Partner Visa Schedule 3 for Former Student Visa Holders

A partner visa schedule 3 student visa case is one of the most common problems in the onshore partner caseload. It arises when a person who came to Australia on a student visa meets an Australian partner, but only lodges the Subclass 820 and Subclass 801 application after the student visa has already ended. At that point the applicant holds no substantive visa, and Schedule 3 to the Migration Regulations 1994 applies.

The partner visa schedule 3 student visa problem is not about whether the relationship is genuine. It is a separate legal hurdle that sits on top of the relationship assessment. A couple can prove a strong, committed relationship and still be refused because Schedule 3 was not satisfied and no compelling reasons were accepted. For that reason the onshore Subclass 820 partner visa application for a former student needs to be prepared around Schedule 3 from the first day, not as an afterthought.

This article explains how Schedule 3 applies to former student visa holders whose visa has expired or been cancelled, how the 28-day window works, why cancellation for breach of a study or work condition changes the position, how compliance history is assessed, what evidence supports compelling reasons, and what the bridging visa and travel position looks like. For the wider rules on both pathways, read the complete guide to partner visas in Australia.

What Is a Partner Visa Schedule 3 Student Visa Case?

A partner visa schedule 3 student visa case is an onshore partner application made by someone whose last substantive visa was a student visa that is no longer in effect. Because the applicant did not hold a substantive visa on the day the Subclass 820 application was lodged, paragraph 820.211(2)(d) of Schedule 2 requires the applicant to satisfy Schedule 3 criteria, unless the Minister is satisfied that there are compelling reasons for not applying them.

The typical facts are familiar. A student finishes a course, or stops attending, or has the student visa cancelled. During that period the student meets an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and the relationship develops. The couple then decide to lodge a partner application, often weeks or months after the student visa ended. Some people do not realise their visa has ended at all until they check VEVO.

This article is about that group: people whose student visa has ended. It is not about people who still hold a student visa. A person who still holds a student visa when they lodge is a substantive visa holder, Schedule 3 does not apply to them, and the planning issues are different. The general rules for anyone lodging without a visa are explained in the Schedule 3 criteria article. The partner visa schedule 3 student visa analysis below focuses on the issues that are specific to former students.

Why Schedule 3 Applies Once Your Student Visa Has Ended

Schedule 3 applies because the applicant does not hold a substantive visa at the time of application. Departmental policy for Schedule 3 states that the criteria apply to visa applicants who are in Australia and, at the time of application, are unlawful non-citizens or hold only a bridging visa. A former student visa holder whose visa has ended falls squarely within that description.

The policy explains the purpose of Schedule 3 plainly. It is designed to encourage people who have a legitimate basis to remain in Australia to apply for a further visa before their substantive visa ceases, to discourage people from remaining beyond their visa, and to prevent people from benefiting by remaining unlawfully while acquiring eligibility for another visa. A partner visa schedule 3 student visa applicant has, in the Department's eyes, done exactly what Schedule 3 is designed to discourage: remained in Australia after the student visa ended without lodging in time.

Holding a bridging visa does not change the partner visa schedule 3 student visa position

Many former students hold a bridging visa from another application, such as a refused further student visa application under review. A bridging visa is not a substantive visa. Subsection 5(1) of the Migration Act 1958 defines a substantive visa as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. Subsection 76(2) adds that holding a bridging visa is not to be treated as holding a visa for the purposes of an application for a visa of another class.

So a person who lodges a Subclass 820 while holding only a bridging visa is still treated as lodging without a substantive visa, and the partner visa schedule 3 student visa analysis still applies. Time spent on a bridging visa does not restart the 28-day clock in criterion 3001. The bridging visas overview explains the different classes.

The partner visa schedule 3 student visa criteria for a Subclass 820 applicant

Subparagraph 820.211(2)(d)(ii) requires an applicant who does not hold a substantive visa to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. In summary:

• Criterion 3001 sets a time limit. The application must be made within 28 days after the relevant day, which for a former student is usually the last day the student visa was held.
• Criterion 3003 is historical. It concerns people who were illegal entrants or held an entry permit that expired on or before 31 August 1994. It rarely affects a recent former student.
• Criterion 3004 applies to a person who ceased to hold a substantive visa on or after 1 September 1994. Where it applies, the decision maker must be satisfied of six separate matters, set out later in this article.

