Partner Visa Schedule 3 Waiver for Long-Term Overstayers

A partner visa schedule 3 overstayer is a person who has stayed in Australia without a substantive visa and now wants to apply for an onshore partner visa with an Australian partner. When the overstay has lasted many years, the question is no longer whether the application can be lodged. It usually can. The real question is whether the Department of Home Affairs will waive the Schedule 3 criteria that a partner visa schedule 3 overstayer cannot otherwise meet.

This article is written for long-term overstayers. It deals with people whose last substantive visa ended three, five, ten or more years ago, who have built a life and a relationship in Australia, and who now face the hardest version of the Schedule 3 problem. It explains how the law applies, what Department policy says about long unlawful periods, how a history that cannot be fully documented is rebuilt, what evidence supports a waiver, how detention and removal risk is managed, and what a realistic outcome looks like. If the visa ended only weeks ago, the position is different, and the Schedule 3 waivers service page explains how My Migration Lawyers approaches both kinds of matter.

Can a Partner Visa Schedule 3 Overstayer Still Apply Onshore?

Yes. A partner visa schedule 3 overstayer can lodge a valid combined Subclass 820 and Subclass 801 application in Australia, even after many years without a visa, provided no separate bar to a valid application applies. Schedule 3 is a criterion for the grant of the visa, not a rule about whether the application is valid. The Department's policy on Schedule 3 confirms that the criteria apply to people who do not hold a substantive visa at the time they apply, and operate when the visa is decided.

The relevant criterion is in the Migration Regulations 1994. Subparagraph 820.211(2)(d)(ii) of Schedule 2 provides that an applicant who is not the holder of a substantive visa must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. A substantive visa is defined in subsection 5(1) of the Migration Act 1958 as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. Holding a bridging visa from an earlier application does not change the position.

So the partner visa schedule 3 overstayer is not shut out of the onshore pathway. But a long unlawful period changes what the case is about. A recent overstayer may argue about the 28-day window or about why the visa lapsed. A long-term overstayer usually cannot win on those points. Their Subclass 820 visa application will succeed or fail on the compelling reasons waiver, and on whether the relationship is proved to the standard every partner applicant must meet. The complete guide to partner visas sets out the wider onshore and offshore framework.

Other bars to check before anything is lodged

Two other rules can stop a valid application altogether, and they must be checked before a partner visa schedule 3 overstayer lodges:

• Condition 8503 (No further stay). If the last substantive visa carried condition 8503, a valid Subclass 820 application generally cannot be made unless the condition is waived under subsection 41(2A) of the Act. The condition 8503 article explains the waiver.
• Section 48. A person who was refused a visa, or had a visa cancelled, since last entering Australia is limited in the visas they can apply for onshore. The partner visa is one of the exceptions, but the exception has conditions that must be checked against the person's history. Many long-term overstayers have an earlier refusal, such as a protection visa refusal, and the visa refusals page explains how earlier refusals affect later options.

Neither of these is a Schedule 3 issue. Both are validity issues. A partner visa schedule 3 overstayer who lodges an invalid application receives no bridging visa from it and gains nothing.

How Schedule 3 Applies to a Long-Term Overstayer

Schedule 3 applies to a long-term overstayer because they do not hold a substantive visa when they lodge. Three criteria are named in subparagraph 820.211(2)(d)(ii): 3001, 3003 and 3004. For a partner visa schedule 3 overstayer who has been unlawful for years, each one works differently, and understanding why explains how the case has to be built. The Schedule 3 criteria article sets out the criteria in more detail.

Criterion 3001: the 28-day rule

Criterion 3001 requires the application to be made within 28 days after the relevant day, which for most people is the day their last substantive visa ceased. A long-term overstayer cannot meet it. The window closed years ago. Consistent with the Department's Schedule 3 policy wording, lodging within 28 days satisfies criterion 3001 only. Criteria 3003 and 3004 can still apply unless waived. For a long-term overstayer, the 28-day point is simply lost.

