Schedule 3 Criteria for Partner Visa application in Australia
Schedule 3 Criteria allows you to apply for a visa onshore when you don’t hold a substantive visa. Based on the Migration Act s.48, Partner Visa Australia would be the best option for you if you have overstayed or resided in Australia unlawfully. However, you must meet additional criteria, also known as the Partner Visa schedule 3 waiver.
You don’t hold a substantive visa if you hold a Bridging Visa, criminal justice visa or an ‘enforcement visa’. Meeting the schedule 3 criteria is also mandatory if you don’t have a valid visa or a bridging visa.
It generally happens when you face a visa refusal onshore or overstay your previous visa while in Australia. Suppose you’re in this situation and are in a committed relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. In that case, you may apply for a Partner Visa in Australia without leaving the country. However, you must have compassionate and compelling reasons.
Unfortunately, there’s no exact definition for compassionate and compelling reasons. But don’t worry. With over ten years of experience, we can derive four scenarios that may compel the Department of Home Affairs, and we are sharing them with you below.
What is the Schedule 3 Criteria?
The Schedule 3 Criteria allows you to lodge a Partner Visa application in Australia on compassionate and compelling reasons despite being an unlawful non-citizen.
The purposes of Schedule 3 Criteria are:
- Encourage non-citizens with an acceptable reason for remaining in Australia to apply for another visa before their current substantive visa expires,
- Discourage non-citizens from staying in Australia over the duration of their substantive visa, and
- Prevent non-citizens from benefiting by residing in Australia illegally, potentially obtaining visa eligibility in the country without lawful authority.
What are the requirements of Schedule 3 Criteria?
There are two critical provisions regarding Schedule 3 Criteria:
- You are the holder of a Diplomatic Visa (subclass 995) or a special purpose visa, and when you entered Australia, you met the requirements stated in Schedule 3 criteria 3002.
- You meet Schedule 3 criteria 3001, 3003, and 3004. You may be excused from fulfilling these requirements if the Minister is convinced there are compelling reasons for doing so.
What are the criteria 3001, 3002, 3003 and 3004 of Schedule 3?
Criteria 3001 of Schedule 3 states that you must submit a new visa application no later than 28 days after your illegal arrival into Australia or the expiration of your first substantive or criminal justice visa.
Criteria 3002 of Schedule 3 states that you must reapply for a visa within a year of entering Australia illegally or after your first substantive or criminal justice visa expires.
Criteria 3003 of Schedule 3 is in effect when you enter Australia illegally. You must meet the following additional conditions:
- You consent to comply with any future limitations imposed on your substantive visa;
- The Minister believes there’s a compelling or compassionate reason to grant you a substantive visa;
- You would have been eligible for a substantive visa before becoming an unlawful non-citizen;
- You become an illegal non-citizen because of events that were out of your control.
Criteria 3004 of Schedule 3 is in effect when you enter Australia illegally and have yet to be granted a substantive visa. You must meet the following additional conditions:
- You become an illegal non-citizen because of events that were out of your control;
- The Minister believes there’s a compelling or compassionate reason to grant you a substantive visa;
- You met the conditions specified in your previous non-substantive visa or entry permit;
- You would have been eligible for a Partner Visa (subclass 820) at the time you stopped holding a non-substantive visa or turned into an illegal non-citizen;
- You agree to comply with any additional conditions imposed on your valid visa in the future.
Learn more about how to Prepare Australian Partner Visa.
How do I waive the Schedule 3?
If you can not satisfy Schedule 3 Criteria, you can waive it with a strong, compelling, and compassionate reason.
Unfortunately, there’s no exact definition for compelling or compassionate reasons to waive the Schedule 3 Criteria on a Partner Visa application. However, the Department of Home Affairs uses the general definition of compelling, which says that the problem is unbearable or overwhelming.
Learn more: Ultimate Guide to Winning Partner Visa Schedule 3 Criteria
What are compelling and compassionate reasons for the Schedule 3 Criteria?
As mentioned above, you must have compelling and compassionate reasons to satisfy the Schedule 3 Criteria. Yet, there’s no exact definition of it.
With over ten years of experience in handling Partner Visa Australia cases with Schedule 3 Criteria, we have derived four possible scenarios that may satisfy the Schedule 3 Criteria:
1. Sponsor and applicant must look after an Australian citizen child or children
It applies when you and your sponsoring partner have children together. You must satisfy the Department of Home Affairs that the separation of the child’s biological parent will negatively affect them. You must also show the Department that raising the child alone will bring hardship to both parents, especially considering the processing time of the Partner Visa application, which may take up to 2 years.
2. The sponsor suffers from severe illness, and the applicant provides support for the sponsor
The second scenario is when your sponsor suffers from a severe illness and does not have anyone to look after them. You must satisfy the Department of Home Affairs that your support is essential for your sponsoring partner and that your sponsoring partner would be unable to go on daily activities without your assistance. In summary, you must satisfy the Department that your sponsoring partner will suffer more without your help in Australia.
