Overstaying and Onshore Partner Visas: Schedule 3 and Compelling Reasons (2026)
Answers whether you can lodge a Subclass 820 partner visa onshore after overstaying, what Schedule 3 requires, and when compelling reasons apply.
You can still lodge a Partner (Temporary) visa (Subclass 820) application from inside Australia if your visa has ceased, but applicants relying on the spouse or de facto partner pathway in clause 820.211(2) must meet Schedule 3 criteria 3001, 3003 and 3004 — or show compelling reasons why those criteria should not be applied — while separate pathways in clauses 820.211(5) to (9) apply to some former Subclass 300 (Prospective Marriage) visa holders. That requirement is in clause 820.211(2)(d) of the Migration Regulations 1994, as published on the Federal Register of Legislation; the Schedule 3 criteria are assessed at the time you lodge, but whether compelling reasons exist is assessed on all circumstances known up to the time of the decision. The Department's PAM3 guidance adds a second gate: you must be in Australia and not in immigration clearance when the application is made (Sch1 item 1214C(3)(c)).
This article is general information for people working out where they stand — it is not personalised advice about your circumstances, and the official instrument plus a registered professional are the places to confirm how any of it applies to you.
Do you hold a substantive visa when you lodge?
Everything turns on that one question. Clause 820.211(2)(d) is triggered only where the applicant does not hold a substantive visa. If your previous visa has ceased and you are unlawful or holding only a bridging visa, you are in Schedule 3 territory, and the same rule applies to any secondary applicant in your application (clause 820.312).
Being unlawful also carries consequences of its own, independent of how the visa application ends up. Do not assume that lodging protects you: treat the bridging visa position as something to confirm, not something to assume.
One absolute bar sits alongside this: you cannot be the holder of a Subclass 771 (Transit) visa at the time of application (820.211(1)(a)).
What do the Schedule 3 criteria actually ask?
The Regulations name three criteria — 3001, 3003 and 3004 — and Schedule 3 itself contains the detail. The best-known element is the time limit: where more than 28 days have passed since your last substantive visa ceased, you fall outside criterion 3001, and the guidance lists failure to meet Schedule 3 (typically an overstay beyond 28 days with no compelling reasons) among the leading refusal grounds for this visa.
The other two criteria are separate conditions set out in Schedule 3, and the official instrument is the only place to read them in full. Do not assume that fixing the 28-day problem fixes Schedule 3 as a whole.
When are "compelling reasons" accepted?
A waiver is not a formality. The Federal Court's approach in Waensila requires the decision-maker to consider all of the circumstances known up to the time of the decision, which means events that happen after you became unlawful can still matter. But the policy line in PAM 3.3.2.7 is narrow: the waiver is directed at circumstances genuinely outside the applicant's control, such as a serious illness — not at the ordinary consequences of a visa ending.
| What tends to support a waiver | What does not, on its own |
|---|---|
| A serious illness or accident that stopped you from lodging in time | The fact that your relationship is genuine and continuing |
| Circumstances outside your control, documented with records | The hardship you and your partner would face if you were separated |
| Later events, considered up to the date of decision | A delay explained only by not knowing the rules |
Matters such as a child of the relationship or your partner's health problems are commonly raised in waiver submissions, but policy treats them as part of the whole picture rather than as a substitute for circumstances beyond your control.
What evidence should you prepare?
Build the case around causation, not sympathy. Show what happened, show that it was outside your control, and show why it stopped you from lodging earlier. Practical steps:
- Work out the exact date your last substantive visa ceased.
- Write a day-by-day account of what happened after that date.
- Collect records for each event — hospital and medical reports, accident reports, police or court documents.
- Explain, in writing, how each event prevented you from lodging.
- Gather relationship evidence across the financial, household, social and commitment dimensions (reg 1.15A, reg 1.09A).
- Lodge Subclass 820 together with Subclass 801, in Australia, on the correct form and with the correct fee (Sch1 item 1214C).
- Keep that evidence current until the decision is made.
- Answer any request for further information (s.56 of the Act) fully and within the deadline.
Where family violence is part of your history, the evidence must meet Division 1.5 — police reports, court orders or a professional report, not a statement alone.
What happens to your lawful status while the application is pending?
