Australian Immigration Daily News

Can a person who is not the primary applicant for a visa that has been refused, and is not even aware that the visa application has been made on their behalf, be subject to a bar under section 48 of the Act when they make a further visa application?

The Full Court considered this question in the case of Minister v Immigration and Border Protection v Kim, (2014) FCAFC 47 (24 April 2014). The decision in the case is important for RMAs who are advising visa applicants who were previously “secondary applicants” on a visa application that was refused.

The factual background of this case was that the visa applicant, Ms Kim, had first arrived in Australia from South Korea when she was a small child, less than 3 years old. When she was 5 years old (in 2008), her father lodged an application for an “Other Family (Residence) (subclass 835)” visa. Ms Kim was included as a member of her father’s family unit in this application. Of course, Ms Kim was not aware that she had been included in this visa application, and the “blocks” on the application form above her name had been signed on her behalf by her father.  This application was refused by the Department.  Nonetheless, Ms Kim apparently remained “onshore” with the status of an unlawful non-citizen.

The litigation before the Full Court resulted from an application that Ms Kim lodged for a Higher Education Sector Student Visa in 2013, when she was 17 years old.  This application was rejected as “invalid” by a Departmental officer under section 48.

As RMAs will be aware, under “ordinary circumstances” Ms Kim’s application would have been barred under section 48, and thus “dead in the water”.  This is so because section 48 provides that a non-citizen who is in the migration zone and does not hold a substantive visa and was refused a visa (other than a bridging visa) for which the non-citizenhas applied can only apply for certain very limited classes of visas that are “prescribed” under clause 2.12(1) of the Migration Regulations.

The determinative question in the case was thus whether Ms Kim had “applied” for the “Other Family” visa that had been lodged on her behalf by her father when she was a young child and which had been refused by the Department.  The Court found that the answer to this question was a resounding “No”, since again, Ms Kim was unaware of the application at the time that it was made, did not sign the application (as she indeed could not have due to her tender age at the time that the application was filed) and did not participate in any way in the preparation of the application (which was undertaken on her behalf completely by her father).  

It is significant that in making its decision in this case the Court rejected an interpretation that was pressed by the Department to the effect that an application should be considered to have been “made” by any person who is named in the application.  Under this interpretation, a person in Ms Kim’s situation, who is included in a visa application as a member of a family unit when they are a dependent child and are completely unaware that they are being included in the application, would be subject to a section 48 bar if that application is refused.

In reaching its conclusion, the Court reviewed the legislative history relating to the incorporation of the section 48 bar into the Migration Act.  This legislative history suggests that the primary “mischief” that section 48 is intended to prevent is repeat applications by people who are seeking to delay leaving Australia.  This is not a form of “mischief” that would be associated with a person who has never previously applied for a visa in their own right, and whose only prior application has been made when they were a minor child and as a dependent member of the family unit of another visa applicant.

A truly consequential aspect of this decision is that people who came to Australia as children of parents who held provisional visas, and whose parents then had their applications for permanent residency status refused, will have an avenue to seek visas (including student visas) and will thus have an immigration pathway that they can follow – and a pathway that may not be barred by section 48!    

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837