Schedule 3 & Partner Visas
Schedule 3 of the Migration Regulations 1994 outlines criteria that must be met by visa applicants who are unlawful non-citizens or bridging visa holders applying for the onshore partner visa (subclass 820/801).
Applicants must meet both the Schedule 3 Criteria and the visa eligibility requirements before the onshore partner visa can be granted. This threshold is particularly high if more than 28 days have passed since the applicant last held a substantive visa.
Schedule 3 Criteria
The Schedule 3 Criteria require that a subsequent visa application be lodged within 28 days of a substantive visa ceasing or from when the applicant entered Australia unlawfully. Alternatively, the application must be lodged within 12 months of the applicant ceasing to hold a substantive visa or entering Australia unlawfully.
If the applicant entered Australia unlawfully or did not hold a valid entry permit, they will be subject to additional requirements. Similarly, where an applicant entered unlawfully and has not since been granted a substantive visa, further requirements must be met before a valid application can be lodged.
Does Schedule 3 Apply to Offshore Partner Visa Applicants?
No. Schedule 3 Criteria apply only to onshore partner visa applicants (subclass 820/801) who are unlawful non-citizens or who hold a bridging visa. Offshore partner visa applicants (subclass 309/100) are not affected by Schedule 3, as their applications are assessed under separate provisions.
Waiving the Schedule 3 Criteria
It may be possible for the Minister to waive the Schedule 3 requirements if there are compelling and compassionate reasons relating to the case. These may include circumstances affecting the applicant, their partner, or an Australian-born child.
For example, a waiver might be granted if the applicant and their Australian citizen partner have a child together, or if the partner would suffer significant hardship or disadvantage if the visa were refused. Each case is assessed individually, and the presence of compassionate factors must be supported by strong evidence.
Evidence Required to Support a Schedule 3 Waiver
Schedule 3 partner visa applications must be supported by substantive documentation. It is essential to demonstrate that the relationship is genuine and ongoing, to the exclusion of all others. Supporting evidence may include the applicant’s previous visa compliance, efforts to maintain or regain lawful status in Australia, and their ability to meet health and character requirements.
In addition, there must be evidence that the sponsoring partner is eligible and willing to support the application. The applicant should also explain in detail why they are lodging an onshore application rather than departing Australia and applying offshore. It is recommended that the sponsor also provides a comprehensive personal statement explaining why the applicant should be permitted to remain onshore.
Schedule 3 Partner Visa Processing Time
There is no standard processing time for Schedule 3 partner visa applications. Because applications involving a waiver are subject to additional scrutiny, they generally take longer to assess than standard onshore partner visa applications. Processing times vary depending on individual circumstances, the strength of the evidence, and departmental caseloads.
Schedule 3 Partner Visa Refusal
If the Schedule 3 Criteria are not met and the Department of Home Affairs does not exercise its discretion to waive the criteria, the partner visa application may be refused. Common reasons for refusal include a lack of compelling and compassionate circumstances, insufficient evidence supporting the relationship, or failure to provide a clear explanation for not applying offshore.
A refusal under Schedule 3 can have serious consequences, including the need to depart Australia and reapply from overseas. In some cases, review rights may be available through the Administrative Review Tribunal (ART), which replaced the Administrative Appeals Tribunal (AAT) on 1 July 2024. Strict time limits apply.
Decision-Making & Legal Support
The decision to waive Schedule 3 Criteria is entirely at the discretion of the Department of Home Affairs. Applicants are encouraged to seek legal advice before lodging to understand their position and to ensure that their case is presented as clearly and strongly as possible.
Contact Us
For tailored advice on Schedule 3 and your partner visa application, contact Bambrick Legal today.
- Schedule a professional consultation with our specialists here
- Call us on 08 8362 5269
- Like us on Facebook
- Follow us on LinkedIn
Please note: Our migration and citizenship consultations are provided on a fee basis.
Related Blog – Gathering Evidence of a Genuine & Continuing Relationship for a Partner Visa