Partner Visa Schedule 3 Waiver Submission: How It Is Written

A partner visa Schedule 3 waiver submission is the written legal argument that asks the Department of Home Affairs not to apply the Schedule 3 criteria to an onshore partner visa applicant who did not hold a substantive visa when they applied. For many applicants, it is the document that decides whether the visa can be granted at all.

The relationship can be genuine, the sponsor can be eligible and every form can be correct, and the visa can still be refused if the Schedule 3 criteria are not met and no waiver is granted. That is why a partner visa Schedule 3 waiver submission deserves the same care as the relationship evidence itself. It is not a covering letter. It is a structured legal document that applies the law to the facts and points to the evidence that proves those facts.

This guide explains how the submission is written. It covers when it is lodged, how it is structured, how each compelling reason is presented, how the Department's policy concerns are answered, how the evidence is indexed and annexed, the drafting mistakes that weaken it, and how it is kept up to date until the decision. For the general law of Schedule 3, read our guide to the Schedule 3 criteria for partner visa applicants who are unlawful and our article on the Schedule 3 partner visa waiver. For how My Migration Lawyers acts in these matters, see our Schedule 3 waiver service page.

What is a partner visa Schedule 3 waiver submission?

A partner visa Schedule 3 waiver submission is a written legal submission that sets out why there are compelling reasons for not applying Schedule 3 criteria 3001, 3003 and 3004 to an applicant for the onshore Subclass 820 visa. It is lodged with the Department, and later with the Administrative Review Tribunal if the matter goes to review.

The legal hook is subparagraph 820.211(2)(d)(ii) of the Migration Regulations 1994. For an applicant who did not hold a substantive visa at the time of application, it requires the applicant to satisfy criteria 3001, 3003 and 3004 of Schedule 3, "unless the Minister is satisfied that there are compelling reasons for not applying those criteria". In practice, the decision is made by a Department case officer acting as the Minister's delegate.

The submission has a single job. It must persuade that decision maker, on evidence, that compelling reasons exist. A partner visa Schedule 3 waiver submission therefore does three things:

• It sets out the applicant's immigration history accurately and completely.
• It identifies each circumstance relied on as a compelling reason and explains why it is compelling in law.
• It links each factual statement to an annexed document, a Form 888 statement, an expert report or other evidence.

A common misconception is that the case officer will work out the compelling reasons from the file. The decision maker assesses the material that is put before them. If a partner visa Schedule 3 waiver submission is thin, vague or missing, the assessment is usually thin as well. The applicant carries the practical burden of putting the case.

The submission is also separate from the combined Subclass 820 and Subclass 801 application itself. Our Subclass 820 visa service page explains how the full application is prepared, our Subclass 820 partner visa guide explains the other requirements, and our complete guide to partner visas in Australia explains each partner visa subclass.

Who needs a partner visa Schedule 3 waiver submission?

An applicant needs a partner visa Schedule 3 waiver submission when they lodge an onshore partner visa without holding a substantive visa and cannot clearly satisfy criteria 3001, 3003 and 3004. In practice, most applicants without a substantive visa should present a compelling reasons case, even if they believe they meet the criteria, because the criteria are narrow.

The applicants who most often need one include:

• People who overstayed a visitor, student, working holiday or other temporary visa and are unlawful at the time of lodgement.
• People holding a Bridging Visa E, whether because they were unlawful, were making arrangements to leave, or were waiting on another matter.
• People holding a bridging visa from a different application after their substantive visa ended. A bridging visa is not a substantive visa. Our guide to bridging visas in Australia and our article on the Bridging Visa A explain the difference.
• People whose earlier visa application was refused, or whose visa was cancelled, in Australia, and who are on a bridging visa while a review or other matter is pending.

