Schedule 3 Criteria: Applying When You Are Unlawful

What are the Schedule 3 criteria?

Schedule 3 to the Migration Regulations 1994 sets additional criteria that an onshore visa applicant must satisfy if they hold no substantive visa at the time they apply. There are five of them, numbered 3001 to 3005, and they exist to stop people gaining an advantage from staying in Australia unlawfully.

The Department's own policy sets out the purpose in three parts. Schedule 3 is meant to encourage non-citizens who have a legitimate basis for staying to apply for a further visa before their current substantive visa ceases. It is meant to discourage people from remaining beyond the period of their visa. And it is meant to prevent people from benefiting by remaining in Australia unlawfully and acquiring visa eligibility while they are here without lawful permission.

The same policy recognises the other side of the ledger. There are situations where people lose status through circumstances they had no control over, and situations where there are compelling reasons to grant a visa anyway. Criteria 3003 and 3004 are where that recognition lives, and for the subclass 820 partner visa there is also a Schedule 3 waiver that can set aside criteria 3001, 3003 and 3004 entirely.

The most important structural point is this: Schedule 3 is a criterion for grant, not a rule about validity. The Schedule 3 criteria that apply to a subclass are written into Schedule 2 as criteria to be satisfied at the time of application. Departmental policy states that criteria 3001 and 3002 do not operate to prevent a valid visa application from being made. If the criterion is not satisfied, the Schedule 2 criteria cannot be satisfied and the applicant cannot be granted the visa. Policy goes further and says that even where it is obvious a person will not meet the time limit, officers should inform them of the effect of the criterion, but the person is still free to lodge if they choose.

That distinction matters in real life. People are routinely told that they "cannot apply" because they are unlawful. That is wrong as a statement of law. What is true is that lodging without a path to satisfying or waiving Schedule 3 will usually produce a refusal, at a cost, with consequences. The question is never whether you can lodge. It is whether lodging is a sensible thing to do.

Who Schedule 3 applies to, and who it does not

Schedule 3 applies to people who are in Australia and who, at the time of application, are either an unlawful non-citizen or hold only a bridging visa.

Bridging visa holders are caught, and this surprises people constantly. A substantive visa is defined in subsection 5(1) of the Migration Act 1958 as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. So a person on a Bridging Visa A, waiting on an earlier application, holds no substantive visa. If they lodge an onshore partner visa while on that bridging visa, Schedule 3 applies to them in the same way it applies to someone who is fully unlawful.

Departmental policy describes four broad groups the criteria are written for. Two are historical: people who held an entry permit that expired on or before 31 August 1994, and people who became illegal entrants before 1 September 1994, in each case having held no substantive visa since 1 September 1994. The two that matter now are people who have ceased to hold a substantive or criminal justice visa since 1 September 1994, and people who entered Australia unlawfully since that date.

Policy gives examples of who falls into those groups. People who stayed after their substantive visa ceased. People whose substantive visa was cancelled and who are now in detention or unlawfully in the community. People who have never held a visa, including some people born in Australia to unlawful non-citizen parents. If you have had a visa cancelled, the cancellation itself carries separate and urgent consequences, and our visa cancellations page deals with those.

Not every subclass carries Schedule 3 criteria, and the two exceptions policy names are instructive.

No Schedule 3 criteria apply to Child (subclass 802) visa applicants, because policy considers it inappropriate to prevent the grant of a permanent visa to the dependent child of an Australian citizen or permanent resident purely because the child held no substantive visa when they applied.

No Schedule 3 criteria apply to protection visa applicants either, because policy considers it inappropriate to refuse a visa solely on the basis of unlawful status to a person to whom Australia owes protection obligations under the Refugees Convention. Being unlawful is not, on its own, a barrier to a protection claim.

There is a further point of structure worth knowing. For most subclasses, Schedule 3 criteria specified as primary criteria do not apply as secondary criteria. In other words, where a family member is applying on the back of a main applicant, Schedule 3 may not be prescribed for them at all. Which criteria apply to your application depends on the subclass and on whether you are the primary or secondary applicant, and that has to be checked against Schedule 2 for the specific subclass rather than assumed.

Criterion 3001: the 28 day clock and how it is counted

Criterion 3001 requires the application to have been validly made within 28 days after the relevant day. Criterion 3002 is the same criterion with a 12 month limit instead, and policy notes that the time limit is the only difference between the two. One or the other applies to many subclasses, but never both.

