What Is Section 48 and Can I Still Get a Partner Visa?

Who is affected by section 48?

A person is affected by section 48 when they are in Australia, do not hold a substantive visa, and have been refused a visa or had a visa cancelled since they last entered Australia. A common example is a student who applied for another visa in Australia, was refused, and now holds only a bridging visa. Bridging visa refusals do not trigger section 48. A person who still holds a substantive visa is also outside the bar, even if an earlier application was refused. Our article on the partner visa section 48 bar explains when the bar starts and ends.

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

A person subject to section 48 can generally still apply for a Subclass 820 partner visa, because regulation 2.12 prescribes the onshore partner visa as one of the classes that remain available. The applicant must be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and must meet every other criterion. Our page on the Subclass 820 visa explains those criteria.

Does Schedule 3 apply if I am affected by section 48?

Schedule 3 usually applies to a person affected by section 48, because that person normally holds only a bridging visa or no visa when the partner visa is lodged. The applicant must then meet the Schedule 3 criteria or show compelling reasons for a waiver at the time of application. This is where many section 48 partner visa cases succeed or fail. Our article on partner visa Schedule 3 criteria and our Schedule 3 waiver page explain what the Department looks for.

Does a protection visa refusal stop me applying for a partner visa?

A protection visa refusal does not in itself stop a person applying for a partner visa, but section 48A and other provisions apply to protection visa applicants, and the person's whole history must be checked carefully before lodgement. Our article on a partner visa after a protection visa refusal covers this situation in detail.

Is leaving Australia a way around section 48?

Leaving Australia ends the effect of section 48, because the bar applies only to refusals and cancellations since the person last entered Australia. However, leaving can create other problems, such as an exclusion period, a debt to the Commonwealth or difficulty obtaining a visa to return. An offshore partner visa may then be the better pathway. Our article on a partner visa after a visa refusal explains the choice between staying and leaving.

How does My Migration Lawyers deal with section 48 partner visa cases?

My Migration Lawyers deals with section 48 cases by confirming, from the client's full visa history, whether the bar actually applies and which visa classes remain open. The firm then decides whether a Subclass 820 with a Schedule 3 submission or an offshore application is safer, and prepares the case so that the refusal history is explained rather than hidden. The firm also advises on visa refusals more broadly, and couples can speak with our partner visa lawyers before lodging anything.