No substantive visa
No substantive visa? An Australian migration lawyer can check whether Schedule 3, condition 8503 or section 48 applies. The shared enquiry form sends private questions to Australian Migration Lawyers.
Which rule applies?
| Your situation when you lodge the 820 | Rule | What it means |
|---|---|---|
| No substantive visa: your visa has expired, or you hold only a bridging visa A, B, C or E | Schedule 3 criteria 3001, 3003 and 3004 — cl 820.211(2)(d) of the Migration Regulations 1994 | You can lodge, subject to other lodgement rules, but the visa is refused unless you meet the applicable criteria or the Department accepts compelling reasons for not applying them. |
| Your current or previous visa carries condition 8503, “no further stay” | Condition 8503 — Schedule 8 and reg 2.05(4) of the Migration Regulations 1994 | Home Affairs’ subclass 820 page says a waiver must be approved before you can apply. |
| A relevant visa refusal or cancellation since your last entry, and no substantive visa | Section 48 of the Migration Act 1958 | Regulation 2.12 keeps the 820/801 pathway open, but item 1124B requires no partner visa refusal since last entry, signed sponsorship and two statutory declarations made within six weeks before lodgement. |
| Note | More than one rule can apply at once | An expired visa that carried 8503 can bring both the waiver step and Schedule 3. |
What is Schedule 3 for a partner visa?
Schedule 3 of the Migration Regulations 1994 is titled “Additional criteria applicable to unlawful non-citizens and certain bridging visa holders”. Clause 820.211(2)(d) applies it to an onshore subclass 820 applicant who is not the holder of a substantive visa, subject to the exceptions explained below.
A substantive visa is any visa other than a bridging, criminal justice or enforcement visa, under section 5(1) of the Migration Act 1958. Holding a bridging visa therefore does not remove the Schedule 3 issue.
Schedule 3 is an additional 820 grant requirement—not, by itself, a prohibition on lodging. Clause 820.211(2)(d) allows the criteria not to apply where the Minister is satisfied there are compelling reasons. That does not remove the other partner visa requirements.
Who has to meet Schedule 3?
Clause 820.211(2)(d) and clause 820.312 of the Migration Regulations 1994 cover these groups:
- Applicants with no visa: their last substantive visa has ended and they are unlawful non-citizens.
- Applicants holding only a bridging visa: a BVA, BVB, BVC or BVE is not substantive.
- Secondary applicants in the same position: clause 820.312 applies the Schedule 3 requirement to them.
- Diplomatic or SOFA entrants: applicants who entered on a subclass 995 visa or the specified SOFA special-purpose visa pathway use criterion 3002 instead, under clause 820.211(2)(d)(i) and (2A).
The ordinary 820 pathway does not use criterion 3002 as a “12-month relationship rule”. The separate 12-month rule concerns de facto relationships under regulation 2.03A, with exceptions including a prescribed registered relationship.
Former Prospective Marriage visa holders
A former subclass 300 holder who entered Australia on that visa, married the sponsor and now holds no substantive visa applies under clause 820.211(5) of the Migration Regulations 1994, without Schedule 3. Home Affairs’ Partner visa (subclass 820) page also distinguishes previous Prospective Marriage visa holders.
For this former-300 pathway, Schedule 1 item 1124B(2) sets the standard base charge at $2,475 from 1 July 2026. This is not the lower rate for someone who still holds their subclass 300 visa; prescribed Pacific-region concessions may also affect the charge.
By contrast, Home Affairs’ subclass 820 page says an applicant holding a substantive visa at lodgement receives a BVA that starts when the substantive visa ends. Their status at lodgement places them outside the no-substantive-visa Schedule 3 requirement.
The Schedule 3 criteria: 3001, 3003 and 3004
The Migration Regulations 1994 identify three criteria for the ordinary no-substantive-visa 820 pathway. Their scope matters: 3003 and 3004 concern different visa histories.
| Criterion | Who it catches | What must be shown | Source |
|---|---|---|---|
| 3001 | Everyone in the ordinary Schedule 3 group | The application is validly made within 28 days after the “relevant day”. | Migration Regulations 1994, Schedule 3 cl 3001(1) |
| 3003 | Applicants who have not held a substantive visa since 1 September 1994 and were illegal entrants or held an entry permit that ended by 31 August 1994 | Factors beyond control, compelling reasons, compliance, qualification for the visa at the relevant historical point and intention to comply. | Migration Regulations 1994, Schedule 3 cl 3003 |
| 3004 | Applicants whose substantive visa ended on or after 1 September 1994, or who entered unlawfully after that date | No substantive visa because of factors beyond control; compelling reasons for grant; substantial compliance with the last substantive visa and later bridging visa conditions; qualification when the last substantive visa ended; intention to comply with the new visa’s conditions. | Migration Regulations 1994, Schedule 3 cl 3004(c)–(h) |
Criterion 3003 is the pre-1994 counterpart of 3004 and rarely applies to present-day applicants because of that historical scope. Clause 820.211(2)(d)(ii) requires “3001, 3003 and 3004” together: meeting 3001 alone is not enough. Each criterion’s scope must still be checked.
