Subclass 837 and Schedule 3: Proving You Still Qualify in 2026

If your last substantive visa ceased less than 12 months ago, the Schedule 3 requirement attached to the Orphan Relative visa (subclass 837) can still be met. The Australian Department of Home Affairs Orphan Relative visa (subclass 837) page states that a child might not be able to get this visa if they do not currently hold a substantive visa, or if they have not applied for an Orphan Relative visa within 12 months of the previous substantive visa ceasing; that official page was current as at August 2026. In Schedule 3 to the Migration Regulations 1994 this is criterion 3002, applied to this visa through clause 837.212. This article explains how the rules read and is general information only — it is not personalised advice about your circumstances, and anything you rely on should be checked against the latest official publication or with a registered professional.

What does the 12-month rule actually require?

The requirement attaches to two facts: that you are not currently the holder of a substantive visa, and that the gap between the end of your last one and your subclass 837 application is no more than 12 months. Read literally, the test is passed by lodging within that window, not by explaining why you are unlawful. A child who still holds a substantive visa at the time of application does not need criterion 3002 at all, because clause 837.212 is satisfied by the substantive visa the applicant holds.

Criterion 3002 is only one part of the picture. The same visa has time-critical conditions of its own: the applicant must be under 18 when they apply, must be sponsored by an eligible sibling or step-sibling, grandparent or step-grandparent, aunt, uncle, step-aunt or step-uncle, and the sponsorship must be approved before the visa can be granted. Missing the Schedule 3 window cannot be cured by a stronger sponsorship.

How are the 12 months counted?

The period runs from the date the previous substantive visa ceased to the date the subclass 837 application is lodged. The Department page does not set out further detail on counting – for example how a bridging visa in between changes anything – so the practical position is simply that the application date must fall inside 12 months of the cessation date.

Assume an applicant whose last substantive visa ceased on 1 March 2026 and who lodges a subclass 837 application on 20 January 2027. On the face of the criterion, the application is inside the window. Move the lodging date to 20 March 2027 and the same application falls outside it, whatever the reason for the delay. Because the test is a date comparison, the evidence that matters most is documentary proof of both dates.

Which past visa counts as the "previous substantive visa"?

Not every past visa opens the pathway. Both the Department page and clause 837.212 single out the Subclass 771 Transit visa: an applicant whose substantive visa held or last held was a 771 does not satisfy clause 837.212, which is a separate requirement from criterion 3002 and applies regardless of timing. The Department's PAM3 policy guidance puts it more bluntly – a holder of a Transit (771) visa cannot be the principal applicant for subclass 837.

Situation at application	What the criteria do
Holding a substantive visa other than 771	Criterion 3002 not needed; clause 837.212 met by the visa held
No substantive visa, lodged within 12 months of the last one ceasing	Criterion 3002 met
No substantive visa, lodged more than 12 months after it ceased	Criterion 3002 not met
Holding or last holding a Subclass 771 Transit visa	Excluded, regardless of timing

Nothing in the Department's published eligibility criteria or in clause 837.212 sets out an alternative pathway or exception for an applicant who misses the window. Anyone relying on an exception should confirm it against the current text of the Migration Regulations 1994.

If a section 48 bar applies, what else is required?

Applicants who are subject to the limitations in section 48 of the Migration Act 1958 carry extra requirements on top of everything above. Clause 837.211 adds that such an applicant must not have had a visa refused or cancelled under section 501, and also covers an applicant who, since last applying for a substantive visa, has been adopted by the Australian relative and no longer meets the orphan relative definition. The Department's PAM3 policy guidance adds two further conditions: the applicant must be under 25 (unless incapacitated for work due to a disability), and Form 40CH must be signed by the Australian relative who claims to be the applicant's parent. That Form 40CH is the sponsorship undertaking, and per regulation 1.20 it commits the sponsor to providing necessary financial and accommodation support for two years after the visa holder first enters Australia.

The age condition here is different from the general one. The ordinary rule is under 18 at application; the additional policy condition for section 48 applicants operates as a separate ceiling, so the strictly correct reading is that both thresholds are engaged and the applicant must satisfy each.

Does a cancelled visa or refused application rule you out?

Not automatically, but it is weighed against you. The Department page says the child's immigration history is considered when the decision is made, so a cancellation or refusal on the record may make the applicant ineligible. In some circumstances an applicant who has had a visa cancelled or an application refused may still apply for a permanent visa, subject to the limits set out in the Department's limitations material (Form 1026i). For applications made outside Australia, re-entry ban rules also come into play.

Other currency and integrity conditions sit alongside this. The health requirement applies to the child and to dependent children applying with them, and dependent children not applying may also have to meet it. The character requirement applies to a child aged 16 or over. Any debt owed to the Australian Government must be repaid or covered by a formal repayment arrangement. If the applicant is under 18, either the written consent of everyone legally able to decide where the child lives is needed, the home country's law must permit the child to leave, or the grant must be consistent with any applicable Australian child order.

What evidence proves the timing and the section 48 conditions?

The critical documents are those that fix dates and status: the cessation date of the last substantive visa, the lodging date of the subclass 837 application, the visa history showing which subclasses were held, and – for section 48 applicants – the signed Form 40CH and evidence of the applicant's age and of any disability relied on.

Where official records are missing, the Department's PAM3 policy guidance indicates that applicants are expected to show they made genuine efforts to obtain them, and that other credible, relevant and significant evidence can be considered; a written explanation of why a document cannot be obtained is part of that picture. This is consistent with the visa's context – applicants are often children who have experienced trauma and whose paperwork is incomplete – but it does not remove the need to establish the dates.

Frequently Asked Questions

Do I need Schedule 3 criterion 3002 if I still hold a substantive visa?

No. Clause 837.212 is satisfied if you hold a substantive visa at the time of application, other than a Subclass 771 Transit visa. The 12-month criterion only becomes relevant once you no longer hold one.

Does the 12 months start from my visa expiry date or from another date?

It runs from the date the previous substantive visa ceased, and the test is whether the subclass 837 application was lodged within 12 months of that date. Evidence that fixes both dates is therefore decisive.

Can bridging visa periods be added together to make up a substantive visa?

No. A bridging visa is not a substantive visa, so the comparison is always between the lodgement date and the date the earlier substantive visa ceased. Time spent on a bridging visa counts against the 12 months rather than pausing it.

What happens if my last substantive visa was a Subclass 771 Transit visa?

You may fail the criteria even if you lodged quickly. Both the Department page and clause 837.212 exclude applicants whose substantive visa held or last held was a 771, and the Department's PAM3 policy guidance states a 771 holder cannot be the principal applicant.

If I am affected by section 48, what is the Form 40CH requirement?

You must provide Form 40CH signed by the Australian relative who claims to be your parent, and you must be under 25 unless incapacitated for work due to a disability. Clause 837.211 separately requires that you have not had a visa refused or cancelled under section 501.

Is the sponsorship itself part of what I have to prove?

Yes. The sponsorship must be approved before the visa can be granted, the sponsor must be an eligible relative such as a sibling, grandparent, aunt or uncle (including step-relations), and a pending registrable offence charge against the sponsor, or against their spouse or de facto partner, leads to refusal of both sponsorship and application.