Your Guide to Complex Partner Visas
Navigating the Australian partner visa process can be daunting, especially when dealing with Schedule 3 requirements. Our goal is to make this process as seamless and stress-free as possible for you.
Understanding Schedule 3
Schedule 3 of the Migration Regulations outlines certain criteria that must be met by applicants who are unlawfully in Australia or those who do not hold a substantive visa. These regulations are designed to ensure that applicants have valid and compelling reasons for remaining in Australia despite their visa status. It's important to understand that failure to meet Schedule 3 criteria can significantly impact your visa application. Our experienced legal team at K & D Lawyers specializes in assessing individual circumstances and crafting personalized strategies to address these regulatory challenges. We are here to guide you through each step, providing the expertise and support you need to achieve a successful outcome.
If you're applying for an onshore partner visa (Subclass 820) in Australia, it's crucial to understand Schedule 3 criteria. Schedule 3 applies to individuals who are either unlawful non-citizens or those not holding a substantive visa at the time of application.
What is Schedule 3?
Schedule 3 of the Migration Regulations 1994 sets specific criteria that must be met by individuals without a substantive visa at the time of their application. These criteria are designed to control the number of unlawful non-citizens in Australia.
Key Criteria
- Criterion 3001: You must lodge your visa application within 28 days of your substantive visa ceasing or when you entered Australia unlawfully.
- Criterion 3003: If you entered Australia unlawfully or didn't hold a valid entry permit, you must demonstrate that your circumstances were beyond your control and provide compelling reasons for the visa grant.
- Criterion 3004: This applies to those who entered unlawfully and have not since been granted a substantive visa. Similar to 3003, you must show compelling reasons and compliance with visa conditions.
Waiving Schedule 3
Meeting these requirements can be complex, but it's possible to request a waiver under certain compelling circumstances.
Can Schedule 3 Requirements Be Waived?
Yes, the Minister for Immigration can waive Schedule 3 criteria if there are compelling reasons. From our experience, there are various circumstances that may lead a case officer to consider waiving Schedule 3 requirements, including:
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The Birth of an Australian Citizen Child
If the couple has a child who is an Australian citizen, this can be a compelling reason for a waiver. -
Genuine Dependence of the Sponsor on the Visa Applicant
Situations where the sponsor relies heavily on the visa applicant due to health issues, mental health challenges, family health concerns, or significant financial reasons may be considered. The reliance must be exceptional and substantial to meet the waiver threshold. -
Inability to Return to the Visa Applicant’s Home Country
If the visa applicant and/or the sponsor cannot return to the applicant’s home country due to risks such as persecution, conflict, or other dangerous situations, this could be considered. -
Sponsor’s Inability to Relocate to the Applicant’s Home Country
If the sponsor is unable to move to the visa applicant’s home country due to factors such as visa restrictions, language barriers, or an inability to secure employment or sustain a living, this could serve as a reason for a waiver.
Each of these circumstances would require substantial evidence to prove their validity. Case officers will prioritise whether the visa applicant should return to their home country to apply for an offshore partner visa, so supporting documentation is critical to establish the necessity of a Schedule 3 waiver.
Consultation Booking
Dealing with Schedule 3 criteria can be challenging, but you don't have to do it alone. Our expert lawyers are here to guide you through every step of your partner visa application.
