How to Apply for the 820/801 Onshore Partner Visa in Australia without a substantive visa
Applying for an onshore partner visa (Subclass 820/801) is one of the most significant decisions a couple can make under the Migration Act 1958. For applicants who do not hold a substantive visa — including those on a Bridging Visa C, Bridging Visa E, or with unlawful status — the process becomes far more complex because of the Schedule 3 criteria in the Migration Regulations 1994.
This step-by-step guide from Tolic Lawyers explains how to lodge a decision-ready partner visa without a substantive visa, satisfy or waive the Schedule 3 requirements, and avoid the mistakes that lead to refusal or invalidation.
Why Partner Visa Applications Are Complex Without a Substantive Visa
Under clause 820.211(2)(d) of Schedule 2 to the Migration Regulations, an onshore partner visa applicant must normally hold a substantive visa — such as a student, visitor, or work visa — at the time the application is lodged.
If you hold no substantive visa (for example, you are on a Bridging Visa C, D or E, or you are an unlawful non-citizen), you must do one of two things:
Satisfy the Schedule 3 criteria (clauses 3001, 3002, 3003 and 3004)
What Is a Substantive Visa?
A substantive visa is any visa other than:
a Bridging Visa;
a Criminal Justice Visa; or
an Enforcement Visa.
So if you are on a Bridging Visa C, D or E — or you currently hold no visa at all — you are treated as not holding a substantive visa, and Schedule 3 is engaged.
Understanding the Schedule 3 Requirements
Schedule 3 sets out additional criteria for onshore applicants who do not hold a substantive visa. The key clauses are:
3001 — the application is validly made within 28 days of the applicant’s last substantive visa ceasing.
3002 — the application is validly made within 12 months of the applicant’s last substantive visa ceasing.
3003 — for applicants unlawful before 1 September 1994, the unlawful status was due to factors beyond their control and there are compelling reasons for the grant.
3004 — for applicants who became unlawful on or after 1 September 1994, similar criteria apply, including that the breach of visa conditions was not due to the applicant’s own conduct and compelling reasons exist.
In practice, most applicants cannot meet these strict timing rules, which is why the compelling reasons waiver is so important.
What Are “Compelling Reasons” for a Schedule 3 Waiver?
The Migration Regulations do not define “compelling reasons”, so the Department and the Administrative Review Tribunal assess each case on its facts. Circumstances that have supported a waiver include:
Australian-citizen or permanent-resident children who would be adversely affected;
serious illness, disability or incapacity affecting the applicant or sponsor;
a genuine, long-standing relationship where separation would cause significant hardship;
significant financial or emotional hardship if the applicant were required to depart Australia.
The threshold is high. A well-evidenced, carefully drafted Schedule 3 submission is usually the single most important part of these applications.
Mandatory Documents for Applicants Without a Substantive Visa
To avoid refusal or an invalid application, your lodgement should include:
- Sponsorship application — lodged online by your partner through ImmiAccount. The sponsor must be an Australian citizen, permanent resident, or eligible New Zealand citizen.
-
If you do not hold a substantive visa and are eligible to apply for this visa, you must do the following:
- Include a ‘Sponsorship for a Partner to Migrate to Australia’ online form completed by your sponsor. Your sponsor must be an Australian citizen, permanent resident or an eligible New Zealand citizen. Your sponsor can lodge the form using your ImmiAccount or their own ImmiAccount once they have your Transaction Reference Number (TRN) or Application ID.
- Evidence to demonstrate your sponsor’s status (for example, passport or birth certificate). A driver’s licence or Medicare card is not sufficient evidence.
- Minimum of two statutory declarations, each made within the last six weeks by an Australian citizen, Australian permanent resident or eligible New Zealand citizen confirming that you and your sponsor are in a married or de facto relationship.
- The Commonwealth Statutory Declaration form is available from the Attorney-General’s Department.
- Provide evidence that the declarants are Australian citizens or permanent residents, or eligible New Zealand citizens (for example, passport or birth certificate). A driver’s licence or Medicare card is not sufficient evidence.
- Evidence of the sponsor’s status — an Australian passport, citizenship certificate, or permanent residency grant notice.
- Statutory declarations from the applicant and sponsor setting out the history and nature of the relationship and 4 pilllars, using the official Commonwealth form from the Attorney-General’s Department, properly witnessed.
- Form 888 declarations from third parties — these are supporting evidence of the relationship and do not replace the applicants’ own statutory declarations.
- A dedicated Schedule 3 submission addressing the relevant clauses and the compelling reasons for a waiver.
Common Mistakes When Lodging Without a Substantive Visa
Mistake Likely result
No Schedule 3 submission Refusal for non-compliance
Missing statutory declarations Relationship not properly evidenced
Relying only on Form 888s Relationship not adequately established
Missing sponsor documents Sponsorship refused
No compelling reasons addressed Schedule 3 waiver fails
Why Applicants Choose Tolic Lawyers
10+ years of experience with 820/801 partner visa applications and Schedule 3 waivers;
specialists in complex bridging-visa and unlawful-status cases;
fixed-fee services and decision-ready lodgements; and
a Sydney-based migration law team (Parramatta) serving clients Australia-wide via Zoom and email.
Frequently Asked QuestionsCan I apply for a partner visa if I have no visa in Australia?
You can lodge an onshore 820/801 partner visa as an unlawful non-citizen, but you must address the Schedule 3 criteria and usually argue compelling reasons for a waiver. Getting advice before lodging is strongly recommended.
Can I get a partner visa on a Bridging Visa C or E?
Yes, but a Bridging Visa is not a substantive visa, so Schedule 3 applies. A carefully prepared waiver submission is essential.
What happens if I don’t address Schedule 3?
The application is likely to be refused for failing to meet a key criterion, even if your relationship is genuine.
Ready to Apply?
If you are in Australia without a substantive visa, or your visa has expired, get professional advice before lodging. The wrong approach can lead to refusal or removal. Let Tolic Lawyers help you prepare a complete, compliant application and advocate for your Schedule 3 waiver.
Book a consultation
(02) 8077 2562 or www.toliclawyers.com.au
Disclaimer
This article is for general information only. It does not constitute legal advice and does not create a lawyer–client relationship. Migration law changes frequently and outcomes depend on individual circumstances. For personalised advice about an onshore partner visa 820/801 application without a substantive visa, contact Tolic Lawyers.
Estimated reading time: 6 minutes
