Consequences of Visa Refusal - The Section 48 Bar
What Is The Section 48 Bar?
Individuals who have had a visa refusal or cancellation may be affected by the ‘Section 48 bar‘. The relevant aspect of section 48 of the Migration Act 1958 is as follows:-
Non-citizen refused a visa or whose visa 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.
What Does This Mean?
In summary, this section reflects policy intention by the Department of Home Affairs. The intention is that individuals who have been refused a visa should not be allowed to re-lodge repeat applications onshore. This means that applicants should take great care in ensuring that when they lodge a visa, it satisfies all the criteria under Schedule 1 and Schedule 2 for their respective visa subclass. If an applicant is refused a visa application, in certain circumstances, they will be unable to lodge any further visa applications in Australia (except for specified classes of visas).They will either need to turn the decision around at appeal, or alternatively depart the country and lodge a valid visa application from offshore.
In order to be affected by section 48, several conditions must be satisfied:
(a) Firstly, the applicant must be in Australia; and
(b) Secondly, the applicant must have had a visa refused or cancelled under a relevant provision after last entering Australia (n.b. this section does not apply to visas that have been withdrawn); and
(c) Thirdly, if the visa application was refused, at the time of visa refusal, the applicant must not have held a substantive visa. Therefore, if you held a bridging visa that was in effect at the time of refusal, you will be caught by the section 48 bar.
Regulation 2.12 of the Migration Regulations 1994 specifies a number of visa classes that can still be applied for despite a section 48 bar. Common visas among these include: Partner Visas, Child Visas, Medical Treatment Visas and Bridging Visas. Keep in mind that you will need to be eligible for these visas before applying. As an example you will likely be affected by ‘schedule 3 criteria’ if applying for a Partner Visa. You should consult with a professional to fully understand your position and eligibility for further visas. Time limits will likely apply, so you should act quickly.
What Should I Do If I Have A Refusal?
If you have received a natural justice letter from the Department of Home Affairs and are considering withdrawing an application, you should consult with a professional regarding the ramifications of withdrawal rather than a refusal. If you have received a refusal for a visa application lodged in Australia, you may have appeal rights. In most cases you will only have 21 days to appeal a decision to the Administrative Appeals Tribunal, so you should ensure that you seek professional help urgently to discuss your options.
How We Can Help
Fair Go Visa Consultants have dealt with a number of clients who have been affected by section 48 bar. We can assist you in identifying whether you are caught by the section 48 bar. We may be able to assist you in establishing a strategy for preparing an application to be lodged from offshore so that you can return to Australia, or alternatively assist you in turning the decision around at appeal. Book a consultation today to discuss your options.