Not Holding a Valid Visa? Schedule 3 Could Affect Your Partner Visa - Pay Attention for Your Partner Visa Application:
If you are applying for a Partner Visa (Subclass 820) from within Australia, and you do not hold a valid substantive visa, it is important to understand how Schedule 3 of the Migration Regulations may impact your application.
Schedule 3 is designed to address situations where a person is either in Australia unlawfully or only holds a temporary bridging visa. Its purpose is to encourage individuals to stay lawful by applying for the appropriate visa before their previous visa expires. It also gives the government a framework to manage applications from people who did not maintain a lawful status.
If you do not currently hold a substantive visa—such as if you are on a bridging visa or have no visa at all—you must meet specific conditions set out in Schedule 3 in order to be eligible for a Partner Visa lodged in Australia. These conditions are strict and include explaining the reasons for your current visa status and demonstrating why your application should be considered despite not meeting the usual visa requirements.
Meeting the criteria under Schedule 3 does not guarantee a visa grant, but it allows your application to be considered. You will need to act within the timeframe required under the regulations and provide strong supporting evidence to show that there are compelling reasons for your application to proceed.
In some cases, applicants may still be granted a Partner Visa if the Department is satisfied that there are genuine and compassionate circumstances that justify waiving the Schedule 3 requirements.
Because of the complexity and risk involved, it is strongly recommended to seek advice from a qualified migration agent before lodging your application if Schedule 3 applies to your situation. This can help you avoid refusal and improve your chances of success.
What are the requirements of Schedule 3?
There are two relevant provisions when addressing Schedule 3:
- The applicant is the holder of a Diplomatic (subclass 995) visa or a special purpose visa and when they entered Australia they met detailed requirements found in Schedule 3 criteria 3002;
- The applicant satisfies Schedule 3 criteria 3001, 3003 and 3004. They can be exempt from meeting these criteria if the Minister is satisfied that there are compelling reasons for not applying those criteria.
Understanding Schedule 3 Criteria: 3001, 3002, 3003 and 3004
If you are applying for an onshore Partner Visa (Subclass 820) and do not currently hold a substantive visa, you may be required to meet Schedule 3 criteria. These criteria are designed to manage visa applications from individuals who became unlawful or who remained in Australia without lawful status. Meeting these criteria is essential for your application to be considered valid.
Below is a summary of each criterion under Schedule 3 of the Migration Regulations 1994:
Criterion 3001 – Timely Application (28 Days)
This criterion requires that your visa application is lodged within 28 days of one of the following events:
- The expiry of your last substantive visa
- The end of your criminal justice visa
- Your entry into Australia without a visa
- This condition encourages applicants to remain lawful and act promptly if their visa status changes.
Criterion 3002 – Extended Timeframe (12 Months)
In some situations, a longer period is permitted. Criterion 3002 allows you to lodge your application within 12 months of:
- Ceasing to hold a substantive visa
- Ceasing to hold a criminal justice visa
- Entering Australia unlawfully
This criterion is rarely relied upon for partner visa cases, but it may apply in limited circumstances, particularly where a Special Purpose visa was held.
Criterion 3003 – Unlawful or Irregular Entry
This criterion applies if you:
- Entered Australia without a visa or valid entry permission
- Remained in Australia unlawfully and now wish to apply for a substantive visa
- To satisfy this criterion, you must demonstrate the following:
- The circumstances that led to your unlawful status were beyond your control
- There are compelling reasons for the Department to grant you a partner visa despite your status
- You would have met the visa criteria at the time you became unlawful if you had applied then
- You agree to comply with any future visa conditions
This criterion is often the most difficult to satisfy and requires strong supporting evidence and legal submissions.
Criterion 3004 – Ongoing Unlawful Status
This applies to applicants who have remained in Australia unlawfully and have not held a substantive visa since becoming unlawful.
