Visa Cancellation, Overstay and Subclass 837 in 2026: Schedule 3 and Section 48

Yes — a child without a substantive visa can still apply for the Orphan Relative visa (subclass 837), but clause 837.212 requires Schedule 3 criterion 3002, which the Department describes as applying within 12 months of the previous substantive visa ceasing, and requires that the previous substantive visa was not a Subclass 771 Transit visa. If section 48 of the Migration Act 1958 also applies, four further conditions sit on top of that — two in clause 837.211 and two in the Department's policy guidance. This reflects the Department of Home Affairs' Orphan Relative visa (subclass 837) page as at August 2026, read together with the relevant clauses of the Migration Regulations 1994.

Dates and identity history decide most of these cases, so treat what follows as general information about how the rules connect, not as advice about your own situation. Confirm the current wording of the criteria and any policy guidance against the official sources at the end of this article before acting on it.

Why does having no substantive visa change the test?

The Department lists three identity-related problems that can put this visa out of reach: not currently holding a substantive visa, not having applied within 12 months of the previous substantive visa ceasing, and holding or having last held a Subclass 771 Transit visa.

A bridging visa is not a substantive visa, so someone holding a bridging visa after a cancellation is assessed under this rule in the same way as someone who is currently unlawful. The Department's wording is that the child "might not be able to get this visa" — this is an eligibility filter applied at the front of the process, not a discretionary factor weighed at the end.

Situation	What the regulations require	What else applies
Holds a substantive visa now (not subclass 771)	Clause 837.212 is met on identity grounds	Nothing further on status
Does not hold a substantive visa	Must satisfy Schedule 3 criterion 3002, which the Department describes as applying within 12 months of the previous substantive visa ceasing	The last substantive visa must not have been a subclass 771
Also affected by section 48	Clause 837.211 as well as 837.212	No refusal or cancellation under section 501; adopted by an Australian relative since last applying for a substantive visa so as to no longer meet the orphan relative definition; under 25 unless a disability means the applicant is unable to work; Form 40CH signed by the Australian relative who claims to be a parent

How is the 12-month period counted?

Clause 837.212 requires a non-substantive visa holder to satisfy Schedule 3 criterion 3002. The Department's eligibility page expresses that requirement in plain terms: the application must have been made within 12 months of the previous substantive visa ceasing.

The two dates that matter are therefore the day the last substantive visa ceased and the day the subclass 837 application was lodged. For a cancelled visa, the first of those is the date the cancellation took effect, so the practical question is usually how much time passed between the cancellation decision and lodgement.

Nothing in the Department's page or the regulation clauses set out a general extension or waiver of that window. If the application falls outside it, the child may not be eligible. Because criterion 3002 is a regulation-level test, the exact wording should be read from the current consolidated text of the Migration Regulations 1994 rather than from any summary.

Does a Subclass 771 Transit visa block the application?

Yes, on the Department's criteria. The bar covers both the substantive visa currently held and the one last held. A child whose last substantive visa was a subclass 771 cannot satisfy clause 837.212 through the Schedule 3 route either, because that route is only available to a person whose previous substantive visa was not a 771.

What changes once section 48 applies?

Section 48 limits what a person already in Australia can apply for after a visa has been refused or cancelled while no substantive visa is held. Which visas remain open is set out in the regulations, and subclass 837 is one of them — but on conditions.

Clause 837.211 adds two requirements for an applicant affected by section 48. The applicant must not have had a visa refused or cancelled under section 501, and since last applying for a substantive visa they must have been adopted by an Australian relative in a way that means they no longer meet the orphan relative definition. The Department's policy guidance for this visa adds two more: the applicant must be under 25 unless a disability means they are unable to work, and a Form 40CH must be signed by the Australian relative who claims to be their parent.

