Sponsor Criminal Records and Subclass 837 in 2026: Reg 1.20KB Explained
By Aurum Legal · 9 October 2026
If the sponsor — or the sponsor's spouse or de facto partner — has a charge for a registrable offence that has not yet been finalised, the Department of Home Affairs will refuse both the sponsorship and the subclass 837 visa application. If the record is a conviction rather than a pending charge, sponsorship can be approved only in very limited circumstances. That is the position stated on the Department of Home Affairs Orphan Relative visa (subclass 837) page, as at the August 2026 version of that page, and it is the practical effect of reg 1.20KB of the Migration Regulations 1994. This article is general information only, not advice about any individual case — the outcome always turns on the facts and on the law as currently published.
What does reg 1.20KB actually require?
Subclass 837 (Orphan Relative visa) is a permanent visa for a child under 18 who has no parent able to care for them, sponsored by an eligible relative in Australia. Before the visa can be granted, the sponsorship itself has to be approved — the two decisions are separate, and the visa cannot be granted unless the sponsorship is approved first.
Reg 1.20KB is the rule that limits who can be an approved sponsor when the applicant is a child. The Department's page states the test in two parts:
| Sponsor's situation | Effect on the application |
|---|---|
| Pending charge for a registrable offence (sponsor and/or their spouse or de facto partner) | Sponsorship and visa application will be refused |
| Conviction for a registrable offence (sponsor and/or their spouse or de facto partner) | Sponsorship can be approved only in very limited circumstances |
The rule applies to the sponsor and to the sponsor's spouse or de facto partner, if they have one. It is not limited to the person who signs the sponsorship form.
Why a pending charge is treated more harshly than a conviction
This is the part that surprises most families. The Department's wording is absolute for pending charges: it says it will refuse the sponsorship and the visa application. There is no "limited circumstances" qualifier attached to that limb. A charge that has not been resolved means the decision-maker cannot assess the final criminal record at all, so the application cannot be cleared while the matter is live.
For convictions, the wording is different. The sponsorship is not automatically refused; it can be approved, but only in a narrow set of cases. The Department's 837 page does not list what those circumstances are — it directs readers to its measures for the protection of children page for the detail. Policy guidance prepared for decision-makers notes that approval remains possible at the decision-maker's discretion, so each case turns on its own facts rather than on a fixed checklist.
What is a "registrable offence"?
The subclass 837 page uses the term without reproducing the full definition. Whether a particular offence is registrable depends on the child protection registration scheme that applies to it, so the label is not something to guess at from the charge name alone. The Department points readers to its measures for the protection of children page, and the current text of the Migration Regulations 1994 is the authoritative source for the definition. If there is any doubt about how an old charge or conviction is classified, that is a question to resolve against the current legislation rather than by assumption.
Whose record is checked, and whose is not
The rule reaches only two people: the sponsor, and the sponsor's spouse or de facto partner. It does not extend to the sponsor's other relatives, and it is separate from the character requirement that the child may have to meet personally.
The child's own position is assessed differently. Under the Department's page, a child aged 16 or older must meet the character requirement, and the Department may also ask other dependent children applying with them to meet it. So a family can face two independent checks at once: the sponsor-side check under reg 1.20KB, and the applicant-side character check. Failing either one is enough to stop the application.
Can the family simply choose a different sponsor?
Not easily. The eligible sponsor for a subclass 837 application is limited by relationship — a sibling or step-sibling, grandparent or step-grandparent, aunt, uncle, step-aunt or step-uncle, who is 18 or over and a settled Australian citizen, permanent resident or eligible New Zealand citizen (or the cohabiting spouse or de facto partner of such a relative). If every person in that group carries the same problem, there is no alternative sponsor to fall back on.
Once a sponsorship has been approved, it cannot simply be swapped for another. The regulations contain no provision for substituting a sponsor, and the sponsorship has to remain approved and in force up to the point the visa is granted. That is why the criminal record question should be worked out before the application is lodged, not after.
