Schedule 3 Criteria for Partner Visa Applicants

Schedule 3 sets out additional criteria that can apply to certain people who apply for a visa while in Australia without holding a substantive visa.

A substantive visa is generally any visa other than:

• A Bridging Visa
• A Criminal Justice Visa
• An Enforcement Visa

Schedule 3 is designed to encourage visa applicants to maintain lawful immigration status and apply for another visa before their substantive visa ends. It also recognises that some people may become unlawful or remain without a substantive visa because of circumstances outside their control.

Not every visa application is affected in the same way. Whether Schedule 3 applies will depend on the visa subclass, the applicant’s immigration history and the legislation in force at the relevant time.

For onshore Partner Visa applicants, the relevant provisions may refer to Criteria 3001, 3003 and 3004. The applicable criteria should be identified by reviewing the individual applicant’s circumstances and the relevant Partner Visa requirements.

Schedule 3 may need to be considered if you:

• Were unlawful when you lodged your Partner Visa application
• Held a Bridging Visa rather than a substantive visa when you applied
• Overstayed a previous visa
• Experienced a visa refusal or cancellation
• Have remained in Australia after your substantive visa expired
• Have been asked by the Department of Home Affairs to provide Schedule 3 submissions
• Are uncertain about when you last held a substantive visa

These circumstances do not determine the outcome by themselves. A complete visa chronology should be reviewed to establish whether Schedule 3 applies, which criteria are relevant and whether an exception may be available.

Schedule 3 contains several criteria. The criteria relevant to a particular applicant depend on their immigration history and the requirements of the visa being sought.

Criterion 3001 and the 28-Day Requirement

Criterion 3001 contains a timing requirement. It generally requires the relevant visa application to have been validly made within 28 days of the applicant’s legally defined “relevant day.”

The relevant day is not always simply the date printed on a Bridging Visa. It can depend on factors such as:

• When the applicant’s last substantive visa ceased
• When the applicant became unlawful
• Whether the applicant held another type of visa
• Whether a visa refusal or review decision occurred
• The applicant’s complete immigration history

Because the calculation is legally specific, applicants should not assume they satisfy or fail Criterion 3001 based only on the amount of time they have held a Bridging Visa.

Criterion 3003

Criterion 3003 principally concerns people who became an illegal entrant before 1 September 1994 and who have not subsequently been granted a substantive visa.

Due to its historical application, this criterion is relevant to a narrower group of applicants. Legal advice may be required to determine whether it applies to a particular case.

Criterion 3004

Criterion 3004 commonly applies where a person became an unlawful non-citizen on or after 1 September 1994 and has not subsequently held a substantive visa.

Depending on the applicable provisions, Criterion 3004 considers matters including:

• Why the applicant does not hold a substantive visa
• Whether the situation resulted from factors outside the applicant’s control
• Whether there are compelling reasons for granting the visa
• Whether the applicant substantially complied with the conditions attached to a previous visa
• Whether the applicant intends to comply with the conditions of the visa being sought
• Whether the applicant would have met relevant visa requirements at an earlier point in their immigration history

The requirements are detailed and fact-specific. Each relevant element should be addressed with supporting information and evidence.

“Schedule 3 waiver” is a commonly used term, but it does not generally refer to a separate visa or standalone waiver application.

For certain onshore Partner Visa applications, the Migration Regulations allow the decision-maker not to apply specified Schedule 3 criteria if satisfied that compelling reasons exist.

This is a discretionary assessment. There is no fixed checklist that guarantees the criteria will not be applied. Each request is assessed according to the applicant’s circumstances and the evidence provided.

An applicant may still need to satisfy all other Partner Visa requirements, including identity, relationship, health and character requirements.

The Migration Regulations do not provide a single definition of “compelling reasons.” The Department must assess the circumstances of each application individually.

