Schedule 3 can become relevant when a person applies for an onshore Partner (subclass 820) visa without holding a substantive visa.
This is important because the subclass 820 visa is designed to be applied for in Australia, but being physically in Australia does not, by itself, mean that an applicant can satisfy all the requirements for an onshore Partner visa. Where the applicant does not hold a substantive visa at the time of application, additional criteria under Schedule 3 of the Migration Regulations 1994 may apply.
For most applicants in this situation, the relevant criteria are 3001, 3003 and 3004. The legislation also provides specific rules for some other circumstances.
What is Schedule 3?
Schedule 3 sets out additional criteria that may apply to certain people who are in Australia without a substantive visa when they apply for a visa.
A substantive visa is, broadly, a visa that is not a bridging visa, a criminal justice visa or an enforcement visa. A person who holds only a bridging visa therefore does not hold a substantive visa.
This distinction matters for an onshore Partner visa because the criteria for subclass 820 specifically address applicants who are not the holder of a substantive visa. The regulations provide that such an applicant must generally satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Schedule 3 is therefore not an additional requirement that every Partner visa applicant must satisfy. It becomes relevant because of the applicant’s visa status in Australia at the time of the application.
What are the Schedule 3 criteria?
For an applicant who is not the holder of a substantive visa, the relevant provisions generally require consideration of criteria 3001, 3003 and 3004. These criteria address different aspects of the applicant’s circumstances.
Criterion 3001
Criterion 3001 requires a Partner visa application to be made within 28 days after the relevant day.
Where an applicant previously held a substantive visa that has ceased to be in effect, the ‘relevant day’ is generally the last day on which that substantive visa was held, meaning the 28-day period begins from the following day. The applicant must therefore make a valid Partner visa application within that 28-day period to satisfy Criterion 3001.
In circumstances where the applicant entered Australia unlawfully, Criterion 3001 provides different rules for identifying the relevant day. The 28-day period may therefore be calculated by reference to the date of the applicant’s unlawful entry rather than the cessation of a substantive visa. This is why the relevant day must always be determined from the applicant’s individual immigration history.
Criterion 3003
Criterion 3003 applies to a particular category of applicants whose immigration circumstances began before 1 September 1994.
It applies where the applicant has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or held an entry permit that was not valid beyond that date.
Where those circumstances exist, the Minister must be satisfied of several additional matters. These include that the applicant became an illegal entrant, or remained in Australia without a substantive visa, because of factors beyond the applicant’s control and that there are compelling reasons for granting the visa. The criterion also considers the applicant’s compliance with applicable visa conditions, whether they would have been entitled to the relevant visa at the specified earlier point and whether they intend to comply with any conditions attached to the visa if granted.
Criterion 3004
Criterion 3004 applies where an applicant, on or after 1 September 1994, has ceased to hold a substantive or criminal justice visa or entered Australia unlawfully and has not subsequently been granted a substantive visa.
The criterion requires the Minister to be satisfied that the applicant is without a substantive visa because of factors beyond the applicant’s control and that there are compelling reasons for granting the visa. The applicant must also have substantially complied with the conditions that applied to their previous visa and any subsequent bridging visa. This requirement is concerned with the applicant’s compliance with their visa obligations while in Australia.
Criterion 3004 also looks at the applicant’s circumstances at an earlier point in their immigration history. Depending on how the applicant became without a substantive visa, they must have been entitled to the relevant visa at that earlier point or have satisfied the visa criteria other than the Schedule 3 criteria when they last entered Australia unlawfully. The applicant must also intend to comply with any conditions attached to the visa if it is granted.
In other words, Criterion 3004 requires more than establishing that the applicant is currently without a substantive visa. The circumstances that resulted in that position, the applicant’s compliance with their visa obligations, their eligibility for the relevant visa at the specified earlier point and any compelling reasons for granting the visa must all be considered.
What does ‘compelling reasons’ mean?
Where an applicant does not satisfy the applicable Schedule 3 criteria, the subclass 820 criteria allow the Minister to consider whether there are compelling reasons for not applying those criteria.
A preference to remain in Australia, or the fact that separation from an Australian partner would be difficult, will not necessarily amount to compelling reasons. The applicant’s circumstances must be considered as a whole, with particular regard to the nature and strength of the circumstances relied upon and the evidence supporting them.
