How to Apply for a Section 48 Partner Visa After a Refusal
Section 48 of the Migration Act 1958 can be a source of confusion and concern for people who have had a visa refused or cancelled while in Australia. If you or your partner are considering applying for an onshore Partner visa (subclass 820/801), and one of you has been affected by Section 48, it’s important to understand how this provision operates, what it restricts, and what exceptions may apply.
Being subject to Section 48 doesn’t automatically mean you’re ineligible for an onshore Partner visa but it does mean there are certain rules and limitations that you’ll need to carefully navigate. In some cases, people mistakenly assume they must leave Australia to apply, when in fact, the Partner visa is one of the limited visas that can still be lodged while in Australia under Section 48.
This guide explains what Section 48 is, when it applies, and how it may interact with other legal provisions such as Schedule 3. It’s designed to help you make informed decisions and avoid common mistakes during what can be a stressful and time-sensitive process.
Disclaimer: This article is intended to provide general information only and does not constitute legal advice. Immigration law is complex and subject to frequent change. If you are affected by section 48 bar and seeking partner visa options or any other immigration issue, you should seek personalised legal advice from an immigration lawyer to assess your specific circumstances.
Video Case Study: Visa Refused in Australia? Partner Visa with Section 48 Bar
Before diving into the detailed breakdown, you can watch the real-life case study this article is based on. In this video, we are going to directly address the Section 48 bar and, more importantly, the critical partner visa exception that exists within Australian migration law. We will cover what Section 48 is, who it affects, and how the onshore partner visa (Subclass 820) can, in many circumstances, still be a valid pathway. However, this path has its own set of very specific and strict requirements, including Schedule 3 criteria. We will discuss what this means for your application and the need to demonstrate compelling and compassionate reasons to the Department.
What Is Section 48?
Section 48 bar is a provision that prevents certain non-citizens in Australia from applying for another visa while they remain in the country. It applies to people who:
Do not currently hold a substantive visa; and
Have had a visa refused or cancelled while they were in Australia.
This bar exists to limit further onshore visa applications by individuals who have already had their visa refused or cancelled. However, it’s not an absolute barrier and there are exceptions.
Can I Apply for Partner Visa If My Visa Was Refused in Australia?
In many cases, yes, even if you’re affected by Section 48, it’s still possible to apply for an onshore Partner visa (subclass 820/801). This visa is one of the few that is specifically listed as an exception to the Section 48 bar, meaning the law allows people in certain circumstances to lodge this application from within Australia, even after a visa refusal or cancellation.
However, eligibility isn’t automatic. There are specific conditions you’ll need to meet for your application to be valid. One of the key requirements is that you must not have had a refusal of either an onshore (820/801) or offshore (309/100) Partner visa since your last arrival in Australia. If your most recent visa refusal relates to one of these Partner visa subclasses, then unfortunately, Section 48 bar would prevent you from lodging another Partner visa application while you remain onshore.
This detail is often overlooked, but it can affect your ability to proceed with an onshore partner visa application which is why it’s so important to carefully review your visa history and current status before taking the next step. Where there’s uncertainty, getting legal advice early can help you avoid unintended consequences and make the most of any options available to you.
Key Requirements for Section 48 Partner Visa Applicants
If you’re applying for a Partner visa while Section 48 applies to you, there are strict documentation and process requirements. These include:
An approved form signed by your sponsoring partner, who must be an Australian citizen, permanent resident, or eligible New Zealand citizen.
Two statutory declarations from Australian citizens, permanent residents, or eligible NZ citizens (not your sponsoring partner), attesting to the genuineness and continuity of your relationship. These declarations must be recent, signed within six weeks prior to the visa application lodgement date.
You also need to be physically in Australia (not in immigration clearance) at the time you lodge the application.
The technical requirements to make a valid application under Section 48 are very specific and easy to get wrong. Because of this, it’s strongly recommended that you seek tailored legal advice from an Australian migration lawyer to make sure your application is lodged correctly and in line with current requirements.
How Does Schedule 3 Affect Section 48 Partner Visa Applicants?
It’s important to understand that if you’re applying for an onshore Partner visa while affected by Section 48 and you do not hold a substantive visa at the time of application, Schedule 3 criteria may also apply.
Schedule 3 is designed to discourage people from remaining in Australia unlawfully and then applying for permanent visas while onshore. If applicable, the Department must be satisfied that there are compelling and compassionate reasons to waive these requirements. This means you may need to not only meet the usual Partner visa criteria but also address the higher threshold of compassionate and compelling circumstances under Schedule 3.
In practice, this makes an already complex situation more layered. A person might be lawfully in Australia on a Bridging Visa after a refusal, yet still need to demonstrate compelling reasons to waive Schedule 3, especially if they are not holding a substantive visa when lodging the Partner visa application.