The waiver in subparagraph 820.211(2)(d)(ii) is the central question in most partner visa schedule 3 student visa matters. If compelling reasons are accepted, the Schedule 3 criteria are not applied. If they are not accepted, an applicant who fails any of the criteria cannot be granted the Subclass 820, however genuine the relationship. The Schedule 3 waiver service page explains how these matters are run.

Schedule 3 does not stop you lodging

Schedule 3 is a criterion for the grant of the visa, not a validity requirement. The Schedule 3 policy confirms that criteria 3001 and 3002 do not prevent a valid application from being made. If they are not satisfied, the Schedule 2 criteria cannot be satisfied and the visa cannot be granted. In practice this means a former student can lodge, receive a bridging visa and remain lawful during processing, while the Schedule 3 question is still unresolved. Lodging is the start of the partner visa schedule 3 student visa process, not the end of it.

Student Visa Expiry Versus Cancellation: Why the Difference Matters

The way your student visa ended changes the legal position. A student visa that simply expired leaves you with a Schedule 3 problem. A student visa that was cancelled leaves you with a Schedule 3 problem and, in most cases, a section 48 bar as well, together with a cancellation record that the Department will weigh when it decides whether compelling reasons exist.

Before any partner visa schedule 3 student visa application is lodged, the first task is to establish exactly how and when the student visa ended. People are often unsure. Some believe their visa was cancelled when it in fact expired. Others assume it simply ran out when a cancellation notice was sent to an old email address. The firm obtains the visa history directly from VEVO and departmental records rather than relying on memory.

When the student visa expired

A student visa expires at the end of the visa period stated in the grant notice. If no further substantive visa application was lodged before that date, the holder became an unlawful non-citizen the following day, unless they held a bridging visa from another application. There is no refusal or cancellation, so section 48 does not apply merely because a visa expired.

In a pure expiry case, the partner visa schedule 3 student visa question is mainly about timing and reasons. How long after expiry was the partner application lodged? Why was nothing lodged before the visa ended? What happened in the period without a visa? Those facts drive criterion 3001, criterion 3004 and the compelling reasons assessment.

When the student visa was cancelled for breach of a condition

Student visas carry conditions. Two of the most important are condition 8202 and condition 8105.

Condition 8202 requires a student to be enrolled in a full-time registered course and to maintain enrolment at the same or a higher qualification level. It also requires the student to ensure that the education provider has not certified them as not achieving satisfactory course progress or satisfactory course attendance under section 19 of the Education Services for Overseas Students Act 2000 and the national code. Condition 8105 limits work during any fortnight when the course is in session. For a Subclass 500 Student visa, subclause 8105(2A) sets that limit at 48 hours a fortnight, with exceptions for work that is a registered requirement of the course and for some research degrees.

If the Department is satisfied that a visa holder has not complied with a condition, the visa may be cancelled under paragraph 116(1)(b) of the Act. The Department will usually issue a notice of intention to consider cancellation and give the holder an opportunity to respond before deciding. Once the visa is cancelled, the person becomes an unlawful non-citizen unless they hold another visa. The notice of cancellation itself warns that any Bridging visa A, B or C held in connection with another application may have ceased.

A cancellation for breach of condition 8202 or 8105 matters in a partner visa schedule 3 student visa case in three ways. It makes section 48 apply. It is direct evidence of non-compliance with the conditions of the last visa, which is relevant to criterion 3004. And it is one of the matters the Department considers when it assesses compelling reasons, because policy lists any history of non-compliance with visa conditions as a relevant factor. The visa cancellations service page explains how cancellation matters are handled.

The section 48 bar after cancellation

Section 48 of the Act limits the visas a person can apply for in Australia if they do not hold a substantive visa and have had a visa refused or cancelled since they last entered Australia. A former student whose student visa was cancelled, and who has not left Australia since, is almost always caught by section 48.

