Schedule 3 Criteria Australia

What Are Schedule 3 Criteria?

Schedule 3 does not create a separate visa.

Instead, it sets out additional criteria that may need to be satisfied by certain applicants who do not hold a substantive visa.

For example, the Partner visa subclass 820 regulations currently provide that an applicant who is not the holder of a substantive visa may need to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

The particular Schedule 3 criteria that apply depend on the visa subclass.

Who May Be Affected by Schedule 3?

Schedule 3 can become relevant where a person:

• Is in Australia;
• Does not hold a substantive visa;
• Has allowed a substantive visa to expire;
• Has ceased to hold a substantive visa;
• Is holding a bridging visa in circumstances covered by the relevant visa criteria; or
• Entered Australia unlawfully and has not subsequently been granted a substantive visa.

However, not every person without a substantive visa automatically fails Schedule 3.

The applicable criteria must be checked against the particular visa subclass and the applicant's circumstances.

What Is a Substantive Visa?

A substantive visa is generally an Australian visa other than a:

• Bridging visa;
• Criminal justice visa; or
• Enforcement visa.

Therefore, a person who holds only a bridging visa may still be treated as not holding a substantive visa for the purposes of relevant Schedule 3 provisions.

This distinction is particularly important when assessing an onshore visa application.

Schedule 3 and Partner Visa Applications

Schedule 3 is particularly well known in relation to Partner visa subclass 820 applications.

The current regulations provide that where a Partner visa applicant is not the holder of a substantive visa, they may need to satisfy:

• Schedule 3 criterion 3001;
• Schedule 3 criterion 3003; and
• Schedule 3 criterion 3004,

unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

This means that a person who has overstayed their visa cannot simply assume that being married to or in a de facto relationship with an Australian citizen or permanent resident automatically allows an onshore Partner visa application to proceed.

The applicant's immigration history needs to be examined carefully.

Schedule 3 Criterion 3001

Criterion 3001 generally concerns the timing of the visa application following a relevant notification or decision.

The operation of criterion 3001 depends on the circumstances specified in the Regulations, including the relevant date associated with the applicant's previous visa or immigration decision.

The criterion can create a time-sensitive requirement for making the visa application.

Because the calculation can depend on the particular circumstances, applicants should not rely on a general assumption about when the period starts or ends.

Schedule 3 Criterion 3002

Criterion 3002 provides a specific 12-month application period in circumstances to which that criterion applies.

The current Regulations state that the application must be validly made within 12 months after the relevant day within the meaning of criterion 3001.

Criterion 3002 can apply to particular applicants, including certain people with specific historical immigration circumstances.

It is therefore important to determine which Schedule 3 criterion is actually specified by the visa subclass rather than assuming that every applicant is subject to the same requirements.

Schedule 3 Criterion 3003

Criterion 3003 deals with certain historical immigration circumstances involving people who were already in Australia without a substantive visa before the commencement of the modern visa framework.

It contains a number of specific requirements, including circumstances concerning:

• How the person became an illegal entrant or remained without a substantive visa;
• Factors beyond the person's control;
• Compelling reasons for granting the visa;
• Compliance with previous visa or bridging visa conditions;
• Whether the applicant would previously have been entitled to the relevant visa; and
• The applicant's intention to comply with visa conditions.

Because criterion 3003 concerns specific historical circumstances, it is not a general criterion that applies to every current visa overstayer.

Schedule 3 Criterion 3004

Criterion 3004 is particularly important for many current onshore visa applications involving a person who has ceased to hold a substantive visa or entered Australia unlawfully.

The criterion can apply where a person:

• Ceased to hold a substantive or criminal justice visa; or
• Entered Australia unlawfully and has not subsequently been granted a substantive visa.

The Minister must then be satisfied about a range of matters, which can include:

• The circumstances in which the applicant ceased to hold the visa;
• Whether the situation was beyond the applicant's control;
• Whether there are compelling reasons for granting the visa;
• Compliance with applicable visa and bridging visa conditions;
• Whether the applicant satisfies the other criteria for the visa;
• Whether the applicant intends to comply with visa conditions.

