What is Section 48 and how does it impact me?

What is it?

If the Section 48 Bar affects you, you are unable to apply for most visas while you remain in Australia. There are very few you can apply for while this affects you. Those being:

Onshore Partner (UK and BS)      Protection                                        Medical Treatment (Visitor)(UB)

Territorial Asylum (BE)                  Border (Temp)(TA)                         Special Category (Class TY)

Bridging Visas                                 Resolution of Status (CD)              Child (Residence)(BT)

Retirement (Temp) (TQ)               Investor Retirement (UY)

It’s a bad place to be. You should speak to a good Migration Agent before you give up.

The short version is that if you are in Australia and you don’t currently hold a Substantive Visa, and

  • your last visa was cancelled or
  • you had applied for a visa, and it was refused while you did not hold a substantive visa,

you may be affected by Section 48.

The two most common examples I have seen are:

  1. Person A is here as a student and applies for another student visa 2 weeks before his existing one expires. When the existing one expires he will get a bridging visa. If the new student visa is refused he will be affected by section 48 because:
    1. he is in Australia
    2. he does not hold a substantive visa
    3. the visa he last applied for was refused.
  1. Person B has been in Australia on a temporary work visa. The DOHA finds out that she is not complying with work conditions and her visa is cancelled. She is affected by section 48 because:
    1. She is in Australia
    2. She does not hold a substantive visa (not anymore)
    3. Her last visa was cancelled

That’s easy, I’ll just go and get a Partner Visa

The Partner Visa will cost you nearly $8000. You may wait up to two years without work rights, you should expect to come under greater scrutiny due to your visa history, and at the end of the day, they may refuse it. If you want to spend some more thousands you can then apply for review with the AAT, wait another couple years without work rights, and still no guarantee of a visa at the end.

Also, if you apply for a Partner Visa while affected by section 48 there are additional rules around the forms, 888’s and time of Application Criteria for lodging a valid application.

Ok, I’ll just go for a Protection visa then

Don’t. Don’t do this. Don’t take the place of or slow down the processing of someone who really needs it.

Also, when this fails, try to imagine what this strategy does to your integrity and your chances of ever getting a temporary visa back into Australia in the future.  

In case you want a head-ache here is the full piece of legislation below. Note that the legislation is always changing. Speak to someone qualified for the latest legislation.

MIGRATION ACT 1958 – SECT 48

Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

             (1)  A non-citizen in the migration zone who:

                     (a)  does not hold a substantive visa; and

                     (b)  after last entering Australia:

                              (i)  was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

                             (ii)  held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

          (1A)  A non-citizen in the migration zone who:

                     (a)  does not hold a substantive visa; and

                     (b)  after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:

                              (i)  the application has been finally determined; or

                             (ii)  the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

                            (iii)  the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

          (1B)  If:

                     (a)  an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and

                     (b)  the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);

then, for the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.

Note:          Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.

             (2)  For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who:

                     (a)  has been removed from the migration zone under section 198; and

                     (b)  is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(da) or (e);

is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

Note:          Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.

             (3)  For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

             (4)  In paragraphs (1)(b) and (1A)(b):

                     (a)  a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and

                     (b)  a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.

This legislation copied from http://www8.austlii.edu.au/au//legis//cth//consol_act//ma1958118/s48.html on 23.05.2020. Legislation changes all the time. Do not rely on this to be complete or accurate after 23.05.2020. Speak to a MARA registered and qualified Migration Agent for the latest legislation.

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