Complex Partner Visa - Schedule 3 Criteria
Is it possible to apply for an onshore Partner visa without having a valid visa?
The challenging nature of applying for a further visa in Australia while on a non-substantive visa, that is, if you do not have a valid visa, is that you are probably concerned about the prospects of success of your Partner visa application.
In this case, you’ll have to meet the additional Schedule 3 requirements.
In this article, we’ll go over the implications of applying for a partner visa in Australia while you don’t have a valid visa as well as how to meet the additional Schedule 3 criteria to get your application approved.
Tell us your story and what stage you are in and let’s see how we can help you.
Step by step guide
Jay Son – Australian Immigration Lawyer
Jay Son, our principal migration lawyer and Director of Hummingbird Legal is based in Australia and highly experienced in complex partner visa legal submissions and applications.
Jay is admitted to the Supreme Court of Queensland and the High Court of Australia. Jay is based in Australia and practises exclusively in Australian immigration law.
Jay is a strong migration advocate and is highly experienced in challenging government decisions in relation to Australian immigration law. He solves difficult migration matters and visa problems including complex partner visas, AAT appeals, visa refusals, visa cancellations, Schedule 3 criteria submissions, health waiver and character concerns.
If you want to learn more about Jay, click here.
Step 1 – What is Valid Visa (‘substantive visa’) – Do you hold a valid visa?
The term ‘valid visa’ is referred to as a ‘substantive visa’ within the Australian migration law language.
To clarify, substantive visa is any visa that is NOT a bridging visa or a criminal justice visa or an enforcement visa.
If you only hold a bridging visa for whatever reason, you don’t actually hold a substantive visa, and that means you don’t hold a valid visa in Australia.
Step 2 – Why would someone not hold a valid in Australia?
There are three scenarios to help us understand this question.
The first scenario may be that you might have overstayed your visa. So, you first came to Australia on a valid visa, which could have been a student visa, tourist visa or something else but then you didn’t apply for a new visa on time and didn’t leave Australia. In this scenario, at this stage you’ve then become an unlawful non-citizen.
The second scenario may be that your visa might have been cancelled. Now, a visa can be cancelled for many different reasons but the most common ones are (1) one, if you’ve breached your visa conditions or; two (2), if you’ve committed crimes in Australia and therefore have a significant criminal record. In this case, once your visa is cancelled, you would no longer be holding a valid visa.
The last scenario may be that you are on a bridging visa. As I said earlier, a bridging visa is not a substantive visa, and therefore, it is not a valid visa. There might be many situations as to why you may be on a bridging visa. For example, you might have applied for an onshore visa while you still held a valid visa and therefore a bridging visa was granted. That means that whatever valid visa you previously held has now expired and now your bridging visa is active.
Or the other situation may be that your application was refused or the visa that you held was cancelled and you’ve subsequently appealed your case to the AAT or the Court.
In all of the above circumstances, you can apply for a partner visa in Australia. But there is one exception and this is very important. If you’ve already had an onshore partner visa refused, which means, you’ve previously applied for a partner visa in Australia and that application was refused, you cannot apply for another partner visa in Australia WITHOUT first leaving Australia. So the Department does not allow you to make repeated partner visa applications in Australia.
Step 3 – How can you apply?
Now we know that you can do it, but now you need to know how you can do it.
There are two key points to remember.
(1) Time of Application Requirement
Our first key point will apply to applicants in a specific situation. This is if you already had your visa application refused in Australia, while you were on a bridging visa. In this case, when you apply for your partner visa in Australia, you have to get two statutory declarations (or Form 888) from Australian witnesses upfront, and these must expressly declare that ‘you and your partner are in a married relationship or de facto relationship’, and that they believe that the relationship is genuine and continuing.
The other important thing to note is that the statements must NOT be older than six (6) weeks when you apply. These witnesses could really be anyone who understands your relationship and who can vouch for you. But typically, they are your family members, friends, relatives or even co-workers.
Now, you probably have heard of this requirement in a normal partner visa as well, but there is a huge difference.
In a normal partner visa, you can provide these witness statements (or Form 888) at any time of your visa application as long as a decision on your application hasn’t been made. So, the Department is a bit more forgiving when it comes to a normal partner visa, so they might allow you to provide it at a later time if you need more time to get the statements, or even ask you to provide it if they weren’t provided at the time you lodged your partner visa.
However, if you are applying for a partner visa on a non-substantive visa, that is, without a valid visa, the Department will invalidate your application if these statements are not provided in your application upfront, at the time it was lodged. This is because there is a restriction in the legislation somewhere that says that these must be provided at the time of application. To put it simply, they won’t even accept your application from the get go.
(2) Schedule 3 Requirements
The second key point to take note of is the Schedule 3 – Compelling Reasons. Now, in order to satisfy the Schedule 3 requirement, it really involves a careful assessment of your individual circumstances as every case is different. For this requirement, you need to convince the Immigration Department that you have had no other option but to stay in Australia and apply for a partner visa while still onshore.
The Immigration Department will consider a variety of factors about your whole situation up until the time they finalise your case, as well as the circumstances giving rise to the time you initially became unlawful – so what this means is that they are interested to know if there were any crucial events that might have prevented you from applying for the partner visa while you still held a valid visa, and also, if you have any personal situations or circumstances that may be compelling enough for the Department to grant you the visa.
Step 4 – What to do next?
So if you are lucky enough to have an Australian spouse or de facto partner, one option is to apply for an Australian partner visa while you are still onshore.
But just be aware of the Immigration Department’s intention behind the Schedule 3 partner visa requirement. The Department’s intention is to prevent people from overstaying their visa and then applying for a visa while still in Australia, continuously maintaining their unlawful status on an ongoing basis. So, while it’s possible to apply for a partner visa in Australia without a valid visa, it’s not necessarily easy to satisfy the Schedule 3 requirement unless you really have strong compelling reasons. You’ll also need to be able to explain these reasons very well.
You can do this by providing strong personal evidence and well-written submissions to the Immigration Department when you apply for your partner visa.
If you’re not sure if the personal events in your life would be compelling enough for the Department to consider, a migration lawyer can help you navigate your options and advise you of the best course of action moving forward.
We have had several successful Schedule 3 partner visa applications. We assist our clients by identifying their most compelling arguments, compiling all pertinent evidence, and drafting persuasive submissions on their behalf. We will talk to you and your partner, relatives, family members, community members and employers to gather evidence.
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