Section 48 Bar: Lodging a New Visa Onshore After a Refusal

What Is the Section 48 Bar?

Section 48 of the Migration Act 1958 is one of the strictest provisions in the Australian migration system. It provides that a non-citizen in the migration zone, who has had a visa refused or cancelled, cannot lodge an application for most new visas while they remain in the migration zone.

The conditions for the section 48 bar to apply include:

• You are in Australia (onshore)
• Your visa has been refused or cancelled since you last entered Australia
• You do not fall within an exemption under the law

When the section 48 bar applies, you may still be able to remain in Australia if you hold a bridging visa, but your ability to move forward in the visa system is significantly limited.

Which Visas Are Exempt from the Section 48 Bar?

Not every visa is blocked by the section 48 bar. Several important visa types are exempt, allowing you to lodge while onshore despite a refusal:

Protection Visa: This is the most important exemption. If you have grounds to seek asylum or protection under the UN Refugee Convention, you may still apply despite the section 48 bar.

Partner Visa (subclass 820/801): In certain specific circumstances, particularly where you are married to or in a de facto relationship with an Australian citizen or permanent resident, a partner visa may be exempt from the section 48 bar.

Certain humanitarian visas: Some humanitarian visas are also on the exemption list.

Bridging Visas: Bridging visas (A, B, C, D, E) are not blocked by the section 48 bar — you can apply for a bridging visa even while in a refused position.

The full list of exempt visas is set out in the Migration Regulations and can change over time. Always check with a registered migration agent (MARA agent) for the most current information.

What Happens When the Section 48 Bar Applies?

When the section 48 bar applies, your situation becomes complex:

Legal status: If you hold a bridging visa while appealing a refusal decision, you can still remain in Australia lawfully. However, if all appeals fail, you may become an unlawful non-citizen.

Ability to work: Your right to work depends on the conditions of your current bridging visa. Not every bridging visa allows work.

Appeals: Despite the section 48 bar, you may still be able to appeal the original visa refusal to the Administrative Appeals Tribunal (AAT) or the federal courts, depending on the visa that was refused.

Leaving Australia to “Break” the Section 48 Bar

One of the most common responses to the section 48 bar is to leave Australia and lodge an offshore application. This can take you out of the section 48 bar because the bar only applies while you are in the migration zone.

However, before deciding to leave, weigh up the following carefully:

• On leaving Australia, you may face an exclusion period, particularly if you have overstayed your visa or become an unlawful non-citizen.
• Some refused visas can leave a poor record affecting future visa applications.
• A three-year bar and a five-year bar can apply in certain circumstances.

Your Legal Options When Facing the Section 48 Bar

When the section 48 bar applies, you have several options:

1. Appeal to the AAT: If your visa was refused and you have a right to appeal, use it. During the appeal period, you are usually granted a bridging visa to continue staying in Australia lawfully.

2. Request Ministerial Intervention: The Minister has the power to intervene in certain cases under section 351 or section 417 of the Migration Act. This is an exceptional measure with no statutory hearing process, and rests entirely on the Minister’s discretion.

3. Seek an exempt visa: If your circumstances fit (for example, you have an Australian partner or grounds to seek asylum), lodge an application for a visa within an exemption.

4. Leave Australia voluntarily and lodge offshore: In some cases this can be a better option than waiting in an uncertain legal position.

5. Consult a MARA agent or immigration lawyer: The section 48 bar is a complex area of law. Handling it without professional advice can lead to mistakes that cannot be undone.

Important Points to Remember

The section 48 bar is one of the most serious migration situations. A few points to keep in mind:

• Appeal deadlines are usually very short — only 21 days for some types of decision. Do not delay.
• Not every refusal can be appealed to the AAT. Some decisions can only be reviewed in the Federal Court.
• Being subject to the section 48 bar can affect family members who are in Australia with you.
• DHA can enforce removal of an unlawful non-citizen, including detention in a detention centre.

If you are facing this situation, seek legal support as soon as possible. Free legal support services such as a Migrant Resource Centre or free immigration legal services in the states may be able to help you understand your options.