Schedule 3 Criteria
Extra Hurdles for Unlawful Applicants

Schedule 3 of the Migration Regulations 1994 contains criteria that apply to certain onshore visa applications — most commonly the Partner visa (subclass 820/801) — when the applicant does not hold a substantive visa at the time of application. A substantive visa is any visa other than a bridging visa. If you are unlawful (your visa has expired and you have no bridging visa) or are on a bridging visa, Schedule 3 applies to your partner visa application.

Schedule 3 is in addition to — not instead of — the standard partner visa requirements. Even if you meet all the ordinary requirements for a partner visa, Schedule 3 creates an additional layer that must also be addressed. The Schedule 3 criteria exist to discourage people from remaining in Australia unlawfully and then seeking to regularise their status by applying for a visa from inside.

The three Schedule 3 criteria that commonly apply to partner visa (subclass 820) applications are set out below. An applicant must either satisfy each criterion or obtain a waiver of it. Criteria 3001, 3003 and 3004 are all relevant — the specific criteria that apply depend on whether the applicant is an unlawful non-citizen or a bridging visa holder.

The compelling reasons discretion is real — the decision-maker genuinely has the power to waive Schedule 3 criteria where compelling reasons exist. However, the threshold is high and waivers are not routinely granted. The following factors are commonly considered compelling; the list is not exhaustive and individual circumstances always matter.

Evidence in a compelling reasons submission should be specific, documented, and tied directly to the factual circumstances that make departure disproportionately difficult. Generic statutory declarations about how much the couple loves each other are not sufficient.

In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court confirmed that when assessing whether compelling reasons exist to waive Schedule 3 criteria, the decision-maker must take into account all circumstances relevant to the question — including circumstances that arose after the visa application was lodged.

Before this decision, there was an argument that only circumstances that existed at the time of lodgement could be considered. Waensila rejected this view. This is practically significant: if your circumstances change during the processing period — for example, a child is born, a sponsor develops a medical condition, or caring responsibilities emerge — these developments can and should be raised in your compelling reasons submission.