Schedule 3 and the Onshore Partner Visa

What Schedule 3 actually is

Schedule 3 of the Migration Regulations sets additional criteria that certain onshore applicants must meet on top of the ordinary partner visa requirements. The policy intent is simple: people should not gain a migration advantage by remaining in Australia after their visa status has ended. For the Subclass 820, the relevant criteria are 3001, 3003 and 3004 — broadly requiring that the application was made quickly after the loss of status, that the loss of status was due to factors beyond the applicant's control, and that there are compelling reasons for granting the visa.

The critical structural point: Schedule 3 only enters the picture when the applicant does not hold a substantive visa at the time of application. Applicants who lodge while holding a valid student, graduate, visitor or work visa never encounter it. This is why timing of lodgement — before a current visa expires — is one of the most consequential decisions in the whole onshore partner process.

Who Schedule 3 applies to

• Bridging visa holders — for example, after a student visa expired and a bridging visa was granted, or after another onshore application was refused. A bridging visa is not a substantive visa.
• People who are unlawful — no visa at all at the time of lodgement.
• People applying despite the section 48 bar — the partner visa is one of the limited visas that can still be lodged onshore after a refusal or cancellation, but the applicant will by definition not hold a substantive visa, so Schedule 3 applies in full force.

If any of these describe you, assume the Department will assess Schedule 3 and prepare the waiver case from the outset — it is far harder to bolt on after a request for information arrives.

Criterion 3001 — the 28-day rule

Criterion 3001 is satisfied if the application was lodged within 28 days of the applicant ceasing to hold a substantive visa (or of a related event defined in the regulations). Applicants inside that window meet 3001 outright; those outside it — which in practice is most Schedule 3 cases — must rely on the waiver instead. The 28-day clock is unforgiving, so anyone recently out of status who is contemplating a partner application should get the lodgement question answered immediately, not eventually.

The compelling-reasons waiver

The Department may waive criteria 3001, 3003 and 3004 if satisfied there are compelling reasons for granting the visa. There is no statutory definition and no checklist — the assessment is discretionary and turns on the whole of the circumstances. Themes that have carried weight in decided cases include:

• Australian-citizen children of the relationship, and the consequences for those children of the applicant departing to apply offshore
• Serious hardship to the Australian sponsor — medical dependence, financial collapse, caring obligations — beyond ordinary separation and expense
• Circumstances genuinely outside the applicant's control that led to the loss of status (rather than a deliberate choice to overstay)

What generally does not succeed on its own: the ordinary inconvenience and cost of applying offshore, the mere existence of a genuine long-term relationship (that is the visa criterion itself, not a compelling reason), or the applicant's preference to remain. The waiver submission is legal argument supported by evidence — it is the part of a Schedule 3 application where professional drafting most changes the outcome.

Waensila — compelling reasons at the time of decision

Before 2016 the Department read the waiver as limited to circumstances existing at the time of application. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court held that reading was wrong: compelling reasons existing at the time of decision must be considered. Practically, this means the waiver case can develop while the application is on hand — a child born after lodgement, a sponsor's deteriorating health, or new hardship can and should be put before the decision-maker. Applications refused without those later circumstances being weighed may have review prospects at the ART.

Onshore with a waiver, or offshore without one?

For applicants already out of status, the honest comparison is between an onshore 820 that stands or falls on a discretionary waiver, and an offshore 309 that has no Schedule 3 criteria at all but requires departing Australia — with whatever re-entry, exclusion or separation consequences the applicant's individual history attracts. Neither answer is universally right. The variables that decide it — how long unlawful, prior refusals, children, the sponsor's circumstances, the strength of the compelling-reasons material — are exactly the things a pre-lodgement review is for.