Schedule 3 of the Migration Regulations 1994 applies to onshore applicants without a substantive visa, notably Partner visa (820) applications. Learn about criteria 3001-3005, the 28-day rule, compelling reasons waivers, and how to prepare a strong submission.
Schedule 3 criteria apply to certain onshore visa applicants who do not hold a substantive visa at the time of lodgement, and understanding these requirements is essential for anyone applying while on a bridging visa or without lawful status.
Schedule 3 of the Migration Regulations 1994 sets out additional requirements for applicants who are in Australia without a substantive visa, or who became unlawful, at the time they lodge certain onshore visa applications. It is most commonly encountered by onshore Partner visa (Subclass 820) applicants, though it can be relevant to other onshore applications where the visa-specific criteria refer back to Schedule 3. Broadly, these criteria act as a gatekeeper, requiring the Department of Home Affairs to consider how and why the applicant lost lawful status before deciding whether a new substantive visa can be granted.
The Schedule 3 criteria are numbered 3001 through 3005. Criterion 3001 requires the application to be validly made within 28 days of the applicant's last substantive visa ceasing, while criterion 3002 allows a longer 12-month window in defined circumstances. Criteria 3003 and 3004 apply where the applicant became unlawful, and require the Minister to be satisfied that this was beyond the applicant's control and that compelling reasons exist for granting the visa. Criterion 3005 limits repeated reliance on these provisions.
For those asking how Schedule 3 visa criteria in Australia work in practice, the key point is that these criteria can be waived — the relevant visa criteria commonly allow the Minister to grant a visa despite the applicant not meeting 3001, 3003 and 3004, provided there are compelling reasons for not applying them, though the term "compelling" is not defined in the legislation and is assessed case by case.
| Criterion or Element | What It Can Involve |
|---|---|
| Criterion 3001 | Application must be validly made within 28 days of the last substantive visa ceasing. |
| Criterion 3002 | An alternative 12-month window applying in specific, defined circumstances. |
| Criterion 3003 | Requires that becoming unlawful was due to factors beyond the applicant's control. |
| Criterion 3004 | Requires compelling reasons for granting the visa despite the applicant's lack of status. |
| Criterion 3005 | Limits an applicant's ability to repeatedly rely on Schedule 3 waivers. |
| Compelling reasons assessment | Considered case by case, and may include compassionate, health or relationship-related factors. |
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Onshore Partner visa applicants who do not hold a substantive visa at the time of lodging their application are the group most commonly affected by Schedule 3, since clause 820.211 of the Migration Regulations generally requires them to satisfy criteria 3001, 3003 and 3004 together, unless a waiver applies. This differs from offshore Partner visa applications, which are not subject to Schedule 3 at all, making it an important factor when deciding whether to apply onshore or offshore.
Applicants relying on a Schedule 3 waiver should prepare clear evidence explaining why they became unlawful or fell outside the 28-day window, and what compelling reasons support granting the visa regardless. The Department of Home Affairs outlines general requirements for the Partner visa (subclass 820) that should be reviewed alongside any Schedule 3 considerations.
If you are considering an onshore visa application without a substantive visa, first confirm whether your intended visa subclass applies Schedule 3, and check the exact date your last substantive visa ceased against the 28-day criterion 3001 window. Where that window has passed, focus on documenting the specific circumstances that caused you to become unlawful, along with any compassionate, health, or relationship-based factors that may support a compelling reasons argument.
If the Department issues a natural justice letter inviting comment on Schedule 3 criteria, respond within the given timeframe with clear, well-supported submissions, since this is often your opportunity to address the issue before a decision is made. The Department of Home Affairs provides further detail on visa requirements and decision processes at cancelling a visa, which also outlines related review options. Australian Immigration Consultants can review your specific circumstances against Schedule 3 and help you prepare a well-documented compelling reasons submission where relevant.
Australian Immigration Consultants can help you assess your options and prepare a strong supporting case.
1. What is Schedule 3 in Australian immigration law?
Schedule 3 of the Migration Regulations 1994 sets out additional criteria for certain onshore visa applicants who do not hold a substantive visa, most commonly relevant to onshore Partner visa applications. It generally requires the applicant to have applied within 28 days of losing status, or to show compelling reasons why this requirement should not apply.
2. Does Schedule 3 apply to offshore Partner visa applications?
No, Schedule 3 criteria generally do not apply to offshore Partner visa applications, only to onshore applications where the applicant lacks a substantive visa. This is an important consideration when deciding whether to apply onshore or offshore.
3. Can Schedule 3 criteria be waived?
Yes, in many cases the relevant visa criteria allow the Minister to waive criteria 3001, 3003 and 3004 if satisfied there are compelling reasons for not applying them. Compelling reasons are assessed individually and are not defined in the legislation, making professional guidance valuable when preparing a submission.
4. What counts as a compelling reason under Schedule 3?
Compelling reasons are assessed case by case and can include compassionate factors, serious illness or accident, or other circumstances beyond the applicant's control. The Department considers submissions addressing both the individual's own circumstances and, in some cases, those of another person involved.
5. What happens if I miss the 28-day Schedule 3 deadline?
Missing the criterion 3001 deadline does not automatically end your application, but you will generally need to satisfy criteria 3003 and 3004 instead, which require demonstrating compelling reasons for the delay. Preparing detailed, well-evidenced submissions is important given the high threshold typically applied.
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