What is Section 48 for Australian Visas?

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What is Section 48 for Australian Visas?

Australia has a strict visa system that regulates the entry, stay, and rights of non-citizens.

One of the important provisions under Australian migration law is Section 48 of the Migration Act 1958.

This section can significantly impact visa applicants who have had their visa applications refused or cancelled while in Australia.

Understanding Section 48 bar, its implications, and possible solutions is crucial for those affected by it.

What is Section 48 of the Migration Act 1958?

Section 48 of the Migration Act 1958 (Cth) applies to non-citizens who are in Australia on a Bridging Visa or unlawfully and have had a visa application refused or their visa cancelled.

This provision prevents them from applying for most substantive visas while remaining in Australia.

In simple terms, if a person’s visa has been refused or cancelled while they are in Australia, they cannot lodge a new substantive visa application unless they leave the country and apply from offshore.

Who Does Section 48 Apply To?

Section 48 applies to individuals who: Are in Australia but do not hold a valid visa (except a Bridging Visa), Have had a visa refused or cancelled (other than certain exceptions, such as character-related refusals under Section 501), Wish to apply for another substantive visa but are restricted by Section 48.

A substantive visa is any visa except for: A Bridging Visa, A Criminal Justice Visa, An Enforcement Visa.

Are There Any Exceptions to Section 48?

Yes, certain visas are exempt from the Section 48 bar, meaning that affected individuals can still apply for them while remaining in Australia. These visas include:

1. Partner Visa (Subclass 820/801)

If you are in a genuine relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen, you may still apply for a Partner Visa despite the Section 48 bar.

2. Protection Visa (Subclass 866)

Individuals who fear persecution in their home country may apply for a Protection Visa, provided they meet the necessary eligibility criteria.

3. Certain Bridging Visas

Some Bridging Visas are available for those who are waiting for a tribunal or court decision.

  • Subclass 010 – Bridging Visa A (BVA)
  • Subclass 020 – Bridging Visa B (BVB)
  • Subclass 030 – Bridging Visa C (BVC)
  • Subclass 050 – Bridging Visa E (BVE)
  • Subclass 051 – Bridging Visa E (BVE) for eligible cases

4. Humanitarian or Ministerial Intervention Applications

In rare cases, individuals can request the Minister for Immigration’s intervention in their case under public interest grounds.

5. Skilled and Employer-Sponsored Visas (Only for Certain States & Territories Under Specific Conditions):

The following skilled visas can be applied for in Australia even if an applicant is affected by Section 48:

  • Subclass 190 – Skilled Nominated (Permanent) Visa (Requires nomination by an Australian state or territory government.)
  • Subclass 491 – Skilled Work Regional (Provisional) Visa (Certain states and territories allow Section 48-barred applicants to apply.)
  • Subclass 494 – Skilled Employer Sponsored Regional (Provisional) Visa (Requires employer sponsorship in a designated regional area.)

Important Clarification: Unlike Subclass 190 and Subclass 491, Subclass 189 – Skilled Independent Visa is NOT exempt from Section 48. Applicants affected by Section 48 must leave Australia to apply for a Subclass 189 visa.

In addition to the commonly known exemptions, several other visas are also exempt from Section 48 restrictions.

These include Medical Treatment (Visitor) (Class UB) Visa, which allows individuals to receive medical care in Australia, and the Territorial Asylum (Residence) (Class BE) Visa, designed for those granted asylum under specific circumstances.

Temporary and transitional visas such as the Border (Temporary) (Class TA) Visa and Special Category (Temporary) (Class TY) Visa (for New Zealand citizens) are also exempt.

Family and humanitarian pathways, including the Child (Residence) (Class BT) Visa and Resolution of Status (Class CD) Visa, provide further exemptions. Additionally, the Retirement (Temporary) (Class TQ) Visa and Investor Retirement (Class UY) Visa cater to eligible retirees.

You can access the list of visas exempted from s 48 here.

How Can You Overcome Section 48?

If you are affected by Section 48, here are some possible solutions:

1. Departing Australia and Applying Offshore

In most cases, you can leave Australia and apply for a new visa from offshore.

However, some visas require offshore processing, which can affect your eligibility to return to Australia immediately.

2. Appealing the Visa Refusal or Cancellation

If you believe the refusal or cancellation was unfair, you may be able to appeal the decision to the Administrative Appeals Tribunal (AAT). If successful, you may be able to continue your visa application process.

3. Ministerial Intervention

In exceptional cases, you can request the Minister for Immigration to intervene in your case and grant a visa on humanitarian or public interest grounds.

4. Seeking Legal Advice

Migration laws are complex, and it is advisable to consult a registered migration agent or immigration lawyer to explore your options.

Conclusion

Section 48 of the Migration Act 1958 plays a crucial role in preventing visa hopping and ensures that non-citizens comply with Australia’s strict visa policies.

If you are affected by the Section 48 bar, it is essential to understand your options and seek professional advice before taking any action.

Whether through offshore applications, appeals, or exceptions, there are pathways to overcome the Section 48 restriction and continue your journey in Australia.

Need Help?

If you are affected by Section 48, consider consulting a registered migration agent or immigration lawyer to explore your best options.

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