Schedule 3 Criteria
What are the Schedule 3 Criteria for Partner Visas?
A non-citizen who does not hold a valid visa is generally barred from applying for most Australian visas onshore. However, they may be eligible to apply for a partner visa if they satisfy schedule 3 criteria, unless compelling reasons exist not to apply those criteria.
Schedule 3 criteria for Partner Visas are:
The visa application is made within 28 days after the last substantive visa held expired;
The visa applicant ceases to be a holder of a substantive visa because of factors beyond their control;
The visa applicant has complied substantially with the conditions that applied to their previous visas;
The visa applicant intends to comply with any conditions subject to their partner visa application.
Waiver of Schedule 3 Criteria
Definition of ‘compelling’ reasons
Reference can be made to the case of Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 which construed ‘compelling reasons’ to mean “circumstances which force or drive the decision-maker…to decide whether or not the jurisdictional fact exists for the exercise of the discretion…”.
Examples of compelling reasons for the waiver of Schedule 3 criteria can include, but not limited to:
The visa application has an Australian child;
The Australian partner will be deprived of substantial mental, financial or other support if the partner visa is not granted; or
Circumstances outside of the applicant’s control e.g. severe illness or incapacity to leave Australia
Key Legislation of Schedule 3 Criteria
For Partner Visas, clause 820.211(2)(d)(ii) is the relevant provision addressing Schedule 3 criteria:
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Criteria 3001 requires the partner visa application be validly made within 28 days after the expiry of the previous substantive visa held.
Criteria 3003 relates to applicants who were illegal entrants or holders of an invalid entry permit. The Minister must be satisfied that the applicant became an illegal entrant because of factors beyond their control; and there are compelling reasons for granting the visa; and the applicant has been/ intends to continue complying with visa conditions.
Criteria 3004 relates to applicants who entered Australia unlawfully and has not subsequently been granted a substantive visa. The minister must be satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control; and there are compelling reasons for granting the visa; and the applicant has been/ intends to continue complying with visa conditions.
Our experience with schedule 3 criteria
At Agape, we have experienced years of success in helping our clients successfully argue compelling reasons to waive the Schedule 3 criteria. Our most recent success story at the Administrative Appeal Tribunal (AAT) involved presenting the following arguments to the Tribunal:
· The Australian citizen had strong mental and financial dependence on the visa applicant;
· The departure of the visa applicant would cause severe disruption to the Australian citizen’s studies and career aspirations; and
· The visa applicant’s employment at an Australian business provided financial support to the couple.
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