Potentially relevant circumstances may include:

• The interests and welfare of Australian citizen children
• Serious medical or psychological circumstances affecting the applicant, partner or family
• An Australian partner’s significant dependence on the applicant for care or support
• Circumstances outside the applicant’s control that contributed to the loss of lawful status
• Serious consequences for an Australian citizen or permanent resident
• Family violence or safety concerns
• Significant humanitarian or compassionate considerations
• A combination of circumstances that creates an exceptional impact on the family

The existence of one factor does not guarantee a favourable decision. The Department may consider the circumstances collectively, including the applicant’s immigration history and the consequences of requiring an offshore visa application.

Compelling reasons are not necessarily limited to circumstances that existed when the Partner Visa application was lodged.

The Full Federal Court’s decision in Waensila v Minister for Immigration and Border Protection found that later circumstances could be considered when assessing whether compelling reasons exist. This means material developments after lodgement may be relevant, depending on the case.

Applicants should inform the Department of important changes and provide supporting evidence before a decision is made.

A genuine and continuing relationship is a fundamental requirement for a Partner Visa. However, the existence of the relationship alone may not establish compelling reasons for Schedule 3 purposes.

The following may also be insufficient without additional circumstances and evidence:

• The ordinary emotional difficulty caused by separation
• The financial cost of making an offshore application
• A general preference to remain together in Australia
• Unsupported claims of financial or emotional hardship
• The length of the relationship by itself
• A long period of unlawful stay without a clear explanation
• A failure to take reasonable steps to regularise the applicant’s immigration status

The Department may consider whether the claimed consequences go beyond those ordinarily experienced by couples required to pursue an offshore visa pathway.

When assessing a Schedule 3 matter, the Department may consider:

1. The applicant’s history of compliance or non-compliance
2. How long the applicant has been unlawful or without a substantive visa
3. Why the applicant became unlawful
4. Why the applicant did not regularise their status sooner
5. What steps the applicant took to resolve their immigration status
6. Whether circumstances outside the applicant’s control contributed to the situation
7. The impact of departure on an Australian partner or child
8. Whether an offshore visa pathway is reasonably available
9. The strength, relevance and reliability of the supporting evidence

An effective submission should explain the applicant’s complete immigration history rather than focusing only on the relationship.

The evidence required will depend on the circumstances relied upon. Supporting documents may include:

• A complete chronology of the applicant’s immigration history
• Previous visa grants, refusals, cancellations and Bridging Visa notices
• Statements explaining how and why the applicant lost their immigration status
• Evidence of attempts to obtain advice or regularise their status
• Medical reports and treating practitioner letters
• Psychological assessments
• Evidence concerning the needs and welfare of children
• Financial records demonstrating significant dependency
• Documents showing caring responsibilities
• Statements from the applicant and sponsoring partner
• Statements from relevant relatives, carers or other witnesses
• Evidence of family violence or safety concerns
• Documents supporting circumstances outside the applicant’s control
• Evidence explaining the consequences of requiring the applicant to leave Australia

Evidence should directly support the facts relied upon. General statements that are not supported by documents may carry less weight.

You do not necessarily need to wait for the Department of Home Affairs to request Schedule 3 submissions. Where the issue is known at the time of application, submissions and supporting evidence may be provided with the Partner Visa application.

A well-prepared submission should:

1. Identify the Schedule 3 criteria that may apply.
2. Present an accurate chronology of the applicant’s immigration history.
3. Explain why the applicant does not hold a substantive visa.
4. Address any period of unlawful stay or non-compliance.
5. Identify the compelling reasons relied upon.
6. Explain the impact on affected Australian citizens or permanent residents.
7. Connect each factual claim to supporting evidence.
8. Address any weaknesses or adverse aspects of the case.
9. Explain why the relevant criteria should not be applied.
10. Include organised and clearly labelled supporting documents.

Relationship evidence remains important, but a general relationship statement alone may not adequately address Schedule 3.

If the Department asks you to address Schedule 3, check the response deadline immediately. The request should be reviewed carefully to determine which criteria and concerns must be addressed.

