If you want to lodge a partner visa onshore but your last visa has expired, Schedule 3 criteria are the rules that decide whether you can apply at all. They sit inside the Migration Regulations 1994 and they apply when an onshore applicant does not hold a “substantive visa” at the time of lodging. In a partner visa, you can still apply, but you usually need the decision maker to be satisfied there are compelling reasons not to apply those criteria. This post is for people in Australia whose visa has run out, who are scared, and who want a calm explanation of where they actually stand.
We see this situation often. A visa lapsed during a stressful period, a relationship became serious, and now there is a partner here who wants to stay. It feels like a dead end. It is not always, but it is one of the higher-risk onshore scenarios, so the detail matters.
What is a substantive visa, and why it matters here
A substantive visa is essentially any visa other than a bridging visa, a criminal justice visa, or an enforcement visa. Home Affairs is direct about this point: if you currently hold a bridging visa, or you hold no visa at all, you do not hold a substantive visa (Department of Home Affairs, “Substantive visa”).
That distinction is the whole ballgame for Schedule 3. If your tourist, student, or work visa ceased and you have not been granted another substantive visa since, you are likely either unlawful or sitting on a bridging visa. Either way, when you lodge an onshore partner visa, the extra Schedule 3 criteria can be triggered.
The onshore Partner visa (subclass 820 temporary, leading to the subclass 801 permanent) is the common pressure point. Home Affairs notes that to apply onshore you generally need to hold a substantive visa, or meet the additional Schedule 3 requirements if you do not (Department of Home Affairs, “Subclass 820 Partner visa (temporary)”). If you want the full walkthrough of that pathway, our complete guide to the 820 and 801 partner visa covers the rest of the process.
What is Schedule 3?
Schedule 3 of the Migration Regulations 1994 is titled “Additional criteria applicable to unlawful non-citizens and certain bridging visa holders” (Migration Regulations 1994, Federal Register of Legislation). The name tells you who it is aimed at. These are extra hurdles, layered on top of the normal visa criteria, for people who became unlawful or who are on a bridging visa rather than a substantive one.
The schedule sets out a small group of numbered criteria, including 3001, 3002, 3003 and 3004. They split into two ideas. The first pair is about timing, how quickly you lodged after losing your substantive visa. The second pair is about why you ended up without a substantive visa and whether there is a strong enough reason to grant the visa anyway.
These are real legal tests, not policy suggestions. A loose paraphrase can mislead, so the wording below sticks closely to the regulation. Always read the current criteria on the legislation.gov.au version of Schedule 3, because the regulations are amended over time.
The four Schedule 3 criteria, in plain terms
Here is how the criteria break down. Treat this as a map, not as advice on your own case.
| Criterion | What it covers |
|---|---|
| 3001 | A timing rule. The application must be validly made within 28 days after the “relevant day”. |
| 3002 | A longer timing window: the application must be validly made within 12 months after the relevant day. |
| 3003 | Reasons-based criteria for applicants who became an illegal entrant before 1 September 1994. |
| 3004 | Reasons-based criteria for applicants who became unlawful on or after 1 September 1994. |
Two things stand out.
Criterion 3001 is strict on time. It requires that the application is validly made within 28 days after the relevant day (Migration Regulations 1994, Schedule 3). The “relevant day” is defined in the regulation and generally relates to when you ceased to hold your substantive visa. Twenty-eight days is short, and many people are well past it by the time a relationship becomes a visa plan. Criterion 3002 allows a valid application within 12 months after the relevant day in defined circumstances, though you should still confirm how it applies to your situation against the legislation.
Criteria 3003 and 3004 turn on factors beyond your control and compelling reasons. Broadly, the decision maker must be satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied, and intends to keep complying, with visa conditions. The exact wording lives in the regulation, so read clauses 3003 and 3004 directly on the official Schedule 3 page before drawing conclusions about your situation.
The compelling reasons waiver: how it actually works for partner visas
This is the part most people are really searching for. For the onshore Partner visa, the relevant criteria do not have to be met if the decision maker is satisfied there are compelling reasons for not applying them. In other words, you can ask for the Schedule 3 requirements to be waived.
The word “compelling” is not defined in the migration legislation. That is deliberate, and it makes the waiver discretionary. Home Affairs assesses it case by case, and the threshold is high. We treat it as a serious legal argument that has to be built and evidenced, not a box to tick.
In practice, the kinds of circumstances that get raised in a compelling reasons argument include things like an Australian citizen child in the relationship, a genuine and ongoing relationship with real hardship if the couple were separated, serious health issues, or events outside the applicant’s control that explain how the visa lapsed. None of these are guaranteed to satisfy the test. The strength of the relationship evidence and the surrounding circumstances do a lot of the work, which is why our piece on how much evidence a partner visa really needs is worth reading alongside this one.