3. The sponsor has a mental illness, and the applicant provides support for the sponsor
It is similar to the second scenario, but you must emphasise your sponsoring partner’s mental illness and how much your support means to them. You must show the Department of Home Affairs that your support and presence positively impact your sponsoring partner’s mental health.
4. Applicant suffers from severe illness and is receiving treatment and support in Australia
The last possible scenario is that you, as the applicant, suffer from a severe illness that prevents you from getting a substantive visa. You must emphasise to the Department of Home Affairs that no support or treatment is available in your home country, so you must stay in Australia with your sponsoring partner. You must also show that support from your sponsoring partner positively impacts your recovery.
These are for general advice only. We strongly advise you to get professional advice from a Registered Migration Agent, considering each person’s situation is unique and requires a tailored approach. We value your circumstances and will work closely with you to ensure the best outcome for your Partner Visa Schedule 3 Criteria case. Contact us for details, and feel reassured that you’re making the best decisions for your situation.
Can Schedule 3 Criteria be successfully waived?
In short, it is possible to waive the Schedule 3 criteria. There must be pertinent and strong reasons for the Department of Home Affairs to assess your application and grant a Schedule 3 waiver. After the application deadline, compelling grounds may arise at any point until a decision is made.
The Department of Home Affairs will evaluate several factors before determining whether to grant a waiver based on your circumstances. Among them are:
- causes of your illegal non-citizen status;
- explanations for your lack of attempt to obtain a visa to settle your situation;
- actions you took to obtain a visa or to regularise your visa status;
- your past visa status, including any violations; and
- duration of your unlawful non-citizen status.
Learn more about How to Response to s57 Request on Partner Visa Australia
What if you don’t have any compelling or compassionate reasons?
If there are no compelling or compassionate reasons to satisfy the Schedule 3 Criteria, consider the offshore Partner Visa (subclass 309/100) application. We understand it sounds bitter to be separated from your loved ones, but submitting an onshore Partner Visa (subclass 820/801) application after being an illegal non-citizen and having no compelling or compassionate reasons will only worsen your situation.
Your onshore Partner Visa (subclass 820/801) will most likely be refused without a compelling or compassionate reason, leading to potential separation from your loved ones. This underscores the urgency and importance of your situation.
Contact us, a Registered Migration Agent with over ten years of experience in migration, especially with complex cases such as Schedule 3 Criteria. We are here to support and guide you through this process, ensuring you have the best chance of success.
What happens when your Partner Visa is refused for Schedule 3 Criteria?
When your Partner Visa application gets refused, you will have two options: leave the country or submit a review application to the Administrative Review Tribunal (ART).
If you’re confident your case should have been approved, you may consider lodging a review application to the Administrative Review Tribunal (ART). It will cost you more money and time. So, if you’re not confident, we suggest you consider leaving the country and lodging an offshore Partner Visa application.
The correct choice for you will depend entirely on your circumstances. The incorrect choice may be a huge waste of money and time, as the Partner Visa is very expensive and non-refundable.
Do you need expert assistance with your case?
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 any other criteria a second look.
If you have applied while only holding a bridging visa or are 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 provide further evidence or explain why you believe the Schedule 3 criteria should be waived. Instead, they may refuse the application directly.
Our Migration Agent will reassure you that your situation seems manageable and will devise an action plan for you to move forward.
Our consultation session is more than just a conversation. It’s a promise backed by a 100% refund guarantee if you’re unsatisfied with our service. We are proud to share that we have a 98% success rate and are experts in handling complex cases. So, don’t hesitate to reach out to us. We’re here to help you.
We’re here to help you.
Considering the complexity of Schedule 3 Criteria and its impacts on your Partner Visa application in Australia, it is crucial to speak to a migration agent experienced in complex cases, particularly in these situations. These circumstances are not straightforward and require tact, a particular strategy, and inside knowledge.
ONE derland Consulting has vast experience in dealing with overstay visa cases. Our success rate in winning refusal visas is second to none. You may speak to our Visa Specialists to understand your options for refusal solutions.
Please note that this service aims to discuss your visa options, eligibility for each visa in Australia, and the consequences of overstaying your Australian visa.
We will also assist you in making the right decision on whether you should spend the time and money to proceed with the visa application onshore. We have a 98% success rate and are one of Australia’s most highly recommended migration agents. Read our 4.9* score customer reviews.
We are complex visa specialists. As registered Australian migration agents with the Migration Agents Registration Authority (MARA), we are regulated in our professional practice and bound by the profession’s Code of Conduct issued by the MARA.
Take the first step and get in touch with us. Our team members are honest, accountable and professional. Contact us through email at visa@onederland.com.au or via phone at 1300 827 159. Alternatively, you may book your consultation online, and it is backed by our 100% Money Back Guarantee Program.