Criterion 3003: largely historic

Criterion 3003 deals with people who were illegal entrants before 1 September 1994, under the law as it then stood. It is mainly relevant to very old cases. Most long-term overstayers today fall under criterion 3004 instead.

Criterion 3004: six requirements a long-term overstayer rarely meets

Criterion 3004 applies to people who ceased to hold a substantive visa on or after 1 September 1994. It contains six requirements, and the Department's policy says all six must be satisfied. The decision maker must be satisfied that:

• the applicant became a person without a substantive visa because of factors beyond their control (3004(c));
• there are compelling reasons for granting the visa (3004(d));
• the applicant complied substantially with the conditions of their last visa, including any later bridging visa (3004(e));
• the applicant would have been entitled to the visa if they had applied for it on the day they last held a substantive visa (3004(f));
• the applicant intends to comply with the conditions of the visa (3004(g)); and
• the last visa was not subject to an old "no further stay" condition imposed before 1 September 1994 (3004(h)).

For a partner visa schedule 3 overstayer, criterion 3004(f) is often fatal on its own. Many long-term overstayers met their partner after their visa ended. On the day they last held a substantive visa, there was no relationship, so they could not have been entitled to a partner visa on that day. Criterion 3004(c) is also difficult. Policy says the factors beyond the person's control must have caused them to become unlawful, and that claims of not knowing the visa had ended or misunderstanding its period are harder to assess.

This is the point much commentary gets wrong. The partner visa schedule 3 overstayer is often told that the task is to prove the overstay was beyond their control. For a long-term overstayer, that is usually the wrong fight. The better path is the separate waiver in subparagraph 820.211(2)(d)(ii), which asks a different and broader question.

What the Compelling Reasons Waiver Actually Asks

The waiver asks whether there are compelling reasons for not applying criteria 3001, 3003 and 3004 at all. If the decision maker is satisfied that such reasons exist, the partner visa schedule 3 overstayer does not have to meet any of those three criteria. This is not the same test as criterion 3004(d), even though both use the word "compelling". The waiver removes the criteria. Criterion 3004(d) is one of six things that must be proved within them.

The Regulations do not define compelling reasons. The Department's policy on the Subclass 820 says that delegates should consider circumstances case by case. It also records the effect of the Full Federal Court decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. The decision maker must consider all of the applicant's circumstances known up to the time of decision, and decide whether any one or more of them provide compelling reasons not to apply the Schedule 3 criteria.

That has two practical consequences for every partner visa schedule 3 overstayer:

• Circumstances after lodgement count. The Schedule 3 policy states that compelling reasons can arise at any time up until the decision, and delegates must have regard to submissions about them. A child born during processing, a serious diagnosis or a change in the partner's health can and should be put before the decision maker.
• The circumstances are weighed together. The Schedule 3 policy states that all circumstances, individually and cumulatively, should be considered. Factors that are not compelling alone may be compelling in combination.

The Schedule 3 partner visa waiver article explains the waiver framework more generally. The sections below deal with how Department policy treats long unlawful periods specifically.

What Department Policy Says About Long Unlawful Periods

Department policy on the Subclass 820 is direct about long-term overstayers. It gives, as an example of a case where compelling reasons may not exist, an applicant who has remained unlawful for a number of years, made little or no effort to become lawful, and claims compelling circumstances on the basis of a long-term relationship with their partner and the hardship that separation would cause if they had to apply offshore. That example describes the typical partner visa schedule 3 overstayer almost exactly.

The policy explains why. A genuine relationship is the basis of every partner visa application, and separation hardship is common across the whole partner caseload, especially offshore. As a general rule, the policy says, the relationship and separation hardship are not compelling reasons to avoid applying the Schedule 3 criteria. They are expected in every case.

The policy also says delegates should be mindful that the waiver is only meant to allow people with genuinely compelling circumstances to regularise their status. It is not meant to give, or be seen to give, an unfair advantage to people who:

• fail to comply with their visa conditions;
• deliberately manipulate their circumstances to create compelling reasons; or
• can leave Australia and apply for a partner visa outside Australia.

