Schedule 3 Partner Visa Waiver: Applying Without a Substantive Visa

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

Yes. You can lodge a subclass 820 partner visa in Australia without a substantive visa, but the visa can only be granted if the Schedule 3 criteria are met or the Minister waives them for compelling reasons. Those are two different questions, and confusing them is the single most common mistake made in this area.

A substantive visa is defined in subsection 5(1) of the Migration Act 1958 as any visa other than a bridging visa, a criminal justice visa or an enforcement visa. That definition matters more than most people realise. If you are unlawful, you hold no substantive visa. If you hold a Bridging Visa A, B, C or E, you also hold no substantive visa. Both groups are treated the same way by Schedule 3 to the Migration Regulations 1994.

Schedule 3 does not stop you from lodging. The Department's own policy instruction on Schedule 3 says this plainly: criteria 3001 and 3002 "do not operate to prevent a valid visa application from being made". Your application is valid if it meets the Schedule 1 requirements for a Partner (Temporary) (Class UK) application. Schedule 3 operates at the other end of the process. It is written into Schedule 2 as a criterion to be satisfied at the time of application, so if you do not satisfy it and it is not waived, the subclass 820 criteria cannot be met and the visa must be refused.

There is a second gate that catches many people before Schedule 3 does. Section 48 of the Migration Act says that a non-citizen in the migration zone who does not hold a substantive visa, and who has had a visa refused or cancelled since last entering Australia, may only apply for a visa of a class prescribed for that section. Regulation 2.12 sets out that prescribed list, and Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) are both on it. So a previous refusal does not, by itself, block a partner visa application lodged in Australia. It does, however, mean that the partner visa may be the only application you can make, which raises the stakes on getting it right the first time.

If you are in this position, the starting point is our Schedule 3 waiver page, and the general requirements for the onshore application are set out on our subclass 820 visa page.

What the Schedule 3 waiver actually waives

The waiver in subparagraph 820.211(2)(d)(ii) sets aside three criteria and three only: 3001, 3003 and 3004. It does not set aside the whole of Schedule 3, and it does not set aside criterion 3002.

This is worth stating precisely, because loose language here leads to bad advice. Paragraph 820.211(2)(d) of Schedule 2 applies where the applicant is not the holder of a substantive visa. It gives that applicant two routes. Under subparagraph (i), an applicant who entered Australia as the holder of a Subclass 995 (Diplomatic) visa, or as a special purpose visa holder meeting subclause 820.211(2A), must satisfy criterion 3002, which is a 12 month time limit. That route has no waiver attached to it. Under subparagraph (ii), every other applicant without a substantive visa must satisfy criteria 3001, 3003 and 3004, "unless the Minister is satisfied that there are compelling reasons for not applying those criteria".

So the waiver belongs to subparagraph (ii). If you are relying on it, you are asking a delegate to disapply three specific criteria.

Criterion 3001 is a time limit. It requires the application to have been validly made within 28 days after the relevant day. For anyone who ceased to hold a substantive visa on or after 1 September 1994, the relevant day is the last day they held that visa, or, if they entered Australia unlawfully, the day of the last unlawful entry, whichever is later. The first of the 28 days is the day after that event. Once the 28 days have gone, criterion 3001 cannot be satisfied at all. It is not a criterion you can argue your way through with better evidence. It is arithmetic. For most people who come to a lawyer about Schedule 3, criterion 3001 has failed long ago, and the waiver is the only remaining path.

Criteria 3003 and 3004 are companion criteria and are, in substance, the same test applied to different groups. Criterion 3003 deals with people who were illegal entrants on 31 August 1994, or held an entry permit that did not run past that date, and who have held no substantive visa since 1 September 1994. That group is now historical. Criterion 3004 is the one that matters today. 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 either limb applies, the applicant must satisfy all six of the requirements in paragraphs (c) to (h).

Criterion 3005 sits outside the waiver. It prevents an applicant from relying on the Schedule 3 concession more than once, and it is not one of the criteria that subparagraph 820.211(2)(d)(ii) allows a delegate to set aside.

