Onshore Partner Visa, No Substantive Visa
Schedule 3 Partner Visa
If you lodge an onshore partner visa while you do not hold a substantive visa, Schedule 3 criteria 3001, 3003 and 3004 apply. The Minister can decide not to apply them where there are compelling reasons. That decision is the difference between a grant and a refusal, and it is not a formality.
Reviewed by Weiwei Zhang, Principal Lawyer Last updated 30 July 2026
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Schedule 3 to the Migration Regulations 1994 restricts who can apply for certain visas from inside Australia without holding a substantive visa. For the onshore partner visa, clause 820.211(2)(d)(ii) requires criteria 3001, 3003 and 3004 to be satisfied, unless the Minister is satisfied there are compelling reasons for not applying them.
Bridging visas are not substantive visas, so holding one does not avoid Schedule 3.
Bridging visas are not substantive visas, so holding one does not avoid Schedule 3.
The regulations do not define compelling reasons, which means these applications turn almost entirely on how the submission is put together.
Who It Applies To
When Does Schedule 3 Apply to a Partner Visa
Short answer
Schedule 3 applies if you did not hold a substantive visa at the time you lodged the onshore partner visa. A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. Holding a Bridging Visa A, B, C, D or E does not help, because none of them is substantive.
Schedule 3 applies if you did not hold a substantive visa at the time you lodged the onshore partner visa. A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. Holding a Bridging Visa A, B, C, D or E does not help, because none of them is substantive.
The requirement sits in clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994. It requires an applicant who does not hold a substantive visa to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. Holders of a subclass 995 Diplomatic visa or a special purpose visa are outside it, which in practice covers very few people.
The single most common way people fall into Schedule 3 is time. Criterion 3001 requires the partner visa application to be lodged within 28 days of the last substantive visa ceasing. Miss that window and 3001 cannot be satisfied, which means the waiver becomes the only route. The 28 days runs from the day the visa ceased, not from the day you found out.
The single most common way people fall into Schedule 3 is time. Criterion 3001 requires the partner visa application to be lodged within 28 days of the last substantive visa ceasing. Miss that window and 3001 cannot be satisfied, which means the waiver becomes the only route. The 28 days runs from the day the visa ceased, not from the day you found out.
Eligibility at a Glance
You are an unlawful non-citizen
You hold only a Bridging Visa A, B, C, D or E
Your substantive visa ceased more than 28 days before you lodged
You entered Australia unlawfully
You lodged the partner visa while a different application was pending
Your last visa was cancelled and you did not depart
You overstayed and remained in Australia
You have received a Schedule 3 warning letter from the Department
The Three Criteria in Plain Terms
Criteria 3001, 3003 and 3004 are cumulative in effect rather than alternatives. In most cases an applicant cannot satisfy them, which is why the waiver matters more than the criteria themselves. The summary below leaves out some nuance, and the clauses should be read in full for any live matter.
Schedule 3 criteria 3001, 3003 and 3004
Clause
What it requires
Who it catches
3001
The application is validly made within 28 days of the last substantive visa ceasing
Anyone who lodged late
3003
Factors beyond your control, compelling reasons for grant, substantial compliance with your last visa conditions, and you would have been entitled to the visa at the time
Those unlawful before 1 September 1994
3004
The same requirements as 3003, applied to the modern cohort
Those who ceased to hold a substantive visa, or entered unlawfully, after 1 September 1994
The waiver
The Minister may decide not to apply 3001, 3003 and 3004 where satisfied there are compelling reasons
Everyone who cannot satisfy the criteria
3002
A 12 month version of 3001
Applies to other visa subclasses, not the onshore partner visa
Schedule 3 does not apply to the offshore pathway. If you are outside Australia, see Subclass 309 Offshore Partner Visa.
Not sure whether Schedule 3 applies to you, or whether your 28 days has already run?
Common Situations
What if You Are Already in a Schedule 3 Situation
Short answer
Four situations come up most often. You have received a Schedule 3 warning letter, you are also caught by the section 48 bar, you have already been refused, or you are holding a bridging visa from an unrelated application. Each changes what you should do next, and in three of the four the timing is tight.