Is it reasonable to expect the overstayer to apply offshore?

The policy states that the waiver should not be applied where it is reasonable to expect the applicant to leave Australia and apply offshore. For a partner visa schedule 3 overstayer, this is often the central question. The offshore alternative is the Subclass 309 visa. The waiver submission must explain, with evidence, why that alternative is not reasonable in this person's circumstances. Usually that means showing the effect of departure on a child, on a partner with serious health needs, or on the applicant's own health and safety, rather than simply the length of separation.

The factors delegates are told to consider

The policy lists matters delegates should consider, while making clear the list is not closed. They are:

• any history of non-compliance with visa conditions;
• the length of time the applicant has been an unlawful non-citizen;
• the reasons why the applicant became unlawful;
• the reasons why the applicant did not seek to become lawful sooner;
• current family composition, including any dependent children; and
• any steps the applicant has taken to become lawful, other than the partner application itself.

Three of those six factors point directly at the long unlawful period. A partner visa schedule 3 overstayer cannot change the length of the overstay. What can be done is to explain it truthfully, to show any steps taken along the way, and to present the other circumstances that make the case compelling. The policy also says that where there is an Australian citizen child with a demonstrable link to the applicant, a decision may be made to waive Schedule 3 in the best interests of the child, and that compelling reasons may exist where circumstances beyond the person's control, such as severe illness or incapacity, prevented them from becoming lawful.

The Subclass 820 partner visa guide explains the other criteria that run alongside Schedule 3, and the Subclass 820 vs Subclass 801 comparison explains how the two stages connect.

Rebuilding the Visa History of a Partner Visa Schedule 3 Overstayer

A partner visa schedule 3 overstayer who has been in Australia for many years rarely has a complete paper record of how they got here. Passports expire or are lost. Old visa grant letters are gone. Emails from a former agent are deleted. None of that should stop the case, and the client should not be asked to produce documents they do not have.

My Migration Lawyers obtains the visa and immigration history itself. That means checking current status through the Visa Entitlement Verification Online (VEVO) system and obtaining the Department's own records of visas held, applications made, decisions and movements, along with any Tribunal records where there was an earlier review. The Department holds a more accurate record of arrivals, departures and visa grants than most people can reconstruct from memory. Building the chronology from those records avoids the risk of a client guessing at dates and later being accused of giving incorrect information.

What the client is asked for is what they can realistically produce: their current passport if they have one, identity documents, their own account of what happened and why, and evidence of the life they have lived in Australia. The firm then prepares a single chronology that sets out each visa held, the date the last substantive visa ceased, every application and decision since, and any contact with the Department. Each fact in the waiver submission is tied to that chronology.

This matters because the waiver factors ask about the length of the unlawful period, the reasons it began and the reasons it continued. Those answers have to be consistent with the Department's own records. An account that conflicts with movement records damages credibility far more than an honest admission. Where the client's memory and the records differ, the difference is identified and explained before lodgement, not discovered by the case officer.

Identity and the Form 80

Identity can be a separate problem for a long-term overstayer. If the passport used to enter Australia has expired, a current passport from the home country may need to be obtained through the consulate. Applicants are often asked to complete a Form 80, which requires a full address, employment and travel history. For a partner visa schedule 3 overstayer, the Form 80 must match the chronology. Gaps should be acknowledged, not filled with guesses.

Evidence That Supports a Partner Visa Schedule 3 Overstayer Waiver

The evidence that supports a waiver is evidence of circumstances beyond the relationship itself. The relationship is required in every partner case. For a partner visa schedule 3 overstayer, the waiver evidence must show why this particular person, with this particular family, should not be required to leave and apply from offshore. The categories below are the ones that most often carry weight. None of them guarantees a waiver.

Australian citizen children

An Australian citizen child with a demonstrable link to the applicant is the factor the Subclass 820 policy names directly. The policy says Schedule 3 may be waived in the best interests of the child. Evidence of the link includes birth certificates, school and childcare records naming the applicant, medical records, and statements from people who see the parent and child together. Where the applicant is a step-parent, evidence of day-to-day care is important. The child's needs should be described specifically, not in general terms about families staying together.