The practical effect is this. If you are unlawful and you are outside the 28 day window, you are not arguing that you meet Schedule 3. You are arguing that Schedule 3 should not be applied to you at all. Those are different submissions, and they need different evidence.

What "compelling reasons" means in a Schedule 3 waiver

The Migration Regulations do not define "compelling reasons", and they do not list the circumstances a delegate must consider. The Department's policy on the subclass 820 visa says so directly: the Regulations do not prescribe the circumstances to be considered, so delegates decide case by case.

That sounds open. In practice it is not, because policy tells delegates what the waiver is for. The stated intent is to allow people with genuinely compelling circumstances to regularise their status. Policy also states what the waiver is not for. It is not intended to give, or to be seen to give, an unfair advantage to people who fail to comply with their visa conditions, who deliberately manipulate their circumstances to create compelling reasons, or who can leave Australia and apply for a partner visa from outside Australia.

That last point does a great deal of work, and it is the point most applicants underestimate. If a delegate thinks it is reasonable to expect you to leave Australia and lodge a subclass 309 offshore partner visa instead, policy says the waiver should not be applied. Every waiver submission has to answer that question, whether or not the Department asks it out loud.

The separate Schedule 3 policy instruction gives the word its ordinary meaning. "Compelling" is not defined in migration legislation and is to be given its normal dictionary meaning, described in the instruction as "brought about by moral necessity". Compelling reasons can come from compassionate factors, from the applicant's own circumstances, or from the circumstances of another person. All the circumstances of the case are to be considered both individually and cumulatively, and the instruction says that thinking about the likely consequences of not granting the visa may help a decision maker work out whether the circumstances are compelling.

Two things follow from that. First, a waiver case is cumulative. A single factor rarely carries it. A properly built submission shows how several things together produce a result that is not merely difficult but unacceptable. Second, the consequences of refusal are part of the test, not background colour. What happens to the sponsor, to the children, to a dependent parent, to a business, to medical treatment already underway, is directly relevant.

Waensila: compelling reasons are judged up to the time of decision

Compelling reasons are not limited to circumstances that existed when the application was lodged. Circumstances arising afterwards, right up to the time of decision, can be relied on.

This is settled, and it is the point competitor content gets wrong most often. The Full Federal Court decided it in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, handed down on 11 March 2016. The Department reissued its Schedule 3 policy instruction on 19 May 2016 to take account of the decision. The instruction now states that where a waiver is permitted, compelling reasons are not limited to circumstances in existence at the time of application, that circumstances constituting compelling reasons can arise at any time up until the time of decision, and that delegates deciding under section 65 must have regard to submissions from the applicant about compelling reasons that occurred after the date of application and continue to exist at the time of decision.

The subclass 820 policy says the same thing in its own terms. In considering subparagraph 820.211(2)(d)(ii), a delegate must consider all of the applicant's circumstances to the extent they are known up to the time of decision.

The practical consequence is large, and it is the reason a Schedule 3 file should never be lodged and then left alone. A partner visa lodged onshore can sit for a long time. Things change. A child is born. A sponsor's health deteriorates. A parent dies overseas and the applicant becomes the only available carer for a sibling here. Any of those can be put to the delegate after lodgement, and the delegate is required to consider them. An applicant who does not update the file is asking the Department to decide on a version of their life that stopped being accurate years ago.

If you are working with a lawyer, this is one of the clearest reasons to keep the relationship running through the whole of the processing period rather than treating lodgement as the end of the job.

What the Department's policy says is not enough on its own

A genuine relationship and the hardship of separation are not, as a general rule, compelling reasons. This is the hardest sentence in this article, and leaving it out would not be doing anyone a favour.

The subclass 820 policy instruction states the position squarely. As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner, and the hardship suffered from separation if the applicant had to leave and apply outside Australia, are not compelling reasons to avoid applying the Schedule 3 criteria. The reasoning is that a genuine relationship is the basis of every partner visa application, and separation hardship is common across the whole partner caseload, particularly offshore, where couples are routinely apart for long periods while an application is processed.