Section 48 affected applicants

A person in Australia who does not hold a substantive visa and has had a visa refused or cancelled since last entering Australia is affected by section 48 of the Migration Act 1958. The Partner (Subclass 820 and Subclass 801) class remains available to them, but Schedule 1 item 1124B adds validity requirements. The applicant must not have been refused a partner visa since last entering Australia. The sponsor's completed sponsorship form must be lodged with the application. Two statutory declarations must also be lodged, each made by an Australian citizen, 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 within a short period before the application. If any of these is missing, the application is invalid. If the application is valid, Schedule 3 still applies, so the applicant still needs a partner visa Schedule 3 waiver submission. Our article on applying for a partner visa after a visa refusal explains the section 48 position.

Condition 8503 is a different problem

Condition 8503 (No Further Stay) is not a Schedule 3 issue. Where it applies, it generally prevents a valid onshore partner visa application unless it is waived first. A Schedule 3 submission cannot cure an invalid application. Our article on applying for a Subclass 820 visa with condition 8503 explains that separate waiver.

What legal test must a partner visa Schedule 3 waiver submission answer?

A partner visa Schedule 3 waiver submission must show that there are compelling reasons for not applying criteria 3001, 3003 and 3004, assessed on all of the applicant's circumstances up to the time of decision. It should also show, where it honestly can, how far the applicant does or does not meet each criterion.

In outline, the criteria are:

• Criterion 3001 requires the application to be made within a short period after the applicant last held a substantive visa. It does not make a late application invalid. The application can be lodged, but the visa cannot be granted unless the criteria are met or waived.
• Criterion 3003 is a legacy criterion for people who have been unlawful since before 1 September 1994. It rarely matters today.
• Criterion 3004 applies to people who ceased to hold a substantive visa, or entered unlawfully, on or after 1 September 1994. Among other things, it requires that the reasons for being unlawful were beyond the applicant's control, that there are compelling reasons to grant the visa, that the applicant substantially complied with the conditions of their last visa, including any bridging visa, and that they would have been entitled to the visa had they applied immediately before becoming unlawful.

Compelling reasons for not applying the criteria

The phrase in subparagraph 820.211(2)(d)(ii) is "compelling reasons for not applying those criteria". The Regulations do not define it, and it is assessed case by case. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court held that the decision maker must consider all of the applicant's circumstances as known up to the time of decision. Circumstances that arise after lodgement, such as the birth of a child, therefore count.

Department policy adds its own guidance. The waiver is intended for genuinely compelling circumstances. It is not meant to advantage people who failed to comply with visa conditions, who manipulated their circumstances, or who can leave Australia and apply offshore. As a general rule, a genuine relationship and the hardship of separation are not compelling reasons on their own. Circumstances beyond the applicant's control that caused or prolonged unlawful status, such as severe illness or incapacity, are reasonably accepted as compelling. A long period of unlawful stay with little effort to regularise status weighs against the applicant. A well-drafted partner visa Schedule 3 waiver submission is built around these policy points rather than ignoring them.

When is a partner visa Schedule 3 waiver submission lodged?

A partner visa Schedule 3 waiver submission should be lodged with the onshore partner visa application wherever possible, and it should then be supplemented or updated whenever the circumstances change or the Department asks for more information. There is no single fixed moment, and the strongest cases are treated as a living document until the decision.

With the application

Lodging the submission with the application has three advantages. The case officer sees the compelling reasons case from the start. The immigration history is explained by the applicant before the Department draws its own conclusions from its records. And the evidence is organised before any request arrives. Where a client is unlawful and lodgement is urgent, the core submission can be lodged with the application and a fuller version uploaded shortly afterwards, with the delay explained.

In response to a request from the Department

The Department may send a request for further information under section 56 of the Migration Act 1958, sometimes specifically inviting the applicant to address Schedule 3. The response is often the main opportunity to put the case. Our article on responding to a section 56 request explains how those requests work. Where the Department instead raises adverse information and invites comment, the response should deal with it directly, as our article on responding to a section 57 natural justice letter explains.

Updated before the decision

Because of Waensila, a partner visa Schedule 3 waiver submission is never frozen at lodgement. A pregnancy, a birth, a new medical diagnosis for the sponsor, a bereavement or a change in the care of children can all strengthen the case. Each change should be notified, generally through Form 1022, and the submission updated with fresh evidence. Our guide to the Form 1022 change of circumstances notice explains when it must be lodged.

