Schedule 3 Requirements for Australian Visas: What You Need to Know

You may have heard from visa experts or lawyers that you may not be eligible to apply for several visas because you do not hold a substantive visa. Hence, the best next step is to check if you do not meet the Schedule 3 requirements.

What is the Schedule 3 Requirement?

Suppose the individual holds a bridging visa, criminal justice visa, or an enforcement visa or is an unlawful non-citizen and wishes to apply for a visa in Australia. They may not meet the Schedule 3 requirements under the Migration Regulations 1994 when applying for a visa onshore in Australia. Schedule 3 imposes restrictions that often prevent such individuals from applying for visas within Australia. Failure to meet these requirements will typically result in the refusal of their visa application.

For example, individuals without a substantive visa in Australia applying for a partner visa (Subclass 820/801) onshore will not meet schedule 3. The Department of Home Affairs (DoHA) would rather the applicant lodge their application outside Australia, which may lead to other issues for the applicant to re-enter Australia.

What is the main purpose of Schedule 3?

The main purpose of Schedule 3 is to encourage applicants to apply for a substantive visa before their current visa expires and to reduce the number of individuals on non-substantive visas or unlawful non-citizens. To qualify under Schedule 3, applicants must meet specific criteria and adhere to a time limit for lodging their partner visa application.

What are the Requirements of Schedule 3?

There are two provisions related to Schedule 3: 

1. General Criteria: Applicants must satisfy criteria 3001, 3003, and 3004. Exemptions from these criteria may apply if the Minister is satisfied there are compelling reasons not to impose them. 

2. Two special categories: Applicants holding a Diplomatic (subclass 995) visa or a special purpose visa must meet the detailed requirements in Schedule 3 criteria 3002.

What are the Schedule 3 criteria?

Criteria 3001 

• The visa application must be lodged within 28 days of either: 

  • The cessation of a substantive or criminal justice visa, or 

  • Entering Australia unlawfully. 

Criteria 3002 

• The visa application must be lodged within 12 months of: 

  • Ceasing to hold a substantive or criminal justice visa, or 

  • Entering Australia unlawfully. 

Criteria 3003 

• This criterion applies only if the applicant entered Australia unlawfully or did not hold a valid entry permit. Requirements include (but not limited to): 

  • The factors of becoming a non-substantive visa holder or unlawful non-citizen were beyond their control. 

  • The Department believes there are compelling reasons for granting the substantive visa. 

  • The applicant would have been eligible for an entry permit had they applied before becoming an unlawful entrant. 

  • The applicant pledges to comply with all future conditions imposed on their substantive visa. 

Criteria 3004 

• This criterion applies if the applicant entered Australia unlawfully and was not subsequently granted a substantive visa. The requirements include (but not limited to): 

  • The lack of a substantive visa is due to factors beyond their control. 

  • The Minister believes there are compelling reasons for granting the substantive visa. 

  • The applicant complied with conditions imposed on their previous non-substantive visa or entry permit. 

  • The applicant would have been eligible for a partner visa (subclass 820) at the time they became an unlawful non-citizen or ceased to hold a non-substantive visa. 

  • The applicant agrees to comply with all future conditions imposed on their substantive visa. 

Can I Waive the Schedule 3 criteria?

If you fail to meet Schedule 3 requirements, you can attempt to submit a submission with compelling and compassionate reasons to persuade the decision-maker to waive them. This process is complex and technical, so it is highly recommended that you seek assistance from a professional, especially an immigration lawyer who is an Accredited Specialist in Immigration Law.

How Can Agape Henry Crux Help

If you have any queries about how your visa application is affected by Schedule 3 and wish to seek professional assistance, contact our Accredited Specialist Immigration Lawyer(s) and our team of immigration lawyers and migration agents at Agape Henry Crux. We specialise in handling highly complex matters. You can schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.

We speak fluent English, Mandarin, Cantonese and Malay. We can also help you arrange an interpreter if this isn't your language.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.