Schedule III Criteria can get confusing because of the discretionary factors that are used to assess whether an applicant meets the criteria to grant a waiver.

When someone is applying for a visa such as a partner visa, it requires the applicant to hold a substantive visa when applying if the application is made within Australia. There are circumstances where the applicant may not have a substantive visa, for example the applicant may have a Bridging Visa or be an unlawful non-citizen.

Schedule III Criteria allows for an unlawful non-citizen to apply for a visa while residing in Australia if the applicant can meet a number of requirements. If the requirements are met, the applicant will have the ability to apply for a visa in Australia rather than having to leave Australia and apply for it from another country.

Schedule III Criteria

The applicant firstly needs to meet the visa requirements, and in addition the following:

  • 3001 –this applies to visa applications made within 28 days of certain events or;
  • 3002 – applications made within 12 months of certain events and;
  • 3003 – applicants what became unlawful due to factors beyond their control, substantial compliance and compelling circumstances are assessed as mitigating factors or;
  • 3004 – applicants who are unlawful due to factors beyond their control, and compelling circumstances are assessed as mitigating factors and;
  • 3005 – relates to ability to access Schedule III provisions.

Schedule III provisions have the purpose to urge non-citizens who have reasons for remaining in Australia to apply for a visa before their current visa expires. It also discourages unlawful non-citizens from staying in Australia after their visa expires.

These provisions prevent unlawful non-citizens from reaping any benefits from residing in Australia unlawfully, by the possibility of them being granted visa eligibility.

There are situations that result in non-citizens residing in Australia without a substantive visa due to circumstances that they have had no control over. These situations can create compelling reasons as to why non-citizens should be granted a visa to stay in Australia.

The Department also has difficulties in interpreting and assessing the weight that should be attached to applicants that allege:

  • That they were unaware that the were an unlawful non-citizen;
  • Not aware that they didn’t hold a substantive visa;
  • Did not understand the period that their visa was effective; or
  • Did not understand the conditions of their visa.

If an applicant is unaware, it may be seen as not within the applicant’s control if the visa expired on an earlier date then what was labelled.

It is reasonable to believe that a visa holder understands the conditions of their visa and are aware of the expiry date but this can proved incorrect if evidence is produced. Such evidence can be a file record that proves that the visa holder was given wrong advice.

The visa applicant has to prove that there are compelling reasons as to why the visa should be granted. These compelling reasons may come from the applicant’s circumstances or the circumstances of those around the applicant.

When applying Schedule III, no two people are the same even though the same principles apply. Two points must be discussed when looking at Schedule III:

  • Factors that led the applicant to be unlawful; and
  • Were the factors not within the applicant’s control?

Applicants that attempt to use the excuse that their migration agent didn’t lodge the application or say they were unaware, it is unlikely that those reasons will lead to waiving Schedule III.

There should always be a plan B, which may even be leaving Australia and submitting the application from another country if the eligibility criteria are met.

If you need advice in relation to Schedule III criteria, Results Migration is the best in the field. Call us on 1800 808 717 or email us on [email protected] and book your free consultation today!