The purpose of this fact sheet is to provide a general overview of Schedule 3 criteria and how it applies to onshore partner visa applications (subclass 820/801). We discuss the Schedule 3 requirements which must be satisfied for visa grant and cases to which it applies. We also explain how the schedule 3 waiver provisions operate, which enable the Department to proceed with approving your application without having to meet Schedule 3.

What is Schedule 3 and when does it apply?

Schedule 3 criteria prescribe additional requirements for the onshore grant of a partner visain circumstances where you do not hold a substantive visa at the time of lodgement of your application. A substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa.

Therefore, if you are in Australia and you do not hold a valid visa at the time of lodgement (and you are therefore an unlawful non-citizen), or you hold a bridging visa, for example, you would need to meet schedule 3 criteria for grant of the partner visa, unless the Department waives this requirement.

Schedule 3 provides an avenue for applicants who would otherwise not be eligible for onshore visa grant (by reason of their unlawful status in Australia, for example), to apply for and be granted a partner visa whilst they remain in Australia (rather than having to depart and apply for the visa from offshore).

It aims is to encourage visa holders who are in Australia and who wish to apply for a further visa from onshore, to do so before their substantive visa expires. It operates by imposing a time limit within which the visa application must be lodged and prescribes requirements regarding factors that resulted in the applicant not holding a substantive visa at the time of lodgement. Schedule 3 requirements can also be waived in certain circumstances where compelling reasons exist to not apply schedule 3 criteria as a requirement for visa grant.

Examples of persons to whom Schedule 3 might apply include those who have remained in Australia unlawfully after their substantive visa has expired or been cancelled, or to those who entered Australia unlawfully and have therefore never held a valid visa. It also often applies in conjunction with section 48 of the Migration Act. This provision allows persons who:

  • are onshore;
  • do not hold a substantive visa; and
  • since last entering Australia, have had a visa refused or cancelled

to apply for a visa onshore from a prescribed list of visa classes. One option is the Partner subclass 820/801 visa.

What are the Schedule 3 requirements that apply to an onshore partner 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 3001, 3003 and 3004, unless the Minister for Immigration is satisfied that there are compelling reasons for not applying those criteria.

We now discuss each of these Schedule 3 criteria in more detail, but with a greater focus on the second point above, being the most common scenario for potential onshore partner visa applicants.

3001

Schedule 3 criterion 3001 requires the visa application to be lodged within 28 days after you:

  • ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
  • entered Australia unlawfully on or after 1 September 1994.

3002

Schedule 3 criterion 3002 requires the visa application to be lodged within 12 months after you:

  • ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
  • entered Australia unlawfully on or after 1 September 1994.

Schedule 3 criteria 3001 and 3002 are identical with one exception, being the time limit within which the visa application must be made (i.e. 28 days versus 12 months).

3003

Schedule 3 criterion 3003 applies if:

  • as at 31 August 1994, you were an illegal entrant or held an entry permit that was not valid beyond 31 August 1994; and
  • since 1 September 1994, you have not held a substantive visa.

If the above applies, you will need to meet all of the following requirements:

  • you must have last become an illegal entrant or a non-substantive visa holder due to factors beyond your control;
  • there must be compelling reasons for granting the visa;
  • you must have complied substantially with the conditions that applied to your last held entry permit/s and any subsequent bridging visa; and
  • you would have been entitled to be granted an entry permit equivalent to an onshore partner visa if you had applied for the entry permit immediately before last becoming an illegal entrant or, if you had applied for the entry permit on 31 August 1994;
  • you intend to comply with any conditions to which the partner visa would be subject if granted; and
  • the last entry permit (if any) that you held was not granted subject to a condition that you would not, after entering Australia, be entitled to be granted a further entry permit, whilst you remained in Australia.

3004

Schedule 3 criterion 3004 applies in circumstances where you:

  • ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
  • entered Australia unlawfully on or after 1 September 1994 and have not subsequently been granted a substantive visa.

If you satisfy the above, all of the following requirements must be met:

  • you must not be the holder of a substantive visa because of factors beyond your control;
  • there must be compelling reasons for granting the visa;
  • you must have complied substantially with the conditions that applied to your last held entry permits/substantive visas and subsequent bridging visa;
  • you would have been entitled to be granted an onshore partner visa if you had applied for the visa on the day when you last held a substantive or criminal justice visa; or you would have satisfied the criteria for the grant of an onshore partner visa on the day when you last entered Australia unlawfully; and
  • you intend to comply with any conditions that apply to the onshore partner visa if granted; and
  • if the last visa (if any) that you held was a temporary visa, that visa was not subject to a condition that you would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, whilst you remained in Australia.

Schedule 3 criteria 3003 and 3004 are essentially the same, the only difference being the date when you became an unlawful non-citizen of Australia. You will note reference made to the terms entry permit and substantive visa. Entry permits were issued before 1 September 1994 and granted persons permission to enter or remain in Australia. Substantive visas replaced entry permits from 1 September 1994.

Schedule 3 criteria 3003 and 3004 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, they should nevertheless be able to remain onshore. It achieves this be permitting the individual circumstances of each applicant to be taken into account in explaining why they have remained in Australia beyond the expiry of their substantive visa, for example.

