What Does The Section 48 Bar Actually Mean?
Are you concerned about the Section 48 bar and Schedule 3 criteria? Have you overstayed your Australian visa, had your visa cancelled or refused and now you want to apply for a partner visa or other substantive visa onshore?
Well, you may be able to apply, but in order to do so, you would need to go over the Section 48 bar and the schedule 3 criteria.
These are the regulations that will apply to whether or not you can have a successful onshore partner visa application (or other substantive visas) after you’ve overstayed an Australian visa or been refused/cancelled in the past.
In previous years, these were pretty easy to get waived but these days Immigration can be very strict and it is based on individual circumstances. First off, we need to know what each is and means in regards to your circumstances.
Let’s start with, what is section 48? Section 48 can be found in the Migration Act of 1958.
It is written in legalese and can be very complex and difficult to understand. We can go over what it means in a nutshell and how it may apply to you, which visas you can apply for if the section 48 bar applies to you and if you can have the section 48 bar waived.
Remember, this is in regards to applying for a visa onshore and will probably not apply if you are NOT currently in Australia. If this section 48 bar applies to you there are only specific visas you may apply for from within the country but this does include the partner visa.
Migration Act of 1958 – Section 48 requirement
Section 48 states that:
(1) A non-citizen in the migration zone (Australia) who:
- (a) does not hold a substantive visa (meaning, if you hold only a bridging visa or no visa at all); and
- (b) either:
- (i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B (can look up these sections), 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.
Please note that if Section 48 applies to you, then you as the applicant can only apply for a visa from within Australia if it is listed in Regulation 2.12(1) of the Regulations.
Regulation 2.12(1) lists the following as the visas that can be exceptions to the section 48 bar:
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This means that if Section 48 applies to you, then you may find you have limited options in applying for a visa from within Australia, but this does include the Partner visa.
Don’t get down just yet, not every refusal or cancellation will automatically lead to Section 48 being applied against you, and even if it does, there may be a way or so around it, depending on your personal circumstances.
CONTACT US FOR FURTHER INFORMATION.
ONE derland Consulting has extensive experience in dealing with 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.
To find further information on Partner visa’s in Australia and your eligibility, please contact our office on (+61) 8 9477 5831 or email: [email protected]