Policy also gives an example of a case where there may not be compelling reasons: an applicant who has remained unlawful for a number of years, has made little or no effort to become lawful, and then claims compelling circumstances based on a long term relationship with the sponsoring partner and the hardship of separation.

If that example describes your situation, you need more than the relationship, and you need to know that before you lodge, not after you are refused.

There is one qualification that policy states expressly. Where there is an Australian citizen child with a demonstrable link to the applicant, a decision may be made to waive the Schedule 3 criteria in the best interests of the child. Note the wording. It is "may", not "must", and the link to the child has to be demonstrable rather than asserted. A birth certificate on its own is not a demonstrable link. Evidence of care, of daily involvement, of financial support, of schooling and health decisions, is what makes that limb work.

Policy also says that circumstances beyond the applicant's control may themselves constitute compelling reasons. If a serious accident or illness caused you to fall out of status, that single set of facts can go to both the "beyond your control" question and the "compelling reasons" question.

The six matters the Department weighs

Departmental policy sets out a list of matters delegates should take into account when assessing whether an applicant's circumstances amount to compelling reasons. The list is expressed as a guide rather than a closed set, but it is the closest thing to a checklist that exists, and a waiver submission that does not address every item on it is incomplete.

The matters are:

• Any history of non-compliance with visa conditions by the applicant.
• The length of time the applicant has been an unlawful non-citizen in Australia.
• The reasons why the applicant became an unlawful non-citizen in Australia.
• The reasons why the applicant did not seek to become lawful in Australia sooner.
• Current family composition, including any dependent children.
• What steps, if any, the applicant has taken to become a lawful non-citizen in Australia, other than applying for the subclass 820 and subclass 801 visas.

Read those together and a pattern emerges. Four of the six are about conduct and timing, not about the relationship. They ask how you got here, how long you stayed, why you did not fix it, and what you tried. An applicant who took steps, even unsuccessful ones, is in a materially different position from an applicant who did nothing until a partner visa became available.

That is also why the sixth item carves out the partner visa application itself. Lodging the subclass 820 does not count as a step taken to become lawful. It cannot, because it is the very application the waiver is being sought for.

The honest answer to what happens next is that it depends on the combination. A short period of unlawfulness caused by something external, an applicant who approached the Department as soon as they realised, dependent children in Australia, and a clean compliance record, is a very different file from a decade of unlawfulness followed by a marriage. Both are worth advice. They are not worth the same submission. Schedule 3 waiver matters are a regular part of the partner visa work at My Migration Lawyers, and they are among the more complex partner visa files a firm can run, because the legal test is discretionary, the evidence is personal, and the material has to be assembled rather than collected.

How to build a Schedule 3 waiver submission

A Schedule 3 waiver submission is a piece of legal writing, not a bundle of documents. The delegate has to be persuaded to reach a state of satisfaction under subparagraph 820.211(2)(d)(ii). Documents on their own do not produce that state. An argument built on documents does.

Start with a dated chronology. Every waiver case turns on a sequence: the last substantive visa, the date it ceased, what happened in the days around that date, what the applicant did next, and every contact with the Department since. The delegate will build this chronology whether you supply it or not. Supplying it means the delegate reads your version first, with your explanations attached to the gaps.

Then deal with causation, honestly. The Schedule 3 instruction is strict on this point in the context of criterion 3004(c), and the same thinking colours the waiver. It is not enough that factors beyond the applicant's control existed. Those factors must have caused the applicant to become a person without a substantive visa. A submission that describes a hard year without connecting it to the specific day status was lost will not carry.

Address the "why not leave" question before it is asked. Policy says the waiver should not be applied where it is reasonable to expect the applicant to leave and apply offshore. So the submission has to explain what makes departure unreasonable in this case, in concrete terms. Who depends on the applicant here. What would stop if they left. Whether a return is realistically possible, and on what timeframe.

Evidence should be independent wherever it can be. A statement from the applicant is necessary but weak on its own. Medical evidence should come from the treating practitioner and should say what the condition means for daily functioning, not simply name it. Financial dependence should be shown with records. Care of a child should be shown by people who see it, including schools, childcare centres and health providers. If the claim is that the Department gave incorrect advice, policy says a decision maker should try to verify what advice was given and should accept the claim only if it is credible, so anything contemporaneous, including file notes, emails and reference numbers, is worth far more than a recollection.

