How to apply for a Partner Visa in Australia when you hold a Bridging Visa or are unlawful
Applying for Partner (Subclass 820/801) visas in Australia can be a complex and challenging process, especially when you are a Bridging visa holder or are an unlawful non-citizen. In these cases, your Partner visa application may be impacted by Schedule 3 criteria in the Migration Regulations 1994 (Cth), which can not only present additional hurdles and significantly impact your eligibility for a Partner visa, but also affect the overall outcome of your Partner visa application.
In this Free Guide, we explain key issues that you should be aware of when lodging a Partner visa application that is affected by Schedule 3 criteria.
For more information about how to apply for a Partner visa, please refer to our free Guide to Partner Visas in Australia (Part 1).
Disclaimer: The information provided on our website or on any of our social media platforms is published for general informational purposes only and does not constitute legal advice. The information provided on our website or on any of our social media platforms about the migration regulations, policies and legislation is current as of the time it is published, and may be subject to change. Your use of the general information published on our website or our social media posts does not create a solicitor-client relationship between you and Inclusive Migration, and you should seek legal advice about your options from a legal practitioner or migration advice from a migration agent registered with the Office of the Migration Agents Registration Authority before proceeding with any application.
Understanding Schedule 3 and Its Implications
Schedule 3 of the Migration Regulations 1994 (Cth) applies to applicants who do not hold a substantive visa at the time of lodging their onshore Partner visa application, i.e. persons who hold a Bridging visa or who do not hold any visa.
Bridging visa holders or unlawful non-citizens will have to either satisfy -
Schedule 3 criteria 3002; or
Schedule 3 criteria 3001, 3003 and 3004.
Specifically, Schedule 3 criteria 3002 applies to persons who entered Australia as a Diplomatic (Subclass 995) visa holder or as a Special Purpose visa holder and requires them to be applying for Partner (Subclass 820/801) visas within 12 months of them either ceasing to hold a substantive visa, ceasing to hold a criminal justice visa or when they entered Australia unlawfully (where applicable and whichever is the later date).
Schedule 3 criteria 3001, 3003, and 3004 otherwise prescribe as follows:
Criterion 3001 requires that an applicant must lodge their application within 28 days of their most recent substantive visa or criminal justice visa expiring, or when they entered Australia unlawfully (where applicable and whichever is the later date).
Criterion 3003 applies to applicants who entered Australia unlawfully or did not hold a valid entry permit on 31 August 1994, and have not on or after 1 September 1994 held a substantive visa, requiring that:
They became a Bridging visa holder or unlawful non-citizen because of factors beyond their control;
There are are compelling reasons for the grant of their substantive visa;
They complied substantially with the conditions imposed on the last of any entry permits they held and any subsequent Bridging visa;
They would have been eligible for an entry permit if they had applied before becoming an unlawful entrant;
They intend to comply with all future conditions imposed on their Partner visa; and
The last entry permit they held is not subject to a No Further Stay condition.
Criterion 3004 applies to applicants who ceased to hold a substantive visa after 1 September 1994 or entered Australia unlawfully on or after 1 September 1994 and have not been subsequently granted a substantive visa, requiring that:
They became a Bridging visa holder or unlawful non-citizen because of factors beyond their control;
There are compelling reasons for the grant of their substantive visa;
They complied substantially with the conditions imposed on on the last of any entry permits they held (other than a breach solely because of the expiry of the entry permit) and any subsequent Bridging visa;
They would have been eligible for a Partner (Subclass 820) visa at the time they became an unlawful non-citizen or ceased to hold a non-substantive visa; and
They intend to comply with all future conditions imposed on their Partner visa; and
The last entry permit they held is not subject to a No Further Stay condition.
If you are a Partner visa applicant who does not meet Schedule 3 criteria 3001, 3003, and 3004, you must demonstrate that there are compelling reasons for not applying Schedule 3 criteria, i.e. that compelling reasons exist to waive Schedule 3 criteria 3001, 3003, and 3004.
Nonetheless, the threshold for demonstrating compelling reasons is extremely high, and your compelling reasons must be exceptional to warrant the waiver of Schedule 3 criteria 3001, 3003, and 3004. In particular, Departmental policy emphasises that the intent of the waiver provisions is only to allow persons with genuinely compelling circumstances to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:
fail to comply with their visa conditions;
deliberately manipulate their circumstances to give rise to compelling reasons; or
can leave Australia and apply for a Partner visa outside Australia.
Additionally, where an applicant has remained unlawful for a number of years, made little or no effort to become lawful, and claims compelling circumstances primarily on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for a Partner visa, the Department may find that there are no compelling reasons to waive Schedule 3 criteria.
Where the Department does not believe that that compelling reasons exist to waive Schedule 3 criteria in your Partner visa application, your application will generally be refused without any consideration being given to whether you are a genuine and continuing relationship with your Sponsor.
What Are Some Examples of Compelling Reasons?
Claims of compelling reasons are assessed on a case-by-case basis, and may sometimes revolve around -
the Sponsor of a Partner visa application;
any Australian citizens or permanent residents who may depend on the applicant, including children;
why it is not reasonably practicable for the applicant to leave Australia to lodge an offshore Partner visa application; and/or
the applicant becoming a Bridging visa holder or unlawful non-citizen for factors outside of the applicant’s control.
Matters which may affect the assessment of compelling reasons include:
any history of non-compliance with visa conditions by the applicant;
the length of time the applicant has been an unlawful non-citizen in Australia;
the reasons why the applicant became an unlawful non-citizen in Australia;
the reasons why the applicant did not seek to become lawful in Australia sooner;
current family composition, including any dependent children;
what steps, if any, the applicant has taken to become a lawful non-citizen in Australia (other than applying for Partner (Subclass 820/801) visas).
