The section 48 bar stops a person who is in Australia without a substantive visa, and who has had a visa refused or cancelled since they last entered, from applying onshore for anything except a short list of prescribed visa classes. Partner visas are on that list, which is why a refusal does not always end an onshore partner application — and why the Department of Home Affairs warns on its subclass 820 page that "you might not be eligible to apply for this visa if you do not hold a substantive visa and you have had a visa cancelled or refused".
Who is caught by section 48?
Section 48(1) of the Migration Act 1958 applies to a non-citizen in the migration zone who:
- does not hold a substantive visa; and
- after last entering Australia, either:
- was refused a visa for which they had applied — other than a refusal of a bridging visa, or a refusal under section 501, 501A or 501B — "whether or not the application has been finally determined"; or
- held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A or 133C (the Minister's personal cancellation powers), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas).
Section 48(1A) extends the bar to a person on whose behalf an application was made and refused, even if they did not know of or understand it.
Three points trip people up. A refusal counts even while it is under review — an appeal on foot at the Administrative Review Tribunal does not suspend the bar. Only cancellations under the listed provisions engage section 48, so not every cancellation does. And a bridging visa is not a substantive visa, so being on one does not take you outside the bar; it is the ordinary position of a barred person.
Section 48(3) closes the obvious escape route: a person who leaves and re-enters the migration zone while holding a bridging visa is taken to have been continuously in the migration zone, so the refusal still counts as having happened after they last entered.
The bar does not reach an application made from outside Australia, or a person who still holds a substantive visa. Refusals under sections 501, 501A and 501B also sit outside it, because character decisions have their own and stricter provisions — if that is your situation, this page is not the analysis for you.
What does the bar actually prevent?
It prevents a valid application, not a grant. Section 48 says the person "may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section … but not for a visa of any other class", and section 46(1)(d)(i) makes an application invalid if section 48 prevents it. An invalid application is not refused — it is not an application. No bridging visa flows from it, there is no decision and nothing to review, so a barred person who lodges the wrong class loses time and money with nothing recorded at the other end.
Which visas can a barred person still apply for?
Regulation 2.12 of the Migration Regulations 1994 prescribes them, and opens with the two that matter here:
Key facts
regulation 2.12 prescribes, for section 48 of the Act, "(a) Partner (Temporary) (Class UK); (b) Partner (Residence) (Class BS)", then protection visas, Medical Treatment (Visitor), the bridging visa classes, Resolution of Status, Child (Residence) and a handful of others.
Class UK contains the subclass 820, Class BS contains the subclass 801, and Schedule 1 requires the two to be lodged together. So a barred person can, as a matter of visa class, still make an onshore partner application. But the right is expressly "subject to the regulations", and that is where it narrows: Schedule 1 item 1124B(3)(e) adds requirements that apply only to an applicant to whom section 48 applies. That applicant:
- must not have been refused any of the listed partner and interdependency visas since last entering Australia — subclasses 100, 110, 309, 310, 801, 814, 820 and 826. One earlier partner visa refusal since that entry closes this door;
- must provide, at the same time and place as making the application, the approved sponsorship form completed and signed by the citizen, permanent resident or eligible New Zealand citizen who claims to be the applicant's spouse or de facto partner; and
- must provide, at the same time and place, two statutory declarations, each made by a citizen, permanent resident or eligible New Zealand citizen who is not the partner, each declaring that the couple are in a married or de facto relationship, and each declared no more than six weeks before the application was made.
This is the same package the Department describes as what an applicant without a substantive visa must include at lodgement. It is explicit that Form 888 does not do this job — "the current and any previous versions of the Form 888 are not acceptable" — and that if the information is missing the application "may be deemed invalid". See Form 888 statutory declarations and the sponsor's part of the application.
