Section 48 Partner Visa: Can You Apply After a Visa Refusal?

A visa refusal in Australia does not always mean you are barred from applying for an onshore Partner Visa. Section 48 of the Migration Act 1958 restricts the visa classes that certain non-citizens can apply for in Australia after a visa refusal or specified visa cancellation. However, the Migration Regulations prescribe the onshore Partner visa classes as visas that may still be applied for by a person to whom section 48 applies.

That does not mean an onshore Partner Visa will automatically be valid or granted. A person affected by section 48 often does not hold a substantive visa, which can trigger additional Partner Visa criteria, including Schedule 3 considerations. Visa conditions, timing, relationship eligibility and the circumstances of the earlier refusal must also be reviewed.

What is section 48 of the Migration Act?

Section 48 applies, broadly, to a non-citizen in the migration zone who:

• does not hold a substantive visa; and
• after last entering Australia, had a visa application refused (other than certain excluded refusals), or had a visa cancelled under specified cancellation powers.

Where section 48 applies, the person may only apply in Australia for visa classes prescribed in the Migration Regulations.

You can read the current Migration Act 1958 on the Federal Register of Legislation.

Can a person affected by section 48 apply for a Partner Visa?

Potentially, yes.

Regulation 2.12 of the Migration Regulations 1994 currently prescribes a number of visa classes for section 48 purposes. These include:

• Partner (Temporary) (Class UK); and
• Partner (Residence) (Class BS).

These are the onshore Partner Visa classes associated with the subclass 820 and subclass 801 pathway.

This is an important distinction: section 48 itself does not necessarily prevent an otherwise valid onshore Partner Visa application.

However, the applicant still needs to satisfy all other application validity and visa grant requirements.

Why can a section 48 Partner Visa still be difficult?

The main difficulty is often not section 48 by itself.

A person caught by section 48 ordinarily does not hold a substantive visa. Home Affairs states that if a subclass 820 applicant does not hold a substantive visa and did not previously hold a Prospective Marriage (subclass 300) visa, the applicant must demonstrate compelling reasons for the grant of the Partner Visa.

This is commonly associated with the additional criteria in Schedule 3 of the Migration Regulations.

As a result, a person may be permitted to apply for the Partner Visa but still face a substantial legal issue about whether the visa can ultimately be granted.

Section 48 and Schedule 3 are different issues

These concepts should not be confused.

Section 48 is primarily concerned with which visa classes a person may apply for in the migration zone after certain refusals or cancellations when they do not hold a substantive visa.

Schedule 3 contains additional criteria that can apply to certain visa applicants who do not hold a substantive visa.

A Partner Visa may be a prescribed visa for section 48 purposes, but Schedule 3 may still need to be addressed.

See our dedicated Schedule 3 Partner Visa page.

Example: Student Visa refused while the applicant is in Australia

Consider a person who:

• entered Australia on a Student Visa;
• made another visa application;
• had that application refused;
• no longer holds a substantive visa;
• is now on a Bridging Visa; and
• has an Australian citizen or permanent resident spouse or de facto partner.

Section 48 may apply.

Because the onshore Partner classes are prescribed under regulation 2.12, section 48 may not itself prevent the person from making an onshore Partner Visa application.

However, the person may face Schedule 3 criteria because they do not hold a substantive visa. The facts surrounding the relationship, timing, earlier visa history and any claimed compelling reasons then become critical.

Does an ART review remove the section 48 bar?

No.

Section 48 expressly contemplates that it can apply whether or not the earlier visa application has been finally determined.

Accordingly, lodging an Administrative Review Tribunal application after a visa refusal does not necessarily restore unrestricted onshore visa application rights.

A person with a pending ART review should obtain advice about the interaction between:

• the refused visa application;
• current Bridging Visa status;
• section 48;
• the Partner Visa pathway;
• Schedule 3; and
• the consequences of withdrawing or continuing the ART review.

Those decisions should not be made solely on the assumption that a Partner Visa application will solve the existing visa problem.

What if the applicant still holds a substantive visa?

Section 48 is directed to persons who do not hold a substantive visa and satisfy the other statutory requirements.

If a person still holds a substantive visa, the section 48 analysis may be different. However, other issues can still affect an onshore Partner Visa application, including:

• No Further Stay conditions;
• location requirements;
• relationship eligibility;
• sponsorship limitations;
• current visa conditions; and
• previous information given to Home Affairs.

The current visa should always be checked through VEVO and against the visa grant notice before lodgement.

What if there is a No Further Stay condition?

Section 48 and a No Further Stay condition are separate legal issues.

Conditions such as 8503, 8534, 8535 or 8540 can restrict the visas a temporary visa holder may apply for while in Australia. Home Affairs states that a waiver may be available in limited circumstances and, for an onshore Partner Visa, any required waiver must be approved before the Partner Visa application is made.

A person should therefore not assume that being outside section 48—or being allowed to apply for a Partner Visa under regulation 2.12—overrides a No Further Stay condition.

What does “substantive visa” mean?

