Schedule 3 of the Migration Regulations 1994 (Cth) applies to a range of onshore visa applications where the applicant does not hold a substantive visa at the time of lodgement.
Schedule 3 is most commonly discussed in the context of Partner visas. This is because section 48 of the Migration Act 1958 (Cth) prevents most other onshore visa applications after a refusal or cancellation.
However, the Partner visa (subclass 820/801) remains open onshore despite section 48, which means applicants frequently face Schedule 3 requirements and must address them as part of their case.
When Schedule 3 is triggered
Schedule 3 is engaged if, when the Partner visa is lodged, the applicant does not hold a substantive visa. A substantive visa is any visa other than a bridging visa, criminal justice visa, or enforcement visa.
Common scenarios include:
- A previous substantive visa (such as a student or visitor visa) expired, and the applicant is on a bridging visa at the time of applying.
- A visa was refused or cancelled onshore, and the applicant is holding a bridging visa associated with a review process.
In these situations, the Department must consider Schedule 3 criteria in addition to the standard Partner visa requirements.
The Schedule 3 criteria
The criteria in Schedule 3 generally require the visa application to have been lodged within 28 days of the expiry, cancellation, or refusal of the previous substantive visa. In practice, most Partner visa applicants who are subject to Schedule 3 are well outside this 28-day period.
Without more, the application would fail. That is why the waiver discretion becomes critical.
Waiver of Schedule 3
The Regulations permit Schedule 3 to be waived if there are compelling reasons for granting the visa despite the lack of a substantive visa at lodgement.
“Compelling reasons” are not defined in the legislation. Australian immigration laws & policy make clear that they must involve more than ordinary hardship or inconvenience that naturally arises when a visa is refused or expires.
Factors that may amount to compelling reasons include:
- The interests of an Australian citizen or permanent resident partner or children.
- Serious health concerns where separation would cause unreasonable outcomes.
- Exceptional humanitarian or compassionate considerations.
It is not enough to show the relationship is genuine and continuing. The Department expects detailed evidence and submissions that demonstrate why refusal in the particular case would have consequences that are properly described as compelling.
Building the waiver case
A strong Schedule 3 waiver application usually involves:
- Medical or expert evidence where health or care issues are relevant.
- Financial and personal evidence showing the interdependence of the relationship.
- Statements and material demonstrating the effect on Australian children.
- Evidence that offshore application is not a realistic or reasonable alternative.
The discretion is narrow. Many refusals result from poorly prepared submissions that rely only on the existence of the relationship, without demonstrating compelling reasons beyond that.
Alternative Stratergy: BVB ‘Switcheroo’
An alternate strategy some applicants consider is the Bridging Visa B “switcheroo.” This involves applying for a BVB while holding a BVA, travelling offshore, and lodging the Partner visa outside Australia to avoid Schedule 3.
See the BVB ‘ switcheroo’ discussed in more detail here.
Why this matters
Schedule 3 is one of the most technical and unforgiving aspects of Australian immigration law. Partner visas can still be lodged onshore despite section 48, but they may fail unless a Schedule 3 waiver is properly argued and evidenced. In some situations, it may be more realistic to pursue an offshore Partner visa. In others, a carefully prepared Schedule 3 waiver submission can secure the onshore grant.
Getting this analysis right at the start can be the difference between securing lawful status and facing refusal with no viable alternative.
How Leyton Stone Law can help
We assess whether Schedule 3 applies to your circumstances, advise on whether waiver arguments are available, and prepare detailed submissions supported by evidence. Where an offshore application is more appropriate, we provide strategy on timing and logistics. Our focus is to ensure the Partner visa case is positioned for success from the outset.
Book a consult today. Australia-wide.
Disclaimer
The information in this article is general in nature and does not constitute legal advice. Immigration matters can be complex — you should seek advice from a registered migration agent or immigration lawyer about your individual circumstances before making any decision.