On review at the Tribunal

If the visa is refused and the matter goes to the Administrative Review Tribunal, the Tribunal considers compelling reasons afresh, on the evidence before it at the time of its own decision. The submission is then rewritten for the Tribunal, with the Department's reasons answered point by point.

Who prepares a partner visa Schedule 3 waiver submission, and whose words are in it?

The partner visa Schedule 3 waiver submission is a legal document prepared by the applicant's representative, while the facts in it come from the applicant, the sponsor and the evidence. These are different documents with different jobs, and keeping them separate is part of good drafting.

The file usually contains:

• One relationship statement, which is the couple's own account of the relationship in their own words. Our guide to the partner visa relationship statement explains its structure.
• Form 888 statements from Australian citizens or permanent residents who know the couple. Our article on Form 888 for a partner visa explains who can make one.
• Documents and expert reports that prove particular facts, such as birth certificates, medical reports and records of earlier visa applications.
• The legal submission, which applies the law to those facts and cites the evidence.

The submission does not replace the couple's account. It relies on it. My Migration Lawyers takes the client's own account and evidence and presents them in the form the law requires. The firm does not supply facts. Where the client's account has gaps or does not match the records, the gap is raised with the client and resolved before anything is lodged.

The applicant is appointed through Form 956 where a representative acts, and our article on Form 956 and 956A explains the appointment.

Where our partner visa Schedule 3 waiver submission clients are located

My Migration Lawyers prepares partner visa Schedule 3 waiver submissions for clients throughout Australia, and every consultation is conducted by video. Couples in New South Wales can read about our partner visa lawyers in Sydney and our partner visa lawyers in Parramatta. Couples in Victoria and Queensland can read about our partner visa lawyers in Melbourne, Brisbane and the Gold Coast. We also act through our partner visa lawyers in Perth, Adelaide, Canberra and Hobart. The location of the couple does not change the law or the structure of the submission. The immigration history and the compelling reasons do.

How is a partner visa Schedule 3 waiver submission structured?

A partner visa Schedule 3 waiver submission is best structured as a series of numbered parts that move from the facts, to the law, to each compelling reason, to the answers to the Department's concerns, and finally to a conclusion. A clear structure lets a busy case officer find every point and every piece of evidence quickly.

A typical structure is:

• Introduction and the outcome sought.
• Immigration history chronology.
• The legal framework: subparagraph 820.211(2)(d)(ii) and criteria 3001, 3003 and 3004.
• The applicant's position on each criterion.
• Each compelling reason, under its own heading, with evidence references.
• Answers to the Department's policy concerns, including why the applicant did not leave Australia and their compliance history.
• The best interests of any children affected by the decision.
• Conclusion.
• Evidence index and annexures.

The order can change to suit the case. Where the strongest point is an Australian citizen child, that heading comes first among the compelling reasons. Where the main concern is a long period of unlawful stay, the answer to that concern may need to come earlier. What should not change is the discipline of one point per heading and one evidence reference for every fact.

Introduction and the outcome sought

The introduction states who the applicant is, who the sponsor is, the visa applied for, and exactly what is asked. In a partner visa Schedule 3 waiver submission, the request is that the decision maker be satisfied that there are compelling reasons for not applying criteria 3001, 3003 and 3004, so that subparagraph 820.211(2)(d)(ii) is met. The introduction should also list the compelling reasons in one or two sentences each. A case officer who reads only the first page should understand the whole case.

The immigration history chronology

The chronology sets out every visa the applicant has held in Australia, with grant and expiry dates, every application lodged, every refusal or cancellation, every period without a visa, and every contact with the Department. It is written in date order, usually as a table or a numbered list, and each entry is cross-referenced to a grant notice, a VEVO record, a refusal letter or other document.