The partner pathway remains open despite section 48. Regulation 2.12 prescribes the classes of visa a section 48 affected person may still apply for, and the list includes Partner (Temporary) (Class UK), which contains the Subclass 820, and Partner (Residence) (Class BS), which contains the Subclass 801. The cancellation notice itself lists these classes.

However, paragraph 1124B(3)(e) of Schedule 1 imposes extra validity requirements on a section 48 affected applicant for the Subclass 801, and because the Subclass 820 and Subclass 801 must be lodged together, those requirements govern the whole application. In summary, the applicant:

• must not have had a partner visa refused since last entering Australia;
• must provide, at the same time and place as the application, the sponsorship form completed and signed by the Australian partner; and
• must provide two supporting Form 888 statements, each made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner, declaring that the couple are in a married or de facto relationship, and each made no more than six weeks before the day of application.

If any of these requirements is missed, the application is invalid. An invalid application produces no bridging visa and does not stop the Schedule 3 clock. The cost of a mistake at lodgement in a cancelled partner visa schedule 3 student visa case is therefore much higher than in an ordinary application. The partner visa after a visa refusal article covers section 48 for partner applicants in more detail, and the Form 888 guide explains the supporting statements.

Section 48 can also follow a person overseas. Subsection 48(3) provides that a person who leaves and re-enters Australia while holding a bridging visa is taken to have been continuously in the migration zone. Travelling on a Bridging visa B does not reset the bar.

Should the cancellation itself be challenged?

A cancellation decision under section 116 usually carries a right of review at the Administrative Review Tribunal (ART). The deadline is short, it runs from notification, it is strictly applied, and the Tribunal cannot extend it. A person who receives a cancellation decision should obtain advice immediately, because the choice between challenging the cancellation and moving straight to a partner application has consequences for the bridging visa position, the section 48 position and the record the Department will later read.

If a cancellation is set aside, the person is treated differently from someone whose visa remains cancelled. That is a reason to consider review carefully while the time limit is still open. It is not a reason to delay a partner application if the review deadline has already passed.

Course Completion and the Student Visa End Date in a Partner Visa Schedule 3 Student Visa Case

Finishing your course does not, by itself, end your student visa. The student visa ends on the date stated in the grant notice and shown in VEVO. Many former students in a partner visa schedule 3 student visa situation lost their status not because they finished studying, but because the visa end date arrived and nothing was lodged before it.

Two practical points follow. First, the relevant day for criterion 3001 is the last day the student visa was held, not the day the course finished or the day the student stopped attending. If the visa was cancelled, the relevant day is linked to the cancellation, not the original end date printed on the grant. Second, the period between course completion and the visa end date is often the period in which the relationship began. Evidence of what happened in that period can matter to both the relationship assessment and the Schedule 3 assessment.

Stopping study early, or ceasing to be enrolled while the visa remains in effect, can raise questions under condition 8202 and the cancellation powers. A partner visa schedule 3 student visa applicant who stopped studying and later lodged should expect the Department to look closely at enrolment records and provider reports. The onshore partner visa requirements guide explains the core Subclass 820 requirements that apply alongside Schedule 3.

The 28-Day Window in a Partner Visa Schedule 3 Student Visa Case

Criterion 3001 requires the partner application to be made within 28 days after the relevant day. For a former student who ceased to hold a substantive visa on or after 1 September 1994, criterion 3001(2)(c) makes the relevant day the later of the last day the applicant held a substantive visa and the day the applicant last entered Australia unlawfully. For almost every partner visa schedule 3 student visa applicant, that is the last day the student visa was held.

How the 28 days are counted

Departmental policy states that the first of the 28 calendar days is the day after the last day the visa was held. The application must be lodged on or before midnight on the 28th day. If the 28th day falls on a weekend, or on a public holiday or bank holiday in any place in Australia where the application could have been made, the criterion is satisfied if the application is lodged by midnight on the first following day that is not a Saturday, Sunday, public holiday or bank holiday.

If the applicant held more than one substantive visa, the time runs from the cessation of the last one. A former student who held a student visa, then a different substantive visa, counts from the end of the later visa.

