellations under:

• Section 109 – incorrect information
• Section 116 – general cancellation power
• Section 133A – Minister's personal cancellation power relating to section 109
• Section 133C – Minister's personal cancellation power relating to section 116
• Section 134 – certain business visa matters
• Section 137J – certain student visa cancellations
• Section 137Q – certain regional sponsored employment visa cancellations

The exact circumstances of the cancellation need to be reviewed because the statutory consequences can depend on the cancellation provision used. (legislation.gov.au)

What Happens When Section 48 Applies?

If Section 48 applies, the person cannot simply lodge any onshore visa application they choose.

The legislation provides that the person may apply for:

a visa of a class prescribed for the purposes of Section 48

but not a visa of another class.

This means the applicant needs to identify whether the particular visa they want to apply for is available under the current Section 48 regulations. (legislation.gov.au)

Section 48 Does Not Mean You Can Never Apply for Another Visa

A Section 48 bar is not the same as a permanent Australian visa ban.

It is primarily a restriction on certain onshore visa applications while the person is in Australia and does not hold a substantive visa.

Depending on the person's circumstances, they may:

• Be able to apply for a prescribed visa while in Australia;
• Need to leave Australia and apply for a visa offshore;
• Be able to pursue a different visa pathway;
• Have review rights relating to a previous refusal or cancellation;
• Need to consider another immigration strategy.

The correct option depends on the person's current visa status, previous visa history and intended visa pathway.

Section 48 and Partner Visas

Partner visa applicants should take particular care when Section 48 is relevant.

The fact that a person is married to, or in a de facto relationship with, an Australian citizen or permanent resident does not by itself mean that an onshore partner visa application will be valid.

Whether a person affected by Section 48 can lodge a particular partner visa onshore depends on the visa being prescribed for the purposes of Section 48 and the person's individual circumstances.

Before lodging an onshore partner application, the applicant should confirm that the application can be validly made.

Section 48 and Skilled Visas

Section 48 can also affect people considering onshore skilled migration pathways.

For example, a person who has had a relevant visa refusal and is now in Australia without a substantive visa cannot assume that they can simply lodge another onshore skilled visa application.

Potential options may include:

• A prescribed onshore visa, where eligible;
• An offshore skilled visa;
• Employer-sponsored pathways;
• State or territory nominated pathways, where the visa permits the application;
• Another appropriate visa pathway.

The availability of each option must be checked against the current legislation and visa criteria.

Section 48 and Bridging Visas

A bridging visa is not generally a substantive visa.

Therefore, a person who holds only a bridging visa may still need to consider whether Section 48 applies to them, particularly after a relevant visa refusal or cancellation.

Importantly, the fact that a person previously held a bridging visa does not by itself determine whether Section 48 applies.

The relevant questions include:

• What visa was held after the person's last entry?
• Was a substantive visa held?
• Was another visa refused?
• Was a visa cancelled?
• Which legislative provision caused the refusal or cancellation?
• What visa is the person now seeking to apply for?

Section 48 and Visa Application Validity

Section 48 is particularly important because it can affect whether a visa application is validly made.

Section 46 of the Migration Act provides that a visa application must satisfy the applicable validity requirements and must not be prevented by provisions including Section 48. (legislation.gov.au)

This means that lodging an application and paying a visa application charge does not necessarily mean that the application is valid.

A person affected by Section 48 should therefore establish eligibility to lodge the particular visa before submitting the application.

Section 48 and Previous Visa Refusal

A previous visa refusal is not enough on its own to determine whether Section 48 currently applies.

The following information can be critical:

Date of the refusal

The timing of the refusal in relation to the person's last entry to Australia matters.

Type of visa refused

Some visa refusals are excluded from the Section 48 trigger.

Current visa status

Whether the person holds a substantive visa is important.

Cancellation provisions

If the person's previous visa was cancelled, the section under which it was cancelled matters.

Current location

Section 48 concerns a non-citizen who is in the migration zone.

