Does the Section 48 bar apply to my situation?
I know no one wants to hear it, but if you are currently not the holder of a substantive visa (such as a Bridging Visa or you have overstayed and do not currently have a valid visa at all), and you have had a visa refused or cancelled, then it is likely Section 48 will apply to you.
Here’s an example as to when Section 48 Bar WILL apply to you
Kayla came to Australia in March of 2014 on a Student Visa to study Diploma of Early Childhood Education.
Her Student Visa was due to expire on 10 May 2015. On the 1st of May 2015, Kayla put in a second Student Visa application to study another course in Certificate IV in Early Childhood Education.
When she applied for this second Student Visa, Kayla was granted a Bridging Visa, which came into effect on the 11 May 2015; this was on the day after the expiration of her previous Student Visa.
On the 22 June 2015, Kayla’s second Student visa was refused, and she was assessed by the Immigration case officer, as not being a genuine student. This would mean that she is now subject to the Section 48 Bar, as she does not currently hold a substantive visa and has had a visa refused.
Here is an example as to when the Section 48 bar WILL NOT apply to you!
Brian, an experienced Chef from The United States, is on his first Working Holiday visa. A few months into his stay in Australia, Brian finds a really good job working for a top restaurant and is offered a subclass 457 visa sponsorship by the company.
Brian and his employer submit the 457 visa, however due to Brian not providing enough evidence to prove his skills and work experience; his 457 visa is refused while he is still holding his Working Holiday visa.
As Brian is still the holder of a substantive visa, Brian would NOT be subject to the Section 48 bar, even though he has had a visa refused in Australia.
Is there anything you can do about the Section 48 bar if it applies to you?
Even if your circumstances are similar to the first example listed above, there is still a list of visas you can see if you are eligible to apply for under the Regulation 2.12.
Another option is that Section 48 Bar does not prevent you from departing Australia, applying for a subsequent visa and then returning to Australia while you wait for the outcome of the new visa application. There is also a possibility of a waiver on the Section 48 bar in limited cases.
As with most waivers, a waiver application can be simple or very complex. In most cases, however the Section 48 bar can only be waivered on consideration on a specifically written submission and supporting documentation to go with it.
There may be specific visa criteria for the new visa being applied for, so I strongly recommend speaking to a Migration Agent and receiving sound and correct Migration Advice on this avenue before going any further.
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ONE derland Consulting has extensive experience in dealing with a complex cases of various type of partner visas in which the applicants have had a visa refusal/cancelled or have overstayed and become an unlawful non-citizen.