The 28-day “relevant day” rule
28 days after the relevant day is the period in Schedule 3 clause 3001—not 28 days after discovering the problem. Under clause 3001(2)(c), the relevant day is usually the last day you held a substantive or criminal justice visa, or your last unlawful entry date if later. Clause 3001(2)(d) provides a special rule following an ART decision restoring a cancelled visa.
For example, if the last day you held your substantive visa was 1 March, an application validly made by 29 March is within 28 days after that relevant day. This calculation addresses 3001 only; it does not establish that 3004 is met.
Compelling reasons to waive the Schedule 3 criteria
The legal test in clause 820.211(2)(d)(ii) of the Migration Regulations 1994 is whether the Minister is satisfied there are compelling reasons for not applying those criteria. Home Affairs’ subclass 820 page summarises the requirement as demonstrating compelling reasons for the grant of a Partner visa.
A submission should distinguish the request not to apply Schedule 3 from the reasons for grant within criterion 3004. Using the criteria themselves, address:
- Why you held no substantive visa: explain the circumstances relevant to the “beyond your control” question in 3004(c).
- The reasons for granting the visa: address 3004(d), supported by evidence rather than labels.
- Your compliance history: explain compliance with your last substantive visa and subsequent bridging visa conditions under 3004(e).
- Your eligibility when the visa ended: address whether you would have qualified on that day under 3004(f).
- Why Schedule 3 should not apply at all: expressly address clause 820.211(2)(d)(ii), rather than leaving the request implied.
There is no verified Department policy list of Schedule 3 compelling-reasons examples available for this guide. Nor is a claimed 2026 policy or court change confirmed here. A circumstance should not be presented as an accepted waiver ground without checking the applicable authority.
Your visa status at application determines whether this issue arises under clause 820.211(2)(d). Whether later circumstances can establish compelling reasons requires separate legal checking; this guide does not resolve that timing question.
Building a Schedule 3 waiver submission
-
Confirm status and the relevant day. Home Affairs’ subclass 820 page directs applicants to check visa details through VEVO. Gather grant notices and status records, then calculate the relevant day under Schedule 3 clause 3001(2).
-
Check other lodgement barriers first. Home Affairs’ subclass 820 page says an 8503 waiver on a current or previous visa must be approved before applying. Check section 48 of the Migration Act 1958 and the accompanying Schedule 1 documents before lodgement.
-
Prepare the combined 820/801 application and charge. Schedule 1 item 1124B(2) of the Migration Regulations 1994 sets the standard base charge for most applicants at $11,710 from 1 July 2026. Lower prescribed rates can apply. Home Affairs’ subclass 820 page says the application fee is not refunded on refusal.
Lawyer fees are separate from that charge: a partner visa with Australian Migration Lawyers usually costs $14,000 plus GST, separate from the Home Affairs visa application charge.
-
Write a case-specific submission. Address 3001, 3004 and—only where its historical scope applies—3003, together with the compelling reasons for not applying them under clause 820.211(2)(d)(ii). Use a dated chronology and match each factual claim to supporting evidence. A generic submission sample cannot establish your circumstances.
-
Arrange lawful status and check travel consequences. Home Affairs’ Bridging visa E page describes the BVE pathway for unlawful non-citizens applying for a substantive visa. A BVE ends immediately when you leave Australia; do not assume partner visa lodgement itself gives you lawful status.
-
Respond to Department correspondence on time. For an applicant in Australia who is not detained, regulation 2.15(1) of the Migration Regulations 1994 generally provides 28 days after notification of a written invitation relating to a section 56 request or section 57 letter. Detention and oral invitations have shorter periods, so check the notice.
Every factual claim must be true. Schedule 4 PIC 4020 of the Migration Regulations 1994 can lead to refusal for materially false or misleading information or bogus documents. Its three-year refusal-history requirement can affect both the applicant and family-unit members, subject to the provision’s exceptions and waiver rules.
