Many visa applicants in Australia feel anxious when they realise they do not hold a valid substantive visa. The thought of having their plans or relationships disrupted because of strict legal rules can be overwhelming. 

This is where understanding the Schedule 3 Criteria Waiver for Australian Visas becomes crucial. It’s a choice between staying with loved ones or being forced to leave the country.

The Schedule 3 criteria waiver for Australian visas allows certain onshore applicants without a valid substantive visa to still apply for a new visa if they can prove compelling reasons. It exists to help people whose loss of visa status was outside their control, not for those who simply overstayed. Only strong, persuasive circumstances can justify a waiver under these rules.

Curious about the Schedule 3 criteria waiver and how it could affect your Australian visa chances? Read on to learn what it is, who qualifies and how it might help your application.

What Is The Schedule 3 Criteria Waiver For Australian Visas? A Short Overview

The Schedule 3 criteria waiver is a legal provision designed to help people in Australia who no longer hold a substantive visa. It allows them to apply for certain visas, such as a Partner visa, even when the strict Schedule 3 rules would normally prevent them from doing so.

Importantly, the waiver isn’t automatic. Applicants must demonstrate compelling reasons why the criteria should not apply, often involving genuine hardship, family circumstances or factors beyond their control.

This waiver strikes a balance between upholding the integrity of Australia’s migration system and showing compassion for real-life situations. For many, it provides a crucial pathway to remain in the country, particularly where family unity or serious humanitarian concerns are involved.

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Dealing with Schedule 3 criteria waiver issues can feel overwhelming, but you don’t have to face it alone. At Lewis & Bollard, our experienced lawyers in Sydney understand how critical these cases are for keeping families together and securing your future in Australia. We take the time to listen, assess your circumstances and build a strong strategy tailored to your needs.

Our team has helped clients across Australia, including NSW, VIC and QLD, navigate complex waiver applications with confidence and clarity. Whether your challenge is urgent or you’re just beginning to explore your options, we’ll stand by your side every step of the way. Don’t risk your future on guesswork. Get trusted guidance from professionals who know how to handle these matters.

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What Is Schedule 3?

Schedule 3 is a set of extra criteria that apply to certain people in Australia who do not hold a substantive visa or who hold a particular bridging status. These criteria act as a gatekeeper. They ask why the person became unlawful or lost status, whether they complied with past conditions and whether there are compelling reasons to grant a visa despite those issues. 

The current compilation of the Migration Regulations 1994 shows Schedule 3 sitting after the visa-specific rules and before the public interest criteria. The criteria are numbered 3001, 3002, 3003, 3004 and 3005. 

• Criteria 3001 and 3002 are time-based validity rules. 
• Criteria 3003 and 3004 deal with how a person became unlawful or remained without a substantive visa and whether compelling reasons exist to grant the visa anyway. 
• Criterion 3005 prevents repeat reliance on these provisions. The exact wording appears in the Federal Register text, which is the authoritative source.

What Are the Requirements for Schedule 3?

Schedule 3 applies to people in Australia without a current substantive visa or with a certain bridging status. The requirements look back at timing, conduct and reasons for status loss. Two short points help frame the detail.

First, the criteria are strict and technical. Second, some visas let the decision maker waive the need to meet certain Schedule 3 criteria if compelling reasons exist.

Criterion 3001

It sets a very short validity window. It requires the application to be lodged within 28 days of the defined reference day. The reference day depends on your status history, such as when a substantive visa ended or when you last entered unlawfully. 

Criterion 3002 

It provides a 12-month window for specific cohorts, such as former diplomatic or special purpose entrants who now seek to regularise their status onshore. These are mechanical rules. Miss the window, and your application may be invalid unless the visa’s Schedule 2 rules provide another path.

Criterion 3003 

It covers people who did not hold a substantive visa from before 1 September 1994. It asks whether status loss was due to factors outside your control, whether there are compelling reasons to grant, whether you complied substantially with past conditions and whether you would have been entitled to the equivalent visa if you had applied at the correct time. 

Criterion 3004 

It applies to those who became unlawful or ceased to hold a substantive or criminal justice visa on or after 1 September 1994. It asks the same core questions and includes the requirement that you would have satisfied the visa criteria at the key time. These two criteria are where case facts matter most.

Criterion 3005 

This prevents a person from relying on these criteria again if a visa or entry permit was previously granted on that basis. 

When Does Schedule 3 Apply?

Schedule 3 generally applies in the following situations:

• No substantive visa – when you are in Australia without holding a current substantive visa
• Certain bridging visas – if you are on a bridging visa after becoming unlawful
• Visa rules that reference Schedule 3 – when the visa you’re applying for includes Schedule 3 requirements in its rules

Common examples include:

• Onshore Partner visa (Subclass 820) – if you don’t hold a substantive visa, Schedule 3 must usually be met unless there are compelling reasons for it not to apply
• Other onshore visas – where the Schedule 2 rules for that visa point back to Schedule 3

Pro Tips:

• Always review the Schedule 2 rules of the visa subclass you’re applying for
• The Federal Register of Legislation is the primary source for confirming whether Schedule 3 applies and if a waiver is possible

What Is a Schedule 3 Waiver?

