Schedule 3 Waivers - For Onshore Applicants without a substantive visa

Overcome Schedule 3 Barriers Through Compelling and Compassionate Grounds

Understanding Schedule 3 Criteria & Waivers

Schedule 3 criteria apply to individuals in Australia without a substantive visa and wish to apply for a substantive visa onshore. Typically, Schedule 3 regulations aim to:

Encourage timely visa applications from eligible individuals who have lawful status.
Prevent applicants with an unlawful status from benefiting from prolonged onshore stays.
Promote compliance with Australia’s migration laws and prevent exploitation of system loopholes.

Applicants facing the Schedule 3 barrier must demonstrate "compelling and compassionate reasons" to justify the waiver of this restriction.

Who Needs to Consider a Schedule 3 Waiver?

A Schedule 3 waiver is essential for individuals who find themselves in Australia without a substantive visa and wish to apply for certain onshore visas. Typically, this applies to those whose visas have expired or were cancelled, making them either unlawful non-citizens or holders of bridging visas such as Bridging Visa A, B, C, or E.

The most common situation where a Schedule 3 waiver is needed is in partner visa applications, where applicants seek to stay with their Australian citizen or permanent resident partner despite their unlawful status.

The waiver allows these applicants to demonstrate compelling and compassionate reasons why they should be granted the visa onshore, despite not holding a substantive visa. Common scenarios include long-term relationships with significant ties to Australia, children who are Australian citizens or permanent residents, or situations where removal from Australia would cause severe hardship. Other visa subclasses that may require a Schedule 3 waiver include certain skilled visas or family visas, depending on individual circumstances and compliance history.

Criteria Under Schedule 3

Criterion 3001

This criterion requires that the applicant must have lodged their visa application within 28 days of becoming an unlawful non-citizen or ceasing to hold a substantive visa. If more than 28 days have passed, compelling reasons must be provided.

Criterion 3002

Requires that the applicant is not subject to any exclusion periods or deportation history that would preclude visa eligibility.

Criterion 3003

For applicants who became unlawful before 1 September 1994, they must demonstrate that the unlawful status arose due to factors beyond their control. They must also show significant compliance with prior visa conditions.

Criterion 3004

For applicants who became unlawful or entered Australia unlawfully after 1 September 1994, this criterion demands the same as Criterion 3003: proof of factors beyond their control leading to unlawful status, adherence to previous visa conditions, and compelling reasons for visa consideration.

Criterion 3005

This condition applies to applicants already granted a visa by meeting Schedule 3 criteria, limiting their eligibility for further applications on the same basis.

Schedule 3 Waiver - Compelling and Compassionate Reasons

Applicants must present strong, well-documented reasons that meet the Department of Home Affairs’ standards for “compelling and compassionate” circumstances. Examples include, but are not limited to:

Family Separation: Where the applicant’s departure would result in severe emotional, psychological, or financial hardship to Australian partners or children.
Health Issues: Evidence that a medical condition affecting the applicant or family members would be exacerbated if the applicant were required to leave.
Unique Circumstances: Unforeseen situations, such as crises or legal barriers in the applicant’s home country, may also support a waiver request.

Demonstrating Compliance and Preparing a Strong Submission

To enhance the likelihood of waiver success, a detailed submission must be provided. This submission should include:

A Personal Statement: Clearly outlining the applicant’s situation, factors leading to non-compliance, and their compelling reasons for remaining in Australia.
Supporting Documents: Letters of support from family, medical reports, evidence of community ties, and other corroborating documents are crucial.
Evidence of Genuine Intentions: Documentation demonstrating compliance with visa conditions, community integration, and genuine relationship ties (for partner visas) can bolster an applicant’s case.
Legal Representation: Engaging us to make sure an accurate and professional application process, reducing risk of refusal.

Practical Assessment Considerations

The Department’s decision to grant a Schedule 3 waiver involves evaluating:

The applicant’s visa compliance history and reasons for any breaches.
The potential impact of their departure on family, employment, and community ties.
The nature and timing of any unlawful status, focusing on whether it resulted from factors beyond their control.

Navigating the Waiver Process

1. When and How to Request a Waiver:
Waiver requests are typically lodged alongside substantive visa applications. Early and comprehensive preparation is key, as the Department thoroughly reviews all evidence and factors.

2. Evidence and Ongoing Updates:
Applicants must maintain proactive communication with the Department and submit any additional evidence promptly if their circumstances change.

Your Questions Answered

What is a Schedule 3 waiver?

A Schedule 3 waiver allows individuals who are in Australia without a substantive visa to apply for certain onshore visas by demonstrating compelling and compassionate reasons. This is often used in partner visa applications to avoid the need to leave Australia.

Who typically needs a Schedule 3 waiver?

Individuals who have become unlawful non-citizens (e.g., overstayed their visa) or are on Bridging Visas A, B, C, or E and wish to apply for an onshore visa, such as a partner visa, often require a Schedule 3 waiver.

Why is the Schedule 3 waiver commonly used for partner visa applications?

Many people who wish to remain in Australia with their Australian citizen or permanent resident partner after becoming unlawful or having a visa cancelled apply for the waiver. Without the waiver, they may be forced to leave Australia to lodge their visa application offshore.

What criteria must be met to obtain a Schedule 3 waiver?

Applicants must demonstrate compelling and compassionate reasons for not holding a substantive visa, such as the hardship they and their Australian partner would experience if separated, medical or family circumstances, or other exceptional situations that led to their current visa status.

What does “compelling and compassionate” mean in the context of a Schedule 3 waiver?

“Compelling and compassionate” reasons are circumstances beyond the applicant’s control that would cause significant hardship if their visa application were refused. Examples include family separation, serious health issues, financial dependence, or other unique hardships.

How do I request a Schedule 3 waiver?

A Schedule 3 waiver request must be submitted with your onshore visa application. It should include substantial documentation and evidence demonstrating the compelling and compassionate reasons why you should be granted the visa despite not holding a substantive visa. It is advised to consult professionals to assist you with the process to maximise your chances of success.

Is there a deadline to apply for a Schedule 3 waiver?

The waiver must be requested at the time of lodging your visa application. If the Department of Home Affairs raises a concern about Schedule 3 requirements during processing, you will typically have limited time to submit additional information or evidence.

Can I still apply for a waiver if I have been unlawful for an extended period?

Yes, although long periods of unlawful status can make the process more challenging. The applicant will need to provide strong evidence and compelling reasons to justify why they did not apply for a substantive visa earlier.

Does having dependent children in Australia help my Schedule 3 waiver application?

Yes, having dependent children who are Australian citizens or permanent residents is often considered a compelling reason, as separation may have severe impacts on the family unit.

What happens if my Schedule 3 waiver request is refused?

If your Schedule 3 waiver is refused, your visa application may also be refused. You may have the option to apply for a review of the decision through the ART or seek judicial review depending on the circumstances.

Can I apply for a new visa after being refused due to Schedule 3?

Depending on your visa history, you may face restrictions on lodging further visa applications while in Australia. Consulting us can help clarify your options.

Is there a cost for applying for a Schedule 3 waiver?

There is no separate fee for the Schedule 3 waiver itself, but fees apply for the primary visa application it is attached to.

Are there specific situations where Schedule 3 criteria can be waived without a formal request?

No, Schedule 3 criteria are applied at the discretion of the Department of Home Affairs and typically require a formal waiver request supported by compelling evidence.

What role does a registered migration agent play in a Schedule 3 waiver application?

A registered migration agent can help gather and present evidence, build a compelling case for a waiver, and guide you through the application process, increasing your chances of success.