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

  1. Ravdeep

    Hi
    This is Ravdeep. I got student visa extension refusal im 2017 . My case is in mrt.i lodged my 187 visa and went back to india. Can i come back to australia?

    Reply
  2. Farhan

    Hello. My name is farhan. I got my student visa refused 4 days ago and I am now about to lodge an appeal for MRT. Just yesterday i got my ACT nomination from ACT home affairs. I want to ask, can i still apply for 190 offshore? If so, then would it be possible for me to come back on the bridging that i will get after applying for the appeal (obviously I’ll get bridging B to travel). Please anwer this question.
    Regards

    Reply
    1. Peng Cheng Post author

      Hi Farhan,
      Yes you may be able to do that.
      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
  3. sammy

    HELLO my name is sammy i am on aat of 187 refusal but i already applied new 187 offshore . if i cant win AAT of 187 refusal can i get briging visa c behalf of my new 187 offshore application thanks

    Reply
  4. Bharadwaj

    Hello,

    I hold a current student visa and my husband’s student visa was refused at the time applying for an extension. Before the decision was taken, he finished his master’s and now got his AAT decision as affirmed. My question is: Can he apply to be my dependent as I have a valid student visa here and stay here? Or do we have to re appeal to the federal and apply for BVB and goto home country and apply for a partner visa and re enter Australia. Will be waiting for your response. thank you.

    Reply
    1. Peng Cheng Post author

      Hi Bharadwaj,
      I’m sorry but it would take me a bit of time to answer your queries since these aren’t really simple ‘yes or no’ questions. There are a few legal complications that I would need to explain in my response, and I would also need to spend some time to get relevant background history and information from you.
      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
  5. Gabriela

    Hi Peng,
    Got a student visa refused in October 2016, appealed and the AAT refused it again; could I still apply for a partnership visa onshore considering I haven’t held a substantial visa for so long?
    Thank you so much for your help!

    Reply
    1. Peng Cheng Post author

      Hi Gabriela,
      You may be able to lodge a valid partner visa when you are in Australia.
      However, if you currently hold a bridging visa when you lodge your partner visa in Australia, then you need to satisfy the additional requirements of demonstrating that there are compelling reasons for the grant of your partner visa – these are called ‘Schedule 3’ requirements.
      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
  6. saraa ali

    hi, my name is sama
    i came to Australia on 457 visa in July 2016, i was working for a company for 6 months and after that the company didn’t renew my contract and i searched for other sponsor , my nomination was filed in Feb 2017 , after waiting for 11 months i got a refusal letter from the immigration department stating that the company’s turnover is not satisfactory in January 2018. Within 60 days of getting this refusal letter , i applied for student visa on march 10 and awaiting my student visa , In the mean while i got a letter from department that i breached my 457 visa condition as i was not working for more than 90 days ,i have 5 business days to respond.what i can do , i have not breached visa condition as i have applied for the nomination within 90 days firstly and after refusal i applied for student visa within 90 days but in the letter sent by department they only mention about the first company i came on ..Please help what best i can do.

    Reply
    1. Peng Cheng Post author

      Hi Saraa,
      I’m sorry but it would take me a bit of time to answer your queries since these aren’t really simple ‘yes or no’ questions. There are a few legal complications that I would need to explain in my response, and I would also need to spend some time to get relevant background history and information from you.
      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. Arun

    Hi,

    My name is Arun. I am in need of information what can be done on my visa refusal back in 2013.
    I have applied for student visa in 2013, due to some family issues, own family members itself they had filed a case on me also on my family memebers due to family issues, and they same has informed about it to the visa officer.

    Visa case officer has asked me to reply back giving reason and I could not reply back since I missed out to check the mail, they have taken their decision for not responding back and stated that I am not a bonafed student and also since I have police case. They have rejected that under A5 45 section.

    ( The significance of the false information provided in the application form is
    substantial, as acceptance of this information as genuine could have had a positive
    influence on the application. You have not provided any information to demonstrate
    the existence of extenuating circumstances to justify making an exception to the
    character requirement (A5.45b). )

    What can be done now to revoke that bad remark on me now.

    Please do help.

    Thank you.