Lodging inside the 28 days satisfies criterion 3001 only

Lodging within 28 days satisfies criterion 3001. It does not, on its own, dispose of criterion 3004, which is a separate criterion. On its terms, criterion 3004 applies to an applicant who ceased to hold a substantive visa on or after 1 September 1994 and has not since been granted a substantive visa. Where it applies, the decision maker must be satisfied of each of its separate requirements, unless the Schedule 3 criteria are waived for compelling reasons.

This is a point that is often oversimplified. Many sources say that lodging within 28 days "avoids Schedule 3". That is too simple. In a partner visa schedule 3 student visa case lodged inside the window, the applicant is in a much stronger position than someone who lodged late, but criterion 3004 still needs to be addressed, and the reasons the student visa ended and the compliance history still matter.

Lodging outside the 28 days

If the application was lodged more than 28 days after the student visa ended, criterion 3001 cannot be met. The Subclass 820 can then only be granted if the decision maker is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Every partner visa schedule 3 student visa case lodged outside the window becomes a compelling reasons case. The Schedule 3 partner visa waiver article explains how that waiver operates.

In a partner visa schedule 3 student visa case, the length of time outside the window matters. Policy lists the length of time the applicant has been an unlawful non-citizen and the reasons the applicant did not seek to become lawful sooner as relevant factors. A short gap after a student visa expired, explained by real events, is assessed very differently from several years without a visa and no attempt to regularise status.

Criterion 3004 in a Partner Visa Schedule 3 Student Visa Case

Criterion 3004 contains six separate requirements, and all six must be met unless the Schedule 3 criteria are waived. The Schedule 3 policy notes that these criteria include subjective elements, so the decision maker must assess all of the circumstances and form an opinion. The reasons an applicant meets one requirement may also be relevant to the others.

In a partner visa schedule 3 student visa matter, the six requirements are usually assessed as follows.

Factors beyond the applicant's control

Criterion 3004(c) requires the decision maker to be satisfied that the applicant became a person without a substantive visa because of factors beyond their control. Policy identifies two requirements: there must be factors that caused the applicant to become a person without a substantive visa, and those factors must have been beyond the applicant's control. Causation matters. It is not enough that difficult circumstances existed. They must have caused the loss of status.

Policy gives a serious accident or illness that rendered the applicant incapable of applying as an example that may clearly meet the test. It treats claims that the applicant misunderstood when the visa ended, or misunderstood the visa conditions, with caution, and states that it is reasonable to assume a visa holder is aware of the visa period and conditions unless there is evidence to the contrary. Policy also says that the actions of an agent or lawyer are generally taken to be the actions of the applicant, although each case turns on its facts.

For a partner visa schedule 3 student visa applicant, this requirement is hard to meet where the visa was cancelled for breach of condition 8202 or 8105, because the breach is usually treated as within the student's control. It may be easier to meet where, for example, an application lodged before the student visa expired was later found invalid, and the person acted promptly once they became aware.

Compelling reasons for granting the visa

Criterion 3004(d) requires the decision maker to be satisfied that there are compelling reasons for granting the visa. Policy says "compelling" takes its ordinary meaning, and that the circumstances should be considered individually and cumulatively, including the likely consequences of not granting the visa.

Substantial compliance with the conditions of the last visa

Criterion 3004(e) requires the decision maker to be satisfied that the applicant has complied substantially with the conditions that applied to their last visa, including any later bridging visa. For a partner visa schedule 3 student visa applicant, the last substantive visa is the student visa. Attendance, course progress and work hour records are therefore directly relevant. This requirement is where a cancellation for breach, or a provider report, does the most damage in a partner visa schedule 3 student visa case.

Entitlement to the visa when the student visa ended

Criterion 3004(f)(i) requires the decision maker to be satisfied that the applicant would have been entitled to the visa had they applied immediately before becoming a person without a substantive visa. Policy explains that this tests the applicant's circumstances on the day they last held the substantive visa against the criteria for the visa now sought, so that no advantage is gained by remaining in Australia without a visa.

