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Understanding the Section 48 Bar in Australian Immigration
If you have had a visa refused or cancelled since your last entry into Australia and now hold either no visa (are “unlawful”) or a Bridging Visa, you may find yourself affected by what is commonly called the Section 48 bar. In simpler terms, being “Section 48 barred” means you are restricted from lodging most other onshore visa applications while you remain in Australia, apart from a few very limited exceptions.
What is the Section 48 Bar?
Under Section 48 of the Migration Act 1958, if you have experienced a visa refusal since your last arrival in Australia, and you no longer hold a substantive visa, you are subject to the Section 48 bar. This legislation restricts your ability to lodge new substantive visa applications while onshore.
Commonly, individuals in this position are either on a Bridging Visa or have become unlawful (i.e., overstaying their visa). It’s crucial to understand that overstaying or becoming unlawful can negatively impact future Australian visa applications and even your eligibility for Australian citizenship down the track.
How to Overcome or Avoid the Section 48 Bar
Departing Australia (Offshore Applications)Often, the simplest way to sidestep the Section 48 bar is to leave Australia and lodge a new visa application from outside the country. However, this may not be ideal if you have strong reasons to stay in Australia (such as employment, family, or ongoing commitments).
Exceptions to Section 48A limited number of visas can still be lodged onshore if you are Section 48 barred, provided you meet specific compassionate or compelling circumstances. These commonly include certain Partner Visas, Medical Treatment Visas, Protection Visas, Child Visas, Subclass 444 Visas (for New Zealand citizens), and some others.
Keep in mind that demonstrating “compelling and compassionate” grounds can be quite subjective. A case officer has discretion to decide whether your circumstances truly meet this threshold.
New S48 Bar Waiver for Skilled Visa Applicants
Since 13 November 2021, there has been an important change for skilled migration applicants. Certain applicants who are Section 48 barred can now apply onshore for:
Subclass 190 (Skilled Nominated Visa)
Subclass 491 (Skilled Work Regional (Provisional) Visa)
Subclass 494 (Skilled Employer Sponsored Regional (Provisional) Visa)
This new waiver means that if you meet the criteria for one of these skilled visas, you may be eligible to apply from within Australia, despite being Section 48 barred.
Appeals through the ART
If your visa refusal can be reviewed by the Administrative Review Tribunal (AAT), you might have an opportunity to overturn the refusal decision. The AAT re-assesses your entire case and can agree with, change, or set aside the Department’s original decision. In some instances, the AAT can remit (return) the matter to the Department with guidance on what to consider next.
Why You Should Address the Section 48 Bar Quickly
Risk of Becoming Unlawful: If you stay in Australia without a valid visa, you become unlawful. This can lead to complications in any future visa applications and potentially affect your Australian citizenship eligibility.
Further Refusals: Multiple refusals can severely damage your immigration record, making it even more difficult to secure a successful outcome in subsequent visa applications.
Limited Pathways: While some onshore visa options are available, they can be difficult to qualify for, especially if they hinge on compelling and compassionate grounds.
Key Takeaways
The Section 48 bar applies to those who have had a visa refusal or cancellation since their last arrival in Australia, and now do not hold a substantive visa.
If you are subject to Section 48, your onshore visa application options are heavily limited, often leaving you the choice of going offshore to lodge again.
Certain visas (e.g., Partner Visas, Protection Visas, some Child Visas, and post-13 November 2021 skilled visas such as Subclass 190, 491, and 494) may provide a potential pathway onshore.
Demonstrating compassionate or compelling reasons can be difficult and is highly discretionary.
Consider an AAT appeal if you have review rights.
Getting the right guidance early can save time, money, and stress.
Need Help with Your Section 48 Bar Situation?
If you believe you may be Section 48 barred or if you have recently had a visa refusal or visa cancellation, it is essential to get professional advice. Our experienced migration agents and immigration lawyers can evaluate your case, advise you on the best path forward, and represent you if an ART appeal or a Ministerial Intervention request is an option.
The information provided in this blog is for general purposes only and does not constitute immigration or legal advice. Content may be subject to change. For professional advice tailored to your circumstances, please consult a registered migration agent (MARA) or a qualified lawyer before making a decision.