Section 48 and Visa Cancellation

If your Australian visa has been cancelled, do not assume that you can simply lodge another visa application.

First determine:

• The exact section used to cancel your visa;
• Whether the cancellation occurred after your last entry;
• Whether you currently hold a substantive visa;
• Whether Section 48 applies;
• Which visa classes are currently available to you.

A cancellation under Section 109, for example, can have consequences beyond the cancellation itself because Section 48 specifically identifies Section 109 cancellations as a potential trigger. (legislation.gov.au)

Section 48 vs Re-entry Ban

A Section 48 bar and a re-entry ban are different immigration concepts.

A person can potentially have both a Section 48 issue and an exclusion period, so the two matters should be assessed separately.

Section 48 and Overstaying

If a person's visa has expired, they should act promptly.

It is unlawful to remain in Australia without a valid visa. Home Affairs states that a person who cannot obtain another visa must leave Australia, and a person who remains without a valid visa may face detention and removal. (immi.homeaffairs.gov.au)

A person who leaves Australia after being without a valid visa for more than 28 days may also face a separate exclusion period of up to 3 years, subject to limited circumstances.

Therefore, an unlawful status situation should be assessed before making travel or visa decisions.

Section 48 and Protection Visas

Section 48 should also be distinguished from Section 48A, which deals specifically with further protection visa applications after a previous protection visa refusal or cancellation.

Section 48A generally prevents a person who has previously had a protection visa refused or cancelled from making another protection visa application while in the migration zone, subject to the operation of Section 48B. (legislation.gov.au)

Section 48A and Section 48 are therefore separate provisions and should not be treated as the same immigration restriction.

Can Section 48 Be Waived?

Section 48 itself is not simply a general discretionary "ban" that can always be waived on request.

The key issue is usually whether:

• The statutory conditions for Section 48 are met;
• The intended visa is a prescribed visa class;
• Another provision permits the proposed application;
• The person can make a valid application onshore; or
• The person needs to depart Australia and apply offshore.

The available strategy depends on the particular circumstances.

What Should You Do If Section 48 Applies?

If you believe you are affected by Section 48, you should obtain advice before lodging another visa application.

Start by reviewing:

1. Your current visa status
2. Your most recent entry to Australia
3. All visa applications made after that entry
4. Any visa refusal notices
5. Any visa cancellation notices
6. The exact legislative provision relied upon
7. Your intended visa subclass
8. Whether that visa is currently prescribed for Section 48 purposes
9. Whether an offshore application is possible
10. Whether any review or other legal pathway is available

Section 48 Application Assessment

A professional assessment can help determine whether the restriction applies to your circumstances.

Important documents may include:

• Current visa grant notice
• Previous visa grant notices
• Visa refusal decision
• Visa cancellation notice
• Department correspondence
• Passport and travel history
• Bridging visa details
• Previous visa applications
• ART decision, where applicable
• Intended visa subclass information

Get Professional Help With a Section 48 Bar

A Section 48 issue can make an otherwise eligible visa application invalid if the person is not permitted to apply for that visa while in Australia.

The Visa and Education Services Pty Ltd provides personalised Australian migration assistance through Registered Migration Agent Navneet Kaur (MARN 2318181).

We can assist with:

• Section 48 assessment
• Visa refusal assessment
• Visa cancellation assessment
• Current visa-status review
• Onshore visa eligibility
• Offshore visa pathway assessment
• Partner visa options
• Skilled visa options
• Employer-sponsored visa options
• Department correspondence
• Immigration history review

If you have had a visa refused or cancelled and are currently in Australia without a substantive visa, obtain advice before lodging another visa application.

Contact us for a personalised assessment of your circumstances.

Important Disclaimer

Section 48 is a provision of Australia's migration legislation and its application depends on the person's visa history, location, current visa status, previous refusal or cancellation and intended visa subclass. Migration legislation and regulations can change. This page provides general information only and does not constitute migration or legal advice.