Four situations come up most often. You have received a Schedule 3 warning letter, you are also caught by the section 48 bar, you have already been refused, or you are holding a bridging visa from an unrelated application. Each changes what you should do next, and in three of the four the timing is tight.
If You Have Received a Schedule 3 Warning Letter
The Department writes to say that Schedule 3 appears to apply and invites you to respond. The underlying visa is the subclass 820 onshore partner visa. This is the moment the matter is decided in practice. A short reply describing the relationship will not do the work. What is needed is a submission that identifies which clause is engaged, addresses each element, and sets out the compelling reasons with evidence attached. The response deadline is usually short and it is not routinely extended.
If the Section 48 Bar Also Applies
If a visa has been refused or cancelled while you were in Australia, section 48 of the Migration Act bars most further onshore applications. The partner visa is one of the prescribed exceptions, so you can still lodge it. What you then face is both the section 48 position and Schedule 3 at once. These are the hardest matters in this area and they should not be attempted without advice.
If the Partner Visa Has Already Been Refused
A refusal on Schedule 3 grounds carries review rights to the Administrative Review Tribunal, and the Tribunal considers the waiver afresh rather than reviewing the Department's reasoning alone. Time limits run from the date you are taken to have received the decision and cannot be extended. Circumstances that have developed since the original decision can be put to the Tribunal. See Administrative Review Tribunal Visa Review.
If You Hold a Bridging Visa From Another Application
A bridging visa granted for a student, visitor or other pending application is not a substantive visa. Lodging an onshore partner visa while holding one engages Schedule 3, even though you are lawfully in Australia and may have been for years. This catches people who assume that being lawful is the same as holding a substantive visa. It is not.
Warning letters, section 48 and refusals all run on deadlines that cannot be extended. Get the timing checked today rather than next week.
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The Test
What Counts as a Compelling Reason
Short answer
The Migration Regulations do not define compelling reasons, so each case is assessed on its own facts. The courts have treated compelling as meaning forceful or driving, rather than merely sympathetic. A genuine relationship on its own is not compelling, because every partner visa applicant has one. Something more is needed.
The Migration Regulations do not define compelling reasons, so each case is assessed on its own facts. The courts have treated compelling as meaning forceful or driving, rather than merely sympathetic. A genuine relationship on its own is not compelling, because every partner visa applicant has one. Something more is needed.
An Australian Child of the Relationship
The most consistently accepted ground. The best interests of an Australian citizen or permanent resident child carry real weight.
Hardship to the Australian Sponsor
Financial, medical or caring hardship the sponsor would suffer if separated. Documented, not asserted.
Health of the Applicant or Sponsor
A serious condition, a treating relationship, or care that cannot reasonably be provided from overseas.
Family Violence
Where family violence has occurred, it can bear on both why the visa lapsed and why separation would be unreasonable.
Length and Strength of the Relationship
A long, well documented relationship carries more weight than a recent one, though it is rarely enough on its own.
Conditions in the Country of Return
Where returning would expose you to serious hardship or risk. This can overlap with a protection claim.
Why the Visa Lapsed Matters Too
Criteria 3003 and 3004 require that you do not hold a substantive visa because of factors beyond your control. How you came to be unlawful is therefore part of the assessment, not just what has happened since. Poor advice, a missed notification, illness, or a failed application through no fault of your own all sit differently from a deliberate overstay.
How Long It Stays Valid
These grounds are cumulative in practice. A single ground is rarely decisive on its own. What persuades is a combination, set out clearly, each supported by documents, with the connection between the facts and the word compelling made explicitly rather than left for the decision maker to infer.
Not sure whether your circumstances reach the compelling threshold? That assessment is the whole matter.
The Leading Case
What Is the Waensila Principle
Short answer
In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 the Full Federal Court held that the Minister's waiver discretion is not confined to circumstances existing at the time of application. A decision maker must consider all of the applicant's circumstances up to the time of decision.
