If you have had a visa refusal or cancellation and you are currently in Australia as a bridging visa holder (or you do not hold any visa and you are currently unlawful), then Section 48 of the Migration Act prevents you from lodging a further visa application while you are in Australia.

 

Leaving Australia as a Bridging visa B holder does not allow you to avoid the application of Section 48 (i.e. you cannot leave and return to Australia on a Bridging visa B, and then lodge another visa application if Section 48 applies).

 

Please note that Section 48 would only apply if you are currently in Australia and you do not currently hold a ‘substantive visa’. Any Bridging visa would be a non-substantive visa, which means that Section 48 would apply to you if you have had a visa refusal or cancellation since you last entered Australia. Hence, Section 48 would not apply if you still currently hold a valid student visa, visitor visa, working holiday visa etc. These are all substantive visas. Non-substantive visas are only the following visa categories:

 

  • Bridging visas
  • Criminal justice visa
  • Enforcement visa

 

Section 48 also does not apply if your visa refusal relates to a bridging visa application, or if the visa was refused because of character requirements under Section 501 of the Migration Act.

 

Exceptions to Section 48

 

The following are the only visas which are exempted from the application of Section 48 – hence you may still be able to lodge a valid visa application for the following visa categories:

 

  • Partner visas
  • Bridging visas
  • Medical treatment visa
  • Resolution of Status visa (temporary and permanent)
  • Territorial Asylum visa (Residence)
  • Protection visa
  • Subclass 444 for New Zealand citizens
  • Child visa (Residence)
  • Border visa (Temporary)

 

Lodging new visa application outside of Australia with Bridging visa B

 

One possible way to lodge another visa application while you a waiting for an AAT hearing or Court appeal is to apply while you are outside of Australia. If you are currently holding a Bridging visa A or B, then you may be to apply for a Bridging visa B which allows you to temporarily leave Australia. This may allow you to lodge another visa application with the Department, and then return to Australia on your Bridging visa B and remain in Australia while you wait for your AAT hearing or Court appeal.

 

In terms of whether the Department can approve your new offshore visa application while you are in Australia, this will depend on the requirements of the visa that you applied for.

 

For example, with General skilled migration visas (189, 190 and 489 visas) or employer sponsored permanent residency visas (186 and 187 visas), your offshore visa application can be decided when you are in Australia and hence, you won’t need to leave Australia for the Department to decide your new visa application. If you lodged an offshore partner visa (309/100 visa), then you do need to be outside of Australia at the time that the Department decides your visa application.

 

Please note that by lodging a new visa application while you are outside of Australia, you will not be able to get a bridging visa that is linked to this visa application. Your right to return and stay in Australia as a Bridging visa B holder is based on your need to be in Australia for your AAT hearing or Court appeal. Hence if your AAT hearing or Court appeal is not successful, and your Bridging visa is set to expire on a certain date after the AAT or Court’s decision, then you cannot apply for a new bridging visa on the basis of your undecided offshore visa application.


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Ilaria

Hi,
I have a quick question, my partner on bridging visa C awaiting his AAT hearing outcome for 866 protection visa. I am applying 485 end of year and recently we are married ( I’m French and he is Iranian) I wonder if it’s possible for him to withdraw from AAT leave offshore and i lodge our 485 here onshore along with him and wait for us to get visa ? Will there be any issue considering he had protection visa refuses, he has no offence, or any negative things- he has completed his masher here.

Sinead

Hi! In the case of a 457 refusal and at the AAT, would this be an option to lodged a TSS visa overseas and return?

Dayo

Thanks for the information. I am just wondering if under condition 1026i, only the primary applicant can go offshore to apply for a new visa leaving the dependents in Australia while waiting for decision of the appeal