Visa Refusal or Cancellation – s48 Bar
Section 48 of the Migration Act 1985 (Cth) holds that certain applicants who have had a visa refused or cancelled in Australia cannot apply for certain visas onshore.
A s48 bar only applies if you:
- are physically inside Australia; and
- do not hold a substantive visa; and
- have had a visa application refused (other than a refusal of a bridging visa) since last entering Australia; or
- have had a visa cancelled since last entering Australia
If you have had a visa refused before you last entered Australia, you must not have subsequently entered Australia on a Bridging visa B.
Under current legislation, there is no ‘waiver’ or compelling and compassionate circumstances that would allow one to circumvent the s48 bar. You must either leave Australia or apply for one of the following exempt visas:
- Partner visa (subclass 820/801)
- Protection visa
- Medical Treatment visa
- Special Category visa
- Bridging visa
- Child (Residence) visa
- Subclass 444 visa for New Zealand citizens
The s48 bar does not prevent applicants from departing Australia and applying for a visa offshore.
Invalid Visa Application
A visa application cannot be considered by the Department unless it is validly made (s47). If a visa application is not validity made, the application will be returned to the applicant and the fee refunded. This commonly occurs when an applicant fails to satisfy one of the many valid application criteria. Accordingly, an invalid application is not a decision to refuse to grant a visa and therefore it does not trigger the s48 bar.
Note that certain visa conditions (No further stay conditions, 8503, 8534, 8535) prevent applicants from making a valid application, unless the Minister has waived the condition (s46).
Difference Between Substantive and Non-Substantive Visas
A substantive visa is any visa that is not a:
- Bridging visa;
- Criminal Justice visa; or
- Enforcement visa
Enforcement visas and Criminal Justice visas are granted to persons suspected of a crime (for the purpose of detaining or awaiting trial)
A Bridging visas provides lawful status to a person in Australia who would otherwise be an unlawful non-citizen. It is helpful to think of a bridging visa as bridging the gap between a non-citizen’s immigration status now and their future immigration status, for example, moving from a temporary visa to a permanent visa or from being unlawful non-citizen to being granted a substantive visa.
There are seven classes of Bridging visas – A, B, C, D, E, F and R.
Note that a Bridging visa B (travel authority) cannot be used to depart and re-enter Australia for the purpose of bypassing the s48 bar.
Appeal of Decision to Refuse or Cancel a Visa
You may be able to appeal a decision to refuse or cancellation a visa at the Administrative Appeals Tribunal (AAT).
Where a refusal or cancellation decision is under review, the s48 bar will continue to apply.
If the s48 bar did not exist, it would mean that a person who is in Australia could keep making repeat applications for visas even if they have been previously refused or had a visa cancelled.