Health of the applicant or the partner

Serious health issues can be relevant in two ways. The Schedule 3 policy accepts that severe illness or incapacity that prevented a person from becoming lawful may be a compelling reason. Separately, a partner with significant health needs who depends on the applicant for care may make it unreasonable to expect the applicant to leave. Medical evidence must come from treating practitioners and explain the condition, the care required and who provides it. A general letter saying the partner would be upset is not enough.

The reasons the person did not regularise sooner

The policy asks why the applicant became unlawful and why they did not seek to become lawful sooner. For a partner visa schedule 3 overstayer, this is the part of the case that is most often handled badly. The honest answer may be fear, poor advice, financial pressure, a misunderstanding, or a belief that nothing could be done. That answer must be given truthfully and in the applicant's own words. Where a former adviser gave wrong advice, the Schedule 3 policy notes that negligent action by a deregistered migration agent may, on the facts, be a circumstance beyond the applicant's control. Any such claim must be supported by records.

Steps already taken to become lawful

Earlier applications, even unsuccessful ones, can show that the person did not simply ignore their status. A prior visa application, an earlier Tribunal review or requests to the Department may all be relevant. These records are obtained by the firm from the Department and the Tribunal. They are then explained in the chronology, including why each step did not succeed.

Community ties, work history and integration

Long residence in Australia brings ties that are relevant to the overall picture of a partner visa schedule 3 overstayer case. These include community and religious involvement, volunteering, relationships with the partner's family, and contributions to the community. Work history needs careful handling. A person without a visa usually had no permission to work, so evidence of work may also be evidence of non-compliance. How work is presented is a legal judgement, made with full knowledge of how it bears on criterion 3004(e) and the policy factors. It is not something to hide, but it is not presented as a positive without thought.

Age and connection to the home country

For a partner visa schedule 3 overstayer, a long absence from the home country can be relevant. A person who left their home country decades ago, who has no home, family or work there, and whose life is entirely in Australia, may be able to show that offshore application is not a reasonable expectation. Age, the absence of close family overseas, and any conditions in the home country that would make return especially hard are all relevant. The evidence must be specific to the person.

The partner's circumstances

The Australian partner's own position also matters. Their employment, their caring responsibilities, their health and their ties to Australia all bear on whether it is reasonable to expect the applicant to leave. Evidence of the partner's circumstances is presented through their own Form 888 statements where appropriate, together with documents. The Form 888 partner visa guide explains how witness statements work, and the Form 888 examples show the level of detail decision makers look for.

The Relationship Case Cannot Be Neglected

The relationship case still has to be proved in full. A partner visa schedule 3 overstayer who obtains a waiver but cannot prove a genuine and continuing relationship will still be refused. The Regulations require the decision maker to assess the relationship through four aspects: the financial aspects, the nature of the household, the social aspects and the nature of the commitment. These are assessed aspects of the relationship, supported by documents and by one relationship statement.

For long-term overstayers, the relationship evidence often has particular features. Bank accounts may be in the partner's name only because the applicant could not open one. Leases may name only the partner. These gaps are common and explainable, but they must be explained. The partner visa relationship evidence guide and the relationship statement article explain how to present the four aspects. The partner visa document checklist and the Subclass 820 evidence checklist cover the documents, and preparing evidence of a genuine relationship explains how to organise it.

Where the couple are married, the marriage must be valid under Australian law. Where they are not married, the de facto category has its own requirements, set out in the de facto partner visa article. For a partner visa schedule 3 overstayer, the relationship history and the visa history should be presented on the same timeline, so the decision maker can see when the relationship began relative to the overstay.

Honesty About the Unlawful Period

Honesty about the unlawful period is not optional. A partner visa schedule 3 overstayer must disclose their immigration history accurately, because the Department already holds most of it and because giving false or misleading information carries its own consequences.

