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…

Helping People Just Like You

What matters to us most is what our clients have to say about their experience once everything has been resolved. Below are some of the messages we have received from people we’ve represented.

KAMALPREET SINGH
KAMALPREET S.
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Nay Z.
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Abdul hamid Adam
Abdul hamid A.
My partner and I walked into Gold Migration for the first time in early November 2023 for seeking help about my case in AAT. Saemeh Ghasemi help me and support me through with everything that I need to prepare for hearing in next few week. Saemeh Ghasemi also accompany and attend AAT hearing with me. Saemeh Ghasemi always give us mentally support, tell us don’t be stress. In January 2024, Saemeh called me and give me a good news, that we won ATT. Thank you Saemeh Ghasemi, you make my self and my partner can be together and stay in Australia together. Thank you Gold migration lawyers.read more
Simon m
Simon m
I engaged Gold Migration, because I had left things a little too late and there were some factors that were too complicated and too confusing and too high risk for me to do on my own.My first meeting with them was by video. I was looking at a set up with lined up desks much like you see in a court room drama. There were 3 people in the room. They asked me to describe my circumstances and they answered my questions. They were forthright and pulled no punches, they told me the risks and the issues I would have to deal with. Then they conferred together and then gave me a price. It wasn’t the most expensive I had been quoted, nor the cheapest, but what impressed me about them was the machine like efficiency they dealt with the problem from the beginning. There are NO surprises from this firm. They lay out all the costs at the time of engagement, they tell you the steps they will be taking and their approach.Remember this is Immigration you’re dealing with, even expert lawyers have no control over such a department, timescale is not in the control of you or your lawyers.For the first month it was a flurry of activity for me. They sent me a cloud based drive to upload all my documents and evidence to. They reviewed it and made suggestions. All of the statements they asked me to write came with examples and best way to write them. Then they told me they had everything they needed and to leave it with them. On reflection I realised I had witnessed a highly experienced team in action. They asked for and got what they needed, it was explained and documented and organised. They have a very efficient set of procedures they follow and they make sure all the boxes are ticked before they submit.You can’t fault this level of experience and practical application, you basically pay them and go along for the ride. Over the months as immigration dealt with the case they came back to me a few times and asked for more information. I know they wrote reports and fielded questions from immigration but all I got was a comment that everything was tracking as planned.The most interesting part for me to see was the obvious pleasure and satisfaction they enjoyed when they called me to tell me we finally had the PR visa. They took it personally and that meant a lot to me.Are they expensive ? Well that depends, how much is having your family members live with you in Australia worth to you ? They are not the cheapest , they are not the most expensive, but I am confident that they are the best!If you are worried about getting a loved one or a valued worker a visa, or you are having issues with your visa, you should not hesitate to go with the gold standard. Go with Gold Immigration and sleep better at night knowing your visa issue is in good hands.read more
Jalal Razavi
Jalal R.
Entrusting Gold Migration Lawyers was the best decision I ever made for my parents to obtain a safe and secure future here in Australia. A life changing decision for them.Our case manager was Saemeh Ghasemi who was instrumental in ensuring their Protection Visa was thoroughly detailed and solid. Saemeh was very kind caring and took extra effort to understand and appreciate the dire situation of my parents and was very supportive all the way to a successful "Visa Granted" outcome.Thank you Saemeh and team for your dedicated and supportive service to me and my parents."Gold Migration Lawyers indeed provides GOLD CLASS service" and I strongly recommend them to our family and friends.read more
Daniel Esdaile
Daniel E.
My partner and I had walked into Gold Migration for the first time in May of 2023. I was anxious at I knew by the time we would have to lodge our partner visa we would not have lived together for 12 months. Walt had given us the reassurance that all would be okay, I instantly felt that sigh of relief through the professional and welcoming service that Walt and his team had provided. We then began our journey with Gold Migration Lawyers, the whole time Walt had been there to support us through every enquiry and every piece of evidence. We eventually submitted our visa in October with every bit of confidence of a positive outcome. In February we got out 820 grant, the moment Walt had told me that the visa had been granted I began to cry of happiness. Thank you Walt! Thank you Gold migration lawyers, you have allowed myself and my partner to be in Australia together.read more
Ghassan Elbarhoun
Ghassan E.
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Isoa Talevakaruamainairai
Isoa T.
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Tyler M.
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