What is Schedule 3?
Schedule 3 of the Migration Regulations 1994 applies when a partner visa applicant does not hold a substantive visa at the time of lodging their application in Australia.
A substantive visa does not include:
- Bridging visas
- Criminal justice visas
- Enforcement visas
If you are an unlawful non-citizen (meaning you hold no valid visa in Australia), Schedule 3 will apply to you.
Schedule 3 exists to:
- Encourage visa applicants to apply before their visa expires, and
- Reduce the number of unlawful non-citizens in Australia.
If Schedule 3 requirements are met (or lawfully waived), applicants may still be eligible to apply onshore for a Partner Visa instead of applying from outside Australia.
What Are the Requirements of Schedule 3?
Schedule 3 includes two key provisions:
- Applicants holding a Diplomatic (Subclass 995) visa or a Special Purpose Visa must satisfy Schedule 3 criterion 3002.
- Applicants subject to criteria 3001, 3003, and 3004 may be exempted if the Minister is satisfied that compelling reasons exist to waive these criteria.
Schedule 3 Criteria Explained
Criterion 3001
- The partner visa must be lodged within 28 days of:
- The applicant’s substantive or criminal justice visa ceasing, or
- The applicant becoming unlawful in Australia.
Criterion 3002
- The partner visa must be lodged within 12 months of:
- Ceasing to hold a substantive or criminal justice visa, or
- Entering Australia unlawfully.
Criterion 3003
Applies where the applicant entered Australia unlawfully or held an invalid entry permit. The applicant must:
- Show their unlawful status was beyond their control.
- Provide compelling reasons for granting the visa.
- Demonstrate they would have qualified for an entry permit if applied earlier.
- Agree to comply with all future visa conditions.
Criterion 3004
Applies where the applicant entered Australia unlawfully and has never held a substantive visa. The applicant must:
- Prove their unlawful status resulted from circumstances beyond their control.
- Provide compelling reasons for the visa to be granted.
- Show compliance with all previous non-substantive visa conditions.
- Demonstrate they would have been eligible for a Partner Visa (Subclass 820) if applied earlier.
- Agree to comply with all future visa conditions.
What Are “Compelling Circumstances” for a Schedule 3 Waiver?
The Department of Home Affairs does not strictly define compelling circumstances, but case law has established that it refers to circumstances of moral necessity.
Common examples include:
- The couple has an Australian citizen child.
- Significant hardship to the Australian partner if the visa is refused.
- Serious illness or medical conditions beyond the applicant’s control.
- Strong family unity considerations.
Factors Beyond the Applicant’s Control
Applicants must prove a direct causal link between external factors and their unlawful status. These factors must not be something the applicant could reasonably control.
Examples include:
- Administrative or notification errors relating to visa expiry.
- Serious accidents or medical emergencies preventing timely visa lodgement.
- Events that objectively prevented lawful compliance.
Received a Schedule 3 Warning Letter?
The Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 decision significantly broadened what may qualify as compelling circumstances. Since this ruling, Schedule 3 waivers have been granted in situations previously considered insufficient.
Can Schedule 3 Be Waived?
Yes. Schedule 3 criteria can be waived at any time before a final decision if compelling circumstances are established.
The Department will assess:
- Why you became unlawful.
- Why a visa was not lodged earlier.
- Steps taken to regularise your status.
- Your visa history and compliance record.
- Length of unlawful stay in Australia.
Get Professional Advice on Schedule 3 Waivers
Schedule 3 refusals can lead to severe financial, emotional, and migration consequences. These cases require strong legal submissions and strategic evidence.
How RR Patel Overseas And Education Private Limited Can Assist You
We provide specialist assistance with Schedule 3 Partner Visa cases, including:
- Assessing eligibility for a Schedule 3 waiver.
- Preparing compelling legal submissions supported by evidence.
- Developing strategic arguments aligned with current case law.
- Lodging and monitoring your application to minimise risk.
Schedule 3 matters must be handled carefully.
If you have received a Schedule 3 warning letter or are unlawful in Australia, contact RR Patel Overseas And Education Private Limited immediately for expert guidance.