The chronology must be complete and accurate. The Department holds its own records, and an incomplete chronology invites the conclusion that something is being hidden. Where the client is unsure of a date, the records are obtained and checked, rather than guessed. Where there is a gap the client cannot explain, the submission says so plainly.

The chronology also shows when the applicant last held a substantive visa and when they became unlawful, which are the anchor dates for criteria 3001 and 3004. Our article on Bridging Visa A work rights and travel and our guide to completing Form 80 without errors explain two of the other documents where the same history must appear consistently.

The legal framework section

The legal framework section in a partner visa Schedule 3 waiver submission is short. It quotes subparagraph 820.211(2)(d)(ii), summarises criteria 3001, 3003 and 3004, and states the approach required by Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. It may refer to the Department's policy, because the submission will later answer that policy directly.

This section is not a treatise. A long recital of general law adds pages without adding persuasion. The case officer knows the law. What they need is a clear statement of the test and an honest statement of the applicant's position against it.

The applicant's position on each criterion

Before the compelling reasons are argued, the submission states which criteria the applicant can meet and which they cannot. Most applicants cannot meet criterion 3001 because the application was not made within the short period after their last substantive visa ended. Some can meet parts of criterion 3004 but not all. Saying this openly builds credibility, and it shows the decision maker exactly what the waiver is needed for.

How should each compelling reason be written in a partner visa Schedule 3 waiver submission?

Each compelling reason should be written under its own heading, stating the fact, the evidence that proves it, and why it is compelling in law for not applying the Schedule 3 criteria. A partner visa Schedule 3 waiver submission that combines every reason into one long paragraph makes the decision maker do the work of separating them, and weaker points can drag down stronger ones.

A useful pattern for each heading is:

• The fact, stated in one or two plain sentences.
• The evidence, cited by annexure number.
• The significance, explaining why this circumstance makes it compelling not to apply the criteria, and what would happen if they were applied.

Matters the Tribunal has considered compelling, in partner visa decisions it remitted to the Department for reconsideration, include Australian citizen children of the relationship, a pregnant sponsor, the sponsor's serious illness or mental health and dependence on the applicant, care of the sponsor's children, family health issues and bereavement, financial hardship, long-standing relationships, travel restrictions, and the circumstances in which the visa lapsed. Each is a separate heading, not a list item buried in a paragraph. Our companion guidance on preparing evidence of a genuine relationship explains how evidence is kept in good order over time.

Australian citizen children and proof of parentage

Where there is an Australian citizen child of the relationship, the heading should identify the child, their citizenship, who cares for them, and what separation from a parent would mean for them. The evidence usually includes the birth certificate, citizenship evidence, and records of the applicant's day-to-day role in the child's life.

Where parentage may be questioned, objective evidence matters. In Ali (Migration) [2026] ARTA 640, a decision in which the Tribunal remitted the matter to the Department for reconsideration, the recorded issues were children and DNA testing. In Le (Migration) [2022] AATA 1582, the recorded issues were DNA evidence and Schedule 3 being waived, and the Tribunal remitted the matter to the Department for reconsideration. The drafting lesson is that a partner visa Schedule 3 waiver submission should anticipate a parentage question and answer it with evidence, rather than waiting for the Department to raise it.

The sponsor's health and dependence on the applicant

Where the sponsor has a serious physical or mental health condition and depends on the applicant, the heading should describe the condition, the care the applicant provides, and what would happen to the sponsor if the applicant had to leave. The evidence should come from treating doctors or other qualified practitioners, not only from the couple.

In 1812074 (Migration) [2021] AATA 4485, a decision in which the Tribunal remitted the matter to the Department for reconsideration, the recorded issues were the applicant's immigration history and the sponsor's mental and physical health. The pairing is instructive. The submission did not have to pretend the immigration history was clean. It had to set out that history and then show why the sponsor's health made it compelling not to apply the criteria.

Circumstances beyond the applicant's control

Where the applicant became unlawful, or stayed unlawful, because of events they could not control, the heading should explain those events in date order and link them to the chronology. Examples include serious illness or incapacity, an invalid application lodged in good faith, a representative's failure, or travel restrictions that made departure impossible. Department policy reasonably accepts circumstances beyond the applicant's control that caused or prolonged unlawful status as compelling.