Circumstances that may be relevant include:
- The applicant’s age
- Significant employment or other personal circumstances
- Health circumstances, supported by appropriate medical evidence
- Pregnancy, where it forms part of broader compelling circumstances
- The circumstances and needs of the applicant’s family
- The practical consequences of separation from the Australian partner
- Other circumstances that demonstrate why the applicant’s situation is compelling
These factors should not be treated as an automatic list of circumstances that will result in a Schedule 3 waiver. The question is whether the individual circumstances, considered together, provide compelling reasons for not applying the Schedule 3 criteria.
Evidence is therefore important. For example, where health circumstances are relied upon, a medical or GP report may be relevant. Where the consequences of separation are relied upon, evidence should explain the actual circumstances rather than simply stating that separation would be difficult.
Ultimately, the question is whether the applicant’s individual circumstances, considered together, provide compelling reasons for the Schedule 3 criteria not to be applied. The evidence should therefore explain why the circumstances are significant in the particular case, rather than simply establish that the applicant has a genuine relationship.
What should an applicant do if Schedule 3 may apply?
Schedule 3 can have significant implications for an onshore Partner visa application, and whether it applies will depend on the applicant’s individual immigration history and circumstances. Obtaining advice before lodging the application can help identify any Schedule 3 issues and the requirements that need to be addressed.
SALIA Lawyers & Associates can assess the applicant’s visa history and circumstances to determine whether Schedule 3 applies to their proposed Partner visa application, identify the relevant criteria and advise on the evidence required to address those criteria.
Where the applicable criteria cannot be satisfied, we can also assess whether the circumstances support an argument that there are compelling reasons for the Schedule 3 criteria not to be applied and assist with preparing the application and supporting submissions accordingly.
Frequently Asked Questions
Does Schedule 3 apply to every Partner visa applicant?
No. Schedule 3 is not a requirement for every Partner visa applicant. It becomes relevant to an onshore Partner (subclass 820) application where the applicant does not hold a substantive visa at the time of application. The applicant’s immigration history then determines which Schedule 3 criteria are relevant.
Does being on a bridging visa mean Schedule 3 applies?
It can. A bridging visa is not a substantive visa, so a person who is in Australia only on a bridging visa may fall within the circumstances in which Schedule 3 must be considered. However, the fact that an applicant holds a bridging visa does not, by itself, determine whether the Schedule 3 criteria can be satisfied.
What is the 28-day rule under Schedule 3?
Criterion 3001 generally requires the application to be validly made within 28 days after the relevant day. Where the relevant day relates to the cessation of the applicant’s last substantive visa, the 28-day period is calculated from that point. The relevant day can differ depending on the applicant’s immigration history.
What happens if the Partner visa application is made more than 28 days after the relevant day?
The applicant may not satisfy criterion 3001. However, the subclass 820 criteria allow the Minister, in certain circumstances, to consider whether there are compelling reasons for not applying the Schedule 3 criteria. Whether such circumstances exist depends on the individual case and the evidence provided.
What are ‘compelling reasons’ for a Schedule 3 waiver?
Compelling reasons are circumstances that are sufficiently significant to justify not applying the relevant Schedule 3 criteria. The applicant’s circumstances are considered as a whole. Factors such as health, age, family circumstances, employment or other significant personal circumstances and the practical consequences of separation may be relevant, but no single factor automatically establishes compelling reasons.
Why does the applicant’s previous visa history matter?
Schedule 3 criteria are closely connected to the circumstances in which an applicant came to be without a substantive visa. The Department therefore needs to consider matters such as the applicant’s previous substantive visa, when it ceased, whether the applicant entered Australia unlawfully, and compliance with applicable visa conditions.
Is a genuine relationship enough to overcome Schedule 3?
No. A genuine relationship is relevant to the Partner visa application, but it does not by itself satisfy Schedule 3. Where Schedule 3 criteria are not met, the applicant may need to establish compelling reasons for those criteria not to be applied, based on their individual circumstances and supporting evidence.
Disclaimer: Please note that the information provided is intended as a general guide and should not be relied upon as legal or migration advice. As migration laws and regulations can change, we recommend consulting an Australian Lawyer or Registered Migration Agent for advice tailored to your circumstances.
