When you and your loved one decide to make Australia home, applying for a Partner visa can be both an exciting and joyous time. However, the process can bring about some nerves if you don’t currently hold another substantive visa. Departmental regulation and policies outline that failing to satisfy the Schedule 3 criteria can result in a standard partner visa refusal.
WHAT IS THE SCHEDULE 3 CRITERIA?
Schedule 3 has long been a significant hurdle for many couples and prescribes an additional requirement for onshore partner visa applicants who are unlawful or hold a Bridging Visa when applying for the visa. If you are in Australia and do not have a valid visa when applying for the visa, you will need to meet the schedule 3 criteria unless the Department waives this requirement.
The Schedule 3 criteria:
- Deter temporary visa holders from remaining in Australia beyond their visa expiry.
- Encourage visa holders to take proactive measures to preserve their visa/ seek immigration assistance before their current substantive expires.
- Prevent non-citizens from benefiting by remaining in Australia unlawfully.
Schedule 3 Requirements
There are two main areas of consideration when reviewing Schedule 3 requirements.
- Firstly, you can be the holder of a Diplomatic visa or special purpose visa when you first entered Australia while still meeting Criteria 3002.
- Alternatively, you will need to meet the Schedule 3 criteria 3001, 3003, and 3004.
While there are exemptions available for some individuals, these will be taken on a case-by-case basis and require you to submit a compelling reason to be considered.
Let’s go through each criterion in detail.
Criteria 3001
To satisfy this criterion, you must have lodged your partner visa application within 28 days of your substantive or criminal justice visa ceasing or your unlawful entry into the country.
Criteria 3002
This criterion requires you to lodge the subsequent visa application within 12 months of holding a substantive or criminal justice visa or entering the country unlawfully.
Criteria 3003
Criteria 3003 applies to anyone who entered unlawfully or without a valid entry permit. Requirements to fulfill these criteria include but are not limited to, a compelling reason for the substantive visa and agreeing to all future conditions imposed by the visa.
Criteria 3004
Schedule 3 criterion 3004 applies where you are an unlawful entrant to Australia who has not been granted a substantive visa due factors beyond their control, or they would have been granted an entry permit if they had applied before their entry.
Criteria 3003 and 3004 have a wide selection of additional factors to consider, which we need to review if they apply to your situation when applying for a partner visa for Australia.
THE ABOVE CRITERIA DO NOT APPLY TO ME. CAN I APPLY FOR A PARTNER VISA?
If you are unable to satisfy the criteria, you will still be able to apply for the partner visa, even if you are unlawful or hold a bridging visa while in Australia. The Department recognises that individuals may have extraordinary circumstances over which they have no control and situations where there are compelling reasons for granting them a visa to remain in Australia.
HOW CAN I WAIVE THE REQUIREMENT?
To be granted a Partner Visa application, the Department must be satisfied with the “compelling reasons for not applying Schedule 3 criteria.”
What are compelling reasons?
The Migration Regulations do not define “compelling,” Therefore, the Department case officers will look at each case in its own merits to decide whether the criterion should be waived.
The Department relies on a common interpretation of the term “compelling reasons,” Department policy manuals, such as Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 from the Full Federal Court to expand on compelling circumstances are.
Department Manual
The Department Policy Manual (commonly known as PAM) outlines that the Schedule 3 waiver is not intended to give, or be perceived to provide, an unfair advantage to persons who:
- fail to comply with their visa conditions or
- deliberately manipulate their circumstances to give rise to compelling reasons or
- can leave Australia and apply for a Partner visa outside Australia
For example, an applicant who has remained unlawful for several years made little or no effort to regularize their status and claims compelling circumstances based on a long-term relationship with their sponsor will likely have their visa application refused. However, the Department may accept the above case if the applicant was unlawful due to factors outside their control – such as severe illness or incapacity.
Department policies outline that the below factors can be taken into consideration when assessing whether the applicant’s circumstances may be considered compelling. This includes:
- any history of non-compliance by the applicant
- the length of time the applicant has been unlawful
- the reasons why the applicant became unlawful
- the reasons why the applicant did not seek to regularize their status sooner
- what steps, if any, the applicant has taken to regularize their status (other than applying for a Partner visa)
No two situations are the same when applying for a partner visa and meeting the Schedule 3 requirements. Our team understands how complicated applying for a partner visa and understanding the Schedule 3 requirements can be, so we highly recommend booking a consultation to discuss your concerns and needs further. We are always here to help ensure that you are well prepared to secure a partner visa and remain in Australia with your partner indefinitely.
Author
Calvin Augustine is the founding solicitor of Augustine & Co. Immigration Lawyers. He graduated with Honors from the University of London law school, before being admitted to practice in Malaysia and Australia (admitted in SA, appears in all Victorian Courts and Tribunals, at trial and appellate levels).