In Carman (Migration) [2023] AATA 3822, the recorded issue was factors beyond the applicant's control, and the Tribunal remitted the matter to the Department for reconsideration. A partner visa Schedule 3 waiver submission relying on this category must prove both the event and its effect. A hospital admission proves illness. It does not, by itself, prove that the illness prevented the applicant from regularising their status during the whole period.

Other recognised categories

Pregnancy, bereavement, financial hardship, care of the sponsor's children or elderly parents, and long-standing relationships each deserve their own heading where they apply. Length of relationship is a supporting point rather than a stand-alone reason, for the policy reason explained in this guide. Our Schedule 3 waiver service page explains how My Migration Lawyers identifies which categories apply to a particular couple. Our guide to partner visa relationship evidence explains how the relationship itself is proved.

How does a partner visa Schedule 3 waiver submission answer the Department's policy concerns?

A partner visa Schedule 3 waiver submission answers the Department's policy concerns by naming each concern and responding to it directly with facts and evidence. Ignoring a concern does not make it disappear. It leaves the case officer to resolve it without the applicant's input.

Why the applicant did not leave Australia and apply offshore

Department policy says the waiver is not meant to advantage people who can leave Australia and apply offshore for the Subclass 309 visa. The submission must therefore explain why leaving is not a reasonable option in this case. Relevant facts may include a child who cannot travel or cannot be separated from a parent, a sponsor whose health requires the applicant's daily care, the practical effect of exclusion periods that may apply after departure, or conditions in the applicant's home country. Each claim needs evidence. A bare statement that the couple do not want to be apart is not an answer, because every couple says it.

Compliance with visa conditions

Policy says the waiver is not meant to advantage people who failed to comply with visa conditions. The submission should set out the applicant's compliance history honestly. Where the applicant complied with every condition until their visa ended, that should be said and proved. Where there was a breach, the submission should identify it, explain the circumstances, and show what has changed. Substantial compliance with the conditions of the last visa, including any bridging visa, is also an element of criterion 3004.

Concerns about manipulation of the visa history

Policy says the waiver is not meant to advantage people who manipulated their circumstances. Where the history includes a series of applications, a late relationship, or an application lodged shortly after a refusal, the case officer may suspect manipulation. In Li (Migration) [2020] AATA 5418, the recorded issue was possible manipulation of visa history, and the Tribunal remitted the matter to the Department for reconsideration. The drafting point is that a partner visa Schedule 3 waiver submission should confront an apparent pattern in the history and explain each step with evidence, rather than hoping it will not be noticed.

The length of unlawful stay

A long period of unlawful stay with little effort to regularise status weighs against the applicant. The submission should explain why the period was as long as it was, what steps the applicant took, and when and why they sought advice. Where the explanation is weak, the submission should acknowledge that and rely on the strength of the other compelling reasons. Our guide to Schedule 3 criteria for unlawful applicants explains how unlawful periods are treated generally.

Dealing with each element of criterion 3004 in the submission

A partner visa Schedule 3 waiver submission should deal with each element of criterion 3004 separately, even though the purpose is to ask for a waiver of the criterion. Doing so shows the decision maker how close the applicant comes to meeting it, and the same facts often support the compelling reasons case.

The elements to address include:

• Whether the reasons the applicant became unlawful were beyond their control, with the evidence for that claim.
• Whether there are compelling reasons to grant the visa.
• Whether the applicant substantially complied with the conditions of their last visa, including any bridging visa.
• Whether the applicant would have been entitled to the visa had they applied immediately before becoming unlawful, which usually turns on whether the relationship existed and met the requirements at that time.

The last element is often overlooked. Where the relationship began after the applicant became unlawful, the applicant cannot meet it, and the submission should say so. Where the relationship was already genuine and the couple met the married or de facto requirements before the visa ended, the submission should prove it. Our article on the de facto partner visa and the 12-month rule explains the de facto requirements that apply at that point.

