Section 48 or a Section 48 bar probably means nothing to you if you haven’t undertaken extensive studies of Australian immigration law, but, it is a key section of the legislation, and if you don’t factor this in to your Partner Visa plans, you could end up in hot water!
Navigating Australia’s visa system is incredibly complicated – there’s certainly a lot more to it than is published on the Department of Home Affairs website. It starts with The Migration Act (1958), which is the actual legislation that governs Australia’s migration and visa framework.
In legislation, sections are like chapters or paragraphs in a book. They break down the law into manageable, organized parts to make it easier to read and reference. Each section focuses on a specific rule, requirement, or definition within the broader law. For example, one section might define who is affected by the law, while another outlines what’s allowed or prohibited.
What do you need to know about Section 48?
If you are a keen legal researcher and understand how to read and interpret legislation you can read all about the powers and limitations of Section 48 on the Federal Register of Legislation. However, if you don’t consider reading slabs of legislation light bedtime reading and you want to understand what the practical implications of Section 48 are and whether or not they apply to your visa journey, this blog is for you.
Section 48 of the Australian Migration Act 1958 prevents certain visa applicants who have previously been refused a visa or had a visa cancelled while in Australia from applying for most other visas while they remain in the country. This section applies to “unlawful non-citizens” (people in Australia without a valid visa) or those who hold a bridging visa after a visa refusal or cancellation.
Section 48 essentially operates as a bar or block from making a valid visa application.
What is a valid visa application?
There are a few other sections of legislation that set out rules and requirements for making a valid visa application which intertwine with Section 48 and vary depending on the type of visa you are applying for. Things such as what application forms you need to complete, the correct visa application fee, mandatory documents you need to provide, where to apply and the type of visa you must hold when you apply all impact the validity of an application. The main thing you need to know is that if your application is not considered ‘valid’ it’s as if you never applied or the application doesn’t exist.
What is the purpose of Section 48?
The primary purpose of Section 48 is to encourage individuals to maintain lawful status and comply with visa conditions while in Australia. By limiting the ability to apply for new visas onshore after a refusal or cancellation, the provision promotes the integrity of the migration system and ensures that applicants follow proper procedures in the following ways:
- Limit Repeat Applications: Section 48 aims to discourage people from repeatedly applying for visas from within Australia after a refusal or cancellation, particularly when the previous application did not meet the criteria. It prevents people from attempting to “shop around” for different visa options without leaving the country and stops people relying on bridging visas as a means of staying in Australia indefinitely.
- Streamline Visa Processing: By limiting the types of visa applications that can be lodged by someone whose visa has been refused or cancelled, Section 48 helps reduce the backlog and administrative burden on the immigration system. This makes the process more efficient for both the applicants and the authorities.
- Encourage Departure and Compliance: This provision encourages people to depart Australia if their visa has been refused or cancelled, especially if they are not eligible for other visas while onshore. However, it doesn’t prevent them from applying for certain visas and they may apply for other visas from offshore.
I’ve previously been refused a visa – does this mean I am Section 48 barred?
The starting point to determine if you are subject to Section 48 or a Section 48 bar is to confirm your current visa status. If you do not hold a valid visa or you are the holder of a bridging visa this might apply to you!
Whether or not you are impacted by the Section 48 bar depends on a number of circumstances that are best assessed in detail during one of our visa planning sessions. There are unique variables to consider such as when the visa was refused, when you last entered Australia, and the type of visa you hold. Similarly if you’ve previously had a visa cancellation, and in-depth assessment of your full visa and travel history is needed to ascertain whether or not Section 48 will apply to you.
Pro Tip: Section 48 won’t apply if you currently hold a substantive visa!
Can I still apply for a Partner Visa if I have a Section 48 bar?
Section 48 only applies to people in Australia so if you are planning to lodge your Partner Visa offshore you won’t have anything to worry about.
The Section 48 bar offers some flexibility and there is a prescribed list of visas that are exempt from the rules. This includes an onshore Partner Visa application for a subclass 820 or 801 visa, however this might not be possible if the visa you had refused was a Partner Visa application.
If you have a Section 48 bar and are wanting to submit an onshore Partner Visa application, it is important to speak with a Registered Migration Agent to get professional advice on your prospects of success. Here at Freedom Migration, we do this through our visa planning session where we’ll sit down, discuss all the details you need to know about your case, and create an optimal strategy for your Partner Visa application.
As my mother often told me, just because you can….doesn’t mean you should!
If you have a Section 48 bar, even though it is possible to lodge a valid application for an onshore Partner Visa with the right advice and guidance to ensure you provide the correct documentation, chances are you will also be impacted by Schedule 3 criteria which is a completely different ball game and may lead to visa refusal.
Can I apply for an exemption from a Section 48 bar?
If only that were the case! Unfortunately, under the Australian migration framework there isn’t an option to simply apply for an exemption from the Section 48 bar. The legislation has a pre-determined list of visas that are not impacted by the Section 48 bar. Staff at The Department of Home Affairs have no legal authority to grant exemptions to allow applicants who are subject to a Section 48 bar to apply for visas not already covered by the legislation – even if they ask nicely.
How Can I avoid a Section 48 Bar?
The easiest way to avoid a Section 48 bar is to simply do the right thing! Make sure you are following all the conditions of your visa and continue to meet the eligibility criteria. If you are a student visa holder make sure you are not exceeding the maximum number of working hours each fortnight and that you are attending your course and making progress in your studies. If you are applying for a new visa, make sure you get professional advice to ensure you meet the eligibility criteria and submit a well prepared application to ensure maximum prospects of success. No refusals, No cancellations, No worries or Hakuna Matata as our Lion King friends would say!
IMPORTANT: Please note, this does not constitute Immigration advice. Always seek advice from a Registered Migration Agent before applying for an Australian Visa. Migration Law is constantly changing. This information is accurate only at the time of publication.
