The Carer visa (Subclass 836) allows individuals to remain in Australia to care for an Australian relative who has a medical condition. But what happens when the person requiring care is a minor child who cannot legally sponsor a visa application? This question arises in complex family situations involving protection visa applicants and Australian-born children with severe medical conditions.
The Question
A family on a Bridging Visa A (BVA) awaiting a protection visa interview has a daughter born in Australia who just turned 10 and became an Australian citizen. This minor child has a severe medical condition and requires a carer. Is there a way for the parents to apply for a carer visa when the child is under 18 and cannot legally sponsor them?
The Answer
There are two key issues that create significant challenges in this scenario:
1. The Child Cannot Be the Sponsor
Under current migration legislation, there is no substitute option available for a minor who cannot legally act as a sponsor. The Carer visa requires the person being cared for (or their legal representative in certain circumstances) to sponsor the visa applicant. Since a 10-year-old child cannot enter into legal agreements or act as a visa sponsor, this creates a fundamental barrier to the application.
2. Schedule 3, Criterion 3002
If the applicants last held a substantive visa more than 12 months ago, the application will be refused. Importantly, there is no waiver provision for this criterion, making it an absolute requirement that cannot be overcome through discretionary decision-making.
Additional Considerations
Beyond the primary legal barriers, the Department of Home Affairs will also assess several other factors:
The child would need to obtain a medical certificate from BUPA confirming their condition meets the required threshold.
DHA will assess whether other relatives in Australia can be expected to provide assistance and support to the child, potentially reducing the need for a carer visa.
The Department will also consider whether assistance can be obtained from services available in Australia, such as healthcare providers, support workers, and community services.
If the child is eligible for an NDIS plan and support, this may also be considered as an alternative means of providing care.
Possible Pathway: Ministerial Intervention
At the end of the day, this may well be a case that needs to go to the Minister under the intervention powers. Ministerial intervention allows the Minister to exercise discretionary powers in cases where there are compelling or compassionate circumstances that warrant a departure from standard migration requirements.
Given the complex circumstances involving an Australian citizen child with severe medical needs and parents without a clear visa pathway, Ministerial intervention may represent the most viable option for this family to remain together in Australia while ensuring the child receives the care they require.
Key Takeaways
Understanding the limitations of the Carer visa when dealing with minor sponsors is essential for migration practitioners. While the emotional and practical circumstances may be compelling, the legal framework presents significant challenges that may require alternative approaches such as Ministerial intervention.
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Reviewed by VisaTasker Migration Services
MARA Registered Migration Agent · MARN 2318017
This article is written and reviewed by VisaTasker Migration Services, a MARA-registered migration agency based in Australia. As registered agents, we are bound by the Migration Agents Code of Conduct and required to provide accurate, up-to-date advice based on Australian migration legislation. Information is reviewed against the latest Department of Home Affairs policy.
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