6.3 Section 48 Bar, Schedule 3 Criteria, and Unlawful Non-Citizens

6.3 Section 48, Schedule 3, and Unlawful Status

Three questions must be answered separately: can the person make a valid application despite section 48; does the visa’s Schedule 2 criteria import any Schedule 3 requirements; and what visa, if any, keeps the person lawful while the new matter is pending? Success on one question does not answer the others.

Section 48

Section 48 applies where the person is in the migration zone, does not hold a substantive visa, and since last entering Australia has had a visa refused or cancelled on a statutory basis covered by the section. The person may apply in the migration zone only for a visa of a class prescribed in regulation 2.12. An attempted application for another class does not become valid merely because the portal accepts data or payment.

Current regulation 2.12 prescribes classes, not a free-floating list of subclasses. They include Partner (Temporary) and Partner (Residence), protection visas, Medical Treatment (Visitor), the Bridging classes, Child (Residence), Skilled—Nominated (Permanent), Skilled Work Regional (Provisional), and Skilled Employer Sponsored Regional (Provisional), plus other listed classes. Confirm the class and Schedule 1 item for the proposed application. For example, subclass 820 is within Partner (Temporary) (Class UK), while a subclass 186 application is not made valid by regulation 2.12.

Section 48 operates on applications made in the migration zone. Departure may permit an offshore application and changes the “since last entering” inquiry if the person later re-enters, but leaving does not erase PIC consequences, return criteria, re-entry bans, location criteria, or another application bar. Advise about present status, departure arrangements, the prospect of obtaining a visa offshore, and whether the person can lawfully return.

Repeat protection applications

Section 48A is a separate bar for a non-citizen in the migration zone who, since last entering, has been refused a Protection visa or held a Protection visa that was cancelled. Regulation 2.12 does not displace section 48A. Section 48B gives the Minister a personal, non-compellable public-interest power to determine that section 48A does not prevent a further Protection-visa application. A request does not itself authorise an application, keep the person lawful, stay removal, or require the Minister to consider exercising the power.

What Schedule 3 actually says

Schedule 3 is incorporated only where the particular Schedule 2 clause requires it. The five criteria perform different functions:

Read the subclass clause to see which criteria it imports. Do not say every non-substantive holder must satisfy all five. For a primary subclass 820 applicant who lacks a substantive visa, clause 820.211(2)(d)(ii) ordinarily refers to criteria 3001, 3003, and 3004, subject to the compelling-reasons alternative. Criterion 3002 appears in the separate diplomatic or special-purpose limb.

Partner waiver and Waensila

Clause 820.211(2)(d)(ii) does not “waive Schedule 3” in the abstract. It provides an alternative where the Minister is satisfied there are compelling reasons for not applying the named criteria. In Waensila v Minister for Immigration and Border Protection, the Full Court held that the inquiry is not confined to compelling circumstances existing at application; relevant circumstances up to decision must be considered.

Evidence must establish why the criteria should not be applied in this case. Possible facts include the best interests and dependency of Australian children, serious sponsor illness or disability, family violence, custody orders, safety, and the real consequences of separation. Pregnancy, relationship length, finances, or inconvenience are not automatic outcomes. Link each fact to the applicant, sponsor, children, lawful offshore alternative, expected separation, and evidence. Continue updating the case because the decision-time position matters.

Status workflow

An unlawful person remains exposed to section 189 detention until a visa is in effect. A valid subclass 820 application does not itself guarantee an immediate BVC or BVE grant. Obtain all prior grants, refusal and notification evidence, movement records, bridging records, and any review history. Identify the available bridging subclass and criteria, lodge only on informed instructions, and check grant, commencement, conditions, work, reporting, travel, and cessation from the actual notice.

Scenario

Liam’s Student visa application was refused after his Working Holiday visa ended, he did not seek review, his BVA later ceased, and he is now unlawful. He has an Australian de facto partner who is pregnant. Section 48 applies, but Partner (Temporary) (Class UK) is prescribed, so an otherwise valid subclass 820 application can be made. Because Liam lacks a substantive visa, analyse clause 820.211(2)(d), the named Schedule 3 criteria, and the compelling-reasons alternative. Build decision-time evidence under Waensila, but explain that neither the pregnancy nor the application guarantees the waiver, visa grant, or bridging status.