The relevant day is set by criterion 3001(2)(c). For an applicant 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, the relevant day is the later of two dates: the last day the applicant held a substantive or criminal justice visa, and the day the applicant last entered Australia unlawfully.

The word "last" is doing real work in both limbs. If you have held more than one substantive visa, the clock runs from the cessation of the last one, not the first. If you have entered unlawfully more than once, it runs from the most recent unlawful entry.

Counting is mechanical, and the Department's policy is precise about it.

The first of the 28 calendar days is the day after the event that triggers the criterion. For someone whose substantive visa ceased, that is the day after the last day they held the visa. For someone who entered unlawfully, it is the day after the day of unlawful entry. The application must be lodged on or before midnight of the 28th day.

There is one extension, and it is narrow. If the 28th day falls on a weekend, a public holiday, or a bank holiday in any place in Australia where the application could have been made, the criterion is still satisfied if the application was lodged on or before midnight of the first following day that is not a Saturday, Sunday, public holiday or bank holiday. Policy gives the example of an application lodged in Sydney on the 29th day where the 28th day was a public holiday in Melbourne or Canberra but not in Sydney. Because the application could have been made in those other places, the extension applies.

Criterion 3002 counts in calendar months under section 2G of the Acts Interpretation Act 1901. The first day of the 12 month period is the day after the triggering event, and the period ends at midnight on the preceding corresponding day of the appropriate month. Policy gives two worked examples: a 12 month period commencing 14 July 2009 ends at midnight on 13 July 2010, and one commencing 1 July 2009 ends at midnight on 30 June 2010. The same weekend and holiday extension applies.

Here is the part people need to hear. Criterion 3001 is arithmetic, and once the 28 days are gone, no amount of evidence satisfies it. There is no discretion inside the criterion itself. For the subclass 820, the only route left is the waiver in subparagraph 820.211(2)(d)(ii), and that is a separate argument about compelling reasons rather than an argument that the criterion is met. Anyone still inside the 28 days should be lodging now, not researching waivers.

Criteria 3003 and 3004: the six things you must show

Where criterion 3004 applies, the applicant must satisfy all six of the requirements in paragraphs (c) to (h). Criterion 3003 imposes the same six requirements on the historical group. Policy is explicit that all six must be met, and equally explicit that the reasons an applicant meets one item may also be relevant to whether they meet another.

Criterion 3004 applies if the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or entered Australia unlawfully on or after that date and has not since been granted a substantive visa. If neither limb applies, the applicant satisfies criterion 3004 without further enquiry.

The six requirements, in the order they appear, are these.

Paragraph (c): factors beyond your control. The decision maker must be satisfied that the applicant became a person without a substantive visa because of factors beyond the applicant's control. Policy identifies two separate elements. There must be factors that caused the loss of status, and those factors must have been beyond the applicant's control. The causation element is the one that defeats most applicants.

Paragraph (d): compelling reasons. The decision maker must be satisfied there are compelling reasons for granting the visa. "Compelling" is not defined in migration legislation and policy gives it the ordinary dictionary meaning of "brought about by moral necessity". All the circumstances are to be considered individually and cumulatively, and policy says considering the likely consequences of not granting the visa may help.

Paragraph (e): substantial compliance. The applicant must have complied substantially with the conditions that applied to their last visa, if any, including any bridging visa granted afterwards. Note that this reaches back to the conditions on the last substantive visa and forward to bridging visa conditions, so breaches of a work or study condition years ago remain live.

Paragraph (f): you would have been entitled anyway. The decision maker must be satisfied that the applicant would have been entitled to be granted the visa had they applied for it immediately before losing status. Policy explains the purpose bluntly: the requirement supports the policy intention that applicants not gain any advantage by remaining in Australia without a substantive visa. In practice the applicant's circumstances are tested against the criteria for the visa as at the day they last held the visa, or the day of last unlawful entry.

Paragraph (g): intention to comply. The decision maker must be satisfied the applicant intends to comply with any conditions the new visa will carry.

Paragraph (h): no pre-1994 no further stay condition. The last visa or entry permit held must not have carried a pre-1 September 1994 condition preventing the grant of a further entry permit while the holder remained in Australia. Policy confirms an applicant fails this only where the condition was attached before 1 September 1994, because the paragraph is worded by reference to the old entry permit regime.

Paragraph (f) deserves a second look, because it is quietly the most difficult of the six for partner visa applicants. It asks whether you would have qualified for a subclass 820 partner visa on the day your last substantive visa ceased. If the relationship began after that date, the answer is no, and criterion 3004 cannot be satisfied no matter how strong everything else is. That is precisely why the waiver, rather than compliance with the criteria, is the live issue in most onshore partner matters.