Section 48, Schedule 3 and condition 8503 are three different rules
They are confused constantly, because one person is often caught by more than one and all three feel the same. They operate at different points.
| Section 48 bar | Schedule 3 | Condition 8503 | |
|---|---|---|---|
| Source | Migration Act, s 48; reg 2.12 | Regulations, Schedule 3, via clause 820.211 | Regulations, Schedule 8 |
| Who it catches | No substantive visa and a refusal or listed cancellation since last entry | Anyone applying without a substantive visa | Anyone whose visa carries the condition, including people who hold a valid visa |
| What it affects | Whether the application is valid | Whether the visa can be granted | Whether an application can be made at all |
| The way through | The partner classes are prescribed, plus the item 1124B requirements | The Minister is satisfied there are compelling reasons for not applying criteria 3001, 3003 and 3004 | A waiver approved before the application is made |
Someone whose student visa was cancelled and who is now on a bridging visa is barred by section 48 and must also meet Schedule 3 criteria. Someone whose visitor visa carries condition 8503 is not barred at all — nothing has been refused — but still cannot apply until a waiver is approved. See condition 8503 no further stay.
The order to work through is: can I make a valid application at all (section 48, condition 8503, being in Australia when you apply); and if so, can it be granted (Schedule 3 and the rest of the 820 visa requirements).
Why this needs a professional
An application caught by section 48 is one of the clearest cases on this site for using an Australian migration lawyer, and an application they prepare is more likely to succeed, because everything here is settled before anyone looks at your relationship. Whether the bar applies turns on the precise ground of a cancellation and the exact date you last entered. Whether a partner application is still open turns on what has been refused since that entry. Validity turns on documents that must exist on the day you lodge, including statutory declarations that expire six weeks after signing. Get any of that wrong and there is no application, no bridging visa and nothing to appeal.
What to do next
Find the decision record — the refusal or cancellation notice — and the date you last entered Australia; the whole analysis turns on those two facts. Then read Schedule 3 criteria, which will almost certainly apply as well, and why 820 visas are refused. If you are on a bridging visa now, applying on a bridging visa sets out where you stand.
Common questions
Who does the section 48 bar apply to?
Section 48 of the Migration Act 1958 applies to a non-citizen in the migration zone who does not hold a substantive visa and who, after last entering Australia, either was refused a visa or held a visa that was cancelled under one of the listed provisions. A refusal of a bridging visa does not count, and a refusal under section 501, 501A or 501B is dealt with by different provisions. It does not matter whether the refusal has been finally determined.
Can I apply for a partner visa if section 48 applies to me?
In most cases yes. Regulation 2.12 of the Migration Regulations 1994 prescribes the visa classes a person affected by section 48 may still apply for, and both Partner (Temporary) (Class UK), which contains the subclass 820, and Partner (Residence) (Class BS), which contains the subclass 801, are on that list. The right is subject to the regulations, and Schedule 1 imposes extra requirements on a barred applicant.
What extra requirements apply to a section 48 applicant lodging a partner visa?
Schedule 1 item 1124B says that if section 48 applies, the applicant must not have been refused any of the listed partner and interdependency visas since last entering Australia, and must provide with the application both the approved sponsorship form completed and signed by the sponsoring partner and two statutory declarations. Each declaration must be made by an Australian citizen, permanent resident or eligible New Zealand citizen who is not the partner, must declare that the couple are in a married or de facto relationship, and must have been declared no more than six weeks before the application was made.
Does leaving Australia and coming back clear the section 48 bar?
Not if you go on a bridging visa. Section 48(3) says a non-citizen who leaves and re-enters the migration zone while holding a bridging visa is taken to have been continuously in the migration zone, so the earlier refusal is still counted as having happened after last entering Australia. Leaving Australia is a serious step with consequences for any application on foot, so get advice before considering it.
Is the section 48 bar the same as Schedule 3?
No. Section 48 is about whether you can make a valid application at all. Schedule 3 is about whether the visa can be granted to someone who does not hold a substantive visa. Condition 8503 is a third rule, which blocks an application even from someone who does hold a substantive visa. A person can easily be caught by all three at once, and each has to be dealt with separately.
Sources
Keep reading
Genuine and Continuing Relationship: How Home Affairs Assesses It
How Home Affairs decides if a partner visa relationship is genuine and continuing — the four matters in the Migration Regulations and what case officers look for.
Read the guide →
Spouse (Married Partner) Requirements for the 820
What married couples must show for the subclass 820 — the section 5F definition of spouse, a valid marriage, no 12-month rule, and why a certificate is never enough.
Read the guide →
De Facto Partner Visa 820: The 12-Month Rule
How the 12-month de facto rule works for the subclass 820, what counts towards the 12 months, and how time living apart is treated.
Read the guide →