If you have been refused a visa or had a visa cancelled in Australia, you will not be able to make a further application for most other Australian visas in Australia due to Section 48 of the Migration Act 1958 (the Act).
Section 48 of the Act states that:
A non-citizen in the migration zone who:
1. does not hold a substantive visa; and either:
2. after last enteringAustralia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
3. 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);
4. 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.
Importantly, if Section 48 applies, then applicants can only apply for a visa in Australia if it is listed in Regulation 2.12(1) of the Migration Regulations 1994 (the Regulations), which lists the following visas, amongst others, as exceptions to Section 48:
1. Partner Visas;
2. Protection Visas;
3. Medical Treatment Visas; and
4. Child Visas.
Some people think they can get around Section 48 by applying for a Bridging Visa Class B, leaving Australia temporarily, then applying for a new visa when they come back onshore.
However, under Section 48(3) of the Act, if you leave and re-enter Australia whilst holding a bridging visa, then you are deemed to have been continuously in Australia despite the international travel. This prevents bridging visa holders from using international travel as a means to avoid the application of Section 48.
Importantly, Section 48 only applies to bar onshore applications for people who do not hold a substantive visa. If you lodge an application whilst you hold a substantive visa, and it is refused, if you continue to hold another substantive visa after the refusal, you can still make another application of any given variety.
If Section 48 applies to you, this also does not prevent you from departing Australia, applying for a subsequent visa, and returning to Australia if your visa is granted. However, you should be aware that if you leave Australia as a unlawful non-citizen, or the holder of a Bridging Visa Class C, D or E granted after a specified timeframe, and apply for a temporary visa offshore, you may be prevented from being granted a visa by virtue of Public Interest Criterion 4013 (PIC 4013) or Public Interest Criterion 4014 (PIC 4014).
Any application for a new visa that requires meeting PIC 4013 or PIC 4014 cannot be granted during the exclusion period. The standard exclusion period is for three years from the date you leave Australia while holding no visa or holding a BVC, BVD, or BVE.
In some circumstances, a waiver of PIC 4013 or PIC 4014 is possible. If you apply for a visa that requires PIC 4013 or PIC 4014 to be met, then you can still apply for a waiver if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident. You should provide detailed submissions about how you meet the waiver and appropriate supporting evidence with your application.
However, despite the operation of PIC 4013 or PIC 4014, if an applicant fails to satisfy the relevant criterion, if the new visa being applied for does not have PIC4013 or PIC4014 as a criteria for the grant of that specific visa, then applicants can still have another visa granted. For example, PIC4013 and PIC4014 do not apply to the Employer Nominated Scheme (Subclass 186), Regional Sponsored Migration Scheme (Subclass 187) or Partner visas, just to name a few. Meaning that even if applicants have had a visa cancelled or departed Australia after being unlawful, they may still be eligible to have the above mentioned visas granted.
If you have been refused a visa or had a visa cancelled, or if you are affected by PIC 4013 or PIC 4014, you should contact us immediately so we can assist you in addressing this complex area of the migration law.
We offer all our prospective clients an initial meeting, during which we will thoroughly explain the law surrounding this area to you and inform you of the process moving forward.
To organize a initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.