Partner Visa Without a Substantive Visa

A partner visa without substantive visa application is an onshore Subclass 820 and Subclass 801 application made by a person who, on the day of lodgement, holds only a bridging visa or holds no visa at all. The law allows it. The law also makes it harder. Every partner visa without substantive visa case must deal with Schedule 3 to the Migration Regulations 1994 before the relationship itself can carry the application.

This guide is a practical, pre-lodgement guide. It explains what "substantive visa" means, why a bridging visa does not count, how the Schedule 3 criteria 3001, 3003 and 3004 operate, what the compelling reasons waiver requires, how condition 8503 can block the application altogether, and what happens after lodgement. It ends with a checklist of what to confirm before lodging a partner visa without substantive visa application.

This article does not repeat the full legal analysis of the Schedule 3 criteria. For that, read our guides on the Schedule 3 criteria when you are unlawful and on the Schedule 3 partner visa waiver. This article focuses on what to check, and in what order, before a partner visa without substantive visa application is made. For the general criteria that every couple must meet, see our complete guide to partner visas in Australia.

Can you apply for a partner visa without a substantive visa?

Yes. A person in Australia who does not hold a substantive visa can make a valid application for a Subclass 820 and Subclass 801 partner visa, provided no other bar applies. The application is not invalid simply because the applicant holds only a bridging visa or is unlawful. The difficulty arises later, at the decision stage, because the applicant must satisfy additional criteria that a substantive visa holder never has to meet.

Those additional criteria sit in paragraph 820.211(2)(d) of Schedule 2 to the Migration Regulations 1994. Where the applicant is not the holder of a substantive visa at the time of application, the applicant must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. In practice, the Minister's power is exercised by a delegate of the Department of Home Affairs, and on review by the Administrative Review Tribunal.

That single paragraph explains why a partner visa without substantive visa application is treated so differently. A couple with a strong relationship, good evidence and an eligible sponsor can still be refused on Schedule 3 alone. The relationship is necessary, but it is not enough.

There is a narrow exception for some people who entered Australia on a Subclass 300 Prospective Marriage visa. Under subclause 820.211(5), an applicant who last entered Australia as the holder of a Subclass 300 visa, and who ceased to hold a substantive visa after marrying the person they entered Australia to marry, is not required to meet any Schedule 3 criteria. That exception applies only to spouses, not de facto partners. A separate subclause, 820.211(9), deals with former Subclass 300 holders whose marriage ended because of family violence committed by the sponsoring partner. Our page on the family violence provisions for partner visas explains that area.

For everyone else, the starting point in a partner visa without substantive visa matter is Schedule 3.

What is a substantive visa, and why does it matter?

A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. That definition is in subsection 5(1) of the Migration Act 1958. Visitor visas, student visas, temporary work visas, graduate visas and the Subclass 820 itself are all substantive visas. Bridging visas are not.

The distinction matters because the onshore partner visa criteria ask a simple factual question at the time of application: did the applicant hold a substantive visa on the day the application was made? If the answer is yes, Schedule 3 does not apply. If the answer is no, the application becomes a partner visa without substantive visa application, and Schedule 3 must be addressed.

A bridging visa does not count as a substantive visa

This is the point most often misunderstood. Many people on a bridging visa believe they are "on a visa" and therefore safe. They are lawful, and that is important for other reasons. But a person who holds only a Bridging Visa A, B, C or E does not hold a substantive visa. For Schedule 3 purposes, they are in the same position as a person who holds no visa at all.

Our guide to bridging visas in Australia explains each bridging visa class. Our articles on the Bridging Visa A and the Bridging Visa B explain the two bridging visas most commonly held by people who lodged an earlier application while still holding a substantive visa.

Common situations that lead to a partner visa without substantive visa application

A person can end up making a partner visa without substantive visa application in many ordinary ways. The most common are:

• An earlier application was refused. A student, skilled or other temporary visa application was refused, and the person is on a bridging visa while seeking review at the Administrative Review Tribunal or waiting for the outcome.
• A visa expired. The person's visitor, student or work visa ended and they stayed in Australia, often while the relationship developed.
• A visa was cancelled. The person's substantive visa was cancelled and they are now unlawful or on a bridging visa. Our visa cancellations page explains that process.
• An earlier application turned out to be invalid. The person believed they had lodged a valid application and was covered by a bridging visa, but the application was invalid, so no bridging visa was ever granted.
• The person has been unlawful for a long period. Some applicants have been without a visa for years before the relationship began.

