schedule 3 requirement

Schedule 3 requirement is an additional legal requirement visa applicants are required to meet if at the time of application they do not hold a substantive visa. This is imposed to make it more difficult for non-citizens to continue to apply for further visas to prolong their stay in Australia. 

What is a substantive visa? 

A substantive visa is any visa in Australia other than a bridging visa, criminal justice visa or an enforcement visa. For example, visitor visa, student visa, partner visa are all types of substantive visas. 

The Schedule 3 requirement is imposed to some visa types to ensure integrity of the Australian migration system and to prevent misuse. 

What is the Schedule 3 requirement for partner visas? 

In Australian immigration law, Schedule 3 requirement refers to the additional requirements under the Migration Regulations 1994 that must be met for certain partner visa applications to be considered when the applicant is applying onshore (from within Australia). 

For most people applying for the partner visa, the additional schedule 3 requirement is that they must lodge the partner visa application within 28 days of the substantive visa ceasing to be in effect. 

What happens if you have passed the 28 day grace period?

If you are unable to lodge the partner visa application within the 28 day grace period as required by the additional schedule 3 requirement, you may apply to waive this. The schedule 3 requirement can be waived if there exists ‘compelling reasons’.

What is compelling reason? 

The definition of the word “compelling” has been discussed in a number of judicial decisions, and essentially requires circumstances that have a special or strong persuasive force. 

In Paduano v MIMIA,[1] the courts held that the standards for ‘compelling reasons’ had the ordinary meaning, it required a demand or rouse strong attention, or that the reason must be sufficiently powerful ‘to force or to drive’ the decision maker in waiving the schedule 3 requirement. 

It is important to note that compelling reasons are assessed on a case-by-case basis, and the decision ultimately lies with the Department of Home Affairs. Each situation is evaluated individually, taking into account the unique circumstances presented by the applicant and their partner. Providing clear and compelling evidence to support the claim of compelling reasons is crucial in seeking a waiver or relaxation of Schedule 3 requirements.

Some examples may include:

  1. Severe illness or incapacity which has prevented the applicant from regularising their immigration status 

  2. Best interests of Australian family unit including an Australian minor child

It is important to note that Schedule 3 is a complex area of immigration law, and each case is assessed on its individual merits. Meeting the requirements of Schedule 3 can be challenging, and professional guidance from a qualified migration agent or lawyer with expertise in partner visa applications is highly recommended to navigate this process successfully.

If you wish to obtain professional advice, you should book a consultation with a lawyer who specializes in immigration law to find out more.  

Adele and her team have recently won a partner visa case involving schedule 3 requirement and family violence. You can read more about this successful case here: Winning a schedule 3 case involving relationship breakdown and family violence

[1] [2005] FCA 11.

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