For migration purposes, a substantive visa is generally a visa other than a Bridging Visa, Criminal Justice Visa or Enforcement Visa.

This distinction matters because many applicants affected by section 48 are living lawfully in Australia on a Bridging Visa while an ART review or other process continues, but they no longer hold a substantive visa.

Can you apply for an offshore Partner Visa instead?

The offshore Partner pathway is the subclass 309/100 visa. Home Affairs currently states that the applicant must be outside Australia when applying for the subclass 309 visa.

Whether leaving Australia to lodge offshore is sensible depends on the person’s immigration history, Bridging Visa, review rights, ability to return to Australia, relationship circumstances and other strategic considerations.

It should not be assumed that offshore lodgement is automatically preferable simply because the onshore case raises Schedule 3 issues.

See our 309/100 Partner Visa page.

What are “compelling reasons” in a Partner Visa case?

Where additional criteria apply because the applicant does not hold a substantive visa, Home Affairs indicates that compelling reasons may need to be demonstrated.

There is no single checklist that guarantees the requirement will be met. The assessment is highly fact dependent.

Depending on the case, relevant circumstances may include:

• the nature and duration of the relationship;
• children of the relationship;
• the effect of separation on an Australian citizen or permanent resident partner;
• family violence or vulnerability;
• serious health or compassionate circumstances;
• reasons the applicant became unlawful or ceased holding a substantive visa;
• the timing of the relationship;
• the applicant’s immigration history; and
• other exceptional or compelling circumstances supported by evidence.

The legal test must be applied to the actual circumstances rather than relying on a generic hardship statement.

What evidence should be prepared?

In addition to ordinary Partner Visa relationship evidence, a section 48 / Schedule 3 case may require a separate body of evidence addressing the immigration and compelling-reasons issues.

This may include:

• the earlier visa refusal decision;
• ART documents;
• current VEVO status;
• Bridging Visa grant notices;
• a chronology of the applicant’s visa history;
• evidence explaining why the applicant does not hold a substantive visa;
• relationship evidence;
• evidence concerning children;
• medical or psychological evidence where relevant;
• family violence evidence where relevant;
• evidence of hardship to the Australian partner or family; and
• legal submissions addressing the applicable criteria.

Common mistakes in section 48 Partner Visa cases

• Assuming that section 48 automatically prevents a Partner Visa application.
• Assuming that because the Partner Visa is prescribed under regulation 2.12, grant is straightforward.
• Ignoring Schedule 3 until after lodgement.
• Withdrawing an ART review without understanding the consequences.
• Leaving Australia without considering return rights.
• Failing to check No Further Stay conditions.
• Using generic “compelling circumstances” submissions without evidence.
• Failing to address inconsistencies between the earlier visa application and the Partner Visa evidence.

Frequently asked questions

Can I apply for a Partner Visa after a Student Visa refusal?

Potentially. If section 48 applies, onshore Partner visa classes are prescribed under regulation 2.12. However, Schedule 3 and other criteria may still create significant issues, particularly if you no longer hold a substantive visa.

Can I apply for a Partner Visa while my ART review is pending?

Potentially, but the correct answer depends on visa status, section 48, application validity, Schedule 3 and other conditions. A pending ART review does not automatically remove section 48.

Does section 48 disappear if I lodge a Partner Visa?

No. Section 48 is part of the statutory background to your immigration status. A valid Partner Visa application does not erase the earlier refusal or cancellation history.

Is section 48 the same as section 48A?

No. Section 48A is a separate provision dealing specifically with repeat Protection Visa applications after a Protection Visa refusal or cancellation.

Should I withdraw my ART case after lodging a Partner Visa?

Do not assume that you should. The consequences depend on your Bridging Visa, review matter, Partner Visa validity and broader strategy. Obtain advice before withdrawing a review application.

How Emigrate Lawyers can assist

Emigrate Lawyers advises on complex Partner Visa matters involving visa refusals, section 48, Schedule 3, Bridging Visas and ART proceedings.

We can review the earlier refusal, current immigration status, relationship evidence and applicable Partner Visa criteria before a new application strategy is adopted.

For general information, visit our Partner Visa Lawyers Australia hub and our 820/801 Partner Visa page.

A section 48 case should be assessed before lodgement. Being permitted to make a Partner Visa application and being able to satisfy the criteria for grant are not the same question.

This article provides general information only and does not constitute legal advice. Migration law changes frequently and individual eligibility depends on the current legislation, visa status and facts.

About the author

Madhab Kharel

Principal Lawyer & Director, Emigrate Lawyers

Madhab Kharel is the Principal Lawyer and Director of Emigrate Lawyers, an Australian law firm assisting clients across Australia and internationally. His migration law practice includes Partner Visas, Protection Visas, visa refusals and cancellations, Administrative Review Tribunal matters, health and character issues, Schedule 3, Section 48, sponsorship limitations and employer-sponsored migration. He regularly advises clients with complex immigration histories and matters requiring detailed legal submissions and evidence strategy.

View Madhab Kharel's full profile