Abstract: In Australian migration law, there is a provision that acts as a high wall, blocking countless onshore visa applicants. It is Schedule 3 of the Migration Regulations. Its most common "prey" is the onshore Partner Visa lodged by an applicant who has overstayed their previous visa (i.e., is 'unlawful'). This article deeply analyses the Schedule 3 legal trap, how it is triggered, and the only way out: the successful Waiver.
Schedule 3 is a set of additional criteria (including 3001, 3002, 3003, 3004, and 3005) within the Migration Regulations 1994. It targets applicants who lodge certain visas onshore (in Australia) but are not lawful at the time of application.
It is not an optional guideline; it is a mandatory legal standard. If an application is subject to Schedule 3, the applicant must satisfy these extra criteria. Otherwise, the visa must be refused—regardless of how perfect other aspects of the application (like the genuineness of a relationship) may be.
The criteria for triggering Schedule 3 are very clear, applying mainly to two groups:
Unlawful Non-Citizens
This is the most common scenario. The applicant's last substantive visa (e.g., Student, Visitor) has expired, and they have not applied for or been granted a bridging visa. In plain terms, they are "unlawful" or have "overstayed".
Holders of Certain Bridging Visas
Not all Bridging Visas are equal. If you only applied for a bridging visa after your substantive visa expired, you likely hold a Bridging Visa E (BVE). Lodging an onshore partner visa while holding a BVE (or BVC, BVD) will also trigger Schedule 3.
An Important Clarification: If you lodged a new valid application (like a partner visa) before your old visa expired, you would have been automatically granted a Bridging Visa A (BVA). In this situation, you were "lawful" at the time of application, and Schedule 3 is NOT triggered.
Let's use the most common example: the onshore Partner Visa (Subclass 820). When an unlawful applicant lodges an 820 visa, the case officer assesses two sets of criteria:
Schedule 3 acts as a "filter." If the case officer finds the applicant fails Schedule 3, they do not even need to assess the genuineness of the relationship. They can (and must) refuse the application on Schedule 3 grounds alone.
This is why Schedule 3 is called the "number one killer." Countless applicants spend thousands on visa fees and prepare volumes of relationship evidence, only to be refused on this technical, legal provision.
The law, while closing a door, has left a small window open. For Schedule 3, that window is the "Waiver" provision.
The law states that the Schedule 3 criteria can be waived IF the applicant can demonstrate that "compelling and compassionate circumstances (C&C)" exist for the grant of the visa.
This is the entire case. Your application shifts from proving "how much we love each other" to arguing "why our situation is so compelling and compassionate that the law should make an exception for us."
This is one of the most difficult concepts to argue in Australian migration law because the threshold is extremely high and relies heavily on objective evidence.
The Department and the AAT have clearly established that the following are insufficient to be "compelling and compassionate":
You must prove that if the waiver is not granted (and the applicant is forced to leave), it will cause significant and unusual negative consequences for an Australian citizen or permanent resident (usually the sponsor or a child).
The Best Interests of an Australian Citizen Child (The Strongest Factor)
This is the most powerful and common waiver argument. If the applicant and sponsor have a joint child who is an Australian citizen and resides in Australia, the core argument is that forcing the applicant (the child's mother or father) to leave would seriously harm the "Best Interests of the Child" (BIOC), which contravenes Australia's international obligations.
Significant Dependency of the Australian Sponsor
The sponsor (the Australian partner) has a serious medical condition (physical or mental) and is highly dependent on the applicant for care. This requires strong medical reports from specialists or psychologists to prove this dependency is unique and irreplaceable.
Other Rare Circumstances
For example, the applicant became unlawful due to extreme circumstances beyond their control (e.g., a medical emergency, gross negligence by a previous agent) AND the period of unlawfulness was very short. This is extremely difficult to argue.
A critical piece of legal knowledge is that at the AAT (Administrative Appeals Tribunal) stage, the Tribunal Member has the power to consider new facts and evidence up to the date of their decision.
This is vital in Schedule 3 cases.
This is why many Schedule 3 cases are "doomed to fail" at the Department level but have a chance to be resurrected at the AAT.
Schedule 3 is one of the most complex and high-risk areas of migration law. It is not a problem that can be solved by "writing a nice relationship statement." It requires a rigorous Waiver Submission based on legislation, case law, and policy.
Attempting to handle a Schedule 3 waiver yourself is like walking through a minefield without a map. A refusal at the Department level not only costs you the high visa application charge but also forces you into an even more expensive and lengthy AAT appeal.
The Immigix team are experts in complex migration cases, specializing in Schedule 3 waivers and AAT appeals. If you are already unlawful or holding a BVE, contact us immediately for a professional legal assessment before you lodge any application.