Schedule 3 is a provision under Migration Regulations 1994. This provision allows certain non-citizens who are staying unlawfully in Australia or on a bridging visa to apply for a substantive visa without having to depart Australia.
Schedule 3 allows applicants to apply for a partner visa onshore as long as they meet the criteria instead of having to go offshore and lodge from outside Australia. The main aim for this schedule is to encourage applicants to apply for the substantive visa before their previous visa expires.
In this article, we’ll provide a comprehensive guide to Schedule 3 Migration Regulations in Australia.
Schedule 3 Migration Regulations: Criteria
Schedule 3 sets out additional criteria that apply to unlawful non-citizens and certain bridging visa holders who are applying for a substantive visa.
- Schedule 3 Migration Regulations 1994 allows certain non-citizens who are staying unlawfully in Australia or on a bridging visa to apply for a substantive visa without having to depart Australia.
- To be eligible for Schedule 3, applicants must meet certain criteria, including having a valid reason for not departing Australia and having compelling or compassionate circumstances.
- Schedule 3 applications are assessed on a case-by-case basis, and there is no guarantee that an application will be successful.
- If you are considering applying for Schedule 3, it is important to seek legal advice. This ensures that you meet the eligibility criteria and that your application is properly prepared.
Eligibility Criteria for Schedule 3
- Have been in Australia as unlawful non citizens or on a bridging visa for no more than 28 days before applying. If you are in Australia and you do not hold a substantive visa, you must lodge a partner visa application within 28 days of your last substantive visa expiring.
- Have met all of the other requirements for the visa they are applying for, except for the fact that they are unlawful or on a bridging visa.
- Have compelling reasons for being granted the valid visa.
- Must have complied with all of the conditions of any previous valid entry permit or bridging visas they have held.
- Must intend to comply with any conditions of the visa they are applying for.
Additional Requirements for Applicants With a Cancelled Substantive Visa
- The Tribunal must have made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation.
- The applicant must have applied for the new visa within 12 months of the day that the Tribunal’s decision was made.
Requirements if the Applicant Ever Held a Substantive Visa
According to Schedule 3 Migration Regulations, an applicant must meet the following criteria if they never held a substantive visa:
- The applicant must have been in Australia unlawfully or on a bridging visa for no more than 12 months before applying.
- The applicant must have become an illegal entrant or a person in Australia without a substantive visa because of factors beyond their control.
Requirements for Applicants Who Are Not the Holder of a Substantive Visa
If the applicant has ceased to hold a substantive visa or entered Australia unlawfully on or after 1 September 1994, they must also meet the following criteria:
- The applicant must not be the holder of a substantive visa because of factors beyond their control.
- The applicant must have complied substantially with the conditions of any previous entry permits or bridging visas they have held, or the conditions of any previous substantive visas they have held.
- The applicant must have applied for the new visa within 12 months of the day that they last held a substantive or criminal justice visa, or the day that they last entered Australia unlawfully.
What if the applicant’s last visa (if any) was a transitional (temporary) visa? It must not have been subject to a condition that the holder would not be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
Is It Possible to Waive Schedule 3 Migration Regulations?
Yes, Schedule 3 requirements can be successfully waived. To have any chance of your visa being granted, you must seek a waiver of the Schedule 3 criteria. The Department of Home Affairs (DHA) will consider the following factors when deciding whether to grant a waiver of Schedule 3 requirements:
- The reasons why you became an unlawful non-citizen
- Why you did not try to get a visa to regularise your status
- What steps you took to regularise your status or get a visa
- Your visa history, including any non-compliance
- How long you have been an unlawful non-citizen
To apply for a waiver of Schedule 3 Migration Regulations requirements, you must submit a written request with substantial evidence. Simply making statements without supporting evidence will not be helpful. Let’s use an example. For instance, you claim to have Australian children with your sponsor. If this is the case you must provide
- Birth certificates of each children; and
- Evidence of your parenting and involvement in your children’s lives
- An explanation on how your children would be affected if you were forced to leave Australia.
Let’s use another example. What if you claim that your sponsor is dependent on you emotionally, physically, or financially? If this is the case, you must provide significant evidence to support your claim. This may include medical reports and bank statements or financial records.
Here are some useful tips when applying for visa applications while following Schedule 3 migration regulations:
- Meet the eligibility criteria. Before you start your application, make sure that you meet all of the eligibility criteria for the visa you are applying for. Are you applying for a work visa? Maybe you want a partner visa application under the right partner visa program?
- Gather your evidence. Schedule 3 Migration Regulations applications require a lot of supporting evidence. Be sure to gather all of the required evidence before you start your application. This may include things like birth certificates, marriage certificates, police reports, medical records, and financial records.
- Be honest and complete. When filling out your application, be sure to be honest and complete. Any false or misleading information could result in your application being rejected. When completing your application, be sure to explain your compelling circumstances in detail.
- Provide evidence to support your claims. Do not simply make statements in your application without providing evidence to support your claims. This evidence should be clear and convincing.
- Address any concerns that the DHA may have. If you have a history of non-compliance with visa conditions, or if you have been living in Australia unlawfully for a long time, you should address these concerns in your application. Explain why you have made mistakes in the past and what you have done to fix or learn from them.
- Be patient and persistent. The DHA may take some time to process your application. Be patient and persistent, and follow up with the DHA if you do not hear back within a reasonable amount of time.
How Can Migration Lawyers Help?
What if you are still unsure about any aspect of the application process? Of course, visa applicants want a fast and efficient visa application process. If this is the case, it is important to seek professional advice from JB Solicitors. Our team can help:
- Assess your case and prepare a strong application for a partner visa, criminal justice visa, work visa, or student visa.
- Lodge work or partner visa applications properly accurately and efficiently.
- Represent a visa applicant at court hearings should legal matters arise.
Contact us today if you need more information about Schedule 3 Migration Regulations