In most cases, applicants for an onshore Partner (subclass 820/801) visa must hold a substantive visa at the time they lodge their application.
If a Partner visa applicant is not holding a substantive visa at the time of lodgement, they must generally meet the “Schedule 3″ requirements – unless the Minister accepts there are “compelling reasons” not to apply them (commonly referred to as the “Schedule 3 waiver”).
These provisions may be relevant to applicants who are currently without a visa (unlawful) or who are on certain types of Bridging Visas. This newsletter outlines key considerations for Partner visa applicants in these circumstances.
What is Schedule 3?
Applicants for an onshore Partner visa (subclass 820/801) who do not hold a substantive visa at the time of application must meet the Schedule 3 criteria, found in clauses 3001, 3003 and 3004. These criteria aim to limit onshore visa applications from applicants who are unlawful or on bridging visas, unless specific conditions are met.
The Key Schedule 3 Criteria
3001: requires the visa application to be made within 28 days of the last substantive visa ceasing.
3003: applies to those applicants who have not held a substantive visa after 1 September 1994, and on 31 August 1994 were an “illegal entrant” or did not hold a visa valid beyond that date. Requires:
- Circumstances beyond the applicant’s control;
- Compelling reasons for visa grant;
- Would have been eligible for an entry permit earlier, and
- Agreement to comply with future visa conditions.
3004: Similar to 3003, but applies to applicants who, after 1 September 1994, ceased to hold a substantive visa or entered Australia unlawfully after that date.
Please note that the above is a simplified overview, and the Schedule 3 criteria contain additional nuances and complexities.
When Can Schedule 3 Be Waived?
If an applicant cannot meet Schedule 3, the Minister may still grant the visa if there are compelling reasons to waive these requirements. “Compelling reasons” are not defined in the legislation, and an assessment is made on a case-by-case basis.
In Waensila, the Full Federal Court held that decision-makers must take into account all of the applicant’s circumstances up to the time the decision is made, rather than being limited to the circumstances at the time of application.
It is important to note that simply being in a partner or spousal relationship, and the hardship caused by separation if required to apply from overseas, is not generally regarded as a “compelling reason” on its own. The Department has historically considered such separation to be a common circumstance in Partner visa cases – particularly offshore applications – meaning additional, specific factors are needed to meet this threshold.
Examples of circumstances that may be considered “compelling” (but are not limited to):
- The applicant and their partner have an Australian child.
- An Australian partner’s significant physical or mental reliance on the applicant
- Circumstances that are beyond the control of the applicant, for example, serious illness or unforeseen emergencies
As noted above, the Department of Home Affairs assesses compelling circumstances individually, and no formal definition is provided within the migration regulations.
The Department of Home Affairs considers several factors when determining whether these circumstances are compelling enough to grant a waiver. These factors include:
- The reasons you became an unlawful non-citizen;
- Why you did not attempt to obtain a visa to regularise your status sooner;
- The actions you took to try to regularise your visa status or secure a visa;
- Your visa history, including any instances of non-compliance; and
- The length of time you have been an unlawful non-citizen.
The visa applicant should provide a detailed explanation of the circumstances that led to their current status without a substantive visa, along with any compelling reasons relevant to their case. It is important to submit supporting documentation to substantiate these claims.
How We Can Help
If you face a Schedule 3 issue and require a waiver, it is strongly advised to engage an experienced immigration lawyer or registered migration agent. Experienced professionals can assess your chances of a successful waiver and prepare a comprehensive request on your behalf.
Partner visa applications involve significant costs, making it crucial to secure a Schedule 3 waiver if you have valid grounds. Failure to satisfy the Schedule 3 criteria will lead to visa refusal.
We recommend contacting our office as soon as you receive any notification from the Department indicating potential issues with meeting Schedule 3. We will carefully evaluate your situation and develop a tailored strategy to guide you through the best next steps.
Changes to the relevant laws can occur without notice. The above information is not intended to be legal advice and is correct as of the date of writing this article.
Contact Migrations Affairs to speak with our experts for tailored advice on your circumstances and eligibility.