This point is rarely explained to former students. If the relationship with the Australian partner began after the student visa ended, the applicant may not have been entitled to a partner visa on the last day the student visa was held. In that situation criterion 3004 may be very difficult to satisfy, and the case may depend entirely on the compelling reasons waiver. That is one reason the timeline of the relationship has to be reconstructed carefully and accurately before anything is lodged.

Intention to comply with future conditions

Criterion 3004(g) requires the decision maker to be satisfied that the applicant intends to comply with any conditions of the visa to be granted. A history of breaching student visa conditions makes this requirement harder to satisfy, and the applicant's conduct since the student visa ended, including compliance with any bridging visa conditions, is part of the picture.

The pre-1994 no further stay condition

Criterion 3004(h) concerns a no further stay condition attached before 1 September 1994. It is of no practical relevance to a recent former student.

Compliance History in a Partner Visa Schedule 3 Student Visa Application

The Department will see the applicant's whole student visa history, and it will use that history when it assesses substantial compliance, intention to comply and compelling reasons. A partner visa schedule 3 student visa applicant cannot present a fresh start. The record is already on file.

Departmental systems hold the student visa application, the grant and its conditions, any notice of intention to consider cancellation, any response, any cancellation decision, records of further visa applications, and bridging visa grants. Education providers also report certain matters about overseas students. Tax and payroll information may show work patterns. Applicants should assume that what they say about their study and work history will be compared with these records.

Attendance and course progress

Condition 8202 requires the student to avoid being certified by the provider as not achieving satisfactory course attendance or satisfactory course progress. A certification of that kind, or a cancellation that followed it, will be visible. In a partner visa schedule 3 student visa submission, where attendance or progress problems were caused by real events, such as illness, a family crisis or a provider closure, those events should be documented. Where there is no such explanation, the applicant should not invent one. The firm presents the client's own account and evidence accurately, and an explanation that does not match the record damages credibility across the whole application.

Work limits

Condition 8105 limits work during any fortnight in which the course is in session. Work beyond the limit is a breach of condition, even if the student was working to support themselves. In a partner visa schedule 3 student visa matter, the decision maker may consider any breach when assessing substantial compliance and compelling reasons. Where the work history is uncertain, it should be checked against payslips and tax records before the applicant gives any account of it.

Credibility and consistency

Credibility affects everything in a Schedule 3 case. Policy warns decision makers that the waiver is not intended to give an unfair advantage to people who fail to comply with visa conditions, who deliberately manipulate their circumstances to create compelling reasons, or who can leave Australia and apply offshore. A former student whose account of why the visa ended changes from one document to the next invites a finding that the claims are not reliable.

The relationship evidence is assessed alongside this history. The relationship statement, the Form 80 personal particulars form and any supporting Form 888 statements must all tell the same story about dates, addresses, study and work.

What Counts as Compelling Reasons for Former Student Visa Holders?

Compelling reasons are circumstances serious enough to justify not applying Schedule 3, assessed against the policy that the waiver is for genuinely compelling cases. For a partner visa schedule 3 student visa applicant, the strongest cases usually involve circumstances beyond the applicant's control, an Australian citizen child, or serious health or care needs within the family.

What policy says is generally not enough

The Subclass 820 policy states that, as a general rule, a genuine relationship and the hardship of separation if the applicant had to apply offshore are not compelling reasons. The reason given is that every partner application is based on a genuine relationship, and separation hardship is common across the caseload. Policy also gives an example of a case where compelling reasons may not exist: an applicant who remained unlawful for a number of years, made little or no effort to become lawful, and relies on a long relationship and separation hardship.

Policy also states that the waiver should not be applied where it is reasonable to expect the applicant to leave Australia and apply offshore. That is why every partner visa schedule 3 student visa submission must deal directly with why an offshore application is not a reasonable expectation in this particular case.

Matters the Department considers

Policy lists matters delegates should take into account, including:

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

In a partner visa schedule 3 student visa case, the first four factors are drawn largely from the student visa record. The last two often depend on what has happened since.

Circumstances that may be compelling

Policy states that it is reasonable to accept that compelling circumstances exist where the applicant was prevented from becoming lawful by reasons beyond their control, such as severe illness or incapacity. It also states 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.

