Schedule 3 Waiver: What You Need to Know

If you are here to read up on the requirements for a Schedule 3 waiver, chances are you fall into one of these categories:

1. You have some visa experience and have started to have complications
2. You are in the early stages of researching Partner Visas and want to make sure you cover everything

No matter, where you’re at in your Partner Visa journey, this article is going to help you to understand what a Schedule 3 waiver is, if and when you need one, as well as the requirements for approval.

In a Nutshell…

Before I throw you in the deep end and we dive into all the complex consideration for the Schedule 3 waiver, you are probably asking what is Schedule 3? Consider this a mini law tutorial in Australian Migration.

The Migration Act (1958) and the Migration Regulations (1994) are the two main pieces of legislation that govern Australia’s immigration framework. The Migration Regulations is where all the different criteria for different visas are set out, and it is broken down into different “Schedules”.

If you’ve read my blog on bridging visas, you’ll know that they exist to bridge the gap between two different applications and keep you lawfully in Australia. Schedule 3 is essentially a set of rules and additional criteria that is imposed on certain visas and that applies to applicants who are unlawful or certain bridging visa holders. It is designed to:

• Encourage people to make arrangements to apply for a new visa before their current substantive visa expires
• Discourage people from remaining in Australia without a valid visa
• Prevent them from taking an unfair advantage of the benefits of remaining in Australia using our bridging visa system or manipulating the circumstances to become eligible for other visas without having to leave Australia or apply from offshore

The Partner Visa Schedule 3 criteria includes:

• Time limits for applying for a new visa
• A requirement that there is factors beyond your control that explain why you became unlawful or the holder of a bridging visa

If you don’t meet the Schedule 3 criteria then your visa will be refused. The exception to this is for certain visa subclasses that also have a provisions for a Schedule 3 waiver – such as a Partner Visa!

Partner Visa Schedule 3 Requirements

The good news is Schedule 3 and Schedule 3 waivers only apply in the context of an onshore Partner Visa application. If you are planning to submit an offshore Partner Visa application you don’t have to worry!

If you are planning to apply for a Partner Visa onshore, then you’ll need to be aware of the rules and Schedule 3 waiver requirements if you are unlawful or the holder of a bridging visa at the time you plan to apply for your Partner Visa.

The most common scenarios we see for people who need to factor in Partner Visa Schedule 3 requirements into their plans is either:

• An applicant who has been refused a visa for a different type of application and is holding a bridging visa whilst they wait for the outcome of an appeal or
• People who have overstayed their visa (knowingly or not)

Given the increasingly long processing times for visas, I’m also starting to see this issue needing to be addressed where a person holds a bridging visa and, due to a change in circumstance during the processing of this application, they either no longer meet the criteria or no longer wishes to proceed (e.g. a work sponsored visa is in process but the company goes into administration or student changes their mind about a course of study).

Help! I think Schedule 3 might apply to me!

If you’ve read the examples above and are starting to panic that the Schedule 3 rules might apply to you, it’s important to seek advice that is tailored to your unique circumstances so that an appropriate strategy can be put in place with a full assessment of the facts. This is something we cover in detail during our visa planning sessions so you know exactly what your options are and the risk factors involved.

In the context of Partner Visa Schedule 3 requirements, the main considerations are time limits on when you last held a substantive visa, whether or not you have substantially complied with the conditions of your previous visa, compelling circumstances, and that the reasons you don’t currently hold a substantive visa being beyond your control.

Some of these are subjective elements which means that a decision on whether or not you satisfy the Schedule 3 criteria will not necessarily be clear cut or beyond dispute. The case officer will be required to exercise their judgement and discretion assessing the circumstances against the policy and intention of the criteria as outlined above.

Failing Partner Visa Schedule 3 Criteria

Depending on how long it has been since you last held a substantive visa, some people will fail the Partner Visa Schedule 3 criteria based on the time limits alone. However, even in cases where you are still within the approved time limits, there are further additional and distinct requirements that must ALL be met.

My experience is most applicants will fall down on the requirement that they became an illegal entrant or a person without a substantive visa because of factors beyond their control.

The department are tough critics! They generally won’t accept any of the following reasons you either don’t hold a visa or are on a bridging visa:

• Claims you were unaware of your visa expiry or made a genuine mistake interpreting the period you were allowed to stay in Australia
• Your employer or other authorised representative told you they’d take care of things and missed the deadline to submit a new application
• You tried to lodge an application that was deemed invalid
• The processing times are too long which is why you are on a bridging visa and you’ve since changed your mind and want to apply for a Partner Visa instead

The other two most common are:

• Failing because you didn’t met the eligibility criteria for a Partner Visa on the last day you held a substantive visa
• Non compliance with past visa conditions and subsequent cancellation

Again, this is where a detailed assessment of your individual circumstances is required to determine the prospects of success. In cases where there is a high degree of risk due to the subjectivity, the options are changing strategy and considering lodgement of an offshore application or proceeding under the Schedule 3 waiver provisions.

How can I get a Schedule 3 Waiver?

If you do not meet the Partner Visa Schedule 3 criteria it is still possible to have your visa granted under a Schedule 3 waiver where the applicant can show ‘compelling reasons’ for not applying the criteria.

The waiver is by no means a ‘get out of jail free’ card. The intent of these provisions is only to allow people with genuinely compelling circumstances to regularise their status. As a general rule, the existence of a genuine relationship and the hardship of being separated from your partner during the processing of an application isn’t sufficient grounds for a Schedule 3 waiver. If you can leave Australia and apply for a Partner Visa offshore, that is what the department expects from you. These are the same circumstances being faced by the majority of Partner Visa applicants when applying from offshore so the bar is set higher.

What is considered compelling?

There is no specific list of what can count as ‘compelling’, each application is assessed on its individual merits. With the intent of the waiver provisions in mind, it is generally expected that the reason the you do not hold a substantive visa is because of factors beyond your control or otherwise prevented you from becoming lawful through means other than the Partner Visa application.

Examples of compelling circumstances may include but are not limited to: 

• A severe illness or medical issues
• Where there are Australian citizen children of the relationship
• Where there are maternity issues and departure from Australia could complicate matters
• Your departure could have a significant impact on the sponsors health or welfare or 
• Where there is war or violence in your home country that makes it unsafe to return and apply from there

Schedule 3 waivers are complicated, and success can be few and far between. If you need assistance with your Partner Visa journey and are worried about how these provisions might impact your prospects of success and plans for the future get in touch with our team for a confidential discussion where I will step you through everything that you need to consider as part of the application process.

IMPORTANT: Please note, this does not constitute Immigration advice. Always seek advice from a Registered Migration Agent before applying for an Australian Visa. Migration Law is constantly changing. This information is accurate only at the time of publication.