Each of these situations leads to the same legal test, but the evidence and the strength of the compelling reasons argument differ greatly between them. That is why the history behind a partner visa without substantive visa application matters as much as the relationship.

Schedule 3 criteria in a partner visa without substantive visa application

The Schedule 3 criteria that apply to the Subclass 820 are 3001, 3003 and 3004. Criterion 3005, which appears in some other subclasses, is not one of the criteria listed in paragraph 820.211(2)(d). The Department's own policy explains the purpose of Schedule 3 plainly: to encourage people to apply for a further visa before their substantive visa ceases, to discourage people from remaining in Australia without a visa, and to prevent people gaining an advantage by remaining unlawfully.

Criterion 3001: the 28-day time limit

Criterion 3001 requires the application to be validly made within 28 days after the relevant day. For a person who ceased to hold a substantive visa, the relevant day is generally the last day the person held a substantive or criminal justice visa. For a person who entered Australia unlawfully, it is the day of the last unlawful entry. Where both apply, the relevant day is the later of the two.

The Department's policy counts the first of the 28 days as the day after the triggering event. The application must be lodged by midnight on the 28th day. If the 28th day falls on a weekend, or on a public 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 next day that is not a weekend or holiday.

Criterion 3001 counts from the end of the last substantive visa, not from the end of a bridging visa. A person who has been on a Bridging Visa A for three years while waiting for an earlier application to be decided is not inside 28 days. Their last substantive visa ended three years ago. In Raganas (Migration) [2020] AATA 2401, a Subclass 820 matter, the reported issue was that the applicant held no substantive visa at the time of application or within the 28 days before it, and the last substantive visa had been held more than three years earlier.

Criteria 3003 and 3004: factors beyond control and compelling reasons for grant

Criterion 3003 deals with people who were unlawful or held an entry permit on 31 August 1994 and have not held a substantive visa since. It is now largely historical. Criterion 3004 is the one that matters for almost every modern partner visa without substantive visa case. It applies to a person who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not since been granted a substantive visa.

If criterion 3004 applies, the applicant must satisfy all six of its requirements in paragraphs (c) to (h). In summary, the decision maker must be satisfied that:

• the applicant became a person without a substantive visa because of factors beyond the applicant's control;
• there are compelling reasons for granting the visa;
• the applicant has complied substantially with the conditions of their last substantive visa and any later bridging visa;
• the applicant would have been entitled to be granted the visa if they had applied immediately before becoming a person without a substantive visa;
• the applicant intends to comply with any conditions of the visa granted; and
• the last visa was not subject to the pre-1 September 1994 form of the no further stay condition.

The first requirement is where most applicants fail. The Department's policy says the factors must have caused the person to become a person without a substantive visa, and must have been external to the person and outside their control. A serious accident or illness that prevented the person from applying may meet the test. A simple misunderstanding about when a visa expired usually does not. The actions of a migration agent or lawyer are generally treated as the applicant's own actions.

Why being inside 28 days is usually not enough

A common and damaging belief is that a partner visa without substantive visa application is safe if it is lodged within 28 days of the last visa ending. That belief is wrong. Paragraph 820.211(2)(d) requires criteria 3001, 3003 and 3004 to be satisfied. Lodging within 28 days satisfies 3001. It does not satisfy 3004.

Take a person whose visitor visa expired 10 days ago because they chose to stay with their partner. They are inside 28 days, so 3001 is met. But criterion 3004 applies to them, because they ceased to hold a substantive visa after 1 September 1994. They must show that they became a person without a substantive visa because of factors beyond their control. A deliberate decision to stay is not a factor beyond their control. Unless they can meet 3004, the application depends on the compelling reasons waiver.

This is why the 28-day rule should be understood as one hurdle among several. Lodging quickly still helps. It shows the applicant acted promptly, it narrows the period of non-compliance and it can strengthen the compelling reasons argument. But it does not, on its own, solve Schedule 3.

The compelling reasons waiver in a partner visa without substantive visa case

The compelling reasons waiver allows the decision maker to decide not to apply criteria 3001, 3003 and 3004 at all. If compelling reasons exist, the Schedule 3 criteria fall away and the application is assessed like any other onshore partner visa. For most people lodging a partner visa without substantive visa application, the waiver is the real issue in the case.

