Schedule 3 Waivers

Schedule 3 Requirements for Partner Visas

What is Schedule 3?

Schedule 3 of the Migration Regulations 1994 state that when you do not hold a substantive visa in Australia at the time of lodgement of your partner visa, you can still be eligible to be granted the visa if you satisfy the Schedule 3 criteria. You do not hold a substantive visa if you are the holder of a bridging visa, criminal justice visa or an ‘enforcement visa’.

You will also need to satisfy these criteria if you are an unlawful non-citizen who does not hold a valid visa or bridging visa in Australia.

Schedule 3 allows applicants to apply for a partner visa onshore as long as they meet the criteria instead of having to go offshore and lodge from outside Australia. The main aim for this schedule is to encourage applicants to apply for the substantive visa before their previous visa expires.

It aims to lower the number of persons on non-substantive visas or unlawful non-citizens. If the applicant fits the requirements to fulfill Schedule 3, the schedule enforces a time limit that the applicant must lodge their partner visa within.

What are the requirements of Schedule 3?

There are two relevant provisions when addressing Schedule 3:

1. The applicant is the holder of a Diplomatic (subclass 995) visa or a special purpose visa and when they entered Australia they met detailed requirements found in Schedule 3 criteria 3002;
2. The applicant satisfies Schedule 3 criteria 3001, 3003 and 3004. They can be exempt from meeting these criteria if the Minister is satisfied that there are compelling reasons for not applying those criteria.

What are criteria 3001, 3002, 3003 and 3004 for Schedule 3?

Criteria 3001 of Schedule 3 is that the subsequent visa application must be lodged by the applicant within 28 days of either their substantive or criminal justice visa ceasing or from when they entered Australia unlawfully.

Criteria 3002 of Schedule 3 is that the subsequent visa application must be lodged by the applicant within 12 months of them ceasing to hold a substantive or criminal justice visa or from when they entered Australia unlawfully.

Criteria 3003 of Schedule 3 only applies if the applicant entered Australia unlawfully or did not hold a valid entry permit. If the applicant falls into this category, there are certain requirements which also need to be fulfilled. They include but are not limited to:

• The reason they became the holder of a non-substantive visa or unlawful non-citizen was beyond their control;
• The Minister believes there are compelling reasons for the grant of their substantive visa;
• They would have been eligible for an entry permit if they had applied before becoming an unlawful entrant; and
• They agree to comply with all future conditions imposed on their substantive visa.

Criteria 3004 of Schedule 3 applies if the applicant entered Australia unlawfully and has not subsequently been granted a substantive visa. If the applicant falls into this category, there are certain requirements which also need to be fulfilled. They include but are not limited to:

• The reason they do not hold a substantive visa is due to factors which are beyond their control;
• The Minister believes there are compelling reasons for the grant of their substantive visa;
• They complied with the conditions imposed on your previous non-substantive visa or entry permit;
• They would have been eligible for a partner visa (subclass 820) at the time they became an unlawful non-citizen or ceased to hold a non-substantive visa; and
• They agree to comply with all future conditions imposed on your substantive visa.

What is a compelling circumstance for a Schedule 3 Waiver?

As noted above, both criteria 3003 and 3004 of Schedule 3 carry a requirement that the applicant holds a compelling reason that the Minister should take into consideration and can use to grant the substantive visa.

Compelling circumstances are assessed individually by the Department of Home Affairs and there is no definition made available in any migration provisions. The Department relies upon a standard definition of compelling meaning the circumstances were brought about by moral necessity.

Compelling reasons for granting a substantive visa can be both based on person circumstances or circumstances of another. Some examples could include:

• The applicant and their partner have an Australian child;
• The Australian partner will suffer if the applicant is not granted the substantive visa; or
• Circumstances which are beyond the control of the applicant, for example, serious illness.

What are factors beyond my control?

As noted above, both Criteria 3003 and 3004 of Schedule 3 carry a requirement that if the applicant has factors beyond their control, the Minister should take into consideration when assessing whether the applicant meets Schedule 3.

For these factors to be considered when assessing your substantive visa, there must be a link of causation between the factors beyond your control and you ending up as a holder of a non-substantive visa or an unlawful non-citizen. In other words, if it were not for these factors beyond your control, you would not be in the position of holding a non-substantive visa or being an unlawful non-citizen.

The Department of Home Affairs takes a subjective approach when assessing these factors and consider each person’s individual circumstances. For the factors to be considered beyond your control, they need to be external to you and not something that you can personally control.

Some examples are:

• The date on your visa grant notification being different than the actual date it ceased; or
• Where a serious accident or illness may render you incapable of submitting a visa application

I have received a Schedule 3 Warning Letter from the Department. What should I do?

In the past, Schedule 3 waivers were very difficult to apply for with a successful outcome. However, the judgment of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 from the Full Federal Court widened the range for the acceptable compelling circumstances that applicants can use in their applications.

Since this decision, we have seen and successfully represented many Schedule 3 waiver applications based on compelling circumstances that previously would not have met the threshold.

Can Schedule 3 requirements be successfully waived?

Simply put, yes, the Schedule 3 criteria can be waived. For the Department of Home Affairs to assess your application and grant a Schedule 3 waiver, there must be relevant compelling reasons for them to not apply the criteria. Compelling reasons can occur at any time after the date of the application right up until there has been a decision.

There are factors which the Department of Home Affairs will take into consideration as to whether your individual circumstances are compelling to grant a waiver. These include:

• The reasons as to why you became an unlawful non-citizen;
• The reasons why you did not try to obtain a visa to regularise your visa status;
• The steps that you did take to regularise your visa status or obtain a visa;
• Your visa history including any non-compliance; and
• The period of which you have been an unlawful non-citizen.