What is Schedule 3?
Schedule 3 of the Migration Regulations 1994 broadly applies to people who do not hold a substantive visa, are residing in Australia, and wish to lodge a substantive visa application. This includes people who are on a bridging visa, a criminal justice visa or are unlawfully residing in the country.
If your current immigration status is one of the above, schedule 3 applies specific criteria that must be satisfied in order to successfully apply for a substantive visa. The Minister must be satisfied that there are compelling reasons for not applying those criteria.
These guidelines exist alongside and in addition to the criteria of the substantive visa that you wish to apply for.
Which substantive visas does this criterion apply to?
Whilst not all substantive visa applications are affected by this schedule, the visas that are affected can be found in Schedule 2 list of the Migration Regulations 1994.
Schedule 3 criteria
Schedule 3 sets out five criteria. These criteria establish time guidelines (3001 and 3002) as well as reasons for applying for the visa and why it should be granted (3003 and 3004).
Criteria 3003 and 3004 apply often in combination with criteria 3001 (or 3002) and 3005.
Criterion 3001
- The visa application must be made within 28 days after your substantive visa ceased or from the date of unlawful entry.
Criterion 3002
- The visa application was made within 12 months after your substantive visa ceased or from the date of unlawful entry.
Whether the time requirements of 3001 or 3002 are dependent on the specific substantive visa subclass that you wish to apply for.
Criterion 3003
This criterion is relevant to applicants who do not currently hold substantive visa (or have not held a substantive visa since September 1, 1994).
If this is relevant to your circumstances, you must be able to show:
- you entered or remained in Australia without a substantive visa due to reasons beyond your control; and
- you have compelling reasons to receive the visa; and
- you have mostly followed the rules of any previous visas or bridging visas, except for issues caused by your visa expiring; and
- you plan to follow the rules of the new visa; and
- your last visa was not subject to a condition that prevents you from applying for another visa while in Australia.
Criterion 3004
This criterion applies to applicants who do not hold a substantive visa or entered Australia unlawfully and have not subsequently been granted a substantive visa (since September 1, 1994). If this is relevant to your circumstances, you must be able to show:
- you entered or remained in Australia without a substantive visa due to reasons beyond your control; and
- you have compelling reasons to receive the visa; and
- you have mostly followed the rules of any previous visas or bridging visas, except for issues caused by your visa expiring; and
- either:
- If you once had a substantive or criminal justice visa, they would have qualified for the current visa if you had applied when that visa was valid; or
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- If you entered Australia unlawfully, you would have met the visa criteria (except for certain requirements) when you last entered; and
- you plan to follow the rules of the new visa; and
- if you previously held a transitional (temporary) visa, it didn’t have a condition preventing you from applying for another visa while in Australia.
Criterion 3005
A visa or entry permit has not previously been granted based on the satisfaction of any of the criteria set out in:
- this Schedule; or
- Schedule 6 of the Migration (1993) Regulations; or
- regulation 35AA or sub-regulation 42(1A) or (1C) of the Migration (1989) Regulations.
Note: Section 10 of the Migration Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.
Meanings within the criteria
Beyond your control
The phrase “factors beyond the applicant’s control” is understood in its ordinary sense and is evaluated on a case-by-case basis.
The beginning point of this definition looks at external factors that you did not have the known ability or power to change.
Claims that you were unaware you didn’t have a valid visa when entering or staying in Australia will generally not be accepted within the definition of factors beyond your control, unless there is specific evidence showing that external factors, not your own actions, caused your lack of awareness.
The Department may deem the circumstances to be beyond your control when:
- You received incorrect departmental advice.
- An invalid application was lodged, and you were unaware and unnotified about its invalidity.
- There was inaction by your migration agent. Such as, if a previous migration agent assisting you has since been deregistered, the Department may find that the negligent action by the agent was beyond your control.
Compelling reasons
There is no specific definition that is applied, but rather the Department will consider the facts of your specific situation and make a subsequent decision.
The evaluation will generally include evaluation of any facts which require compassionate consideration.
The Department may be satisfied that you have compelling reasons for your visa to be granted when:
- Compassionate factors have been established necessitating the grant of a visa.
- Serious illness or accident which impacted your ability to remain or enter the country lawfully.
- Other external factors beyond your control.
Circumstances constituting compelling reasons can arise at any time, up until the time of decision. Compelling circumstances may be your own or resulting from the circumstances of another person.
Delegates are required to pay consider submissions by the visa applicant as to any compelling reasons occurring after the date of application, which may continue to exist at the time of decision.
If you have concerns about your eligibility to apply, please contact us for an appointment and we will guide you through the process to live and work in Australia.