"Compelling" is not defined in the legislation. The Department's policy gives it its ordinary meaning and requires the decision maker to consider all the circumstances of the case, individually and together. The likely consequences of refusing the visa can be relevant to whether the circumstances are compelling.

What Department policy says about compelling reasons

The Department's procedural instruction for the Subclass 820 sets out the matters a delegate should consider, including:

• any history of non-compliance with visa conditions;
• how long the applicant has been unlawful;
• why the applicant became unlawful;
• why the applicant did not seek to become lawful sooner;
• current family composition, including any dependent children; and
• what steps, if any, the applicant took to become lawful other than applying for the partner visa.

The same instruction states, as a general rule, that the existence of a genuine relationship and the hardship of separation if the applicant has to leave and apply offshore are not, on their own, compelling reasons. Every partner visa rests on a genuine relationship, and separation during processing is common for offshore applicants. The policy does, however, recognise 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.

Policy also says the waiver should not be applied where it is reasonable to expect the applicant to leave Australia and apply offshore. That is the question every partner visa without substantive visa case must answer honestly: why is it not reasonable for this applicant to leave and apply for a Subclass 309 offshore partner visa?

Compelling reasons can arise up to the time of decision

Compelling reasons are not frozen at the date of lodgement. 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 known up to the time of decision. The Department's own instructions now reflect that.

The practical effect is significant. A partner visa without substantive visa application can be strengthened after it is lodged. The birth of a child, a serious diagnosis affecting the sponsor, a new caring responsibility or a change in conditions in the applicant's home country can all be put to the decision maker before the decision is made. It also means that the argument should be kept current, not left as it was on the day of lodgement.

Our Schedule 3 waiver page explains how My Migration Lawyers prepares these submissions. The relationship evidence still matters, and the couple's own account is set out in one partner visa relationship statement.

Before you lodge a partner visa without substantive visa: the checklist

The most important work in a partner visa without substantive visa case happens before lodgement. Once the application is made, the date of application is fixed, the applicant's status on that date is fixed, and the Schedule 3 position is fixed. The checklist below sets out what should be confirmed, in order, before anything is lodged.

Check 1: confirm your exact visa status today

The first step is to confirm exactly what visa, if any, the applicant holds today. This should be checked against the Department's records, not assumed. The Visa Entitlement Verification Online (VEVO) service and the applicant's ImmiAccount will usually show the current grant, its conditions and its expiry. Our guide on how to create an ImmiAccount explains the online account used for the application itself.

The answer falls into one of three categories:

• The applicant still holds a substantive visa. If so, the application is not a partner visa without substantive visa application at all, provided it is lodged before that visa ends. This is the single most valuable fact in the whole checklist, because lodging now avoids Schedule 3 entirely.
• The applicant holds only a bridging visa. The applicant is lawful but has no substantive visa. Schedule 3 will apply.
• The applicant holds no visa. The applicant is unlawful. Schedule 3 will apply, and the applicant's immediate status in the community also needs urgent attention.

Where a substantive visa is still in effect, the deadline that matters is the day it ends. A couple who are still deciding whether to apply should understand that waiting past that day converts an ordinary onshore application into a partner visa without substantive visa application, with all the risk that follows. The general criteria are explained in our guide to the Subclass 820 onshore partner visa.

Check 2: identify the last substantive visa and the day it ceased

The second step is to identify the applicant's last substantive visa and the exact day it ceased. That date controls the 28-day calculation in criterion 3001 and the "immediately before" test in criterion 3004.

A visa can cease earlier than people expect. It can cease on the date shown in the grant, on cancellation, or when a later visa is granted. Some visas cease when the holder leaves Australia. The date should be established from the grant notice and the Department's records, not from memory.

This step often reveals that the applicant has been without a substantive visa for much longer than they thought. A person who has held a series of bridging visas while earlier applications and reviews were decided may find that their last substantive visa ended years ago. In that case, a partner visa without substantive visa application cannot meet criterion 3001, and the case turns on the waiver.

Check 3: identify which bridging visa you hold, if any

The third step is to identify any bridging visa the applicant currently holds, what it was granted for, and what conditions it carries.

A bridging visa held in connection with a pending Tribunal review of an earlier refusal is common. It keeps the person lawful while that review is decided. It does not change the Schedule 3 position for a new partner visa application. If the person lodges a partner visa without substantive visa application while on that bridging visa, the earlier bridging visa does not count as a substantive visa.

