The section 48 bar is one of the most misunderstood restrictions in Australian migration law. It does not mean your options are finished. But it does mean your options have narrowed, and understanding exactly what remains available is essential before you make your next move.
What Is the Section 48 Bar?
Section 48 of the Migration Act 1958 applies when a person is in Australia and their visa application has been refused or their visa cancelled. In those circumstances, section 48 bars them from applying for most visa subclasses while they remain in Australia.
The bar is automatic. You do not need to be told about it for it to apply. If you are onshore and you have had a refusal or cancellation, section 48 is likely already in effect.
Which Visas Are Still Available Under Section 48?
The restriction does not apply to all visas. Certain subclasses are exempt from the bar and can still be applied for onshore. These include:
Protection visas (subclass 866), if you have a genuine claim to refugee or complementary protection. Partner visas in some circumstances, particularly where the sponsoring partner is an Australian citizen, permanent resident, or eligible New Zealand citizen. Certain bridging visas to maintain lawful status while other matters are resolved. Some temporary humanitarian visas.
The full list of exempt visa subclasses is contained in regulation 2.12 of the Migration Regulations. The list is technical and specific. Getting this wrong by applying for a non-exempt visa can create additional legal complications.
What If You Have No Exempt Visa Options?
If none of the exempt visas apply to your situation and you are barred from applying onshore, your practical choices narrow to two: depart Australia voluntarily and apply for a visa from offshore, or seek ministerial intervention.
Voluntary departure and offshore application is often the cleanest path. Once you have left Australia, the section 48 bar no longer applies and you can apply for whichever visa subclass you are eligible for from your home country or another country.
Ministerial Intervention
There is a power under section 417 of the Migration Act for the Minister for Immigration to intervene in an AAT case and grant a visa as an act of grace, or to lift a bar. This power is non-compellable, meaning the Minister cannot be forced to exercise it. It is generally only exercised in unique or exceptional circumstances, such as cases involving long-term ties to Australia, significant hardship, or compelling humanitarian factors.
Requests for ministerial intervention are not straightforward and success rates are low. This is not a realistic option for most people but may be worth exploring in genuinely exceptional cases.
What About Bridging Visas?
If you are currently in Australia and have lodged an application (even an unsuccessful one), you may be on a Bridging Visa. The section 48 bar does not prevent you from being on a Bridging Visa, but it does affect what you can apply for next. If you are on a Bridging Visa and your application rights under section 48 are exhausted, your right to remain in Australia becomes very limited.
Getting Advice Urgently
If you are in Australia and believe the section 48 bar applies to your situation, get advice from a registered migration agent or immigration lawyer as soon as possible. The longer you remain in Australia without a clear pathway forward, the more complicated your situation becomes.
At Migration Doctors, we work with clients who are in exactly this position, assessing which exempt visa options might apply, considering whether offshore application is the right strategy, and exploring whether a ministerial intervention request is worth pursuing.
Frequently Asked Questions
Does the section 48 bar apply if my visa was cancelled rather than refused?
Yes. Section 48 applies to both refusals and cancellations. If your visa was cancelled while you were in Australia, the bar applies in the same way.
Can I apply for a partner visa while subject to the section 48 bar?
Partner visas are listed as an exempt subclass in certain circumstances. Whether you qualify for the partner visa pathway despite the bar depends on your specific situation, including who your sponsor is and what your current visa status is.
How long does the section 48 bar last?
The bar applies as long as you are in Australia. If you depart and then return on a valid visa, the bar does not automatically carry over to affect future applications from offshore.