Schedule 3 Waiver
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What is Schedule 3 criteria for a Partner visa?
What are the requirements of Schedule 3 Waiver?
- You are a holder of a Diplomatic (subclass 995) visa or a special purpose visa and when you entered Australia and met detailed requirements found in Schedule 3 criteria 3002;
- You satisfy Schedule 3 criteria 3001, 3003 and 3004. You can be exempted from meeting these criteria if the Minister is satisfied that there are compelling reasons for not applying those criteria.
What are criteria 3001, 3002, 3003 and 3004 for Schedule 3?
Criteria 3001 of Schedule 3 states that a subsequent visa application must be lodged by the applicant within 28 days of the substantive termination of the visa or illegal entry into Australia.
Criteria 3002 of Schedule 3 states that a subsequent visa application must be lodged by the applicant within 12 months of them holding a substantive visa or criminal justice visa or from when they entered Australia unlawfully.
Schedule 3 Criteria 3003 applies if:
- as at 31 August 1994, you were an illegal entrant or held an entry permit that was not valid beyond 31 August 1994; and
- since 1 September 1994, you have not held a substantive visa.
If the above applies, you will need to meet all of the following requirements:
- You have become an illegal entrant or a non-substantive visa holder due to factors beyond your control;
- There must be compelling reasons for granting the visa;
- You must have complied substantially with the conditions that applied to your last held entry permit/s and any subsequent bridging visa; and
- You would have been entitled to be granted an entry permit equivalent to an onshore partner visa if you had applied for the entry permit immediately before last becoming an illegal entrant or, if you had applied for the entry permit on 31 August 1994;
- You intend to comply with any conditions to which the partner visa would be subject if granted; and
- The last entry permit (if any) that you held was not granted subject to a condition that you would not, after entering Australia, be entitled to be granted a further entry permit, whilst you remained in Australia.
Criteria 3004 of Schedule 3 applies if the applicant entered Australia unlawfully and has not subsequently been granted a substantive visa. If the applicant falls into this category, there are certain requirements which also need to be fulfilled. They include but are not limited to:
- The reason they do not hold a substantive visa is due to factors which are beyond their control;
- The Minister believes there are compelling reasons for the grant of their substantive visa;
- They complied with the conditions imposed on your previous non-substantive visa or entry permit;
- They would have been eligible for a partner visa (subclass 820) at the time they became an unlawful non-citizen or ceased to hold a non-substantive visa; and
- They agree to comply with all future conditions imposed on your substantive visa.
What are the compelling circumstances for a Schedule 3 Waiver?
Compelling circumstances are assessed individually by the Department of Home Affairs and there is no definition made available in any migration provisions. The Department relies upon a standard definition of compelling meaning the circumstances were brought about by moral necessity.
Compelling reasons for granting a substantive visa can be both based on personal circumstances or circumstances of another. Some examples could include:
- The applicant and their partner have an Australian child;
- The Australian partner will suffer if the applicant is not granted the substantive visa; or
- Circumstances which are beyond the control of the applicant, for example, serious illness.
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