Student visa refused or cancelled – What is Section 48 bar?

 

If you have had a visa cancelled or refused since last arriving in Australia and you are either unlawful (that is – you do not hold a visa) or you hold a bridging visa, you are then in what is called “section 48 barred” which means that you cannot lodge other visa applications while you are in Australia (unless, very limited, exemptions apply). This means that, once your visa is cancelled or application refused, you would normally need to leave Australia.

 

Becoming unlawful in Australia or overstaying your visa can negatively affect future visa applications and eligibility for citizenship. While there are exceptions to what is referred to as the “section 48 bar”, applicants will need to demonstrate compelling and compassionate circumstances in order to be able to overcome it.

 

Visa Exceptions to Section 48 Bar for onshore applications:

  • partner visas
  • protection visas
  • bridging visas
  • medical treatment visas
  • subclass 444 visas for New Zealanders
  • Child visas
  • Border visas
  • Resolution of status visas

 

As of 13 November 2021, a section-48-bar waiver is available for skilled visa applicants:

  • Skilled visa (Subclass 190)
  • Skilled visa (Subclass 491)
  • Employer sponsored regional visas (Subclass 494)

 

Can I appeal the refusal or cancellation of my visa?

Yes, if the Department of Home Affairs cancels or refuses your visa, you can appeal the decision in the Administrative Appeals Tribunal (AAT).

The AAT will then decide to agree with, vary, or set aside the Department’s decision and make a new decision. The AAT can also resubmit the decision to the Department for reconsideration.

 

Often, the best way to get around a section 48 bar is to simply go offshore and lodge a new visa application while you are living in another country – however, you will need to ensure that the application is strong enough that you do not risk another refusal on your record and inability to return to Australia. 

Invalid application

An invalid application means that when you apply for a visa and the Department of Home Affairs decides not to process your application because it doesn’t meet the valid application criteria, the application is not considered, which means that it cannot be approved or refused. If your visa application has been deemed invalid (not refused), then Section 48 bar does not apply. 

 

What if I have a visa and my application is refused while holding another visa?

Section 48 bar will not be considered if you hold a substantive visa despite the refusal of another visa.

A substantive visa is any visa excluding:

  • criminal justice visa
  • enforcement visa
  • bridging visa

 

Facing a student visa refusal and the implications of Section 48 can be challenging and disheartening. However, it’s important to understand your situation thoroughly and explore all available options.  With careful planning, professional guidance, and perseverance, you can find a pathway to achieving your educational and personal goals in Australia.

 

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