# Schedule 3 waiver Help



## Frstladi (Jun 21, 2017)

Anyone successfully get the schedule 3 waiver??
If so what was your waiting times?
My partner applied onshore on the 22/10/2015.
On the 3/01/2017 we were asked to provide compassionate reasons to waive schedule 3. 
All the documents were provided on the 28/01/2017 however still waiting on news. 
Tomorrow will mark 20 months of waiting.
Not sure if the long wait time is a good or bad sign for the schedule 3 waiver.


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## kthomp13 (Jun 22, 2015)

How did you go with your visa? Was it granted and what were your compelling reasons? We are still awaiting approval for 820 partner visa. Compelling reasons were we had a child together in the country and did not want to seperate our family.
Interested to see how you went?


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## Mania (Sep 7, 2016)

Having children is not really considered compassionate nor compelling, there's thousands of people in that boat...


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## kthomp13 (Jun 22, 2015)

Thanks, i was told otherwise by my immigration lawyer.


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## aussiesteve (Mar 16, 2012)

kthomp13 said:


> Thanks, i was told otherwise by my immigration lawyer.


Well I am afraid you may have been mislead,there are many instances of people on this forum where the fact they had children counted for naught.


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## kthomp13 (Jun 22, 2015)

Our story is a little different as my husband is a US citizen, i was living over there on a tourist visa. We came to Australia on a tourist visa, as i was pregnant and no health care over there. Our plan was to move back to US after the baby was born on a visa, however we later decided to stay. My husband overstayed his visa to be at the birth of our child and be with his son. Hoping this is a compelling enough reason, however i understand that is no excuse to overstay.


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## ampk (Sep 21, 2013)

In a old PAM 3 (the departments policy)

This for the Case Officer, as well as other sections and regulations to consider a Schedule 3 waiver.

With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant's circumstances happened beyond their control. That is, circumstances beyond the applicant's control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.

For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant's control - such as severe illness or incapacity - the applicant was prevented from regularising their status in the years they had been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications,* and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
*
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.

Matters that officers should take into consideration when assessing whether the applicant's circumstances may be considered compelling include but are not limited to:

	*any history of non-compliance by the applicant*
	the length of time the applicant has been unlawful
	the reasons why the applicant became unlawful
	the reasons why the applicant did not seek to regularise their status sooner
	what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).

My bold, as many never get an 820 onshore option.

Your Migration Lawyer should have access to the exact current policy wording.


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## Maggie-May24 (Jul 24, 2011)

kthomp13 said:


> Our story is a little different as my husband is a US citizen, i was living over there on a tourist visa. We came to Australia on a tourist visa, as i was pregnant and no health care over there. Our plan was to move back to US after the baby was born on a visa, however we later decided to stay. My husband overstayed his visa to be at the birth of our child and be with his son. Hoping this is a compelling enough reason, however i understand that is no excuse to overstay.


You may be lucky to get a sympathetic case officer, but your husband could have left and re-entered in order to make sure his visa was valid at the time of your son't birth. Unless there is something unique in your situation, you may save time and money by having your husband apply for a 309/100 visa.


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## CCMS (Oct 10, 2013)

kthomp13 said:


> Thanks, i was told otherwise by my immigration lawyer.


Maybe ask your lawyer how much experience they have with schedule 3 waivers and if they have had any successful cases since the criteria were tightened.

I don't comment on what other migration professionals may have advised unless I can see it in writing. Your lawyer would obviously be aware of the exact circumstances ,so would be better placed to eveluate your chances.

It is not easy though. It is all about proving that there are compelling and compassionate circumstances affecting an Australian citizen or permanent resident. The fact that your husband overstayed won't help your cause.


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## kthomp13 (Jun 22, 2015)

Thanks, I believe my Lawyer has included an in depth compelling reason why my husband should stay, rather than a compelling reason why he overstayed.
It is of the child's best interest to keep the family together.
I was just inquiring about the above post, as to whether Frstlady had her visa approved?


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## Emily j (Jan 17, 2018)

kthomp13 said:


> How did you go with your visa? Was it granted and what were your compelling reasons? We are still awaiting approval for 820 partner visa. Compelling reasons were we had a child together in the country and did not want to seperate our family.
> Interested to see how you went?


Hi there, I was wondering how it is going with your visa application? We are in the same boat and our agent advised that as we have a child this would help with our case regarding schedule 3. I applied for a 2nd visa 461 but was advised to withdraw as the legislations have changed and i could not longer apply. I am on a bridging visa now and will be applying next week for the 820. I will be lodging the application within the 28 days of my previous 461 expiring.


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## PixieEve (Apr 22, 2018)

Hi Emily,

May i know which bridging visa you are on now? We have the similar situation here


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## Emily j (Jan 17, 2018)

kthomp13 said:


> Thanks, I believe my Lawyer has included an in depth compelling reason why my husband should stay, rather than a compelling reason why he overstayed.
> It is of the child's best interest to keep the family together.
> I was just inquiring about the above post, as to whether Frstlady had her visa approved?


