How to lodge a decision-ready partner visa, satisfy or waive Schedule 3, and avoid the mistakes that lead to refusal.
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 or E, or with unlawful status — the process becomes far more complex because of the Schedule 3 criteria in the Migration Regulations 1994.
This 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 an invalid application.
| In Australia without a substantive visa? Get advice before you lodge — Tolic Lawyers prepares Schedule 3 partner visa applications that hold up. Book a consultation: (02) 8077 2562 · toliclawyers.com.au/contact-us |
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), Schedule 3 is engaged, and you must either satisfy the relevant Schedule 3 criteria or obtain a “compelling reasons” waiver.
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 applies.
Understanding the Schedule 3 requirements
For an onshore partner visa, the criteria that must be satisfied (unless waived) are 3001, 3003 and 3004:
- 3001 — the application is validly made within 28 days of the applicant’s last substantive visa ceasing (the “relevant day”).
- 3003 — for applicants who were unlawful before 1 September 1994: the unlawful status was due to factors beyond their control, they complied substantially with prior conditions, and there are compelling reasons for the grant.
- 3004 — for applicants who became unlawful on or after 1 September 1994 (the clause most partner visa applicants engage): not holding a substantive visa is due to factors beyond their control, they would have been eligible for the 820 when they became unlawful, they have complied substantially with prior conditions, they agree to comply with future conditions, and there are compelling reasons for the grant.
(A fourth clause, 3002, sets a 12-month lodgement window but is rarely relevant to partner visas — it mainly arises in limited special-purpose visa situations.) In practice, most applicants cannot meet these strict timing rules, which is why the compelling reasons waiver is so important.
The Schedule 3 waiver: “compelling reasons”
Where you cannot satisfy 3001, 3003 and 3004, the Minister may still grant the visa if satisfied there are compelling reasons for not applying those criteria. The Migration Regulations do not define “compelling reasons”, so each case is assessed on its facts by the Department and, on review, the Administrative Review Tribunal (ART).
The Waensila principle. A critical point: in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court held that the decision-maker must consider all of the applicant’s circumstances up to the time of decision — not just those existing at the time of application. Because there is often a long gap between lodging and a decision, this means compelling circumstances that arise after lodgement can be taken into account. Waensila significantly broadened the scope of these waivers and is central to how a strong submission is framed.
What counts as “compelling reasons”?
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;
- significant financial or emotional hardship if the applicant were required to depart Australia; and
- circumstances genuinely beyond the applicant’s control that explain the loss of lawful status.
Importantly, the threshold is high. Departmental policy is clear that simply being in a genuine relationship, and the hardship of separation if required to apply from overseas, is not, on its own, generally regarded as compelling. Decision-makers also weigh how long the applicant has been unlawful, what steps they took to regularise their status, and whether it is reasonable to expect them to depart and apply offshore. 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 — the ‘Sponsorship for a Partner to Migrate to Australia’ form, lodged online by your partner via ImmiAccount. The sponsor must be an Australian citizen, permanent resident or eligible New Zealand citizen, and must provide evidence of that status (passport, citizenship certificate or PR grant — a driver’s licence or Medicare card is not sufficient).
- Statutory declarations from the applicant and sponsor setting out the history and nature of the relationship, addressing the four pillars — the financial aspects, the nature of the household, the social aspects, and the nature of the couple’s commitment to each other (Regulations 1.09A / 1.15A) — on the official Commonwealth form, properly witnessed.
- A minimum of two statutory declarations (each made within the last six weeks) by an Australian citizen, permanent resident or eligible New Zealand citizen confirming the relationship, with evidence of each declarant’s status.
- Form 888 declarations from third parties — supporting evidence of the relationship that does not replace the applicant’s and sponsor’s own statutory declarations.
- A dedicated Schedule 3 submission addressing clauses 3001, 3003 and 3004 and the compelling reasons for a waiver.
Common mistakes when lodging without a substantive visa
| Mistake | Likely result |
| No Schedule 3 submission | Refusal for failing to meet a key criterion |
| 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 Parramatta-based migration law team serving clients Australia-wide via Zoom and email.
| The wrong approach can lead to refusal or removal. Let Tolic Lawyers prepare a complete, compliant application and advocate for your Schedule 3 waiver. Book a consultation: (02) 8077 2562 · toliclawyers.com.au/contact-us |
Frequently asked questions
Can 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.
Is being in a genuine relationship enough for a waiver?
Generally no. Departmental policy treats a genuine relationship and separation hardship, on their own, as insufficient. Compelling reasons usually require stronger factors — such as affected Australian children, serious illness, or circumstances beyond your control — supported by strong evidence.
Can circumstances that arise after I lodge be considered?
Yes. Following Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the decision-maker considers compelling circumstances up to the time of decision, not only at the time of application.
What if my partner visa is refused under Schedule 3?
You may be able to seek review at the Administrative Review Tribunal (ART). Strict time limits apply, so obtain advice immediately if you receive a refusal.
Tolic Lawyers — Immigration & Employment Law
Suite 19/103 George Street, Parramatta NSW 2150
P: (02) 8077 2562 · E: · toliclawyers.com.au
Disclaimer: This article is for general information only and is current as at June 2026. 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. Liability limited by a scheme approved under Professional Standards Legislation.
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