Complex Partner Visa Cases: Section 48, Schedule 3, Sponsorship Limits, Character and Health

Common Complications at a Glance

3 Steps If You Are Facing a Complication

1. Identify Exactly Which Provision Applies: Section 48, Schedule 3, a sponsorship limit, and character/health issues each have different tests and evidence requirements.
2. Gather Evidence Early: Compelling circumstances for a Schedule 3 waiver or a health waiver need to be built well before lodgement, not added as an afterthought.
3. Get Advice Before You Lodge: These provisions interact with each other – what looks like a minor issue can compound with another into a serious one.

Overview

Not every Partner Visa application is straightforward. Some applicants arrive at the process carrying significant immigration history – prior refusals, visa cancellations, health conditions, or character concerns – that fundamentally change how the application must be approached. Understanding these complications early can be the difference between a viable pathway and an avoidable refusal.

The Section 48 Bar – What It Is and Why It Matters

Section 48 of the Migration Act 1958 is one of the most commonly misunderstood provisions in Australian migration law. In simple terms: if you have had a substantive visa refused or cancelled since your last entry to Australia, and you are currently unlawful or on a Bridging Visa, you are generally prevented from lodging most visa applications from within Australia.

This is known as the Section 48 bar. The intention is to prevent a cycle of repeated onshore applications after a refusal. However, the law includes important exceptions – and the Subclass 820 Partner Visa is one of them.

This means that even if you are Section 48 barred, you may still be able to lodge a valid Partner Visa application from within Australia. However, doing so in this situation is not simply a matter of filling in a form. Additional criteria under Schedule 3 of the Migration Regulations will almost certainly apply, and these bring their own significant complexity.

Schedule 3 – The Extra Hurdle for Section 48 Applicants

Where an applicant is subject to the Section 48 bar and lodges a Partner Visa application, they will typically need to satisfy – or obtain a waiver from – the Schedule 3 criteria. These criteria require the applicant to have been lawfully present in Australia at the time of application, or to demonstrate compelling reasons why the criteria should be waived.

A Schedule 3 waiver is not automatic and is not easy to obtain. The Department takes a strict approach, and the applicant must present clear, persuasive evidence of why their circumstances justify an exception. Strategy matters enormously here – the timing of when to lodge, what evidence to include, and how the submission is framed can all affect whether a waiver is accepted.

This is an area where the guidance of an experienced migration lawyer can make a very real practical difference.

Sponsorship Limitations

The ability to sponsor a Partner Visa applicant is not unlimited. The Migration Regulations impose restrictions on the number of times a person can sponsor, and on the frequency of sponsorships. Broadly:

A sponsor may only sponsor two people for a Partner Visa across their lifetime.

A person cannot sponsor a second Partner Visa applicant within five years of a previous sponsorship being approved.

These limitations apply regardless of the outcome of the previous relationship. There are limited ministerial discretion provisions for exceptional circumstances, but these are rarely exercised and require strong justification. If a sponsor has a previous sponsorship history, this needs to be disclosed and carefully assessed before lodging.

Character Issues in Partner Visa Applications

Character is assessed for both the visa applicant and, in certain cases, the sponsor. For applicants, the character test under Section 501 of the Migration Act considers criminal history, association with criminal organisations, and general conduct. Specific triggers include:

• A sentence of 12 months or more imprisonment (or multiple sentences totalling 12 months or more).
• A conviction for a sexually based offence involving a child.
• Reasonable suspicion of association with criminal groups.
• An adverse security assessment by ASIO.
• Failing the character test does not automatically result in refusal – it triggers a discretionary assessment.

Decision-makers must follow Ministerial Direction 110 (effective June 2024), which requires consideration of protection of the Australian community, the best interests of children in Australia, the strength of ties to Australia, and other factors.

However, where character is a live issue, a visa refusal or cancellation is a real possibility – and the consequences of refusal under Section 501 are severe and potentially permanent. Early legal advice is strongly recommended.

Health Issues in Partner Visa Applications

Partner Visa applicants are assessed under Public Interest Criterion (PIC) 4007 for health – not the more restrictive PIC 4005 that applies to many skilled visas. The significance of this is that a health waiver is available under PIC 4007 if the health requirement is not met.

A health waiver may be exercised if the applicant’s condition would not result in “undue” costs to Australia’s health or community services, taking into account the specific circumstances including private health coverage, the sponsor’s support, and compassionate considerations.

The current Significant Cost Threshold is AUD 86,000 (as at July 2024). A health waiver submission requires detailed medical evidence, financial evidence of the capacity to manage costs privately, and a compelling argument. It is not a process that benefits from a do-it-yourself approach.

When to Use a Migration Lawyer or Registered Migration Agent

There are situations where professional assistance is not merely helpful – it is genuinely critical. You should strongly consider engaging a migration lawyer or Registered Migration Agent (RMA) if any of the following apply:

• You have had any previous visa application refused or cancelled, in Australia or overseas.
• You are currently unlawful or on a Bridging Visa in Australia.
• You or your sponsor have any criminal history, pending charges, or court appearances.
• You or any family member have a significant medical condition.
• Your sponsor has previously sponsored another person for a Partner Visa.
• You have provided any information on a previous application that was inaccurate or incomplete.
• You have been in Australia for an extended period on a visa that is not suited to the circumstances you are in.

These situations involve legal provisions that interact with each other in ways that are genuinely difficult to navigate without specialist knowledge. The cost of professional advice is almost always far less than the cost of a refused application – particularly when refusal carries a ban period or triggers additional consequences.