Hi there, we are in a similar positions as you, how did it go with your application? Thanks


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## Emily j (Jan 17, 2018)

PixieEve said:


> Hi Emily,
> 
> May i know which bridging visa you are on now? We have the similar situation here


Hi Pixieeve, sorry I have just seen your post. I am currently on a BVA but this will change in 35 days to a BVC as my withdrawal for my previous application has been received.


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## MarkNortham (Dec 19, 2012)

Hi Kthomp13 -

A note on this subject - I do quite a few Schedule 3 cases - it's about 40% of my case load usually. DHA and the AAT are extremely reluctant to split up families over Schedule 3 as it can be demonstrated via all kinds of evidence such as psychological studies, etc that splitting up an intact family unit (mother, father, child) has a huge potential to create problems for the child (especially effective if the child is an Australian PR or citizen) and the Australian sponsor. if the applicant is barred from getting a visitor visa due to PIC 4013/4014 (see Schedule 4, Migration Regulations 1994) for a 3 year period after departing, that can also be used as an additional argument to show that the child may be split from his/her Australian sponsor parent for up to 2 years while an offshore partner visa is being processed.

Happy to answer any Schedule 3 questions here or on my Ask Mark thread -

Best regards,

Mark Northam



kthomp13 said:


> How did you go with your visa? Was it granted and what were your compelling reasons? We are still awaiting approval for 820 partner visa. Compelling reasons were we had a child together in the country and did not want to seperate our family.
> Interested to see how you went?


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## Emily j (Jan 17, 2018)

MarkNortham said:


> Hi Kthomp13 -
> 
> A note on this subject - I do quite a few Schedule 3 cases - it's about 40% of my case load usually. DHA and the AAT are extremely reluctant to split up families over Schedule 3 as it can be demonstrated via all kinds of evidence such as psychological studies, etc that splitting up an intact family unit (mother, father, child) has a huge potential to create problems for the child (especially effective if the child is an Australian PR or citizen) and the Australian sponsor. if the applicant is barred from getting a visitor visa due to PIC 4013/4014 (see Schedule 4, Migration Regulations 1994) for a 3 year period after departing, that can also be used as an additional argument to show that the child may be split from his/her Australian sponsor parent for up to 2 years while an offshore partner visa is being processed.
> 
> ...


Hi Mark, Thank you for the information. My daughter has British and NZ citizenship (she was born in Scotland), my partner is also a NZ citizen but is classed as an Permanent Australian Resident as he was in Australia on 26/02/2001 and has had ties to Australia for some years. We did write a statement suggesting what you have written above but will there be an issue as my daughter isnt an Australian citizen?

many thanks


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## MarkNortham (Dec 19, 2012)

Hi Emily -

While the arguments might be seen by some decision makers as somewhat lesser in strength if the child is not an Australian citizen or Australian permanent resident, we've had a lot of success with arguments that the damage to the child re broken bond with the sponsor etc is compelling regardless of the child's citizenship. This is different, however, when the language for the waiver refers to the citizenship of the child which is the case with PIC 4013/4014 waivers re 3 year ban on temporary visas. But the Schedule 3 waiver language fortunately does not refer to the citizenship of the child.

Hope this helps -

Best,

Mark Northam



Emily j said:


> Hi Mark, Thank you for the information. My daughter has British and NZ citizenship (she was born in Scotland), my partner is also a NZ citizen but is classed as an Permanent Australian Resident as he was in Australia on 26/02/2001 and has had ties to Australia for some years. We did write a statement suggesting what you have written above but will there be an issue as my daughter isnt an Australian citizen?
> 
> many thanks


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## Emily j (Jan 17, 2018)

MarkNortham said:


> Hi Emily -
> 
> While the arguments might be seen by some decision makers as somewhat lesser in strength if the child is not an Australian citizen or Australian permanent resident, we've had a lot of success with arguments that the damage to the child re broken bond with the sponsor etc is compelling regardless of the child's citizenship. This is different, however, when the language for the waiver refers to the citizenship of the child which is the case with PIC 4013/4014 waivers re 3 year ban on temporary visas. But the Schedule 3 waiver language fortunately does not refer to the citizenship of the child.
> 
> ...


Hi Mark, thank you for this information, this is good to hear. I applied last week and wrote a statement giving them the reasons why I applied onshore, this included details of why we shouldn't be separated as it would affect our 20 month old daughter. If they accept our information will they still contact us for further details or would they just accept my statement? Are all onshore applicants that are not on a substantive visa contacted to meet requirements of schedule 3 even if they put the information in their application?