That last point is easy to miss. It is not the same as the ordinary sponsorship requirement. A standard 837 sponsorship can come from an eligible sibling or step-sibling, grandparent or step-grandparent, aunt, uncle, step-aunt or step-uncle; the section 48 Form 40CH requirement is specifically tied to the relative claiming to be a parent.

Assume an applicant is 17, has been refused a student visa while unlawful, and has an aunt in Australia willing to sponsor. The aunt can sponsor in the ordinary way, but if section 48 applies the Form 40CH must be signed by the relative claiming to be the parent — and if no such relative is available to sign, that requirement cannot be met by substituting the aunt.

Will a cancelled visa or a previous refusal still count against the application?

Yes, as a separate question. The Department states that it considers the child's immigration history when deciding the application, which means the child might not be eligible if they have had a visa cancelled or an application refused. That is a discretionary consideration about history, distinct from the hard identity criteria discussed above.

The Department's page points to Form 1026i, Limitations on applications in Australia, for the circumstances in which a permanent visa application can still be made after a cancellation or refusal. For anyone applying from outside Australia, it points instead to the re-entry ban information, since a cancellation or removal history can affect whether the person can return at all.

What other criteria still have to be met?

Sorting out status does not replace the rest of the eligibility list. The child must be under 18 when applying, must have no parent able to care for them, and must have consent to migrate to Australia in one of the recognised forms. The sponsorship itself must be approved before the visa can be granted, and pending registrable offence charges against a sponsor or their partner will lead to refusal, with convictions approved only in very limited circumstances.

Two items on the Department's list deserve particular attention from anyone whose status has broken down. First, any debt owed to the Australian Government must be repaid, or there must be a formal arrangement to repay it. Second, the health requirement applies to the child and any dependent children applying with them. The character requirement applies to a child aged 16 or over, and the Department may also decline to grant the visa where granting it would not be in the best interests of an applicant under 18.

One further constraint comes from the regulations rather than the Department's page: at the time of decision and grant, the applicant must be in Australia and not in immigration clearance. That is why leaving Australia while an application is unresolved can create a second problem — a person outside Australia cannot be granted the visa, and may then face re-entry questions on top of the eligibility questions. Policy guidance and regulation text are updated from time to time, so check the current versions before relying on this point.

Frequently Asked Questions

Can I apply for subclass 837 if my visa was cancelled and I am now unlawful?

Yes, but clause 837.212 requires a person without a substantive visa to satisfy Schedule 3 criterion 3002, which the Department of Home Affairs describes as applying within 12 months of the previous substantive visa ceasing. The Department also weighs immigration history separately, so a cancellation remains relevant even where the timing works.

When does the 12-month period start?

It runs from the day the last substantive visa ceased. For a cancelled visa, that is the date the cancellation took effect, and the comparison is made against the date the subclass 837 application was lodged.

Does Schedule 3 criterion 3002 give me extra time?

The Department of Home Affairs presents criterion 3002 as the 12-month requirement, not as an extension of it. Neither the Department's page nor clause 837.212 describes a general waiver, so the safest reading is that the window is fixed and the exact criterion wording should be read from the Migration Regulations 1994.

My last substantive visa was a subclass 771 Transit visa. Can I still apply?

No, on the Department's criteria. The exclusion covers the substantive visa held now or held last, and the Schedule 3 route under clause 837.212 is not available to a person whose previous substantive visa was a 771.

What extra conditions apply if section 48 applies to me?

Clause 837.211 requires that the applicant has not had a visa refused or cancelled under section 501, and has been adopted by an Australian relative since last applying for a substantive visa such that they no longer meet the orphan relative definition. Departmental policy guidance also requires the applicant to be under 25 unless a disability means they cannot work, and requires a Form 40CH signed by the Australian relative who claims to be a parent.

Do I need to be in Australia when the visa is decided?

Under the regulations, the applicant must be in Australia and not in immigration clearance at the time of grant. If you leave while the application is pending, check the re-entry rules before planning to return, and confirm the current regulation text before relying on this.