The 820 is decided together with the 801, and both are decided on the material as it stands at the decision. If the application is refused while you are onshore, the Department notifies you of your bridging visa status and your review rights (sections 338(2) and 347(3)), and applicants who take a case to the Administrative Review Tribunal (ART, formerly the AAT) usually hold a Bridging visa A (BVA) while review is on foot. Review applications must be made within 21 days of receiving the refusal.
If the visa is granted, no conditions may be attached to it (subdivision 820.6), the holder may stay, work and study in Australia, and it remains in effect until the 801 application is decided or withdrawn (clause 820.511).
Which other requirements still apply if Schedule 3 is waived?
A waiver only removes one obstacle. Every applicant still has to satisfy the public interest criteria — 4001, 4002, 4003, 4004, 4007 and 4009 (clause 820.223(1)(a)), 4019 where the applicant is 18 or over at the time of application (clause 820.223(1)(b)), and 4020 and 4021 (clauses 820.226 and 820.326) — including the health requirement in PIC 4007 and the character criteria. False or misleading documents (PIC 4020) are a refusal ground in their own right.
Three more checks apply to the sponsorship side:
- Your partner must not be barred from sponsoring — for example, where they were granted a Subclass 204 (Woman at Risk) visa in the five years immediately before the application (820.211(2B)).
- Sponsorship limits apply, including the restriction on more than two sponsorships under regulation 1.20J.
- Certain criminal histories, including child sex offences, mean the sponsorship must be refused (regulations 1.20KB and 1.20KC).
The sponsorship itself must be approved and still in force at the decision, and the sponsor must consent to the disclosure of relevant convictions (820.221(4)–(5)). Former holders of some regional provisional visas — such as the 491 and 494 — also need to show a minimum holding period and substantial compliance with that visa's conditions (clauses 820.212 and 820.313).
What if the relationship changes before the decision?
The relationship must still be continuing at the decision (clause 820.221(1)). Two exceptions exist. If the sponsor has died, you must show the relationship would have continued and that you have established close business, cultural or personal ties in Australia — business ties meaning a business operating in Australia that would suffer significant loss, cultural ties meaning participation in cultural or artistic activity, and personal ties meaning continuing interaction with family and friends (820.221(2)). If the relationship has broken down, the application can survive only where family violence or child custody arrangements are established under Division 1.5 (820.221(3)).
Processing time is generally in the range of 12 to 24 months depending on the complexity of the case and place limitations, so it is worth assuming your circumstances will need to be evidenced again closer to the decision.
Frequently Asked Questions
Can I apply for a partner visa onshore if I have overstayed?
Yes, but not on the same footing as someone who holds a substantive visa. Clause 820.211(2)(d) requires you to meet Schedule 3 criteria 3001, 3003 and 3004, or to establish compelling reasons for not applying them. You must also be in Australia and not in immigration clearance when you lodge (Sch1 item 1214C(3)(c)).
Is a genuine relationship enough to waive Schedule 3?
No. Policy treats the existence of a genuine relationship as a separate requirement, not as a compelling reason for waiving Schedule 3. Focusing a submission on how strong the relationship is, without addressing why the application could not be lodged in time, is a common reason waivers fail.
What counts as a compelling reason?
Circumstances genuinely outside your control, with serious illness given as the policy example. The decision-maker looks at all circumstances known up to the date of decision, so later events can be relevant. The hardship of being separated from your partner is not, by itself, enough.
My visa ended more than 28 days ago — is that fatal to the application?
It means you will not meet the 28-day element of Schedule 3, so the application depends on a compelling reasons waiver. Failure to meet Schedule 3 is listed among the top refusal grounds for Subclass 820, so this is the part of the case that needs the most preparation.
Will I get a bridging visa while I wait?
A bridging visa is the mechanism that keeps an applicant lawful during onshore processing, and applicants who take a refusal to the ART usually hold a Bridging visa A. Because the treatment depends on your own history, confirm the bridging visa position on your grant correspondence rather than assuming a lodged application confers lawful status.
How long do I have if the application is refused?
21 days from receiving the refusal notification, to apply to the Administrative Review Tribunal (ART, formerly the AAT). The Department will tell you about your review rights and your bridging visa status when it refuses an onshore applicant.
Does a Schedule 3 waiver fix health or character problems?
No. Public interest criteria such as PIC 4007 (health) and the character criteria are assessed independently of Schedule 3. A waiver removes the Schedule 3 obstacle only; every other criterion still has to be met.