The precise requirements depend on the wording of the applicable criterion and visa subclass.

What Are "Compelling Reasons"?

Some Schedule 3 provisions require the Minister to be satisfied that there are compelling reasons for granting the visa or for not applying particular Schedule 3 criteria.

"Compelling reasons" should not be treated as simply meaning that the applicant would prefer to remain in Australia.

The circumstances need to be assessed against the relevant visa criteria, migration history and applicable law.

Potentially relevant circumstances can include matters such as:

• Serious family circumstances;
• Significant circumstances affecting Australian family members;
• Circumstances affecting dependent children;
• Serious illness;
• Exceptional personal circumstances;
• Circumstances outside the applicant's control;
• Other evidence supporting the grant of the visa.

There is no automatic list of circumstances that guarantees a Schedule 3 waiver.

Factors Beyond the Applicant's Control

Some Schedule 3 criteria require consideration of whether the circumstances causing the applicant to lose their substantive visa were beyond their control.

This is different from simply making a mistake or failing to check a visa expiry date.

Where circumstances outside the applicant's control are relevant, supporting evidence is important.

Depending on the circumstances, evidence could include:

• Medical records;
• Hospital documentation;
• Evidence of serious family emergencies;
• Death certificates;
• Evidence of domestic or family circumstances;
• Government correspondence;
• Evidence of administrative or technical problems;
• Other independent documentation.

The evidence must be considered in the context of the specific Schedule 3 criterion.

Schedule 3 and Visa Overstayers

A person who remains in Australia after their visa expires may become an unlawful non-citizen unless another valid visa is in effect.

Being unlawful can create significant immigration consequences.

However, visa overstaying does not mean that every future onshore visa application is automatically impossible.

Schedule 3 and Partner Visa 820

Partner visa applicants who have overstayed should obtain professional advice before lodging a subclass 820 application.

For an applicant who does not hold a substantive visa, the current subclass 820 criteria specifically refer to Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying them.

This can create an additional layer of assessment beyond the ordinary Partner visa requirements.

The applicant must still satisfy the other Partner visa criteria, including the relevant relationship, sponsorship, health, character and other requirements.

Schedule 3 and Bridging Visas

Holding a bridging visa does not necessarily mean that Schedule 3 is irrelevant.

A bridging visa is generally not a substantive visa.

Therefore, depending on the particular visa subclass, a person holding only a bridging visa may still need to satisfy Schedule 3 requirements.

The applicant's complete visa history should be reviewed before lodging another application.

Schedule 3 and Section 48

Schedule 3 and Section 48 are different legal requirements, although they can arise in the same case.

Section 48

Section 48 of the Migration Act can restrict which visas a person without a substantive visa may apply for while they are in Australia following certain visa refusals or cancellations.

Schedule 3

Schedule 3 can impose additional criteria on certain visa applications made by people who are in Australia without a substantive visa.

Therefore, a person may need to consider both Section 48 and Schedule 3 before making an onshore visa application.

Meeting one does not automatically mean the other has been satisfied.

Schedule 3 and Re-entry Bans

A Schedule 3 issue should also be distinguished from a re-entry ban or exclusion period.

A re-entry ban can restrict a person's ability to obtain another visa for a specified period following certain circumstances, such as a lengthy overstay or visa cancellation.

Schedule 3, by contrast, concerns additional criteria that may apply to an onshore visa application.

A person can potentially have multiple immigration issues at the same time, so their entire immigration history should be assessed.

Schedule 3 and Previous Visa Conditions

Compliance with previous visa and bridging visa conditions can be important to Schedule 3 assessment.

Relevant issues may include:

• Working without permission;
• Breaching work restrictions;
• Breaching study conditions;
• Failing to comply with other visa conditions;
• Other immigration compliance issues.

The exact relevance of a previous breach depends on the applicable Schedule 3 criterion.

Applicants should provide an accurate account of their immigration history rather than attempting to omit previous breaches.

Schedule 3 Does Not Apply to Every Visa

One of the most common misunderstandings is that Schedule 3 automatically applies to every person who has overstayed.