The best interests of children in a partner visa Schedule 3 waiver submission

The best interests of any child affected by the decision are a relevant consideration and should have their own heading in a partner visa Schedule 3 waiver submission. They are not limited to children of the relationship. A child of the sponsor from an earlier relationship, cared for by the applicant, is also affected.

The heading should identify each child, their age, their citizenship or visa status, their living arrangements, their schooling, and the role the applicant plays in their care. It should explain what would happen to the child if the applicant had to leave Australia, including whether the child would be separated from a parent or would have to leave Australia with them. The evidence may include school records, letters from teachers or health professionals, and records of the applicant's caring role.

The best interests of children are an important consideration, but they are not automatically decisive. The submission should therefore weigh them alongside the other compelling reasons rather than presenting them as the end of the inquiry.

How is the evidence indexed and annexed to a partner visa Schedule 3 waiver submission?

The evidence is indexed in a numbered list at the end of the partner visa Schedule 3 waiver submission, and each document is uploaded as a separately labelled annexure that matches the index. Every factual statement in the submission then cites the annexure that proves it, for example "(Annexure 7: birth certificate of the child)".

An evidence index does several things. It shows the case officer that each claim is supported. It lets them find a document in seconds. It prevents the same document being uploaded several times under different names. And it gives the applicant and their representative a checklist of what is still missing before lodgement. Our partner visa document checklist and our 820 partner visa evidence checklist list the core relationship documents that sit alongside the Schedule 3 evidence.

Documents not in English are translated. File names in ImmiAccount follow the annexure numbers. Where a document is only partly relevant, the relevant page is identified in the citation.

Form 888 statements

Form 888 statements from Australian citizens or permanent residents who know the couple support the genuineness of the relationship, and they can also support specific compelling reasons. A friend who has seen the applicant care for the sponsor during illness, or a family member who knows the applicant's role with the children, can describe what they have personally observed. The statement should be specific, dated and limited to the witness's own knowledge. Our article on Form 888 example answers and common mistakes explains what makes a statement useful.

Form 888 statements are different from the two statutory declarations required with the application of a section 48 affected applicant. Those are a validity requirement for that group. Form 888 statements are supporting evidence.

Medical, psychological and other expert reports

Where a compelling reason depends on health, the evidence should come from a treating practitioner who can state the diagnosis, the treatment, the prognosis and the practical consequences for the family. A report that addresses the questions the decision maker needs answered is far more useful than a short certificate. The report should explain, in the practitioner's own professional words, what the patient's care needs are and who meets them. The practitioner should act in their professional capacity, not as a friend of the family.

The partner visa Schedule 3 waiver submission then summarises the report under the relevant heading and cites it. It does not overstate the report. If the report says the sponsor benefits from the applicant's support, the submission does not say the sponsor cannot survive without it.

Witnesses and oral evidence on review

Not all evidence is written. On review, the Tribunal can hear oral evidence from the applicant, the sponsor and other witnesses. In Thota (Migration) [2020] AATA 4222, the recorded issue was the oral evidence of the sponsor's son and daughter-in-law, and the Tribunal remitted the matter to the Department for reconsideration. Where family members can give useful evidence about the circumstances relied on, the submission at review stage should identify them and what they will say.

Keeping the submission consistent with the relationship statement and the file

A partner visa Schedule 3 waiver submission must be consistent with the relationship statement, the Form 888 statements, the application forms and every earlier visa application the applicant has made. Inconsistency is one of the fastest ways to lose credibility, and once credibility is lost, the compelling reasons are assessed with suspicion.

The common points of inconsistency are dates. When did the couple meet? When did they begin living together? When did the visa expire? When did the sponsor's illness begin? Each date in the submission should match the relationship statement, the forms and the documents. Where the client remembers a date differently from a document, the difference is raised with them and resolved before lodgement.

Consistency also extends to earlier applications. Statements made in a visitor visa or student visa application about marital status, employment or intentions are on the Department's record. Our article on moving from a tourist visa to a partner visa in Australia explains why earlier statements matter. Where an earlier statement was wrong, the submission should deal with it openly.