This is where working with a migration lawyer can make a significant difference. The strategy and timing of how and when to lodge, and what to include, can affect whether Schedule 3 will apply and whether a waiver might be accepted.
What Happens After Lodging?
Once the application is lodged validly, you are typically granted a bridging visa which allows you to stay lawfully in Australia while your Partner visa is processed. It’s crucial to ensure that your bridging visa conditions are properly understood, especially regarding work and travel.
Keep in mind that travel rights can be restricted under Section 48, and in some cases, leaving Australia without the proper permission may prevent you from returning and continuing the onshore process.
Given these complexities, it’s worthwhile to speak with a migration lawyer about your rights and obligations as a Section 48 partner visa applicant. Understanding what to expect after lodging can help you avoid unintended consequences and stay on track toward your visa outcome.
Special Considerations
While Section 48 is strict, there are narrow exceptions. For example, certain applicants who entered Australia on a Prospective Marriage visa (subclass 300) or dependent children may not be subject to the same restrictions.
In other cases, with the right legal guidance, there may be lawful ways to navigate the issue without necessarily abandoning the application process altogether. These situations often involve careful timing, procedural steps, and a clear understanding of visa interaction rules.
Final Thoughts: Section 48 Visa Restrictions
Section 48 can feel like a roadblock, but it doesn’t always mean the end of the road for your Partner visa plans. If you or your partner are affected by a previous refusal or cancellation and are now without a substantive visa, understanding the exceptions and requirements becomes essential.
With the right preparation, documentation and support, it is possible to apply for a Partner visa onshore even when Section 48 applies. Every case is different, so it’s worth taking the time to understand your position and make sure your application is carefully structured.
If you’re unsure about how Section 48 affects you or your partner, it may be time to seek personalised advice before taking your next step.
FAQ: Section 48 Bar Australia and Partner Visas
❓What is Section 48 of the Migration Act? Section 48 prevents certain visa applicants from lodging another visa application while they are in Australia if their last visa was refused or cancelled and they don’t hold a substantive visa. Some visas, including the onshore Partner visa, are exempt from this restriction.
❓Can I apply for a Partner visa in Australia if I’m affected by Section 48? Yes, the onshore Partner visa (subclass 820/801) is an exception to the Section 48 bar. However, you must meet specific conditions, including not having had a refusal of a Partner visa (820/801 or 309/100) since your last entry into Australia.
❓What happens if I’ve previously had a Partner visa refused? If your most recent visa refusal was for a Partner visa (subclass 820/801 or 309/100), you may not be eligible to lodge another Partner visa onshore under the Section 48 exception. If this applies to you, it’s strongly recommended that you seek advice from an immigration lawyer to explore your options.
❓What documents are required for a Section 48 Partner visa application? You’ll need:
An approved sponsorship form signed by your partner (an Australian citizen, permanent resident, or eligible NZ citizen)
Two recent statutory declarations from specific people who are not your sponsor, confirming the genuine and continuing nature of your relationship signed within 6 weeks prior to the application date.
❓Do I need to be in Australia when I lodge the application? Yes. You must be physically in Australia and not in immigration clearance at the time of lodging your Partner visa application.
❓Will I get a Bridging Visa after applying? Typically, yes. A Bridging Visa allows you to remain lawfully in Australia while your Partner visa is processed. However, travel and work conditions can vary, so it’s important to check your bridging visa details.
❓Are Section 48 partner visa applicants also affected by Schedule 3? Yes, in many cases. If you don’t hold a substantive visa at the time of application, you may need to satisfy or request a waiver of Schedule 3 requirements. We’ve written a separate article explaining Schedule 3 Waiver Process
❓Can I get help if I am affected by the Section 48 bar and want to apply for a Partner visa? Yes, you can—and it’s strongly recommended. Applying for a Section 48 Partner Visa can be complex, especially if you’re also dealing with Schedule 3 waiver issues or have had a previous refusal. A migration lawyer can help you navigate the Section 48 bar Australia provisions, assess your eligibility, and ensure your application is prepared thoroughly to meet the strict legal requirements.
If you’re wondering “Can I apply for Partner visa if my visa was refused in Australia?”, seeking advice early can make all the difference. Flow Migration Law is experienced in this area and can provide tailored guidance based on your unique situation.
Jay Son is the Founder of Flow Migration Law and an Australian Immigration Lawyer with over 8 years of experience helping couples and families navigate the Australian partner visa and all family immigration processes. He works closely with each client to simplify the legal complexities and provide clear and strategic guidance tailored to their unique journey.
Jay is also a strong Migration Advocate and is highly experienced in challenging government decisions in relation to Australian immigration law, solving difficult migration matters and visa problems including the ART appeals, visa refusals, visa cancellations, Schedule 3 submissions, health waivers and character concerns.