Why "it was my agent's fault" usually does not satisfy paragraph (c)

The actions of your representative are treated in law as your own actions, so a representative's failure to lodge on time is not normally a factor beyond your control.

Departmental policy addresses this directly. Cases arise where an applicant says their agent or lawyer was responsible for not lodging before the substantive visa ceased. Policy states that under law the actions of the applicant's agent or lawyer are taken to be those of the applicant, and that a failure to act in the client's best interests may be grounds for the client to take legal action but would not normally be grounds for finding the applicant lost status due to factors beyond their control. Policy does leave one opening: if a migration agent has been deregistered, it may be reasonable to find that negligent action by that agent was a circumstance beyond the applicant's control.

This is not a criticism of representatives. It is a statement of how agency works, and applicants deserve to know it before they build a case on it.

Two related situations do fare better under policy.

The first is incorrect departmental advice. Policy accepts that a visa holder is normally assumed to know the period covered by their visa and the conditions on it, unless there is evidence to the contrary, and it names incorrect advice recorded on departmental files as an example of such evidence. Where a claim of incorrect advice is made, the decision maker should try to verify with the office or officer what advice was given and should accept the claim only if it is credible. Policy says it may be appropriate to give the applicant the benefit of the doubt where the claim is reasonable, credible and not inconsistent with the results of those enquiries.

The second is invalid applications. Policy recognises that applicants who lodge an application later found to be invalid sometimes become unlawful in the gap between lodgement and the Department actioning it, and are usually unaware of it until notified. Taking individual circumstances into account, policy says it may be reasonable to treat those applicants as having become unlawful due to factors beyond their control. There is a condition attached: decision makers should be satisfied the applicant acted expeditiously with the Department once they became aware of their unlawful status. Delay after the discovery undoes the concession.

Criterion 3005: the one chance rule

Criterion 3005 allows an applicant one opportunity only to be granted a substantive visa while they hold no substantive visa. It states that a visa has not previously been granted to the applicant on the basis of satisfying any of the criteria set out in Schedule 3.

Policy describes the purpose as preventing repeated reliance on Schedule 3. The reference to "criteria set out in this Schedule" includes criterion 3005 itself, so the bar carries forward: a person granted a visa on the basis of a Schedule 3 criterion cannot rely on the same or similarly expressed criteria for a later grant.

Two things follow that people miss.

First, criterion 3005 is not among the criteria that subparagraph 820.211(2)(d)(ii) allows a delegate to waive. The waiver reaches 3001, 3003 and 3004. Where 3005 is prescribed for a subclass and has already been used, it stands.

Second, this makes any earlier grant obtained through Schedule 3 a fact that has to be identified early in a matter. It is not always obvious from a client's own recollection, because the person may never have been told which criterion carried their earlier visa. Checking it properly means checking the visa history rather than relying on memory, which is one of the first things a lawyer should be doing on a file like this rather than asking the client to work it out.

What being unlawful changes about your application

Being unlawful changes four things at once: what you are allowed to apply for, what bridging visa you get, whether you can work, and what a refusal costs you. Schedule 3 is only one of them.

What you can apply for. Section 48 of the Migration Act provides that a non-citizen in the migration zone who does not hold a substantive visa, and who since last entering Australia has had a visa application refused or a visa cancelled, may only apply for a visa of a class prescribed for the purposes of that section. Regulation 2.12 sets out the prescribed classes. Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) are both on that list, and so are protection visas and certain medical treatment visas. So a prior refusal does not close off an onshore partner visa. It does mean that, for many people, the partner visa is the only application left, which is a reason to take advice before lodging rather than after.

What bridging visa you get. Departmental policy on Bridging C visas explains that an unlawful non-citizen who voluntarily presents to make a valid substantive visa application, and whose last visa held was not a Bridging Visa E, will generally be eligible for a Bridging Visa C. The Bridging Visa C keeps you lawful while the application is not finally determined.

Whether you can work. A Bridging Visa C granted in these circumstances is commonly subject to condition 8101, which prohibits work. A holder can apply for a further Bridging Visa C with permission to work under subclause 030.212(3), but only where the Minister is satisfied they have a compelling need to work, as that phrase is defined in regulation 1.08. That is a separate application with its own evidence, and it is not automatic. Anyone planning their finances around lodging an onshore partner visa while unlawful needs to understand this before they lodge, not afterwards.

