Some (or perhaps many) have heard the term “section 48 barred”. However, the workings of Section 48 can be complex to understand.
Broadly speaking, Section 48 of the Migration Act prevents visa applicants from lodging another substantive visa application whilst in Austalia (unless exemptions apply), if the visa applicant had their visa refused or the visa was cancelled during their stay.
This mechanism ensures the integrity of the programme and prevents excessive lodgement of vexations applications.
For example, if an applicant holds a substantive visa and their visa is refused whilst there are still a holder of a substantive visa, section 48 of the migration Act will not apply.
However, if an applicant does not hold a substantive visa and their subsequent visa application is refused, they could be section 48 barred. Meaning, the individual is restricted from applying for another visa whilst in Australia.
Situations can however become quite complex. For example, if a person holds a substantive visa and lodges another visa application, the initial substantive visa expires and they lodge a second substantive visa with the Department. The person now has two visa applications processing with the Department of Home Affairs. If the second substantive visa is refused and their first substantive visa is approved, they are not caught by s48. This is due to the fact that they eventually became a holder of substantiative visa and the refusal of the second application does not therefore enliven s48.
A person who does not hold a substantive visa is anyone who is a holder of a bridging visa or criminal justice visas.
It is also important to remember that s48 will not come into force if the application is deemed invalid (that is, it does not meet schedule 1 criteria associated with the procedure of lodging the application i.e. paying incorrect fee or using the wrong form).
Once a person is s48 barred, it becomes extremely difficult to lodge another visa application whilst they are in Australia. This is because the applicant will need to prove compelling or compassionate circumstances (meaning, circumstances strong enough to sway a decision maker to make a favourable decision on the application.
Another option is to go off-shore and lodge the application whilst in another country. However, given the current travel restrictions, it may not be a simple as it appears on face value. The best way to avoid s48 is to ensure that your application is always fully documented and decision ready before submitting the application with the Department of Home Affairs.