1300 320 300Who 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:
- 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
- you satisfy Schedule 3 criteria 3001, 3003 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
Marcus Nilsson (.
I highly recommend Gold migration for everyone that is in need of help with their partner visas.Migrating to another country to be with the one you love can be a scary and frankly very confusing process with all the forms and relationship evidence that needs to be presented to Immigration. Luckily for me and my partner, our agent Emad Khraim, made the process a lot easier by giving us the confidence to and clarity to know what to focus on at any given time.With his friendly demeanor, Emad was never more than a phone call or mail away and he was always quick to reply to any enquiries we had, big or small (or stupid). With his expertise he made sure that we were always up to date on the latest immigration law changes and what piece of relationship evidence we should prioritize on procuring next, making this daunting (and at times overwhelming) process a lot less stressfull than it could have been had we gone about it alone. All in all it has been a absolute pleasure working with Emad and I can confidently say that we've been well taken care of all the way through this journey.As of now writing this, me and my partner were a couple of days ago granted our partner visa and we can't thank Gold migration enough for all their help they've provided in getting us here.read more
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I'd like to thank Walt Calis and the firm for their exceptional work on our partner visa.They made the process incredibly easy and made us feel comfortable regarding any questions we had.Our partner visa 820 was granted today and we are absolutely over the moon!After a few delays while trying to get a difficult police clearance, after everything was submitted, we still received the visa within 3 months which we never thought would be possible.If you have any doubt about going to Gold Migration, don't. We would never have been able to go through this process without them, and have the visa approved so quickly.Thank you and forever grateful!read more
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Only 3 MONTHS from submission to approval for our Subclass 300 Marriage visa! It went beyond our expectations and Saemeh Ghasemi from Gold Migration was with us every step of the way. My partner and I chose this service after reading the many positive reviews and after I first met Saemeh via Zoom call, for our initial consultation. Saemeh is not only professional, but genuinely cares about her clients. We are so grateful we trusted Gold Migration and Saemeh Ghasemi - thank you!read more
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I was recommended to go to Gold Migration Lawyers earlier this year by a family friend to get assistance in applying for my wife’s onshore partner visa. Walt Calis was our lawyer there and he was fantastic. He was very approachable, caring and incredibly dedicated in helping us with the visa application from the very beginning. We were successful in getting my wife’s partner visa granted surprisingly in just under 3 months from the time the application was lodged, which was amazing. I’m really grateful for Gold Migration lawyers, and in particular Walt Calis for his honesty, openness and dedication, and I highly recommend him and Gold Migration Lawyers in general to anyone that is looking for assistance in lodging a partner visa application.read more
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My partner and I applied for Subclass 820/801 through Gold Migration Laywers and it was granted in less than a month. Whole process was streamlined and efficient. Big thank you to Emad, Ben and Kathryn.In the first consutaltion (face to face), Emad and Ben explained how the visa application process will be, including the expected timeframe. Preparing requirements were done via email communication. Emad provided us advice on documentations and ensured that we were on track.Before I had the first consultation I thought the application process would be tiring and time consuming. However, Gold Migration Lawyers made it so simple and easy!read more
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