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In this video, Time for Advice will cover Schedule 3 of the Migration Regulations.
Schedule 3 under the regulations applies an extra set of criteria that you may satisfy when applying for certain visas. Generally, schedule 3 can apply when you’re making a visa application onshore and you don’t hold a substantive visa.
If you don’t hold a bridging visa or you’re here unlawfully and do not hold a visa at all, Schedule 3 can be of assistance.
So, how do you satisfy Schedule 3?
Importantly, there are a number of parts to Schedule 3 requirements.
Firstly, circumstances must have arisen after you last entered Australia. These circumstances have to occur prior to your arrival, be beyond your control, and caused you to stop holding a substantive visa.
Now beyond that, you must also show that there are compelling and compassionate reasons for the grant of the visa and that your last substantive visa did not carry a ‘no further stay’ condition.
It’s really important to remember that all aspects of that test must be satisfied. It’s not sufficient to just show that you had compelling and compassionate reasons. In the current environment and the pandemic (COVID-19), Schedule 3 has become somewhat easier to satisfy.
For many, COVID-19 began after they last entered Australia. It was beyond their control, caused significant fear, anxiety, and complicated travel issues. In many cases, individuals were unable to exit Australia and apply offshore removing the possibility of holding a bridging visa or being staying in the country unlawfully.
Since COVID-19, it has been easier to satisfy Schedule 3 requirements whereas prior it was very difficult.
So, what circumstances will stand in the way of satisfying Schedule 3:
1. If it’s shown that you’ve had a failure to comply with any previous visa conditions that will hinder the application of Schedule 3; and
2. If it can be implied that you’re deliberately trying to manipulate your circumstances to remain in Australia, then that can severely impact the ability to satisfy Schedule 3.
Now, what visas does it attach to?
In very broad terms, it attaches to most family visas. It also attaches to New Zealand family visas, 461s, etc. It also attaches to onshore tourist visas.
It’s very important to be aware of whether or not you’re going to have to satisfy extra criteria when making an application.
Now, can the additional criteria be waived? Well, actually in certain circumstances, yes, it can be waived. For example, in partner visas, the regulations allow for the minister to waive in circumstances where it shouldn’t be applied for compelling and compassionate reasons.
Your ability to have the requirements waived depends on the visa that you’re applying for. Otherwise, you will have to satisfy the conditions and satisfy every part of the test.
Again, these are the sorts of things that you should take advice on. We recommend that you visit www.timeforadvice.com.
On the website, you can outline your circumstances, get a lawyer to advise and map out your pathway forward. You will need advice on whether or not you’re likely to satisfy the visa requirements. Especially with such things as partner visas where you could spend nearly $8,000 on a filing fee.
Should you have a visa refused due to a failure to satisfy Schedule 3 onshore, then, of course, that’s a reviewable decision and you can take it to the Administrative Appeals Tribunal (AAT) to be clarified further.
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