Schedule 3 of the Migration Regulations 1994 is a criteria and also a provision that enables people to obtain an Australian visa. This provision usually applies to people who do not hold a substantive visa at the time of their visa application. Schedule 3 enables unlawful “non-citizens” to apply for an Australian visa on compassionate or highly compelling grounds, instead of having them deported and applying for an Australian visa offshore. 

‍

This criteria is very complex and has various facets and underlying complexities. However, it proves to be an extremely useful asset in certain circumstances. Let us take a deeper dive into Schedule 3. 

‍

Overview 

‍

As mentioned above, Schedule 3 can be utilized in the case of unlawful non-citizens who do not hold a valid visa or a bridging visa in Australia. This criterion helps them apply for an Australian visa onshore, aiming to help them successfully obtain a substantive visa. 

‍

Schedule 3 criteria are designed to encourage non-citizens who have compelling and legitimate reasons to remain in Australia to apply for a further visa. This will also discourage non-citizens residing in Australia beyond the period of effect of their substantive visa - thereby removing any possibility of non-citizens being able to benefit from anything by remaining in Australia. It also limits the population of non-citizens and unlawful people on Australian soil.

‍

Substantive Visa: A substantive visa is mentioned many times across various Australian visa categories. It is any visa that allows the visa holder to remain temporarily in Australia other than a bridging visa or a criminal justice or enforcement visa. 

‍

Compassionate and Compelling Grounds: The Australian government has not provided standard criteria for compassionate and compelling grounds, as officers in charge of such cases have to make a decision based on each case’s unique circumstances. However, an important factor for compassionate and compelling grounds is the person’s relation to an Australian citizen or permanent resident - as an individual or a business entity. 

‍

The Core Criteria of Schedule 3

‍

There are 4 core criteria of Schedule 3; Criterion 3001, 3002, 3003 and 3004.

‍

Criterion 3001: The subsequent visa application must be lodged by the applicant within 28 days of either their substantive visa or criminal justice visa ceasing, or from when they entered Australia unlawfully. 

‍

Criterion 3002: The subsequent visa application must be lodged by the applicant within 12 months of them ceasing to hold their substantive visa or criminal justice visa or from when they entered Australia unlawfully. 

‍

Criterion 3003: This only applies if the applicant entered Australia unlawfully or did not hold a valid entry permit. If the applicant falls under this category, they will have to fulfil certain requirements including but not limited to:

‍

• The reason they became the holder of a non-substantive visa or are an unlawful non-citizen was beyond their control; 
• The Minister believes that there are certain compelling reasons for the grant of the person’s substantive visa;
• They would have been eligible for an entry permit if they had applied before becoming an unlawful entrant; 
• They agree to comply with all future conditions imposed on their substantive visa 

‍

Criterion 3004: This applies if the applicant entered Australia unlawfully and has not subsequently been granted a substantive visa. If the applicant falls under this category, they will have to fulfil certain requirements including but not limited to:

‍

• The reason they became the holder of a non-substantive visa or are an unlawful non-citizen was beyond their control; 
• The Minister believes that there are certain compelling reasons for the grant of the person’s substantive visa;
• They complied with the conditions imposed on their previous non-substantive visa or entry permit; 
• They would have been eligible for a Partner Visa (Subclass 820) at the time they became an unlawful non-citizen or ceased to hold a non-substantive visa; and 
• They agree to comply with all future conditions imposed on their substantive visa 

‍

An Overview of s48 

‍

Due to Migration Act s48 and its assessment criteria, a Partner Visa is the viable option for non-citizens and unlawful people to reapply for a visa. s48 enforces limitations on a person whose visa has been refused or cancelled while they are in Australia. It also prevents them from applying for a different visa or repeatedly applying for a visa in Australia. 

‍

s48 applies to a person who:

‍

• Is residing in Australia
• Has a substantive visa refused or cancelled, and 
• Does not currently hold a substantive visa 

‍

Certain visas are exempted from s48, which applicants can apply to. These exceptions include the following:

‍

• Partner visas;
• Subclass 444 Visa (for New Zealand Citizens);
• Child visas (residency);
• Border visas (temporary);
• Medical treatment visas;
• Resolution of Status visas (temporary and permanent);
• Territorial asylum visas (residence);
• Protection visas 
• Bridging visas 

‍

It is important to note that if the applicant makes a second visa application which is denied, they may not be able to apply for another visa again. 

