Schedule 3 Waiver at the Tribunal: What Changes on Review

A refused Schedule 3 waiver is the end of the first decision, not the end of the case. If you apply for review in time, the Administrative Review Tribunal does not check the delegate's work for mistakes. It makes the waiver decision again, itself, on everything in front of it on the day it decides. That includes what has happened in your life since you lodged. A review case is therefore a second case, not a re-run of the first one.

This article covers only what changes when a Schedule 3 waiver reaches the Tribunal. What Schedule 3 is, what each criterion requires and what "compelling reasons" means are on the Schedule 3 criteria and waivers hub and its spokes, linked where they are relevant below.

Verified against the Migration Act 1958, Compilation No. 172 (C2026C00461, compilation date 8 October 2026); the Administrative Review Tribunal Act 2024, Compilation No. 5 (C2026C00202, compilation date 18 May 2026); the Migration Regulations 1994, Compilation No. 289 (F2026C01017, compilation date 2 October 2026); and Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, read at the Federal Court's judgments site.

First, the two numbers

Two warnings about the deadline:

• It is counted from the day you are notified, not from the day you read the letter. The Act has its own rules that fix the day of notification.
• It is a different 28 days from the one in Schedule 3 criterion 3001. That one is about when the partner application itself had to be lodged. It is explained in the relevant day and the 28 days.

Do not confuse the two. The one that matters now is 28 days from notification of the refusal to lodge the review.

The fee is indexed every 1 July (reg 4.13A), so confirm it on the Tribunal's fees page before you pay. The general review pathway, how long reviews are taking, and our own approach to appeals are on visa refusals and appeals.

Merits review means the case is decided again, not checked for error

Three provisions set the character of the review.

• The Tribunal must review a properly made application (Migration Act s 348(1)).
• It can exercise all the powers and discretions the Act and Regulations give the decision-maker (ART Act s 54). For a Schedule 3 case that means the Tribunal itself holds the power in clause 820.211(2)(d)(ii) to be satisfied that there are compelling reasons for not applying criteria 3001, 3003 and 3004.
• It is not bound by the rules of evidence and may inform itself as it considers appropriate (ART Act s 52).

Put together: the Tribunal is not asking "was the delegate wrong?". It is asking, for itself, "am I satisfied that there are compelling reasons?". Its task is to reach the correct or preferable decision. That is the standard the ART Act names when it requires the Department to help the Tribunal reach it (ART Act s 56(1)). The delegate's view carries no special weight. A new decision-maker, with fresh eyes, decides the same question.

The timing question: Waensila counts for more at the Tribunal

The leading case is Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Dowsett, Robertson and Griffiths JJ, 11 March 2016). The Full Federal Court held that the compelling-reasons power in clause 820.211(2)(d)(ii) is not confined to circumstances that existed when the partner application was lodged.

• The power is exercised at the time of decision.
• The decision-maker may take into account the circumstances at that time (Robertson J at [16]–[18]; Griffiths J at [52]–[59]).
• The Court overruled the earlier decision in Boakye-Danquah, which had said the opposite.

In Waensila, the Tribunal had refused to consider the wife's health and dependence because they arose after lodgement. The Court set that decision aside.

At the review stage this principle does more work, for a simple reason: more time has passed. The Tribunal decides as at its decision date. That may be a year or more after the delegate's. Everything that has happened in between is properly before the Tribunal, such as:

• a child born
• a diagnosis
• a partner's job that now depends on you
• a relationship that has lasted longer.

A review argued only on the file the delegate saw is leaving its strongest material unused.

What the waiver standard itself requires — what "compelling" means and which categories of reason carry weight — is owned by compelling reasons: what counts. This page is about using the time between the two decisions.

New evidence: what can go in, and what the Tribunal must tell you

You can give the Tribunal new evidence and new submissions. The ART Act requires the Tribunal to give each party a reasonable opportunity to:

• present their case
• access the information it proposes to rely on
• make submissions and adduce evidence (s 55(1)).

The Tribunal can also require the Department to arrange an investigation or medical examination it considers necessary (Migration Act s 353).

The Act also protects you from being decided against on something you never saw. Sometimes the Tribunal has information that would be the reason, or part of the reason, for affirming the refusal. If so, it must (Migration Act s 359A):

• give you clear particulars of it
• make sure you understand why it matters
• invite you to comment.

The s 359A letter tells you exactly what the Tribunal is concerned about. Your response is your chance to answer it with evidence rather than assertion.

The refusal record is the roadmap

The decision record states which limb failed. It may be the compelling-reasons discretion itself. Or it may be a criterion, such as 3004's requirement that you lack a substantive visa "because of factors beyond the applicant's control" (Schedule 3, criterion 3004(c)).

A review case is built limb by limb against those reasons:

• new evidence where the file was thin
• argument where the reasoning went wrong
• updated circumstances throughout.

The criteria themselves are explained in 3001, 3003 and 3004 explained. How to structure the submission that answers them is in what goes in a Schedule 3 waiver submission.

Hearing or on the papers?

A Schedule 3 partner-visa review is normally heard. The Migration Act has an "on the papers" stream, where the applicant is not entitled to appear and the Tribunal must decide without a hearing (s 367N). That stream applies only to applications of a kind prescribed by the Regulations. The only kind prescribed is review of a student visa refusal (Migration Act s 367C(2); Migration Regulations reg 4.18(1)). A partner visa refusal is not in that stream.

