Schedule 3 to the Migration Regulations is a set of criteria that apply when a person applies for certain visas onshore but is not the holder of a substantive visa at the time of application. In plain terms, if you are in Australia, you have a Bridging Visa or no valid visa, and you want to apply for a partner or certain other visa, Schedule 3 adds additional requirements you need to meet or have waived.
When Does Schedule 3 Apply?
Schedule 3 applies primarily to applicants for partner visas (subclass 820) who are onshore but are not the holders of a substantive visa at the time they apply. A substantive visa means any visa other than a Bridging Visa or a criminal justice or enforcement visa.
If you are on a Bridging Visa (which you typically receive automatically when a previous visa application is being processed, or when a visa expires and you have lodged a new application), you are not holding a substantive visa and Schedule 3 criteria apply to your partner visa application.
What Does Schedule 3 Require?
Schedule 3 contains criteria that must be met or waived. The most common criteria require that:
The applicant held a substantive visa at some point during the period of 12 months before the application was lodged, or compelling reasons exist for the non-compliance.
There are no outstanding public interest criteria failures or statutory bars that prevent the grant.
In essence, if you have let your substantive visa lapse before applying for a partner visa, Schedule 3 is triggered and you need either to meet those criteria or convince the decision-maker that compelling reasons exist to waive them.
The Compelling Reasons Waiver
The compelling reasons waiver is the key mechanism for applicants who cannot meet the base Schedule 3 criteria. The decision-maker has discretion to waive the criteria if there are compelling reasons to do so.
What counts as compelling? There is no definitive list, but factors that decision-makers have considered include the length and genuineness of the relationship, the impact on the Australian partner and any dependent children, evidence of significant hardship that would result from requiring the applicant to depart Australia and apply offshore, and humanitarian considerations.
The strength of the relationship evidence is central. A long-established, well-documented, genuine relationship is significantly more likely to attract a favourable waiver decision than a short or poorly documented one.
Building Your Case
If your application is affected by Schedule 3, the work of building your case is essentially the same as for any partner visa, but with an additional layer of argument around why the Schedule 3 requirements should be waived.
You need strong relationship evidence across the four categories (financial, social, household, and commitment), a detailed personal statement explaining the circumstances that led to your current visa situation, evidence of the impact on the sponsoring partner and any children, and ideally statutory declarations from people who can speak to the genuineness and established nature of the relationship.
Common Errors in Schedule 3 Cases
Underestimating the waiver burden is the most common mistake. Some applicants treat a Schedule 3 partner visa application the same as a standard application and do not address the waiver criteria explicitly. Decision-makers need to be satisfied on the compelling reasons test, and this needs to be argued, not assumed.
Applying before the relationship is well-evidenced is another issue. If the relationship is new, the waiver argument is harder to make. There is no minimum relationship duration required, but the evidence needs to be substantial.
Working With a Migration Agent
Schedule 3 applications benefit significantly from professional assistance. A migration agent who regularly handles partner visa cases can help you assess whether the waiver argument is strong, help you gather the right evidence, and structure your submission to address the Schedule 3 criteria directly.
Frequently Asked Questions
Does Schedule 3 apply if I am on a Bridging Visa A?
Yes. A Bridging Visa A is not a substantive visa, so Schedule 3 applies if you are applying for a partner visa while you hold one.
If my partner visa is refused due to Schedule 3, can I appeal to the AAT?
Yes. The AAT can review the decision and can also consider the compelling reasons waiver criteria afresh. This is an option worth pursuing if the original application did not adequately address the waiver test.
Is it better to leave Australia and apply offshore to avoid Schedule 3?
In some cases, yes. If your current visa situation is complicated by Schedule 3 and the waiver argument is not strong, an offshore application avoids the Schedule 3 requirements entirely. A migration agent can help you weigh the options.