This is the hardest part of the onshore partner visa, and it is decided on the evidence you put forward.
What is a substantive visa?
A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. That definition is in section 5 of the Migration Act 1958.
So a visitor visa, a student visa, a working holiday visa and a subclass 300 prospective marriage visa are all substantive visas. A bridging visa is not. Two groups are therefore caught by Schedule 3: people whose last visa has expired or been cancelled, and people who hold only a bridging visa.
If you are unsure what you hold, check the Department's check visa details and conditions (VEVO) service before doing anything else.
Which Schedule 3 criteria apply to an 820 applicant?
Clause 820.211 of Schedule 2 to the Migration Regulations 1994 says that, for an applicant who is not the holder of a substantive visa, either the applicant entered Australia on a diplomatic or special purpose visa and satisfies criterion 3002, or "the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria".
So for almost every partner visa applicant the criteria in play are 3001, 3003 and 3004. Criterion 3002 applies only to the narrow diplomatic and special purpose group, and criterion 3005 is not applied to the 820 at all. Clause 820.312 uses the same wording for family members applying under the secondary criteria.
| Criterion | What it requires | Who it affects |
|---|---|---|
| 3001 | Application validly made within 28 days after the "relevant day" — broadly, the later of the last day the applicant held a substantive or criminal justice visa and the day they last entered unlawfully | Anyone whose visa ended more than 28 days ago |
| 3002 | Application validly made within 12 months after that same relevant day | Only the diplomatic and special purpose group |
| 3003 | A historic criterion for people who have not held a substantive visa since 1 September 1994 and who, on 31 August 1994, were an illegal entrant or held a short-lived entry permit | Almost nobody today, but it still has to be addressed |
| 3004 | The operative criterion, where the applicant lost substantive status or entered unlawfully on or after 1 September 1994 | Nearly everyone applying without a substantive visa |
What criterion 3004 actually requires
For an applicant who ceased to hold a substantive visa on or after 1 September 1994, criterion 3004 requires the Minister to be satisfied that:
- the applicant is not the holder of a substantive visa because of factors beyond the applicant's control;
- there are compelling reasons for granting the visa;
- the applicant has complied substantially with the conditions on their last substantive visa or entry permit and any subsequent bridging visa, disregarding a breach that occurred solely because the visa expired;
- the applicant would have been entitled to be granted a visa of the class applied for had they applied on the day they last held a substantive or criminal justice visa;
- the applicant intends to comply with any conditions the visa is granted subject to; and
- if the last visa held was a transitional (temporary) visa, it was not subject to a no further stay style condition.
Criterion 3001 alone defeats most applications, because the 28 day window is measured from the day the last substantive visa ended — not from the day the relationship started or the day you found out about the rule.
How the waiver works
The waiver is not a separate application or a form. It is built into clause 820.211 itself: the Schedule 3 criteria apply unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Two points follow, and both are easy to miss. The test is compelling reasons for not applying the criteria, which is not the same test as the "compelling reasons for granting the visa" inside criterion 3004. And nothing in the regulation lists what counts — there is no checklist and no category that automatically succeeds. The decision maker weighs only the circumstances actually put before them, so an application that says nothing about the waiver invites a refusal.
Watch out
the waiver is considered as part of deciding the visa application. You cannot get it pre-approved, and there is no separate appeal against it. If the Department is not satisfied, the visa is refused, and the only path left is review at the Administrative Review Tribunal where a right of review exists. See appealing at the ART.
What circumstances are treated as relevant?
In general terms, the arguments commonly put in waiver submissions concern the consequences for other people as much as for the applicant:
- the presence of Australian citizen or permanent resident children, and what separation would mean for them;
- the health, disability or caring responsibilities of the sponsor, a child or another dependent family member;
- the length, nature and genuineness of the relationship;
- the circumstances in which status was lost — for example a cancellation later set aside, a notification that never arrived, or a person misled by someone acting for them;
- conditions in the country the applicant would have to return to.
Circumstances that amount only to the ordinary consequences of applying from outside Australia — flights, the wait for an offshore partner visa, general inconvenience — are usually the weakest part of a submission, because every separated couple can say the same thing. What matters is the specific, evidenced consequence in your own household.
How these cases are decided, including the point in time at which circumstances are assessed, has been shaped by a body of Federal Court and Tribunal decisions. That case law is not summarised here, and no outcome in another case predicts yours.