Many thanks


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## MarkNortham (Dec 19, 2012)

Hi Emily -

It's standard DHA practice to send a section 57 letter in all cases of applicants affected by Schedule 3 - whether they assess submissions lodged previous to sending out the letters is unknown, but I expect they will wait for any response to the s57 letter and then assess any/all available submissions and evidence to determine whether Sched 3 is met or a waiver of Sched 3 is justified.

Best regards,

Mark Northam



Emily j said:


> Hi Mark, thank you for this information, this is good to hear. I applied last week and wrote a statement giving them the reasons why I applied onshore, this included details of why we shouldn't be separated as it would affect our 20 month old daughter. If they accept our information will they still contact us for further details or would they just accept my statement? Are all onshore applicants that are not on a substantive visa contacted to meet requirements of schedule 3 even if they put the information in their application?
> 
> Many thanks


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## rahul.pradhnani (Aug 5, 2019)

Hi Mark i just need some of your advise on my partners visa application. I applied my 820/801 on 1 august 2017 and still waiting to hear back from the immigration. Prior to that i had applied for a 457 visa and had it refused after which I appealed to aat and was placed on a bridging visa a. I married my partner on june 2017 ( we have been in relationship since december 2014) after which i withdrew my aat application and was placed on a bridging visa c. Now i see that i have to meet schedule 3 criteria for a visa grant but not sure what to do next as i am still waiting to hear anything from the immigration. Can you please give me any suggestions/ advise as i am assuming you have dealt with lot of such application.
Thanks


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## MarkNortham (Dec 19, 2012)

rahul.pradhnani said:


> Hi Mark i just need some of your advise on my partners visa application. I applied my 820/801 on 1 august 2017 and still waiting to hear back from the immigration. Prior to that i had applied for a 457 visa and had it refused after which I appealed to aat and was placed on a bridging visa a. I married my partner on june 2017 ( we have been in relationship since december 2014) after which i withdrew my aat application and was placed on a bridging visa c. Now i see that i have to meet schedule 3 criteria for a visa grant but not sure what to do next as i am still waiting to hear anything from the immigration. Can you please give me any suggestions/ advise as i am assuming you have dealt with lot of such application.
> Thanks


Hi Rahul -

I suggest you start putting together the most compelling reasons you can as to why you cannot/could not go offshore to lodge your partner visa application as a Schedule 3 28-day letter will be coming your way at some point in the process since you applied for the partner visa while holding only a bridging visa. As to why it's taking years for partner visas, it's a sad commentary on the backlog at DHA - maybe they figure by slowing down the process it will "starve out" many of the non-genuine relationships, etc. Problem is, I see way too many genuine applicants suffering badly due to DHA taking years to process these applications. That being said, DHA needs to do their best to filter out the fake relationships and that's not a job I would envy.

Hope this helps -

Best,

Mark Northam


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## MarkNortham (Dec 19, 2012)

Also on the subject of Schedule 3 waivers, a well-regarded industry newsletter recently pointed out 3 AAT cases where having a child did NOT result in a Schedule 3 waiver - a disturbing trend to say the least. Here they are, and I'll bet there are more:

1715261 (Migration) [2018] AATA 5228 (13 November 2018)

Tran (Migration) [2018] AATA 893 (7 March 2018)

Tour (Migration) [2018] AATA 112 (12 January 2018)

And of course the BIG question many people are asking: when the new partner visa legislation is implemented perhaps at the end of this year or sometime next year, how will Schedule 3 be handled.... will there be a waiver option anymore (ie, on other visas such as the 461 and others there are Schedule 3 requirements but NO opportunity for a waiver - you meet all of the applicable Schedule 3 elements or the visa is refused for not meeting them) and will 3001, 3003 and 3004 still be required as they are now. Interesting to see Schedule 3 removed from the new 482 visa where it used to exist on the 457 visa it replaced. That and other questions hang large over the new partner visa legislation that still hasn't been released or had an implementation date published.


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## MrsButterfly (Sep 1, 2019)

Has the new partner visa legislation been released yet? How likely do you think it will be they remove schedule 3? It seems a little unfair to split families up like that.


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## MarkNortham (Dec 19, 2012)

MrsButterfly said:


> Has the new partner visa legislation been released yet? How likely do you think it will be they remove schedule 3? It seems a little unfair to split families up like that.


Hasn't been released yet. Sadly, DHA is splitting up families on a regular basis - we're seeing Schedule 3 decisions at the DHA and AAT level now where even families with children are being split up. "Fair" means very little when DHA has determined that most Schedule 3 cases are fraudulent relationships. That's why if you're seeking a Schedule 3 waiver, you need to make it legally the strongest, most effective submission that you possibly can - these are getting substantially more difficult to get.

Re whether Schedule 3 will be in the new legislation, DHA isn't saying yet - there are few details known about the new legislation, only broad strokes, and even then it isn't clear whether DHA will be implementing all the things they've discussed.

If you can lodge prior to the new legislation taking place, probably a good idea!


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