    Reply
    1. Peng Cheng Post author

      Hi Arun,
      I’m sorry but it would take me a bit of time to answer your queries since these aren’t really simple ‘yes or no’ questions. There are a few legal complications that I would need to explain in my response, and I would also need to spend some time to get relevant background history and information from you.
      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. Tiajuana

    Hi, my partner got deported last year november Back to NZ under section 116, just want to know when he is able to apply for a visa to come back to aussie & what visa to apply for? I really dont know who to see or talk to about this situation

    Reply
    1. Peng Cheng Post author

      Hi Tiajuana,
      I’m sorry but it would take me a bit of time to answer your queries since these aren’t really simple ‘yes or no’ questions. There are a few legal complications that I would need to explain in my response, and I would also need to spend some time to get relevant background history and information from you.
      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
  9. Nishith Prajapati

    Hi Peng,
    Me and my wife came to Australia on student visa in December 2015. After completing 3 trimeater, we got the opportunity to apply PR by Visa 187 in January 2017. Later on, in November 2017, my wife leave the study(student visa finishes as well)and we moved to bridging visa A. Now, my employer doesn’t want to continue and he withdraw our nomination(note that it’s not rejected) just 3 days before. Now, we have two option, either we can withdraw our file within 28 days or it will be rejected after that time. So, meanwhile, can she again apply for student visa if we withdraw our file? Do we need to go offshore to apply student visa again or we can apply onshore? As she wanted to finish her study. Thanks

    Reply
    1. Peng Cheng Post author

      Hi Nishith,
      You can’t apply for a student visa as a bridging visa holder. You need to be offshore.
      PC

      Reply
  10. Rozetta Moses

    Hi Peng,

    My Post Graduate Work VISA expired on 13 November 2017. I was trying to obtain the necessary IELTS score but wasn’t successful. Because I wanted to stay in Australia, I applied for a Diploma in IT. (I had previously finished a Master in Commerce). My student VISA got rejected in January 2018 just as I got the necessary IELTS results! I have applied for a MRT. My partner who is planning to apply for a Master in Teaching in June 2018.
    my questions are:
    1. Can I be a dependant on my Partner’s student VISA even though I have a Bar 48 on my visa?
    2. If he adds me on his application, will it be rejected? Will it negatively affect my partner’s chance of getting his visa?
    3. Do I have to be overseas for him to add me on his application? He’s applying as an on-shore applicant.

    Thank you

    Reply
    1. Peng Cheng Post author

      Hi Rozetta,
      I’m sorry but it would take me a bit of time to answer your queries since these aren’t really simple ‘yes or no’ questions. There are a few legal complications that I would need to explain in my response, and I would also need to spend some time to get relevant background history and information from you.
      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. Heli shah

    Hi peng,

    We are lodging 190 visa offshore due to our MRT for 187 visa. My query is we are going only for 5 days to our country and coming back on bridging visa b. Is that ok to lodge offshore file during those 5 days..
    Thanks.

    Reply
  12. Raghu

    Hi Peng, I am on MRT. My wife is planning to apply for student visa from offshore, can I apply for dependent visa from offshore with her application. Thanks.

    Reply
  13. Anu

    Hi, My student visa was refused and my case is with MRT (lodge on 29/06/2017) and currently on bridging visa A. I’m going to finish my studies by 02/April/2018, so could I apply graduate visa 485? Please advice me. Thanks

    Reply
  14. Krishna

    Hi Peng,
    I have got my student visa cancelled by DIBP and now i am on mrt. I am confused of 2 situations
    1. Do i have study rights on mrt? I mean do i need to attend the college.
    2. How and when can i apply for work rights.
    Thank you

    Reply
    1. Peng Cheng Post author

      Hi Krishna,
      You need to check the conditions of the visa that you currently hold for your visa conditions and obligations.
      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
  15. Tommy c

    Hi,

    In 2015 Oct I applied for 187. nomination and my visa application were lodged at the same time and BVA were given to me and my wife. Right now employer nomination has been turned down. DIAC has sent me an email and ask for comment within 28 days.

    At this moment out BVA is still effective (but will be ceased soon as long as 28 days I withdraw my 187 application.

    Question is: can she apply for a student visa at this stage? COE has been issued and sch fees have all been paid. Thanks for yr help.

    Reply
    1. Peng Cheng Post author

      Hi Tommy,
      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
  16. 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
  17. 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
  18. 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
  19. 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
  20. 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
  21. 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
  22. 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
  23. 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
          1. Sam

            Thanks for you reply Peng

            What about 489 invites can have there decision onshore if they apply offshore because of AAT or they have to exit at the time of decision ?

  24. 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
  25. 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
  26. 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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