An Australian immigration lawyer can assess that chronology against the current provisions and identify the evidence needed for an individual submission.
When is Schedule 3 relevant?
For an onshore subclass 820 partner application, the starting point is the applicable branch of clause 820.211—not simply whether a visa has expired. Under subclause 820.211(2)(d), an applicant without a substantive visa may need to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied there are compelling reasons for not applying them. A separate branch covers specified diplomatic or special-purpose entrants and criterion 3002. Other branches address particular current or former subclass 300 holders. See the Migration Regulations, clause 820.211.
Use this matrix to separate established facts from questions requiring assessment:
| Present position | Position at the relevant application date | Application position | Records and unresolved questions |
|---|---|---|---|
| Holding a substantive visa | Confirm which visa was held when applying | Proposed or lodged subclass 820 application | Grant notice, operative dates and application acknowledgement; identify the applicable clause 820.211 branch |
| Holding a bridging visa | Establish whether a substantive visa was held when applying | Proposed or pending application | Bridging and previous visa grants; do not treat current lawful status as answering the substantive-visa question |
| No visa currently in effect | Establish when the last visa ceased and what was held when applying | Proposed or pending application | Grant, expiry or cancellation records; assess current status separately from Schedule 3 |
| Current or former subclass 300 holder | Establish entry, marriage, visa cessation and any relationship changes | Possible alternative clause 820.211 branch | Entry records, marriage certificate, sponsorship and relevant relationship records |
| Refusal already received | Reconstruct status at application and subsequent events | Decision made | Complete refusal notice, original application and submissions; assess the decision rather than assuming a fresh waiver request is available |
Current lawful status and eligibility for a partner visa are different questions. Sections 13 and 14 of the Migration Act distinguish people holding a visa in effect from those without one; Home Affairs’ expiring or expired visa guidance explains the need to address status. Preparing a Schedule 3 submission does not itself grant a visa or resolve unlawful status.
If a visa has expired, assessing possible regularisation and the consequences of departure is a separate task from preparing partner-visa evidence. The Visa Overstay Lawyer guide explains that assessment.
Which criteria apply to this application?
The provisions below perform different functions. In particular, “compelling reasons for granting the visa” within a Schedule 3 criterion is not the same legal question as “compelling reasons for not applying” criteria under clause 820.211(2)(d)(ii). The distinction matters when deciding what a submission must prove under the Migration Regulations, Schedule 3 and clause 820.211.
| Provision | Applicability and timing | Evidence implications |
|---|---|---|
| 820.211(2)(d)(ii) | Within the ordinary spouse or de facto partner branch, applicants without a substantive visa must satisfy 3001, 3003 and 3004 unless the compelling-reasons exception applies | Identify the branch, assess each criterion’s own conditions, then address any request not to apply those criteria |
| 3001 | Requires a valid application within 28 days after the legally defined “relevant day” | Calculate the relevant day from visa, entry and any qualifying cancellation-review records—not merely the date someone discovered their expiry |
| 3003 | Conditional historical provision concerning specified people without a substantive visa on 31 August 1994 who have not held one since | Address the historical status, circumstances beyond the applicant’s control, compelling reasons, compliance, earlier eligibility and future intentions |
| 3004 | Conditional provision concerning cessation of a substantive or criminal justice visa, or specified unlawful entry, on or after 1 September 1994 | Address why no substantive visa is held, compelling reasons, substantial compliance, eligibility at the specified earlier date and intention to comply |
| 820.211(2)(d)(i) | Separate branch for specified subclass 995 entrants or qualifying special-purpose entrants; requires criterion 3002 | Verify entry status and the precise criterion 3002 requirement before calculating timing |
| 820.211(5)–(9) | Alternative branches for particular subclass 300 circumstances | Check every applicable condition; former subclass 300 status alone does not establish eligibility |
These references are drawn from the Migration Regulations. The table is an assessment map, not a conclusion that every listed criterion applies.
