The Schedule 3 criteria
Overview
Schedule 3 of the Migration Regulations 1994 (Cth) contains additional criteria that apply to persons who are applying for certain visas while they are an unlawful non-citizen in Australia — that is, they have no valid visa. Schedule 3 imposes restrictions on who can apply for certain temporary and permanent visas onshore while unlawful. In some cases, the Schedule 3 criteria can be waived where there are compelling reasons — typically, a compelling compassionate case.
Schedule 3 is relevant primarily to persons in the onshore partner visa context (Subclass 820/801) and other onshore applications where the applicant does not hold a substantive visa. The criteria act as a disincentive for persons to allow their visas to lapse and then seek to obtain a substantive visa while remaining unlawfully.
Legal basis
- Migration Regulations 1994, Schedule 3 — the criteria themselves, including cl 3001 (applicant must have been the holder of a substantive visa at some point), cl 3002 (applicant must have held certain visas within a specified period), and the waiver criterion (cl 3004)
- Schedule 2 visa clauses — the relevant primary criteria clauses for each affected visa subclass cross-reference Schedule 3 by requiring the applicant to satisfy Schedule 3 criteria or for the Schedule 3 criteria to have been waived
How it works
When Schedule 3 applies
Schedule 3 criteria are engaged when a person who is an unlawful non-citizen in Australia applies for a visa that requires the applicant to satisfy Schedule 3. This typically occurs when a person:
- Has allowed their substantive visa to expire without applying for a new one
- Has had their visa cancelled
- Has entered Australia unlawfully
Persons who hold a bridging visa (even a BVC) are not unlawful — the Schedule 3 issue arises only for persons without any lawful status.
The Schedule 3 criteria
The key Schedule 3 criteria require the applicant to demonstrate:
- Clause 3001: The applicant was the holder of a substantive visa at some point in time
- Clause 3002: The applicant held a particular type of substantive visa within a certain period before the application
- Clause 3003: A prescribed period has not elapsed since the last substantive visa was held
The specific criteria and time periods depend on the visa subclass applied for.
The waiver (cl 3004)
Schedule 3 criteria may be waived if the decision-maker is satisfied that there are "compelling reasons" for the waiver. Whether there are compelling reasons is assessed on the specific circumstances of the case. Factors that may constitute compelling reasons include:
- Long-standing relationship with an Australian citizen/permanent resident
- Australian citizen children whose welfare depends on the applicant's presence
- Unique personal circumstances making departure from Australia particularly harsh
The waiver is a matter of judgment for the decision-maker. Failure to meet Schedule 3 criteria without a waiver is fatal to the visa application.
Practical implications
The Schedule 3 criteria act as a significant barrier to onshore visa applications by persons who have become unlawful. Persons in relationships with Australian citizens or permanent residents who are unlawful must address the Schedule 3 issue before their substantive partner visa application can succeed. The usual approach is either to demonstrate satisfaction of the criteria or to argue for a waiver on compelling compassionate grounds.