Can Section 48 Bar be Waived?

Definition of Section 48 Bar

Section 48 of the Immigration Act imposes restrictions on whether a visa is refused or cancelled while in Australia. In particular, it prevents the applicant from applying for a separate visa or re-applying for a visa while in Australia.

This process is known as the ‘Section 48’ bar and can have a negative impact on the applicant’s ability to legally settle in Australia. However, this bar will not apply to all visa applications. Therefore, it is important to differentiate the conditions that will be involved.

When Does the Section 48 Bar Work?

Section 48 of the Immigration Act will apply if:

  • The applicant is in Australia;
  • Applicant’s visa application has been rejected or cancelled; and
  • Applicant currently do not have a valid visa

 

In terms of section 48, the applicant will not be able to apply for an additional visa if the applicant is still residing in Australia. If the applicant is leaving the country, he or she may be eligible to apply for a visa outside of Australia.

 

Effect of Section 48 bar: Bridging Visa holders

As advised by BSMQ, if the applicant is currently on a bridging visa and has been invited to submit documents to the BSMQ for subclass 190 or 491 visa, he or she must notify Business and Skilled Migration Queensland of any previous visa revocation or cancellation.

 

If the applicant receives a visa refusal or cancellation while on a bridging visa, he or she may be subject to section 48 – which means they cannot file a government-selected (and many other visas) visas onshore.

 

According to the FY20-21, BSMQ is not processing Section 48-restricted applicants. This will be updated on FY21-22.

 

If visa applicants are restricted to section 48, BSMQ cannot nominate for a visa 190 or 491 and we request that the application be withdrawn.

 

Can I Refer My Visa Decision via AAT?

If the government cancels or rejects the visa and section 48 applies, the applicant can appeal the decision to the Administrative Appeals Tribunal (AAT). The visa is denied by the government, the applicant will receive a notice from the Department of Home Affairs explaining the applicant’s rights to the application.

 

If the applicant qualifies for AAT, the court may review the entire application. They can then decide whether to agree, differ, or press the Department’s decision and make a new decision. The court may also issue a decision to the Department of Home Affairs (DOHA) to review the matter with specific guidelines.

 

How can Migration Guru help you?

Got a section 48 bar and want to file a complaint?

We will help you explore visa options and secure the application. Migration Guru has experience in immigration and visa application in Australia, and our immigration agents and attorneys have extensive knowledge of legal requirements, eligibility criteria, and supporting documentation required.

Simply dial 07 3036 3800 or email: info@migrationguru.com.au and let us help you start with your way towards obtaining an Australian visa.

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