Emigrate Lawyers
Schedule 3 Waiver for Partner Visas Australia.
If you are in Australia and do not hold a substantive visa when you lodge an onshore Partner visa, Schedule 3 can become decisive. Emigrate Lawyers advises on Schedule 3 waivers for Subclass 820 Partner visas, the 28-day rule, compelling reasons, Bridging Visa cases, unlawful status and Department warning letters.
Reviewed by Madhab Kharel, Principal Lawyer — 24 September 2026. Legal reference: Migration Regulations 1994, Schedule 3.
- Compelling reasons We identify the strongest waiver arguments and supporting evidence.
- Status issues Advice for bridging visa, unlawful status and no substantive visa cases.
- Partner visa strategy Clear preparation for complex onshore partner visa applications.
- Bridging Visa holder
- No substantive visa
- Visa expired
- Unlawful status
- 28-day rule
- Schedule 3 warning letter
Claim your Schedule 3 consultation
If your substantive visa has expired, you hold only a Bridging Visa, you have become unlawful, or Home Affairs has raised Schedule 3, the timing and legal strategy matter. Tell us your current visa status, the date your last substantive visa ceased and whether you have received any Department correspondence.
We assist clients across Australia, including Melbourne, Sydney, Brisbane, the Gold Coast, Perth, Adelaide and Canberra.
Confidential Schedule 3 Enquiry
Provide a short summary and our team can identify the next information needed for an assessment.
Schedule 3 Partner Visa Hub
What Schedule 3 means for an onshore Partner visa.
For a standard Subclass 820 Partner visa applicant who does not hold a substantive visa at the time of application, clause 820.211(2)(d)(ii) generally requires Schedule 3 criteria 3001, 3003 and 3004 to be satisfied unless the Minister is satisfied there are compelling reasons for not applying those criteria. This is the legal basis commonly described as a Schedule 3 waiver.
Subclass 820
The issue principally arises in the onshore Partner visa pathway.
No substantive visa
A Bridging Visa is not a substantive visa. Unlawful status can also engage Schedule 3.
Criterion 3001
The application must generally be made within 28 days after the statutory “relevant day”.
Compelling reasons
The Minister has a discretion not to apply criteria 3001, 3003 and 3004.
Eligibility & visa status
When does Schedule 3 apply to a Partner visa?
Schedule 3 most commonly becomes relevant when a person lodges a Subclass 820 application while holding only a Bridging Visa, after their substantive visa has ceased, or while they are unlawful. The exact outcome depends on the applicant's complete visa chronology and the date on which the Partner visa application is made.
Bridging Visa A, B, C, D or E
A bridging visa is not a substantive visa. A person can be lawfully in Australia on a bridging visa and still face Schedule 3 when lodging an onshore Partner visa.
Visa expired or unlawful status
Schedule 3 can also arise where a substantive visa ceased and the person remained in Australia, or where the person entered Australia unlawfully.
Section 48 may also be relevant
Section 48 and Schedule 3 are different rules. Partner visa classes are prescribed for the purposes of section 48, but an applicant who can make a valid onshore Partner visa application may still separately need to address Schedule 3.
No Further Stay is not Schedule 3
Conditions 8503, 8534 and 8535 raise a separate onshore application problem. A No Further Stay waiver and a Schedule 3 waiver involve different provisions and should not be treated as interchangeable.
Read our Section 48 Bar guide if there has been a visa refusal or cancellation in Australia.
Migration Regulations 1994
Schedule 3 criteria 3001, 3002, 3003 and 3004 explained.
The 28-day rule
Criterion 3001 requires the visa application to be validly made within 28 days after the statutory “relevant day”. For a modern applicant whose substantive visa ceased, the relevant-day calculation commonly turns on the last day the person held a substantive or criminal justice visa, but cancellation, unlawful-entry and ART scenarios can alter the calculation.
The 12-month criterion
Criterion 3002 uses a 12-month period after the relevant day. For Subclass 820, it is generally part of the separate pathway in clause 820.211(2)(d)(i) for specified Subclass 995 Diplomatic or special-purpose entrants. It is not ordinarily part of the 3001/3003/3004 waiver set.
A legacy pre-1 September 1994 provision
Criterion 3003 is directed to a narrow historical cohort who had not held a substantive visa on or after 1 September 1994 and were an illegal entrant or held an expiring entry permit on 31 August 1994. It is rarely the operative factual provision in modern Partner visa cases, even though clause 820.211 refers to it.
