Originally published: October 2021 | Last reviewed and updated: June 2026
Applying for an onshore Partner visa (Subclass 820/801) in Australia is straightforward if you hold a valid substantive visa at the time of lodgement — such as a student visa, visitor visa, or skilled visa. However, if your substantive visa has expired and you are on a Bridging Visa, or if you have been unlawful in Australia, an additional set of requirements applies: Schedule 3 of the Migration Regulations 1994 (Cth).
Failing to satisfy Schedule 3 — or failing to demonstrate compelling reasons for a waiver — will result in refusal of the Partner visa application. This applies even where the relationship is genuine and the application is otherwise complete.
Understanding whether Schedule 3 applies to your situation, and what you need to do about it, is one of the most important steps before lodging an onshore Partner visa application.
For personalised advice on your Schedule 3 circumstances, book a consultation with Augustine and Co. See also our partner visas service page for a full overview of the Partner visa pathway.
What Is Schedule 3?
Schedule 3 of the Migration Regulations 1994 (Cth) prescribes additional requirements for onshore Partner visa applicants who do not hold a substantive visa at the time of lodgement. A substantive visa is any visa other than a Bridging Visa, criminal justice visa, or enforcement visa.
Schedule 3 is therefore engaged when:
Your substantive visa (student, visitor, skilled, etc.) has expired and you are currently on a Bridging Visa
Your visa was refused or cancelled onshore and you are holding a Bridging Visa pending review
You entered Australia without a valid visa (unlawful non-citizen)
Important exception — Subclass 300 holders: Former Prospective Marriage Visa (Subclass 300) holders who have married their sponsor do not hold a substantive visa when lodging the Subclass 820. These applicants have a separate legislative exemption from Schedule 3 and are not required to satisfy Criteria 3001, 3003, or 3004.
The three purposes of Schedule 3 remain as stated in the existing blog and are accurate — retain the existing dot points on deterring overstays, encouraging proactive action, and preventing unlawful benefit.
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
Criteria 3002 applies exclusively to applicants who held a Diplomatic visa (Subclass 995) or a Special Purpose visa when they entered Australia. If this applies to you, satisfying Criteria 3002 is sufficient — you are not required to satisfy Criteria 3001, 3003, or 3004.
The vast majority of onshore Partner visa applicants are not Diplomatic or Special Purpose visa holders. If you entered Australia on a tourist visa, student visa, working holiday visa, or any other standard visa, Criteria 3002 does not apply to you — you must instead satisfy Criteria 3001, 3003, and 3004, or demonstrate compelling reasons for a waiver.
Criteria 3003
Criteria 3003 applies to applicants who, on or before 1 September 1994, entered Australia unlawfully or without a valid entry permit. To satisfy Criteria 3003, the applicant must demonstrate all of the following:
They became an unlawful entrant due to factors beyond their control
There are compelling reasons for granting the Partner visa
They have substantially complied with all conditions of any visa they held (including Bridging Visas)
They would have been entitled to be granted a visa had they applied before becoming unlawful
They intend to comply with all conditions of the visa if granted
Their last visa was not subject to a condition preventing a further visa being granted while in Australia
Criteria 3004
Criteria 3004 mirrors Criteria 3003 but applies to applicants who, after 1 September 1994, ceased to hold a substantive visa or entered Australia unlawfully. The requirements are identical to those of Criteria 3003 listed above.
In practice, Criteria 3004 is the most commonly engaged Schedule 3 criterion for current Partner visa applicants, as it applies to the majority of people who have overstayed or had a visa refused in Australia since 1994.
What if I cannot satisfy the Schedule 3 criteria?
If you are unable to satisfy Criteria 3001, 3003, and 3004 — for example, because you are well outside the 28-day window for Criteria 3001 — you can still apply for the Subclass 820 Partner visa. The Department has the power to waive the Schedule 3 criteria if it is satisfied that there are compelling reasons for not applying them.
This is known as a Schedule 3 waiver. It is not automatic. You must actively request the waiver and provide detailed evidence and legal submissions to support it. The waiver is assessed on a case-by-case basis. A genuine relationship alone is not sufficient — you must demonstrate circumstances that go beyond ordinary hardship from separation.
How to obtain a Schedule 3 waiver
To be granted a Partner Visa application, the Department must be satisfied with the “compelling reasons for not applying Schedule 3 criteria.”
What Evidence You Need for a Schedule 3 Waiver
A successful Schedule 3 waiver requires more than a written request — it needs a comprehensive evidence bundle demonstrating your compelling circumstances. Based on our experience preparing successful Schedule 3 waivers, the Department typically expects to see:
For Australian citizen or permanent resident children (strongest factor):
- Birth certificates showing the applicant as parent
- School enrolment records and reports
- Evidence of the applicant’s role in day-to-day care
- Statements from teachers, doctors, or family members
For sponsor’s medical dependency:
- Specialist medical reports and diagnoses
- Prescription records and treatment plans
- Psychological reports where mental health is a factor
- Statements from treating practitioners on the applicant’s role in care
For circumstances beyond the applicant’s control:
- Medical records covering the period of unlawful stay
- Evidence of psychological or mental health crises
- Documentation of the events that led to visa expiry
For steps taken to regularise status:
- Timeline of contact with the Department
- Prior visa applications lodged
- Legal advice sought during the unlawful period
Supporting documentation:
- Detailed statutory declarations from the applicant, sponsor, and third parties
- Country of origin information where safety is a concern
- Financial evidence showing the impact of separation
- Character references
Every Schedule 3 waiver application should be accompanied by a comprehensive written legal submission that ties the evidence to the specific compelling reasons being argued. A generic covering letter is rarely sufficient.