The four aspects of the relationship, namely the financial aspects, the nature of the household, the social aspects of the relationship and the nature of the commitment, are addressed in the relationship evidence. The submission should not restate them at length. It should refer to them and show how the relationship evidence and the compelling reasons fit together.

Why honesty about the immigration history matters

Honesty about the immigration history matters because the Department already holds the record, and because false or misleading information can lead to refusal under public interest criterion 4020. A partner visa Schedule 3 waiver submission that omits a refusal, an earlier unlawful period or a breach of conditions is likely to be measured against the Department's own records and found wanting.

Public interest criterion 4020 allows refusal where false or misleading information or a bogus document has been given to the Department or the Tribunal in the current application or a recent one. Refusal on that ground can also bring an exclusion period. A waiver of that criterion is possible only in limited circumstances. The risk of an inaccurate submission is therefore much greater than the risk of an honest one that discloses an unfavourable fact.

Honesty is also persuasive. A case officer who sees that the applicant has disclosed every unfavourable fact, explained it, and taken responsibility where appropriate, is more likely to accept the explanation of the facts that are in the applicant's favour. My Migration Lawyers presents the client's own account and evidence. It does not omit unfavourable facts from the history.

Common drafting mistakes in a partner visa Schedule 3 waiver submission

The most common drafting mistakes in a partner visa Schedule 3 waiver submission are relying on the relationship alone, relying on the hardship of separation alone, using emotional language without evidence, giving inconsistent dates, and ignoring the elements of criterion 3004. Each is avoidable.

Relying only on the relationship

Department policy is clear that a genuine relationship is not, by itself, a compelling reason, because every partner visa applicant has a relationship. A submission that spends most of its length proving the relationship is genuine answers the wrong question. The relationship evidence belongs in the relationship evidence. The submission must identify circumstances beyond the relationship.

Relying on the hardship of separation alone

The same policy applies to the hardship of separation. Every couple faces it if one partner must leave. The submission should show why separation in this case would cause hardship of a different kind or degree, for example because of a child, the sponsor's health, or the practical impossibility of the applicant leaving and returning.

Emotional language without evidence

Words such as "devastating", "unbearable" and "life-threatening" persuade no one unless the evidence proves them. Decision makers read many submissions. A calm, precise statement supported by a medical report is more persuasive than an emotional paragraph supported by nothing.

Inconsistent dates and facts

Dates that differ between the submission, the relationship statement and the forms undermine every other part of the case. Every date should be checked against a document before lodgement.

Ignoring the elements of criterion 3004

A submission that never mentions criterion 3004 misses the chance to show how close the applicant comes to meeting it, and it misses the overlap between the 3004 elements and the compelling reasons case.

Treating the submission as finished at lodgement

A submission that is never updated may become out of date by the time of decision. Because circumstances up to the time of decision count, new facts should be put before the decision maker promptly.

Updating a partner visa Schedule 3 waiver submission before the decision

A partner visa Schedule 3 waiver submission should be updated whenever a material circumstance changes, because the decision maker must consider all circumstances known up to the time of decision. An update is usually a short supplementary submission with fresh annexures, lodged together with any Form 1022 notification that is required.

Typical triggers for an update include a pregnancy or birth, a new diagnosis or a worsening of the sponsor's health, a death in the family, a change in the care of children, a change in work or financial circumstances, or a change in conditions in the applicant's home country. Updates should also be made when the applicant receives new documents, such as an updated police certificate or medical report, that strengthen a point already made.

The Department may also ask for health examinations, police certificates, Form 80 or biometrics during processing. Those requests should be answered promptly and fully. A strong partner visa Schedule 3 waiver submission can be undermined by a delayed response to an unrelated request. Our guide to the Subclass 820 vs Subclass 801 stages explains what happens after the Subclass 820 stage is decided.

What happens if the Department does not accept the submission?

