Understanding Section 48 of Australia's Migration Act
Section 48 of the Australian Migration Act is one of the most frequently asked questions about legal provisions for migrants in Australia. This section, known as the “Section 48 bar,” prevents certain applicants from making new visa applications while they are in the country. We will look at Section 48, who it affects, and what options exist for those who are impacted by this legal provision.
What is Section 48 of the Migration Act?
Section 48 is a provision of Australia’s Migration Act that prohibits certain individuals from lodging new visa applications in Australia if they have had a visa refusal or cancellation while in the country. This restriction applies to individuals who are in Australia without a substantive visa (i.e. a visa other than a “bridging” or “provisional” visa) and who have had a visa application previously refused or a visa cancelled.
Who is Affected by Section 48?
Section 48 primarily affects those who:
- Have had their visa application refused while in Australia.
- Have had a visa cancelled in Australia.
- Do not have a substantive visa at the time of attempting to lodge a new visa application.
Therefore, if a migrant is in Australia on a Bridging Visa due to a refused or canceled visa, Section 48 could prevent them from lodging a new visa application while in Australia.
What Options Exist if You Are Affected by Section 48?
For those affected by Section 48, there are still some alternatives. Below are some viable options:
- Applying for a Section 48 Exception
There are some visas where Section 48 does not apply, allowing certain applicants to submit their applications despite the barrier. These visas often include limited options, such as the Protection Visa (Subclass 866), and in some cases, certain partner visas. However, these options are very specific and depend on the legal requirements of each visa. - Leaving Australia and Applying for a New Visa from Abroad
Another common option is to temporarily leave Australia and apply for a visa from another country. Being outside of Australian territory, the Section 48 restriction does not apply. However, this option entails additional costs and can be a difficult decision for those who have family, work or commitments in Australia. - Lodging an Appeal to the Administrative Appeals Tribunal (ART)
If the visa refusal is recent, the applicant can lodge an appeal to the Administrative Review Tribunal (ART). This process allows the tribunal to reconsider the decision of the Immigration Department. Importantly, the appeal itself does not remove the Section 48 barrier, but it does allow the applicant to remain in the country on a bridging visa while the case is being reviewed.
Consequences and Precautions
Section 48 can significantly complicate the immigration process for affected applicants. For this reason, it is essential that migrants seek appropriate advice before taking any action. Working with a registered migration adviser can be invaluable in understanding the options and risks in each specific case. A poor decision can result in the inability to remain in Australia or lengthy delays in the immigration process.
Final Recommendations
If you are facing a visa refusal or have had a visa cancelled, it is crucial to act quickly. The decisions you make can affect your ability to lodge a new application in Australia. The best advice is to:
- Consult with a lawyer or registered migration agent who is familiar with Section 48 and its implications.
- Evaluate the available options and understand the limitations of each.
- Consider the time and resources required for alternatives that require leaving the country or filing an appeal.
Conclusion
Section 48 of the Australian Migration Act can be a serious obstacle, but it is not insurmountable. Understanding its implications and acting with caution can make all the difference in the outcome of your migration process. With the right help and strategic planning, it is possible to find alternatives that will allow you to move forward towards your migration goals in Australia.
How can we help you?
Our team of migration experts has years of experience in handling protection applications. We offer:
- Detailed eligibility assessments.
- Assistance in preparing and submitting your application.
- Representation and support throughout the process.
- Advice on your rights and obligations in Australia.
If you need guidance on how to begin your Section 48 application process under the Australian Migration Act, contact us today for an initial consultation.
FAQs
Section 48 is a legal provision that prevents certain migrants in Australia from making new visa applications if they have had an application refused or a visa cancelled while in the country. This barrier applies when the migrant does not have a substantive visa at the time.
It affects people who have had a visa refused or had a visa cancelled in Australia and who are currently in the country without a substantive visa. This includes those who are in Australia on a Bridging Visa.
The main options include:
- Making a visa application that is not affected by Section 48 (such as a protection, partner or child visa, where applicable).
- Leaving Australia and applying for the visa from outside the country.
Locating an appeal to the Administrative Appeals Tribunal (AAT) if the refusal decision is recent.
Yes. Section 48 only applies to those who are in Australia, so when you leave the country you can apply for a visa from abroad. However, this may have practical and financial implications as it involves travelling outside Australia.
Filing an appeal at the Tribunal allows the applicant to remain in Australia on a bridging visa while the case is being reviewed. However, the specific time will depend on the tribunal process, which can vary from months to over a year.
No, an appeal does not remove the Section 48 barrier, but it does allow you to remain in the country while the AAT reviews your case. This can provide additional time to plan your next steps.
When leaving Australia to apply for a new visa, there is no guarantee that you will be allowed to return. You may need an additional visa to re-enter and may be subject to an additional risk assessment.
Yes, having a registered immigration agent or attorney is highly recommended. Section 48 is complex and varies on a case-by-case basis, so a professional can guide you through your options and strategies for the best possible outcome.
