Section 48 — Non-citizen refused a visa or whose visa cancelled — may only apply for certain visas
Text of provision
for particular visas
(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas); may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1A) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:
(i) the application has been finally determined; or
(ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor; may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1B) If:
(a) an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and
(b) the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d); then, for the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.
(2) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(da) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.
(3) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.
(4) In paragraphs (1)(b) and (1A)(b): Migration Act 1958 115 Part 2 Arrival, presence and departure of persons Division 3 Visas for non-citizens
(a) a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and
(b) a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.
Plain English
Section 48 applies to a non-citizen who is in Australia and either: has had a visa application refused (other than a refusal for an invalid application); or has had a visa cancelled. Such a person may only apply for a visa of a class specified by the Minister in a legislative instrument.
The prescribed classes are set out in Ministerial Instrument. They are limited and include: protection visas (Subclass 866), certain bridging visas, and other exceptional visas. Most substantive temporary and permanent visa classes are not available to persons who are "section 48 bar" affected.
Practical effect
The s 48 bar is a powerful restriction. Once a person is barred, they cannot simply lodge a new temporary or permanent visa application while in Australia — they would need to depart and apply offshore, or be covered by a limited exception.
The s 48 bar does not prevent a person from seeking judicial review of the original refusal or cancellation. If that review succeeds and the original decision is set aside, the bar may no longer apply.
Section 48A provides an additional, absolute bar — once a protection visa application has been refused (or the person does not apply within the required period), no further protection visa applications can be made by that person while in Australia, absent limited ministerial discretion under s 48B.