Dates and conditions that need closer checking
Criterion 3001’s “relevant day” includes historical entry-permit rules, visa cessation and unlawful-entry rules. For the post-1994 branch, it uses the later applicable date of last holding a substantive or criminal justice visa and last unlawful entry. A separate rule addresses specified ART decisions setting aside and substituting a cancellation or non-revocation decision, including legally deemed notification dates. The 28-day requirement is not a general permission to remain without a visa. See Schedule 3, criterion 3001.
Criteria 3003 and 3004 also require substantial compliance with the relevant previous permit or visa conditions and subsequent bridging-visa conditions, with specified expiry-related exclusions. They require earlier eligibility for the relevant permit or visa class and an intention to comply with future conditions. Criterion 3003 includes a restriction concerning a further-entry-permit condition; criterion 3004 includes a corresponding restriction where the last visa was a transitional temporary visa. None of these elements should be omitted from an assessment of the applicable criterion. See Schedule 3, criteria 3003 and 3004.
Where a refusal already exists, the next task is to assess its reasons and any available response, rather than assume a new waiver opportunity. The Visa Refusal Lawyer guide addresses that different starting point.
What records support the relevant circumstances?
Prepare a dated chronology with one entry for each material event. Use columns for date, event, supporting document, significance and unresolved question.
- Entry and visa history: passports, entry records, all relevant visa grants, conditions, expiry information and cancellation documents.
- Applications: acknowledgements, lodged forms, receipts and copies of information supplied.
- Bridging arrangements: grant notices, operative periods and conditions.
- Correspondence: information requests, responses, notification records and decisions.
- Relationship history: dates and records relevant to the applicable partner branch and any earlier eligibility question.
- Personal circumstances: contemporaneous medical, care, family or other records supporting the circumstances relied upon.
- Compliance: records relevant to previous visa conditions and explanations of any apparent breach.
- Gaps or discrepancies: missing documents, inconsistent dates and facts recalled but not yet documented.
Label each entry as documented, recollection or unconfirmed. Check that forms, statements and attachments agree. Home Affairs requires authentic, unaltered evidence; genuine errors should be corrected through the appropriate process, not by changing underlying records. See Home Affairs’ accurate-information guidance.
Relationship evidence and partner-route complications may require assessment beyond Schedule 3. The Partner Visa Lawyer guide explains that broader application task.
How should a waiver submission be scoped?
A useful submission addresses the individual legal question rather than copying a “Schedule 3 waiver submission sample”. The exception in clause 820.211(2)(d)(ii) concerns compelling reasons for not applying criteria 3001, 3003 and 3004. It does not waive every partner-visa requirement or remove a separate application-validity issue. See the Migration Regulations, clause 820.211.
Use this evidence structure:
- Applicable legal branch: explain which provision is engaged and why.
- Verified chronology: identify entry, visa cessation, application and subsequent material dates.
- Criterion assessment: distinguish criteria satisfied, disputed or requiring the exception.
- Reasons relied upon: explain the particular circumstances and why they support the requested consideration.
- Supporting evidence: connect each factual proposition to a numbered attachment.
- Evidence gaps: acknowledge missing records and explain efforts to obtain them.
- Requested consideration: state precisely what is sought under the applicable provision.
An Australian immigration lawyer can check whether the argument answers the correct legal test, reconcile chronology discrepancies and identify evidence needed to substantiate the circumstances. A persuasive narrative still needs documentary support and a provision-specific analysis.
How can you request a Schedule 3 assessment?
This is an information guide, not a law firm. To request contact from an Australian immigration lawyer, prepare:
- your application stage and subclass, if known;
- relevant entry, grant, cessation and application dates;
- current-status information and supporting grant notices;
- any departmental request, refusal or other decision;
- a short account of the circumstances requiring assessment; and
- a list of available documents and missing records.
Follow any existing notice’s instructions independently of an enquiry. Requesting contact does not establish eligibility, change visa status or create representation.
If you are unsure whether the primary task is an application, an adverse decision or a status problem, the Immigration Law Attorney in Australia guide organises legal-help information by those tasks.
A lawyer can assess the applicable branch, check the relevant-day calculation, identify evidence gaps and scope an individual submission. Assemble the chronology and Request legal help for a Schedule 3 assessment.