Can a Lawyer Request a Schedule 3 Waiver for My Partner Visa?

How does a lawyer request a Schedule 3 waiver for a partner visa?

A lawyer requests a Schedule 3 waiver for a partner visa by lodging written submissions with the Subclass 820 application, or soon after it, explaining why compelling reasons exist for not applying the Schedule 3 criteria. The submissions set out the applicant's immigration history, the reasons the applicant became unlawful or lost a substantive visa, and the circumstances said to be compelling, each supported by documents. Our guide to the Schedule 3 waiver submission explains how these submissions are structured.

Who needs a Schedule 3 waiver for a partner visa?

A Schedule 3 waiver is needed by a partner visa applicant who is in Australia and does not hold a substantive visa when the application is lodged, for example a person whose visa has expired or who holds only a Bridging Visa E. Applicants who still hold a substantive visa, such as a student or visitor visa, do not face Schedule 3. Our article on the Schedule 3 criteria for a partner visa explains how each criterion operates, and our article on a partner visa on a Bridging Visa E covers that situation in detail.

What counts as compelling reasons for a Schedule 3 waiver?

Compelling reasons for a Schedule 3 waiver are circumstances strong enough to justify setting the criteria aside, judged on the facts of each case. Under departmental policy, a genuine relationship and the hardship of separation are generally not enough on their own. Matters that can carry weight include an Australian citizen child of the relationship, serious illness of the sponsor or applicant, the sponsor's dependence on the applicant for care, and circumstances outside the applicant's control that explain the loss of lawful status. Our article on compelling reasons for a partner visa explains how these factors are weighed.

When is the Schedule 3 waiver decided?

The Schedule 3 waiver is decided when the Department decides the Subclass 820 application, not at the time of lodgement. The Full Federal Court held in Waensila that compelling reasons can include circumstances that arise after the application is made, up to the time of decision. Applicants can therefore add evidence while the application is processing, such as the birth of a child or new medical evidence, and the Department must consider it.

What happens if a Schedule 3 waiver is refused?

If a Schedule 3 waiver is refused, the Subclass 820 application is refused, even where the Department accepts the relationship is genuine. The applicant can usually apply to the Administrative Review Tribunal within a short and strictly applied time limit, and the Tribunal considers compelling reasons afresh. Our article on the partner visa Schedule 3 refusal explains the review options and the alternative of an offshore application.

How does My Migration Lawyers prepare a Schedule 3 waiver request?

My Migration Lawyers prepares a Schedule 3 waiver request by first mapping the applicant's full visa history, so the submissions explain every gap in lawful status rather than leaving the Department to draw its own conclusions. The firm then identifies which circumstances are capable of being compelling, gathers medical, family and financial evidence to prove them, and updates the submissions during processing as circumstances change. Couples facing this issue can read about our Schedule 3 waiver work and the Subclass 820 visa before requesting a consultation.