In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 the Full Federal Court held that the Minister's waiver discretion is not confined to circumstances existing at the time of application. A decision maker must consider all of the applicant's circumstances up to the time of decision.
Before Waensila, the Department's position was that compelling reasons had to exist at the date the application was lodged. Anything that happened afterwards was disregarded. The heading to clause 820.21, "Criteria to be satisfied at time of application", was read as confining the waiver.
The Full Court rejected that. The waiver is not itself a criterion. It is a power to decide that criteria 3001, 3003 and 3004 do not apply, and nothing in the regulation limits the material the Minister may consider when exercising it.
The practical effect is substantial. Circumstances that arose after lodgement can be relied on. A child born since the application. A diagnosis. A deterioration in the sponsor's health. Country conditions that have worsened. A relationship that has continued and strengthened over the years the application has been pending.
The Full Court rejected that. The waiver is not itself a criterion. It is a power to decide that criteria 3001, 3003 and 3004 do not apply, and nothing in the regulation limits the material the Minister may consider when exercising it.
The practical effect is substantial. Circumstances that arose after lodgement can be relied on. A child born since the application. A diagnosis. A deterioration in the sponsor's health. Country conditions that have worsened. A relationship that has continued and strengthened over the years the application has been pending.
Why This Changes What You Should Be Doing Now
If a partner visa is pending and Schedule 3 is engaged, the file does not stand still. Every month that passes can add to the compelling reasons rather than only to the wait.
Keep documenting. Births, medical events, caring responsibilities, financial dependence, changes in the country of return. Then put them to the decision maker before the decision is made, not afterwards.
Keep documenting. Births, medical events, caring responsibilities, financial dependence, changes in the country of return. Then put them to the decision maker before the decision is made, not afterwards.
What Waensila Did Not Change
The threshold is unchanged. Compelling still means forceful or driving, not merely sympathetic. The waiver remains discretionary. And criteria 3001, 3003 and 3004 themselves are still assessed at the time of application. What moved was only the material relevant to the waiver.
The Administrative Review Tribunal applies the same principle on review, which is why circumstances that have developed since the Department's decision can be put to the Tribunal.
The Administrative Review Tribunal applies the same principle on review, which is why circumstances that have developed since the Department's decision can be put to the Tribunal.
Application pending and circumstances have changed since you lodged? That material may be the difference.
Timing
How the 28 Day Rule Works
Short answer
Criterion 3001 requires the partner visa application to be validly made within 28 days of the day your last substantive visa ceased. If you lodge inside that window and hold no other visa, 3001 is satisfied and the position is far stronger. Lodge outside it and 3001 cannot be met, so the waiver becomes the only available route.
Criterion 3001 requires the partner visa application to be validly made within 28 days of the day your last substantive visa ceased. If you lodge inside that window and hold no other visa, 3001 is satisfied and the position is far stronger. Lodge outside it and 3001 cannot be met, so the waiver becomes the only available route.
Counting the 28 days
Measure
Time from lodgement
Time to lodge to satisfy criterion 3001
28 calendar days
Counted from
The day the last substantive visa ceased
Extensions available
None
The 28 days runs from the day the visa ceased, not from the day you realised it had. It is a calendar period, not business days, and it is not extended because you were unwell, badly advised or out of the country. If the deadline has not yet passed, lodging inside it is almost always the right move even if the application is not as complete as you would like.
A visa does not always cease on the date printed on the grant notice. Cancellation, a breach of condition, or the operation of a no further stay condition can change it. Check the actual cessation date in VEVO before counting the 28 days, because getting this wrong by a day is fatal to 3001.
If the 28 days has already passed, the position is not hopeless. It simply means the matter is now entirely about compelling reasons, and the submission has to carry the whole weight.
A visa does not always cease on the date printed on the grant notice. Cancellation, a breach of condition, or the operation of a no further stay condition can change it. Check the actual cessation date in VEVO before counting the 28 days, because getting this wrong by a day is fatal to 3001.
