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What to do if you are caught by Schedule III

Schedule III Criteria can be confusing for agents as well as practitioners given the number of discretionary factors involved in assessing whether an applicant meets criteria applicable to waiver provisions.

To put it simply, visas such as partner visas require an applicant to be a holder of a substantive visa or at the time of application if the application is made inside Australia.  There may be situations where an applicant does not hold a substantive visa.  For example, an applicant might be holding a Bridging Visa, or they may in fact be an unlawful non-citizen.

If either of the two elements apply, in addition to meeting ordinary visa applicant criteria, an applicant will need to meet the following:

  • 3001 – Generally applies to visa applications made within 28 days of certain events or
  • 3002 – Applicable to applications made within 12 months of certain events and
  • 3003 – Relates to applicants that who became unlawful due to factors beyond their control, substantial compliance and compelling circumstances are assessed as mitigating factors or
  • 3004 – Relates to applicants who are unlawful due to factors beyond their control, and compelling circumstances are assessed as mitigating factors and;
  • 3005 – Relates to ability to access Schedule III provisions

The purpose of Schedule III provisions is to encourage non-citizens who have a legitimate basis for remaining in Australia to apply for a further visa before their current substantive visa ceases.  It is also in place to discourage non-citizens from remaining in Australia beyond the period of effect of their substantive visa.  Finally, provisions are in place to prevent non-citizens from benefiting by remaining in Australia unlawfully, by possibly acquiring visa eligibility while remaining here without lawful permission. 

It is recognised, however, that there are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control and situations where there are compelling reasons for granting them a visa to remain.

At times even the Department may have difficulties in assessing how much weight should be placed on applicants that claim they:  

  • been unaware that they were an illegal entrant or without a substantive visa or
  • misunderstood the period during which their visa was in effect or
  • misunderstood the conditions attached to their visa. 

An applicant’s lack of awareness may, however, be attributable to a circumstance over which the applicant had no control, for example, if the applicant’s visa was not correctly evidenced and the visa ceased on a date earlier than the date specified on the visa label.

It is reasonable to assume that a visa holder is aware of the period covered by the visa and the conditions attached to the visa unless there is evidence to the contrary. An example of when there would be evidence to the contrary is when file records indicate that incorrect advice was given by the department.

In addition, a visa applicant must demonstrate to the Department that compelling reasons exist for to warrant grant of subsequent visa.  The word “compelling” carries ordinary meaning, that is, an ability to move a decision maker to make a favorable decision. Compelling reasons may stem from compassionate factors or may arise, for example, from the applicant’s circumstances or the circumstances of another person.  In some cases, circumstances beyond the applicant’s control may also constitute compelling reasons for granting the visa.

As with the case that no two individuals are like, same principle applies to addressing Schedule III.  When dealing with a Schedule III scenario one must ask the following:

  • what are the factors which caused someone to become unlawful?
  • Were they beyond their control (e.g. due to medical emergency)?

Unfortunately, whilst it may be easy to point finger at a migration agent forgetting to lodge an application or simply play ignorance, these elements alone are unlikely to amount compelling reasons to waive schedule III criteria.

Should this be the case, it is always a good idea to have plan B, which may mean leaving Australia and submitting another application offshore, assuming the client meets all applicable eligibility criteria.

If you need more information on Schedule III requirements or simply have a question, you are more than welcome to send me an email, This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

 

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