What is the section 48 bar?
The section 48 bar is a restriction on fresh visa applications made inside Australia. Under section 48(1) of the Migration Act 1958, a non-citizen without a substantive visa who has had a relevant refusal or cancellation since last entering Australia is limited to the visa classes prescribed in regulation 2.12.
It is an application restriction, not permission to remain in Australia or travel. Section 48 does not regulate applications made from outside Australia; other visa and travel requirements still need separate consideration.
Home Affairs' Subclass 858 National Innovation visa page directs affected applicants to Form 1026i to understand the limitations on applications in Australia.
Who does section 48 apply to?
Section 48 applies when the following circumstances come together. The review and travel rules explain why those circumstances do not necessarily change after challenging a refusal or taking a trip.
You are a non-citizen in Australia. This is the location covered by section 48(1) of the Migration Act 1958.
You hold no substantive visa. Section 48(1)(a) includes someone who holds only a bridging visa, but not someone who still holds a substantive visa.
You have had a relevant refusal or cancellation since last entering Australia. Section 48(1) covers visa refusals, subject to its exclusions, and cancellations under the provisions it lists.
A review is still pending. Section 48(1)(b)(i) of the Migration Act 1958 counts the refusal “whether or not the application has been finally determined”.
You left and returned while holding a bridging visa. Section 48(3) treats you as having been in Australia continuously for this purpose.
What does not trigger the section 48 bar?
Not every refusal triggers section 48, and withdrawal is different from refusal:
Refusal of a bridging visa. Section 48(1) of the Migration Act 1958 excludes this type of refusal.
A refusal under section 501, 501A or 501B. These are excluded from section 48; after a section 501 refusal, section 501E instead limits applications in Australia to a protection visa or a visa the Regulations specify.
An application withdrawn before refusal. Under section 49(3) of the Migration Act 1958, the Minister is not taken to have refused the withdrawn application, which is why withdrawing an 858 before a decision is different from receiving a refusal.
Holding a substantive visa. This is not a refusal exclusion: section 48(1)(a) means the bar does not apply while you hold that visa.
Which visas can you still apply for under section 48?
The visas still open to an application in Australia are those in classes prescribed by regulation 2.12 of the Migration Regulations 1994. The list includes:
- Partner visas.
- Protection visas.
- Bridging visas.
- Child visas.
- Other prescribed classes.
The full list is in regulation 2.12 of the Migration Regulations 1994 on the Federal Register of Legislation. In Compilation No. 288, in force from 1 July 2026, Class BX is not prescribed.
Being on the prescribed list answers only the section 48 question. Each prescribed class still has its own application requirements and eligibility criteria.
Section 48 bar waiver and exemptions
Section 48 is answered by a prescribed list, not a waiver test. Section 48(1) of the Migration Act 1958 allows a person caught by the bar to apply only for a class prescribed in regulation 2.12 of the Migration Regulations 1994.
The waiver people sometimes mean is a No Further Stay waiver, including for condition 8503. That is a different restriction. Home Affairs' No Further Stay waiver page provides an online request process and, for people unable to apply online, Form 1447, No Further Stay waiver request.
For claims that the section 48 bar has been “lifted”, check the particular class against regulation 2.12 rather than assuming all visas are available. In the 1 July 2026 compilation of the Migration Regulations 1994, Class BX remains outside the prescribed list.
Why an onshore 858 is barred after a refusal: Class BX is not prescribed in reg 2.12
The National Innovation visa (subclass 858) is a Class BX visa, and regulation 2.12 does not list Class BX, so a person caught by section 48 cannot lodge a new 858 application from inside Australia. This follows from the classification and prescribed-class list in the Migration Regulations 1994, read with section 48 of the Migration Act 1958.
The ordinary location rules are broader: item 1113(3)(b) of the Migration Regulations 1994 permits an 858 application in or outside Australia, but not in immigration clearance. Clause 858.411 also permits grant in or outside Australia, but not in immigration clearance.
