Section 48 of the Migration Act 1958 is a complicated and vexed legislative provision for applicants who find themselves on the wrong end of it.
In short, s48 says that if you are in Australia as a non-citizen, do not hold a substantive visa and have (since you last entered Australia) either:
– been refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B), or
– had your visa canceled under a specified provision (sections 109, 116, 133A, 133C, 134, 137J or 137Q)
you may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
The definition of a substantive visa includes all visas other than:
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.
Which visas can I apply for?
If the s48 bar applies to you, you can only apply for one of the visas listed in Regulation 2.12(1) of the Migration Regulations 1994:
(a) Partner (Temporary) (Class UK);
(b) Partner (Residence) (Class BS);
(c) protection visas;
(ca) Medical Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(h) Bridging A (Class WA);
(j) Bridging B (Class WB);
(k) Bridging C (Class WC);
(l) Bridging D (Class WD);
(m) Bridging E (Class WE);
(ma) Bridging F (Class WF);
(mb) Bridging R (Class WR);
(o) Resolution of Status (Class CD);
(p) Child (Residence) (Class BT).
I am barred by s48 but want to apply for a different visa – what are my options now?
In some circumstances, it may be possible to petition the Minister to lift the section 48 bar in order to make a specific visa application. We have seen this most commonly in relation to refugee applicants who are subject to the ‘Fast Track’ visa process.
For other visa applicants, however, it may be preferable to leave Australia, apply for a different visa type from outside Australia and return while awaiting the outcome of that subsequent visa application.
As the latter application was made offshore, you will not be subject to s48. We would suggest seeking advice before embarking on this approach to ensure you aren’t left stranded overseas, however.
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