A useful point to understand: the assessment of compelling circumstances is not frozen at the date you lodged. Circumstances that arise after you apply can be relevant by the time a decision is made. That does not lower the bar. It just means the picture is not always fixed at lodgement.
Why this is one of the highest-risk onshore scenarios
A partner visa lodged without a substantive visa carries more risk than a standard onshore application, for a few reasons.
- The clock has usually already gone. The 28-day window in criterion 3001 is easy to miss, so most applicants are relying on the waiver from the start.
- The waiver is discretionary. Because “compelling” is not defined, two cases with similar facts can be assessed differently. There are no guaranteed outcomes here.
- Your status while you wait is fragile. If you have no substantive visa, you may be unlawful or on a bridging visa with conditions. Understanding what you are on, and what it lets you do, is essential. Our guide to bridging visas in Australia explains the common types and their limits.
- A refusal narrows your options. If a Schedule 3 waiver is not accepted and the visa is refused, you may be looking at a review at the Tribunal, which is its own process with its own deadlines.
That last point is why getting the application right the first time matters so much. If you have already had a refusal, our appeals and refusals service sets out how Tribunal review works and where it fits.
It is also worth knowing that onshore application options have been tightening more generally. The changes we cover in our explainer on the visa hopping restrictions sit in the background of any plan to switch visas from inside Australia, so the broader onshore picture is part of the strategy too.
A realistic way to approach it
If your visa has expired and you are in a genuine partner relationship, here is a calm order of operations.
- Work out your exact status today. Are you unlawful, or on a bridging visa, and which one? This changes what you can do right now.
- Pin down the dates. When did your last substantive visa cease? That date drives criterion 3001 and the “relevant day”.
- Map the compelling reasons honestly. What in your situation is genuinely outside your control, and what hardship would separation cause? Be specific.
- Gather relationship evidence early. The waiver argument leans on a strong, well-documented relationship.
- Get advice before you lodge. This is not a scenario to test by lodging and hoping. The cost of a refusal is high.
Our family and partner migration team handles onshore partner cases where Schedule 3 is in play, including building the compelling reasons argument and the supporting evidence.
Frequently asked questions
Does Schedule 3 apply to every onshore partner visa?
No. Schedule 3 criteria are triggered when an onshore applicant does not hold a substantive visa at the time of lodging. If you currently hold a substantive visa, such as a valid student or work visa, the Schedule 3 criteria for unlawful applicants generally are not the obstacle. The issue arises when your substantive visa has ceased and you are unlawful or on a bridging visa.
What counts as “compelling reasons” for a Schedule 3 waiver?
The legislation does not define “compelling”, so Home Affairs assesses it case by case. Arguments commonly raised include an Australian child, a genuine relationship with serious hardship if separated, health issues, and events outside the applicant’s control that explain how the visa lapsed. None of these guarantee a waiver. The strength of the evidence and the full circumstances matter.
Is 28 days a hard deadline?
Criterion 3001 requires the application to be validly made within 28 days after the relevant day. Many applicants are already past it. That is exactly why the compelling reasons waiver exists, because it allows the decision maker to set the criteria aside where the threshold is met. Confirm the current rule on the official Schedule 3 page.
Can I apply offshore instead to avoid Schedule 3?
Sometimes an offshore partner visa (subclass 309 leading to 100) is a cleaner path, because Schedule 3 is an onshore-application issue. Whether leaving Australia is sensible depends on your status, travel risk, and personal circumstances, and it is not the right move for everyone. This is a decision to take with advice, not on assumption.
What happens if a Schedule 3 waiver is refused?
If the waiver is not accepted and the visa is refused, you may be able to seek review at the Administrative Review Tribunal, usually within a short, strict deadline. Tribunal review is a separate process. Our appeals service explains how it works and what evidence helps.
If your visa has expired and you are in a genuine relationship with an Australian partner, the safest next step is to get your status and dates assessed before you lodge anything. You can book a consultation with our migration lawyers to talk through whether a Schedule 3 waiver argument is realistic in your case.
About the author: Tina Nematian is the Principal Lawyer at One Planet Migration Law. She is an Australian Legal Practitioner and a Registered Migration Agent, and has guided clients through partner, skilled, employer-sponsored, student, and humanitarian visa applications across Australia.
This article is general information only and does not constitute legal or migration advice. Visa rules change frequently and outcomes depend on individual circumstances. Speak with a registered migration lawyer or agent before making any application. Figures were current as of June 2026; always check immi.homeaffairs.gov.au before lodging.
