If you have applied for a Partner Visa in Australia visa and did not hold a visa at the time the application was made (and are hence an unlawful non-citizen), or when you made the application you had been on a Bridging Visa in excess of 28 days, in addition to having to satisfy the usual eligibility criteria for a Partner Visa, you must also satisfy what is known as the “Schedule 3 Criteria”.
The Migration Regulations 1994 (the Regulations) state that such people must satisfy Criteria 3001 and 3004 of the Regulations, unless they can obtain a waiver of the relevant criteria.
Criterion 3001 requires that applicants not be unlawful or on a Bridging Visa for more than 28 days since last holding a substantive visa (which basically means any visa but a Bridging Visa). Accordingly, if an applicant has been unlawful or on a Bridging Visa for more than 28 days, they cannot satisfy 3001.
However, even for those who have been unlawful or on a Bridging Visa for less than 28 days since last holding a substantive visa, they will also need to satisfy Criterion 3004.
Criterion 3004 requires that an applicant be able to demonstrate that:
1. they are not the holder of a substantive visa because of factors beyond your control;
2. there are compelling reasons for granting partner visa (being in a relationship with an Australian permanent resident or citizen alone does not satisfy this requirement);
3. they substantially complied with any conditions subject to which their last visa was granted;
4. they intend to comply with any condition subject to which the partner visa is granted;
5. they would have been entitled to be granted a partner visa had they applied for the visa on the day when they last held a substantive visa; and
6. the last substantive visa they held (if any) was not subject to a “Condition ‘8503 – No Further Stay”.
You do not need to wait for the Department of Immigration and Border Protection (DIBP) to prompt you to address the Schedule 3 Criteria, though they will do so if you do not provide submissions in this regard with your application when your application begins to be assessed. You can provide submissions with your application, attaching supporting evidence, as to how you satisfy each of the elements listed in Criterion 3004.
If you are unable to demonstrate that you meet Criteria 3004, the Migration Regulations state that the Schedule 3 criteria may be waived where there are compelling reasons for not applying those criteria.
You should explain in detail the circumstances that led you to become a person who is not the holder of substantive visa for reasons beyond your control and provide information relating to any compelling reasons you feel apply to your case. You must provide relevant documents to support your claims.
The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply the Schedule 3 criteria. Circumstances are therefore considered on a case by case basis pursuant to policy. Relevant extracts of departmental policy are outlined below:
“The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case by case basis.
In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:
a. fail to comply with their visa conditions;
b. deliberately manipulate their circumstances to give rise to compelling reasons; or
c. can leave Australia and apply for a Partner visa outside Australia.
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.
With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.
For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control – such as severe illness or incapacity – the applicant was prevented from regularising their status in the years they had been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
a. any history of non-compliance by the applicant;
b. the length of time the applicant has been unlawful;
c. the reasons why the applicant became unlawful;
d. the reasons why the applicant did not seek to regularise their status sooner; and
e. what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa)”
Factors that may help an argument of compelling circumstances may include:
1. if there are any young biological children (Australian Citizens) of the relationship and the potential impacts on their health and well-being;
2. the degree of hardship (both financial and emotional) that would be caused should the applicant need to depart and re-apply from outside Australia, which is greater than the ‘standard’ hardship suffered by other relationships;
3. if there has been some unforeseen accident/injury/illness to an Australian family member or other family member which has led to the current situation;
4. any other factor which differentiates the relationship from any other Partner Visa applications which can be seen as compelling on an ordinary person making an assessment (for example, if the Australian partner has become financially, physically or psychologically reliant on their non-Australian partner and can provide documentary evidence of this).
The Schedule 3 Criteria generally is applied for partner visa applicants, but is also applied to other visas. Not all visas allow for an applicant to submit reasons as to why they satisfy the Schedule 3 Criteria if they are unlawful non-citizens or Bridging Visa holders.
If your application is affected by Schedule 3, you should contact us immediately so we can assist you in addressing this complex area of the migration law.
We offer all our prospective clients an initial meeting, during which we will thoroughly explain the law surrounding this area to you and inform you of the process moving forward.
To organize a initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.