Schedule 3 Waiver: Partner Visa After Your Visa Expires

If your substantive visa has expired and you are in a genuine relationship with an Australian partner, you can still apply for an onshore partner visa, but you must clear an extra hurdle called Schedule 3. The subclass 820 partner visa requires anyone who does not hold a substantive visa to either meet the Schedule 3 criteria or show there are compelling reasons for the decision maker not to apply them. This article explains what the Schedule 3 waiver is, what counts as a compelling reason, and why the timing of that assessment matters.

What Schedule 3 actually is

Schedule 3 of the Migration Regulations 1994 contains criteria that apply to people who are unlawful non-citizens or who hold only a bridging visa when they apply for certain onshore visas. The relevant clauses for a partner application are 3001, 3003 and 3004.

In broad terms, clause 3001 requires the application to be made within 28 days of the day the applicant last held a substantive visa (or within 28 days of certain events). Clauses 3003 and 3004 impose further conditions on people who became unlawful before or after 1 September 1994 and, among other things, require the applicant to show the unlawful status arose through factors beyond their control and that there are compelling reasons for granting the visa.

For most people whose visa expired more than 28 days ago, clause 3001 cannot be met. That is why the waiver matters. The onshore partner visa criterion at clause 820.211 of the Regulations allows the decision maker to grant the visa despite Schedule 3 if satisfied there are compelling reasons for not applying those criteria.

Why this catches so many couples

The trap is simple and common. A person holds a student, visitor or working visa, the relationship becomes serious, and the visa expires before a partner application is lodged. By the time the couple acts, the 28 day window in clause 3001 has long closed. The application can still be made, but it now depends entirely on the compelling reasons waiver.

There is a second layer to check first. If your last visa was refused or cancelled while you were in Australia, the section 48 bar in the Migration Act 1958 may prevent you from lodging most onshore visa applications at all. A partner visa is one of the limited applications you may still be able to make onshore despite the bar, but the interaction between the section 48 bar and Schedule 3 is technical and should be assessed before anything is lodged.

What “compelling reasons” means

The Regulations do not define compelling reasons, and there is no checklist. The phrase is deliberately broad, which means the decision maker weighs the whole of your circumstances. In practice, factors that have carried weight include:

Australian citizen or permanent resident children of the relationship, and the effect on those children if the family were separated or forced to leave. The best interests of a child are a primary consideration in this kind of assessment.

Genuine hardship to the Australian sponsor, such as a medical condition, caring responsibilities, or an inability to relocate overseas to continue the relationship.

The length and genuineness of the relationship itself, and whether requiring the applicant to depart and reapply offshore would cause disproportionate disruption.

What does not work is convenience. A wish to avoid the cost, delay or inconvenience of leaving Australia and applying from abroad is not, on its own, compelling. The Department and the Administrative Review Tribunal draw a firm line between genuine hardship and ordinary consequences that every offshore applicant faces. The evidence must show why your situation is out of the ordinary.

The Waensila case: timing is everything

For years the Department treated the compelling reasons test as fixed at the date of application. That meant circumstances developing after lodgement, a pregnancy, a diagnosis, a deterioration in a sponsor’s health, could be ignored.

The Full Court of the Federal Court rejected that approach in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. The Court held that the decision maker must consider compelling reasons as they exist at the time of decision, not only at the time the application was lodged. You can read the decision on AustLII.

Waensila is important for two reasons. First, it means a waiver argument can strengthen while the application is pending, and you should keep updating your evidence as your circumstances change. Second, it means that a couple whose reasons were thin at lodgement may nonetheless succeed if genuinely compelling circumstances arise before a decision is made. The application should be prepared with that ongoing evidentiary burden in mind, not treated as a snapshot fixed on the day it was filed.

Practical steps if your visa has expired

Do not lodge on impulse. The onshore partner visa carries a substantial application charge for the main applicant, at $11,710 (as at 2026-07-05; see the Department of Home Affairs current visa pricing), and that charge is generally not refunded if the application fails on Schedule 3. Before filing, three questions need clear answers.

First, does the section 48 bar apply to you, and if so does the partner visa exception still let you lodge onshore? Second, can you meet clause 3001, or must you rely wholly on the compelling reasons waiver? Third, what is the actual evidence for your compelling reasons, and how will it be documented?

Lodging a valid application also gives most applicants a bridging visa, which regularises their status while the application is assessed. That is one reason acting promptly, with proper advice, is better than waiting. The longer a person remains unlawful, the more difficult the overall picture becomes.

Build the compelling reasons case with evidence, not assertion. Statements from the couple, medical reports, evidence about children, and material about the sponsor’s ties to Australia all carry more weight than a bare claim of hardship. Because of Waensila, keep that evidence current right up to the decision.

If the waiver is refused

A refusal is not necessarily the end. Most onshore partner visa refusals attract merits review at the Administrative Review Tribunal, which replaced the former Administrative Appeals Tribunal. The Tribunal considers the case afresh and can take account of your circumstances as they stand at the time of its own decision, which again makes updated evidence critical. You can find general guidance on review at the Tribunal’s own website, art.gov.au. Strict time limits apply to lodging a review application, so a refusal should be acted on immediately.

Where to get help

Schedule 3 cases turn on fine detail: the exact date your last substantive visa ceased, whether the section 48 bar is in play, and whether your reasons are genuinely compelling on the evidence. These are not questions to guess at when the application charge and your lawful status are both at stake. Visa Plan Lawyers advises couples in exactly this position and prepares partner applications so the waiver argument is put at its highest from the outset.

If your visa has expired and you want to apply for a partner visa onshore, our team can assess your options first. Learn more about how we assist on our partner visas page.