If you are applying for an onshore partner visa without holding a substantive visa — your visa expired, or was cancelled, or you have been unlawful — three words decide your application before the relationship is even assessed: Schedule 3 criteria. This guide states what they actually require and how the waiver works, verified against the Migration Regulations 1994 (Compilation No. 288, in force 1 July 2026) and the Full Federal Court's decision in Waensila.
Clause 820.211(2)(d)(ii) of the Regulations requires an onshore partner 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." That single sentence contains both the barrier and the door.
Criterion 3001: the 28-day rule
The application must be validly made within 28 days after the "relevant day" — for the common modern case, the last day you held a substantive visa (or the day of unlawful entry, if later). Lodge within 28 days of falling out of status and 3001 is satisfied; miss it and you are into waiver territory. Most Schedule 3 cases are decided here: by the time people seek advice, the 28 days are long gone.
Criteria 3003 and 3004: the explanation test
For anyone who lost their substantive visa on or after 1 September 1994 (criterion 3004; 3003 covers pre-1994 legacy cases), the decision-maker must be satisfied of a set of factors, in substance:
you became unlawful because of factors beyond your control
there are compelling reasons for granting the visa
you substantially complied with the conditions of your last visa
you would have been entitled to an equivalent visa had you applied in time
you intend to comply with any conditions of the new visa
These are cumulative and evidence-hungry. "I forgot my visa expired" fails the beyond-control test on its face; a documented hospital admission over the expiry period is a different conversation.
The waiver — and what Waensila actually decided
The Minister can waive Schedule 3 entirely where there are compelling reasons for not applying the criteria. The critical point, settled by the Full Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32:
Compelling reasons are not limited to circumstances existing when you applied. The Tribunal in that case had refused to consider circumstances arising after lodgement — the Full Court held that was jurisdictional error. Circumstances arising after you apply, right up to the time of decision, must be able to be considered: a child born during processing, a partner's illness, hardship that developed while you waited. (The Schedule 3 criteria themselves — like the 3001 clock — remain time-of-application; it is the waiver discretion that stays open.)
What "compelling reasons" look like in practice
There is no fixed list, and the waiver remains discretionary even where compelling circumstances exist. Categories that recur in practice — offered as practice-based examples, not entitlements:
Australian citizen or permanent resident children of the relationship, and the consequences for them of the applicant departing
Serious hardship to the Australian partner — medical, financial, care responsibilities — if forced offshore to apply
The applicant's own serious illness or treatment needs
Circumstances of the unlawfulness genuinely beyond the applicant's control (employer or agent failures, family crisis at the expiry window)
The common thread: consequences that go materially beyond the ordinary disruption of applying offshore. "We don't want to be apart for a year" is the ordinary consequence; the waiver case is built on what makes your separation different — and it is built on evidence, not adjectives.
How this plays out strategically
Inside 28 days of losing status? Move immediately — satisfying 3001 outright beats arguing any waiver
Outside 28 days? The application is a waiver case from day one — the compelling-reasons submission is the centrepiece, drafted with the same rigour as the relationship evidence
Circumstances changed while waiting? Post-Waensila, put new compelling circumstances before the decision-maker — a supplementary submission is not optional, it is the case
Refused? The Administrative Review Tribunal reconsiders the waiver afresh, and the deadline is strict and non-extendable — see our appeals guide
Section 48 interacts with all of this: a barred applicant can still lodge the 820 (it is on the excepted list), but arrives at Schedule 3 with a refusal already on the record — the waiver submission carries that weight too. Background: the section 48 bar explained.
Get the waiver case built before you lodge
A Schedule 3 partner application is won in the preparation: the timeline of how status was lost, the evidence for every waiver factor, and a submission that gives the decision-maker a lawful, comfortable path to yes. From our office in Slacks Creek, Logan City, Migration Vision builds Schedule 3 cases as their own project — because that is what they are. Full partner criteria and current charges: 820/801 guide.
Reviewed by Dr Asad Muhammad Khan, Registered Migration Agent, MARN 2619525. Updated 18 August 2026 — verified against the Migration Regulations 1994 (F2026C00667, Schedule 3 and cl 820.211) on legislation.gov.au and Waensila v MIBP [2016] FCAFC 32 on judgments.fedcourt.gov.au. This article is general information, not migration advice for your circumstances.
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