Broadly speaking, applicants for an onshore Partner (Subclass 820/801) visa are required to hold a substantive visa at time of lodgement.
Where a Partner visa applicant does not hold a substantive visa at the time of application, they are required to satisfy “Schedule 3” criteria unless the Minister is satisfied that there are “compelling reasons” for not applying those criteria (known colloquially as a “Schedule 3 waiver”).
This could apply to individuals who do not hold any visa (i.e. they are unlawful), or who hold one of numerous Bridging Visas. This article discusses what prospective Partner visa applicants who do not hold substantive visas need to consider.
For completeness, this article does not apply to former Prospective Marriage (Subclass 300) visa holders, who do not hold a substantive visa at time of Partner visa application – such individuals have a separate exemption.
Schedule 3 criteria
An onshore Partner (Subclass 820/801) visa applicant who does not hold a substantive visa at the time of application must satisfy Schedule 3 criteria in 3001, 3003, and 3004.
This applies unless they entered Australia as a Subclass 995 Diplomatic visa, or as a “special purpose” visa holder – which usually is very limited individuals.
Put very simply, Schedule 3 criteria:
- 3001: requires the Partner visa application to be made within 28 days of the applicant last holding a substantive visa;
- 3003: applies to applicants who have not held a substantive visa after 1 September 1994, and on 31 August 1994 was an “illegal entrant” or did not hold a visa valid beyond that date. They are required to demonstrate that:
- the applicant became an illegal entrant (or without a substantive visa) because of factors beyond their control;
- there are compelling reasons for granting the Partner visa;
- the applicant has complied substantially with the conditions that applied to any visas they held (including bridging visas);
- the applicant would have been entitled to be granted the visa if they had applied before becoming unlawful;
- the applicant intends to comply with the conditions of the visa if granted; and
- the applicant’s last visa was not subject to a condition preventing them from being entitled to be granted a further visa while they remained in Australia;
- 3004: mirrors that of 3003, but applies to applicants who after 1 September 1994, ceased to hold a substantive visa or entered Australia unlawfully after that date.
Please note that there are some nuances to the above, which is a simplified summary of the Schedule 3 criteria.
Those who are unable to satisfy the above Schedule 3 criteria, must engage the waiver provisions as set out below. This would apply for example to individuals whose substantive visa ceased over 28 days before they apply for the Partner visa.
“Compelling Reasons” to waive Schedule 3 criteria
Partner visa applicants who do not satisfy Schedule 3 criteria as set out above, must satisfy the Minister that there are “compelling reasons” for not applying these criteria.
“Compelling reasons” are not defined in the legislation, and as such should be considered on a case-by-case basis. In the matter of Waensila, the Full Federal Court determined that decision-makers must consider all of the visa applicant’s circumstances up until the time of decision (i.e. they are not restricted solely to considerations at the time of application).
Importantly, being in a partner/married relationship and the hardship suffered from separation if forced to leave and apply outside Australia, would not of itself constitute “compelling reasons”. The Department’s view historically has been that such separation is common to Partner visa applications (particularly offshore ones), and so further reasons are required beyond this.
Examples of matters which might constitute compelling reasons include circumstances where:
- there are Australian children with a link to the visa applicant; or
- the Australian sponsor has a demonstrable mental/physical dependency on the visa applicant.
Under Departmental policy, decision-makers are encouraged to consider a variety of the applicant’s circumstances including any history of non-compliance with visa conditions, duration of/reasons behind any unlawful periods, current family composition, and steps the applicant has taken to become lawful etc. The overarching view is that these provisions should not provide an unfair advantage to individuals who have failed to comply with their visa conditions, deliberately manipulated their circumstances, and/or could apply for the offshore Partner visa.
Further information
Hannan Tew Lawyers have assisted numerous individuals with complicated immigration circumstances in applying for Partner visas, including with strategic planning around this. The threshold in satisfying the Schedule 3 criteria or otherwise waiving it on the basis of “compelling reasons” often require careful consideration and articulation.
Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you’d like assistance. You can also subscribe to our newsletter for the latest Australian immigration news straight to your inbox.