If the Department is not satisfied that there are compelling reasons, the Subclass 820 visa will be refused, and the applicant in Australia can generally seek merits review at the Administrative Review Tribunal. The review deadline is short and strictly applied, runs from notification of the decision, and cannot be extended. The Tribunal has no power to accept a late application.

On review, the Tribunal considers the case afresh on the evidence before it at the time of its decision, so new evidence and an updated partner visa Schedule 3 waiver submission can be put before it. The Tribunal can affirm the decision, set it aside and substitute a new decision, or remit the matter to the Department for reconsideration with a direction, for example that the applicant is taken to satisfy subparagraph 820.211(2)(d)(ii). The Department then finishes assessing the other criteria. TIMSAH (Migration) [2023] AATA 886 is another partner visa decision in which the Tribunal remitted the matter to the Department for reconsideration. A person who held a bridging visa linked to the refused application generally keeps a bridging visa while a valid review application is pending.

Our page on partner visa refusals, our visa refusals and ART appeals page, our article on what to expect in an ART review and our guide to partner visa refusal appeal options explain the review process, and our guide to visa appeal lawyers explains what representation on review involves. Our analysis of why Subclass 820 partner visas are refused and our article on why partner visas get refused cover the other grounds of refusal. After the Tribunal, review is available only for jurisdictional error, through judicial review in the Federal Circuit and Family Court, and time limits apply.

Where a refusal notice has just arrived, our guide to urgent immigration lawyer advice explains what to have ready for a consultation.

Choosing who prepares a partner visa Schedule 3 waiver submission

A partner visa Schedule 3 waiver submission is a legal submission on a discretionary test, and the person preparing it should be able to apply the Regulations, the case law and the Department's policy to the facts. Our article on when you need an immigration lawyer for a partner visa and our guide to the partner visa lawyer vs doing it yourself question explain when professional help is worth considering. Our article on whether to use a migration agent or a lawyer for a partner visa sets out the practical differences.

Applicants who have already lodged their own application and now face a Schedule 3 issue can read our guide to hiring an immigration lawyer after lodging your own application. Applicants who already have a submission and want it reviewed can read about getting a second opinion from an immigration lawyer. Our overview of the role of a partner visa lawyer in Australia explains the work involved. Those comparing firms can read our guide to choosing a partner visa lawyer in Australia and our article on booking an immigration lawyer consultation.

How My Migration Lawyers prepares a partner visa Schedule 3 waiver submission

My Migration Lawyers deals with complex onshore partner visa matters and acts in many applications where the applicant did not hold a substantive visa and a partner visa Schedule 3 waiver submission is required. The firm is capable of handling cases involving long unlawful periods, section 48, earlier refusals and difficult compliance histories, and it builds each submission from the client's own account and the evidence that supports it.

In practice, the firm's work on a partner visa Schedule 3 waiver submission includes:

• Obtaining the client's VEVO record, grant notices and visa records, and preparing a complete and accurate immigration history chronology.
• Checking whether the application can be validly lodged at all, including section 48 validity requirements and condition 8503, before any Schedule 3 work begins.
• Identifying with the client every circumstance that may be a compelling reason, and the evidence needed to prove each one.
• Drafting the submission with a separate heading for each compelling reason, direct answers to the Department's policy concerns, each element of criterion 3004, and the best interests of any children.
• Preparing the evidence index and annexures, and reviewing Form 888 statements and expert reports for relevance and consistency.
• Checking the submission against the relationship statement, the forms and earlier applications for consistency of dates and facts.
• Updating the submission when circumstances change, responding to section 56 requests and natural justice letters, and acting on review at the Tribunal if the visa is refused.

The firm is led by Weiwei Zhang, Principal Lawyer. Information about the firm's Schedule 3 work is on our Schedule 3 waiver service page, information about the firm's partner visa practice is on our partner visa lawyers page, and more about the firm is on our about page.

If you are in Australia without a substantive visa and need a partner visa Schedule 3 waiver submission prepared, reviewed or updated, book a consultation online or call 1300 040 300.