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Applying When You Don't Have a Visa
Schedule 3 Criteria
If you applied for a partner visa inside Australia and you either didn’t have a visa at all when you applied or you only held a bridging visa, then you will have an additional set of requirements to overcome before the grant of a partner visa. These criteria are called Schedule 3 criteria and are responsible for many partner visa refusals.
Schedule 3 criteria are a set of individual requirements that work together to form a whole. If you can’t satisfy one requirement, you fail to meet all the requirements, and therefore fail to meet Schedule 3 criteria in its entirety. If you fail to meet Schedule 3 criteria in its entirety, then your only pathway to a successful outcome is request that these criteria not be applied in your case. To do this, you will have to present compelling reasons why the case officer assessing your application should not apply these criteria in your case. Any claim you make has to be supported by evidence.
There are five separate criteria but for most visa applicants only a couple are relevant. Following is a summary of the criteria that most visa applicants will need to consider.
The first requirement is detailed in criterion 3001. To satisfy this requirement, you have to lodge your partner visa application within 28 days after your last visa expired. If you did not do this and you either hold no visa at all or just a bridging visa, then you don’t satisfy Schedule 3 criterion 3001. This means you fail to satisfy Schedule 3 criteria as a whole and the only hope you have is to make an argument to the case officer that Schedule 3 criteria should not applied in your case because you have compelling reasons. In other words, you are requesting a Schedule 3 waiver. See below for a discussion of the issues involved in a Schedule 3 waiver.
If you did lodge your partner visa application within the 28 day period after your last visa expired, then you can move onto the next step. This involves satisfying, most commonly, criterion 3004.
To satisfy this criterion, you must be able to satisfy all the following requirements:
Schedule 3 Waiver
If you fail to satisfy the Schedule 3 criteria listed above, your only pathway forward is to seek a Schedule 3 waiver. If you have compelling reasons why the case officer should not apply Schedule 3 criteria in your case, then you may have a chance of securing a waiver and getting the partner visa.
A definition of compelling reasons is not included in migration legislation or policy. The case officer therefore has a wide discretion to take into account all aspects of your situation. Again, if you could not attend to your visa situation because of an accident or illness, then this may be a reason that could work in your favour.
If the consequences of you failing to get the visa is that an Australian child is adversely affected then this may possibly be a compelling reason. If your Australian partner would be adversely affected in a serious way – for example, if they rely on your help because of an illness – then this might also constitute a compelling reason. There are many forms that compelling reasons could take and it really depends on your circumstances and the proof you can provide to support your claims.
Appeal the decision at the Administrative Affairs Tribunal (AAT)
In the event your visa is refused as a result of the case officer deciding your reasons were not compelling enough to warrant the Schedule 3 waiver and the subsequent grant of a partner visa, you can still seek an appeal, or review, of the refusal decision at the AAT.
There is usually a significant wait for a hearing at the AAT, which means considerable time will probably elapse from the date your partner visa application is refused for failing to satisfy Schedule 3 criteria, until you are sitting in the hearing room at the AAT arguing that there are in fact compelling reasons for the grant of the partner visa.
Anything that has occurred in your life since you were refused the partner visa can be considered at the AAT. In other words, if something occurs that constitutes compelling reasons for the grant of the partner visa after you were initially refused the partner visa for failing to satisfy Schedule 3 criteria, you can present these reasons and their supporting evidence and they will be considered.
You will need the help of an immigration lawyer or migration agent to do this effectively.
You must lodge your application for review at the AAT within 21 days. Read about partner visas refusals in the partner visa guide for further information about seeking review of the refusal decision at the AAT.
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The above discussion is only a generalised overview of Schedule 3 criteria and a summary of the most common scenarios. You should seek the advice of an immigration lawyer or registered migration agent if Schedule 3 issues apply to you.