Schedule 3

An important part of time of application criteria is the consideration of applicants who do
not hold a substantive visa. This may arise because the applicant remained in Australia
after their substantive visa ceased, or has had their substantive visa cancelled or has
applied for another substantive visa in Australia that is not as yet determined, and they
hold a bridging visa.

In applying for another visa, these people may be subject to Schedule 3. Schedule 3 is
designed to encourage people to either leave Australia, or apply for a further visa
before their current substantive visa expires, by restricting their options to apply for
further visas onshore.

The legislation also recognises that there are genuine reasons why an applicant may
not hold a substantive visa and makes allowances for those situations. Schedule 3
criteria include:

• time limits within which the visa application must have been made (criteria 3001
and 3002)

• recognition that there may be factors beyond the applicant’s control that explain
why the applicant did not hold a substantive visa at the time they applied for a
further visa (criteria 3003 and 3004)

• a criterion (3005) that prevents the “concession” offered by Schedule 3 being
used by an applicant for a temporary visa more than once.

The purpose of Schedule 3 criteria is to impose a time limit (or grace period) for applying
for certain visas. There are specific subclasses to which neither time limit applies (for example 457, there is no timeframe within which an applicant needs to lodge an application).

3001 requires that the application is made no more than 28 days since the applicant last
held a substantive visa. This means that if it is more than 28 days since the last
substantive visa was held, the applicant will not meet any of the Schedule 3 requirements

Remember that Schedule 3 can only be waived for certain visa subclasses – for others,
there is no ability to waive the requirement (see 856.211 (2)) so if it is more than 28 days
since the last substantive visa was held, the application, if lodged, could well be valid but
will ultimately be refused.

So if you are dealing with an applicant who does not hold a visa or holds a bridging visa, do
not forget to consider what is required under Schedule 3 as it is often overlooked by even
experienced registered migration agents.

Section 48 and 8503 (No Further Stay)

Section 48 bar applies only when:

1) Applicant was refused or cancelled a visa since their last entry to Australia AND
2) Applicant does not currently hold a substantive visa (unlawful or Bridging) AND
3) Applicant is in Australia

s48 does not apply to off shore applicants.

Substantive visas, are any other visas except for: Bridging Visa, Criminal Justice Visa and Enforcement Visa.

It is OK for a person to lodge a visa if they are unlawful in Australia as long as they did not have a visa refused since their last entry to Australia.

Reg 2.12 lists classes that allow applicant to apply even if they are subject to s48.


Module 2 quiz has good practical questions related to Section 48.


Condition 8503
Normally No Further Stay cannot be waived unless there are cases "beyond the control", and on "compelling and compassionate" bases. Act and Regulations do not specify such cases, but PAM3 contains information on how this should be handled. It gives various examples of "beyond the control" such as war in the native country, or death/illness of a relative in Australia. It also says what cases are normally not considered good enough for waiving the condition, for example, getting married is not compelling enough. For every client I would need to have a delicate discussion to find out if they have special cases when the condition can be waived. Austlii contains many cases related to 8503.

No further stay conditions 8534 and 8535