Other circumstances examined in Tribunal decisions include serious illness of the Australian partner, the applicant's role as a carer, family health issues and bereavement, and the cumulative effect of several factors together. None of these is automatically compelling. Each must be proved with evidence and weighed against the compliance history. The Schedule 3 policy states that all the circumstances, individually and cumulatively, should be considered.

Compelling reasons are assessed at the time of decision

The Full Federal Court held in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 that compelling reasons can include circumstances arising up to and including the time of decision. Departmental policy reflects that decision. In a partner visa schedule 3 student visa matter, this means the submission should be updated when circumstances change, such as the birth of a child or a significant health development, rather than being treated as fixed at lodgement.

Evidence for a Partner Visa Schedule 3 Student Visa Waiver

Evidence is what decides a partner visa schedule 3 student visa waiver. The submission must explain the circumstances in plain terms and each claim must be supported by documents from independent sources wherever possible. Assertions without evidence carry little weight.

Evidence commonly relevant for former students includes:

• The visa history, obtained by the firm from VEVO and departmental records, including the student visa grant, its conditions, any cancellation decision and any later applications.
• Education records within the applicant's control, such as enrolment confirmations, results, attendance letters and correspondence with the provider about deferral, suspension or completion.
• Medical evidence where illness or incapacity is relied on, from treating practitioners, explaining the condition, its timing and its effect on the applicant's ability to deal with their visa.
• Evidence about children, including birth certificates and evidence of the applicant's role in the child's daily life.
• Evidence about the Australian partner, including medical or care needs and why the partner cannot reasonably relocate or manage alone.
• Evidence of steps taken to regularise status, such as earlier applications, contact with the Department and prompt action once the loss of status became known.
• Relationship evidence across the four aspects of the relationship: financial aspects, the nature of the household, social aspects and the nature of the commitment.

The partner visa relationship evidence guide, the guide to preparing evidence of a genuine relationship, the partner visa document checklist and the Subclass 820 evidence checklist explain the relationship side. The compelling reasons evidence sits on top of that and must be organised around the specific Schedule 3 issues in the case.

Partner visa schedule 3 student visa applicants are not expected to produce immigration documents they no longer have. Former students often have no copy of an old grant notice or cancellation letter. The firm obtains that history itself. What the applicant usually needs to provide is their own account and the personal records they can readily obtain.

Bridging Visa Position After the Student Visa Ends

A former student who lodges a valid Subclass 820 application without a substantive visa will usually receive a Bridging visa C, or a Bridging visa E if they have held a Bridging visa E since their student visa ended. A Bridging visa A is not available, because it requires the applicant to have held a substantive visa when they lodged. This is the starting point for every partner visa schedule 3 student visa applicant.

Item 1303 of Schedule 1 requires a Bridging visa C applicant not to hold, and not to have held since last holding a substantive visa, a Bridging visa E. A former student who was located by compliance officers after the student visa ended and granted a Bridging visa E is therefore usually limited to a further Bridging visa E. The initial Bridging visa C must be applied for on the same form and at the same time as the partner application, which happens automatically when the combined Subclass 820 and Subclass 801 application is lodged online in ImmiAccount.

The bridging visa makes the applicant lawful from grant. It does not cure Schedule 3, it does not undo the period without a visa, and it does not change the relevant day for criterion 3001. A Bridging visa C usually carries condition 8101, which prohibits work, and a Bridging visa E may carry work, reporting and address conditions. The Subclass 820 work rights article explains when permission to work may be sought.

Compliance with bridging visa conditions is part of criterion 3004(e), which looks at the last visa and any later bridging visa. A partner visa schedule 3 student visa applicant who breaches a Bridging visa E reporting condition while the waiver is being assessed adds a new compliance problem to an old one. The Bridging visa A guide and Bridging visa B guide explain why those visas are not available to most applicants in this position.

Should You Leave Australia Instead?

Do not leave Australia without advice. A partner visa schedule 3 student visa applicant who departs may lose their bridging visa, may face exclusion periods for later visas, and may make it harder to return while a decision is pending.