Public interest criterion 4020, the integrity criterion, applies to the Subclass 820. It allows refusal where an applicant gives a bogus document or information that is false or misleading in a material particular. A refusal on that ground can affect future applications. For a long-term overstayer, the risk is not usually forgery. It is a careless answer about past addresses, past work, previous applications or travel, which then conflicts with the Department's records. The chronology built from the Department's own records is the main protection against this.

Honesty also strengthens the waiver case itself. The policy factors ask why the person did not regularise sooner. An honest account that accepts responsibility where it is due, and explains circumstances where they existed, is more persuasive than an account that seeks to blame everyone else. The applicant's statement is their own evidence. It is reviewed and corrected by them before it is signed, and the firm's role is to present that account in the form the law requires.

Character must also be addressed. Every applicant must satisfy the character requirements, including public interest criterion 4001, and the Minister has power under section 501 of the Act to refuse a visa on character grounds. Police certificates from Australia, and from overseas countries where the person lived, are usually required. A partner visa schedule 3 overstayer with any criminal history, including minor matters, needs that history assessed before lodgement. The visa cancellations page explains how character issues are handled where they arise.

Detention and Removal Risk for a Partner Visa Schedule 3 Overstayer

A person without a visa in Australia is an unlawful non-citizen. Under section 189 of the Migration Act 1958, an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen must detain them, and section 198 provides for removal in certain circumstances. Every day a partner visa schedule 3 overstayer remains without a visa, that risk exists. It is the reason long-term overstayers often feel unable to act.

The risk is managed by becoming lawful through a valid application, prepared properly and lodged without unnecessary delay. A partner visa schedule 3 overstayer who waits for a perfect file may wait too long. A file that is lodged without proper preparation may fail on the waiver. The task is to prepare the essential parts quickly, lodge, and then build the full waiver submission during processing, which the law allows because compelling reasons are assessed at the time of decision.

People who are already in contact with Department compliance officers, or who have been located, need advice immediately. The urgent immigration lawyer advice page explains what to gather in that situation, and nothing should be signed or agreed without understanding the consequences.

Which Bridging Visa a Partner Visa Schedule 3 Overstayer Receives

A partner visa schedule 3 overstayer who lodges a valid onshore partner application usually receives a Bridging visa C. If they have held a Bridging visa E since their last substantive visa, they will usually receive a Bridging visa E instead. Either visa makes them lawful from the day it is granted.

The details matter:

• Bridging visa C (Subclass 030). Under item 1303 of Schedule 1, the applicant must not have held a Bridging visa E since last holding a substantive visa, and must be immigration cleared or fall within regulation 2.20(6). The initial Bridging visa C is applied for on the same form as the partner visa. For partner applicants it usually carries condition 8101 (no work). A further Bridging visa C without that condition can be sought by showing a compelling need to work.
• Bridging visa E (Subclass 050). Where a Bridging visa C is not available, a Bridging visa E may be granted under subclause 050.212(3) to a person who has made a valid application for a substantive visa that can be granted in Australia. The Department may impose conditions, which can include no work, reporting and address notification conditions.
• No Bridging visa B. Only a Bridging visa A or Bridging visa B holder can obtain a Bridging visa B, so a long-term overstayer on a Bridging visa C or Bridging visa E has no lawful way to travel and return during processing.

The bridging visa does not repair the unlawful period and does not resolve Schedule 3. Those are separate questions. The bridging visas in Australia guide explains the bridging visa classes, and the work rights article explains condition 8101 and the compelling need to work. The Bridging visa A and Bridging visa B articles explain why those classes are not available to a person who lodges without a substantive visa.

Approaching the Department Safely

The safest way for a partner visa schedule 3 overstayer to approach the Department is through a valid application lodged with legal advice, not through an unprepared phone call or visit. A valid partner application brings its own bridging visa. An informal approach without an application may lead to a Bridging visa E being granted for departure, which then removes eligibility for a Bridging visa C later.

Before contact is made, the firm confirms the person's status from the Department's records, checks for condition 8503 and section 48 issues, identifies any earlier bridging visa, and prepares the application. The application is lodged online through ImmiAccount, and the ImmiAccount guide explains the account itself. Where a lawyer acts, the Department is notified through Form 956, so correspondence comes to the firm.