A Schedule 3 waiver is not a clause within Schedule 3 itself. Rather, it is a permission built into certain visa rules that allows a visa to be granted even if Schedule 3 requirements would normally block the application.

For example, under the Subclass 820 Partner visa, applicants who do not hold a substantive visa must normally meet criteria 3001, 3003 and 3004. However, the legislation also provides that these criteria may be waived if the Minister is satisfied there are compelling reasons not to apply them. This wording acts as the legal doorway for requesting a waiver.

The standard for a waiver is high. Decision makers expect clear and weighty reasons, often involving genuine hardship, the circumstances of an Australian partner or child or events and errors beyond the applicant’s control.

Guidance can be found on the Department of Home Affairs website, but the precise wording and limits are set out in the Federal Register of Legislation. Reading both sources together is essential for understanding how a waiver may apply in practice.

Examples of Circumstances Where Waivers May Apply

Applicants usually seek a waiver when returning offshore would split families, disrupt the care of children or when illness or accident made timely action impossible. Another theme is an official delay or mistake that caused the status problem. The central question remains whether there are compelling reasons not to apply Schedule 3 to these facts. 

Community ties also matter. Long residence with strong evidence of contribution, combined with an Australian citizen partner or child, can support a compelling reason submission. 

It is not automatic. Evidence must be specific, current and tied to the legal test. Recent practice notes and practitioner guides echo these factors. 

Typical circumstances raised in waiver requests include:

• Australian citizen child whose best interests would be harmed by separation or relocation.
• Serious illness or accident affecting the applicant or a close family member that explains the status loss and makes offshore processing unreasonable.
• Family violence or safety issues that make departure unsafe or disruptive.
• Departmental or third-party error that caused delay or invalid lodgment despite reasonable efforts by the applicant.
• Exceptional hardship to an Australian partner is proven with financial, medical or care evidence.
• Strong compliance and contribution record, apart from the status lapse, supported by tax, work and community letters.

How to Apply for a Schedule 3 Waiver

A waiver request is not a separate form. It takes the form of a written submission with supporting evidence, lodged either with your visa application or in response to an invitation from the Department.

Your submission should:

• Address the specific waiver power in your visa subclass rules.
• Present compelling reasons supported by facts and documents.
• For Partner visas, reference the wording of clause 820.311 or 820.312 and link each reason directly to your primary evidence.

Quality matters more than quantity. Provide dated, verifiable documents that show how circumstances led to your loss of status despite reasonable care.

Ultimately, your submission should answer the two key questions a decision maker will ask:

• Why did this happen?
• Why is a grant justified now, despite Schedule 3?

Here’s a step-by-step guide:

1. Confirm the legal hook by reading your visa’s Schedule 2 provision that mentions Schedule 3 and the waiver wording. For Partner visas, this is 820.312. Save the citation.
2. Map your timeline from the last substantive visa to today. Note expiry dates, any unlawful periods, bridging grants and contact with the Department. Cross-check dates with travel history and VEVO records.
3. Identify compelling reasons that are present now. Focus on the welfare of any Australian child, genuine relationship evidence, urgent medical needs, safety concerns or official errors that explain the delay. Support each with primary documents.
4. Prove substantial compliance with all prior visa conditions where possible. Include evidence of lawful work, study, address updates and adherence to reporting. This speaks to the 3003 and 3004 themes.
5. Show that you meet the visa criteria apart from Schedule 3. For Partner visas, provide relationship evidence, sponsorship approval and any health and character documents you already hold. Use the Department’s Partner visa page as a checklist.
6. Write a focused submission that cites the law, sets out the facts and then attaches evidence in order. Avoid repetition.
7. Respond quickly to any invitation from the Department to comment on Schedule 3. Keep copies of what you send and when.
8. Prepare for review. If refused, you may have review rights. Keep your evidence set clean and indexed for the tribunal.

Risks and Challenges

Every waiver bid carries real risk. The rules are demanding, the standard is high, and the facts must justify a grant despite the default position in Schedule 3. No one can promise success. The safest path is early action before status lapses.

Decision makers also apply public interest and character tests. Even a strong waiver case fails if those mandatory criteria are not met. Link your plan to the official text and current Department guidance to reduce surprises. 

Risks

1. Refusal despite a genuine relationship if the evidence does not reach the level of compelling reasons.
2. Limited review timeframes and potential bridging status changes after refusal.
3. Travel complications can trigger bars or remove jurisdiction if you depart at the wrong time.
4. Misreading the validity rules under 3001 or 3002 can leave an application invalid.

Challenges

1. Proving factors beyond control under 3003 or 3004, especially where delay looks avoidable.
2. Documenting the best interests of a child with credible reports and care plans rather than assertions.
3. Balancing privacy and detail in sensitive matters like health or safety while still making a persuasive case.
4. Maintaining compliance while the case is pending, including updates and full responses to any Department request.

Wrapping It All Up

For people who have lost lawful status in Australia but have genuine ties, family responsibilities or compassionate circumstances, the Schedule 3 criteria waiver offers a chance to continue their journey without forced separation or disruption. Success, however, depends on presenting a clear case backed by strong evidence. While the rules are strict, the waiver remains a vital option for those who can show that fairness and compassion justify their circumstances. By understanding the criteria, preparing carefully and focusing on compelling reasons, applicants give themselves the best chance of a positive outcome.