Are you subject to Schedule 3 criteria for your Australian Partner Visa application?

Schedule 3 of the Migration Regulations lists the additional criteria which must be satisfied by persons wishing to apply for visas, but who are in Australia unlawfully as a result of their visa expiring. These are Schedule 3 Criterion 3001 and 3002 of the Migration Regulations, and impose time restrictions in which you are eligible to apply for a visa after your visa may have expired (the “relevant day”).

For criterion 3001, the time limit after the ‘relevant day’ is 28 days, i.e. the person may still validly make a visa application up to 28 days after the person has become unlawful.

For criterion 3002, the time limit after the ‘relevant day’ is 12 months, i.e. the person may still validly make a visa application up to 12 months after the person has become unlawful.

Whether a person is subject to criterion 3001 or 3002 will depend on the type of visa he/she is applying for and a Registered Migration Agent can assist you with understanding whether you are able, after your visa expires, to apply for another visa. We recommend seeking advice before this occurs though.

Example

  • A Migrant in Australia applying for a partner visa (subclass 820 visa) would be subject to criterion 3001, meaning they must apply for the visa within 28 days after their last substantive visa had expired.

Despite what Schedule 3 may say about the ‘relevant day’, these time limits can be overridden by restrictions imposed by the Migration Act. For example, a person in Australia may have only become unlawful 2 weeks ago (and hence well inside the time limit of the ‘relevant day’, whether it be 28 days under 3001, or 12 months under 3002), but if that person was caught by Immigration Compliance and detained, he/she would be subject to section 195 of the Migration Act, which says he/she only has 2 working days (plus 5 if he sought an extension) to lodge an application.

If you are in Australia and you do not hold a substantive visa, you must lodge your Partner visa application within 28 days of your last visa expiring.

If your last substantive visa has ceased more than 28 days before you applied for the visa, then you will not meet the Schedule 3 criterion 3001. If you do not satisfy criterion 3001, then the Minister must be satisfied that there are compelling reasons for not applying the Schedule 3 Partner visa waiver.

So, what does “compelling” mean? Compelling reasons is not defined in the Migration Act 1958 or Migration Regulations 1994.

In MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510 at [10] and Babicci v MIMIA (2005) 141 FCR 285 at [24] is was stated that compelling reasons “should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria”.

The waiver provision has been made to recognise that hardship can result if the unlawful non-citizen is required to leave Australia and apply from overseas.

A substantive visa is any visa other than a Bridging visa, a Criminal Justice visa or an Enforcement visa.

Compelling reasons for Partner Visas

“Compelling reasons” is not defined in the Migration Act or Migration Regulations.

There have been important decisions made by judges, which have sought to define what compelling means. These circumstances must be so strong that they lead the Department to determine that the regulation should be waived.

Policy states that compelling reasons should be considered on a case-by-case basis.

Seek professional advice

If you are considering applying for a Partner Visa Subclass 820/801 visa while you are in Australia and are on a bridging visa or unlawful in Australia, Schedule 3 criteria may affect you.

You may be able to make a submission to waive the Schedule 3 requirements, at the time of application, or when the Department of Home Affairs issues a IMMI s.57 Natural Justice letter with an invitation to comment on information for a Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa – Schedule 3 Criteria – Compelling Reasons, which would be issued after you apply and before a decision is made on your visa application.

You should seek professional legal advice if you think that Schedule 3 criteria may affect you.

If you do not comply with visa requirements, or do not meet timeframes to provide additional information, it can be very expensive and stressful should your visa be refused. It is therefore important to obtain professional legal advice about your visa application and how you can best meet these obligations.

If you are considering applying for a partner visa feel free to contact us.

For further assistance with applying for a partner visa, please contact us at [email protected]