Introduction
Over a decade ago, when I came to Australia to study, six months into my studies a classmate had his student visa renewal refused, went off the grid, and was never heard from again.
If I could have one chance to do it over, I would definitely tell him: “Appeal it!” In fact, he had actually intended to appeal, but the agent he consulted told him the appeal window was 28 days after refusal (the law specifies 21 days), so he missed the deadline and permanently lost his chance to turn things around.
Can’t You Just Reapply? What Is Section 48?
When his visa was refused, our initial thought was simple: just reapply. In reality, that doesn’t work, because it runs into Section 48.
The purpose of Section 48 is to prevent applicants from continuously renewing visas onshore in order to stay in Australia indefinitely. Imagine if, after a refusal, you could simply lodge again, wait on a bridging visa, and if refused again, pay to lodge once more — it would go on forever.
To prevent this, the Department of Home Affairs introduced Section 48, which provides that once an onshore visa application is refused (or a visa is cancelled), if you do not hold a substantive visa (note: a bridging visa is not a substantive visa; student visas, tourist visas, 485, etc. are substantive visas), you cannot lodge a further visa application (except for a small number of prescribed visa subclasses). The legislation reads as follows:
But You Have Appeal Rights — What Is an AAT Appeal?
An AAT appeal is actually called merits review, conducted by an independent body that re-examines the visa decision. Therefore, until the appeal concludes, the visa application is legally not yet finalised. Once an appeal is lodged, your bridging visa, which had a 35-day validity, reverts to indefinite validity, allowing you to remain in Australia while awaiting the outcome.
Generally speaking, only visa applications lodged onshore carry appeal rights. For example, a student visa lodged onshore that is refused can be appealed. A student visa lodged offshore carries no appeal rights.
In addition, a small number of sponsorship-type visa applications also carry appeal rights — for example, an offshore partner visa application can be appealed if refused.
Furthermore, if your visa is cancelled while you are onshore, you also have appeal rights; offshore cancellations do not. We won’t expand on that here.
You May Be Able to Lodge Another Visa — The Necessity of an AAT Appeal
Section 48 only applies under certain conditions — specifically, when you do not hold a substantive visa at the time.
If, at the time of refusal, your visa is still valid, then you can immediately lodge another application, or even switch to a different visa subclass, rather than go straight to appeal. For example, if you lodge a 190 visa while holding a 485, and the 190 is refused while the 485 is still valid.
If, at the time of refusal, your original visa has already expired and you only hold a bridging visa, then an appeal really is your only option.
21 Days — The Appeal Deadline
Under migration law, after a visa application is refused, the bridging visa still has 35 days of validity. However, onshore appeals in most cases must be lodged within 21 days of the refusal. The relevant law, Regulation 4.10, reads as follows:
Appeal Processing Times
Due to the AAT’s low efficiency (perhaps due to being understaffed), appeal processing times are generally quite long. For example, the author has handled numerous 485 visa appeals, which typically take around 2 years. Student visa appeals also take 1–2 years, partner visa appeals usually take more than 3 years, and skilled migration appeals take 2–3 years. Detailed processing times can be found on the AAT’s official website:
https://www.aat.gov.au/resources/migration-and-refugee-division-processing-times
During the Appeal
Because appeal processing times are generally long, there is significant room to manoeuvre during this period. Even though Section 48 still blocks you during an appeal, there are still ways to lodge a visa application. There are two scenarios:
Scenario one — onshore lodgement: Migration law Regulation 2.12 specifies 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 visas (note that the 189 is not included). The full list is below:
Scenario two — apply for a Bridging Visa B and lodge offshore: If the visa you want to lodge isn’t on the exemption list above, then the ultimate solution is to apply for a Bridging Visa B first (take a trip to a visa-free country, such as Thailand or Fiji), then lodge the visa offshore and return to Australia.
For example, say Xiao Ming receives a 189 invitation during a refusal appeal — he is not eligible to lodge a 189 visa onshore; he can only lodge it from offshore. Interestingly, Section 48 only prohibits onshore lodgement, but it does not prohibit onshore grant, so after lodging offshore, you can return to Australia and wait for the grant here.
Appeal Failed but No Invitation Yet — What Now?
If the AAT appeal fails and you still haven’t received an invitation, is it game over and you must leave? Not necessarily. If the AAT appeal fails, on one hand your bridging visa still has 35 days of validity, and on the other within that 35-day window you can lodge an application for Federal Circuit Court (FCC) Judicial Review. (Note: after lodging an FCC application, you need to separately apply for a bridging visa manually.)
Because the FCC is also slow (again, likely understaffed), Judicial Review also takes a long processing time — 1 to 2 years is entirely normal. During the wait, you can continue operating similar strategies as during the AAT wait period above.
In Summary
Under the legal framework, there are still many ways to legitimately rescue a visa situation. However, once a refusal occurs, the applicant’s next moves and planning become critical — a professional agent’s guidance and help is essential, otherwise one wrong step can cascade into many.
Visa matters are no small thing. If you want to ensure a visa is granted, it is well worth spending a little money to engage a professional agent. Leave professional work to professionals — saving a little money only to have a work visa or PR application refused will not only delay your PR plans but also cost you dearly. Whether at the AAT or FCC, the application costs alone (excluding agent fees) start in the thousands of dollars.
Finally, may the world know peace, and may this world have no more visa refusals.
