The s 48 bar on further applications
Overview
Section 48 of the Migration Act 1958 (Cth) provides that a non-citizen who is in Australia and who has been refused a visa or has had a visa cancelled, and who does not hold a substantive visa, cannot make a valid application for most other visas while remaining in Australia. This is known as the s 48 bar. The bar applies unless the visa being applied for is of a class specified in regulations as exempt from the bar.
The s 48 bar is a significant restriction on the ability of refused or cancelled visa holders to seek another visa from within Australia. It is intended to prevent persons from lodging sequential visa applications as a mechanism to delay departure from Australia. Without the bar, a refused applicant could simply lodge a new application and obtain another bridging visa, cycling indefinitely through the visa system.
The bar does not prevent a person from departing Australia and applying for a visa offshore; it only limits their ability to make an onshore application.
Legal basis
- Section 48(1) — a non-citizen who has been refused a visa, or whose visa has been cancelled, and who does not hold a substantive visa, may not make a valid application for a visa (other than a prescribed visa) while in Australia
- Section 48(2) — the "prescribed visas" that are exempt from the bar, including protection visas (Subclass 866) under certain circumstances, bridging visas, and certain other classes
- Migration Regulations 1994 — regulation 2.12 — the prescribed visa classes exempt from the s 48 bar
How it works
When does the bar apply?
The s 48 bar applies when all of the following conditions are met:
- The person is a non-citizen in Australia
- They have been refused a visa or their visa has been cancelled (at any point in time, not necessarily recently)
- They do not currently hold a substantive visa
Once barred, the person cannot make a valid application for most visas while they remain in Australia. An application lodged in breach of the bar is invalid — it is not processed and no bridging visa is granted.
Visas exempt from the bar
Certain visas are exempt from the s 48 bar under regulation 2.12. The key exemptions include:
- Subclass 866 Protection Visa — a refused or cancelled visa holder who has not previously applied for a protection visa in Australia may lodge a protection application notwithstanding the bar (subject to other restrictions)
- Bridging visas — certain bridging visa applications are not subject to the bar
- Certain partner visas — a limited exception may apply in circumstances prescribed by the regulations
The practical effect
A person barred by s 48 who has no exempt visa to apply for has three options:
- Depart Australia and apply for a visa offshore
- Request Ministerial intervention under s 351 or s 417 (if the ART has made a decision)
- Apply for a protection visa (if eligible and not already refused)
Common misconceptions
A common misconception is that the s 48 bar only applies if the visa refusal was final and all reviews have been exhausted. In fact, the bar applies from the moment of the original visa refusal — even before any review is determined. A person on a bridging visa pending review who is ultimately found not to have been barred at the time they lodged a new application may have a valid application; a person who lodged while actually barred does not.