Reapplying after a visa refusal

After a refusal, the Migration Act can limit which new visa applications you can make while in Australia. This guide outlines the main limits and where they come from.

Sometimes you can apply again after a refusal, and sometimes the Migration Act limits what you can apply for while you are in Australia. The limits depend on your visa status and on the type of visa, so the first step is to read your decision letter and check your current status.

This is a general outline of the rules, not advice on what to do. The ART review deadline is separate: it is set by section 347(3), counted from the day you are notified, and the ART cannot extend it.

Section 48: if you hold no substantive visa

Section 48 applies to a non-citizen in Australia who does not hold a substantive visa and who, since last arriving, was refused a visa (other than a bridging visa refusal or a refusal under section 501, 501A or 501B), or had a visa cancelled under certain sections. Such a person may apply, subject to the regulations, only for visa classes prescribed for the section, "but not for a visa of any other class." Which classes are prescribed is set in the regulations, which this site has not read. The section applies only to applications made while in Australia.

Home Affairs describes this and the No Further Stay condition together as limits on applications, and says the Department can provide information about which visas, if any, you can apply for.

Protection visas

Under section 48A, a person who has applied for a protection visa in Australia and been refused may not make a further protection visa application while in Australia, subject to section 48B. Only the Minister, personally, can lift that bar, and the Minister has no duty to consider doing so. Home Affairs says it is unlikely you will be granted another visa while in Australia after a refused protection application. See protection visa refusals: where to get help.

No Further Stay conditions

Conditions 8503, 8534, 8535 and 8540 are called No Further Stay conditions. Home Affairs says they prevent the visa holder from applying for many temporary and permanent visas while in Australia, and that once you leave Australia you can apply for other visas. A waiver is narrow: it needs a major change in your situation after the visa was granted, outside your control. Home Affairs says its decision on a waiver is final and the ART cannot review it. Form 1447 adds that the Minister has no power to intervene if a condition is not waived. A waiver request does not itself waive the condition.

Staying after a visa ends

Home Affairs says it is unlawful to stay in Australia without a valid visa, and that the Department can detain and remove people in that position. If you leave Australia after being without a valid visa for more than 28 days, the Department could refuse to grant you another visa for up to 3 years, except in limited circumstances. This is one reason checking your status after a refusal matters. See bridging visas while you seek review and what happens to your status after a cancellation.

Review is a different path from reapplying

Asking the ART to review a decision and lodging a new application are different things, and the rules above can affect the second. Which is open to you depends on your circumstances and the type of visa. A registered migration agent or Australian lawyer can advise on that; see free and low-cost help after a visa refusal and what to do after a visa refusal.

Which applications are open after a refusal depends on the person's status and visa conditions, which this outline cannot assess. It is general information only, not legal advice or immigration assistance.