Schedule 3 and Partner visas: What You Need to Know

09 Dec

It is a requirement of most permanent visas that the visa applicant meets the Schedule 3 requirement contained in the criteria for the visa grant.

Schedule 3 makes it compulsory for a visa applicant to hold a valid “substantive” visa at the time of application, or if they do not hold a substantive visa at the time of the visa application, no more than 28 days have elapsed since they last held a substantive visa.

A “substantive visa” is any visa other than a bridging visa.

Refusal of a visa as a result of not meeting the Schedule 3 criteria of the visa occurs because the visa applicant did not hold a substantive visa at the time of their application for a partner visa – and they did not demonstrate sufficiently compelling and/or compassionate reasons why the Schedule 3 criteria should be waived (overlooked).

Schedule 3 and Partner Visas

If you have been asked to prove you met Schedule 3 at the time of application for your visa, it is because the case officer considers you did not meet the Schedule 3 criteria when you applied for your partner visa. You were either unlawful (did not hold any visa) for more than 28 days before the visa application and did not hold a valid visa, or you held a Bridging Visa for more than 28 days before your Partner Visa application.

Schedule 3 Waiver

If you have received a “Schedule 3 Request”, you must seek a waiver of the Schedule 3 criteria to have any chance of your visa being granted. Generally, you have 28 days to respond to this request. To successfully gain a waiver of Schedule 3 requirements, you must show that there are compelling and compassionate circumstances affecting an Australian citizen, an Australian permanent resident, or an Australian business of such magnitude/significance that a case officer believes that there is no other course than to waive the Schedule 3 criteria.

Factors a Case Officer will take into account when considering your case

In relation to partner visas, the mere fact that a relationship is a lengthy one is, without other factors, unlikely to convince a case officer to waive the Schedule 3 requirements. This is because, departmental policy, states that a strong/lengthy relationship is a requirement for a partner Visa, in any event, and cannot by itself constitute compelling reasons to waive the Schedule 3 requirements.

Make no mistake – Getting a waiver of Schedule 3 is very difficult.

Factors we have found that may cause a case officer to waive the Schedule 3 requirements are:

• The birth of an Australian citizen child to the couple.
• A genuine reliance of the sponsor on the Visa applicant, such as a result of ill-health, mental health issues, family health issues, significant financial reasons e c. Such a situation would need to be exceptional and substantial for a case officer to be convinced to waive the requirement.
• An inability (for whatever reason) for the Visa applicant and/or the sponsor to return to the visa applicant’s home country – e.,gdue toof a fear of persecution, impending conflict or other situation of danger.
• An inability for the sponsor to move to the Visa applicant’s home country as a result of an inability to gain a visa, inability to speak to language or gain employment/earn a living.

All of the situations above would require significant evidence to establish that the claim is truthful, as it will be the case officer’s primary consideration that a visa applicant subject to Schedule 3 should return to their home country and apply for an offshore partner Visa.

Some success stories

An unlawful client
Our client had been unlawful for several years and was in along-term relationship with his partner. They had two Australian citizen children together and his partner had suffered severe depressions for approximately two years – primarily as a result of the stress and uncertainty of our client’s situation.

A Client with a fear of persecution
Our Zimbabwean client had a partner visa refused because he did not meet the requirements of Schedule 3 as he held a bridging visa at the time of his Partner Visa application. Our client held a fear of persecution based on two of his close family members being murdered by the (at that time) ruling party’s henchmen.

We prepared written submissions and adduced substantial evidence on our client’s behalf outlining not only his fear of persecution, but his partner’s extreme fear and stress that something would happen to him if he were forced to return to Zimbabwe. The Tribunal remitted the matter, and our client is now a permanent resident of Australia.

A client whose sponsor had a significant mental illness
A client who did not meet Schedule 3 had his visa granted after we provided evidence that his sponsor was mentally ill and would not recover if her partner was forced to move back to his home country and abandon her during her ongoing psychiatric treatment.

A same-sex partner with a health issue who also failed to meet Schedule 3
Our client was in a same-sex relationship and was HIV +. The visa application was refused, and we successfully argued before the Tribunal that our client would be victimised because of his homosexuality and would not receive appropriate treatment if he was forced to return to his home country if the Tribunal upheld the refusal decision.

A client with a partner whose occupation was critical to Australia
Our client’s sponsor partner’s occupation was critical to Australia’s economy. The application was granted after our written submissions convinced the decision making Case Officer that Australia was experiencing critical shortages of the occupation that the sponsor practised.

Schedule 3 waiver requests

Schedule 3 waiver requests must be made in writing by way of submission with relevant and substantial eviden e. It is absolutely of no use to make statements in an attempt to obtain a waiver without producing evidence to support your case.

For example, if you claim that you have Australian children with your sponsor, you must provide relevant birth certificates and produce evidence that you are parenting your children and involved in their liv s. It is also necessary to outline the probable impact upon the children if you are forced to leave Australia because of a visa refusal, or if you were forced to leave Australia to lodge another Visa application.

Similarly, if you claim that your sponsor is dependent on you emotionally, physically or financially, you must produce significant evidence demonstrating this to be true.

Statutory Declarations in Schedule 3 matters are also critical to the application’s success, as a case officer will review the words contained in a statutory declaration as carrying more weight than a simple written statement. This is because it is illegal to provide fraudulent information in a Statutory Declaration under the relevant Commonwealth legislation.