Applying for Subclass 838 Without a Substantive Visa in 2026: Schedule 3 and the 28-Day Rule

Yes, you can apply for the Aged Dependent Relative visa (Subclass 838) without a substantive visa — but only inside a narrow window, and not at all if your last substantive visa was a transit visa. Under clause 838.211 of the Migration Regulations 1994, an applicant who does not hold a substantive visa at the time of application must instead satisfy Schedule 3 criterion 3002, which requires the application to be made within 28 days of the last substantive visa ceasing. On the Department of Home Affairs' Aged Dependent Relative visa (Subclass 838) page, the application must also be made on paper, while you are in Australia and not in immigration clearance.

This article explains how those rules are written. It is general information only, not advice about your own circumstances, and the Regulations are amended from time to time — check the current official text of Schedule 3 before you rely on any deadline.

Am I a "no substantive visa" applicant, and why does it matter?

The distinction is drawn at the moment you lodge. Clause 838.211 has two limbs: either you hold a substantive visa (with Subclass 771 transit visas excluded), or you hold no substantive visa but meet the Schedule 3 criteria that apply — for Subclass 838, the relevant one is criterion 3002.

If you are on a bridging visa, you are in the second limb. A bridging visa is not a substantive visa, so holding one does not put you back in the first limb; it only keeps you lawful while the 838 application is processed. The practical difference is stark: the first limb has no 28-day test attached to it, while the second limb turns entirely on when your last substantive visa ended.

What does Schedule 3 criterion 3002 actually require?

Criterion 3002 sets a time limit measured from the loss of your substantive visa, not from any later date. The clock runs from the day your last substantive visa ceased — by expiry or cancellation — and the 838 application must be lodged within 28 days of that day.

Three points follow from the way the criterion is written:

• The 28 days are counted from the substantive visa, not from the expiry of any bridging visa you later held.
• Time spent waiting for documents, for a sponsor's Form 40, or for an assurance of support does not extend the period.
• The test is applied at lodgement, which is the date the department receives a valid paper application.

To make it concrete, suppose an applicant's last substantive visa ceased on 1 March 2026, and they were granted a bridging visa that runs until later in the year. A Subclass 838 application lodged before the end of 29 March 2026 is inside the 28-day window; one lodged after that is not, even though the applicant is still lawful on the bridging visa.

Why is a Subclass 771 transit visa a hard exclusion?

Clause 838.211 excludes Subclass 771 (Transit) visas from the definition of a substantive visa, and the alternative limb is conditioned on the applicant not having held a 771 visa immediately before losing their substantive visa. The department's policy guidance goes further and treats both current and former transit visa holders as unable to satisfy the clause.

The consequence is that criterion 3002 cannot rescue someone in this position. If the visa you lost was a transit visa, meeting the 28-day deadline does not fix the problem, because the pathway that requires Schedule 3 is not available to you.

What happens if the 28 days have already passed?

Criterion 3002 is a criterion that must be met, so an application lodged outside the window fails at that point regardless of how strong the rest of the case is — the relationship evidence, the dependency evidence and the sponsorship all become irrelevant once the time limit is missed. Late lodgement is one of the commonly recorded refusal grounds for this visa.

The Regulations do contain provision for waiver of certain Schedule 3 criteria in defined circumstances. Whether any waiver is available, and on what terms, depends entirely on the provisions as currently published, so it should be confirmed against the official Schedule 3 text rather than assumed.

Does lodging a Subclass 838 application keep me lawful?

The official page describes the bridging visa arrangements that attach to an onshore application. In summary:

• You must apply on paper, using Form 47OF, with your sponsor completing Form 40.
• You must be in Australia, and not in immigration clearance, when you apply.
• When you applied, you were granted a bridging visa; if your current visa expires before a decision is made, that bridging visa starts and you can remain in Australia while the application is processed.
• Do not cancel your current visa, because doing so leaves you unlawful and removes eligibility for the bridging visa.
• You must be in Australia, and not in immigration clearance, when the decision is made, so any travel needs a visa that lets you return.
• The first instalment is paid when you apply; the second instalment is invoiced once other requirements are met, and the visa cannot be granted without it.
• If the application is refused, the application fee is not refunded, and the decision letter will tell you whether you have a right to review.

What else has to be true at the same time?

The 28-day rule is a threshold, not the whole test. Under clause 838.212 you must be an aged dependent relative of an Australian relative; under clause 838.213 you must be sponsored by a relative (or that relative's partner) who is at least 18, settled, and usually resident in Australia. At the decision stage, clause 838.222 requires the Secretary of Social Services to have accepted an assurance of support, and the public interest criteria in clauses 838.223 and 838.224 must be met by you and by family members, whether or not they are included in the application.

Because Subclass 838 sits in the other family stream, processing is not quick, and the period between lodgement and decision is long enough that changes in your circumstances — a sponsor moving overseas, a change in dependency, a new passport — can affect the outcome. That is a further reason to treat the lodgement date as the point around which everything else is organised.

Frequently Asked Questions

Is a bridging visa a substantive visa for Subclass 838 purposes?

No. A bridging visa is not a substantive visa, so if you hold one you fall into the second limb of clause 838.211 and must satisfy Schedule 3 criterion 3002. Holding the bridging visa keeps you lawful; it does not remove the 28-day requirement.

How is the 28-day period counted?

It runs from the day your last substantive visa ceased, whether by expiry or cancellation. Time spent on a bridging visa afterwards, or time spent gathering documents, does not extend it. Confirm the wording against the official Schedule 3 text before relying on a particular date.

I lodged late — can criterion 3002 be waived?

The Regulations provide for waiver of certain Schedule 3 criteria in defined circumstances. Whether a waiver applies to your situation depends on those provisions as currently published, so check the official text rather than assuming one is available.

I held a transit visa years ago. Does that still matter?

Yes, potentially. Clause 838.211 excludes Subclass 771 from the substantive visa limb, and the alternative limb requires that you did not hold a 771 visa immediately before losing your substantive visa. The department's guidance treats current and former transit visa holders as unable to satisfy the clause.

Will I get a bridging visa while the 838 application is processed?

According to the official page, applying for this visa grants you a bridging visa, which starts if your current visa expires before a decision is made. Do not cancel your current visa, as that leaves you unlawful and removes bridging visa eligibility.

Can I travel overseas while the application is pending?

You may travel, but you must be in Australia and not in immigration clearance when the decision is made, and you need a valid visa to return. Travel that leaves you outside Australia at decision time is a recorded ground of refusal for this visa.

References

• Department of Home Affairs — Aged Dependent Relative visa (Subclass 838)
• Federal Register of Legislation — Migration Regulations 1994