The type of bridging visa held also affects which bridging visa may be granted with the new application, and whether the person can travel. A person who leaves Australia on a Bridging Visa A without a Bridging Visa B may lose their bridging visa and be unable to return. Our article on working while waiting for a Subclass 820 visa explains the work and travel conditions that often apply.

Check 4: check for condition 8503 and other no further stay conditions

The fourth step is to check whether the applicant has held, at any time since last entering Australia, a visa carrying condition 8503 or another "no further stay" condition, such as 8534 or 8535. This check is separate from Schedule 3 and comes first in practical terms, because it decides whether a valid application can be made at all.

Condition 8503 is discussed in its own section below. The short point is that a no further stay condition held since last entering Australia generally prevents a valid onshore partner visa application unless it has been waived, even if the visa that carried it has since expired.

Check 5: check section 48 and previous refusals

The fifth step is to check whether section 48 of the Migration Act 1958 applies. Section 48 applies to a person in Australia who does not hold a substantive visa and who has had a visa refused or cancelled since last entering Australia. It limits the visas that person can apply for while in Australia.

The Subclass 820 and Subclass 801 partner visas are among the visas that a section 48 person may still apply for. However, the Department's instruction notes additional validity requirements for a section 48 applicant, including that the sponsorship form signed by the sponsoring partner must accompany the application. A section 48 applicant who lodges without the sponsorship may make an invalid application. Our article on applying for a partner visa after a visa refusal explains how section 48 and Schedule 3 operate together, and our visa refusals page explains the review options for the earlier refusal.

Check 6: check whether any exception removes Schedule 3

The sixth step is to check whether the applicant falls within one of the narrow exceptions. The most practical one is subclause 820.211(5), for a person who last entered Australia on a Subclass 300 visa and married the person they came to Australia to marry. That person can make a partner visa without substantive visa application without meeting Schedule 3, provided the remaining criteria are met. A de facto partner cannot use that exception.

Other exceptions exist for some diplomatic and Status of Forces Agreement entrants. They rarely arise, but they should be ruled out rather than assumed away.

Check 7: assess the compelling reasons honestly

The seventh step is to assess whether compelling reasons genuinely exist. This is a legal judgement, not a hope. It looks at the whole history: how the applicant came to be without a substantive visa, how long that has lasted, what the applicant did to try to regularise their status, their compliance with earlier visa conditions, and the circumstances of the family now.

Factors that commonly feature in successful arguments include an Australian citizen child of the relationship, serious illness or disability of the sponsor or a family member who depends on the applicant, a caring role that cannot be replaced, and circumstances that genuinely prevented the applicant from leaving or from becoming lawful earlier. Factors that, on their own, are usually not enough include the existence of the relationship and the ordinary hardship of separation during offshore processing.

Check 8: gather the evidence before lodgement

The eighth step is to collect the evidence that proves the compelling reasons and the relationship. Assertions are not evidence. Medical reports, birth certificates, school and care records, records of contact with the Department, earlier application and refusal documents, and records that explain why the applicant did not leave are typically far more persuasive than a general statement of hardship.

The relationship evidence must also meet the normal standard. Our guides to partner visa evidence, the partner visa document checklist and Form 888 supporting statements explain what is expected. De facto couples should also check the 12-month rule in our article on the de facto partner visa and its exceptions.

Condition 8503 and a partner visa without substantive visa

Condition 8503 is a no further stay condition. It provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while remaining in Australia. It is common on visitor visas and some sponsored visas.

Under subsection 46(1A) of the Migration Act 1958, an application by a person in Australia who has held a visa subject to such a condition since last entering Australia is generally invalid, unless the condition has been waived. The Department's instruction on no further application conditions states that the condition continues to apply even after the visa that carried it has ceased. A person whose visitor visa with 8503 has expired, and who is now unlawful or on a bridging visa, is still bound by 8503.

This produces a two-stage problem in many partner visa without substantive visa cases:

• Validity. The condition must first be waived under subsection 41(2A) of the Act before a valid partner visa application can be made. A waiver is available only in prescribed circumstances, generally where compelling and compassionate circumstances have developed since the visa was granted, over which the person had no control, resulting in a major change in their circumstances.
• Schedule 3. Once the condition is waived and the application is made, the person still does not hold a substantive visa. Schedule 3 then applies to the partner visa application in the usual way.

