Visa refusal can be a stressful and daunting experience, especially if you are already in Australia. The good news is that you have options to consider if your visa application is rejected. In this article, we will discuss the steps you can take following a visa refusal, what section 48 bar entails, and how you can plan your migration strategy. Whether you are a student visa holder, a worker, or someone looking to stay in Australia permanently, understanding your rights and available paths is essential.
Understanding Visa Refusal in Australia
Visa refusals can occur for various reasons. Sometimes the refusal is due to an applicant’s error or oversight, such as missing documents or incorrect information. Other times, the refusal may result from a mistake made by the case officer processing the application. Regardless of the reason, it is important to know that you have several options available.
First Step: Visa Refusal While Holding a Substantive Visa
If you are already in Australia and applying for a new visa, it is likely you currently hold a substantive visa (e.g., student visa, work visa). If you applied for a new visa well before your current visa expires, you will automatically receive a Bridging Visa A (BVA). This visa allows you to stay in Australia lawfully while awaiting the outcome of your new application.
For example, let’s say you are on a student visa and apply for a new student visa three months before your current visa expires. In this case, you will still have a substantial amount of time on your current visa before switching to the Bridging Visa A. If your new visa application is refused while you still have time left on your existing student visa, you may reapply for another visa without being affected by section 48 of the Migration Act. This means you can submit another visa application while remaining in Australia.
However, what happens if you apply for a visa close to the expiration date of your current visa? In this scenario, you will likely spend some time on a Bridging Visa A before receiving a decision on your new visa application. If that decision is a refusal and you are already on a bridging visa, you will be subject to section 48 bar.
What is Section 48 Bar?
Section 48 of the Migration Act 1958 prevents individuals who are in Australia and do not hold a substantive visa from making certain types of visa applications. If your visa is refused and you are on a bridging visa (and no longer hold a substantive visa), you will be barred from applying for most visas while in Australia.
However, there are some exceptions to the section 48 bar. You are still eligible to apply for the following visas:
- Partner visa
- Protection visa
- Medical Treatment visa
- Skilled Nominated visa (subclass 190)
- Skilled Work Regional (Provisional) visa (subclass 491)
- Skilled Employer Sponsored Regional (Provisional) visa (subclass 494)
While these visa options are limited, they provide a pathway for certain individuals to stay in Australia despite a visa refusal.
Lodging an Appeal with the Administrative Review Tribunal (ART)
If your visa is refused and you are section 48 barred, your next step may be to lodge an appeal with the Administrative Review Tribunal (ART). The ART is an independent body that reviews decisions made by the Department of Home Affairs. If the Department made an error or your case has merit, the ART may overturn the visa refusal.
You must act quickly, as you have only 21 days from the date of refusal to lodge an appeal. Once the appeal is submitted, it may take up to several years for your case to be reviewed, depending on the complexity of your situation. During this time, you can remain on a bridging visa and continue working and living in Australia.
The benefit of appealing to the ART is that the members reviewing your case are independent from the Department of Home Affairs. This means they will take an objective look at your case and may correct any errors made during the initial decision.
Exploring Other Migration Pathways
If your case is likely to take a long time at the ART, it may be beneficial to explore other migration pathways while waiting. For example, you may be able to switch to a Temporary Skills Shortage (subclass 482) visa. To do this, you would need an employer willing to sponsor you.
Here’s how the process would work:
- Your employer lodges a Standard Business Sponsorship application and, once approved, submits the nomination.
- Once the nomination is approved, you would apply for a Bridging Visa B to leave Australia.
- You can then lodge the subclass 482 visa from offshore and return to Australia on the bridging visa while waiting for the 482 visa to be processed.
It is crucial to work with a migration lawyer or registered migration agent to ensure that all requirements are met and that you do not breach the terms of your visa.
Planning Your Next Steps
When faced with a visa refusal, you may have several options, including reapplying for a visa, appealing the decision to the ART, or exploring other visa options. The key is to act swiftly and strategically. Consulting with an experienced migration lawyer or agent will ensure that you understand your legal rights and can make an informed decision on the best path forward.
Visa refusals in Australia can feel overwhelming, but you are not without options. Whether you are still on a substantive visa or have moved onto a bridging visa, understanding the appeals process, section 48 bar, and alternative visa pathways will help you navigate this challenging situation. Take the time to consult with a legal expert and develop a strategy that works best for your circumstances.
If your visa has been refused or you’re unsure about your next steps, our expert team at NB Migration Law is here to help. We specialise in visa appeals and strategic solutions to ensure the best possible outcome for your case.
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