Are You Barred From Making A Visa Application Due to Section 48?

 

Are you barred from making a further visa application due to Section 48 of the Migration Act? This is an issue which you may need to consider if DIAC has refused a previous visa application which you lodged, or if your visa was cancelled.

Section 48

If you do not hold a substantive visa, then this section will bar you from making a further ‘substantive visa’ application in the following circumstances:

  1. If since you last entered Australia, you have lodged a visa application and this application has been refused by DIAC. Exceptions: Section 48 does not apply if the refusal was in relation to a bridging visa application or if the basis of the refusal was due to character issue (i.e. a refusal under Sections 501, 501A or 501B of the Migration Act) or
  2. If your visa was cancelled under sections 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas) of the Migration Act.

A ‘substantive visa’ is defined as any visa that is not one of the following: 1) bridging visa, 2) criminal justice visa and 3) an enforcement visa.

Under Section 48(3), if you leave and re-enter Australia while holding a bridging visa, then you are deemed to have been continuously in Australia despite the international travel. This prevents bridging visa holders from using international travel has a means to avoid the application of Section 48.

Exceptions to the application of Section 48

Even if you’ve had a visa application refusal or visa cancellation, you can still lodge a valid application for the following types of visas: partner visas, bridging visas, Subclass 444 for New Zealand citizens and child visas (as well as a few other types of visas).

DIAC’s policy does not provide much further information in relation to the operation of Section 48. This is probably because the operation of Section 48 is pretty clear. This also means that except for the exception outlined above, there is really no way to get around the application of Section 48 if you’ve had a refusal or cancellation.

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772 thoughts on “Are You Barred From Making A Visa Application Due to Section 48?

  1. Samantha

    Hi Peng,
    I have applied for student visa after masters in Australia and I got refusal on the basis of not a genuine student and the rest all good with documentation and financial stuff.
    Recently I scored 8 bands in PTE, that means I’m having 75points now, do I get PR if I meet all requirements of Home affairs, or else there would be any problem in giving a positive decision as I have student visa refusal. Please help me in providing valuable information in regards to this.

    Thanks in advance.

    Reply
    1. Peng Cheng Post author

      Hi Samantha,
      I don’t think that your student visa refusal would affect your permanent residency application.
      PC

      Reply
  2. Pendy

    Hi Peng,

    I have a friend that having issue with her Australian visa. She got married in USA like a year ago with an Australian citizen. She is a korean citizen in USA. She had to forego her Visa application in US to come to Australia with her Husband. Things not working out after 8 months. Australia Immigration has been notified. She is expecting the Section 48 anytime soon.

    Now, she can’t really go back to USA anymore and she would rather to stay in Australia if possible. She intended to take a further study here but she is not sure if the section 48 will make her student visa application unobtainable. She understand that with section 48, she can’t apply the student visa on shore.
    Do you have any suggestion for her situation? or she should just abandon her plan to take a further study as people with section 48 have a very low chance being granted a student visa?

    Your assistance is much appreciated.

    Reply
    1. Peng Cheng Post author

      Hi Pendy,
      I’m sorry but such broad questions aren’t appropriate for these comment fields.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need assistance.
      PC

      Reply
  3. Melody

    Hie

    My 485 visa was refused yesterday because I had not done my skills assessment on time and I’ve been given 21 days to appeal or apply for another visa on limited Applications in Australia. Will I be allowed to apply for another graduate visa if I get a bridging visa or should I just continue with the appeal even if I know i will lose??what are my options if I want to remain legal in Australia

    Reply
    1. Peng Cheng Post author

      Hi Melody,
      You can appeal to the tribunal if you wish, and this would allow you to stay in Australia until the tribunal decides your appeal.
      Sorry we can’t provide visa eligibility advice in these comment fields as this is covered as part of our professional services.
      If you need to book a consultation to discuss your circumstances, please see Contact Us page and in relation to our Consultation Service.
      PC

      Reply
  4. Dushan

    Hi there, I got my protection visa refused a year ago and have applied for the aat to look into the decision. I am on a bridging visa C currently But after March this year i will be eligible to apply for a skills assessment as a motor mechanic. I want to know if i will have any issues when applying for subclass 190 and if i have to be outside Australia to do this.
    Ill be eagerly waiting for ur response.

    Reply
  5. Maria

    Hi Peng,

    My husband had a student visa refusal, he only applied to extend his course for 3 months and was denied for financial reasons. I am your partner and I am in the visa as a dependent of him. then we appealed and have the bridging A. Then, my question is the following, since he finished his course in November of 2017 and has no class, then we have the right to work full time ??

    Thanks Maria

    Reply
    1. Peng Cheng Post author

      Hi Maria,
      Please check your current bridging visa which will specify your work right conditions, including if you are able to work full-time and when. You may have a condition which prevents you from full-time work for the duration of your bridging visa.
      PC

      Reply
  6. mani

    hi
    i applied for 457 visa and my nomination has been refused, i applied for MRT , but now my employer has refused as he doesn’t want to go through MRT with me. can you advise me in my case.

    Reply
    1. Peng Cheng Post author

      Hi Mani,
      Sorry but I can’t provide advice in relation to your visa eligibility just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  7. Prince

    Hye I just refused for my student visa extension and now on mrt
    Can I apply partner visa with my Australian partner or with my Australian kids.
    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Prince,
      Sorry but I can’t provide advice in relation to your visa eligibility just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  8. Sandeep

    Hi Peng
    This is sandeep here, I’ve got my student visa refusal in June 17 and currently, I’m on MRT. I want to apply for RSMS and have found an employer. So, my question is when I lodge my RSMS file do I need to leave country? If yes then do I have to wait until the decision is made or can I come back after one day.
    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Sandeep,
      If you are holding a bridging visa, then you do need to be outside of Australia when you lodge but you can return to Australia once you lodge.
      PC

      Reply
      1. Sam

        Hey Peng,

        In Sandeep’s scenario, once he gets out of country, apply RSMS and enter back in Australia to wait for his decision. Does he have to exit Australia again while having a visa(RSMS) GRANT. If YES, then for how many days he has to remain outside Australia?

        Reply
  9. Jade

    Hi peng,

    Hellow my subclass 189 was refused and i dont have substantive visa. I appealed to tribunal. Now im invited with subclass 489. Im planning to apply BVB just to lodge offshore 489 and come back in Australia after 1 month. Is it possible?

    Reply
      1. Jade

        i have subclass 190 state nomination onshore but i cant lodge a visa onshore because im barred with section 48…im planning to apply for bridging Visa B and lodge offshore with onshore state nomination..is it possible?

        Reply
  10. Tshering

    Hi
    My case in AAT, due to my son’s disability my PR is refused which I applied through RSM 187 and almost one year, after completing my studies,I applied for Temporary graduates visa than applied for PR. Can my husband study and apply for student visa so that we all can stay back after refusal few more years so that sons can complete their high school.
    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Tshering,
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  11. Raj

    Good morning Peng,
    I had a student visa refusal in 2014 and I won that student visa through MRT and again I extended student visa. currently I am in student visa bridging BVA. I have invited regional skilled visa from Tasmanian government 489 visa.
    but when I try to apply through immi account. it won’t allow me to continue saying that you have wither previous visa refusal or don’t have substantive visa or location can not be confirmed.
    can’t I apply 489 from Australia?
    I have not visit overseas after visa cancellation.
    regards,

    Reply
    1. Peng Cheng Post author

      Hi Raj,
      Sorry but this sounds like an issue with the Department’s website/IT – you would need to contact the Department for this.
      PC

      Reply

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