If the 28 days has already passed, the position is not hopeless. It simply means the matter is now entirely about compelling reasons, and the submission has to carry the whole weight.
Still inside the 28 days? Lodging now protects a position you cannot get back later.
Relationship Evidence
What Evidence Supports a Schedule 3 Waiver
Short answer
Two separate bodies of evidence are needed, and applications fail when only one is provided. The first is the ordinary partner visa relationship evidence across the four regulatory categories. The second is the compelling reasons material, which is a different exercise entirely and is the part most often left thin.
Two separate bodies of evidence are needed, and applications fail when only one is provided. The first is the ordinary partner visa relationship evidence across the four regulatory categories. The second is the compelling reasons material, which is a different exercise entirely and is the part most often left thin.
Why You Lost Your Substantive Visa
Criteria 3003 and 3004 require factors beyond your control. Evidence the chronology: prior visa grant notices, correspondence, medical certificates, evidence of advice you acted on, and any decision that caused the lapse. A clear timeline is worth more than an explanation.
The Compelling Reasons Themselves
Birth certificates for Australian children, medical reports and treating specialist letters, evidence of caring responsibilities, financial records showing dependence, school enrolments, and country information where return is unsafe. Documents, not adjectives.
Substantial Compliance With Your Last Visa
Criteria 3003 and 3004 require substantial compliance with the conditions of your last substantive visa. Evidence of enrolment and attendance for a student visa, employment records where work was permitted, and an explanation of any breach and its context.
The Relationship Itself
All four regulatory categories still have to be met: financial aspects, the nature of the household, social context and the nature of the commitment. A strong waiver argument does not cure weak relationship evidence, and the two are assessed separately.
Documents Commonly Required
A written legal submission addressing clauses 3001, 3003 and 3004 clause by clause
A visa chronology showing every grant, expiry, application and decision with dates
Evidence that the loss of your substantive visa was caused by factors beyond your control
Birth certificates and school records for any Australian child of the relationship
Medical reports and treating specialist letters for the applicant or the sponsor
Evidence of caring responsibilities and of financial dependence
Country information where return would cause serious hardship
Evidence of substantial compliance with the conditions of your last substantive visa
Statements from the applicant and the sponsor addressing the compelling reasons directly
Full relationship evidence across all four regulatory categories
Any material that has arisen since lodgement, relied on under the Waensila principle
Have your relationship evidence assessed against all four regulatory categories.
Refusals
Why Are Schedule 3 Waivers Refused
Short answer
Most refusals come down to a submission that described a situation rather than argued a case. Compelling is a high threshold, and hardship that is ordinary for anyone facing separation will not meet it. The reasons below account for the large majority of refusals in this area.
Most refusals come down to a submission that described a situation rather than argued a case. Compelling is a high threshold, and hardship that is ordinary for anyone facing separation will not meet it. The reasons below account for the large majority of refusals in this area.
Common Refusal Grounds
Relying on the genuineness of the relationship alone, which every applicant has
Asserting hardship without medical, financial or documentary evidence behind it
No submission at all, on the assumption a case officer will identify the reasons themselves
A deliberate overstay, with nothing to show the loss of status was beyond your control
Failure to show substantial compliance with the conditions of the last substantive visa
A Schedule 3 warning letter answered late, briefly, or not at all
Circumstances arising after lodgement never put to the decision maker
Weak relationship evidence, which no waiver argument can cure
An unaddressed section 48 bar or prior refusal history
If the Waiver Has Been Refused
The Administrative Review Tribunal reconsiders the waiver afresh rather than reviewing the Department's reasoning alone, and it applies the Waensila principle. Circumstances that have developed since the refusal can be put to it. Strict time limits run from the date you are taken to have received the decision and cannot be extended.
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The Process
How to Make a Schedule 3 Waiver Submission
Short answer
There is no separate Schedule 3 form and no separate charge. The waiver is requested inside the partner visa application, as a written submission uploaded to ImmiAccount with the supporting evidence. The submission is the application, in practical terms, and it should go in at lodgement rather than waiting for the Department to raise it.
