The orphan relative visa (117 and 837): who counts, how each limb of the definition is proved, the relative who sponsors, and why poverty is not enough

MARN 1576536

The definition

The regulations define an orphan relative of an Australian citizen, permanent resident or eligible New Zealand citizen as a person who has not turned 18, who does not have a spouse or de facto partner, who is a relative of that Australian, and who cannot be cared for by either parent because each parent is dead, is permanently incapacitated, or is of unknown whereabouts. The relative is a brother, sister, grandparent, aunt, uncle, niece or nephew, or a step-relative of those kinds, as the regulations define relative for this purpose, and the sponsor in practice is the sibling, grandparent, aunt or uncle. The visa is permanent, the 117 for a child outside Australia and the 837 for a child in Australia, and it is one of the child visas alongside the ordinary child visa and the adoption visa. The child visa guide covers the visa for a parent's own child.

A dead parent

The death of a parent is shown by the death certificate issued by the civil registry of the country where the parent died, with a certified translation where it is not in English, and where no certificate exists, because the death was in a place or at a time when registration did not happen, by the evidence that does: hospital records, a burial or cremation record, a religious or community record, newspaper notices, and statutory declarations from people who knew the parent and attended the funeral. The Department verifies death certificates from some countries with the issuing authority, and a certificate that cannot be verified, or that was issued long after the death on the application of a relative, is examined closely. Where one parent is dead and the other is not, the other parent's position must independently meet one of the three limbs.

A permanently incapacitated parent

Permanent incapacity means a physical or mental condition, permanent in nature, that prevents the parent from caring for the child, and it is shown by medical evidence from the treating doctor or specialist describing the condition, its permanence and its effect on the parent's capacity to care, with the hospital or institutional records where the parent is in care. A serious illness that is being treated, a disability that limits the parent but not to the point of being unable to care, imprisonment, addiction, and mental illness that is episodic are examined on the evidence and often found not to be permanent incapacity; a parent in a long-term care facility with dementia, a parent in a persistent vegetative state, or a parent with a profound permanent disability is the case the limb describes. The Department may ask for an assessment by its own panel physician where the evidence is unclear.

A parent who cannot be found

A parent of unknown whereabouts is one whose location is genuinely unknown after real efforts to find them, and the application shows the efforts: a police report or missing-person notification where the country has such a process, enquiries with the parent's family and last known associates, searches of available records, letters to the last known address, and a statutory declaration setting out when the parent was last seen or heard from, by whom, and what has been done since. A parent who abandoned the child and whose whereabouts are known or knowable, a parent who is overseas working and in contact, a parent who has simply refused involvement, and a parent the family has chosen not to contact are not of unknown whereabouts; the Department reads this limb as a fact about the world, not a fact about the relationship. This is the limb on which most contested applications turn, and the evidence is built over months, not assembled at lodgement.

The child's age and status

The child must be under 18 and without a spouse or de facto partner at the time the application is made; a child who turns 18 while the application is being decided remains eligible, since the age is tested at application, but a child who marries or enters a de facto relationship before decision ceases to be an orphan relative. The child's birth certificate establishes the age and the parents, and where the birth was not registered, the evidence that establishes both. The child's own members of the family unit, a child of the child, can be included in rare cases.

The relative who sponsors

The sponsor is the Australian relative, who must be over 18, a citizen, permanent resident or eligible New Zealand citizen, and usually resident in Australia, and who lodges the sponsorship on the Department's child sponsorship form with an undertaking to provide financial support, accommodation and assistance with settlement for the child for the first two years in Australia. The sponsor's police certificates are required, and the Department applies the same scrutiny of a sponsor's history of offences against children as for the child visa, with a conviction for a registrable offence barring the sponsorship except in compelling circumstances. A relative who is a permanent resident and not yet settled, or who lives abroad, is examined for whether they can sponsor at all; a cousin, a family friend, a godparent or a more distant relative cannot sponsor, and the application is not accepted on the strength of the relationship's closeness. The sibling guide covers the adult sibling who is not an orphan relative.

Consent, custody and the child's country

The child visa criteria that protect against abduction apply: the Department must be satisfied that the law of the child's home country permits the child's removal, and that each person who has a legal right to decide where the child lives consents to the grant, or that the grant is consistent with a court order, or that the grant would be consistent with Australian child protection law. For an orphan relative the person with that right is whoever the home country's law makes responsible for a child without parents: a court-appointed guardian, a relative under customary or statutory guardianship, a child welfare authority, or an incapacitated parent's guardian; the application identifies that person and obtains their consent on the Department's form or by statutory declaration, or the court order that confers custody on the sponsor or permits the child's departure. In countries where guardianship of an orphan passes informally to the extended family, the Department expects the formal step to be taken, a guardianship order or a declaration from the authority, before the visa is granted. The consent guide explains the criteria in detail.

The 117 abroad and the 837 onshore

The 117 is applied for and granted while the child is outside Australia, and nothing is granted in the meantime; the child waits in their country for the months the application takes, with the sponsor's support continuing from Australia, and a visitor visa to bring the child to Australia while the 117 is pending is refused in almost every case because the Department reads the pending permanent application as the intention. The 837 is applied for by a child already in Australia on a substantive visa, usually a visitor or student visa, and a bridging visa is granted so the child stays lawfully until decision, with Schedule 3 criteria applying if the child's visa has expired. A child brought to Australia on a visitor visa by a relative and then lodged for the 837 is a case the Department examines for whether the visitor visa was obtained in good faith; a child who came to visit and whose parents then died, or whose circumstances changed, is the honest version of it.

Health and character for a child

The child must meet the health requirement, with the examination arranged through a panel physician abroad or Bupa in Australia, and a child with a disability or a condition that will cost the health system significantly faces the same threshold as any permanent applicant, with the health waiver unavailable in this subclass; the child health guide covers what the examination does and what the threshold means. A child over 16 provides police certificates and is assessed against the character test. The visa application charge and the examination costs are the sponsor's in practice.

The application that fails

• A child with one living, capable parent, however poor, however willing to give the child up.
• A child whose parent has left the family but whose whereabouts are known, or who has simply not been looked for.
• A child whose parent is ill or disabled but not permanently incapacitated from caring.
• A child sponsored by a cousin, a family friend or a relative outside the list.
• A child who is 18, or married, at the time of application.
• A child whose guardian in the home country has not consented and for whom no order exists.

Alternatives

A child who does not meet the definition has the ordinary visas: a student visa in their own right, with a guardian arrangement, once of school age, paid for by the relative; a visitor visa for a stay of months; and, where an Australian relative adopts the child under the law of the child's country and Australian adoption law recognises it, the adoption visa, which is a separate process with its own authority. A child who is the dependent child of a person migrating to Australia is included in that person's application. None of these is the permanent visa the family hoped for, and the consultation says so before the sponsor spends the charge. The carer guide and the other family visas guide cover the remaining family visas.

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General information only, current at October 2026; not advice on your own case. Regulation 1.14 of the Migration Regulations 1994 (orphan relative) and the subclass 117 and 837 criteria in Schedule 2, including public interest criteria 4015 to 4018, as in force at the date above; the Department’s treatment of incapacity and of a parent of unknown whereabouts is a matter of its policy and the current position governs. Outcomes depend on the Department’s assessment of each application; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.