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What Is Schedule 3 and Why Does It Matter for Partner Visa Applicants?
If you are in Australia and your visa has expired, you may be wondering whether you can still apply for an onshore partner visa. The answer depends partly on Schedule 3 of the Migration Regulations 1994.
Schedule 3 sets out additional criteria that apply to people who want to lodge certain onshore visa applications while they are unlawful in Australia or holding certain bridging visas. These are not replacement criteria, they are extra hurdles on top of the standard partner visa requirements.
For partner visa applicants, Schedule 3 determines whether your application can be considered at all, and on what basis. Lodging without understanding whether Schedule 3 applies to your situation carries real risk.
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Si está interesado en obtener más información sobre un visado, póngase en contacto con Australian Migration Agents para una consulta.
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¿Qué es un visado sustantivo?
Understanding Schedule 3 starts with understanding what a substantive visa is.
A substantive visa is any visa other than a bridging visa, a criminal justice visa, or an enforcement visa. If you currently hold a valid tourist visa, student visa, work visa, or any other standard visa, you hold a substantive visa.
If your substantive visa has expired and you have not been granted another one, you are either unlawful in Australia or you may hold a bridging visa. Bridging visas are not substantive visas.
Schedule 3 criteria are triggered when an onshore applicant does not hold a substantive visa at the time of lodging the partner visa application.
Who Does Schedule 3 Apply To?
Schedule 3 applies to onshore partner visa applicants who, at the time of lodgement, are in one of the following situations:
- They are unlawful in Australia because their previous visa has expired
- They hold a bridging visa rather than a substantive visa
This commonly includes people who have overstayed a tourist, student, or work visa; people who are on a bridging visa while waiting for the outcome of another application or appeal; and people whose visa was cancelled.
Schedule 3 does not apply to offshore partner visa applications. If you are outside Australia and applying for the Partner visa (Subclass 309/100), Schedule 3 is not relevant to your application.
What Does Schedule 3 Require?
Schedule 3 contains a set of numbered criteria. For partner visa applicants, the most relevant are Criteria 3001, 3002, 3003, and 3004, set out in the Migration Regulations 1994.
Criteria 3001 and 3002 — Timing Rules
Criterion 3001 requires that the application is validly made within 28 days after the relevant day. The relevant day is generally the day your last substantive visa ceased. This is a short window, and many applicants are well past it by the time they consider lodging a partner visa.
Criterion 3002 allows a valid application within 12 months of the relevant day in defined circumstances.
H3: Criteria 3003 and 3004 — Reasons-Based Criteria
Criteria 3003 and 3004 require, broadly, that the applicant became unlawful or ceased to hold a substantive visa because of factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied with and intends to keep complying with visa conditions. Criterion 3003 applies to people who became an illegal entrant before 1 September 1994, and Criterion 3004 applies to those who became unlawful on or after that date.
If your application does not meet the Schedule 3 criteria, it will be refused unless a compelling reasons waiver applies.
What Is the Schedule 3 Waiver?
For onshore partner visa applications, there is a provision that allows the Schedule 3 criteria to be set aside where the decision maker is satisfied there are compelling reasons for not applying them.
This is known as the compelling reasons waiver, and it is the pathway most applicants in this situation are relying on.
The word “compelling” is not defined in the migration legislation. The waiver is assessed on a case-by-case basis and the threshold is high.
A genuine relationship and the hardship of being separated from your partner during processing are generally not, on their own, considered sufficient compelling reasons. If you are able to leave Australia and apply for the offshore partner visa (Subclass 309/100) instead, the Department generally expects you to do that.
What Can Be Considered a Compelling Reason?
There is no fixed list of what counts as compelling. Each application is assessed on its individual circumstances. Factors commonly raised in compelling reasons arguments include:
- Australian citizen children from the relationship
- Serious illness or medical conditions that make travel or departure unsafe
- Maternity circumstances where departure could create complications
- Significant impact on the sponsor’s health or wellbeing if the applicant were to leave
- Circumstances in the applicant’s home country, such as conflict or danger, that make return and offshore application unsafe
None of these circumstances automatically result in a waiver being granted. The strength and specificity of the evidence, and the overall picture of the case, carry significant weight in how the decision maker assesses the request.
It is also worth understanding that the assessment of compelling circumstances is not necessarily frozen at the date of lodgement. Circumstances that develop after the application is lodged can be relevant by the time a decision is made.
What the Department Generally Does Not Accept
The Department applies the Schedule 3 criteria and waiver provisions strictly. Based on practitioner guidance, the following are generally not accepted as sufficient reasons for the Schedule 3 waiver or for meeting the criteria:
- Not knowing your visa had expired or misunderstanding how long you were allowed to stay
- Being told by an employer or third party that they would handle your visa and missing the deadline
- Attempting to lodge an application that was later found to be invalid
- Being on a bridging visa because of long processing times on another application and then changing your mind
- Not meeting the eligibility criteria for a partner visa on the last day you held a substantive visa
This is one of the reasons why seeking advice before your visa expires, rather than after, is so important.
What Happens If the Waiver Is Refused?
If the Schedule 3 waiver is not accepted and the partner visa is refused, you may be able to seek a review of the decision at the Administrative Review Tribunal (ART). Tribunal review has strict deadlines and is its own separate process.
In some cases, the alternative is to leave Australia and apply for the offshore partner visa (Subclass 309/100) instead, where Schedule 3 does not apply. Whether this is a practical option depends on your status, travel documents, and personal circumstances, and it is not the right choice for everyone.
Why These Cases Require Professional Advice
Onshore partner visa applications involving Schedule 3 are among the higher-risk scenarios in Australian migration, for a number of reasons.
The timing rules may already have passed by the time a couple realises there is a problem. The waiver is discretionary, which means two cases with similar facts can be assessed differently. The applicant’s status during processing affects what they are permitted to do in Australia. And if the application is refused, the available options narrow considerably.
Getting the application right the first time matters. A registered migration agent can assess your exact status and dates, identify whether Schedule 3 applies, evaluate whether a compelling reasons waiver is realistic in your circumstances, and help you prepare the strongest possible application if you decide to proceed.
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Cómo pueden ayudar los agentes de inmigración australianos
Our registered migration agents (MARN 2217744) have experience with complex onshore partner visa cases, including situations where Schedule 3 is in play.
Podemos ayudarte a:
- Assess your current visa status and whether Schedule 3 applies to your situation
- Identify the relevant dates and how they affect your options
- Evaluate whether a compelling reasons waiver argument is realistic based on your individual circumstances
- Prepare your application and supporting evidence if you decide to proceed
- Advise on alternative pathways, including the offshore partner visa, where appropriate
Schedule 3 cases require careful assessment before anything is lodged. To speak with a registered migration agent about your situation, contact Australian Migration Agents today.
Resumen
Schedule 3 of the Migration Regulations 1994 sets out additional criteria that apply when an onshore partner visa applicant does not hold a substantive visa at the time of lodgement. It applies to people who are unlawful in Australia or holding certain bridging visas. It does not apply to offshore partner visa applications.
If Schedule 3 applies, the application will be refused unless the criteria are met or a compelling reasons waiver is granted. The waiver is discretionary and the threshold is high. A genuine relationship and hardship of separation are generally not sufficient on their own.
The schedule 3 partner visa scenario is one of the most complex situations in Australian migration. Seeking advice from a registered migration agent before lodging is strongly recommended.
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