What are compelling reasons?
The Migration Regulations do not define “compelling reasons.” Based on Departmental policy and case law including Waensila, the following circumstances have been recognised as potentially compelling:
Strong compelling reasons (most likely to succeed):
The applicant has an Australian citizen or permanent resident child — this is consistently treated as a strong compassionate reason, particularly where the child is dependent on the applicant’s care
The Australian sponsor has a serious, documented medical or psychological condition and is dependent on the applicant for care — supported by medical evidence and specialist reports
Moderate factors (to be considered in combination):
Long duration of the relationship and significant investment in life in Australia
The applicant became unlawful due to circumstances genuinely outside their control (severe illness, incapacity, mental health crisis)
Significant hardship or disruption to dependent children if the applicant were required to depart
Evidence of steps taken to regularise status once the applicant became aware of their situation
Factors that are generally NOT sufficient alone:
Emotional hardship from separation — this is common to all offshore Partner visa applications and is not of itself compelling
A long-term relationship without additional factors
Financial hardship from needing to travel offshore to apply
For a detailed case study of how Augustine and Co. successfully secured a Partner visa for an unlawful non-citizen using Schedule 3 compelling reasons submissions, see our Unlawful to Lawful Permanent Resident case study
The key judicial authority on compelling reasons is Waensila v Minister for Immigration and Border Protection FCAFC 32, a Full Federal Court decision that confirmed decision-makers must consider all of the applicant’s circumstances up to the time of decision — not just circumstances at the time of application. This is significant because it means that developments after lodgement (such as the birth of a child or deterioration in a sponsor’s health) can and should be taken into account in the waiver assessment.
Frequently Asked Questions
Q. When does Schedule 3 apply to my onshore Partner visa application?
Schedule 3 applies when you do not hold a substantive visa at the time of lodging your Subclass 820 Partner visa application. This includes situations where your previous visa has expired and you are on a Bridging Visa, your visa was refused or cancelled onshore, or you entered Australia without a valid visa.
Q. Does Schedule 3 apply if I am on a Bridging Visa?
Yes. A Bridging Visa is not a substantive visa. If you are on a Bridging Visa when you lodge your Subclass 820 application, Schedule 3 will apply and you will need to satisfy Criteria 3001, 3003, and 3004, or request a compelling reasons waiver.
Q. Does Schedule 3 apply to former Subclass 300 (Prospective Marriage Visa) holders?
No. Former Prospective Marriage Visa holders who have married their sponsor and are lodging the Subclass 820 have a specific legislative exemption from Schedule 3. They do not need to satisfy the Schedule 3 criteria.
Q. What is Criteria 3001 and how does it work?
Criteria 3001 requires that the Partner visa application was lodged within 28 days of the applicant’s substantive visa ceasing. In practice, most applicants subject to Schedule 3 are outside this 28-day window, which means they must rely on the compelling reasons waiver to have their application considered.
Q. What are compelling reasons for a Schedule 3 waiver?
“Compelling reasons” are not defined in the Migration Regulations. The Full Federal Court in Waensila FCAFC 32 confirmed that all circumstances up to the date of decision must be considered. The strongest compelling reasons are having an Australian citizen child and having a sponsor with a serious medical condition and dependency on the applicant. A genuine relationship and emotional hardship from separation are generally not sufficient on their own.
Q. Can I still get a Partner visa if I have been unlawful in Australia for several years?
Potentially yes, but only if you can demonstrate compelling reasons for the waiver. A long period of unlawful stay combined with a failure to take steps to regularise your status will weigh against you. However, if there are genuine compelling circumstances — such as Australian children, a dependent sponsor, or factors genuinely outside your control — the Department may still grant the visa. Legal advice before lodgement is strongly recommended. See our Unlawful to Lawful Permanent Resident case study for a real example.
Q. Does having a genuine partner relationship automatically mean I will get a Schedule 3 waiver?
No. A genuine relationship is a necessary but not sufficient condition for the waiver. The Department will grant the waiver only where there are compelling reasons that go beyond the ordinary hardship of separation that is common to all Partner visa applications.
Q. What happens if my Schedule 3 waiver is refused?
If your Schedule 3 waiver is refused, the entire Partner visa application will typically be refused. You have 28 days from the date of the refusal decision to lodge an application for review with the Administrative Review Tribunal (ART). The ART will conduct a fresh assessment of your case, including any new evidence or developments in your circumstances since the original decision — the Waensila principle applies at review stage as well. In limited circumstances involving a legal error, further judicial review may be available in the Federal Circuit and Family Court. Given the tight timeframes and the complexity of ART submissions, legal advice should be obtained immediately following any refusal.
Conclusion
Schedule 3 is one of the most technically demanding aspects of the onshore Partner visa process. Whether you satisfy the criteria, need to argue a compelling reasons waiver, or fall into one of the exemptions, the quality of the legal submissions and supporting evidence you put before the Department is critical.
Augustine and Co. has extensive experience preparing Schedule 3 waiver submissions and advising applicants on their options before lodgement. Acting before you lodge — rather than after a refusal — significantly improves your prospects. Book a consultation with our partner visa team to discuss your situation.
You may also find these related resources useful:
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).
