Substantive Visa

What is a Substantive Visa in Australia?

What is the meaning of substantive visa? Substantive visas are any type of visa granted by the Australian government to applicants who intend to visit and/or stay in the country indefinitely for a particular purpose. It could be for studying, work, or travel. It is not the same as a bridging visa.

Bridging visas, on the other hand, are temporary visas granted to individuals whilst they wait for the processing of their substantive visa. All temporary visas and permanent visas, except bridging visas, criminal justice, and enforcement visas, are considered substantive visas.

The following is a quick list of substantive visa Australia.

• Student Visas
• Visitor Visas
• Skilled Visas
• Protection Visas
• Partner Visas

If you are applying for any of these temporary and permanent visas, Parish Patience Immigration Lawyers are experienced migration consultants who can help you with anything related to visa applications or filing an appeal to reverse an unfavourable decision regarding your visa.

Schedule 3 Criteria for Expiring and Expired Substantive Visas

If you have an existing substantive visa and wish to stay lawfully in Australia before your visa’s validity expires, you are eligible to apply for another visa and be given a bridging visa while you wait for the processing of your new substantive visa.

However, under Migration Regulations 1994, Schedule 3 states that if you are not a substantive visa holder when you lodged your partner visa application, your visa will be refused.

You must at least have held a valid substantive visa no less than 28 days after it elapsed. Otherwise, you will be required to leave the country and apply offshore.

Schedule 3 Waiver

The Schedule 3 requirements may be waived if there are compelling and/or compassionate reasons to ignore the rule.

Not needless to say, it is fairly difficult to convince a case officer to waive the Schedule 3 requirement. And while there are no specific guidelines as to what exactly constitutes a valid and compelling reason, the following are scenarios that demonstrate the ‘moral necessity’ of waiving the Schedule 3 requirement (in relation to partner visas).

• The non-Australian partner giving birth to an Australian child
• Physical and emotional dependence of the sponsoring partner to the partner visa applicant as a result of a serious physical and/or mental health issue
• Either the sponsor or the visa applicant cannot go to the latter’s home country due to fear of persecution, conflicts, and other dangerous situations
• The sponsoring partner cannot go to the visa applicant’s home country due to difficulty gaining a visa, speaking their native language, and lack of employment opportunities.

It’s important to say that, while these may be considered “compelling” grounds to waive the Schedule 3 criteria, the case to be presented must be really “exceptional” in magnitude. Other factors such as the length of relationship, as it is already a requirement in a partner visa application, cannot be used as a compelling ground to waive the Schedule 3 requirement.

If you’ve been in Australia as an unlawful citizen for a number of years, and have seemingly done little efforts to prevent your current situation, chances are your request to have the Schedule 3 requirement waived will not be granted. For expert legal advice, speak to one of our senior consultants.

Requesting a Schedule 3 Waiver in Writing

Once you receive a Schedule 3 Request, you have about 28 days to respond to the request in writing. You must also make sure to submit supporting documentation and evidence that will show compelling grounds to have the Schedule 3 criteria waived.

For example, if your sponsoring partner is suffering from a severe mental health issue, you must include documents confirming that the sponsor is indeed mentally ill, and that your visa refusal will make the sponsor’s situation worse.

Statutory Declarations, which bear more legal weight than a simple written document, are also helpful in your case, as providing dishonest information in a statutory declaration is illegal and could result in imprisonment.