Section 48 Application Bar Explained (2026 Guide)

By Nilesh Nandan — Australian Immigration Lawyer, MyVisa® Immigration Lawyers

Updated for 2026 to reflect current Home Affairs policy, Section 48 exemptions, and tribunal practice.

Table of Contents

1. The Legal Trigger: What Activates the Section 48 Bar?
2. The Life-Saving List: Visas Exempt from Section 48 Bar
3. Deep Dive: Skilled Visas (190/491/494) as a Section 48 Solution
4. Deep Dive: Partner Visas and the Schedule 3 Hurdle
5. Deep Dive: The Protection Visa (Subclass 866) as the Last Resort
6. Section 48 vs. PIC 4020: Procedural Bar vs. Character Bar
7. The Immediate Response: AAT Review and Judicial Intervention
8. The Offshore Requirement: Necessity and Logistical Reality
9. The Consequence of Delay: Unlawful Status and Bridging Visa E (BVE)
10. Clarification: The Irrelevant ‘Section 48 NDIS’ Keyword
11. Frequently Asked Questions (FAQ)

The Legal Trigger: What Activates the Section 48 Bar?

In 2026, Section 48 of the Migration Act 1958 remains a concise but devastating piece of legislation.

It is triggered automatically when a non-citizen meets three specific, cumulative legal conditions. Understanding the timing of these conditions is paramount to avoiding the bar.

The Three Legal Triggers of Section 48

The **section 48 bar** applies if you meet all of the following:

1. **You are in Australia.** (You are physically present in the migration zone).
2. **You do not hold a Substantive Visa.** (You are either unlawful or on a Bridging Visa—Subclass 010, 020, 030, etc.).
3. **You have had a visa refused or cancelled since your last entry into Australia.** (This includes refusal of any new substantive visa, or cancellation of a visa like a Student Visa (Subclass 500) or a Temporary Skill Shortage Visa (Subclass 482)).

The ‘Substantive Visa’ Trap and the Timing of Refusal

The legal definition of a **Substantive Visa** is any visa that is NOT a Bridging Visa, a Criminal Justice Visa, or an Enforcement Visa. If your visa refusal occurs *while you still hold* a valid substantive visa (e.g., your Student Visa has six months left, and your Partner Visa is refused), the Section 48 bar **does not apply**. You are free to apply for another visa while your substantive visa is in effect.

The bar only locks into place if you are on a **Bridging Visa** (a non-substantive visa) at the moment the refusal or cancellation decision is made. For most applicants awaiting an onshore decision, they are indeed on a BVA, making them vulnerable to the immediate imposition of the **section 48 bar**.

The Life-Saving List: Visas Exempt from Section 48 Bar

Despite the absolute nature of the bar, the Migration Regulations (Regulation 2.12) prescribe a limited list of visas that are exceptions. These are the life-saving options that allow you to continue your visa pathway from within Australia.

The Prescribed (Exempt) Visas for Section 48

If you are subject to the **section 48 bar**, you may still lodge a valid application for the following substantive visas onshore:

• **Protection Visas** (Subclass 866)
• **Partner Visas** (Subclasses 820/801, 309/100—if invited to apply for the permanent stage)
• **Skilled Nominated Visa** (Subclass 190)
• **Skilled Work Regional (Provisional) Visa** (Subclass 491)
• **Skilled Employer Sponsored Regional (Provisional) Visa** (Subclass 494)
• **Child Visas** (Subclass 802)
• **Medical Treatment Visas** (Subclass 602)
• All **Bridging Visas** (Subclasses 010, 020, 030, 040, 050, 051)

The critical inclusion of the three skilled visas (**190, 491, 494**) in November 2021 was a major policy change, creating a viable path for many skilled workers previously facing immediate forced departure.

Deep Dive: Skilled Visas (190/491/494) as a Section 48 Solution

The new exemption for the 190, 491, and 494 visas has become the most common escape route for applicants who were refused a 482 TSS visa or a 485 Temporary Graduate visa and were subsequently hit by the **section 48 bar**.