If compliance officers have already made contact, the approach changes. The person may need a bridging visa urgently and may need to show that a valid application is about to be lodged. Each case is different, and advice is needed before any interview.

Leaving Australia Unlawfully: The PIC 4014 Exclusion Period

A partner visa schedule 3 overstayer who leaves Australia as an unlawful non-citizen, or as the holder of a Bridging visa C, D or E, can be affected by public interest criterion 4014. Under PIC 4014, a person affected by the risk factor cannot be granted a visa that includes that criterion until three years have passed since they left Australia, unless the decision maker is satisfied there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.

The exceptions in PIC 4014(5) protect people who left within 28 days after their substantive visa ceased, or whose bridging visa was granted within that period. A long-term overstayer will not fall within those exceptions.

The Department's exclusion periods policy states that PIC 4013 and 4014 are not criteria for the Subclass 309 visa. That is important and often misunderstood. The offshore partner visa itself is not barred by PIC 4014. But a person who leaves may need other visas, such as a visitor visa, to return or to visit during processing, and those visas may include PIC 4014. A person who is removed rather than leaving voluntarily faces further consequences, including liability for removal costs. For this reason, no long-term overstayer should leave Australia, or agree to leave, without advice about the offshore pathway and its real timeframes.

Is the Offshore Subclass 309 a Realistic Alternative?

Sometimes it is. For some partner visa schedule 3 overstayer clients, a realistic assessment shows that the onshore waiver is weak and that a properly prepared offshore partner visa is the better path, even though it involves separation. That assessment depends on the evidence available, the person's health and family position, and the consequences of departure.

In other cases, the offshore option is not realistic because of a child, the partner's care needs or the person's own circumstances. In those cases, those same facts become the core of the onshore waiver submission. Either way, the decision should be made deliberately, with advice, and before any departure. The partner visa lawyers page explains how the firm handles both pathways.

What Tribunal Decisions Show About Long Unlawful Periods

Tribunal decisions recorded in My Migration Lawyers' database of partner visa remittals show that long unlawful periods are regularly reviewed on their merits. A remittal means the Tribunal sent the matter back to the Department to be decided again, with a finding on one or more criteria. It is not a grant of the visa. The decisions below were made by the Administrative Appeals Tribunal (AAT), which was replaced by the Administrative Review Tribunal (ART) on 14 October 2024. Each is described only by the issue recorded for it:

• Raganas (Migration) [2020] AATA 2401 (Subclass 820): no substantive visa at the time of application, or within 28 days prior; last substantive visa more than three years prior.
• Hou (Migration) [2020] AATA 6018 (Subclass 820): application made more than 28 days after last substantive visa held; lengthy period as unlawful non-resident; compelling reasons for not applying criterion.
• Nguyen (Migration) [2021] AATA 2603 (Subclass 820): ceased to hold a substantive visa more than 28 days prior to lodging the visa application; long-standing partner relationship.
• Hunt (Migration) [2021] AATA 1479 (Subclass 820): long-term genuine relationship; applicant was not the holder of a substantive visa at the time of application; an Australian citizen daughter.
• 1837889 (Migration) [2020] AATA 4232 (Subclass 820): application made more than 28 days after last substantive visa held; compelling reasons for not applying criterion; visa history; validly married.
• Kami (Migration) [2024] AATA 177 (Subclass 820): holder of a substantive visa at date of application; compelling reasons to waive Schedule 3 criteria; period of unlawful residence.

What these decisions show

These decisions show that a long unlawful period, even of several years, does not by itself prevent the Tribunal from considering compelling reasons. They also show the kinds of facts that are recorded in such cases: Australian citizen children, the length and nature of the relationship, and the person's visa history. They do not show that any particular partner visa schedule 3 overstayer will succeed. Every case is decided on its own facts, and each of these matters still had to return to the Department for a decision on the remaining criteria.