The modern unlawful / no-substantive-visa criterion
Criterion 3004 addresses applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or entered unlawfully on or after that date without later receiving a substantive visa. It includes factors beyond the applicant's control, compelling reasons for granting the visa, substantial compliance, historical visa eligibility and future compliance.
Read the current Schedule 3 text on the Federal Register of Legislation.
A commonly missed distinction
There can be two different “compelling reasons” questions.
1. The clause 820.211 waiver question
The first question is whether there are compelling reasons for not applying Schedule 3 criteria 3001, 3003 and 3004 at all. This is the waiver discretion that most people mean when they say “Schedule 3 waiver”.
2. Criterion 3004(d)
If criterion 3004 itself must be satisfied, it separately requires the Minister to be satisfied that there are compelling reasons for granting the visa, in addition to the other 3004 requirements. These are related concepts but legally distinct questions.
This distinction matters in submissions. A response should identify precisely which provision is being addressed rather than using the words “compelling reasons” generically.
Leading authority
Waensila: circumstances arising after lodgement can matter.
In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Court of the Federal Court held that the Schedule 3 waiver discretion is not confined to circumstances that existed when the Partner visa application was lodged. The decision maker may consider relevant circumstances arising up to the time of decision.
New circumstances can be relevant
A child born after lodgement, a new diagnosis, changing care responsibilities or significant changes in country conditions can potentially form part of the waiver assessment if properly put before the decision maker.
Waensila did not lower the threshold
The case expanded what material can be considered; it did not make every hardship compelling. The waiver remains discretionary and fact-sensitive.
Waiver strategy
What can amount to compelling reasons for a Schedule 3 waiver?
The Regulations do not provide a closed list. The assessment is cumulative and case-specific. The stronger cases usually connect the claimed hardship to objective evidence and explain why requiring departure and an offshore pathway would create consequences beyond ordinary inconvenience.
Australian citizen or resident children
Care arrangements, developmental needs, schooling, medical issues, attachment and the practical effect of separation can be relevant.
Serious medical or psychological issues
Diagnosis, treatment, prognosis, dependency and continuity of care should be supported by professional evidence rather than assertion alone.
Violence, coercion or safety issues
Family violence can be relevant to the circumstances that produced the applicant's visa position and to the consequences of requiring departure. It may also engage separate Partner visa family violence provisions.
Established family life and dependency
Relationship length can be relevant, especially when combined with children, care obligations, health or other circumstances. A genuine relationship by itself is not necessarily enough.
Why the applicant lost substantive status
Serious illness, official error, family crisis, natural disaster or other documented events may matter. Criterion 3004 separately requires consideration of factors beyond the applicant's control.
Country conditions and practical hardship
Security, health-care access, separation from dependants and other return consequences can be relevant where they are specific to the applicant and supported by current material.
Evidence
Evidence for a Partner visa Schedule 3 waiver submission.
Build the visa chronology
Record every visa grant, expiry, cancellation, refusal, bridging visa and application date. Schedule 3 cases are date-sensitive.
Prove why substantive status was lost
Use Department correspondence, medical records, agent records, travel documents, statutory declarations or other contemporaneous material.
Separate relationship evidence from waiver evidence
A strong Partner visa file still needs ordinary relationship evidence. The waiver evidence addresses a different legal question and should not be left buried inside the relationship bundle.
Match every compelling reason to documents
Children's records, medical reports, financial material, expert letters, family violence material and country information should support the propositions made in the legal submission.
Update the case while it is pending
Because of Waensila, later developments can matter. Significant new circumstances should be put to Home Affairs before decision.
Home Affairs correspondence
Received a Schedule 3 warning letter or request for information?
A Department letter raising Schedule 3 should be treated as a substantive legal issue, not a routine document request. The response should identify the statutory pathway, correct any inaccurate visa chronology, address the relevant Schedule 3 criteria and put forward all current compelling-reasons evidence within the deadline.
Send only a relationship statement
Being married or in a genuine de facto relationship does not itself answer clause 820.211(2)(d)(ii).
Respond criterion by criterion
A structured response should identify the law, chronology, waiver test, evidence and any later circumstances relied upon.
Refusal & review
What if the Partner visa is refused because of Schedule 3?
Review rights may be available in the Administrative Review Tribunal depending on the decision and circumstances. Migration review deadlines can be strict, so the refusal notice should be checked immediately. A review can involve updated circumstances and evidence, but it is preferable to put the strongest available case before Home Affairs before the primary decision.
Schedule 3 resource library
Supporting Schedule 3 guides and related Partner visa issues.
Schedule 3 FAQs
Schedule 3 waiver questions answered.
