The Section 48 Bar

This is one of the most important and most commonly misunderstood points about the s48 bar. The cancellation limb of section 48(1) lists specific sections under which a cancellation triggers the bar: sections 109, 116, 134, 137J, and 137Q. Section 501 is not in that list. A visa cancelled under s501 does not trigger the s48 bar through the cancellation limb. However, a person whose s501 cancellation was preceded by a separate refusal of another visa application may still be barred through the refusal limb. Each history must be assessed individually.

No. Section 48(1)(b)(i) specifically excludes refusals under sections 501, 501A, and 501B from triggering the bar through the refusal limb. A refusal on character grounds under s501 alone does not trigger the s48 bar. This is a significant carve-out that is frequently overlooked. If the most recent refusal in a person's history was under s501, and no other triggering refusal or cancellation exists, the s48 bar may not apply at all, leaving all onshore visa options potentially available.

Yes, the partner visa (subclass 820/801) is prescribed under regulation 2.12 and can be applied for despite the s48 bar. However, additional validity criteria under regulation 1124B(3)(e) of the Migration Regulations apply to s48-barred applicants applying for an 820 visa. Whether those criteria are satisfied depends on the specific visa history and relationship circumstances. The partner visa is one of the most commonly used and most important exceptions to the s48 bar, but it should not be self-lodged without specific legal advice on whether the validity criteria are met in your particular situation.

From 13 November 2021, yes, for specific visa classes. Subclasses 190 (Skilled Nominated), 491 (Skilled Work Regional), and 494 (Skilled Employer Sponsored Regional) were added to the regulation 2.12 prescribed list and can now be lodged onshore despite the bar. Before November 2021, none of these could be applied for onshore by s48-barred applicants. For the 190 and 491, state or territory nomination or sponsorship is required. For the 494, employer sponsorship and nomination in a regional area is required. Each state and territory has its own policy on nominating applicants subject to the s48 bar.

No. Section 48 is an onshore bar. It only applies to applications made while a person is in the migration zone (in Australia). A person who departs Australia and applies for a visa from offshore is not affected by the s48 bar at all. The offshore application is assessed purely on its merits. This is the most common resolution to the s48 bar for people who do not qualify for any of the prescribed onshore exceptions. However, departure must be carefully planned: the bridging visa held must allow departure and re-entry, and other factors such as Public Interest Criterion 4014 and the specific visa applied for offshore must be properly assessed before departing.

It depends on the state or territory. Some states actively accept and assess nomination applications from persons subject to the s48 bar, while others have policies that effectively exclude s48-barred applicants from their programs. The amendment that added the 190, 491, and 494 to the regulation 2.12 prescribed list in November 2021 was partly motivated by state governments wanting to be able to nominate skilled workers who were barred and could not otherwise apply onshore. The specific state's current policy must be checked at the time of applying, as these policies change and vary significantly between jurisdictions. We can advise on which states are most receptive in your circumstances.

The ART cannot directly lift the s48 bar. However, if the refusal or cancellation that triggered the bar is the same decision being reviewed by the ART, and the ART sets that decision aside and grants or remits the visa, then the triggering event is removed and the bar ceases to apply. Pursuing ART review of the underlying decision is therefore one of the most powerful ways to address the s48 bar, because a successful outcome eliminates the bar entirely rather than working around it. This is why it is so important that ART review rights for the refusal or cancellation that triggered the bar are exercised within the applicable deadline.

Being unlawful in Australia while subject to the s48 bar compounds the immigration problem significantly. Periods of unlawful status are recorded and must be disclosed in all future visa applications. They affect eligibility under PIC 4014, which can prevent visa grant for an offshore application unless the required period has passed. They can also affect discretionary considerations in ART reviews and ministerial intervention requests. The longer the period of unlawfulness, the more complex the resolution strategy becomes. If you are currently unlawful and subject to the bar, obtaining a bridging visa to restore lawful status should be the immediate priority while the broader strategy is being developed.

The Federal Court cannot directly lift the s48 bar as a standalone order. What it can do is set aside the underlying refusal or cancellation that triggered the bar where that decision was affected by legal error. If the underlying decision is set aside and the visa is restored or the matter remitted, the trigger for the bar is removed and the bar itself falls away. Federal Court review is for legal error in the underlying decision, not a general avenue for relief from the bar. Whether a legal error exists in the decision that triggered the bar requires a specialist legal assessment of the decision and the record.

Most work visas including the 482 (Skills in Demand), 186 (Employer Nomination Scheme), and 485 (Graduate) are not prescribed under regulation 2.12 and cannot be applied for onshore by a person subject to the s48 bar. The exceptions since November 2021 are the 190, 491, and 494 skilled visa classes, which are now prescribed. Student visas are also generally not on the prescribed list. For work and student visa goals, the most common pathway for an s48-barred person is to plan a departure from Australia, apply from offshore, and return once the new visa is granted. The offshore strategy, including timing and visa type, must be properly planned.