There is no separate Schedule 3 form and no separate charge. The waiver is requested inside the partner visa application, as a written submission uploaded to ImmiAccount with the supporting evidence. The submission is the application, in practical terms, and it should go in at lodgement rather than waiting for the Department to raise it.
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01
Confirm Schedule 3 Actually Applies
Check the exact date your last substantive visa ceased in VEVO and count the 28 days. Bridging visas are not substantive visas.
02
Establish the Full Visa Chronology
Every grant, expiry, application, refusal and cancellation with dates. Most of the assessment turns on this timeline.
03
Identify Which Clauses Are Engaged
3001 in almost every case, then 3003 or 3004 depending on whether you ceased to hold a substantive visa before or after 1 September 1994.
04
Identify Your Compelling Reasons
Children, sponsor hardship, health, family violence, country conditions. List them, then find the document that proves each one.
05
Address Factors Beyond Your Control
Criteria 3003 and 3004 require this. Evidence how you came to be without a visa, not just what has happened since.
06
Write the Submission
Clause by clause, with the evidence cross-referenced. Do not leave the decision maker to assemble the argument from a folder of documents.
07
Lodge With the Partner Visa
Upload the submission and evidence at lodgement. If a warning letter arrives later, respond inside the deadline with the same rigour.
08
Keep Updating It Until the Decision
Under Waensila, circumstances arising after lodgement count. Put new material to the decision maker before the decision, not after.
There is no additional Department charge for a Schedule 3 waiver request. It forms part of the partner visa application and is covered by the same application charge.
Have the submission reviewed before it goes to the Department.
Warning Letters
What to Do if You Receive a Schedule 3 Warning Letter
Short answer
Treat it as the decision point, not a formality. The Department is telling you that Schedule 3 appears to apply and inviting a response before it decides. Whatever you send back is likely to be the material the refusal or the grant is based on, so it needs to be a full submission.
The response deadline is usually short and it is not routinely extended. Work backwards from it. Identify what evidence you need, request it immediately, and file within the deadline even if one document is still outstanding, noting that it will follow.
A common and costly mistake is replying with a short letter describing the relationship. The Department already accepts you have a relationship, otherwise the partner visa would be refused on different grounds. The letter is asking about Schedule 3, and the response has to answer that question specifically.
If the deadline has already passed, material can still be provided until the decision is made. Under the Waensila principle the decision maker considers circumstances up to the time of decision, so late is far better than never.
Treat it as the decision point, not a formality. The Department is telling you that Schedule 3 appears to apply and inviting a response before it decides. Whatever you send back is likely to be the material the refusal or the grant is based on, so it needs to be a full submission.
The response deadline is usually short and it is not routinely extended. Work backwards from it. Identify what evidence you need, request it immediately, and file within the deadline even if one document is still outstanding, noting that it will follow.
A common and costly mistake is replying with a short letter describing the relationship. The Department already accepts you have a relationship, otherwise the partner visa would be refused on different grounds. The letter is asking about Schedule 3, and the response has to answer that question specifically.
If the deadline has already passed, material can still be provided until the decision is made. Under the Waensila principle the decision maker considers circumstances up to the time of decision, so late is far better than never.
Warning letter in hand and a deadline running? This is the point at which advice makes the most difference.
After the Grant
What Happens if the Waiver Is Granted
Short answer
The waiver is not a visa. It is a decision that criteria 3001, 3003 and 3004 do not apply to you. The partner visa application then proceeds to be assessed on its own merits, against the relationship, health and character criteria like any other application.The subclass 820 is temporary. Around two years after your original lodgement date, the Department assesses the permanent stage of the partner visa. You must show the relationship is still genuine and continuing at that point. The permanent stage is not automatic and requires updated relationship evidence.
This trips people up. A successful waiver argument feels like the hard part is over, and in one sense it is, but the relationship evidence still has to carry the application. If that evidence was neglected while all the effort went into the waiver, the refusal simply arrives on different grounds. Prepare both at the same standard from the start, then keep the relationship evidence current through to the permanent stage.