Those ordinary rules do not override section 48. The consequence for a barred applicant is an application made outside Australia, once invited in writing as required by clause 858.211. Home Affairs' announcement of the National Innovation visa confirms that EOIs are accepted from overseas.
Section 48, ART review and travel
A pending Administrative Review Tribunal (ART) review does not lift the section 48 bar. Section 48(1)(b)(i) of the Migration Act 1958 counts the refusal whether or not the application has been finally determined. Waiting for the review to be decided is not itself an exemption from the bar.
Travel on a bridging visa does not reset the relevant stay either. Under section 48(3) of the Migration Act 1958, someone who leaves and re-enters while holding a bridging visa is treated as having remained in Australia continuously.
Because section 48 looks at refusals “since last entering”, its restriction is tied to the current stay in Australia, subject to that bridging-visa travel rule. An overseas application and a departure followed by bridging-visa re-entry are therefore different situations.
There is also a review-location trade-off. Under section 347A(2) of the Migration Act 1958, the refused applicant must be in Australia when applying for review of an onshore refusal. Leaving and remaining overseas before lodging means that review cannot be lodged from there. Check the location rules for reviewing an 858 refusal before deciding when to depart.
Applying for the 858 again after a refusal in Australia
A fresh application needs more than a decision to try again. While section 48 applies, the new 858 application must be made outside Australia because regulation 2.12 of the Migration Regulations 1994 does not prescribe Class BX.
The main checks are:
A new EOI based on changed circumstances or new achievements. Home Affairs' National Innovation visa after-submission page says to resubmit only after a significant change in circumstances or new achievement claims, and to withdraw the old EOI. A National Innovation visa Expression of Interest can be submitted from overseas, as Home Affairs' program announcement confirms.
A new written invitation, followed by an overseas application. Clause 858.211 of the Migration Regulations 1994 requires a written invitation at application. While section 48 applies, Class BX's absence from regulation 2.12 requires lodgement outside Australia.
Any separate No Further Stay restriction. Section 46(1A) of the Migration Act 1958 makes a fresh onshore 858 application invalid where the applicant has held a visa with condition 8503, 8534 or 8535 since last entry, unless the condition is waived. The rules for 8503 and the 858 are separate from section 48.
The application charge again. Under item 1113 of the Migration Regulations 1994, the main applicant's base charge is $6,235 from 1 July 2026. Home Affairs' Subclass 858 National Innovation visa page states that the refused application's charge is not refunded.
Frequently asked questions
Which visa can I apply for with a section 48 bar?
Only a class prescribed in regulation 2.12 of the Migration Regulations 1994, including partner, protection, bridging and child visas among others. Class BX, including the 858, is not prescribed.
How do I check whether I have a section 48 bar?
Check your location, whether you hold a substantive visa, and whether a relevant refusal or cancellation occurred since last entry. Section 48 of the Migration Act 1958 contains the test and exclusions; Home Affairs' Subclass 858 National Innovation visa page points to Form 1026i.
Can the section 48 bar be waived or removed?
Section 48 itself provides prescribed-class exceptions, not a waiver test. The Migration Act 1958 and regulation 2.12 govern those exceptions; Home Affairs' condition 8503 waiver process deals with a different rule.
Does a pending ART review lift the section 48 bar?
No. Under section 48(1)(b)(i) of the Migration Act 1958, a refusal counts whether or not the application has been finally determined.
Does a character refusal trigger section 48?
No: section 48 excludes refusals under sections 501, 501A and 501B. After a section 501 refusal, section 501E of the Migration Act 1958 instead restricts applications in Australia to a protection visa or a visa the Regulations specify.
For the broader options, see applying again after an 858 refusal and the main 858 visa guide.
Before any fresh 858 application, ask an Australian migration lawyer to check section 48, any No Further Stay condition, PIC 4020 exclusion and the required location at lodgement. These checks concern separate requirements in the Migration Act 1958 and Migration Regulations 1994, not just whether a new application is ready.