Applying for a Partner Visa Without a Substantive Visa: Schedule 3 and Section 48

People in Australia on a bridging visa, or with no visa at all, can sometimes still apply for an onshore 820 partner visa. But extra criteria apply, and they are often misunderstood.

What Schedule 3 requires

Schedule 3 criteria look at how long you have been without a substantive visa, and why you became unlawful or lost your visa, including whether this was due to factors beyond your control. You must meet them unless the Department is satisfied there are compelling reasons not to apply them. See our guide to Schedule 3 criteria.

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What counts as compelling reasons

A genuine relationship is not, by itself, a compelling reason. The Department’s instructions say the relationship and the hardship of separation are common to almost every case, so they are generally not enough. Factors that can support a waiver include:

• circumstances beyond your control that caused you to become unlawful or stopped you regularising your status, such as serious illness;
• an Australian citizen child with a real link to you, considering the child’s best interests;
• the steps you took to become lawful and how quickly you acted.

Factors against a waiver include a long period without a visa, a history of non-compliance, and little effort to regularise. A waiver is unlikely where it is reasonable to expect you to leave and apply offshore for a 309 visa. All circumstances up to the time of decision are considered.

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Section 48 applicants

If you have had a visa refused or cancelled since you last entered Australia and do not hold a substantive visa, section 48 limits the visas you can apply for. A partner visa is one of the exceptions, but only if:

• you have not had a partner visa refused since you last entered Australia;
• your sponsor’s completed and signed sponsorship form is lodged with the application;
• two statutory declarations are lodged, each by an Australian citizen, permanent resident or eligible New Zealand citizen other than your partner, confirming your relationship, and made no more than 6 weeks before the application.

Schedule 3 may still apply on top of these requirements. See the section 48 bar.

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Former prospective marriage visa holders

If you held a prospective marriage visa, married the person who sponsored you, and then became unlawful, you are not subject to Schedule 3 for the 820. This only applies to marriage, not to a de facto relationship.

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What you should do now

• Check your status: confirm whether you hold a substantive visa, a bridging visa or no visa.
• Act quickly: the longer you are without a visa, the harder Schedule 3 becomes.
• Document your reasons: explain how you became unlawful and why you could not fix it earlier, with evidence.
• Section 48 cases: make sure the sponsorship form and two statutory declarations are lodged with the application.