What is Schedule 3?

Schedule 3 of the Migration Regulations 1994 states that if you do not hold a substantive visa at the time of lodging your partner visa, you may still be eligible for the visa if you satisfy the Schedule 3 criteria.

A substantive visa does not include a bridging visa, criminal justice visa, or enforcement visa. If you are an unlawful non-citizen, meaning you do not hold any valid visa in Australia, Schedule 3 applies to you as well.

Schedule 3 allows eligible applicants to apply for a partner visa onshore instead of lodging the application from outside Australia. The purpose of Schedule 3 is to encourage individuals to apply for a substantive visa before their previous visa expires and to reduce the number of unlawful non-citizens in Australia.

If an applicant meets the requirements for Schedule 3, they must lodge their partner visa within the specified timeframe.

What Are the Requirements of Schedule 3?

Schedule 3 includes two main provisions:

• Applicants holding a Diplomatic (Subclass 995) visa or a Special Purpose Visa must meet specific requirements outlined in Schedule 3 criteria 3002.
• Applicants who satisfy Schedule 3 criteria 3001, 3003, and 3004 can be exempted from meeting these criteria if the Minister finds compelling reasons to waive them.

Criteria 3001, 3002, 3003, and 3004 Explained

Criteria 3001

The partner visa must be lodged within 28 days of the applicant’s substantive or criminal justice visa ceasing or from when they entered Australia unlawfully.

Criteria 3002

The partner visa must be lodged within 12 months of the applicant ceasing to hold a substantive or criminal justice visa or from when they entered Australia unlawfully.

Criteria 3003

Applies to applicants who entered Australia unlawfully or held an invalid entry permit. They must:

• Prove that their unlawful status was beyond their control.
• Provide compelling reasons for a substantive visa to be granted.
• Show that they would have qualified for an entry permit if they had applied earlier.
• Agree to comply with all future visa conditions.

Criteria 3004

Applies to applicants who entered Australia unlawfully and have never been granted a substantive visa. They must:

• Prove that factors beyond their control led to their unlawful status.
• Provide compelling reasons for a substantive visa to be granted.
• Demonstrate compliance with all previous non-substantive visa conditions.
• Show that they would have been eligible for a Partner Visa (Subclass 820) if they had applied earlier.
• Agree to comply with all future visa conditions.

What Are Compelling Circumstances for a Schedule 3 Waiver?

To waive Schedule 3 criteria 3003 and 3004, applicants must show compelling reasons that the Minister should consider when deciding their case.

The Department of Home Affairs does not provide a strict definition of compelling circumstances, but in practice, the term refers to situations of moral necessity. Some examples include:

• The applicant and their partner have an Australian child.
• The Australian partner would suffer significant hardship if the visa is refused.
• The applicant is experiencing serious illness or medical conditions beyond their control.

Factors Beyond the Applicant’s Control

Applicants must show that their unlawful status or lack of a substantive visa was due to factors beyond their control. This means:

• There must be a clear causation link between the external factors and their visa status.
• The circumstances must be external to the applicant and not something they could have personally controlled.

Some examples of factors beyond an applicant’s control include:

• An error in visa notification where the visa grant date does not match the actual expiry date.
• A serious accident or illness that prevented the applicant from lodging a visa application on time.

Received a Schedule 3 Warning Letter? What Should You Do?

The Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 judgment significantly widened the acceptable compelling circumstances for Schedule 3 waivers. Since this decision, more Schedule 3 waivers have been granted based on factors that previously would not have met the threshold.

Can Schedule 3 Requirements Be Successfully Waived?

Yes, Schedule 3 criteria can be waived. The Department of Home Affairs will assess the following when considering a waiver:

• Why you became an unlawful non-citizen.
• Why you did not apply for a visa sooner.
• Steps you took to legalize your visa status.
• Your visa history, including previous non-compliance.
• The duration you have been an unlawful non-citizen.

If you meet compelling circumstances, Schedule 3 can be waived at any point before a final decision is made.

Get Professional Advice on Schedule 3 Waivers

Schedule 3 waivers are complex, and refusal will result in significant financial and emotional hardship. Engaging specialist immigration lawyers can greatly improve your chances of success.

How Global Vision Migration Can Assist You

• Assess your eligibility for a Schedule 3 waiver.
• Prepare a compelling submission to support your waiver request.
• Provide legal strategies to maximize approval chances.
• Lodge and monitor your application to ensure a smooth process.

Schedule 3 issues can lead to visa refusals if not addressed properly. If you have received a Schedule 3 warning letter, contact Global Vision Migration immediately for expert assistance.