A Few Ways Around a Section 48 Bar

Sometimes things don’t go to plan. This is never more apparent than in situations where an applicant has had a visa refused or cancelled in Australia leading to the implication of the dreaded Section 48 Bar. To those playing at home, Section 48 of the Migration Act 1958  (Cth) (“the Act”) holds that certain applicants who have had a visa refused or cancelled in Australia cannot apply for a further visa from within the country unless prescribed in the Migration Regulation 1994 (Cth) (“the Regulations”). Never fear, as Migration Lawyers, Migration Consultants and Migration Agents in Brisbane, we are here to give you some sound Migration Advice on this complicated area of migration law. 

Specifically, Section 48 of the Act states:


(1)  A non-citizen in the migration zone who:

(a)  does not hold a substantive visa; and

(b)  either:

      (i)  after last entering Australia, 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), 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, but not for a visa of any other class.

Importantly, if Section 48 applies, then applicants can only apply for a visa from within Australia if it is listed in Regulation 2.12(1) of the Regulations. Accordingly, Regulation 2.12(1) lists the following visa’s as exceptions to Section 48:

(a)      Partner (Temporary) (Class UK);

(b)      Partner (Residence) (Class BS);

(c)      Protection (Class XA);

(ca)      subject to subregulation (3), Medical Treatment (Visitor) (Class UB);

(e)      Territorial Asylum (Residence) (Class BE)

(f)      Border (Temporary) (Class TA);

(g)      Special Category (Temporary) (Class TY);

(h)      Bridging A (Class WA);

(j)      Bridging B (Class WB);

(k)      Bridging C (Class WC);

(l)      Bridging D (Class WD);

(m)      Bridging E (Class WE);

(ma)      Bridging F (Class WF);

(mb)      Bridging R (Class WR);

(n)      Resolution of Status (Temporary) (Class UH);

(o)      Resolution of Status (Class CD);

(p)      Child (Residence) (Class BT).

In other words, if Section 48 applies to you, then you may find yourself with very limited options in applying for a visa from within Australia. Importantly however, not every refusal or cancellation will automatically lead to the application of Section 48 against an applicant, and even if it does, there may be ways around it.

Does Section 48 apply to me?

In a nutshell, if you are currently not the holder of a substantive visa (such as on a Bridging Visa or unlawful), and you have had a visa refused or cancelled, then it is likely Section 48 will apply to you.

An example as to when Section 48 will apply

Kuldeep originally entered Australia in January 2014 on a Student visa to study a Diploma of Business which was due to expire on 15 March 2015. On the 1 March 2015, Kuldeep applied for a second Student visa to study a Certificate IV in Business. At the time of applying for this second Student visa, Kuldeep was granted a Bridging Visa which came into effect on the 16 March 2015, being the day after the expiration of her previous Student visa. On the 24 April 2015 Kuldeep’s second Student visa was refused as she was assessed as not being a genuine student, meaning that she is now subject to Section 48 Bar as she does not currently hold a substantive visa and has had a visa refused.

An example as to when Section 48 will not apply

Keith, an experienced carpenter from Ireland, is on his first Working Holiday visa. A few months into his stay in Australia Keith finds a good job working for a local carpentry business and is offered 457 sponsorship. Keith and his employer submit the 457 visa, however due to Keith not providing sufficient evidence to prove his skills and work experience, his 457 visa is refused whilst he still holds his Working Holiday visa. As Keith is the holder of a substantive visa, Keith is not subject to Section 48 bar, despite having a visa refused in Australia.

Jianlin was previously in Australia in 2012 on a Subclass 600 Visitor visa. In order to extend her stay in the country, Jainlin applied for a Student visa with the view of completing a Certificate III in Management. Unfortunately for Jianlin, the Student visa was refused whilst she was on her Bridging Visa. Prior to the expiration of her Bridging Visa, Jianlin returned home to China. In January 2015, Jianlin decided to come and visit Australia and is now on a newly granted Subclass 600 Visitor visa. As Jianlin has not had a visa refused since last entering Australia, Section 48 does not apply to her.

Ways around Section 48 Bar

Even if you fall within the first above example and Section 48 applies to you, as explained initially, you may still be able to apply for a list of visas as prescribed by Regulation 2.12. Alternatively, Section 48 Bar does not prevent applicants from departing Australia, applying for a subsequent visa, and then returning to Australia while waiting for the outcome of the new visa. In saying this, there may be specific visa requirements for the new visa being applied for, so we highly recommend speaking to a Migration Lawyer and receiving sound and reliable Migration Advice on this approach before proceeding.

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