Schedule 3, condition 8503 or the s 48 bar: which applies?
These are separate checks. Read the 8503 visa condition explanation for no-further-stay restrictions, and the spouse visa refusal guide where a refusal since last entry may trigger section 48.
| Trigger | Rule | Effect on an onshore partner visa | Where it is explained |
|---|---|---|---|
| No substantive visa at lodgement | Migration Regulations 1994, cl 820.211(2)(d) | Schedule 3 affects the 820 grant criteria; it does not itself invalidate lodgement. Meet the applicable criteria or establish compelling reasons for not applying them. | The criteria table above |
| Current or previous visa carries unwaived 8503 | Migration Regulations 1994, Schedule 8; reg 2.05(4) | Home Affairs’ subclass 820 page requires waiver approval before applying. | 8503 visa condition |
| Relevant refusal or cancellation since last entry, with no substantive visa | Migration Act 1958, s 48; Migration Regulations 1994, reg 2.12 and item 1124B(3)(e), (3A) | The 820/801 remains a prescribed pathway, but no partner visa refusal since last entry is permitted. Signed sponsorship and two qualifying statutory declarations must accompany lodgement. | spouse visa refusal |
For section 48, item 1124B requires declarations by Australian citizens, permanent residents or eligible New Zealand citizens other than the partner, made no more than six weeks before lodgement. Home Affairs’ subclass 820 page says Form 888 does not satisfy this requirement.
A separate restriction in item 1124B(3)(d) of the Migration Regulations 1994 prevents a current 820 or 309 holder refused a partner visa within the previous 21 days from lodging another Class BS application in that window.
Common mistakes
-
Treating 28 days as the whole test. Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 requires the three criteria together, not just 3001.
-
Treating a bridging visa as substantive. Section 5(1) of the Migration Act 1958 excludes bridging visas, including BVA, BVB, BVC and BVE.
-
Lodging before an 8503 waiver is approved. Home Affairs’ subclass 820 page requires approval first, including where the condition was on a previous visa.
-
Confusing grant criteria with validity, or applying Schedule 3 to the 801. Clause 820.211(2)(d) is an 820 criterion tied to status at application. Other rules can prevent valid lodgement; Schedule 3 alone does not.
-
Leaving Australia on a BVE while the application is pending. Home Affairs’ BVE page says it ends immediately on departure and you cannot return unless you have another substantive visa.
FAQ
What are schedule 3 requirements?
For the ordinary 820 pathway, clause 820.211(2)(d) of the Migration Regulations 1994 requires 3001, 3003 and 3004 unless compelling reasons justify not applying them. Criterion 3001 concerns valid lodgement within 28 days; 3003 concerns pre-1994 cases; 3004 addresses factors beyond control, compelling reasons, compliance, earlier eligibility and intended compliance.
Is Schedule 3 in the Migration Act?
No. It is Schedule 3 of the Migration Regulations 1994. The Migration Act 1958 supplies the definition of a substantive visa in section 5(1).
Can I apply for a partner visa on a bridging visa E?
Yes, an 820 application can be lodged while holding a BVE, subject to other lodgement requirements. Under section 5(1) of the Migration Act 1958, a BVE is not substantive, so Schedule 3 must be addressed unless an exception applies. Home Affairs’ BVE page says the BVE ends if you leave Australia.
How long does a Schedule 3 partner visa take?
Home Affairs’ processing-time guide publishes subclass times, not a separate Schedule 3 estimate. As at 3 October 2026, 50% of recently decided 820 applications took 22 months, and 90% took 30 months. These figures are guidance, not a deadline for your case.
Home Affairs’ partner visa FAQ says onshore 820/801 applications have the highest priority under Ministerial Direction 117, which commenced on 25 July 2026. Priority does not establish an individual completion date.
A lawyer for an application without a substantive visa
A lawyer can check your status chronology, separate lodgement restrictions from grant criteria, identify missing evidence and check that the submission is consistent with visa records and relationship documents. That is a concrete review process, not a prediction of waiver or visa success.
For the broader decision, see do I need an immigration lawyer for spouse visa and the Partner Visa Lawyer guide, a guide to legal help with Australian partner visas.
Before an onshore application, ask an Australian migration lawyer to identify the relevant status date, check whether section 48 and condition 8503 apply, and prepare evidence addressing clause 3004 and clause 820.211(2)(d)(ii) of the Migration Regulations 1994.