If the Waiver Is Refused: ART Review

If the Department refuses the Subclass 820 because it is not satisfied there are compelling reasons, the refusal can usually be reviewed by the Administrative Review Tribunal. The ART considers the matter afresh, and because compelling reasons are assessed at the time of decision, new circumstances can be put to the Tribunal.

The deadline to apply for review is short and strictly applied. It runs from the date the person is notified of the decision, and the Tribunal cannot extend it. The applicant must also be in Australia when the review application is made. The refusal letter states the deadline, and it should be read the day it arrives. The partner visa refusal appeal options article and what to expect at the ART explain the process, and the partner visa refusals service page explains how the firm acts on review.

Before a decision, the Department may send a request for more information or a natural justice letter. A partner visa schedule 3 overstayer must answer these carefully and on time. The section 56 request article and the section 57 natural justice letter article explain both. Where the Tribunal also affirms the refusal, the judicial review page explains the limited grounds for court review. The Subclass 820 refusals article and why partner visas get refused set out the common grounds.

Keeping the Waiver Case Current During Processing

A partner visa schedule 3 overstayer case is not finished at lodgement. Processing can take a long time, and the Subclass 820 processing time article explains why. During that period, the waiver case should be kept current, because the decision maker must consider the circumstances as they stand at the time of decision.

That means updating the Department when a child is born, when a health condition changes, when the partner's circumstances change, or when other relevant events occur. Changes in circumstances are notified using Form 1022. If the relationship ends during processing, the position changes significantly, and the relationship breakdown article explains the options, including the family violence provisions in Division 1.5 of the Regulations, which are described on the family violence service page.

Health checks are also part of processing. Every applicant must meet the health requirement, including public interest criteria 4005 and 4007, and for the Subclass 820 a waiver of PIC 4007 is available in some circumstances. A partner visa schedule 3 overstayer who has lived without Medicare access for years may have health issues that need early assessment.

A Hypothetical Partner Visa Schedule 3 Overstayer Case

The following example is hypothetical. It is not a client story. It shows how the law and policy apply to a typical partner visa schedule 3 overstayer.

A person arrived in Australia on a visitor visa twelve years ago. The visitor visa had no condition 8503. They did not leave when it expired. They worked casually, rented rooms, and kept away from government agencies. Seven years ago they met an Australian citizen. They married four years ago and have a three-year-old Australian citizen son. The Australian partner has a chronic illness and relies on the applicant for daily care. The applicant no longer has the passport they arrived on.

For this partner visa schedule 3 overstayer, criterion 3001 cannot be met, because the application is made years after the visitor visa ended. Criterion 3004 is also unlikely to be met. The relationship did not exist on the day the visitor visa ended, so criterion 3004(f) fails, and the overstay was not caused by factors beyond the applicant's control. The case therefore depends on the waiver in subparagraph 820.211(2)(d)(ii).

The policy factors cut both ways. The long unlawful period, the absence of earlier steps to regularise, and the unlawful work all weigh against the applicant. The Australian citizen child with a clear link to the applicant, the partner's documented care needs, and the practical effect of the applicant's departure on both of them are the circumstances that may be compelling. The honest reason the applicant did not regularise sooner must be explained in their own words.

In this example, a well-prepared partner visa schedule 3 overstayer file would include the Department's records of the visitor visa and any later contact, a chronology, a current passport obtained through the consulate, the child's birth certificate and childcare records, the partner's medical records and a treating doctor's letter about care needs, the relationship evidence, Form 888 statements, and a written waiver submission addressing each policy factor. Whether the waiver is granted remains a matter for the decision maker. The example shows what a complete case looks like, not what the result will be.

Change one fact and the assessment changes. Without the child and the care needs, this partner visa schedule 3 overstayer would be close to the policy example of a case where compelling reasons may not exist. With an earlier refusal, section 48 would need to be checked first. With an old Bridging visa E for departure, the bridging visa outcome would differ. This is why every partner visa schedule 3 overstayer needs an individual assessment before lodging, and why the Subclass 820 visa overview and the Subclass 820 guide should be read with advice rather than as a substitute for it.

