Section 48: leaving and re-entering resets the bar?

Under s 48(3) of the Migration Act 1958 (Cth), a person who leaves and re-enters Australia while holding a BVB is taken to have been continuously in the MZ for the purposes of s 48. Thus, if a person leaves Australia, re-enters and applies for a visa, they are still s 48 barred. But does s 48(3) also apply to a person who leaves Australia on a BVB, applies for a visa and then re-enters Australia?

As we all know, s 48(1) of the Migration Act 1958 (Cth) provides as follows:

(1)  A non-citizen in the migration zone who:

(a)  does not hold a substantive visa; and

(b)  after last entering Australia:

(i)  was refused a visa, other than a refusal of ... ; or

(ii)  held a visa that was cancelled under section ...;

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

The above provision implements what is known as the "s 48 bar".

Under r 2.12 of the Migration Regulations 1994 (Cth), some visas are not subject to the s 48 bar such as a partner, a bridging and a protection visa, among others.

The s 48 bar is not enlivened unless the visa refusal or cancellation took place "after last entering Australia" (emphasis added).

Self-represented clients tend to believe that they avoid the effect of the s 48 bar by leaving Australia, re-entering and then applying for a visa while offshore. After all, that would "reset" the bar in that, after "last" entering Australia, they have had no visa refusal or cancellation.

That would be true except for the existence of s 48(3), which reads as follows:

(3)  For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

Subsection 48(3) creates what is known as a legal fiction and there is nothing wrong with that. Its effect is that if a person leaves and re-enters the MZ while holding a BV, that person is taken to have stayed in the MZ for the purpose of s 48(1). As a result, their overseas trip does not actually "reset" the latter provision and they are still s 48 barred.

However, what happens with a person who leaves Australia holding a BVB, applies for a visa while offshore and only then re-enters Australia?

A literal interpretation of s 48(3) would indicate that the person never left Australia, with the result that they are still s 48 barred. We discuss below whether that interpretation finds any legislative basis.

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