Schedule 3's 28 Days: How to Work Out Your Relevant Day

Schedule 3 criterion 3001 gives 28 days. Almost every article says so and stops there, which is unhelpful, because the 28 days is the easy part. The hard part is what day it counts from — and for a meaningful number of people that day is later than they assume, which occasionally means the criterion has not been failed at all.

This sets out how clause 3001(2) defines "the relevant day", quoted from the Migration Regulations 1994, Compilation No. 288 (F2026C00667, in force 1 July 2026).

The rule, and the thing it depends on

Criterion 3001(1) reads: "The application is validly made within 28 days after the relevant day (within the meaning of subclause (2))."

So 3001 has exactly two moving parts — a fixed 28 days, and a defined relevant day. Everything worth arguing sits in the second. The same definition also governs clause 3002, which gives 12 months rather than 28 days on a different pathway: 3001(2) opens "For the purposes of subclause (1) and of clause 3002".

Where the 28 days sit in a partner application as a whole — the criteria, the waiver and the strategy — is covered in Schedule 3 for partner visas.

The four limbs at a glance

Clause 3001(2) sets out four cases. Two are historical and two are live.

The two historical limbs

(a) Pre-September-1994 entry permit holders. Where the applicant held an entry permit valid up to and including 31 August 1994 and has not since held a substantive visa, the relevant day is 1 September 1994.

(b) Pre-September-1994 illegal entrants. Where the applicant became an illegal entrant before 1 September 1994 and has not held a substantive visa at any time on or after that date, the relevant day is the day they last became an illegal entrant.

Both of those address a cohort whose status problems date to the 1994 transition. For anyone who has held a substantive visa in the last thirty years, neither applies.

Limb (c) — the ordinary case

Where the 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 the applicant held a substantive or criminal justice visa; or
• the day the applicant last entered Australia unlawfully.

This is the limb that governs nearly every modern case, and the word doing the work is later. Someone whose visa ceased years ago but who subsequently entered unlawfully takes the later of the two dates, not the first.

Limb (d) — the cancellation-then-review case

This is the limb that gets missed, and it is the reason this article exists.

Where the applicant's last substantive visa was cancelled, and the Administrative Review Tribunal has made a decision to set aside and substitute the cancellation decision — or the Minister's decision not to revoke the cancellation — the relevant day is the later of:

• the day that last substantive visa ceased to be in effect; and
• the day fixed by the Act's notification rules. Where the Tribunal's decision is given orally, the applicant is taken under subsection 368(7) to have been notified of it. Otherwise the applicant is taken under section 379C to have received the notification. The Regulations use those two different verbs deliberately, and on a question of deadline computation the difference is worth respecting.

The practical effect: if a cancellation has been to the Tribunal, the 28 days may not have started when the visa ceased. It may start from the notification of the Tribunal's decision, which can be months or years later. A client who assumes they are hopelessly out of time may not be.

Two words that decide whether limb (d) helps you

Note the precision required. The limb refers to a decision to set aside and substitute the cancellation decision. A Tribunal decision that simply affirms the cancellation is not that. And "taken to have been notified" is a statutory deeming provision, not the day the letter was opened — which is why the notification method and date must come from the file, not from recollection.

Why the date has to be evidenced, not remembered

In our experience clients are frequently wrong about these dates, and the error is almost never deliberate. Common causes:

• Confusing the visa expiry date printed on a grant notice with the day the visa actually ceased, where it ceased earlier by cancellation or by a condition.
• Confusing the day a decision was made with the day the applicant is taken to have been notified of it.
• Forgetting a short trip, which can shift limb (c) if there was an unlawful entry.
• Treating a bridging visa as a substantive visa. It is not — bridging visas are precisely what Schedule 3 contemplates the applicant holding.

The documents that settle it

Movement records, the grant and cessation notices, any cancellation notice, and any Tribunal decision with its notification details. Those should be obtained before advice is given, not after.

If the 28 days really has passed

In our experience it usually has, and that is the ordinary situation rather than a disaster. The application does not become impossible; it becomes a waiver case. Clause 820.211(2)(d)(ii) 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." The criteria are the rule; the "unless" clause is the escape hatch.

The criterion has a deadline; the evidence does not

Two consequences follow, and they are easy to confuse:

• The criterion has a hard deadline. Twenty-eight days from the relevant day, and no discretion to extend it.
• The waiver evidence has no deadline. The Full Court held in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 that there is no temporal limitation on when the compelling circumstances relied on must have existed, so circumstances arising after lodgement count.

What belongs in that submission is set out in what goes in a Schedule 3 waiver submission, and the criteria themselves in criteria 3001, 3003 and 3004 explained. Where a refusal or cancellation is also in the history, the interaction with the section 48 bar is covered in section 48 and Schedule 3 together.

Start with the date

Every other question in a Schedule 3 matter depends on the relevant day, and it is the one thing that can be settled objectively from documents on the first day of a file. It is worth doing properly before anyone forms a view about prospects. Migration Vision establishes the relevant day from movement and notification records as the first step in every Schedule 3 matter, for clients across Australia and offshore. Full partner criteria and current charges: 820/801 guide.

Reviewed by Dr Asad Muhammad Khan, Registered Migration Agent, MARN 2619525. Updated 26 August 2026 — clause 3001 verified against the Migration Regulations 1994, Compilation No. 288 (F2026C00667, in force 1 July 2026) on legislation.gov.au; notification provisions at subsection 368(7) and section 379C of the Migration Act 1958 (Compilation No. 171, C2026C00232, in force 4 June 2026); Waensila v MIBP [2016] FCAFC 32. This article is general information, not migration advice for your circumstances.