Why back in August 2012 I said “and then in Part 3 the bar created by Section 48 of the Migration Act for applicant’s who have had a previous onshore visa application refused or a visa cancelled onshore.” Well here it is.
On my Blog this is perhaps the second most asked and misunderstood area of immigration law. This is odd as Section 48 is quite blunt once you get past the basic jargon which is perhaps where the confusion is generated. To be clear this article only deals with Section 48 and not Section 48A or 48B which relate specifically to Protection visas.
This is what the relevant (for this article) parts of Section 48 say…
Section 48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
48 (1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i) after last entering Australia was refused a visa, other than a refusal of a bridging visa or 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), 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, but not for a visa of any other class.
(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.
First S48 only applies to onshore applications. Here it is very important to read about S48 (3) below.
Basically then S48 (1) says if you have had a visa application refused onshore or you have had a visa cancelled onshore you can only make a very limited number of other visa applications onshore. This is the list –
Partner (Temporary) (Class UK); Partner (Residence) (Class BS); Protection (Class XA); Medical Treatment (Visitor) (Class UB); Territorial Asylum (Residence) (Class BE); Border (Temporary) (Class TA); Special Category (Temporary) (Class TY); Bridging A/B/C/D/E/F/R; Resolution of Status (Temporary) (Class UH); Resolution of Status (Class CD); Child (Residence) (Class BT).
Most of these don’t apply to you and I’m not going to explain them. Some like an onshore Partner visa (here there are some restrictions) may be a way forward if you have a qualifying relationship with an Australian. Most people who have had a refusal or visa cancellation are not potential Protection visa applicants (Refugees / asylum seekers).
So basically it is really difficult to make any application once Section 48 (1) applies to you.
Section 48 (3) is basically a provision that is designed to stop people who have a Section 48 (1) onshore application bar from getting a Bridging Visa B and departing Australia temporarily, lodging an application while offshore and then immediately returning. As you can see above it says that such an applicant is taken to have been continuously in the migration zone despite that travel. Such an application will be returned as invalid.
It is possible to depart on a BVB but you must remain offshore until a decision is made on the application.
I note that the same provision (S48 (2)) also applies to an onshore visa applicant who has been removed under S198 and has returned to Australia under S 42 (2A) (d) or (e) – these are people who have been removed from Australia but have been returned because they were not allowed into their destination or have been returned to Australia by Court order – so again probably not you.
This is all again a little bit dense and complicated but this is the nature of this area of Immigration Law and its application to potential onshore visa applicants. Same advice here as last time – if you think this applies to your application get good professional advice before you do anything.