Finally, keep the file alive. Because compelling reasons are assessed to the time of decision, new material should be sent in as it arises, with a short covering submission explaining why it matters. That is a discipline, and it is one of the practical reasons applicants in this position engage a lawyer rather than lodging alone.

How My Migration Lawyers runs a Schedule 3 matter

Schedule 3 work is a standing part of the partner visa caseload at My Migration Lawyers. The firm acts regularly in these matters, and in numbers, for people who are unlawful, for people holding only a bridging visa, and for people whose partner visa has already been refused on Schedule 3 grounds. Because the same issues recur, the firm runs them to a settled method rather than starting from scratch each time.

The first step is the visa history, taken from records rather than recollection. The exact day the last substantive visa ceased, the conditions attached to every visa held, whether any earlier grant relied on a Schedule 3 criterion, and whether a refusal or cancellation has triggered section 48, all decide what is possible. Clients are frequently wrong about their own dates, through no fault of their own, and the whole of Schedule 3 turns on dates.

The second step is deciding whether this is a criteria case or a waiver case. Those need different evidence and a different submission, and an applicant who is still inside the 28 day window is in a completely different position from one who is not. Getting this wrong at the start wastes the application charge and, for someone caught by section 48, may waste the only application available to them.

The third step is the submission. A waiver case is won or lost on written argument built on independent evidence, not on a bundle of documents handed to a delegate to interpret. That means a dated chronology, causation addressed directly, the "why not apply offshore" question answered before it is asked, and every one of the matters departmental policy tells delegates to weigh dealt with expressly.

The fourth step is keeping the file current through to decision, because compelling reasons are assessed on everything known at the time of decision.

These are complex matters, and My Migration Lawyers treats them as complex matters. The legal test is discretionary, departmental policy starts from a sceptical position, and the facts are usually personal and difficult to document. The firm is set up to handle that: it works through the evidence with clients instead of sending a list and waiting, it puts the argument in writing, and it deals with the Department and, where it comes to it, the Administrative Review Tribunal, on the client's behalf. Advice on partner visas across the firm's practice is available through our partner visa lawyers page.

What happens if the waiver is refused

If the delegate is not satisfied there are compelling reasons, the subclass 820 criteria cannot be met and the visa is refused. That is not necessarily the end of the matter, but the next steps run on strict deadlines that are measured from the date you are notified, and they are short.

Most onshore partner visa refusals carry a right of review to the Administrative Review Tribunal. The Tribunal stands in the shoes of the decision maker, which means it can consider the Schedule 3 waiver afresh and on the material before it, including material that did not exist when the Department decided. In a Schedule 3 case, that is often the real opportunity, because the time that passes between refusal and hearing frequently changes the picture. Our partner visa refusals page sets out how review works and what the deadlines mean in practice.

Two warnings belong here.

The first is about status. A refusal affects the bridging visa that was attached to the application, and the period in which you remain lawful after a refusal is limited and time sensitive. Decisions about review are therefore also decisions about whether you remain lawful, and they should not be left until the last week.

The second is about the ceiling on review. The Tribunal reviews the decision on the law as it stands. Where the Tribunal affirms a refusal, the remaining avenue is not another merits hearing but judicial review in the Federal Circuit and Family Court, which can only set a decision aside for jurisdictional error. A court cannot substitute its own view about whether your reasons were compelling. That is why the quality of the material put before the Department and the Tribunal matters so much: those are the two stages where the merits are actually decided.

If a Schedule 3 waiver has already been refused, the review is not a second attempt at the same submission. It is a fresh opportunity to put a properly built case to a decision maker who can consider everything known by the date of the hearing. My Migration Lawyers acts in Schedule 3 reviews as well as first instance applications, and takes on matters that have already been refused. If you are unlawful or on a bridging visa and considering an onshore partner visa, or you have been refused on Schedule 3 grounds, you can request a consultation online and have your position assessed before the deadline runs.