s48 Bar | Visa Refusal or Cancellation
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 a Section s48 bar. This bar automatically applies to people who have had a visa cancelled or made a visa application which has been refused. In these scenarios the 's48 Bar' remains with you as long as you stay in Australia.
s48 Bar was created to prevent people making repeated visa applications that were never going to be granted. In the past this was a loophole to allow people remain in Australian, in effect without a substantive visa!! The bar is quite blunt instrument but unfortunately it is in the migration legislation. This must be addressed when making a new vis application if you wish to remain in Australia, and hopefully become eligible for permanent residency and eventually citizenship.
Migration Act | s48
Section 48 of the Migration Act 1958 (Cth) holds that certain applicants who have had a visa refused or cancelled in Australia cannot apply for a further visa from within the country.
Although the situation can seem a little complicated there are various avenues you can avail of to circumvent the s48 bar. The team at Visa Crew are here to give you some sound Immigration Advice on this area of migration law.
Unfortunately, within the current legislation there is not a 'waiver' or compelling & compassionate circumstances the applicant may apply for to overcome the s48 bar. There are however certain visa applications which are exempt from the s48 bar. This means most people with a visa refusal or cancellation who is still onshore in Australia may apply for certain visa subclasses, unrestricted!
The process is similar to a waiver application; if you are subject to s48 bar then you need to find a workaround to this complex situation.
Even if you’ve had a visa application refusal or visa cancellation, you can still lodge a valid application for the following types of visas in Australia: partner visas, same sex partner visas, bridging visas, subclass 444 for New Zealand citizens and, child visas (as well as a few other types of visas). The Migration Regulations stipulates the following visas as exempt from the s48 bar (for most applicants):
Partner Visa 820/801
Protection Visa
Medical Treatment Visa
Special Category Visa
All Bridging Visas
Child (Residence) Visa
If you are subject to Section 48 bar, you may find yourself with very limited options in applying for a visa from within Australia. Importantly however, there are options. Not every refusal or cancellation will automatically lead to the application of Section 48 Bar against an applicant. Even if it does, there are usually other avenues to make a successful visa application. There may be additional stringent criteria to be satisfied when applying for the above visas. A detailed submission paper is highly recommended quoting the relevant regulations; this ensures the department case officer understands your circumstances clearly.
s48 Bar - Can I Make An Application For A Partner Visa
If Section 48 applies to you, then you may find you have limited options in applying for a visa from within Australia. Remember in most cases this bar does not apply to partner visa applicants. If you are s48 barred you may still be eligible to make an application for a subclass 820/801 Partner visa.
The process of obtaining a s48 bar waiver is somewhat complex as there are other considerations but importantly it can be accomplished.
In summary it may be possible to make an application for a partner visa when you are physically in Australia. Obtain advice from A Registered Migration Agent. You should book a paid consultation and have all your paperwork and timeline details at hand in order that we can give you the correct advice.
Refusal of Invalid Applications
If ‘valid application’ criteria are not met, then the visa application is deemed invalid and will be returned to you without any processing having been undertaken. Simply this means your visa was not considered and therefore not refused. Did you not include some vital information? Did you not pay the correct application charge?
An invalid visa application does not constitute a s48 bar, you are not subject to the bar.
On a side note however, if your visa application is deemed invalid, your associated bridging visa to remain lawfully in Australia will be withdrawn by the department (Home Affairs). You will have limited time to make a new visa application or make plans to depart Australia.
Does Section 48 apply to me?
In a nutshell, if you are currently not the holder of a substantive visa (you hold a Bridging Visa or you are unlawful), and you have had a visa refused or cancelled, then it is likely Section 48 will apply to you. Remember If you currently hold a substantive visa and you had another visa application refused then you have nothing to worry about.
Ways around Section 48 Bar
As explained earlier, you may still be eligible to apply for a list of visas as prescribed by the Migration Regulations. 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.
Remember you may only avail of the s48 bar once, if your next visa application is refused you cannot make another application onshore in Australia. Essentially, the regulations allow you one extra chance to make a successful visa application, make sure it counts!
COVID | s48 Bar
The COVID pandemic and travel restrictions has impacted partner visa applicants and skilled visa applicants subject t the s48 Bar. These groups are finding it difficult to travel abroad while the travel restrictions remain in place. In normal times the applicant may be eligible for a Bridging Visa 'B'; this method enables the individual to travel abroad, make an offshore visa application and then return to Australia to wait the outcome of the visa application. This pathway is now redundant for most applicants.
Section 48 and International Travel Bans due to COVID19 are unfairly impacting many people and their chances of getting an Australian Visa, temporary or permanent.
At this moment the Australian Government have not offered any concessions to waive the s48 bar for onshore applicants. Government policy may change in this space.
S48 Bar Lifted
From 13 November 2021, applicants who are subject to section 48 bar may now be eligible to make a valid visa application onshore for these skilled visa classes:
This change in the legislation will facilitate applications in Australia for those prevented from leaving due to COVID-19 related travel restrictions. To be eligible you should meet all other requirements for making a visa application.
This is a welcome step from the Government which will provide relief for skilled workers and a boost for Australia's economic recovery.
Administrative Appeals Tribunal
You may have rights to lodge an appeal if your visa has been cancelled or refused. The Administrative Appeals Tribunal was established to hear such appeals. The Migration Review Division hears any appeals associated with migration matters. Again you will have limited time to make an application to have your case heard. If you do not lodge your application within the time frame permitted then your right to appeal will be lost. No matter how complex your case you seek advice from a competent Registered Migration Agent. Time is critical.
Visa Crew
In nutshell contact a Registered Migration Agent as soon as possible to act on your behalf. Very often in these situations you may have limited time to act (sometimes only 10 days)!
People turn to us each day for our expert knowledge, support and friendly service. Contact Us NOW If you find yourself in a precarious situation with regard to your immigration situation and need good advice. For convenience we are conducting consultations by telephone or Zoom formats.
Michael Dooley | LGBT Principal Immigration Consultant | MARN 1789997
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Michael Dooley
Principal Migration Consultant
MARN 1789997
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