The Two-Part Strategy for Skilled Exemptions

Utilising this exemption is a complex, two-part strategy that requires legal precision:

1. **Overcoming the Section 48 Bar (DHA Hurdle):** The law now permits the *lodgement* of the 190, 491, or 494 visa application while onshore, even with the bar in place.
2. **Securing State Nomination (State Hurdle):** Subclasses 190 and 491 require a nomination from a State or Territory government. Crucially, **State governments are not bound by the federal Section 48 exemption**. Many states maintain a policy against nominating applicants who are Section 48 barred, or place additional stringent requirements on them (e.g., a significantly higher EOI score or longer work experience).

Therefore, being legally eligible to *lodge* the visa does not guarantee State nomination. An urgent assessment of the specific State’s current nomination guidelines is vital before launching an EOI.

Deep Dive: Partner Visas and the Schedule 3 Hurdle

The **Partner Visa (Subclass 820/801)** is a historic exemption from the **section 48 bar**. However, for applicants who have fallen unlawful, an even greater hurdle often applies: **Schedule 3 of the Migration Regulations**.

Section 48 vs. Schedule 3 (The Onshore Nightmare)

The two legal concepts stack against each other in the onshore Partner Visa application:

1. **Section 48:** The Partner Visa is exempt. You can **lodge** the application.
2. **Schedule 3:** This criterion applies if you apply for a Partner Visa without holding a substantive visa (i.e., you are unlawful or on a bridging visa). It imposes strict requirements (e.g., Criterion 3001—the application must be lodged within 28 days of the last substantive visa ceasing).

If you fail Schedule 3, your Partner Visa is refused, regardless of how genuine your relationship is. This failure is the reason many onshore Partner Visas are refused. To overcome Schedule 3, you must demonstrate **compelling reasons of a compassionate nature** that affect an Australian citizen/resident to justify a “waiver.” This waiver is notoriously difficult to obtain without expert legal submission.

Deep Dive: The Protection Visa (Subclass 866) as the Last Resort

The **Protection Visa (Subclass 866)** remains the ultimate legal lifeboat for those subject to the **section 48 bar**. It is consistently exempt from the bar because it upholds Australia’s international obligations under the Refugee Convention and the Complementary Protection framework.

The High Legal Burden

Lodging a Protection Visa application is a non-trivial legal step with profound, irreversible consequences, and the burden of proof is immense. You must demonstrate that you have a well-founded fear of persecution based on one of five Convention grounds (race, religion, nationality, political opinion, or membership of a particular social group) or that you face a real risk of serious harm (complementary protection) if you return to your home country.

This is not a default visa option. If you are subject to the **section 48 bar** and have exhausted all other skilled or family pathways, the **Protection Visa (866)** may be the only option remaining to secure your lawful stay and potential permanent residency.

Section 48 vs. PIC 4020: Procedural Bar vs. Character Bar

A crucial distinction must be drawn between the **Section 48 bar** (a procedural lodgement issue) and the **Public Interest Criterion 4020 (PIC 4020)** (a character/integrity issue). Both are absolute bars, but they impact your journey differently:

The Fatal Combination

If you are subject to **Section 48** *and* **PIC 4020** (for instance, you submitted false employment letters in your refused Skilled Visa), you face the most difficult situation: even if you apply for a Section 48-exempt visa (like the 190), that visa application will be refused on character grounds by PIC 4020. Overcoming PIC 4020 requires proving compelling circumstances affecting Australia or an Australian citizen/resident—a higher, non-standard legal hurdle.

The Immediate Response: AAT Review and Judicial Intervention

The moment you receive a visa refusal or cancellation notice, your first, non-negotiable legal response must be to appeal the decision to the **Administrative Appeals Tribunal (AAT)**.