Yes, in several ways. An application that is invalid due to the s48 bar will be rejected by the Department as invalid, meaning it was never a valid application at all. This has different consequences from a refusal, but it adds another entry to the person's immigration record that must be disclosed in future applications. In some circumstances, lodging an invalid application can also affect eligibility for or the conditions of a bridging visa. Where fees have been paid, refund arrangements apply but not always in full. Lodging anything without first confirming it is a valid application is a mistake that has real consequences for future applications.

No. Section 48 only applies to a person who does not currently hold a substantive visa. If you still hold a valid substantive visa at the time you want to make a new application, the s48 bar does not apply, even if a prior application was refused. You can apply for any visa class you are eligible for while your current substantive visa remains valid. The bar only becomes relevant if and when the current substantive visa ceases, by expiry, cancellation, or otherwise, and the prior refusal has not been resolved. This is why managing the timing of applications carefully is important while a substantive visa is still held.

Section 48A is a separate and distinct provision that applies specifically to protection visa applications. Where a person has had a protection visa application refused or cancelled while in Australia, section 48A prevents them from making any further onshore protection visa application. The key difference from section 48 is that s48A is a more targeted bar applying only to protection visas, and it is not limited by the same carve-outs that apply to s48. Section 48B gives the Minister the power to determine that s48A does not apply to a particular person where the public interest warrants it. This ministerial power under s48B relates specifically to the s48A protection visa bar, not the general s48 bar that applies to all other visa classes.

The answer depends on whether you have previously had a protection visa refused or cancelled onshore. If you have not, then the general s48 bar does not prevent a protection visa application, and certain protection visa classes including the subclass 785 (Temporary Protection Visa) and 790 (Safe Haven Enterprise Visa) are prescribed under regulation 2.12. If you have previously had a protection visa refused or cancelled onshore, then section 48A applies and prevents a further protection visa application unless the Minister exercises the power under section 48B to lift the s48A bar. Whether a protection claim is viable and which provision applies requires careful assessment of the specific history.

No. The s48 bar does not expire with the passage of time. It remains in force until the person either departs Australia (removing the bar for offshore applications), successfully applies for one of the prescribed onshore visa exceptions and is granted a substantive visa, or the underlying refusal or cancellation that triggered the bar is overturned by the ART or a court of law. There is no mechanism by which simply waiting resolves the bar. The only way to address it is through action, whether that is a prescribed onshore application, a departure strategy, or a legal challenge to the underlying decision.

This depends entirely on which type of bridging visa you hold. A Bridging Visa A (BVA) ceases on departure unless you have also been granted a Bridging Visa B (BVB), which is a specific travel visa that allows departure and return while the BVA's underlying purpose remains on foot. Bridging Visa C, D, and E generally do not permit travel and cease upon departure. Departing on a BVC or BVE without a separate travel arrangement typically means losing your lawful status in Australia and being unable to return without a grant of a new visa from offshore. Check your bridging visa conditions and obtain legal advice before any departure.

Public Interest Criterion 4014 (PIC 4014) is a visa grant criterion that applies to most visa classes and can prevent visa grant where a person has been an unlawful non-citizen in Australia or has had a visa cancelled for certain reasons. It operates separately from the s48 bar. Even if a person resolves the s48 bar by departing Australia and applying offshore, PIC 4014 may prevent the offshore visa from being granted unless the applicable time periods have passed. PIC 4014 typically requires that a person has not been an unlawful non-citizen in Australia after a specified date, or that at least three years have passed since departure. This must be assessed as part of any offshore departure strategy.

Section 48B specifically gives the Minister the power to determine that section 48A does not apply to a particular person. Section 48A is the protection visa-specific bar, not the general s48 bar. There is no direct equivalent ministerial power under the Act to lift the general s48 bar for all other visa classes. For persons subject to the general s48 bar who do not qualify for any prescribed exception, the pathways forward are departure offshore, ART review of the underlying decision, or Federal Court challenge. Ministerial intervention under other provisions such as s195A (for detained persons) may be relevant in specific circumstances, but these are distinct powers and not a direct equivalent of the s48B power.

The cost of the initial assessment consultation is fixed and discussed before the meeting. The cost of any subsequent work, whether preparing and lodging a prescribed visa, planning and managing a departure strategy, or pursuing ART review or Federal Court proceedings, depends on what is required and is quoted as a fixed fee after the assessment. Our 2-day cooling-off period applies to all engagements, meaning you can engage us and receive the full assessment without committing to any further work until you have had time to consider the advice. We discuss costs openly at the first consultation because the financial picture is part of making an informed decision about which pathway to pursue.