A new relationship formed in Australia is not usually, on its own, treated as a circumstance beyond the person's control for 8503 purposes. Our article on applying for a Subclass 820 visa with a no further stay condition explains the waiver in detail. Visitors who met their partner in Australia should also read our guide on moving from a tourist visa to a partner visa in Australia.

An application lodged in breach of an unwaived 8503 condition is invalid. An invalid application does not give the person a bridging visa. That is how some people who believed they were lawful discover, months later, that they have been unlawful since the day their visa expired.

Which bridging visa applies after a partner visa without substantive visa application?

The bridging visa that may be granted depends on the applicant's status at lodgement and their history since their last substantive visa. It is not the same as the Bridging Visa A that a substantive visa holder usually receives.

In general terms:

• A person who held a substantive visa when lodging is usually granted a Bridging Visa A. That is not a partner visa without substantive visa case.
• A person who does not hold a substantive visa, but holds a bridging visa other than a Bridging Visa E, and who has not held a Bridging Visa E since their last substantive visa, may be eligible for a Bridging Visa C with the new application.
• A person who is unlawful, or who holds or has held a Bridging Visa E since their last substantive visa, will usually need a Bridging Visa E to remain lawful while the application is processed.

The conditions differ. A Bridging Visa C or Bridging Visa E may be granted with a no work condition, and a further bridging visa without that condition generally requires a compelling need to work. A Bridging Visa C and a Bridging Visa E do not allow travel and return. The Department's instruction notes that partner applicants eligible for a Bridging Visa A or B may be granted that visa with nil conditions under a legislative instrument, but that concession does not extend to every bridging visa.

An unlawful person who intends to lodge a partner visa without substantive visa application should plan how they will become lawful again on the day of lodgement. Remaining unlawful after lodging, without a bridging visa, exposes the person to detention and removal, and to debts for the cost of detention or removal.

Tribunal decisions on partner visa without substantive visa matters

The Administrative Review Tribunal, and before it the Administrative Appeals Tribunal, has considered many partner visa without substantive visa cases. The decisions below are remittals or favourable findings recorded in a partner visa database of reported Tribunal outcomes. Each is described only by the issue it turned on. They show the type of circumstances that have been examined. They are not a prediction of any outcome.

• Hassan (Migration) [2021] AATA 2159 (Subclass 820): a court remittal where the applicant was not the holder of a substantive visa at the time of application, the sponsor had significant illnesses, and compelling reasons were found to exist.
• Bedi (Migration) [2020] AATA 5208 (Subclass 820): 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, including an Australian citizen child of the relationship.
• Sandhu (Migration) [2018] AATA 1483 (Subclass 820): the issue was whether compelling reasons existed, with the length of the relationship and the difficulty of relocating offshore while the application was processed considered.
• Fu (Migration) [2020] AATA 3922 (Subclass 820): the applicant did not hold a substantive visa at the time of application, and there was an Australian citizen child from the relationship.
• Wang (Migration) [2018] AATA 2629 (Subclass 820): the applicant did not have a substantive visa at the time of application, and the compelling reasons considered included that the applicant cared for the sponsor's children.
• Naidu (Migration) [2023] AATA 1830 (Subclass 820): a remittal from the Federal Circuit and Family Court concerning compelling reasons to waive Schedule 3, a child born of the relationship and a long-standing relationship.
• D'Angeli (Migration) [2019] AATA 3676 (Subclass 820): compelling reasons to waive Schedule 3, an allegation that the relationship was for the purpose of gaining a migration outcome, and the impact of separation on the Australian spouse.

Some of these matters reached the Tribunal again after court proceedings. That reflects how technical Schedule 3 decisions can be, and why the compelling reasons test must be applied carefully to every circumstance. Our judicial review page explains when court review may be available after a Tribunal decision.

Where couples come to us from

Couples dealing with a partner visa without substantive visa problem live across Australia. My Migration Lawyers holds consultations by video, so the couple's location does not limit the advice available. Clients in New South Wales often contact us through our pages for partner visa lawyers in Sydney and partner visa lawyers in Parramatta. Clients in Victoria and Queensland often start with our pages for partner visa lawyers in Melbourne, partner visa lawyers in Brisbane and partner visa lawyers on the Gold Coast. Schedule 3 is Commonwealth law, so the same rules apply in every state and territory.

What happens after you lodge a partner visa without substantive visa application?

