Section 48 of the Migration Act 1958 can limit further visa applications by a person in the migration zone who does not hold a substantive visa and has had a visa refused or cancelled since last entering Australia. This is a simplified overview only; the statutory wording, regulations and individual history must be checked.
Historical video notice: this video was recorded in 2016. Use the current written guidance on this page and verify the legislation and Home Affairs information that applies before acting.
Can you apply for a partner visa if the Section 48 bar applies?
Potentially, yes. Regulation 2.12 currently prescribes Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas for section 48. This means section 48 itself does not prohibit an affected person from applying for those prescribed partner visa classes while in Australia.
That is an application permission, not an approval or guarantee. The application must still be validly made, and the applicant must satisfy the criteria for the relevant onshore partner pathway. Schedule 3 criteria, a No Further Stay condition, character-related restrictions, previous partner-visa history and other statutory bars may still change the answer or prevent grant.
A genuine marriage or de facto relationship with an Australian citizen, permanent resident or eligible New Zealand citizen does not remove those separate requirements. Before lodging, the legal analysis should identify both why section 48 applies and whether every other validity and grant requirement can be met.
Can the Section 48 bar be waived?
Section 48 does not contain the same waiver-request process that applies to a No Further Stay visa condition. The Act restricts an affected person to visa classes prescribed for the purposes of section 48. The practical question is therefore whether the intended visa is one of those prescribed classes and whether every other validity and eligibility requirement can be met—not whether a generic “Section 48 waiver” form can be lodged.
This is also different from section 48B, which concerns repeat protection visa applications and a personal ministerial power. Section 48B is not a general waiver route for an ordinary partner visa case.
Can you apply for a partner visa after another visa is refused?
A refusal after the person's last entry can be one part of the section 48 test. The other threshold facts include whether the person is in the migration zone and whether they now hold a substantive visa. If section 48 applies, the prescribed partner classes may still be applied for, but the proposed application needs a separate validity and eligibility assessment.
If the immediate issue is whether the refusal itself can be challenged, begin with the separate partner visa refusal and ART review guide. A review deadline and the validity of a proposed new application are different questions and may both need urgent attention.
Facts to check
- the date and type of every refusal or cancellation since the person's last entry to Australia;
- whether the person currently holds a substantive visa;
- current bridging visa and lawful-status details shown in VEVO;
- whether the intended visa is one that may validly be applied for in the circumstances;
- any separate onshore partner visa criteria, application bars or schedule requirements;
- review proceedings, travel plans and the consequences of departure; and
- whether another visa condition, including a No Further Stay condition, creates a separate restriction.
A practical Section 48 partner visa check
- Confirm the trigger: map the person's entries, refusals and cancellations against the current wording of section 48.
- Confirm present status: check whether the person holds a substantive visa and obtain current VEVO evidence.
- Identify the exact application: confirm that the intended onshore partner visa falls within the classes prescribed by regulation 2.12.
- Check every separate restriction: review visa conditions, character provisions, prior applications, sponsorship limits and any other application bar.
- Assess grant criteria: deal separately with Schedule 3 and the relationship, sponsor, health, character and evidence requirements.
Leaving Australia should not be treated as an automatic solution without advice. Travel can affect bridging-visa status, review rights, lawful status and which partner pathway can be used.
Section 48 is not the same as a No Further Stay condition
They are different legal issues. A No Further Stay condition can prevent further substantive visa applications unless the condition is waived or an allowed exception applies. Home Affairs provides a specific waiver-request process for that visa condition. It states that making the request does not itself waive the condition and that a person remains responsible for maintaining lawful status while the request is considered.
Marriage or starting a de facto relationship with an Australian citizen or permanent resident is listed by Home Affairs as an example that is not, by itself, a reason to waive a No Further Stay condition. The person's actual post-grant change and evidence must be assessed against the current waiver criteria.
Do not rely on a generic exception
Online summaries often compress section 48 into a yes-or-no rule. The safer approach is to map the person's entry history, visas, refusal or cancellation decisions, current status and intended application against the current legislation and regulations. A wrong assumption can lead to an invalid application, missed review deadline or unintended status consequences.