A Schedule 3 waiver may allow certain partner visa applicants to apply onshore in Australia even if they do not hold a valid visa, provided they can demonstrate compelling reasons for their situation.
Key takeaways
- Schedule 3 applies to applicants who are unlawful or hold certain bridging visas.
- It affects people applying for an onshore Partner Visa.
- Applicants must show compelling reasons for why they should be allowed to apply in Australia.
- Overstaying a visa does not automatically prevent an application, but it increases complexity.
- Professional advice is strongly recommended before applying in Schedule 3 situations.
What is Schedule 3 in Australian migration law?
Schedule 3 refers to a set of criteria in the Migration Regulations that apply to people who are applying for certain visas while they are not holding a valid substantive visa.
In practical terms, it usually affects people who:
- have overstayed a visa
- are currently unlawful in Australia
- hold a Bridging Visa
For partner visa applicants, this means additional requirements must be met before the application can be considered valid.
When is a Schedule 3 waiver required?
A Schedule 3 waiver is required when a person applies for an onshore partner visa but does not meet the usual validity requirements due to their immigration status.
This commonly applies when:
- the applicant’s previous visa has expired
- the applicant is unlawful at the time of applying
- the applicant has been unlawful for a period before applying
- the applicant holds a bridging visa because they have previously applied for another type of visa
These situations are most relevant for applicants considering the Subclass 820 Partner Visa, which is the onshore partner visa pathway.
What are “compelling reasons” for a Schedule 3 waiver?
To be granted a Schedule 3 waiver, the applicant must show compelling reasons for why they should be allowed to apply for a partner visa in Australia despite not holding a valid visa.
There is no fixed definition, but the Department of Home Affairs may consider factors such as:
- the strength and genuineness of the relationship
- the length of time the applicant has been in Australia
- hardship to the applicant or their partner if the application is refused
- the circumstances that led to the visa becoming unlawful
Each case is assessed individually, and the outcome depends on the overall circumstances.
Can you apply for a partner visa if you are unlawful?
In some cases, yes.
Being unlawful does not automatically prevent someone from applying for a partner visa, but it does mean Schedule 3 will apply and must be addressed.
Applicants in this situation need to:
- meet all standard partner visa requirements
- provide strong relationship evidence
- clearly explain their immigration history
- demonstrate compelling reasons for the waiver
Because these applications are more complex, they carry a higher risk if not prepared correctly.
Does Schedule 3 apply to offshore partner visas?
No.
Schedule 3 only applies to onshore visa applications.
If an applicant applies from outside Australia, such as through the Subclass 309 Temporary Partner Visa, Schedule 3 requirements do not apply.
However, offshore applications come with different considerations, including processing times and travel limitations.
Why Schedule 3 cases require careful planning
Schedule 3 cases are considered higher risk because they involve immigration compliance issues.
Common risks include:
- refusal due to insufficient compelling reasons
- delays caused by unclear or incomplete information
- complications from past visa history
A properly prepared application should clearly explain the applicant’s situation and address the Schedule 3 criteria directly.
Understanding Schedule 3 before applying
A Schedule 3 waiver allows certain applicants to apply for a partner visa in Australia despite not holding a valid visa, but it requires strong justification and careful preparation.
If you are unsure whether Schedule 3 applies to your situation, it is important to seek advice before lodging an application.
Learn more about how partner visas work on our About Us page or book a free consultation to discuss your circumstances.