The extra validity requirements at lodgement
This is separate from Schedule 3, and it is where applications are lost before anyone reads them. The Department states that an applicant without a substantive visa must include the following when the application is lodged:
- a completed 'Sponsorship for a Partner to Migrate to Australia' online form from the sponsor, lodged through the sponsor's own ImmiAccount or the applicant's, using the TRN or Application ID;
- evidence of the sponsor's status as an Australian citizen, permanent resident or eligible New Zealand citizen, such as a passport or birth certificate. The Department says a driver's licence or Medicare card is not sufficient;
- at least two statutory declarations, each made within the last six weeks, by an Australian citizen, permanent resident or eligible New Zealand citizen, confirming the married or de facto relationship. The Commonwealth Statutory Declaration form comes from the Attorney-General's Department; and
- evidence that each declarant is a citizen, permanent resident or eligible New Zealand citizen.
Important
the Department states that Form 888 is not a statutory declaration, and that "the current and any previous versions of the Form 888 are not acceptable as they do not satisfy this requirement". It also states that if this information is not included when you lodge, the application "may be deemed invalid" — and an invalid application is not an application at all, so no bridging visa flows from it. The underlying rule sits in Schedule 1 to the Migration Regulations 1994, which sets out what must be provided for a valid Partner (Residence) (Class BS) application by a person affected by section 48.
Form 888 still has a role as relationship evidence later on. It just does not do this job. See Form 888 statutory declarations for the difference, and the sponsor's part of the application for what the sponsor lodges.
Related restrictions that often apply at the same time
People without a substantive visa are often caught by more than one rule at once:
- the section 48 bar, which restricts onshore applications after a refusal or cancellation;
- condition 8503 no further stay, where a waiver must be approved before the application is made;
- being in Australia when you apply; and
- applying on a bridging visa, if that is all you hold.
Getting this one right
An 820 application that engages Schedule 3 is the clearest case on this site for using an immigration lawyer, and an application prepared by one is more likely to succeed. The reasons are specific: the waiver is not a form, so it exists only if someone writes and evidences it; the lodgement requirements above decide whether there is a valid application at all; and the distinction between "compelling reasons for not applying the criteria" and "compelling reasons for granting the visa" changes what the submission has to prove. None of that is visible from the online form. Nobody can promise an outcome, but a poorly framed waiver is a refusal that is hard to recover from.
What to do next
Work out the exact date your last substantive visa ceased. If you came off a prospective marriage visa, read moving from a subclass 300 visa, because different rules in clause 820.211 may apply. Otherwise, work through the full list of 820 visa requirements and get advice before you lodge anything.
Common questions
What is a substantive visa?
Under section 5 of the Migration Act 1958, a substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. A visitor visa, student visa, working holiday visa and skilled work visa are all substantive visas. A bridging visa is not, so a person on a bridging visa does not hold a substantive visa and Schedule 3 is engaged if they apply for the 820.
Which Schedule 3 criteria apply to a subclass 820 applicant?
Clause 820.211 of Schedule 2 to the Migration Regulations 1994 requires an applicant who is not the holder of a substantive visa to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. Criteria 3002 and 3005 do not apply to this pathway, except that criterion 3002 applies to a narrow group who entered on a diplomatic visa or as a special purpose visa holder.
Is the Schedule 3 waiver automatic if I have been here a long time?
No. There is no automatic waiver and no fixed list of circumstances that qualify. The decision maker must be satisfied that there are compelling reasons for not applying criteria 3001, 3003 and 3004 in that particular case, and the reasons must be put in evidence by the applicant. Length of stay on its own is not a compelling reason.
Can I still apply if my visa expired more than 28 days ago?
Yes, an application can still be made, but criterion 3001 will not be satisfied because it requires the application to be validly made within 28 days after the day the applicant last held a substantive or criminal justice visa. Once that window has passed, the application depends entirely on the Minister being satisfied that there are compelling reasons for not applying the Schedule 3 criteria.
Does a Form 888 satisfy the statutory declaration requirement at lodgement?
No. The Department of Home Affairs states that Form 888 is not a statutory declaration and that neither the current nor any previous version of Form 888 is acceptable for this purpose. An applicant without a substantive visa must provide at least two Commonwealth statutory declarations, each made within the last six weeks, by an Australian citizen, permanent resident or eligible New Zealand citizen.
Sources
Keep reading
Genuine and Continuing Relationship: How Home Affairs Assesses It
How Home Affairs decides if a partner visa relationship is genuine and continuing — the four matters in the Migration Regulations and what case officers look for.
Read the guide →
Spouse (Married Partner) Requirements for the 820
What married couples must show for the subclass 820 — the section 5F definition of spouse, a valid marriage, no 12-month rule, and why a certificate is never enough.
Read the guide →
De Facto Partner Visa 820: The 12-Month Rule
How the 12-month de facto rule works for the subclass 820, what counts towards the 12 months, and how time living apart is treated.
Read the guide →