A Bridging visa C or Bridging visa E is a visa to remain in Australia. Neither allows travel, and neither can lead to a Bridging visa B, because a Bridging visa B is only available to a person who holds a Bridging visa A or Bridging visa B. If the applicant leaves while the bridging visa is in effect, it ceases on departure.

Exclusion periods add to the risk. Public interest criterion 4014 creates a risk factor for a person who left Australia as an unlawful non-citizen or as the holder of a Bridging visa C, D or E, subject to exceptions. Where it applies to a later visa, that visa generally cannot be granted within three years of departure unless compelling or compassionate circumstances are shown. Public interest criterion 4013 creates a similar three-year risk factor after certain visa cancellations, depending on the cancellation ground. Whether either criterion applies depends on the visa later sought and on the exact facts.

Departure is not always the wrong choice. Policy says the Schedule 3 waiver should not be applied where it is reasonable to expect the applicant to apply offshore, and for some former students an offshore Subclass 309 partner visa may be the more realistic path. But that decision should be made after the exclusion period, section 48 and timing issues have been assessed, not on impulse after a compliance interview.

What Tribunal Decisions Show About Former Student Visa Holders

Tribunal decisions show that partner visa schedule 3 student visa matters are decided on the detail of the applicant's history and the quality of the evidence of their circumstances. In each of the following decisions, drawn from a database of partner visa remittals, the Tribunal set aside the refusal and remitted the matter, which means it sent the application back to the Department to reconsider. A remittal is not a grant. The issues listed are the issues the decisions were reported on:

• 1814675 (Migration) [2020] AATA 3017: the application was made more than 28 days after the last substantive visa was held, following cancellation of a student visa and a lengthy unlawful stay, and the sponsor's mental health was in issue.
• Namsombun (Migration) [2020] AATA 2611: the application was made more than 28 days after the last substantive visa was held, while the applicant held a bridging visa pending review of the refusal of a further student visa.
• 1726263 (Migration) [2020] AATA 5621: the applicant held no substantive visa at the time of application, and the Tribunal considered compelling reasons to waive the Schedule 3 criteria where the application was lodged a short time after the substantive visa expired.
• Li (Migration) [2020] AATA 5418: the application was made more than 28 days after the last substantive visa was held, and the Tribunal considered compelling reasons for not applying the criteria alongside possible manipulation of visa history.
• Shaikh (Migration) [2020] AATA 610: a Federal Circuit Court remittal where the application was not lodged within 28 days after the last substantive visa ceased, and the applicant's migration history and time as an unlawful non-citizen were in issue.
• Fu (Migration) [2025] ARTA 669: a Federal Circuit Court remittal concerning compelling reasons to waive the Schedule 3 criteria where the applicant held no substantive visa at the time of application.

The first five decisions were made by the Administrative Appeals Tribunal before the ART commenced on 14 October 2024. Fu was decided by the ART. These decisions show the kinds of matters the Tribunal examined. They do not establish that any particular fact will be accepted as compelling in another case, and departmental policy remains that a relationship and separation hardship alone are generally not enough. What they do show is that a student visa cancellation, a bridging visa from a failed student application, or a long period without a visa does not automatically end the matter, and that the evidence presented decides it.

If the Subclass 820 Is Refused on Schedule 3 Grounds

If the Department refuses a partner visa schedule 3 student visa application because Schedule 3 was not met and compelling reasons were not accepted, the refusal is generally reviewable by the ART. The review deadline is short, it runs from notification of the decision, it is strictly applied, and the Tribunal cannot extend it. Read the refusal letter on the day it arrives.

The applicant must be in Australia when applying for review of a Subclass 820 refusal. The Tribunal reconsiders the matter afresh and, because compelling reasons are assessed at the time of decision, circumstances that have developed since the Department's decision can be put before it. The bridging visa associated with the application generally continues while a valid review is pending.

Many refusals follow a section 57 natural justice letter or a section 56 request for more information. In a Schedule 3 case, either letter is the last opportunity to put compelling reasons evidence to the Department before a decision. The partner visa refusal appeal options article, the ART review guide, the partner visa refusals page and the visa refusals service page explain the review stage. Where the Tribunal affirms a refusal and an error of law is identified, judicial review may be considered. Common reasons for refusal are discussed in Subclass 820 refusal reasons and why partner visas get refused.

