Migration Regulations 1994 — Schedule 3
Schedule 3 Criteria Australia Unlawful Presence and the Compelling Circumstances Waiver
Additional Criteria That Apply When You Were Unlawfully in Australia
Schedule 3 of the Migration Regulations 1994 sets out additional criteria that certain onshore visa applicants must satisfy when they are not lawfully in Australia at the time of application or were not in Australia lawfully throughout their stay. It is designed to deter visa overstaying and unlawful presence.
Understanding Schedule 3 is critical because it applies not only to straightforward unlawful overstays — it also operates alongside the Section 48 bar in a way that can catch applicants completely off-guard. Even a nominally available exempt visa may require a Schedule 3 waiver before it can be granted.
The compelling and compassionate circumstances threshold for a Schedule 3 waiver is real and demanding. At Migration Republic, our MARA-registered migration agents assess whether Schedule 3 applies and what evidence is needed to build a compelling waiver argument.
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Additional criteria for unlawful applicants
Compelling & compassionate required
On merits review
Check Your Options
What Visas Are Still Available to You?
If Schedule 3 applies, understanding which visas remain available — and what evidence is needed — is the most important first step. Use these tools before taking any action.
What Schedule 3 Requires
What Does Schedule 3 Actually Require?
To satisfy Schedule 3, an applicant must generally demonstrate either of the following:
The Two Ways to Satisfy Schedule 3
- Limb One — No Prior Schedule 3 Refusal: The applicant has not previously been refused a visa on the ground of not satisfying Schedule 3 criteria. If this is your first time applying in a Schedule 3 situation and no prior refusal on this ground exists, Limb One may be available. However, even this limb requires care — a prior refusal on any ground may affect how the overall application is assessed.
- Limb Two — Compelling and Compassionate Circumstances: There are compelling circumstances affecting the interests of Australia or compelling and compassionate circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen. This is the waiver ground — and it carries a high threshold. Ordinary inconvenience does not qualify. The case must go beyond what is typical.
Unlawful Non-Citizen at Time of Application
The applicant is applying for a substantive visa while they are an unlawful non-citizen — meaning their visa has already expired or been cancelled and they have not lodged a new application in time to generate a bridging visa. Schedule 3 applies automatically in this situation for most visa subclasses.
Unlawful at Any Point During Current Stay
The applicant was unlawful at any point during their current stay in Australia — even if they have since obtained a bridging visa. The Schedule 3 trigger is historical, not just current. A period of unlawfulness at any point in the current stay activates the criteria for most visa subclasses.
Holding a Bridging Visa Granted After Becoming Unlawful
The applicant holds a Bridging Visa C (Subclass 030) or a Bridging Visa E (Subclass 050) that was granted after they became unlawful. These bridging visas do not erase the unlawful period — Schedule 3 still applies for most substantive visa applications.
The Waiver — Compelling and Compassionate Circumstances
The Compelling and Compassionate Circumstances Threshold
The compelling and compassionate circumstances threshold for a Schedule 3 waiver is real and demanding. The case must go beyond ordinary inconvenience. Evidence of long-term relationships, dependent children, medical needs, or other significant factors will be central to any successful waiver argument.
What Counts as Compelling and Compassionate — and What Does Not
The decision-maker — whether a departmental delegate or the Administrative Review Tribunal (ART) on review — has discretion to waive Schedule 3 criteria if satisfied that the circumstances are sufficiently compelling. This discretion can also be exercised by the ART in the context of a merits review of a visa refusal.
Section 48 Interaction
How Schedule 3 Interacts With the Section 48 Bar
The interaction between Schedule 3 and the Section 48 bar is one of the most consequential and most frequently misunderstood combinations in Australian migration law.
The Double Barrier Situation
When both Section 48 and Schedule 3 apply simultaneously:
- Section 48 limits which visa subclasses can be applied for at all — most are blocked
- Of the limited exempt visa subclasses that can still be applied for, Schedule 3 criteria then impose the compelling and compassionate waiver requirement before the visa can be granted
- This means the applicant must navigate both the narrow set of available visa subclasses AND the demanding Schedule 3 waiver threshold
- Lodging without understanding both layers wastes fees and may worsen the overall situation
Example — Partner Visa and Schedule 3
A common scenario where this double barrier applies:
- An applicant has had a visa refused — triggering Section 48
- They are in a genuine relationship with an Australian citizen — making a partner visa nominally exempt from Section 48
- However, because they were unlawful when the original visa was refused, Schedule 3 now applies to the partner visa application
- The partner visa cannot be granted unless Schedule 3 is waived — requiring compelling and compassionate evidence beyond the ordinary relationship
- Professional advice is essential before lodging
Why Migration Republic
Why Choose Migration Republic?
Schedule 3 Applicability Assessment
We determine whether Schedule 3 applies to your specific situation — including whether the trigger was a period of unlawfulness, a bridging visa situation, or a prior refusal — before any application is prepared or lodged.
Compelling Circumstances Evidence Building
We assess your circumstances against the Department's waiver threshold and build the strongest possible compelling and compassionate evidence package — relationship history, dependent children, medical evidence, community ties, and character references.
Section 48 × Schedule 3 Strategy
Where both Section 48 and Schedule 3 apply simultaneously, we map out exactly which pathways remain open — and whether the onshore exempt visa route or departure and offshore lodgement is the stronger strategy given the specific circumstances.
Does Schedule 3 Apply to Your Situation?
Schedule 3 is one of the most consequential — and most frequently misunderstood — provisions in Australian migration law. Getting the waiver argument right, with the right evidence, is the difference between a granted visa and a refusal that creates further barriers. Our MARA-registered agents assess whether Schedule 3 applies, identify the right pathway, and build the strongest possible compelling circumstances case before any application is lodged.
