The onshore partner visa (subclass 820/801) is one of the prescribed classes a person under the bar can still apply for, but only if no partner visa has been refused since that last entry. At lodgement the application needs the sponsorship form signed by your partner and two statutory declarations made in the six weeks before you lodge, or it may be invalid. These rules are in the Migration Regulations 1994 reg 2.12 and Schedule 1 item 1124B(3)(e).
Section 48 — checker card
Read all five questions, including the character-decision check. This is a static checklist, not an individual eligibility assessment.
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Are you in Australia now?
No → Section 48 does not apply: Migration Act 1958 s 48 covers people in the migration zone. Yes → Continue. -
Do you hold a substantive visa? (Bridging visas A, B, C and E are not substantive.)
Yes → Section 48 does not apply now. No → Continue. Migration Act 1958 ss 5(1) and 48 distinguish substantive visas from bridging visas. -
Since you last entered Australia, was a visa (other than a bridging visa) refused, or a visa cancelled under s 109, 116, 133A, 133C, 134, 137J or 137Q?
No → Section 48 does not apply, but Schedule 3 may still matter for an 820 application without a substantive visa. Yes → Continue. The tests are in Migration Act 1958 s 48 and Migration Regulations 1994 cl 820.211(2)(d). -
Was any of those refusals a partner or spouse visa (100, 110, 309, 310, 801, 814, 820, 826)?
Yes → A person subject to section 48 cannot lodge another onshore 820/801 application under Migration Regulations 1994 item 1124B(3)(e). Review of the refusal, if available, or an offshore application needs assessment. No → Continue. -
Was the refusal or cancellation under s 501, 501A or 501B?
Yes → Home Affairs Form 1026i says only a protection visa can be applied for after such a decision since last arrival. Do not rely on the partner-visa route described here. No → Read the result below.
If the checks leave the partner route open: Migration Regulations 1994 item 1124B requires the signed sponsorship and two statutory declarations made within six weeks before lodging—not Form 888. You must also address Schedule 3 where applicable under cl 820.211; satisfying this checklist does not establish every partner-visa requirement.
Extra timing check: Are you an 820 or 309 holder who was refused a partner visa in the last 21 days? Migration Regulations 1994 item 1124B(3)(d) prevents a Class BS application within that window. Passing 21 days does not remove a separate partner-refusal block.
What is the section 48 bar?
The section 48 bar is a restriction on making visa applications in Australia, not a two-year ban on being granted a visa. Migration Act 1958 s 48 sets no fixed expiry period: it permits only prescribed visa classes when its conditions apply.
The section covers a non-citizen in the migration zone without a substantive visa who, since last entering Australia, has had a non-bridging visa refused or a visa cancelled under ss 109, 116, 133A, 133C, 134, 137J or 137Q. Section 48 excludes refusals under ss 501, 501A and 501B from its refusal limb; those decisions have a separate restriction.
Cancellation under s 109 or s 116 can therefore trigger the bar when the person is left without a substantive visa; section 48 is not limited to refusals. Home Affairs explains application restrictions in Form 1026i, Limitations on applications in Australia.
“s48” is a common shorthand for section 48 of the Migration Act 1958.
Who does the section 48 bar apply to?
Under Migration Act 1958 s 48, three conditions must come together:
- You are in Australia, within the migration zone.
- You hold no substantive visa. Under s 5(1), a substantive visa excludes bridging, criminal justice and enforcement visas. A BVA, BVB, BVC or BVE is not substantive.
- You have a relevant refusal or cancellation since your last entry. The refusal must be of a non-bridging visa and fall within s 48, or the cancellation must be under one of its listed provisions.
A refusal alone does not establish the bar. Your current visa status and the sequence of events since your last entry are part of the statutory test.
condition 8503 is different: it is a No Further Stay condition attached to a visa. Migration Regulations 1994 Schedule 8 cl 8503 prevents entitlement to grant of a substantive visa after entry, other than a protection visa. Home Affairs’ subclass 820 page says any required waiver must be approved before applying; reg 2.05(4) sets the waiver test.
A refusal or cancellation under s 501, 501A or 501B since last arrival is more restrictive: Home Affairs Form 1026i describes it as blocking further applications other than a protection visa.
References to section 48 in South Australia, Tasmania or Western Australia state-nomination discussions concern skilled visas, outside this page; section 48 itself is federal law.
Which visas are exempt from the section 48 bar?
The precise description is prescribed classes, not “exempt visas”. Migration Regulations 1994 reg 2.12(a)–(b) prescribes Partner (Temporary) Class UK and Partner (Residence) Class BS—the onshore 820/801 classes.
That is precisely why the onshore partner classes stay open: they are named in the regulation section 48 points to. Being prescribed does not remove the additional lodgement conditions in Schedule 1 item 1124B.
For other visa classes, consult reg 2.12 and Home Affairs Form 1026i. This page does not reproduce a complete list.
Can the section 48 bar be waived or lifted?
