Schedule 3 of the Migration Regulations 1994 outlines additional visa requirements for visa applicants who hold only a bridging visa or other non-substantive visas or are unlawful non-citizens in Australia at the time of applying for a valid partner visa. A Schedule 3 waiver allows the Department of Home Affairs to overlook these criteria on a case-by-case basis, provided the visa applicant provides compelling reasons with evidence to support a new visa application. Here is a comprehensive guide to Schedule 3 and the waiver provisions.
What Is Schedule 3 for Partner Visas?
Schedule 3 generally applies to onshore partner visa applicants who do not hold a substantive visa at the time of lodging a partner visa application. The visa applicant may then hold a criminal justice visa, a bridging visa, or a protection visa, or they may not have a legal permit to remain in the country. Schedule 3 sets further requirements and strict time limits that applicants must meet to receive their visa.
The core purpose of these Schedule 3 criteria is to assess the applicant's visa history and determine whether they attempted to regularise their visa status. These provisions discourage non-citizens from staying back in Australia unlawfully or gaining an unfair advantage over other visa applicants who have successfully complied with their visa application requirements.
Who Is Required to Meet the Schedule 3 Criteria?
Schedule 3 primarily affects individuals who lodged a partner visa application after their last substantive visa ceased and they became unlawful. These provisions also apply to non-substantive or bridging visa holders who were non-compliant with previous visa conditions or stayed back in Australia unlawfully for extended periods.
Applicants on a Bridging Visa
Schedule 3 may apply where an applicant’s previous substantive visa has expired. The Department of Home Affairs will evaluate the visa status, efforts to regularise the situation, and whether unforeseen circumstances contributed to the delay.
Applicants With a Criminal Justice or Enforcement Visa
Schedule 3 applies to criminal justice or enforcement visas where the Department will assess your visa history, court matters, and compliance with migration law.
Unlawful Non-Citizens
An unlawful non-citizen without a valid Australian visa is subject to Schedule 3 in order to apply for a partner visa onshore and may be required to demonstrate compelling circumstances with supporting evidence for a Schedule 3 waiver.
Applicants Whose Substantive Visa Has Expired
If your current substantive visa has expired and you have not applied for a further visa, Schedule 3 will apply to your partner visa application. The Department of Home Affairs will evaluate the duration of your stay after your visa expired and the reasons you did not lodge a new visa application to decide whether there are compassionate grounds for a waiver.
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Schedule 3 Criteria Explained (3001, 3002, 3003, 3004)
Schedule 3 criteria are technical guidelines that apply when you apply for a partner visa while holding a bridging visa or other non-substantive visa.
Schedule 3 Criterion 3001
Criterion 3001 concerns timing, which requires you to apply for a new visa after your previous substantive visa expired. Applying beyond the timeframe (often 28 days) is a breach of 3001, and the Department may allow a waiver.
Schedule 3 Criterion 3002
Criterion 3002 states that the applicant must apply for a subsequent visa within 12 months of their last valid visa ending, being on a criminal justice or substantive visa, or entering Australia unlawfully.
Schedule 3 Criterion 3003 (for Unlawful Entrants)
Criterion 3003 applies to an illegal entrant who entered Australia without a valid permit. In such cases, they must meet a few conditions.
- The applicant must prove that becoming unlawful was beyond their control.
- The minister sees compelling reasons to grant a substantive visa.
- They would have been qualified earlier before becoming unlawful.
- They agree to comply with all future visa conditions.
Schedule 3 Criterion 3004 (for Those Who Remain Unlawful)
Applicants who entered Australia unlawfully and do not hold a substantive visa must meet the following requirements under Criterion 3004.
- The applicant must show that their unlawful status was beyond their control.
- The minister sees compelling reasons for the grant of their subsequent visa.
- The applicant complied with previous non-substantive visa conditions.
- They were eligible for a partner visa (subclass 820) at the time they became unlawful.
- They agree to adhere to all future visa conditions.
Schedule 3 Criteria | Applies to | Key Requirement | Can It Be Waived? |
3001 | Non-substantive visa holders | Lodge within 28 days | Yes |
3002 | Non-substantive visa holders | Lodge within 12 months | Yes |
3003 | Unlawful entrants | Must show compelling reasons, beyond control | Yes |
3004 | Unlawful & never held a substantive visa | Strong compelling reasons & compliance | Yes |
What Is a Schedule 3 Waiver?