After lodgement, a partner visa without substantive visa application is processed in the same way as any other onshore partner visa, with one additional question running through the whole assessment: does Schedule 3 apply, and if it does, are there compelling reasons not to apply it? The Department may decide the Schedule 3 question first, because if the applicant cannot meet Schedule 3 and no compelling reasons exist, the application must be refused regardless of the relationship.

Bridging visa and lawful status during processing

The first practical task after lodgement is to confirm that the applicant has been granted a bridging visa, which one, and on what conditions. If no bridging visa has been granted, the reason should be found immediately. Possible reasons include an invalid application, an unwaived 8503 condition or a bridging visa application that was not properly made.

Any no work condition should be reviewed. Where the applicant has a compelling need to work, a further bridging visa without that condition may be available. The applicant must also comply with every condition of the bridging visa. A breach of a bridging visa condition can damage the compelling reasons argument and, in some cases, lead to cancellation of the bridging visa.

Requests for information and natural justice letters

The Department may ask for further information under section 56 of the Act, or put adverse information to the applicant before deciding. In a partner visa without substantive visa case, those requests often focus on the applicant's immigration history, the reasons for any period without a visa and the claimed compelling reasons. Our articles on responding to a section 56 request for more information and to an S57 natural justice letter for a partner visa explain these steps.

The Department may also ask for a Form 80 personal particulars form. In a partner visa without substantive visa matter, Form 80 answers about addresses, employment and travel are compared with the applicant's immigration history. They must be complete and accurate.

Updating the compelling reasons argument

Because compelling reasons are assessed up to the time of decision, the argument in a partner visa without substantive visa case should be kept current. The birth of a child, a new diagnosis, a change in the sponsor's health, a new caring role or a significant change in the applicant's home country should be put to the Department with evidence. Other changes in circumstances must be notified in any event. Our guide to Form 1022 to notify changes in circumstances explains when that form is used.

The relationship itself must remain genuine and continuing throughout. If the relationship ends during processing, special provisions may apply. Our article on what happens to a Subclass 820 application if the relationship breaks down explains those rules.

Processing time and the permanent stage

A partner visa without substantive visa application is not processed on a separate timetable, but the additional Schedule 3 assessment can add to the work involved. Our article on how long a Subclass 820 onshore partner visa takes explains the general position. If the Subclass 820 is granted, the Schedule 3 issue does not arise again at the permanent stage. The permanent Subclass 801 is assessed later, as explained in our article on Subclass 820 vs Subclass 801.

What if a partner visa without substantive visa application is refused?

If a partner visa without substantive visa application is refused because Schedule 3 is not met, the refusal can generally be reviewed by the Administrative Review Tribunal, provided the review is lodged in time. The time limit for applying for review is short and strictly applied. The refusal letter states the deadline, and it should be read the day it arrives.

The Tribunal reviews the decision afresh. It considers the evidence before it at the time of its own decision, including compelling reasons that arose after the Department refused the application. Many of the matters described earlier were decided at that stage. Thota (Migration) [2020] AATA 4222 is a Subclass 820 example where the reported issue concerned Schedule 3, an application lodged outside the relevant timeframe, compelling reasons for waiver and oral evidence given by the sponsor's son and daughter-in-law. Harpreet Singh (Migration) [2019] AATA 5689, MOKTAN (Migration) [2020] AATA 5890 and Zheng (Migration) [2021] AATA 4400 were court remittals concerning Schedule 3, applications made outside the relevant timeframe and compelling reasons for waiver.

Not every review turns on the relationship. In 1716120 (Migration) [2019] AATA 1570, the reported issues were that the applicant did not hold a substantive visa at the time of application and did not satisfy criterion 3001, that the parties' relationship had ended, and that there was an Australian citizen child.

Our partner visa refusals page, our guide to partner visa appeal options and our article on what to expect at an ART review explain the next steps. A visa appeal lawyer can assess whether the Schedule 3 question was decided correctly. Our articles on why Subclass 820 partner visas are refused and why partner visas get refused set out the wider grounds.

Should you apply offshore instead of making a partner visa without substantive visa application?

Sometimes, yes. The offshore Subclass 309 and Subclass 100 partner visa does not involve Schedule 3, because the applicant must be outside Australia when applying and when the Subclass 309 is granted. Where an applicant has no realistic compelling reasons argument, applying offshore may be the more reliable course.

