Please note that the information in this article about schedule 3 waiver is current as of the date of publication, DHA updates rules and regulations regularly. Please check the official updates before you make any decision or speak to an immigration lawyer for the latest information as laws and conditions change.
This article will discuss Schedule 3 waiver under Australian migration law. Before we get into the Schedule 3 criteria waiver, let's first look at the legal foundation of this requirement.
Migration Regulations 1994
In Australia, two main laws govern migration: Migration Regulations 1994 (Cth) and Migration Act 1958. How do these two differ?
Migration Act 1958 sets out the overall principles and powers for controlling immigration to Australia. It establishes the legal framework for who can enter and remain in the country, broad categories like "citizens", "permanent residents" and "unlawful non-citizens".
On the other hand, the Migration Regulations 1994 provides the details for the Migration Act. They set out the different types of visas (visitor visas, student visas, skilled migration visas, etc.).
Also, it outlines the specific requirements for each, including eligibility criteria, application process, and health checks. Also, the Regulations define the public interest criteria that guide valid visa decisions to ensure migration benefits Australia's economic, social, and security interests.
What are the Schedule 3 Criteria?
Under the Regulations, we have the Schedule 3 Criteria. Schedule 3 applies to people who are applying for certain visas in Australia. These people are no longer holders of a substantive visa.
A substantive visa is a visa that the Australian government grants to individuals who want to visit or stay in the country for a specific purpose. This can be for work, study, or family-related reasons. Examples of this visa are partner visa, work visa, student visa, or visitor visa.
Here's the rule under the Schedule 3 criteria:
- Within 28 days. If you lodge your visa
application within 28 days of your substantive visa expiring, you
must meet ALL of these:
- The reason you no longer hold a substantive visa is not your fault.
- There are good reasons to grant you a visa (often applies to partner visas).
- You complied with the conditions of your previous visa.
- You will comply with the conditions of your new visa application.
- You would have been granted a partner visa application if you had applied for the visa on the day you last held a substantive visa.
- The last substantive visa you held (if any) was not subject to condition '8503 – No Further Stay'.
This criterion has three purposes:
- To encourage non-citizens to apply for a new visa before their substantive visa expires if they have a valid reason to stay in Australia.
- To discourage non-citizens from staying in Australia after their visa has expired.
- To prevent non-citizens from benefiting from staying in Australia illegally and maybe becoming eligible for a visa while doing so.
While a real relationship and hardship from separation are significant, they are not enough in themselves to waive the Schedule 3 criteria for partner visa applications. That's because showing a real relationship is a requirement for all partner visas and hardship from separation is pretty normal within the partner visa caseload. This is the case especially for offshore applicants who may be apart for years during processing.
Schedule 3 Criteria Waiver
If you don't meet the above criteria, you may be able to apply for a waiver. This area of law is complex and you may not be able to figure it out on your own. So it's best to consult a migration lawyer for advice on your specific situation.
A Schedule 3 criteria waiver in Australian immigration law allows you to apply for certain visas even if you don't meet the standard criteria in Schedule 3 of the Migration Regulations.
According to the Regulations, there may be a Schedule 3 criteria waiver if there are compelling reasons not to apply the criteria if you can't provide evidence that you meet them. The conditions that must be taken into account to determine if there are "good reasons" not to apply the Schedule 3 criteria is not specified in the Migration Regulations.
As per policy, circumstances are considered on a case by case basis. The legislation states that regulations cannot be restricted by an overly restrictive policy and that policies must be administered flexibly.
Schedule 3 Criteria Waiver Breakdown
To give you a better picture, here's a summary:
- Schedule 3 Criteria. These are specific requirements you must meet if you're applying for a visa after your previous substantive visa (one that allows you to stay in Australia) has expired. These include things like lodging your application within a certain timeframe, having a valid reason for the visa application, and complying with previous visa conditions.
- Waiver. If you can't meet the standard Schedule 3 criteria, a waiver provides an alternative pathway. It's essentially allowing the Department of Home Affairs to consider your application even if you don't tick all the boxes.
But the department won't grant a schedule 3 criteria waiver automatically. There needs to be a good reason, often around whether "compelling reasons" and "compelling circumstances" exist. Examples of reasons for a Schedule 3 criteria waiver are:
- Serious illness or incapacity. These are when the applicant's circumstances happened beyond their control that would prevent a timely application.
- Australian citizen children. The partner visa applicant has Australian citizen children and separation would cause hardship.
- Long-term relationship. You have a long-standing relationship with your Australian partner.
To find out more about the Schedule 3 criteria waiver, talk to a migration law expert who can guide you through the process. Moreover, the Migration Regulations don't define "compelling reasons" so each case is assessed individually.
Seek Professional Advice from a Migration Law Attorney
Consulting a migration law attorney fromJB Solicitors will simplify your migration law situation. Schedule 3 and the waiver process involve technical knowledge that requires expert advice. Moreover, the Migration Regulations is a complex document and "compelling reasons" for a waiver are open to interpretation. We can explain the relevant legislation and case law in simple terms.
Our migration services also include:
- Citizenship and visa application assistance
- Drafting genuine relationship forms
- Partner visa program assistance (partner visa onshore or offshore)
- Aid in claims (compelling circumstances included and even visa appeals)
- Legal advice for a work, student, or partner visa applications
- How to transition your bridging visa (whether it's an offshore or onshore partner visa) to a permanent visa
Know your options today and consultation with us.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.