Understanding Schedule 3: A Comprehensive Guide

Schedule 3

Schedule 3 criteria allows individuals in Australia without substantive visas to apply for visas based on compassionate or compelling reasons, avoiding the need for offshore applications. These criteria aim to:

  • Encourage timely visa applications from individuals with valid reasons to stay.
  • Discourage overstaying their visa’s validity.
  • Prevent unlawful individuals from benefiting from visa eligibility.

Many partner visa applicants consider this option when unable to return to their home countries. Still, applications are often refused due to stringent Schedule 3 criteria. Strong and emotionally compelling reasons are essential for successful onshore visa applications.

Most permanent visas require compliance with Schedule 3, necessitating a valid “substantive” visa at the application time or having held one within the last 28 days.

It’s important to note that if an applicant in Australia does not hold a substantive visa and wishes to apply for an onshore partner visa, they may seek a waiver through Schedule 3. This waiver requires the applicant to present compelling and compassionate reasons related to Australian permanent residents or citizens.

Who needs to consider a Schedule 3 waiver?

Individuals who are in Australia without a substantive visa for more than 28 days, including those who have held bridging visas or have no valid visa at all, and wish to apply for an onshore partner visa need to consider a Schedule 3 waiver. To obtain this waiver, applicants must present compelling and compassionate reasons that are related to an Australian permanent resident, citizen.

Schedule 3 Criteria for Partner Visas

Under Australian Migration Law, Schedule 3 criteria apply to applicants who wish to apply for certain visas, including partner visas, while being in Australia without holding a substantive visa (i.e., they are unlawful non-citizens or hold a Bridging Visa E, C, or A). These criteria are particularly relevant when an applicant has overstayed their visa or their visa has been canceled. The key criteria under Schedule 3 that must be addressed in partner visa applications are:

  • Criteria 3001
    This criterion requires the applicant to apply for a substantive visa within 28 days after the last substantive visa held ceased to be in effect. If more than 28 days have passed, the applicant must provide compelling reasons for the delay in applying.
  • Criteria 3002
    This criterion is generally met if the applicant has not been deported or removed from Australia and is not subject to an exclusion period.
  • Criteria 3003
    This criterion requires that the applicant does not have outstanding debts to the Australian Government or has arranged to repay any such debts.
  • Criteria 3004
    This is a key criterion where the applicant needs to demonstrate compelling reasons for the grant of the visa. Compelling reasons can include, but are not limited to, the length and nature of the relationship with the Australian partner, hardship that would be suffered by either partner if the visa is not granted, the best interests of any children involved, and any other circumstances that may be considered exceptional.

Meeting these criteria can be challenging, especially Criteria 3004, which involves a subjective assessment by the Department of Home Affairs. Applicants often need to provide substantial and detailed evidence to support their claims.

In addition to meeting these criteria, applicants must also satisfy other usual requirements of the partner visa, including health and character checks and the genuine nature of the relationship.

It’s important to note that the Department of Home Affairs has a level of discretion in applying these criteria, and each case is assessed based on its individual merits. As such, there is no guarantee of a successful outcome, and the process can be complex. Applicants are often advised to seek professional guidance from a registered migration agent or lawyer to navigate these requirements effective.

What are compelling reasons?

Compelling reasons for applying for a Schedule 3 waiver when seeking a partner visa typically involve circumstances that are beyond the control of the applicant and may result in significant hardship or adverse consequences if the visa is not granted. While there is no exhaustive list of compelling reasons, here are some common examples:

  • Severe Health Issues
    If either the applicant or their Australian partner is dealing with serious medical conditions, and the lack of visa approval would lead to inadequate medical care or separation that could worsen the health condition, this can be considered a compelling reason.
  • Family Separation
    When there are dependent children involved, especially if they are Australian citizens, and the separation from one parent would cause severe emotional or psychological distress, this could be a compelling reason.
  • Financial Dependence
    If the Australian partner relies heavily on the financial support or contributions of the applicant, and the refusal of the visa would result in significant financial hardship or loss, this can be seen as a compelling reason.
  • Domestic Violence or Threats
    If the applicant is experiencing domestic violence or threats from their partner, this can be considered a compelling reason to grant the visa and provide protection to the applicant.
  • Special Circumstances
    Unique and exceptional situations that are beyond the control of both the applicant and the Australian partner may also be considered compelling and compassionate reasons. This could include unforeseen emergencies or crises.

Each case is assessed individually, and the Department of Home Affairs will carefully review the evidence and circumstances presented by the applicant. It’s advisable to seek professional advice and assistance when preparing your application for a Schedule 3 waiver to ensure you provide the strongest possible case for compelling and compassionate reasons.

Assessment of Schedule 3

The Schedule 3 requirements are multifaceted, focusing on various elements of an applicant’s circumstances:

  1. Applicant’s Compliance Context
    Analyzing the reasons behind any breaches of visa conditions or overstays.
  2. Visa Compliance History
    Scrutinizing the applicant’s history concerning adherence to Australian visa regulations.
  3. Duration of Unlawful Presence
    Assessing the period the applicant has spent in Australia without lawful status.
  4. Delay in Application
    Evaluating reasons for any delays in lodging a subsequent visa application.

How to request Schedule 3 waiver?

A Schedule 3 waiver request is typically submitted when applying for a partner visa onshore, particularly if the applicant is unlawful or holds a Bridging Visa A, B, C, or E. The waiver is requested at the time of visa application submission, not after the Department of Home Affairs requests it. Here’s a general guide on how to request a Schedule 3 waiver:

  1. Timing of Submission:
    Submit the waiver request concurrently with your partner visa application. This ensures that the Department assesses your waiver alongside your visa application.
  2. Documentation and Evidence:
    • Compelling Reasons: Provide detailed explanations and relevant documents demonstrating compelling reasons why you did not apply for the visa when you held a substantive visa or within 28 days of your last substantive visa expiring.
    • Circumstances Beyond Control: If applicable, present evidence that circumstances beyond your control led to your unlawful status or delayed application.
    • Relationship Evidence: Include robust evidence of your relationship with your partner, showcasing its genuine and continuing nature.
    • Hardship Evidence: Provide detailed information and supporting documentation demonstrating the hardship you and your partner (and any children involved) would face if the visa were not granted. This may include emotional, financial, or social aspects.
    • Australian Community Ties: Highlight any ties to the Australian community, such as employment, family connections, or community involvement, which might be disrupted if you had to leave Australia.
    • Character and Health Documents: Ensure all character and health requirements are met, as they are pivotal in the visa decision-making process.
  3. Continuous Updates and Communication:
    Stay proactive in your communication with the Department. If your circumstances change or if you have additional evidence to support your waiver request or visa application, submit it promptly.