What Is Schedule 3?
Schedule 3 of the Migration Regulations sets out a group of criteria that apply to certain people applying for an onshore visa who are not currently holding a substantive visa — for example, people on bridging visas after overstaying a previous visa, or people who have had a previous visa cancelled.
The Schedule 3 criteria are an additional set of requirements on top of the usual visa criteria. If you are subject to Schedule 3 and cannot meet the criteria — or obtain a waiver of them — your application will be refused regardless of how strong the rest of your case is.
When Does Schedule 3 Apply?
Schedule 3 applies to applicants who:
- Are in Australia at the time of application
- Are not holding a substantive visa (e.g. they are on a bridging visa following an overstay, or an unlawful non-citizen)
- Are applying for a visa subclass that triggers Schedule 3 — most commonly partner visas
The key question is your visa status at the moment of lodgement. If you hold a valid substantive visa when you lodge, Schedule 3 generally doesn't apply.
What Schedule 3 Requires
The Schedule 3 criteria require, among other things, that the applicant:
- Entered Australia lawfully — not as an irregular maritime arrival
- Has not had a visa cancelled while in Australia since their last entry
- Has not had a protection visa application refused since their last entry (in certain circumstances)
Where these criteria are not met, the applicant needs a waiver of Schedule 3 for the application to proceed.
When a Schedule 3 Waiver Is Available
For some visa subclasses, the Schedule 3 criteria can be waived if the decision-maker is satisfied there are compelling reasons. What counts as compelling has been considered in many ART and court decisions. The bar is meaningful — the circumstances must be genuinely significant, not merely inconvenient.
Factors that have been accepted as compelling include:
- A genuine, long-term relationship with an Australian citizen or permanent resident — particularly where there are children of the relationship
- Australian citizen children whose best interests are directly affected by whether the parent can remain in Australia
- Significant health or safety considerations that make departure and offshore application unreasonable
- Evidence of strong, established ties to Australia built over many years
Wanting to stay because you prefer not to go back to your home country is not, by itself, compelling. The circumstances need to be specific and well-evidenced.
Why the Application Must Be Built Around the Waiver
If Schedule 3 applies to your situation and a waiver is required, the application needs to address the waiver from the start — not as an afterthought. Lodging without addressing Schedule 3 will result in refusal regardless of the other merits of the application.
We identify whether Schedule 3 applies at your initial consultation and, if it does, structure the entire application around the waiver requirements.