If you're applying for an onshore Partner visa (or certain other onshore visas) and you're not holding a substantive visa when you apply, Schedule 3 of the Migration Regulations 1994 can come into play. It catches a lot of people by surprise — often at exactly the moment they're trying to fix their situation. The good news is that Schedule 3 comes with a genuine waiver. The less good news is that it's discretionary, not automatic.
What Schedule 3 actually requires
Schedule 3 sets out extra criteria that apply to applicants who are unlawful, or who are applying after their last substantive visa ceased, at the time they lodge. In practice it most often comes up for onshore Partner visa applicants. There are two timing clauses — clause 3001 (apply within 28 days of becoming unlawful or losing your last visa) and clause 3002 (a 12-month version, which applies in narrower circumstances) — and then two substantive clauses, 3003 and 3004, which apply depending on when you last held a visa.
Clauses 3003 and 3004 aren't just about timing. Each requires the Minister to be satisfied of several things at once: that you weren't holding a substantive visa because of factors beyond your control; that there are compelling reasons for granting the visa; that you've substantially complied with your previous visa and bridging visa conditions; that you'd otherwise have qualified for the visa at the relevant time; and that you intend to comply with your visa conditions. All of these need to be met — it isn't a one-factor test.
The separate, broader waiver
Here's the part that surprises people: there's a second, broader escape route, and it doesn't live in Schedule 3 at all. For the Partner visa, clause 820.211(2)(d)(ii) says the applicant must satisfy Schedule 3 criteria 3001, 3003 and 3004 — "unless the Minister is satisfied that there are compelling reasons for not applying those criteria." In other words, the Minister can decide to disregard Schedule 3 altogether, rather than working through the multi-part test inside clauses 3003/3004 themselves. This is what's usually meant when people talk about "the Schedule 3 waiver" — it's a discretion built into the visa's own criteria, not a discretion inside Schedule 3.
What counts as "compelling reasons"
The Migration Regulations don't define "compelling reasons" — it's deliberately left to the decision-maker's judgement on the facts of each case. Secondary legal commentary (not the Department itself) points to factors that have been considered in past cases: the strength and length of the relationship, the best interests of any children involved, serious health issues, hardship that goes beyond the ordinary difficulty of being separated from a partner, and whether becoming unlawful was genuinely outside the applicant's control.
One point worth knowing: in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court confirmed that decision-makers aren't limited to the circumstances that existed when the application was lodged — circumstances that develop later, up until the decision is made, can also be taken into account. That's a meaningful difference from how some other criteria are assessed, and it's part of why a Schedule 3 waiver argument can sometimes be strengthened by updating the Department as circumstances change.
Why this isn't a DIY assessment
Because the waiver is discretionary and the "compelling reasons" test has no fixed checklist, how the story is put together — and what evidence backs it up — matters. Two applicants with similar circumstances can get different outcomes depending on how clearly the compelling reasons are demonstrated.
Where to from here
If you've become unlawful, or you're not sure whether Schedule 3 applies to your situation, get in touch with our team before you lodge anything. We can help you work out whether a waiver argument is realistic and how to present it.
This article is general information only and isn't a substitute for individual advice. Migration law changes, and outcomes depend on individual circumstances — please contact us to discuss your situation.
About Rocket & Ash Immigration Law
At Rocket & Ash Immigration Law, we specialise in helping families, couples, and businesses navigate the complexities of Australian immigration law. Our expertise in visa applications ensures that you receive tailored advice and support throughout your immigration journey.
If you require assistance with your Schedule 3 Waiver or have any other immigration-related queries, our experienced team can help.
Please book a free 15-minute discussion with our team if you have further questions.
Written for Ivy Khine Su San, Solicitor LPN: 5514120
This article does not constitute legal advice or create an attorney-client relationship. For up-to-date information, please consult an immigration professional.