‍

Schedule 3 and Partner Visa 

‍

As mentioned above, Partner Visa is the most sought-after option regarding Schedule 3 requirements. 

‍

This enables applicants opting for a Partner Visa to regularise their status in Australia if compelling reasons apply to their case. Regularisation means that a non-citizen will effectively be converting their status in Australia as a lawful citizen. The applicant’s case will be tried as per the criteria established for Schedule 3. 

‍

Applicants will have to apply for their visa under a specific time limit (Criterion 3001). Criterion 3001, 3003 and 3004 (in most cases) must be satisfied by the applicant in order to obtain their Partner Visa. there may be exemptions if the Minister is satisfied that there are compelling reasons for not applying the aforementioned criteria. 

‍

Applicants who do not hold a substantive visa must meet any of the following requirements to qualify for an onshore Partner Visa:

‍

• They entered Australia as the holder of Subclass 995 (Diplomatic) Visa or as a Special Purpose Visa holder, met specified requirements and satisfied Schedule 3 Criterion 3002; or
• They satisfy Schedule 3 Criterion 3001, 3003 and 3003 unless the Minister is satisfied that there are compelling reasons for not applying those criteria

‍

Schedule 3 Waiver 

‍

Applicants can request the Department of Home Affairs (DHA) for a Schedule 3 waiver. In order for a waiver, the DHA will look into the applicant’s case to find any relevant and compelling reasons for them not to apply the criteria. Compelling reasons can occur at any time after the date of the application, right up till a decision is made.

‍

While there are not any strict guidelines as to what may constitute a compelling situation, the DHA released a statement that would guide officers and Ministers in their decision-making process. 

‍

The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case-by-case basis.

‍

In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:

‍

• Fail to comply with their visa conditions or
• Deliberately manipulate their circumstances to give rise to compelling reasons or
• Can leave Australia and apply for a Partner visa outside Australia

‍

Getting a waiver is not easy, as the DHA will take a number of factors into consideration, on whether an applicant’s individual circumstances make the eligible for a waiver. Some of the factors that will be taken into consideration include:

‍

• The reasons why they are an unlawful non-citizen; 
• The reasons why they did not try to obtain a valid Australia visa to regularise their visa status;
• The steps they took previously to regularise their visa status or obtain a visa;
•  Their visa history including any non-compliance;
• The period during which they have been an unlawful non-citizen 
• Any history of the applicant’s non-compliance

‍

For applicants seeking a waiver under their Partner Visa application, additional factors will be taken into consideration such as:

‍

• The applicant and their partner have an Australian child; 
• The partner (an Australian citizen or permanent resident) will suffer if the applicant is not granted the substantive visa (e.g. ill-health, mental health issues, family health issues, significant financial issues, etc); 
• Circumstances which are beyond the applicant’s control (e.g. serious illness); 
• The applicant cannot return to their home country for a legitimate reason (e.g. fear of persecution, impending conflict, a situation of danger); or
• The applicant’s partner cannot move to the applicant’s home country for legitimate reasons (e.g. the partner cannot obtain a visa, they cannot speak the local language, they cannot gain employment/earn a living)

‍

Schedule 3 Criteria Unsatisfied? 

‍

In the case that an applicant does not meet the Schedule 3 criteria, then unfortunately, their visa will be refused. A visa refusal could potentially result in:

‍

• Loss of the application fees (non-fundable)
• The applicant is barred from applying for another visa onshore 
• Difficulty in obtaining approval for future applications (as visa refusals are included in an applicant’s record) 

‍

In these cases, there may be certain options for applicants who wish to reapply for a visa. They may have to leave Australia and apply for a visa offshore. They may appeal the decision by reaching out to the Administrative Appeals Tribunal. Further options may include appealing to a court for a judicial review of the decision or applying to the Minister personally for intervention in the applicant’s case.

‍

Disclaimer: Kindly note that the information provided here does not constitute legal advice. This must solely be regarded as content that provides general immigration information and is not a substitute for professional legal advice that occurs between an immigration lawyer and a client. 

Path Migration strongly recommends readers to contact certified immigration lawyers for a holistic overview of the Australia immigration system and a detailed analysis of each case.