Section 48 of the Migration Act prevents applications being made for a substantive visa while in Australia if an applicant’s visa has been refused or cancelled during their stay.
The classes of non-substantive visas are criminal justice visas, enforcement visas, and bridging visas. Criminal justice and enforcement visas are granted to individuals if they need to be detained or await trial on suspicion of a crime committed in Australia. Bridging visas, meanwhile, are very common: they enable an applicant for a substantive visa to remain in the country during the processing of their application.
Section 48 will not apply if the application has been deemed invalid (for example, if the correct visa application was not paid) or if a substantive visa was held at the time of application for the refused visa (as opposed to a non-substantive visa). It will also not apply if the visa was applied for “offshore” (outside of Australia).
While there are exceptions to what is referred to as the “section 48 bar”, applicants will need to demonstrate compelling and compassionate circumstances in order to be able to overcome it. The visas that enable applicants to attempt to demonstrate these include partner visas, medical treatment visas, protection visas, child visas, bridging visas, resolution of status visas, border visas, territorial asylum visas, and subclass 444 visas for citizens of New Zealand. However, compelling and compassionate circumstances can be extremely difficult to prove, and are mostly subjective, meaning that the case officer in charge of your matter has discretion to decide that the reasons provided are not compelling and compassionate enough to overcome the bar. This can occur even if the reasons provided are somewhat compelling and compassionate.
In some cases, the application of section 48 to your visa can be appealed in the Administrative Appeals Tribunal. If you are eligible to attend the AAT, your entire visa application will be reassessed. The AAT has the power to agree with, vary, or set aside the decision originally made by the Department, and make a new decision. The AAT can also remit the decision to the Department in order for them to reconsider the matter, providing them with guidelines within which to do so.
Often, the best way to get around a section 48 bar is to simply go offshore and lodge a new visa application while you are living in another country – however, you will need to ensure that the application is strong enough that you do not risk another refusal on your record.
For assistance with overcoming a section 48 bar, or the next steps to take with your application process, please do not hesitate to contact our office via email at firstname.lastname@example.org or on 1300083843.