Partner and Family Visas
Schedule 3 Waivers: Applying Onshore After Your Visa Has Expired
Written and reviewed by the Reliance Law Group immigration team · Published 16 September 2026
People who have overstayed usually assume they have to leave Australia to fix it. For partner visa applicants in particular, that is often wrong. There is a route to applying onshore without a substantive visa, and it runs through a part of the regulations called Schedule 3.
It is not an easy route and it is not available to everyone. But it exists, it is used successfully, and the difference between a case that works and one that does not is usually about evidence and framing rather than luck.
What Schedule 3 is, and when it bites
Schedule 3 to the Migration Regulations contains a set of criteria that apply to people applying onshore who do not hold a substantive visa. A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa.
If you are in Australia and your last substantive visa has expired or been cancelled, and you want to lodge onshore, Schedule 3 is the hurdle in front of you. It comes up most often with the subclass 820 onshore partner visa, which is why it is discussed in partner visa terms, but it is not limited to partner applications.
Schedule 3 only applies if you do not hold a substantive visa at the time you apply. If you still hold one, even a short one, it does not apply to you at all. This is why timing an onshore application before a visa expires is so much better than fixing it afterwards.
The criteria themselves
The relevant criteria are tight, and most people cannot satisfy them directly.
| Criterion | What it requires |
|---|---|
|
3001 |
The application is made within 28 days of the day your last substantive visa ceased, or of the day you were last immigration cleared |
|
3003 |
For those unlawful since before 1 September 1994, a set of conditions about the circumstances of becoming unlawful being beyond your control |
|
3004 |
For those who became unlawful on or after 1 September 1994, conditions including that the factors that made you unlawful were beyond your control and that there are compelling reasons for granting the visa |
The 28 day window in criterion 3001 is the one that matters for most people, and it is usually gone by the time anyone seeks advice. Once you are outside it, satisfying Schedule 3 directly is rarely realistic.
The way through is the waiver
For the subclass 820, the regulations do not simply require Schedule 3 to be met. They require it unless the Minister is satisfied there are compelling reasons for not applying those criteria.
Read that carefully, because the distinction matters and it is missed constantly. You are not arguing that there are compelling reasons to grant you a visa. You are arguing that there are compelling reasons not to apply Schedule 3 to your application in the first place. That is a different submission, aimed at a different question.
The decision maker is not weighing whether you deserve a visa. They are weighing whether the criteria should be set aside so your application can be assessed on its merits like anyone else’s.
What tends to count as compelling
There is no statutory definition, and the case law has resisted producing a closed list. What emerges from decided matters is that compelling means something more than inconvenient, and something more than the ordinary consequences of having to apply offshore.
- Australian citizen or permanent resident children, particularly young children, where separation would be genuinely disruptive rather than merely difficult
- A serious medical condition affecting the applicant or the sponsor, where separation would interrupt treatment or remove a carer
- Circumstances in the home country that make return genuinely unsafe or impractical, evidenced rather than asserted
- A long and well documented relationship where the practical effect of refusal is a lengthy separation of an established family unit
- Financial or business consequences that go beyond ordinary hardship, such as a sponsor's business that cannot function without the applicant
- Circumstances behind the visa lapsing that were genuinely outside the applicant's control, which does not cure the problem but does affect how the discretion is viewed
What generally does not carry the day on its own: the cost of a flight, the inconvenience of processing offshore, a preference to stay, or a relationship that is genuine but recent and lightly documented. Those facts appear in most applications, which is precisely why they are not compelling.
The Babicci point
If you research this yourself you will run into Babicci, and you will see it described as a Schedule 3 case. It is not.
Babicci concerned regulation 1.20J, not Schedule 3. It is cited in Schedule 3 matters by analogy, because it deals with the meaning of compelling in a migration context, and that reasoning has been applied to the Schedule 3 waiver. The analogy is legitimate. The description is not.
This is worth knowing for two reasons. It tells you something about the quality of the source you are reading. And if a submission mischaracterises the authority it relies on, that is not a good look in front of a decision maker who knows the difference.
What separates the cases that work
The pattern across successful matters is fairly consistent, and it is about evidence rather than eloquence.
Cases succeed when the compelling circumstances are specific to the applicant and documented by someone other than the applicant. A medical circumstance supported by treating specialists. A child’s situation supported by school reports, a treating paediatrician or a family report. A safety concern supported by country information that matches the individual’s profile rather than general commentary.
Cases fail when the submission recites hardship in general terms, relies on the applicant’s own statement for every factual claim, or argues the wrong question by making the case for a visa grant instead of the case for setting Schedule 3 aside.
They also fail on avoidable procedural points. Lodging without addressing Schedule 3 at all, on the assumption it can be dealt with later, puts the application at risk from the moment it is made.
Practical sequencing
If your substantive visa has not yet expired, the answer is almost always to lodge before it does. Schedule 3 then never applies, and the whole problem disappears. This is the single most valuable piece of advice on the topic and it is only useful before the fact.
If it has already expired, the sequence is to establish your current status, understand what bridging visa you are on or can obtain, assemble the compelling circumstances evidence before lodging rather than after, and address Schedule 3 squarely in the application rather than waiting to be asked about it.
Where the circumstances are thin, it is worth an honest conversation about whether an offshore application under the subclass 309 is the better path, even though it means leaving. A weak onshore application that fails costs time and money and leaves you no better off.
Frequently asked questions
There is no cut off. Length of unlawfulness affects how the discretion is viewed rather than whether the waiver is available, and long periods have been waived where the compelling circumstances were strong. It does make the submission harder.
No, but they are the most frequently accepted factor. What matters is the evidenced effect on the child, not the fact of the child existing. Age, dependence, health and schooling all feed into it.
No. It is a regulation 1.20J case applied by analogy on the meaning of compelling. Sources that call it a Schedule 3 authority are repeating an error.
That depends on the bridging visa you hold and the conditions attached to it. Work rights are not automatic where you applied without a substantive visa, and they may need to be applied for separately.
Sometimes yes. If your compelling circumstances are weak and there is no barrier to leaving, an offshore application can be the faster and more certain route. It is a genuine strategic decision rather than an obvious one.
Yes. It applies to a range of onshore applications made without a substantive visa. The waiver provision, and how generously it is framed, differs between subclasses.
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