A Schedule 3 waiver lets unlawful visa applicants or holders of non-substantive visas lodge a substantive visa application during their stay in the country, provided they fulfil all strict conditions.
What Counts as “Compelling Reasons”?
Compelling reasons are exceptional circumstances that may justify the grant of a waiver, including:
- The presence of Australian citizen children
- Severe illnesses or disabilities
- Significant financial, emotional, or mental hardship the Australian partner or family would face if the applicant had to leave Australia
- Factors beyond your control, such as war, natural disaster, official error or serious accident
- Longstanding, genuine relationship and joint responsibility of care
What Are “Factors Beyond My Control”?
“Factors beyond my control” are circumstances that caused the applicant to remain in the country unlawfully without a permit through no fault of their own.
Examples of Valid Factors
- Serious medical conditions
- Long hospital stays
- Death of a close family member
- Agent error
- Unexpected legal barriers
- War or civil unrest in the home country
- Your school cannot provide the approved course
Examples That Generally Do NOT Qualify
- Failing a course
- Lack of awareness of the visa provisions
- Pregnancy
- Marriage or starting a de facto relationship with a permanent resident or an Australian citizen
Receiving a Schedule 3 Warning Letter
A Schedule 3 warning letter suggests that Schedule 3 criteria apply and gives you a deadline to provide submissions, reasons for your visa history, and evidence of your relationship and hardship. It is important to respond within the stipulated time with clear submissions and supporting evidence to ensure the Department is provided with all relevant information for assessment.
Can Schedule 3 Requirements Be Successfully Waived?
You can have the Schedule 3 requirements waived if you provide a statutory declaration detailing your circumstances and contrition, proof of honest compliance with the last visa requirements, and evidence of a stable relationship.
Yes, but Only If Compelling Circumstances Exist
The Department may exercise its discretion to waive Schedule 3 where compelling circumstances exist and where the applicant can provide sound evidence in support of the waiver request.
Common Successful Scenarios
- Care for Australian citizen children
- Applicants who became unlawful due to a proven agent error but took quick action to correct their status
- Partners with severe medical conditions
What If My Schedule 3 Waiver Is Refused?
If you do not get a successful outcome of your waiver request in Australia, the Department may refuse your partner visa as well. However, you may review your rights at the Administrative Appeals Tribunal (AAT/ART) within 21-28 days. Sometimes, applicants might have to leave Australia and consider applying for an offshore partner visa.
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Book a Consultation
If you are interested in getting more information about a visa, get in touch with Australian Migration Lawyers for a consultation.
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Frequently Asked Questions
What Is a Schedule 3 Waiver for Partner Visas?
A Schedule 3 waiver is the Department’s discretion to approve your partner visa application request even if you do not meet the strict requirements of Schedule 3 due to compelling and compassionate reasons, backed by substantial evidence.
Can I apply for a partner visa if I am unlawful?
Yes, you can apply for an onshore partner visa (subclass 820/801) if you are unlawful, but you will have to meet the strict requirements listed under Schedule 3.
What Are the Compelling Reasons for a Schedule 3 Waiver?
Compelling reasons for granting a Schedule 3 waiver include an Australian child, significant hardship, severe health conditions, factors beyond human control, and strong community ties.
Can Schedule 3 Be Waived for Relationship Hardship?
Although relationship hardship may not be considered compelling enough on its own, it can contribute to a waiver if the separation causes significant emotional or practical challenges, especially if an Australian child or long-term ties are involved.
What Happens If My Waiver Request Is Refused?
A declined waiver request could immediately lead to visa refusal or cancellation. However, you may appeal to the Administrative Appeals Tribunal (AAT/ART) within 21-28 days.
Do All Partner Visa Applicants Need to Meet Schedule 3?
No. Only applicants without a substantive visa, or unlawful non-citizens, or those who have been on certain non-substantive visas, need to meet Schedule 3 criteria. Applicants with valid visas or who have complied substantially with conditions are generally unaffected.
How Do I Respond to a Schedule 3 Warning Letter?
Review the warning letter and note the deadline. Prepare a detailed statement showing your visa history, hardship suffered, or any factor beyond your control, supported by documents and medical reports, if any. Consider seeking advice from a registered migration agent or an Australian lawyer regarding your response.
Get Specialist Help With Schedule 3 Waivers
Schedule 3 waivers involve complex legal criteria and may lead to refusal if not addressed thoroughly. Australian Migration Lawyers can provide detailed advice on Schedule 3 requirements for partner visas. Contact our team to discuss your circumstances and obtain tailored legal guidance.
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