- To meet this criterion, you must show:
- Your failure to hold a substantive visa is due to factors beyond your control
- The Minister is satisfied there are compelling reasons to grant you the visa
- You complied with conditions of any previous bridging or temporary visa, if applicable
- You would have been eligible for the partner visa at the time your visa ceased or your unlawful status began
- You agree to comply with all future visa conditions
Why These Criteria Matter
Schedule 3 exists to protect the integrity of the Australian migration system by discouraging unlawful stays and visa overstays. However, if your situation involves compassionate or compelling circumstances, such as being in a genuine relationship, having dependent children, or facing family hardship, you may be eligible to request a waiver of the Schedule 3 criteria. These requests are assessed individually and must be supported by strong, well-prepared evidence.
Because Schedule 3 is complex and refusals are common, it is important to seek professional help. A registered migration agent can assess your circumstances, explain your options, and assist in preparing the documents needed to support your application.
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What is Considered a Compelling Reason for a Schedule 3 Waiver?
To meet the requirements under Schedule 3, particularly under criteria 3003 and 3004, you must show that there are compelling reasons for the Department of Home Affairs to grant your partner visa, even though you do not hold a valid substantive visa.
The term “compelling” is not clearly defined in migration law, but it generally refers to situations involving strong moral or practical necessity. Each case is assessed individually by the Department, based on the unique facts and evidence provided.
Compelling circumstances may relate to your personal situation or affect someone close to you. Some examples include:
- You and your partner have a child who is an Australian citizen
- Your Australian partner would experience serious hardship if your visa were refused
- You face difficulties beyond your control, such as a serious medical condition or family crisis
Because every case is different, it is important to present clear, detailed, and well-supported evidence to explain why your situation should be considered compelling.
SPEAK WITH ONE OF OUR MIGRATION AGENT TODAY ABOUT APPLYING FOR A SCHEDULE 3 VISA!
What to Do If You Receive a Schedule 3 Warning Letter
If you have received a letter from the Department of Home Affairs referring to Schedule 3, it is important to act promptly and carefully. This letter usually means that your visa status may be affected, and you may be required to meet strict legal criteria to remain eligible for a partner visa.
Schedule 3 can be waived, but the process is complex and not straightforward. The waiver depends on demonstrating compelling circumstances that justify why the standard criteria should not apply to you.
Following the Full Federal Court decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the scope for what may be considered compelling circumstances has become broader. This has created more opportunities for applicants to successfully apply for a Schedule 3 waiver, especially where their case involves factors such as genuine relationships, dependent children, or significant personal hardship.
If your visa has been refused under Schedule 3, you may still have the option to appeal the decision through the Administrative Appeals Tribunal (AAT). Professional advice is strongly recommended in these cases.
Can Schedule 3 Be Waived?
Yes, it is possible for the Schedule 3 requirements to be waived if you can show compelling reasons.
The Department of Home Affairs has the discretion to waive these requirements, but only if your circumstances strongly justify it. These compelling reasons can arise at any time after your visa application has been submitted and before a final decision is made.
When reviewing your case, the Department will consider various factors to decide whether your situation warrants a waiver. These may include:
- Why you became an unlawful non-citizen
- Why you did not apply earlier to correct your visa status
- Any attempts you made to fix your visa situation
- Your overall visa history, including any previous non-compliance
- How long you have been without a valid visa
Each case is assessed individually, and strong supporting evidence is essential. Seeking advice from a registered migration agent is highly recommended to improve your chances of success.
Schedule 3 Issues and How to manage Them
If you are facing Schedule 3 concerns in your partner visa application, it is essential to seek expert advice without delay. While a Schedule 3 waiver is possible, the process is complex and requires careful preparation.
A partner visa is a significant financial and emotional commitment, and if you do not meet the Schedule 3 criteria or fail to secure a waiver, your application could be refused. This is why early intervention is so important.
If the Department of Home Affairs sends you a letter mentioning Schedule 3, do not ignore it. Contact our office immediately so we can evaluate your situation and determine the most effective path forward. Our registered migration agents will review your case, explain your options clearly, and help you put together a strong request based on your individual circumstances.
With the right guidance and preparation, you can still pursue your partner visa successfully—even with Schedule 3 obstacles.
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