What does Schedule 3 Criteria means?
Schedule 3 Criteria for Partner Visa application in Australia
Have you recently heard about schedule 3 criteria when discussing your partner visa application? How schedule 3 criteria could help you reunite with your partner in Australia?
Let’s just assume for a minute that the Section 48 bar does apply to you, but you are in a genuine relationship with an Australian citizen and wish to apply for the Partner Visa (subclass 820) onshore.
As mentioned above, there will be additional criteria you will have to fulfill in order to meet the requirements for the Partner Visa after you are subject to the Section 48 bar.
This is called Schedule 3 criteria. Schedule 3 of the Immigration law and regulations give you (the applicant) extra requirements that you (the applicant) have to meet when you lodge a partner visa application onshore and where you (the applicant) have been an unlawful non-citizen when you lodged the application.
It will not generally apply to applications where you lodged and are currently outside of Australia. Immigration, the Migration and Refugee Review Tribunal (AAT) have become far more strict in the situation where an unlawful non-citizen applies for a partner visa (subclass 820) while onshore. In many cases, Immigration will straight refuse the partner visa but this can be overcome by appealing their initial decision.
This change came about by Immigration not wanting to grant partner visas to unlawful non-citizen applicants in Australia while others have to wait outside Australia for their partner visa to be granted. Schedule 3 gives Immigration a provision for the visa to be refused and these Schedule 3 refusals have become far more common, unfortunately.
Schedule 3 criteria require:
If an application was made within 28 days after your substantive visa ceasing, you must meet ALL of the following provisions:
- You are not the holder of a substantive visa because of factors beyond your control; AND
- There are compelling reasons for granting partner visa; AND
- You have complied substantially with any conditions subject to which your last visa was granted; AND
- You intend to comply with any condition subject to which the partner visa is granted; AND
- You would have been entitled to be granted a partner visa had you applied for the visa on the day when you last held a substantive visa; AND
- The last substantive visa you held (if any) was not subject to a condition ‘8503 – No Further Stay’.
The most important one to note and be able to back up with compelling evidence is number two, as you must have compelling and compassionate circumstances that will be sufficient to grant you the visa while in Australia.
This can also be your schedule 3 waiver if you do not meet the other requirements, but you must make a strong case to Immigration with supporting letters and evidence.
For example, if you take care of your sponsor’s mother for medical reasons or you and your sponsor have a child together, which would lead to suffering significant psychological hardship and the sponsor would suffer significant psychological from losing his partner and having to stay home instead of being able to work, to care for their child.
These are just some examples as to what MAY be compelling reasons to be granted a schedule 3 waiver, it is always better to contact a registered Migration Agent or Lawyer and get real help and give advice as to what to do.
If you are reading this after you have been refused by Immigration you have two options for what you can do next. You can appeal the decision or you can go offshore and lodge a new partner visa application.
The correct choice for you will depend completely on your personal circumstances. The incorrect choice may cost you a huge waste of money and time, as the partner visa is very expensive and non-refundable.
PLEASE NOTE THESE POINTS: Immigration case officers are now refusing partner visas more and more often entirely based on Schedule 3 criteria and are NOT always giving a second look at any other criteria.
So if you have lodged an application while only holding a bridging visa or is an unlawful non-citizen, do not think that your application will wait in the long queue, as it will most likely be dealt with by a quick refusal by case officers. Immigration case officers may not ask you to make a submission as to why you believe the Schedule 3 criteria should be waived.
They may refuse the application without letting you submit any further evidence or explanation.
CONTACT US FOR FURTHER INFORMATION
ONE derland Consulting has extensive experience in dealing with complex cases of various types of partner visas in which the applicants have had a visa refusal/canceled or have overstayed and become an unlawful non-citizen. Led by Indah Melindasari, B.Com (MARN 0961448) we are able to help hundreds of people across the globe to reunite with their partner to Australia, making us one of the highest-rated partner visa experts in Western Australia.
To find further information on schedule 3 criteria or Partner visa’s in Australia and your eligibility, please contact our office via phone or e-mail.