Schedule 3 Criteria 3001, 3003 and 3004: What Each One Requires

Most guides list Schedule 3 as "criteria 3001, 3003 and 3004" and leave it there, as though all three are live hurdles you have to climb. They are not. Read against the current Regulations, one of those three is a dead letter for almost everyone applying today, another is the test that actually decides the case, and there is a fifth criterion nobody mentions that can end a matter before it starts.

This is what each clause requires, quoted from the source. Verified against the Migration Regulations 1994, Compilation No. 288 (F2026C00667), in force 1 July 2026.

Schedule 3 is headed "Additional criteria applicable to unlawful non-citizens and certain bridging visa holders". That heading is the first useful thing about it: it only ever bites where the applicant does not hold a substantive visa.

For an onshore partner application, the hook is clause 820.211(2)(d)(ii), which requires an applicant who does not hold a substantive visa to satisfy "Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria." The same words appear again at clause 820.212(b) for the second stage.

Criterion 3001 — the 28-day rule, and the date it counts from

3001(1) is short: "The application is validly made within 28 days after the relevant day."

Everything turns on "the relevant day", which 3001(2) defines. In practice one limb does the work: where an applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or entered Australia unlawfully on or after that date, the relevant day is whichever is the later of the last day they held that visa and the day they last entered unlawfully.

There is a limb most summaries omit. Where the last substantive visa was cancelled and the Administrative Review Tribunal has set aside and substituted that cancellation decision, the relevant day runs from the later of the day the visa ceased and the day the applicant is taken to have been notified of the Tribunal's decision — orally under subsection 368(7) of the Act, or otherwise under section 379C. If a cancellation has been to review, the 28 days may not start where you assume.

Criterion 3002 — the 12-month rule that applies to a different route

3002 is a single sentence: the application is validly made within 12 months after the same relevant day.

It is not one of the three criteria imposed by 820.211(2)(d)(ii). It belongs to a separate pathway for applicants who last entered on certain visas. Quoting 3002 as though it is an alternative to the 28 days in a standard Schedule 3 partner case is a common error.

Criterion 3003 — the one that almost never applies now

3003 opens with a condition, and the condition is the point. It applies only where the applicant "has not, on or after 1 September 1994, been the holder of a substantive visa" and, on 31 August 1994, was either an illegal entrant or held an entry permit that was not valid beyond that date.

Read that again. If you have held any substantive visa since 1 September 1994 — a student visa, a visitor visa, anything — 3003 does not apply to you at all. It addresses a cohort whose status problems date to the 1994 transition, more than thirty years ago.

That matters practically. Sites that present 3003 as a live test alarm people unnecessarily, and submissions that argue 3003 at length are arguing something the decision-maker does not have to decide. Where it does apply, it requires factors beyond the applicant's control, compelling reasons for granting the visa, substantial compliance with past conditions, and an entitlement to the equivalent entry permit at the relevant time.

Criterion 3004 — the test that actually decides modern cases

3004 is the live one. It applies where the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or entered unlawfully on or after that date and has not since been granted a substantive visa. That is nearly every Schedule 3 case in 2026.

Where it applies, the Minister must be satisfied of all of the following:

• the applicant is not the holder of a substantive visa because of factors beyond the applicant's control;
• there are compelling reasons for granting the visa;
• the applicant has complied substantially with the conditions on the last substantive visa or entry permit held, and on any subsequent bridging visa — expressly excluding a breach that consisted only of the visa expiring;
• the applicant would have been entitled to be granted a visa of the class applied for on the day they last held a substantive or criminal justice visa;
• the applicant intends to comply with any conditions imposed; and
• where the last visa was a transitional (temporary) visa, it was not subject to a no-further-entry-permit condition.

Two of those deserve emphasis. "Factors beyond the applicant's control" is a genuine evidentiary burden, not a formality — overstaying because you did not check a date is within your control. And the would-have-been-entitled limb is a backdated test: it asks whether the criteria were met on the day status was lost, not today.

Criterion 3005 — the one nobody mentions

3005 provides that a visa or entry permit has not previously been granted to the applicant on the basis of satisfying any of the criteria in Schedule 3, or the equivalent provisions of the 1993 and 1989 Regulations.

In effect it is a one-shot rule. Someone who has already had a visa granted on a Schedule 3 basis cannot rely on the Schedule again. It is not among the criteria imposed by 820.211(2)(d)(ii), so it does not bind a partner applicant directly, but it appears wherever Schedule 3 is applied in full, and it is worth knowing before a second application is contemplated.

The two "compelling" tests are not the same test

This is where submissions most often go wrong, because the same adjective does two different jobs.

• 3004(d) asks whether there are compelling reasons for granting the visa. It sits inside the criterion.
• Clause 820.211(2)(d)(ii) asks whether there are compelling reasons for not applying those criteria at all. It sits outside them, and it is the waiver.

A submission that proves compelling reasons to grant the visa has not thereby proved compelling reasons to disapply Schedule 3. They are answered separately, and a decision-maker is entitled to accept one and reject the other. Which one you are arguing should be explicit on the face of the submission.

Where this leaves a real case

For an onshore partner applicant without a substantive visa in 2026, the practical position is usually this: 3001 has already been failed, because 28 days is short and most people come for advice long after it has run; 3003 does not apply; 3004 is arguable but demanding; and the case is therefore won or lost on the waiver in 820.211(2)(d)(ii), not on the criteria themselves.

That is why the waiver submission is the whole matter. What belongs in one, and what the Full Federal Court's decision in Waensila changed about timing, is set out in the companion piece on Schedule 3 waiver submissions. The broader overview, including how the waiver interacts with a partner application, is in Schedule 3 criteria and waivers, and the related bar on lodging onshore after a refusal or cancellation is covered in the section 48 bar.

Before you rely on any of this

Schedule 3 cases turn on dates and documents, and the dates are often not what the client believes they are. The first thing worth doing is establishing the relevant day from movement records and notification dates rather than memory, because every other question follows from it. Migration Vision advises on Schedule 3 matters for clients anywhere in Australia and offshore. Full criteria and current charges for the visa itself: 820/801 guide.

Reviewed by Dr Asad Muhammad Khan, Registered Migration Agent, MARN 2619525. Updated 25 August 2026 — clause text verified against the Migration Regulations 1994, Compilation No. 288 (F2026C00667, in force 1 July 2026), Schedule 3 and clauses 820.211 and 820.212, on legislation.gov.au. This article is general information, not migration advice for your circumstances, and the Regulations may change.