Choosing Help for a Partner Visa Schedule 3 Overstayer Case

A partner visa schedule 3 overstayer case is not a routine partner application. It combines a relationship case, a waiver case, bridging visa issues and detention risk. Choosing help is therefore a decision about experience with this exact problem. The partner visa lawyer article and the immigration lawyer for partner visas article explain what to look for. The article on partner visa lawyers versus doing it yourself sets out the risks of lodging without advice, and the migration agent or lawyer comparison explains the difference in neutral terms.

Before the first meeting, a partner visa schedule 3 overstayer should gather what they have: any current passport, the partner's identity documents, the children's birth certificates, any medical records, and any letters from the Department or the Tribunal. Nothing more is needed to begin. The immigration lawyer consultation article explains how a first consultation works. Clients in New South Wales can also see the immigration lawyers Sydney page, and clients in Victoria the immigration lawyers Melbourne page. Where a person has previously been refused a partner visa, the partner visa after refusal article is also relevant.

Realistic Expectations for a Partner Visa Schedule 3 Overstayer

A partner visa schedule 3 overstayer should expect a difficult case. Department policy treats long unlawful periods with little effort to regularise as a reason against waiver, and says that the relationship and separation hardship are not usually enough. That is the starting point, not the end of the analysis.

What changes the outcome is evidence of circumstances that go beyond the ordinary partner case: children, serious health issues, care needs, the reasons the person did not regularise sooner, and the real consequences of departure. Some cases have those circumstances and some do not. An honest assessment at the start allows the client to choose between the onshore waiver and an offshore application with full knowledge of the risks.

Common mistakes made by long-term overstayers include:

• waiting for a perfect file while remaining unlawful and at risk of detention;
• approaching the Department without an application and receiving a Bridging visa E for departure;
• relying only on the relationship and the length of time together as compelling reasons;
• giving an account of the immigration history from memory that conflicts with Department records;
• presenting unlawful work as a positive without considering its effect;
• leaving Australia without advice and then facing PIC 4014 for a later visa; and
• failing to update the Department about new circumstances during processing.

A second opinion can help where an application has already been lodged without a proper waiver submission, and the article on hiring a lawyer after lodgement explains how a file can be taken over.

How My Migration Lawyers Helps a Partner Visa Schedule 3 Overstayer

My Migration Lawyers deals with complex onshore partner matters, and acts in many partner visa schedule 3 overstayer cases where the client has been without a visa for years. The firm is capable of handling these matters from first assessment through to a decision and, if needed, review. The work is specific to the long-term overstay problem and follows a clear sequence.

• Status and history. The firm obtains the client's visa and movement history from the Department, checks VEVO, and obtains any earlier Department or Tribunal records. The client is not asked for old documents they no longer have.
• Validity checks. Condition 8503, section 48 and any earlier Bridging visa E are checked, so the application is valid and the right bridging visa follows.
• Assessment. The lawyer assesses the waiver case against the Subclass 820 policy factors and advises honestly whether the onshore waiver or the offshore Subclass 309 is the better path.
• Lodgement and bridging visa. Where the onshore path is chosen, the application is prepared and lodged without unnecessary delay, so the client becomes lawful on a Bridging visa C or Bridging visa E.
• Waiver submission. A written submission addresses each policy factor, explains the unlawful period truthfully, and presents the evidence of children, health, care needs, community ties and the consequences of departure.
• Relationship case. The four aspects of the relationship are proved through documents, one relationship statement and Form 888 statements.
• Updates and review. The file is kept current during processing, requests from the Department are answered, and ART review is pursued where appropriate.

Every partner visa schedule 3 overstayer matter is supervised by Weiwei Zhang, Principal Lawyer. The firm acts for clients across Australia, including through its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart, the Gold Coast and Parramatta. Consultations are held by video. More about the firm is on the About page.

If you have been in Australia without a visa for years and have an Australian partner, do not leave and do not approach the Department without advice. Book a consultation with My Migration Lawyers. You can also call 1300 040 300.