Schedule 3 of the Migration Regulations 1994 sets out standard visa requirements for a visa applicant who, at the time of lodging a visa application, either holds a bridging visa or another non-substantive visa, or is an unlawful non-citizen in Australia.
In certain circumstances, an applicant may not be able to lodge a valid visa application, particularly an onshore partner visa, in such situations. However, under Australian migration law, the Department of Home Affairs may consider waiving the criteria on a case-by-case basis only if the applicant provides compelling reasons with supporting evidence for granting a new visa despite non-compliance with Schedule 3 criteria or unlawful status.
Let's break down Schedule 3 and the waiver provisions in detail.
What Is a Schedule 3 Waiver?
The Schedule 3 waiver may allow certain applicants, including those who do not hold a substantive visa, to apply for an onshore partner visa on compelling grounds under Australian immigration law, despite not meeting the standard visa requirements. It may apply if your last valid visa has ended or you hold a bridging visa.
Definition of Schedule 3 Waiver
Schedule 3 refers to the rules in the Migration Regulations that apply to individuals lodging a partner visa onshore after their current substantive visa ceases. They may hold a criminal justice visa, a bridging visa, a protection visa, or other non-substantive visa at the time of application. A waiver means the Department can set aside the standard visa application requirements if the applicant can show compelling reasons. .
Why Schedule 3 Exists
The primary aims of Schedule 3 are to:
- Assess the partner visa applicant's visa history and verify whether they attempted to regularise their visa status.
- Encourage applicants to apply for the substantive visa before the previous visa ends.
- Ensure that people who entered Australia and later became unlawful non-citizens do not gain an unfair advantage over those complying with visa conditions.
- Offer flexibility where applicants demonstrate compelling circumstances.
- Uphold the integrity of the Australian visa system while recognising legitimate cases that involve Australian citizen children, a genuine relationship, or severe illness.
Who Needs a Schedule 3 Waiver?
A Schedule 3 waiver may apply when a partner visa applicant lodges for a visa onshore but does not hold a valid substantive visa at the time of application or has become unlawful.
Common Applicant Categories
- Individuals holding a bridging visa without a valid substantive visa.
- Onshore partner visa applicants whose last visa expired and who do not hold a substantive visa.
- People applying for a partner visa onshore based on a marriage to an Australian partner or a de facto relationship.
- Protection visa applicants seeking asylum who have overstayed or held a bridging visa
- Individuals with compelling and compassionate reasons demonstrating that not approving the waiver request would cause significant hardship to them or Australian family members.
Situations Where Schedule 3 Applies
Schedule 3 applies when an individual has entered Australia lawfully but later becomes unlawful because their visa expired, and in some cases where a person entered Australia without a valid visa. It is specifically relevant in cases where the applicant has remained in Australia for extended periods without a valid visa. In such scenarios, the Department of Home Affairs assesses the waiver request and the applicant's circumstances to determine whether compelling circumstances exist.
Schedule 3 Criteria Explained (3001, 3002, 3003, 3004)
Schedule 3 under the Migration Regulations 1994 outlines specific criteria: 3001, 3002, 3003, and 3004. These apply to a visa applicant who does not hold a substantive visa or is an unlawful non-citizen. Schedule 3 criteria determine whether an individual can proceed with a partner visa application even if they have not substantially complied with the standard conditions.
Here's a table with the key elements of Schedule 3 criteria.
Criterion 3001 of Schedule 3 outlines that the applicant should lodge a subsequent visa application within 28 days of their substantive or criminal justice visa expiring or from the day they entered Australia unlawfully.
Criterion 3002 of Schedule 3 outlines that the applicant should lodge a subsequent visa application within 12 months of ceasing to hold a substantive or criminal justice visa or from the day they entered Australia unlawfully.
Criterion 3003 of Schedule 3 applies to a person who entered Australia without a valid visa or one who does not hold a valid entry permit. In such cases, the applicant must fulfill certain requirements, which include, but are not limited to:
- The reason for holding a non-substantive visa or being an unlawful non-citizen was beyond the applicant's control.
- The Department must be satisfied there are compelling circumstances for granting their substantive visa.
- They would be eligible for a valid entry permit had they applied before becoming an unlawful entrant.
- They agree to comply with future conditions included in the substantive visa.
Criterion 3004 of Schedule 3 applies when the applicant unlawfully entered Australia and subsequently has a substantive visa refusal. Individuals in this category should meet certain requirements, which include, but are not limited to:
- The reason for not holding a substantive visa is due to factors beyond the applicant's control.
- The Minister believes the applicant's circumstances may have been considered compelling for granting their substantive visa.
- They complied substantially with the conditions imposed on their previous non-substantive visa or entry permit.
- They would be eligible for a partner visa (subclass 820) at the time they ceased to hold a substantive visa or became an unlawful non-citizen.