AAT Review: Time-Buying Strategy

Lodging an appeal with the **AAT Review Process** within the strict statutory deadline (often 21 days) automatically extends the life of your Bridging Visa A (BVA). This is a vital legal lifeline, as it prevents you from falling unlawful while you formulate a long-term strategy to deal with the **section 48 bar**. Crucially, the bar remains in place, but your lawful status is secured until the AAT makes its final decision.

The Offshore Requirement: Necessity and Logistical Reality

If you are subject to the **section 48 bar** and wish to apply for a visa that is **not** on the exempt list—such as a Subclass 189 Skilled Independent Visa—you must leave Australia and lodge the application from offshore.

The Consequences of Departure

For individuals who have let their substantive visa expire, leaving Australia while on a BVA, BVC, BVD, or BVE means your bridging visa ceases immediately. Furthermore, if you leave while unlawful or on certain bridging visas, you may activate **PIC 4013** (for overstaying a visa) or **PIC 4014** (for cancellation/refusal history). These bars impose a mandatory three-year exclusion period from Australia.

This means your strategy becomes a painful choice: depart immediately and face a three-year ban offshore, or fight to remain on an exempt visa (190, 491, Partner, or Protection) to avoid the exclusion period. This logistical and financial reality is why tackling the **section 48 bar** with a strategy for an exempt visa is almost always the preferred legal path.

The Consequence of Delay: Unlawful Status and Bridging Visa E (BVE)

Delay in responding to a refusal or cancellation notice will lead to your lawful status ceasing. At this point, you become an unlawful non-citizen and are liable for detention and removal from Australia.

To avoid this, you may be granted a **Bridging Visa E (BVE)** (Subclass 050/051). While the BVE legalises your stay, it is the worst possible visa to hold:

1. **No Work Rights:** BVEs typically have no work rights, leading to immediate financial hardship.
2. **Travel Barred:** BVEs do not allow you to travel and return to Australia.
3. **PIC 4013 Risk:** BVE holders are often subject to the three-year ban (PIC 4013) upon departure.

If you are facing the **section 48 bar** and require legal assistance to move from a BVE to an exempt substantive visa, you must seek immediate advice on how to secure work rights and expedite the onshore application process. I strongly advise reviewing my comprehensive guide on Unlawful Status and the Bridging Visa E.

Clarification: The Irrelevant ‘Section 48 NDIS’ Keyword

You may encounter search results referencing **”section 48 ndis”**. I must clarify, in a legal context, that this is irrelevant to the **Migration Act 1958** and your visa status.

The keyword refers to a provision in the separate **National Disability Insurance Scheme Act 2013**, which deals with the reassessment of a participant’s NDIS plan. It has absolutely **no bearing** on the immigration application bar imposed by the Department of Home Affairs.

Your Next Legal Step: Section 48 Visa Eligibility Assessment

The **section 48 bar** is a massive hurdle, but it is not insurmountable. Your future depends on quickly identifying which of the exempt visas you are eligible for, whether it’s the **Skilled Nominated (190)**, the **Regional (491)**, the **Partner Visa (820)**, or the **Protection Visa (866)**.

Immediate and Urgent Legal Assessment

Do not attempt to lodge a non-exempt visa and do not risk falling unlawful. Contact MyVisa immediately for an urgent, comprehensive assessment. We will confirm your exact legal status, execute the correct legal strategy to keep you lawful, and prepare a compliant application for an exempt visa.

Book a consultation

Legal Disclaimer
By Nilesh Nandan — Australian Immigration Lawyer, MyVisa®️ Immigration Lawyers

This blog is intended for discussion purposes only and does not constitute advice. You should seek independent legal advice before relying on any information provided on this site. Immigration policies, systems, and processes can change without notice. I’d like to know your own experience with the immigration challenges noted above — feel free to contact me.

MyVisa: Nilesh Nandan, Attorney at Law
BBus(Accy) LLB(QUT) GDLP MBA(IntBus)
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