Foreword
More than ten years ago, I came to Australia to study. Six months into my course, a classmate’s student visa extension was refused, and he went underground from that point on — no one has heard from him since.
If heaven could grant me one chance to do it all over again, I would definitely tell him: “Appeal!” In fact, he actually intended to appeal at the time, but the agent he used told him the appeal window was 28 days after refusal (the law actually sets it at 21 days), so he missed the deadline and permanently lost his chance to turn things around.
Can You Just Lodge Again? What Is Section 48?
When his visa was refused, our first instinct was: if it got refused, just lodge again, right? In reality, that isn’t possible, because of the restrictions under Section 48.
The purpose of Section 48 is to stop applicants from continuously renewing visas onshore and effectively staying in Australia indefinitely. Think about it — if, after a refusal, you could simply lodge again, wait on a bridging visa, and then lodge yet again if that one was also refused, the cycle would never end.
To prevent this, the Department of Home Affairs introduced Section 48, which provides that after a visa application is refused onshore (or a visa is cancelled), if you do not hold a substantive visa (note: a bridging visa is not a substantive visa; student visas, visitor visas, 485 and so on are substantive visas), you cannot lodge any further visa applications (other than a limited list of prescribed visa subclasses). The legislation itself reads as follows:
But You Still Have Review Rights — What Is an AAT Appeal?
An AAT appeal, properly called merits review, is conducted by an independent body separate from the Department of Home Affairs, which re-examines the visa application. As a result, the visa decision is legally not finalised until the review concludes. Once the appeal is lodged, the bridging visa — which would otherwise only run for 35 days — is re-issued on an indefinite basis, allowing you to remain in Australia while you wait for the outcome.
As a general rule, only visa applications lodged onshore attract review rights. For example, an onshore student visa that is refused can go to review. An offshore student visa refusal does not carry review rights.
In addition, a small number of sponsored visa applications also carry review rights — for example, an offshore partner visa refusal can be appealed.
Separately, if you are onshore and your visa is cancelled, you also have review rights; onshore cancellation reviews work differently from offshore situations, and we won’t go into that here.
You Might Be Able to Lodge Another Visa — When Is AAT Actually Necessary?
Section 48 only applies in specific circumstances — it only kicks in when you do not hold a substantive visa.
If, at the time of the refusal, your existing visa is still valid, then you can simply lodge another application straight away, or even lodge a different visa subclass, rather than going to review. For instance, if you lodge a 190 while holding a 485, and the 190 is refused while the 485 is still valid, you can simply re-lodge.
If, when the refusal comes through, your original visa has already expired and you are left with only a bridging visa, then review really is your only option.
21 Days — The Deadline for Appeal
Under migration law, after a visa application is refused, the bridging visa remains valid for 35 days. However, in most onshore cases the appeal must be lodged within 21 days of the refusal. The legislation at Regulation 4.10 reads as follows:
How Long Does an Appeal Take?
Due to the AAT’s limited processing capacity (perhaps a staffing issue), appeal processing times are generally quite long. For example, we have handled a number of 485 appeals, which typically take around two years; student visa appeals also usually take one to two years; partner visa appeals are typically three years or more, and skilled migration appeals also run two to three years. You can check current processing times on the AAT’s official website:
https://www.aat.gov.au/resources/migration-and-refugee-division-processing-times
During the Appeal Period
Because appeal waits are generally long, there is quite a lot of room to manoeuvre while the appeal is on foot. Even though Section 48 is in play during the appeal, there are still ways to lodge further visa applications. These fall into two broad categories:
Option 1 — Lodging onshore: Regulation 2.12 sets out the visa subclasses that can still be lodged despite Section 48. The common ones are bridging visas, partner visas, and the 190, 491 and 494 subclasses (note that the 189 is not on the list). The complete list is below:
Option 2 — Apply for a Bridging Visa B and lodge offshore: If the visa you want to lodge is not on the Section 48 exemption list above, the ultimate workaround is to first obtain a Bridging Visa B (take a quick trip to a visa-free country such as Thailand or Fiji), lodge the visa from offshore, and then return to Australia.
For example, say Xiao Ming is invited for a 189 while in the middle of an appeal — he is not eligible to lodge the 189 onshore and must do so from offshore. Interestingly, Section 48 only prevents you from lodging onshore; it does not prevent your visa from being granted onshore, so after lodging offshore you can return to Australia and wait out the grant onshore.
What If the Appeal Fails and You Still Don’t Have an Invitation?
If the AAT appeal fails before you’ve received an invitation, is it game over and you must leave? Not necessarily. If the AAT appeal fails, on the one hand your bridging visa still has 35 days of validity remaining, and on the other hand you can lodge a Judicial Review application in the Federal Circuit Court (FCC) within that 35-day window. (Note: after filing with the FCC, you need to apply separately for a new bridging visa.)
Because the FCC also has limited capacity (again, most likely a staffing issue), Judicial Review also involves a long wait — one to two years is entirely normal. During that wait, you can carry on using the same strategies described above for the AAT waiting period.
In Summary
Within the current legal framework, there are quite a few ways to legitimately rescue a refused visa. But once a refusal happens, what the applicant does next — and how they plan their next steps — becomes critical, and you really need a professional agent to guide you, otherwise one wrong move can set off a cascade of wrong moves.
Visa matters are never trivial. If you want certainty that your visa will be granted, it is well worth spending a small amount on a professional agent. Leave the professional work to professionals — trying to save a small amount and ending up with a refused work visa or PR application will not only delay your PR plans, it can cost you dearly. Whether you go to the AAT or the FCC, the application costs alone (not counting agent fees) start at several thousand dollars.
Finally, may the world find peace — and may there be no more visa refusals.