- They agree to comply with future conditions imposed on the substantive visa.
What Are “Compelling Reasons” for a Schedule 3 Waiver?
Schedule 3 criteria 3003 and 3004 carry waiver provisions that require the applicant to hold a compelling reason for the Minister to consider for granting a substantive visa. The Department evaluates the reasons individually and looks at your situation and how it affects you and your family.
Key Factors Considered by the Department
- The extent of hardship suffered by them or their Australian child
- Whether they have substantially complied with their last visa conditions
- The nature of the relationship with a permanent resident or an Australian citizen.
- The applicant's visa history, including visa refusals.
- Whether the applicant has held a student visa or other substantive visa.
- The time spent in the country without lawful status.
- Whether the applicant poses any threat under the Migration Act
Examples of Compelling Reasons
- A critical health condition, supported by medical reports, demonstrates why the applicant could not leave Australia on time.
- The applicant and their partner have an Australian child or dependent family members.
- The extent to which the Australian partner will suffer if the authorities do not grant the applicant a partner visa.
- Circumstances where the applicant intended to leave the country but could not due to unforeseen events, for example, serious illness, serious accident, war, natural disaster, or official error.
How to Apply for a Schedule 3 Waiver: Step-by-Step Process
Here's your step-by-step guide to applying for a Schedule 3 waiver:
- Carefully assess your situation and check whether you meet Schedule 3 provisions based on your current visa status.
- Prepare a detailed legal statement for your Schedule 3 waiver application explaining why you failed to hold a valid partner visa.
- Gather supporting documents for your "compelling and compassionate" circumstances, for example, medical reports, relationship proof, and visa history.
- Lodge your waiver application along with your partner visa application through ImmiAccount.
- Respond to the Department's request for further information and wait for their decision.
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Documents Required for a Strong Waiver Case
A strong application needs clear and credible evidence to support the claim of compassionate reasons.
Supporting Evidence Checklist
- Identify documents and proof of visa history
- Personal declarations by the applicant explaining their circumstances.
- Evidence of a relationship with an Australian citizen and proof of children, if any.
- Records of the last visa condition compliance
- Proof of joint financial responsibilities or dependencies
- Proof of serious health conditions that require the applicant to remain in the country.
- Evidence of attempts to maintain lawful status
- Any documents supporting the psychological effects of separating families
What Happens If Your Schedule 3 Waiver Is Refused?
Immigration authorities may refuse the associated visa application (generally a partner visa) if they refuse the waiver. The refusal will leave the applicant as an unlawful non-citizen and require them to depart from Australia. It can affect further visa applications, and the applicant may face exclusion from reapplying while onshore.
Common Mistakes to Avoid
Avoid the following mistakes when preparing your application.
- Failing to provide sufficient evidence for compelling conditions
- Overlooking their visa history or not mentioning visa refusals, if any.
- Submitting incomplete waiver requests
- Not addressing gaps after their substantive visa expired
- Assuming a long-term relationship alone guarantees approval
Tips to Improve Your Schedule 3 Waiver Success
To improve your chances of a favourable outcome of your waiver application:
- Provide detailed and consistent evidence supporting your circumstances.
- Demonstrate your compliance with your last visa conditions.
- Clearly explain the delays and show why the conditions were beyond your control.
- Provide evidence of attempts to remain lawful.
- Ensure all claims align with migration law and immigration law guidelines.
- Seek professional advice to improve the likelihood of getting your Australian visa granted.
How Australian Migration Agents Can Help
Schedule 3 criteria can be complex to navigate on your own. A registered migration agent or seasoned immigration lawyer can help you assess your eligibility under Schedule 3 criteria, accurately interpret waiver provisions, and prepare a strong submission. So, whether you feel stuck with partner visa issues or need professional guidance with Schedule 3 criteria, share your case with Australian Migration Agents to take the best steps ahead.
FAQs
What is a Schedule 3 waiver in Australia?
A waiver in Schedule 3 allows eligible applicants to lodge a visa application despite not complying with standard requirements, if they provide evidence of compelling circumstances.
Who needs a Schedule 3 waiver?
Applicants without a substantive visa or who are unlawful non-citizens at the time of visa application can request a waiver.
Can Schedule 3 be waived?
Yes, the Department may waive Schedule 3 if the applicant provides strong evidence to prove their compelling grounds.
What are compelling reasons for a waiver?
Compelling conditions include:
- A critical health condition
- The presence of an Australian child or dependent family members.
- Financial dependency
- A long-term relationship
- Hardship in the home country
- Unforeseen events (serious accidents, wars, natural disasters, or official errors)
Does a genuine relationship guarantee a waiver?
No, a long-term relationship alone does not guarantee a waiver.
What happens if Schedule 3 is not waived?
If rejected, the subsequent visa application is likely to be refused as well. The applicant may have to leave the country and may be subject to re-entry restrictions depending on circumstances.
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