The waiver is not a visa. It is a decision that criteria 3001, 3003 and 3004 do not apply to you. The partner visa application then proceeds to be assessed on its own merits, against the relationship, health and character criteria like any other application.The subclass 820 is temporary. Around two years after your original lodgement date, the Department assesses the permanent stage of the partner visa. You must show the relationship is still genuine and continuing at that point. The permanent stage is not automatic and requires updated relationship evidence.
This trips people up. A successful waiver argument feels like the hard part is over, and in one sense it is, but the relationship evidence still has to carry the application. If that evidence was neglected while all the effort went into the waiver, the refusal simply arrives on different grounds. Prepare both at the same standard from the start, then keep the relationship evidence current through to the permanent stage.
A waiver is one hurdle. The relationship evidence still has to carry the rest.
Questions
Schedule 3 Frequently Asked Questions
Answers to the questions Indonesians applicants ask most often. See also our 30 protection visa FAQs and 30 LGBT protection visa FAQs.
What Is a Schedule 3 Waiver
It is a decision by the Minister not to apply Schedule 3 criteria 3001, 3003 and 3004 to your onshore partner visa application, on the basis that there are compelling reasons for not applying them. It is not a separate application and it carries no separate charge.
Does Schedule 3 Apply if I Hold a Bridging Visa
Yes. A bridging visa is not a substantive visa, so lodging an onshore partner visa while holding one engages Schedule 3. This applies to Bridging Visas A, B, C, D and E alike, even though you are lawfully in Australia.
What Are the 28 Days in Criterion 3001
Criterion 3001 requires the partner visa application to be validly made within 28 days of the day your last substantive visa ceased. They are calendar days, they run from the cessation date rather than the date you found out, and there is no extension.
What Counts as a Compelling Reason
The regulations do not define it, and each case is assessed on its facts. Grounds that carry weight include an Australian child of the relationship, hardship to the sponsor, serious health issues, family violence, and conditions in the country of return. A genuine relationship on its own is not compelling.
What Is the Waensila Principle
In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court held that the Minister's waiver discretion is not limited to circumstances at the time of application. A decision maker must consider all the applicant's circumstances up to the time of decision.
Can I Rely on Something That Happened After I Lodged
Yes, that is the effect of Waensila. A child born since lodgement, a new diagnosis, a deterioration in your sponsor's health or worsening conditions in your country can all be relied on, provided they are put to the decision maker before the decision is made.
Is There a Separate Fee for a Schedule 3 Waiver
No. The waiver is requested inside the partner visa application and there is no additional Department charge. It is covered by the same application charge as any other onshore partner visa.
I Received a Schedule 3 Warning Letter. What Should I Do
Treat it as the decision point. The Department is inviting a response before deciding, and what you send back is likely to be what the decision is based on. Respond inside the deadline with a full submission addressing each clause, not a short letter about the relationship.
Does Section 48 Stop Me Applying
Section 48 bars most further onshore applications after a refusal or cancellation, but the partner visa is a prescribed exception, so you can still lodge it. You then face both the section 48 position and Schedule 3 together, which is the most difficult combination in this area.
Can I Appeal if the Waiver Is Refused
Yes. Review rights generally apply to the Administrative Review Tribunal, which reconsiders the waiver afresh and applies the Waensila principle. Time limits run from the date you are taken to have received the decision and cannot be extended.
About the Reviewer
Who Reviewed This Page
Weiwei Zhang is an Australian lawyer practising exclusively in Australian migration law and is the Principal Lawyer at My Migration Lawyers. She reviews the firm's published legal guidance for accuracy.
Weiwei Zhang
Managing Director and Principal Lawyer, My Migration Lawyers
Weiwei Zhang
Principal Lawyer
Weiwei Zhang is an Australian lawyer practising exclusively in Australian migration law and is the Principal Lawyer at My Migration Lawyers. She reviews the firm's published legal guidance for accuracy.
Last Reviewed
16 September 2026
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