No further stay conditions. If you hold a visa carrying condition 8503, subsection 46(1A) of the Migration Act generally prevents you from making a valid application for another visa while you remain in Australia. Section 41(2A) allows the Minister, in prescribed circumstances, to waive such a condition. That waiver is a distinct process from the Schedule 3 waiver, with its own test set out in the Regulations, and it has to be dealt with first, because without it the partner visa application will not be valid at all. Departmental policy notes that criteria 3003(h) and 3004(h) do not reach condition 8503, because people carrying that condition are generally already prevented by subsection 46(1A) from applying.

Those four things interact. A person who is unlawful, carrying a condition 8503 history, with a prior refusal and no work rights, has a very different problem from a person who simply let a visitor visa lapse three weeks ago.

How My Migration Lawyers handles Schedule 3 matters

Schedule 3 matters are a standing part of the partner visa caseload at My Migration Lawyers. The firm acts in them regularly, and in numbers, for people who are unlawful, for people holding only a bridging visa, and for people already refused on Schedule 3 grounds. That volume matters in an area like this one, because the traps are the same traps every time and they are easy to miss once.

These are complex matters and the firm treats them as complex matters. Four separate bodies of law have to be read together on a single file: the Schedule 3 criteria themselves, the Schedule 2 criteria for the subclass being applied for, section 48 and regulation 2.12, and the bridging visa provisions that decide whether the client stays lawful and whether they can work. Miss any one of them and the advice is wrong, sometimes expensively.

The firm's method on these files starts with verification rather than instructions. Visa history is taken from records, not from what the client recalls, because the whole of Schedule 3 turns on exact dates and clients are routinely wrong about their own. Then the criteria that actually apply to the subclass are identified, primary and secondary, rather than assumed from the general rule. Then the real question is settled: whether this is a case that can satisfy criteria 3003 and 3004 outright, or a case that has to be run as a waiver. Those two paths need different evidence, and choosing wrongly at the start is the mistake that costs the most.

Where a waiver is the path, the submission is drafted as legal argument built on independent evidence, not assembled as a bundle of documents for a delegate to interpret. Where a matter has already been refused, the firm acts in Administrative Review Tribunal reviews as well, and the review is approached as a fresh opportunity to put a properly built case rather than a resubmission of the same material.

My Migration Lawyers is equipped to run matters of this kind, including the difficult ones: long periods of unlawfulness, a prior refusal, a cancelled visa, a condition 8503 history, or all of those at once. Where you would like the general position on partner visas first, our partner visa lawyers page sets that out.

What to do first if you are unlawful and want to apply

Do not lodge first and get advice afterwards. That order is the most expensive mistake available in this area, because a refused partner visa application is difficult to undo and the application charge is not refunded when a visa is refused.

There is a sensible sequence.

Check the date. Work out the last day you held a substantive visa, and count forward. If you are still inside 28 days, criterion 3001 can still be satisfied and the position is far simpler than it will be next month. This is the one circumstance in which speed genuinely beats preparation.

Get the visa history verified rather than remembered. The exact cessation date, the conditions attached to each visa, whether any earlier grant relied on Schedule 3, and whether any refusal or cancellation has triggered section 48, all come from records rather than recollection. Clients are frequently wrong about their own dates, and the whole of Schedule 3 turns on dates.

Identify which criteria are actually prescribed. Schedule 3 criteria apply subclass by subclass, and primary and secondary applicants are often treated differently. The combination that applies to your application is set out in Schedule 2 for that subclass.

Work out whether the criteria can be met before assuming a waiver is needed. Paragraph (f) of criteria 3003 and 3004 asks whether you would have been entitled to the visa on the day you lost status. For a partner visa, that usually depends on when the relationship began. If the answer is yes, the criteria route may be open. If it is no, the case is a waiver case, and the evidence needed is different.

Decide honestly whether applying offshore is the better course. Departmental policy says the waiver should not be applied where it is reasonable to expect the applicant to leave Australia and apply for a partner visa from outside. For some people that is a genuine option with a shorter and safer path, and it should be weighed rather than dismissed.

Take advice before you lodge, not after. Being unlawful narrows your options every month it continues, and the single application you make may be the only one available to you. If a partner visa has already been refused on Schedule 3 grounds, the deadlines for review are short and strict, and our partner visa refusals page explains what those deadlines mean. To have your position assessed before you lodge, or before a review deadline runs, you can request a consultation online.