Where this fits in the rest of the 837 criteria
The sponsor's record is one gate among several, and clearing it does not guarantee a visa. The Department's page also requires that:
- the child is under 18 when they apply;
- the child has no parent who can care for them — because both parents are deceased, permanently incapable of caring for the child, or cannot be found (a parent who is able to care but does not want to is not enough);
- there is consent to migrate, by written consent from everyone who can legally decide where the child lives, or because the home country's laws allow the child to leave, or because it is consistent with any Australian child order;
- the child holds a substantive visa, or applied within 12 months of their previous substantive visa ceasing, and their current or last substantive visa was not a subclass 771 Transit visa;
- the child and any dependent children applying with them meet the health requirement;
- any debt to the Australian Government has been repaid or is covered by a formal arrangement;
- the grant would be in the best interests of the child, since the Department may refuse if it is not.
An adverse immigration history is also relevant. The Department considers whether the child has had a visa cancelled or an application refused, and there are separate limitations on applying in Australia in some of those cases.
What decision-makers look at, in order
Policy guidance for this visa sets out a sequence that is useful for understanding where the criminal record question sits:
- Confirm the application is valid.
- Assess whether the child meets the orphan relative definition.
- Assess the sponsor's eligibility, including whether the sponsor is settled.
- Apply the reg 1.20KB limitation, where the applicant is under 18.
- Confirm the child still qualifies up to the time of decision, and that the sponsorship remains approved.
- Assess the public interest criteria, including health and character.
- Apply the child welfare criteria that apply to applicants under 18.
- Check that every family member included in the application meets their own criteria.
- Confirm the child is in Australia, and not in immigration clearance, at the time of grant.
The sponsor's undertaking also matters beyond the criminal record check. A sponsor commits to providing financial and accommodation support for the first two years after the visa holder arrives, and a decision-maker can ask for an Assurance of Support where the child might need recoverable social security payments. Where one sponsor is supporting several applicants, the Department looks closely at whether the commitment can actually be met.
What to take from this
A pending charge is close to a hard stop: the stated outcome is refusal of both the sponsorship and the visa. A conviction leaves a narrow path open, decided on the individual facts and against the child protection framework. Either way, the issue belongs to the sponsor and their partner, it must be resolved before the sponsorship can be approved, and it cannot be worked around by changing sponsor later. For the current wording, check the Department of Home Affairs Orphan Relative visa (subclass 837) page and the child protection measures page, and the current text of the Migration Regulations 1994.
Frequently Asked Questions
Does a pending charge that is later withdrawn fix the problem?
The Department's stated test turns on whether a registrable offence charge is pending when the decision is made. If the charge has been withdrawn by then, the pending-charge limb no longer applies, and the conviction limb is engaged only if the proceedings actually ended in a registrable offence conviction. The timing of the court outcome relative to the departmental decision is therefore critical.
Is only the sponsor's record checked?
No. The rule covers the sponsor and their spouse or de facto partner, if they have one. A record belonging to the partner can be just as damaging to the application as one belonging to the sponsor.
Does an old conviction still count?
The Department's page does not set a time limit, and it does not distinguish spent or historical matters in this section. It refers simply to a registrable offence conviction. How a particular historical conviction is treated should be checked against the current legislation and the Department's child protection guidance.
Can the child be sponsored by someone else if the first sponsor has a record?
Only if that person is an eligible relative — a sibling or step-sibling, grandparent or step-grandparent, aunt, uncle, step-aunt or step-uncle — and meets the age and settlement requirements. There is no general right to nominate any willing adult, and an approved sponsorship cannot later be transferred to a different person.
Does the child need their own police certificate?
The child is assessed under the character requirement separately from the sponsor, and the Department's page requires it for applicants aged 16 or older. Dependent children included in the application may also be asked to meet it. This is a separate test from reg 1.20KB.
Is there any review if the sponsorship is refused?
Review rights depend on the reasons for the decision and on the current provisions, and some refusals carry limited or no merits review. The Department's subclass 837 page and the current legislation are the places to confirm what applies, since the review framework and time limits change.