Can a Lawyer Help With a Partner Visa If I Am Affected by the Section 48 Bar?

What is the section 48 bar?

The section 48 bar is a rule in the Migration Act that limits the visas a person can apply for in Australia after a refusal or cancellation. It applies to a non-citizen in the migration zone who does not hold a substantive visa and who, since last entering Australia, has been refused a visa or had a visa cancelled. That person may apply only for the visa classes prescribed in regulation 2.12. Our article on the partner visa section 48 bar explains how the rule operates.

Can I still apply for a partner visa if section 48 applies?

A person affected by section 48 can generally still apply for a Subclass 820 partner visa in Australia, because the onshore partner visa class is among those prescribed in regulation 2.12 for spouses and de facto partners of Australian citizens, permanent residents and eligible New Zealand citizens. The applicant must still meet every other requirement, and must be the sponsor's spouse or de facto partner at the time of application. Our page on the Subclass 820 visa sets out what the onshore application involves.

Do Schedule 3 criteria apply when section 48 applies?

Schedule 3 criteria will usually apply when section 48 applies, because both depend on the applicant not holding a substantive visa at the time of application. Schedule 3 can be waived only for compelling reasons, and departmental policy says that a genuine relationship and the hardship of separation are generally not compelling reasons on their own. Our page on Schedule 3 waivers and our article on the Schedule 3 waiver submission explain what a strong submission addresses.

Should I seek review of the refusal instead?

Seeking review of the earlier refusal can be a better path in some cases, because a successful review restores the position before the refusal. In others, a partner visa application is the stronger option, or both may proceed together. The answer depends on the reason for the refusal, the review deadline and the strength of the relationship evidence. Our article on partner visa appeal versus reapplication explains how the choice is made.

Does leaving Australia remove the section 48 bar?

Leaving Australia and re-entering removes the section 48 bar, because the rule looks only at refusals and cancellations since the person last entered Australia. Leaving can create other problems, including exclusion periods for some people and the loss of a pending onshore pathway, so it should never be done without advice. An offshore Subclass 309 is a separate route for some couples. Our page on the Subclass 309 visa explains it.

How does My Migration Lawyers handle a section 48 partner visa?

My Migration Lawyers first confirms exactly which refusals and cancellations occurred since the applicant's last entry, because that decides whether section 48 or section 501E applies. The firm then prepares the Subclass 820 application with a Schedule 3 submission built on the couple's actual circumstances, and checks that nothing in the new application conflicts with what was said in the refused one. Couples can raise a section 48 problem with our partner visa lawyers.