That does not mean a hearing is automatic in every case. Under the ART Act the Tribunal may decide without a hearing in limited circumstances (s 106(3)). These include where the decision is wholly in the applicant's favour, or where the applicant asks for a decision on the papers.

If you are invited to a hearing, treat it as the point where the Tribunal tests the compelling reasons directly. Nobody can cross-examine a witness at the Tribunal (Migration Act s 366D). But the member will ask questions, and the answers are evidence.

What the Tribunal can decide

Under s 105 of the ART Act, the Tribunal must do one of the following:

For migration decisions, the general remittal provision in the ART Act (s 105(c)(ii)) is replaced by the Migration Act's own version in s 349. That is why the "taken to have satisfied" order exists. Whether any particular case ends in remittal, substitution or affirmation depends on its facts. No outcome can be predicted from the structure alone.

Your status while it runs — and the 35-day tail

A bridging visa tied to the partner application continues through the review. For a Bridging Visa C, clause 030.511 keeps the visa in effect:

• until 35 days after the Tribunal makes its decision (other than a remittal) — made, not notified; and
• if the matter is remitted, until the Department's reconsideration is worked out under the same clause (cl 030.511(1)(b)(iii) and (vii)).

The Bridging Visa E equivalent is on our bridging visa E page. Check your own grant notice; the clause and the dates on it govern.

An affirmed decision therefore starts a fixed clock. What review does to the bar is explained in what an ART review does to the section 48 bar. These next steps have to be planned before that window closes, not after:

• the section 48 bar
• the offshore route
• as a last resort, a request to the Minister.

Three errors that lose winnable reviews

• Re-filing the failed submission. If it did not persuade the delegate, the same document will not persuade the Tribunal. The review case answers the refusal's reasons; it does not restate the application.
• Freezing the evidence at refusal. Developments since the refusal are the review's structural advantage. A case that ignores them has given up what Waensila secured, twice over.
• Missing the deadline while gathering evidence. The 28 days cannot be extended. Lodge in time with what exists; the evidence can and should keep building until the hearing.

The realistic framing

The waiver is a discretionary judgment at every stage, and no one should promise you a Tribunal outcome. What review offers is structural, not statistical:

• a fresh decision-maker holding the same power
• a written record of exactly what failed
• time that Waensila turns into admissible evidence.

A properly prepared review case is built from those three things.

Frequently asked questions

Is there any point appealing when they already rejected my compelling reasons? The Tribunal decides the compelling-reasons question again, itself, with the same power the delegate had (ART Act s 54). The delegate's conclusion is not the starting point. Whether a review is worth lodging depends on two things: what the refusal letter says failed, and what evidence now exists to answer it. That is an assessment of your file, not a general rule.

Can I put in new evidence, or is the Tribunal stuck with my original file? You can give new evidence and submissions (ART Act s 55(1)). The Tribunal decides on the material before it when it decides, not on the delegate's file alone.

My child was born after the refusal. Does that count? Under Waensila [2016] FCAFC 32 the compelling-reasons power is not limited to circumstances that existed when you applied. Circumstances at the time of the Tribunal's decision may be taken into account. Evidence of them has to be put before the Tribunal.

What does remittal mean? Do I have to start again? Remittal sends the application back to the Department for reconsideration, with orders the Regulations permit. For a visa application, that can be an order that you are taken to have satisfied a specified criterion (Migration Act s 349(2); reg 4.15). The Department assesses the remaining criteria. The application is not relodged.

Can I stay in Australia while the review runs? If you hold a bridging visa tied to the partner application, it generally continues through the review and for 35 days after the Tribunal's decision (for a Bridging Visa C, cl 030.511). Check the clause on your own grant notice.

What happens if the Tribunal says no? The refusal is affirmed and, for most bridging visas, a 35-day period begins. The section 48 bar question, the offshore route and ministerial intervention are each covered on their own pages, linked above.

Should I lodge now or wait until my evidence is ready? Lodge in time. Section 347(5) of the Migration Act removes any power to extend the 28 days. Evidence can be added after lodgement, up to the hearing.

Get the refusal read properly before the deadline moves

The 28 days from notification is the one date in this process that cannot be recovered. Migration Vision assesses Schedule 3 refusals for clients across Australia, before any Tribunal fee is paid. We:

• read the decision record limb by limb
• identify the gap between the file and the present
• give a view on whether a review case can honestly be built.

The review pathway, costs and current timeframes are on visa refusals and appeals.

Reviewed by Dr Asad Muhammad Khan, Registered Migration Agent, MARN 2619525. Last reviewed 25 October 2026 — sections 347, 348, 349, 353, 359A, 366D, 367C and 367N verified against the Migration Act 1958, Compilation No. 172 (C2026C00461, compilation date 8 October 2026); sections 52, 54, 55, 56, 105 and 106 against the Administrative Review Tribunal Act 2024, Compilation No. 5 (C2026C00202, compilation date 18 May 2026); regulations 4.13, 4.14, 4.15 and 4.18, clauses 030.511 and 820.211(2)(d)(ii) and Schedule 3 criterion 3004 against the Migration Regulations 1994, Compilation No. 289 (F2026C01017, compilation date 2 October 2026) — all on legislation.gov.au; the $3,727 application fee against art.gov.au; Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 read on judgments.fedcourt.gov.au. Figures current as at 25 October 2026; confirm with the Department of Home Affairs and the Administrative Review Tribunal before lodgement. This article is general information, not migration advice for your circumstances, and the law may change.