That is incorrect.

Schedule 3 criteria are attached to particular visa subclasses through the Migration Regulations.

For example, the current subclass 820 Partner visa criteria expressly refer to Schedule 3 criteria for applicants who do not hold a substantive visa.

Other visa subclasses may have different requirements or may not require the same Schedule 3 criteria.

The visa subclass must therefore be checked before deciding whether Schedule 3 is relevant.

Schedule 3 Assessment

Before lodging an onshore visa application, it is useful to review:

1. Your current visa status;
2. Your last substantive visa;
3. The date your substantive visa ceased;
4. Any bridging visas held;
5. Your visa conditions;
6. Any visa breaches;
7. Your last entry to Australia;
8. Any previous visa refusals;
9. Any visa cancellations;
10. The visa subclass you want to apply for;
11. The Schedule 3 criteria attached to that visa;
12. Whether compelling circumstances exist;
13. Evidence supporting those circumstances.

This assessment can help identify potential problems before an application is lodged.

Documents That May Support a Schedule 3 Assessment

Depending on the circumstances, useful documents may include:

Immigration documents

• Passport;
• Visa grant notices;
• Visa refusal notices;
• Visa cancellation notices;
• Bridging visa grant notices;
• Department correspondence;
• VEVO records;
• Previous visa applications.

Personal circumstances

• Medical reports;
• Hospital records;
• Death certificates;
• Evidence of family circumstances;
• Evidence concerning dependent children;
• Evidence of significant hardship.

Relationship evidence

For family visa applications:

• Marriage certificate;
• Birth certificates;
• Evidence of shared residence;
• Joint financial documents;
• Relationship history;
• Evidence concerning children.

Compliance evidence

• Evidence explaining a visa breach;
• Employment records;
• Study records;
• Correspondence with the Department;
• Evidence demonstrating compliance with previous visa conditions.

What Happens If Schedule 3 Is Not Satisfied?

If the relevant Schedule 3 criteria are mandatory and the applicant cannot satisfy them, the visa application may not be able to be granted.

For some visa subclasses, however, the Regulations allow the Minister to consider whether there are compelling reasons for not applying specified Schedule 3 criteria.

This does not mean that every refusal can be overcome by providing a personal statement.

The applicant must address the relevant legal requirements and provide evidence supporting the circumstances relied upon.

Can Schedule 3 Be Waived?

There is no universal "Schedule 3 waiver."

The relevant visa criteria must be examined to determine whether the Minister has discretion not to apply particular Schedule 3 requirements.

For example, the current subclass 820 criteria state that an applicant who does not hold a substantive visa may need to satisfy criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

The availability and scope of this discretion depend on the specific visa subclass and the applicable legislation.

Schedule 3 vs Section 48 – Key Difference

Get Professional Help With Schedule 3

Schedule 3 matters can be complicated because the outcome may depend on the interaction between:

• Your previous visa;
• Your current visa status;
• Visa expiry;
• Bridging visas;
• Visa conditions;
• Previous refusals or cancellations;
• Section 48;
• Schedule 3;
• Your intended visa subclass;
• Your personal and family circumstances.

The Visa and Education Services Pty Ltd provides personalised Australian migration assistance through Registered Migration Agent Navneet Kaur (MARN 2318181).

We can assist with:

• Schedule 3 assessment;
• Partner visa applications;
• Visa overstay matters;
• Section 48 assessment;
• Visa refusal and cancellation history;
• Bridging visa circumstances;
• Compelling-circumstances submissions;
• Immigration history review;
• Onshore visa pathway assessment;
• Department correspondence.

If you have overstayed your visa or currently hold only a bridging visa, it is important to determine whether Schedule 3 applies before lodging another onshore visa application.

Contact us for a personalised assessment of your circumstances.

Important Disclaimer

Schedule 3 criteria are contained in the Migration Regulations 1994 and their application depends on the particular visa subclass and the applicant's circumstances. Migration legislation and regulations can change. This page provides general information only and does not constitute migration or legal advice.