Your response may need to explain:

• Your complete visa history
• When and why you ceased to hold a substantive visa
• Any periods during which you were unlawful
• Your compliance with previous visa conditions
• Why you did not regularise your status earlier
• The compelling reasons relevant to your circumstances
• The evidence supporting your claims

Avoid providing only a general account of your relationship. The response should address the applicable legal criteria and explain how the supporting evidence relates to them.

If you have received a request from the Department, obtain advice promptly so there is enough time to review your records and prepare a complete response.

Schedule 3 may not be the only issue affecting an onshore Partner Visa application.

Depending on your visa history, you may also need advice about:

• The Section 48 bar
• Condition 8503 or another No Further Stay condition
• Whether a valid visa application can be made in Australia
• Bridging Visa arrangements
• Visa refusals and review rights
• The possibility of applying for a Partner Visa outside Australia

These are separate legal issues. A waiver or exception relating to one restriction does not automatically resolve another.

Schedule 3 matters require careful analysis of the law, the applicant’s immigration history and the evidence available.

The Immigration Lawyers can:

• Review your visa history and current immigration status
• Determine which Schedule 3 criteria may apply
• Assess whether your circumstances may support compelling-reasons submissions
• Identify potential weaknesses and risks
• Advise you about onshore and offshore Partner Visa options
• Help you collect and organise relevant evidence
• Prepare submissions addressing the applicable criteria
• Respond to requests from the Department of Home Affairs
• Advise you about possible review options following a refusal

Advice should be obtained before lodging an application where possible. If you have already applied or received correspondence from the Department, contact us as soon as possible.

Call (02) 9590 3987 or complete our enquiry form to discuss your circumstances with an immigration lawyer.

Can I apply for a Partner Visa while on a Bridging Visa?

It may be possible to apply for a Partner Visa while holding a Bridging Visa. However, Schedule 3 and other application restrictions may apply depending on your visa history and circumstances. Holding a Bridging Visa does not, by itself, determine whether Schedule 3 can be satisfied or whether compelling reasons exist.

Can I apply for a Partner Visa if I am unlawful in Australia?

Some unlawful non-citizens may be able to make a valid onshore Partner Visa application, but additional requirements and restrictions may apply. Your immigration status, previous visa history and eligibility to make a valid application should be assessed before you proceed.

Is a genuine relationship enough for a Schedule 3 waiver?

A genuine relationship alone will not normally establish compelling reasons because it is already a core requirement of a Partner Visa. The Department generally considers whether additional circumstances create consequences that go beyond those ordinarily associated with an offshore application or separation.

Is there a Schedule 3 waiver form?

There is not generally a separate Schedule 3 waiver form. Applicants commonly provide written submissions supported by relevant evidence.

What is a substantive visa?

A substantive visa is generally any visa other than a Bridging Visa, Criminal Justice Visa or Enforcement Visa.

What is the 28-day rule under Schedule 3?

Criterion 3001 contains a requirement relating to an application made within 28 days of the legally defined relevant day. The correct date depends on the applicant’s immigration history and should not be calculated solely from the date they became aware of their Bridging Visa.

What happens if I cannot satisfy Schedule 3?

If the applicable Schedule 3 criteria are not met and the decision-maker is not satisfied that compelling reasons exist for not applying them, the visa application may be refused. Any review rights and deadlines will depend on the circumstances of the decision.

When should I provide my Schedule 3 submissions?

Submissions may be provided with the Partner Visa application or in response to a request from the Department. Preparing them early can provide more time to gather documents and address potential issues.

Can an immigration lawyer help with Schedule 3?

An immigration lawyer can review the applicable legislation, reconstruct your immigration history, assess the relevance of your circumstances and prepare submissions supported by evidence. However, no lawyer can guarantee that the Department will accept a request not to apply Schedule 3.

Schedule 3 can significantly affect an onshore Partner Visa application. The strength of a request often depends on identifying the correct legal criteria, presenting an accurate immigration history and supporting each important claim with relevant evidence.

If you are unlawful, hold a Bridging Visa or have received a Schedule 3 request from the Department, speak with The Immigration Lawyers about your options.