Departure is a serious decision, and it should not be made without advice. Leaving Australia after a period without a visa can have consequences for future visa applications, including exclusion periods for some people, debts to the Commonwealth and questions about the applicant's immigration history. Those consequences depend on the individual's history. The sponsor's own eligibility, and any partner visa sponsorship limitations, apply in the same way onshore and offshore.

The choice between onshore and offshore in a partner visa without substantive visa case is a comparison of risk. On one side is the chance of a refusal on Schedule 3 and the time spent in Australia on a bridging visa. On the other is the time apart during offshore processing and any consequences of departure. That comparison is different for every couple.

Common mistakes in partner visa without substantive visa applications

Most refused partner visa without substantive visa applications share one or more of the same mistakes:

• Treating a bridging visa as a substantive visa. The applicant believed they were "on a visa" and did not realise Schedule 3 applied.
• Relying on the 28-day rule alone. The applicant lodged within 28 days and assumed that solved Schedule 3, without addressing criterion 3004 or the waiver.
• Missing a no further stay condition. The applicant lodged while bound by an unwaived 8503 condition, so the application was invalid and no bridging visa was granted.
• Lodging without a compelling reasons submission. The application relied on the relationship and the hardship of separation, which policy treats as not compelling on their own.
• Not explaining the history. The applicant did not explain how they came to be without a substantive visa, why they stayed, or what they did to become lawful.
• Letting the argument go stale. Important new circumstances that arose after lodgement were never put to the Department.
• Inconsistent accounts. The explanation of the immigration history differed from earlier applications, Form 80 or the relationship statement.

Each of these mistakes can be identified before lodgement. Couples who have already lodged their own application can ask for a review of it. Our articles on hiring an immigration lawyer after lodging your own visa application and on getting a second opinion from an immigration lawyer explain how that works. A lawyer is appointed to an existing application using Form 956. If a visa is about to end or the applicant has just become unlawful, our guide to urgent immigration lawyer advice explains what to prepare.

Partner visa without substantive visa advice across Australia

My Migration Lawyers advises couples across Australia by video. Clients in Western Australia and South Australia often contact us through our pages for partner visa lawyers in Perth and partner visa lawyers in Adelaide. Couples in the Australian Capital Territory and Tasmania can read about partner visa lawyers in Canberra and partner visa lawyers in Hobart. Where a matter also involves a cancellation, an earlier refusal or another visa, our pages for immigration lawyers in Sydney, immigration lawyers in Melbourne, immigration lawyers in Brisbane and immigration lawyers in Perth explain the wider services. Our guides on partner visa lawyer services in Australia, on when you need an immigration lawyer for a partner visa and on choosing the best partner visa lawyer in Australia explain what to ask before engaging a lawyer.

How My Migration Lawyers helps with a partner visa without substantive visa

My Migration Lawyers acts in many partner visa without substantive visa matters, including complex cases involving long periods without a visa, earlier refusals and cancellations, section 48, condition 8503 and pending Tribunal reviews. These cases are technical, and the firm is capable of handling them because it starts with the applicant's full immigration history, not with the application form.

On a partner visa without substantive visa matter, My Migration Lawyers typically:

• confirms the applicant's current status from the Department's records and identifies the last substantive visa and the exact day it ceased;
• identifies every bridging visa held since then, any no further stay condition held since the applicant last entered Australia, and whether section 48 applies;
• tests whether the application can still be lodged while a substantive visa is in effect, so that Schedule 3 is avoided altogether;
• assesses criteria 3001, 3003 and 3004 against the facts and gives a frank view of whether a compelling reasons argument genuinely exists;
• where condition 8503 applies, prepares the waiver request before any partner visa application is made;
• compares an onshore Subclass 820 application with an offshore Subclass 309 alternative, so the couple can see both risks clearly;
• plans the bridging visa position for the day of lodgement, so the applicant is lawful during processing; and
• prepares the legal submissions on compelling reasons and keeps them updated until the decision is made.

The relationship statement and any statement about the immigration history are always the client's own account. My Migration Lawyers reviews them with the client, the client corrects them, and the firm presents them in the form the law requires, supported by the documents that prove them. The lawyer decides how the Schedule 3 and compelling reasons arguments are put.

The firm is led by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and our partner visa lawyers service. If you are considering a partner visa without substantive visa application, or your visa is about to end, have your position checked before you lodge. Book a consultation online or call 1300 040 300.