The section 48 bar and the 836 Carer visa: applying after a refusal

A person refused a visa in Australia cannot lodge an 836 Carer visa onshore while holding no substantive visa, because the 836's class, Other Family (Residence) (Class BU), is not on the regulation 2.12 list of visas the section 48 bar allows. Leaving Australia ends the bar, unless you leave and return on a bridging visa (Migration Act 1958 (Cth) s 48(3)), so the Carer visa routes left are a subclass 116 lodged from outside Australia, or an 836 lodged after returning on a new substantive visa.

Can you apply for an 836 Carer visa after a refusal in Australia?

You cannot apply for an 836 Carer visa after a refusal in Australia if you now hold no substantive visa, because section 48 limits you to the classes in regulation 2.12 of the Migration Regulations 1994 (Cth), and Class BU is not one of them.

A person refused one visa while still holding a valid substantive visa, such as a visitor visa still in effect, is outside section 48 (s 48(1)(a)). An application the bar prevents is invalid (s 46(1)(d)(i)). The Department of Home Affairs lists the same point among the 836 criteria: "Not have had a visa cancelled or a previous application refused".

The bar also covers an 836 refused at the queue-date stage. The applicant is then usually on a Bridging visa A, which is not a substantive visa, so a second 836 onshore is barred; the onshore path is a review by the Administrative Review Tribunal.

The relative's side is unaffected. The same relative can still sponsor the carer for the offshore subclass 116.

What is the section 48 bar?

The section 48 bar is the rule in section 48 of the Migration Act 1958 (Cth) that a non-citizen in Australia without a substantive visa, who has been refused a visa or had one cancelled since last entering, may apply only for the visa classes the Regulations prescribe.

The bar also applies to an application someone else made on your behalf, including one made while you were a minor or did not understand it because of a mental impairment (s 48(1A)).

Who does the section 48 bar apply to?

The section 48 bar applies to people who meet three tests at once:

1. They are in Australia. The bar applies only to applications made in the migration zone.
2. They hold no substantive visa. A bridging visa does not count (Migration Act s 5(1)).
3. Since last entering Australia, a visa was refused or cancelled on a listed ground.

Some refusals do not count: the refusal of a bridging visa, and refusals under sections 501, 501A or 501B, which have their own bar. An application withdrawn before a decision is not a refusal (s 49(3)). Family members included in a refused combined application are refused as well, so the bar reaches them too.

Does leaving Australia lift the bar for a Carer visa?

Leaving Australia lifts the section 48 bar for a Carer visa, because the bar counts only refusals and cancellations since you last entered, except that leaving and returning on a bridging visa counts as never having left (s 48(3)).

After re-entry, an 836 lodged in Australia still needs a substantive visa, and that visa must not carry condition 8503 unless the condition is waived (s 46(1A)). A subclass 116 needs no re-entry at all, because it is lodged and decided while you are outside Australia.

Can the Minister lift the section 48 bar for an 836?

The Minister has no power to lift the section 48 bar for an 836, because the section 48B power applies only to protection visas barred by section 48A.

A different power exists after a review. Once the Administrative Review Tribunal has decided a review, the Minister personally may substitute a more favourable decision in the public interest, "whether or not the ART had the power to make that other decision", and in doing so is not bound by the part of the Act that contains section 48 or by the Regulations (Migration Act s 351(1)–(3)). The power is personal and the Minister has no duty to consider using it (s 351(7)). How to ask, and when it is open, is set out in the guide to ministerial intervention after the Tribunal.

What if your visa was cancelled before the 836?

If your visa was cancelled before the 836 under section 109, 116, 133A, 133C, 134, 137J or 137Q, and you now hold no substantive visa, the section 48 bar stops an onshore 836.

A cancellation also ends a Bridging visa A that depended on the cancelled visa (cl 010.511(1)(b)(vi)). A cancellation on character grounds under section 501 falls under a separate bar in section 501E, which this guide does not cover. Part 836 does not include public interest criterion 4013, the 3-year exclusion that follows certain cancellations for other visas (cl 836.223).

Which Carer visa routes remain after a section 48 bar?

Three Carer visa routes remain after a section 48 bar:

1. Apply offshore. The offshore Carer visa is lodged and granted while you are outside Australia (cl 116.411), so section 48 does not touch it. The Australian relative sponsors it in the usual way.
2. Seek review of the refusal. If the refused application was reviewable, an application to the Administrative Review Tribunal must be made within 28 days after you are notified (Migration Act s 347). If the refused application was itself an 836, the guide on how to apply for a Carer visa again covers review and a fresh start.
3. Leave, return on a new visa, then lodge. After you leave and come back on a new substantive visa, the bar no longer applies, but a visitor visa with condition 8503 closes this route unless the condition is waived.

Each route still leads to the same Carer visa criteria. The rest of the onshore Carer visa is in the parent guide, and both subclasses are compared at Carer Visa Australia.

Read next

Subclass 116 Carer visa: applying from outside AustraliaThe 116 is lodged from overseas, decided overseas, then entered by a set date. Carer visa refusal: why Carer visas are refused and what comes nextEach refusal names a failed criterion, and the ART clock starts at notification. Condition 8503 and the 836 Carer visa: applying from a visitor visaA visitor visa with condition 8503 makes an onshore 836 invalid without a waiver. Ministerial intervention after the Tribunal: requests for a Carer visaOne referral criterion is written for carers, and it starts at 30.