Key common elements under Schedule 3 criteria 3003 and 3004

Factors beyond your control

Both Schedule 3 criteria 3003 and 3004 require you to satisfy the Department that you became an illegal entrant, or non-substantive visa holder, due to factors beyond your control.

This requires the following to be satisfied:

  • there must be factors which caused you to become an illegal entrant or non-substantive visa holder; and
  • these factors must have been beyond your control.

It is important to note that the factors which are beyond your control must have caused you to become an illegal entrant or a non-substantive visa holder. One must cause the other.

The Department will consider your individual circumstances in determining whether the circumstances which resulted in you becoming an illegal entrant or non-substantive visa holder were due to factors beyond your control.  To meet this requirement, you must demonstrate that these circumstances were external to you and thus not something that you could control. Examples of acceptable circumstances for this purpose (as outlined in Immigration policy) may include where a serious accident or illness results in you being incapable of making an application.

Circumstances which are less clear-cut include where you claim that you were not aware that you were an illegal entrant or non-substantive visa holder. Or you misinterpreted the validity period of your visa or the conditions attached.

These types of situations will be assessed on a case-by-case basis. Generally, the relevant circumstances would need to be the result of incorrect Immigration advice provided to you and which you relied upon. For example, if your visa ceased on a date earlier than the date specified on your passport visa label or visa grant notification notice.

Compelling reasons for visa grant

Schedule 3 criteria 3003 and 3004 each require there to be compelling reasons for granting the visa.

The term ‘compelling’ is not defined in the migration provisions, and therefore under Immigration policy, its ordinary dictionary meaning should be applied. The dictionary definition of compelling ‘brought about by moral necessity.’

Compelling reasons may relate to compassionate factors, they may arise from your personal circumstances, or the circumstances of another person. Circumstances beyond your control (as discussed above) may also constitute compelling reasons for granting the visa. For example, a serious accident or illness might satisfy both the ‘factors beyond your control’ and ‘compelling reasons’ elements of Schedule 3 criteria 3003 and 3004.

In making its assessment of whether compelling reasons exist for granting the visa, Immigration will consider all the relevant individual circumstances of your case.

Can Schedule 3 criteria be waived?

Yes, in certain circumstances, provision is made in the migration legislation which allows the Department not to apply schedule 3 criteria as a requirement for visa grant. For the waiver to be applied, there must be compelling reasons for not applying Schedule 3 criteria.

In the most common scenario for onshore partner visa applicants to whom Schedule 3 criteria applies, you will need to meet criteria 3001, 3003 and 3004 for visa grant. If you have been in Australia without a substantive visa for a period exceeding 28 days (for example, you may have been residing in Australia for several years without a valid visa), you will not satisfy criterion 3001. In such a case, you would not be able to meet Schedule 3 (even if you satisfy criteria 3003 or 3004). You would only be eligible for grant of an onshore partner visa if the Department applies a waiver of schedule 3.

As the migration provisions do not prescribe the circumstances to be considered when assessing whether ‘compelling reasons’ exist to not apply Schedule 3 criteria, the Department will consider the circumstances of each individual case.

The circumstances which led to you becoming unlawful and/or which prevented you from regularising your status through means other than applying for the partner visa must be genuinely compelling. ‘Regularising your status’ means taking the necessary steps to obtain a valid visa such that you are no longer an unlawful non-citizen.

An example of where such circumstances may warrant the waiving of schedule 3 criteria are where circumstances occurred beyond your control, such as severe illness or being incapacitated.

Factors which the Department may consider when determining whether your circumstances are compelling include:

  • your history of non-compliance with visa conditions;
  • the period that you have been an unlawful non-citizen;
  • the reason/s why you became an unlawful non-citizen;
  • the reason/s why you did not seek to regularise your visa status sooner; and
  • the steps that you took (if any) to regularise your lawful status in Australia (other than applying for the current visa).

Under Immigration policy, circumstances which are unlikely to be compelling to waive Schedule 3 may occur if you have remained unlawfully in Australia for several years and you have not taken steps to obtain a valid visa.  If you were then to claim compelling circumstances based on having a long-term relationship with your sponsor or if you claim hardship would be caused by a separation if were to depart Australia to apply from offshore, this argument may not succeed (noting this assessment will be made by the Department on a case-by-case basis).

If you were prevented from regularising your visa status due to external factors beyond your control (e.g. severe illness), this may be considered compelling circumstances which warrant the waiving of schedule 3. Again, this will depend on the individual circumstances of each case.

A crucial aspect of the schedule 3 waiver criteria is the fact that compelling reasons are not limited to circumstances in existence at the time of application. Compelling reasons can arise at any time after the date of application lodgement up to the time of decision. This means that both the Department, in initially considering your application, and the Administrative Appeals Tribunal (AAT), to whom you would apply for a reviewof your case should your application be refused, can take into account compelling circumstances, regardless of when they occurred. They are not limited to considering only compelling circumstances that existed at the time that the application was made. Circumstances that arose after the application was made must also be taken into account.

This is a significant change which came about as a result of the judgement of the Full Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32(11 March 2016). Historically, it has been very difficult to successfully have a waiver of Schedule 3 applied by the Department, and the result was a high refusal rate for applicants in this situation. This case is likely to improve the prospects for these applicants, by widening the scope of compelling circumstances that can be relied upon.

For up to date advice on Schedule 3 criteria and how it applies to your personal situation, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.