Can a Visa Refusal Affect a Future Visa Application?
In short, a visa refusal will likely affect a future visa application.
Having a good immigration history without a visa refusal and/or cancellation, alongside general visa condition compliance, are important factors that the Department of Home Affairs (Department) take into consideration when deciding to grant a visa.
When a visa application is refused, the Department will provide the applicant with a Notice of Visa Refusal and a Decision Record. This will generally include:
- The reason(s) for the visa refusal; and
- Options available to the visa applicant.
Whether an applicant can make another visa application will depend on several factors, including the reason for the refusal, whether the applicant is in Australia or offshore, their current visa status and the type of visa they intend to apply for.
Section 48 Bar
Section 48 of the Migration Act prevents certain individuals from applying for a visa onshore if their previous application has been refused or cancelled by the Department since their last entry into Australia.
This is known as a ‘section 48 bar’.
An applicant is likely to be section 48 barred if their visa application has been refused by the Department since last arriving in Australia and they no longer hold a substantive visa.
Similarly, if the applicant is holding a bridging visa when their visa application is refused, it is also very likely that they are section 48 barred.
This means the applicant may be prevented from lodging another substantive visa application while in Australia.
However, barred individuals may still meet the eligibility criteria for other visa types, such as:
- Partner visas;
- Protection visas;
- Medical treatment visas;
- Skilled visas; and
- Other visa types.
An applicant’s eligibility will depend on their individual circumstances and the visa they intend to apply for.
In some circumstances, the applicant may need to travel offshore to lodge a new visa application.
Reapplying After a Visa Refusal
To determine whether an applicant can reapply for a refused visa, they must first understand why the application was refused and whether they now meet the relevant eligibility criteria.
The reason for the refusal is also likely to affect future applications, whether lodged onshore or offshore.
This is particularly important if the Department refused the application on character grounds or because the applicant did not meet the eligibility criteria at the time of the application.
Applicants should disclose any previous visa refusals and/or cancellations when submitting a new visa application.
Visa Refusal Offshore
Where an applicant’s visa has been refused while they are offshore, they may be able to apply for the same visa again provided they meet the eligibility criteria.
The applicant should address the reasons outlined in their Notice of Visa Refusal and explain why they did not meet the eligibility criteria.
Visa applicants are not section 48 barred by being offshore and certain visas may have a right of appeal, particularly where there is an Australian sponsor.
For example, offshore partner visa decisions can have appeal rights where the sponsor is an Australian citizen or permanent resident, whereas skilled visas generally do not have the same appeal options available.
Visa Refusal on Character Grounds
There can be serious implications for visa applicants who do not meet the character requirements set by the Department, including the likely refusal of additional visa applications.
Visa Status After a Refused Visa
Bridging visas usually expire 35 days after a visa application has been refused by the Department.
Applicants holding a bridging visa related to a visa that has been refused must therefore be aware of when their bridging visa expires.
Remaining in Australia unlawfully can further impact a future visa application and may result in an exclusion period upon departure from Australia if a substantive visa is not held at the time of departure.
Visa Refusal Appeal
If a visa has been refused, the applicant must act quickly to determine whether the decision is eligible for review, as strict time periods apply.
If the decision is eligible for review, the applicant may be able to apply to the Administrative Review Tribunal (ART) if the relevant requirements are met.
Not all visa refusals can be appealed or reviewed by the ART.
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For professional consultation on how a visa refusal can affect future applications, contact Bambrick Legal today:
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