Common Mistakes in Partner Visa Schedule 3 Student Visa Applications

Most failed partner visa schedule 3 student visa applications share a small number of avoidable mistakes:

• Assuming the 28 days solves everything. Lodging within 28 days satisfies criterion 3001 only. Criterion 3004 is a separate test.
• Not knowing whether the visa expired or was cancelled. A cancelled student visa brings in section 48 and its extra validity requirements.
• Lodging an invalid application. Missing the sponsorship form or the two supporting Form 888 statements in a section 48 case makes the application invalid, so no bridging visa arises.
• Relying on the relationship alone in a partner visa schedule 3 student visa case. Policy treats a genuine relationship and separation hardship as generally not compelling.
• Giving an inconsistent account of study and work. The record of attendance, cancellation and work is on file.
• Ignoring the relationship timeline. Criterion 3004(f) looks at entitlement on the day the student visa ended.
• Failing to update the submission. Compelling reasons are assessed at the time of decision.
• Leaving Australia on impulse. Departure can end the bridging visa and trigger exclusion periods.

If you lodged on your own and are now concerned about the Schedule 3 position, the article on hiring a lawyer after lodgement explains how a lawyer can step in, and the second opinion guide explains what a review of an existing file involves. If your circumstances change after lodgement, the Department must be notified, usually through Form 1022. The Form 956 and 956A article explains how a representative is appointed. Where the relationship ends, the Subclass 820 relationship breakdown article and the family violence provisions page set out the options. Processing timeframes are covered in the Subclass 820 processing time article.

How My Migration Lawyers Helps With Partner Visa Schedule 3 Student Visa Matters

My Migration Lawyers treats every partner visa schedule 3 student visa matter as a Schedule 3 case first and a relationship case second, because the Schedule 3 position decides whether the relationship evidence can lead to a grant at all. The firm deals with complex onshore partner matters and acts in many matters of this exact type, including former students whose visa expired, former students whose visa was cancelled for breach of condition 8202 or 8105, and applicants who have been without a visa for a long period. These cases are often complex, and the firm is capable of handling them.

In practice, the firm's approach follows these steps:

• Reconstruct the visa history from the records. The firm checks VEVO and obtains departmental records to establish exactly when and how the student visa ended, whether it was cancelled and on what ground, and whether section 48 applies.
• Fix the dates. The firm identifies the relevant day for criterion 3001, whether the 28-day window is still open, and the timeline of the relationship against the date the student visa ended.
• Assess the cancellation options. Where a cancellation decision is recent, the firm advises whether review is available and whether it should be pursued alongside or instead of an immediate partner application.
• Lodge a valid application. Where section 48 applies, the firm ensures the sponsorship form and the two supporting Form 888 statements are complete and lodged with the combined Subclass 820 and Subclass 801 application, so that the application is valid and a bridging visa arises.
• Build the partner visa schedule 3 student visa submission. The firm addresses criterion 3004 and the compelling reasons waiver directly, deals openly with the compliance history, and organises the client's own account and evidence in the form the law requires.
• Keep the case current. Because compelling reasons are assessed at the time of decision, the firm updates the submission when circumstances change, responds to requests from the Department and, if a refusal issues, identifies the review deadline immediately.

Matters are supervised by Weiwei Zhang, Principal Lawyer. No outcome can be promised in any migration matter, but a former student who gets the partner visa schedule 3 student visa analysis right before lodging is in a far better position than one who lodges first and asks questions later.

The firm acts for clients across Australia, including through its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Consultations are held by video, so location is no barrier. You can learn more about My Migration Lawyers and its partner visa lawyers, or read what to expect from a consultation. If your situation is urgent, the urgent advice guide explains what to gather first.

If your student visa has expired or been cancelled and you want to lodge a partner visa onshore, speak to a lawyer before you lodge, before you respond to the Department and before you make any travel decision.

Book a consultation with My Migration Lawyers to have your partner visa schedule 3 student visa position assessed. You can also call 1300 040 300.