Section 48 itself contains no waiver. Under Migration Act 1958 s 48(1)(a), it does not apply while you hold a substantive visa. Its history test counts only relevant refusals and cancellations since your last entry, so after leaving and re-entering, the test is measured from that new entry.
That is not advice to travel or an assurance that you can return. Home Affairs’ Bridging visa E page says a BVE ends immediately on departure. Migration Regulations 1994 special return criterion 5002 can also affect a later offshore partner application following removal, generally requiring 12 months unless compelling or compassionate circumstances exist.
Applying for a partner visa under section 48
For a person to whom section 48 applies, Migration Regulations 1994 Schedule 1 item 1124B(3)(e) and (3A) impose these lodgement requirements:
- No previous partner refusal since last entry. You must not have been refused a partner, spouse or interdependency visa in subclasses 100, 110, 309, 310, 801, 814, 820 or 826 since last entering Australia.
- Signed sponsorship at lodgement. Provide the sponsorship form signed by your partner with the visa application.
- Two recent statutory declarations. They must be made by Australian citizens, permanent residents or eligible New Zealand citizens—not your partner—no more than six weeks before lodgement, declaring that you and your partner are married or in a de facto relationship. A Form 888 partner visa statement does not satisfy this requirement.
- Complete documents when you apply. The Home Affairs Partner visa (subclass 820) page says an application without the required documents “may be deemed invalid”.
The subclass 820 page directs applicants to the Commonwealth statutory declaration form and asks for evidence of each declarant’s qualifying status. A driver’s licence or Medicare card is not enough for that status check. Do not substitute ordinary relationship statements for the required declarations.
There is a wording distinction: the Department’s page describes the declaration requirement for applicants without a substantive visa generally, while the legal trigger in item 1124B(3)(e) is a person to whom section 48 applies.
Schedule 3 is separate. Under Migration Regulations 1994 cl 820.211(2)(d), the usual non-substantive-visa pathway requires criteria 3001, 3003 and 3004 unless the Minister accepts compelling reasons for not applying them. Certain former subclass 300 holders have a separate pathway, so the applicable clause needs checking.
After a partner visa refusal: no second onshore application
No—if you hold no substantive visa, section 48 applies and a partner visa was refused since your last entry, you cannot make another onshore partner application. Migration Regulations 1994 item 1124B(3)(e) blocks that application despite the partner classes being prescribed.
Item 1124B(3)(d) also prevents an 820 or 309 holder refused a partner visa from applying for Class BS within 21 days. This is a distinct timing rule, not permission to reapply once 21 days have passed.
The routes to assess are review at the Administrative Review Tribunal, if available, or an offshore application. Migration Act 1958 s 347 generally requires review within 28 days after notification, or 14 days if in immigration detention when notified; the ART cannot extend that deadline. An offshore 309 application falls outside section 48’s migration-zone restriction, but has its own requirements.
Withdrawing before a refusal
If an application is withdrawn before refusal, that withdrawal is not a refusal for section 48. Migration Act 1958 s 49(3) makes that distinction. It does not erase any earlier refusal or cancellation.
Under s 49 and Home Affairs’ withdrawal guidance, withdrawal requires written notice. For partner applications it covers both stages—820 and 801, or 309 and 100—with a signed statement from each applicant aged 18 or over. Removing an application from ImmiAccount is not withdrawal.
Migration Act 1958 s 49(4) generally makes withdrawn application fees non-refundable, subject to the Regulations. Home Affairs’ withdrawal guidance says a BVA granted on or after 19 November 2016 ends 35 days after the withdrawal notice.
Withdrawal is a decision with lasting effects on the application and visa status, not a step to take solely from this explanation.
When the section 48 bar needs a lawyer
A lawyer’s check is useful where the last-entry date, current visa status, refusal subclass or cancellation provision is unclear, or where the lodgement documents and Schedule 3 requirements overlap.
Frequently asked questions
Which visa can I apply for with section 48?
Only a prescribed class under Migration Regulations 1994 reg 2.12. The onshore partner Classes UK and BS are included, subject to their additional application requirements.
Which visas are exempt from the section 48 bar?
“Exempt” is not the precise description: Migration Act 1958 s 48 permits applications for classes prescribed by reg 2.12.
Can the section 48 bar be waived?
Section 48 contains no waiver. It does not apply while you hold a substantive visa, and its history test runs from your last entry—not indefinitely across every previous stay.
Do Form 888 statements count for a section 48 partner application?
No. Home Affairs’ subclass 820 page says current and previous Form 888 versions do not meet the requirement for two statutory declarations made within six weeks before lodgement.
For the next issue, see spouse visa refusal or Schedule 3 and the partner visa.
Ask an Australian migration lawyer to check your post-entry visa and refusal history, the signed sponsorship, the two recent statutory declarations and any Schedule 3 issue before lodging. If item 1124B(3)(e) blocks a new onshore partner application, ask the lawyer to assess review eligibility, the deadline and offshore routes.