What is a Schedule 3 waiver?
For a standard onshore Subclass 820 applicant without a substantive visa, clause 820.211(2)(d)(ii) generally requires criteria 3001, 3003 and 3004 unless the Minister is satisfied there are compelling reasons for not applying those criteria. That discretion is commonly called a Schedule 3 waiver.
Does Schedule 3 apply if I hold a Bridging Visa A, B, C, D or E?
Potentially yes. A bridging visa is not a substantive visa. Holding a bridging visa can keep you lawful in Australia but does not, by itself, avoid the Schedule 3 issue for an onshore Partner visa.
What is the 28-day rule in Schedule 3 criterion 3001?
Criterion 3001 requires the application to be validly made within 28 days after the statutory relevant day. In many modern cases that is linked to the last day a substantive visa was held, but cancellation, unlawful-entry and review scenarios can change the calculation.
Is Schedule 3 criterion 3002 part of the normal Partner visa waiver?
Usually no. For Subclass 820, criterion 3002 is linked to the separate clause 820.211(2)(d)(i) pathway for specified diplomatic or special-purpose entrants. The ordinary waiver wording in clause 820.211(2)(d)(ii) concerns criteria 3001, 3003 and 3004.
Is criterion 3003 still relevant today?
Criterion 3003 is a legacy provision directed to a narrow pre-1 September 1994 cohort. Most modern cases are factually concerned with criterion 3004, although clause 820.211 still refers to 3001, 3003 and 3004 as a set.
What are compelling reasons for a Schedule 3 waiver?
There is no closed statutory list. Relevant circumstances can include children, serious health issues, family violence, substantial dependency, the reasons substantive status was lost and specific consequences of requiring departure. The assessment is cumulative and discretionary.
Is a genuine relationship enough for a Schedule 3 waiver?
Not necessarily. A genuine spouse or de facto relationship is central to the Partner visa itself, but the Schedule 3 waiver asks a separate question about compelling reasons for not applying the Schedule 3 criteria.
Can circumstances after lodgement be considered?
Yes. Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 established that the waiver discretion is not confined to circumstances existing at the time of application.
Can I apply for a Partner visa if I am unlawful in Australia?
A valid onshore Partner visa application may be possible in some circumstances, but Schedule 3, section 48, application-validity rules and any other visa conditions must be checked before lodgement. Unlawful status should be assessed urgently.
Is section 48 the same as Schedule 3?
No. Section 48 is a statutory bar on making certain further visa applications after specified refusal or cancellation circumstances. Schedule 3 is a separate set of additional visa criteria. Both can arise in the same matter.
Is a No Further Stay waiver the same as a Schedule 3 waiver?
No. Conditions such as 8503, 8534 and 8535 concern the ability to make certain onshore visa applications. A Schedule 3 waiver concerns additional criteria after a valid application is made. The two issues require separate analysis.
What evidence should be included in a Schedule 3 waiver submission?
Usually a full visa chronology, evidence explaining why substantive status was lost, ordinary Partner visa relationship evidence, and documents supporting each compelling circumstance such as child, medical, financial, family violence or country information evidence.
Should I wait for Home Affairs to ask for a Schedule 3 submission?
If Schedule 3 is apparent before lodgement, it is generally better to identify the issue and prepare a coherent strategy early rather than assume a case officer will construct the waiver case from the file.
Can Schedule 3 lead to a Partner visa refusal?
Yes. If the applicant cannot satisfy the applicable Schedule 3 pathway and the waiver discretion is not exercised, the Subclass 820 application can be refused.
Can a Schedule 3 refusal be reviewed at the ART?
Review rights may be available depending on the decision and circumstances. The refusal notice and review deadline should be checked immediately because migration review time limits can be strict.
Does Schedule 3 apply to an offshore Subclass 309 Partner visa?
The Schedule 3 issue discussed on this page arises in the onshore Subclass 820 framework. An offshore Subclass 309 application has a different legal structure and eligibility requirements.
How long does a Schedule 3 waiver take?
Home Affairs does not publish a separate standard processing time for a Schedule 3 waiver. The issue is assessed within the Partner visa matter and timing varies with the case, evidence requests and processing workload.
Do I need a lawyer for a Schedule 3 waiver?
Legal representation is not mandatory, but Schedule 3 matters are highly technical and often turn on visa chronology, statutory construction, evidence and written submissions. Professional advice can be especially useful where a warning letter or refusal risk is present.
General information only. Schedule 3 is fact-sensitive and the applicable law, visa history and circumstances should be checked before action is taken.
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