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave and be forced to apply for the visa outside Australia, are not compelling reasons to avoid applying the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, is common in the Partner visa caseload, particularly in the offshore Partner visa context where partners may be separated for extended periods during visa processing. However, where there is an Australian citizen child with a demonstrable link to the applicant, a decision may be made to waive Schedule 3 criteria in the best interests of the child.
It is therefore important to distinguish the compelling reasons in a Partner visa application affected by Schedule 3, from those that would generally affect a couple in a long-distance relationship.
It is otherwise also important to address the circumstances that have led to you becoming a Bridging visa holder or an unlawful non-citizen, as failure to properly explain this may lead to the Department making an adverse finding about the genuineness of not just your compelling reasons, but also about your reasons for applying for a Partner visa.
How Do I Prove Compelling Reasons?
The types of documentary evidence you may provide to substantiate the compelling reasons in your case will necessarily depend on what your compelling reasons are. For instance:
claims that there are compelling reasons which affect an Australian citizen or permanent resident child or family member may involve providing evidence of your relationship to this person;
claims that you became a Bridging visa holder or unlawful non-citizen due to factors outside of your control, such as accident or illness may involve providing medical documentation and/or records in this respect; and
claims that it is not reasonably practicable for you to leave Australia to lodge an offshore Partner visa application may involve providing country information and other documents proving why you may not be able to return to your home country, and/or why it is important for you to remain in Australia.
Without evidence of your compelling reasons, the Department may not be convinced that there are compelling reasons which weigh in favour of waiving Schedule 3 criteria in your Partner visa application, and this may lead to the refusal of your Partner visa application.
Extended Processing Times for Schedule 3 Applications
When it comes to Partner visa applications which are affected by Schedule 3 criteria, the Department of Home Affairs may conduct a more detailed assessment, requiring additional documentation and further scrutiny before making a decision. It is therefore important to be aware that processing times for Schedule 3 cases are often significantly longer.
As the extended processing times for Partner visa applications affected by Schedule 3 criteria can often result in prolonged uncertainty and added stress for Partner visa applicants and their families, Bridging visa holders or unlawful non-citizens intending to lodge an application for Partner (Subclass 820/801) visas in Australia may benefit from not only emotional assistance from their friends, family and support groups, but also professional support from an immigration lawyer who has experience with complex Partner visa applications.
Seeking Legal Advice from an Immigration Lawyer
If you are a Bridging visa holder or an unlawful non-citizen considering lodging an onshore Partner visa application, we strongly recommend that you seek legal advice from an immigration lawyer before proceeding, so that you have a proper understanding of:
what the compelling reasons in your case may be;
whether your compelling reasons meet the threshold for waiving Schedule 3 criteria;
what evidence you should provide to substantiate the compelling reasons in your Partner visa application and strengthen your case for waiver of Schedule 3 criteria;
what you can do if your Partner visa application is refused; and
whether alternative visa pathways may be available.
This is particularly since Partner visa applications affected by Schedule 3 of the Migration Regulations 1994 (Cth) are often subjected to increased scrutiny by the Department of Home Affairs, such that it is important to demonstrate not just your compelling reasons, but also your credibility, the veracity of your claims, and that your compelling reasons have not been contrived to secure a migration outcome for you.
Apart from assessing your eligibility for a Partner visa, immigration lawyers can assist with:
Preparing detailed legal submissions referencing relevant case law, legislative and regulatory requirements about the compelling reasons in your case and your overall eligibility for a Partner visa;
Advising you about the supporting documentary evidence you should provide in support of your Partner visa application, to substantiate the compelling reasons which are specific to your circumstances; and
Guiding you through the complexities of the application process, monitor the status of your Partner visa application and advocate on your behalf when liaising with and responding to the Department of Home Affairs.
What happens if your Schedule 3 Partner visa application is refused?
Most Partner visa applicants are able to apply to the Administrative Review Tribunal (formerly known as the Administrative Appeals Tribunal) for review of their Partner visa application. The Administrative Review Tribunal replaced the Administrative Appeals Tribunal on 14 October 2024, with aims to enhance the efficiency, accessibility, and independence of Australia's administrative review system.
This is known as merits review, which is the process of reconsidering a decision made by the Department of Home Affairs based on its merits (i.e. by looking at the facts of the case and applying the relevant laws and regulations). It is more commonly referred to as “appealing” a visa refusal, although such a classification of the merits review process is technically inaccurate.
For more information about how to apply for review of the refusal of your Partner visa application, please refer to our Free Guide on Partner Visa Refusal - What to do and navigating your next steps.
Notwithstanding merits review rights you may have in relation to the refusal of your Partner visa application, the landmark case of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 means that any compelling reasons which develop in the intervening time (i.e. even after the lodgement of your Partner visa application and while you are awaiting the finalisation of your review application) may be helpful to demonstrating your eligibility for a Partner visa.
Where can I get help with my Partner visa application?
Our immigration lawyers at Inclusive Migration have extensive experience in assisting with Partner visa applications, including complex Partner (Subclass 820/801) visa applications affected by Schedule 3 of the Migration Regulations 1994 (Cth), with successful outcomes. While we have successfully advocated on behalf of our clients for the waiver of Schedule 3 criteria in their Partner visa application, we take pride in providing honest and pragmatic legal advice about the prospects of each case to everyone who consults with us, so that you can make a fully-informed decision on how you proceed with your immigraton matters.
If you are unsure of where to start, or if you need assistance with the Partner visa process, our team of experienced immigration lawyers is here to guide you every step of the way. Should you wish to discuss your eligibility for a Partner visa, please email us at info@inclusivemigration.com.au, submit an enquiry through our contact form or send us a message on WhatsApp.
