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February 25, 2020

Was Your Visa Refused Or Cancelled? The Section 48 Limitation May Apply To You

If you have been refused a visa and you only hold a bridging visa, then there is a restriction to apply for any further visa applications while you remain in Australia.

The law that governs this restriction is known as Section 48 of the Migration Act.

If you hear people say they are Section 48 barred from applying for another visa it is this restriction being referred to. If you have your visa cancelled then Section 48 will also restrict you applying for most other visas while you remain in Australia.

Section 48 does not apply if you still hold a substantive visa. If you still hold a substantive visa you can make as many further applications as you like, the previous refusal does not affect you.

Mateo’s example

Mateo applied for a the Graduate 485 visa. Unfortunately he made an error and was refused since he did not meet the Australian Study Requirement. He quickly enrolled in another course and applied for a new student visa before his old student visa expired.

Even though he received a refusal the Section 48 restriction did not apply since he still was holding his old student visa. However he is now waiting for a decision to grant the student as the old one has now expired. He is now on a Bridging Visa A (BVA) which was given to him when he applied for the new student visa. Whilst he remains on the BVA Section 48 now applies. He can no longer apply for a new visa until his student visa is granted in the future.

Xi AN’s Example

Xian An applied for her student visa but it was refused. She appealed to the AAT and holds a BVA. She is caught by Section 48 and cannot apply for the new visa she wants. In the mean time she got lucky and received an invitation to apply for the 189 visa. However she cannot apply for the 189 visa while she remains in Australia because of Section 48.

Xi An then applies for a Bridging Visa B (BVB) to travel and return to Australia. When she leaves Australia she is no longer restricted by Section 48. This freedom allows her to lodge the 189 visa while she is outside Australia. She then returns to Australia on that BVB. The BVB itself will continue until the AAT review is finalised.

Due to Section 48(3) Xi An is still not able to lodge another substantive visa application when she re-entered Australia on the BVB. In her case however she can remain until the 189 visa is finally decided. This circumstance was covered in detailed in a previous newsletter Offshore Application And Bridging Visa E

Exemptions To Section 48

There are however a few visa’s where this Section 48 does not apply. They are;

  • Partner visas (subclasses 100, 309, 801, 820)
  • Protection visa (subclass 866)
  • Medical Treatment visa (subclass 602)
  • Territorial Asylum visa (subclass 800)
  • Border (Temporary) visa (subclass 773)
  • Special Category (Temporary) visa (subclass 444)
  • Bridging visas A, B, C, D, E, F, R
  • Resolution of Status visa (subclass 851)
  • Child (Residence) visa (subclass 802)

Maria’s Example

Maria applied for a Student visa but it was refused. She appealed to the AAT but that that was not successful. She then applied for a Protection Visa but that was also refused. Maria appealed that refusal to the AAT. She has been waiting now two years for that appeal to be heard.

In the mean time Maria has fallen in love with an Australian Citizen and married him. The couple have a newborn baby son and he is an Australian Citizen. Maria can now apply for a Partner visa because it is one of the few visas that is not covered by Section 48. Of course Maria did not necessarily have to have a baby before she could apply for the Partner visa without having to leave Australia. There are however limited circumstances that a Partner visa visa can be made when Section 48 applies. We will cover these circumstances in an upcoming article.

Visa refusals and cancellations can have a deep impact on your visa opportunities. Are you unsure on if the s48 limitation applies to you or would you like to ensure that your application has the best chances to avoid a s48 situation? Book a consultation to speak one of our highly experienced migration specialists. Call +61 2 8054 2537, 0434 890 199 or book online.

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