If your visa has expired and you are in a genuine relationship with an Australian citizen or permanent resident, you may still be able to apply for a partner visa from inside Australia. The catch is a set of extra hurdles known as the "Schedule 3 criteria". Most people who have been out of status for more than 28 days can only get past them by showing "compelling reasons".
This article explains how that waiver works, what decision-makers have accepted, what they have rejected, and how to give your application the best chance.
How the onshore partner visa works
The onshore partner visa is a two-stage process, lodged as one application.
Subclass 820 (Partner (Temporary)) lets you stay in Australia while your relationship is assessed.
Subclass 801 (Partner (Permanent)) is usually considered about two years after you apply, provided you still hold the 820 visa and the relationship is continuing.
To be granted the 820 visa you must:
be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen;
be sponsored by that partner; and
meet the health and character requirements.
The two-year wait for the permanent stage can be shortened if you were already in a long-term relationship when you applied. There are also special rules if your partner dies or the relationship ends because of family violence. Those rules are separate from the Schedule 3 waiver discussed below.
Schedule 3 and the 28-day rule
If you do not hold a substantive visa when you lodge your 820 application, clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) requires you to meet Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied there are compelling reasons not to apply them. A bridging visa is not a substantive visa, so this often catches people who are on a bridging visa after a refusal.
The criterion that trips up most applicants is 3001. It requires the application to be lodged within 28 days of the last day you held a substantive visa. Criteria 3003 and 3004 deal with people who entered Australia unlawfully or have been in immigration detention.
The purpose of Schedule 3 is to discourage overstaying and to stop people gaining an advantage by remaining in Australia unlawfully. In practice, an applicant who has been out of status for more than 28 days is treated like someone who should apply from offshore, unless they can show compelling reasons. If they cannot, the visa must be refused.
What counts as "compelling reasons"?
The Regulations do not define "compelling reasons". The courts have said they are reasons sufficiently convincing to move the decision-maker to waive the criteria. As the Federal Court noted in MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, reasons that seem compelling to one person may not seem so to another. The test is an evaluative judgement, not a checklist.
The decision-maker can rely on one circumstance or several taken together. They must genuinely engage with what you put forward, not give it cursory treatment or simply adopt an earlier decision-maker's findings.
Circumstances that have been accepted, alone or in combination, include:
An Australian citizen child of the relationship.
Serious health needs of the sponsoring partner, physical or mental, where the applicant's ongoing presence and support is crucial and separation would cause real harm.
A long-standing, genuine relationship, particularly one that predates the overstay or has lasted several years.
Hardship that would follow if the applicant had to leave Australia to apply offshore, especially for the Australian partner or children.
What usually isn't enough
Decision-makers regularly reject waiver claims built on the following alone:
The relationship itself. Being married or in a de facto relationship is the basic requirement for the visa, so on its own it is not a compelling reason to waive Schedule 3.
Financial hardship of the applicant. Cost and inconvenience of applying offshore are generally given little weight.
Migration history. A long period in Australia, including time spent unlawfully, does not help without something more.
Earlier favourable decisions. A decision to waive a different requirement (for example, a visa condition such as 8503) answers a different question and does not carry over.
Claims without evidence. A health condition or hardship that is asserted but not documented will rarely be accepted.
Two Full Federal Court decisions to know
Compelling reasons can arise after you apply. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Court held there is no time limit on when compelling reasons must exist. The decision-maker must consider your circumstances as they stand at the time of decision, not just at lodgement. A child born, or a serious diagnosis, while the application is pending can be relied on.
The decision-maker focuses on your case as argued. In Minister for Immigration and Citizenship v Singh [2026] FCAFC 42, decided in April 2026, the Full Court allowed the Minister's appeal. Where one Schedule 3 criterion is not met, the decision-maker need not make findings on every other criterion before turning to compelling reasons. What must be considered depends on the reasons and evidence the applicant actually puts forward.
The practical lesson from Singh is that the burden sits with you. Your submissions need to identify each compelling reason clearly and back it with evidence, because the decision-maker is not obliged to go looking for reasons you did not raise.
Reviews of partner visa refusals are now heard by the Administrative Review Tribunal, which replaced the Administrative Appeals Tribunal in October 2024.
Building a strong Schedule 3 case
Lodge as early as you can. If your visa has expired or is about to, applying within 28 days avoids Schedule 3 criterion 3001 altogether.
Name every compelling reason. Set out each circumstance in a written submission and explain why, together, they justify a waiver.
Prove it. Use medical and psychological reports, birth certificates, statutory declarations from family and friends, and evidence of joint finances and living arrangements.
Show the impact of separation. Explain concretely what would happen to your partner and any children if you had to leave Australia to apply offshore.
Keep it current. Because compelling reasons are assessed at the time of decision, update the Department with new evidence while your application is pending.
Talk to us
O'Haire Legal assists couples with onshore partner visa applications, including Schedule 3 waiver submissions and reviews of refused applications. Call (03) 7064 0341 or email home@ohairelegal.com.au to arrange a consultation.
This article is general information only and is current as at October 2026. It is not legal advice. Migration law changes frequently and every case turns on its own facts, so seek advice about your circumstances before acting.
