Who should pay attention to schedule 3 for partner visa

If you are applying for a partner visa onshore (Subclass 820) in Australia, you must understand what Schedule 3 criteria is.

Especially if you want to reduce the chances of a visa refusal.

Schedule 3 applies to anyone who is an unlawful non-citizen in Australia or holds a bridging visa. In other words, you do not hold a substantive visa.

If you do not hold a substantive visa, you must meet one of the following requirements to qualify for grant of an onshore partner visa:

  1. you entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder and at the time of entry, met specified requirements; and you satisfy Schedule 3 criterion 3002; or
  2. you satisfy Schedule 3 criteria 30013003 and 3004, unless the Minister for Immigration is satisfied that there are compelling reasons for not applying those criteria.

More on compelling reasons in a moment.

What is Schedule 3 criteria 3001, 3003 and 3004?

Below are the schedule 3 criteria that applies to onshore partner visas.

Schedule 3 Partner Visa – Criterion 3001

Schedule 3 criterion 3001 states that the visa application should be lodged by the applicant within 28 days of either their substantive visa ceasing or from when they entered Australia unlawfully.

Schedule 3 Partner Visa – Criterion 3003

Schedule 3 only applies if the applicant entered Australia unlawfully or did not hold a valid entry permit.

To waive this criterion, the Minister must be satisfied that the applicant became an illegal entrant because of factors beyond their control; and there are compelling reasons for granting the visa; and the applicant has been/ intends to continue complying with visa conditions.

Schedule 3 Partner Visa – Criterion 3004

Schedule 3 criterion 3004 applies if the applicant entered Australia unlawfully and has not subsequently been granted a substantive visa.

The minister must be satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control; and there are compelling reasons for granting the visa; and the applicant has been/ intends to continue complying with visa conditions.

Can non-citizens who fall under the schedule 3 (3001, 3003 and 3004) apply for a partner visa?

Schedule 3 criteria recognise that there are circumstances that can arise where, despite the fact that a non-citizen has stayed in Australia after the expiry of their visa or even entered Australia illegally, they should nevertheless be able to remain onshore.

The individual circumstances of each applicant needs to be taken into account in explaining why they entered Australia unlawful or have remained in Australia beyond the expiry of their substantive visa.

If these circumstances are beyond these individuals control, they might still have grounds to apply for a partner visa.

We call these circumstances “compelling reasons”.

What are compelling reasons?

Compelling reasons for granting a substantive visa can be both based on personal circumstances or circumstances of another.

Examples include but are not limited to:

  • The applicant and their partner have an Australian child; In this case the child might be adversely affected in the absence of one of the parents.
  • The Australian partner will suffer if the applicant is not granted the substantive visa; or
  • Circumstances which are beyond the control of the applicant, for example, serious illness or accident. For example, a serious illness prevented the person to apply for a new visa before the expiration of the previous visa.

Compelling circumstances are assessed individually by the Department of Home Affairs and there is no definition made available in any migration provisions.

The Department of Home Affairs relies upon a standard definition of compelling meaning the circumstances were brought about by moral necessity.

If you have “compelling reasons” you could be able to waive schedule 3 during your partner visa application.

That said, it’s not easy to convince the Department you have genuine compelling reasons. You should seek partner visa legal advice.

Here is an example of partner visa letter you could receive from the Department of Home Affairs referencing Schedule 3?

Invitation to comment on information for a Partner (Subclass 801) visa

Schedule 3 Criteria – Compelling Reasons

When you lodged your Partner visa application you were not the holder of a substantive visa because your [previous visa name] ceased on [date].

For Partner visa applications lodged within Australia, the Migration Regulations state that, if you are not the holder of a substantive visa at the time of lodging your Partner visa application, you must satisfy additional Schedule 3 criteria (specifically, each of criteria 3001, 3003 and 3004), in addition to satisfying the standard Partner visa criteria. Schedule 3 criteria does not apply to offshore Partner visas, and failure to satisfy Schedule 3 does not prevent you from lodging a Partner application outside Australia.

Criterion 3001 requires that an application was made within 28 days after your substantive visa ceased. You do not meet criterion 3001, however the Migration Regulations allows the Schedule 3 criteria to be waived where there are compelling reasons for not applying those criteria.

The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not compelling reasons exist to not apply Schedule 3 criteria. Circumstances are considered on a case by case basis.

What should you do if you receive a letter from the Department of Home Affairs referencing Schedule 3 like the one above?

It’s highly recommended that you seek legal professional advice.

Schedule 3 can be waived. But it’s not easy.

Likewise, if your partner visa application has been refused under schedule 3, you can still appeal to the AAT. And you should seek professional advice.

We have successfully represented many clients with schedule 3 waiver applications…

Fill in the form below to see if our partner visa lawyers think you have “compelling reasons” to apply for a partner visa under schedule 3…

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