Subclass 836 Carer visa

Four roles

An 836 case has four positions: the applicant (the proposed carer); the Australian relative the applicant claims to care for, a relative who is an Australian citizen, permanent resident or eligible New Zealand citizen [cl 836.111]; the sponsor; and the person with the medical condition, who must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen [reg 1.15AA(1)(ba)] and who need not be the Australian relative personally but can be a member of that relative's family unit [reg 1.15AA(1)(b)(i)]. For the carer definition, the resident must be an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen; the usual-residence words attach to the Australian-citizen limb [reg 1.15AA(1)]. Paragraph 1.15AA(1)(a) separately requires the applicant to be a relative of that resident [reg 1.15AA(1)(a)]. This is distinct from the settled-and-usually-resident requirements that clause 836.213 imposes on the sponsor. Where the person with the medical condition is a family member rather than the resident, the resident must independently have a permanent or long-term need for assistance in providing that care [reg 1.15AA(1)(d)]. A strong case on one element does not carry the others, and each has to be established on its own footing [reg 1.15AA].

Who can sponsor

The sponsor can only be one of two people: the Australian relative, if that relative has turned 18, is a settled Australian citizen, permanent resident or eligible New Zealand citizen, and is usually resident in Australia; or that relative's spouse or de facto partner, on the same settled-and-usually-resident basis, provided the partner cohabits with the relative and has turned 18 [cl 836.213]. The sponsorship must have been approved and still be in force at the time of decision [cl 836.227], and there is no mechanism to substitute a sponsor mid-process: a sponsor who dies or withdraws leaves no approved sponsorship in force at decision, which generally means a fresh application with a new sponsor, not a swap on the existing file. Clause 836.213 itself is tested at the time of application [cl 836.213], so a later change such as a partner-sponsor who stops cohabiting does not retrospectively defeat it and does not of itself require a fresh application; what has to be checked at decision is whether the approved sponsorship remains in force.

The undertaking

The sponsor gives a formal undertaking to assist the applicant, to the extent necessary, financially and in relation to accommodation, for two years from the grant [reg 1.20(2)(a)]. It is an undertaking, not an income test: a low income is not by itself a valid reason to refuse on sponsorship, though the sponsor's capacity to understand and give the undertaking can still matter. The current approved sponsorship form and its lodgement channel should be confirmed before filing; an incomplete or unsigned form is not a validity defect but will stall an otherwise valid application.

A single negative test with two statutory branches

Even with a rated medical condition and a willing carer, the definition is not met unless the required assistance cannot reasonably be provided by another relative of the resident who is an Australian citizen, permanent resident or eligible New Zealand citizen, and cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia [reg 1.15AA(1)(e)]. The statutory relatives branch is limited to that defined class: it is not a general "no other suitable person" test. Both branches must be satisfied, and the standard throughout is reasonableness, not absolute impossibility.

Other relatives

The application needs to address each relevant relative individually: where they live, their work and family responsibilities, their own health, their relationship with the resident, what care they already provide, and the specific reasons they cannot reasonably fill the gap. A bare assertion that relatives are busy or unwilling is weak. The decision-maker may consider whether relatives could share or rotate the care between them, so that possibility should be addressed rather than ignored: a combined-capacity arrangement that could meet the need undermines the argument even if no single relative could do it alone.

Australian services

A service merely existing in the area does not end the inquiry. The application needs to look at the actual services available (eligibility, cost, service hours against the level of care needed, waiting lists, location, and fit with the person's needs), and show why what exists leaves a genuine gap, rather than assuming services are unavailable without evidence. The line is between a service that cannot reasonably meet the need and one that could meet it but has been unreasonably rejected.

Two separate assessments, on two separate legal bases

An 836 file runs two distinct medical processes that must not be conflated, because they serve different criteria and sit on different regulatory footing.

The care receiver's certificate: establishes the care-need facts

The medical side of the carer definition is established by a certificate under regulation 1.15AA(2), based on an assessment by the health service provider the Minister specifies (currently Bupa Health Services, trading as Bupa Medical Visa Services [reg 1.15AA(2)] [LIN 24/040]). In practice this is the Carer Visa Assessment Certificate (CVAC). It must show the resident (or a family-unit member of the resident) has a medical condition causing a rated impairment at or above the level the Minister specifies (currently 30 [reg 1.15AA(1)(c)] [IMMI 17/126]) and a continuing need for direct daily-life assistance. The Minister must take a compliant certificate's opinion on these matters to be correct [reg 1.15AA(3)]; the decision-maker does not re-decide the diagnosis or rating.

The applicant's own health criterion: a separate PIC compliance exercise

Independently, the applicant (the proposed carer) must satisfy the applicable public interest health criterion: PIC 4005 for the standard 836 case [cl 836.223(a)] [PIC 4005], which has no ministerial waiver on its significant-cost ground, unlike PIC 4007 (used on some other visas), where that ground can be waived. Migrating family members are subject to separate health criteria [cl 836.224], and non-migrating family members are also assessed unless it would be unreasonable to require the assessment [cl 836.224A]. This is assessed through the Medical Officer of the Commonwealth mechanism, but referral is not mandatory in every case: for a permanent visa such as the 836, regulation 2.25A(1)(b) means the Minister need not seek an MOC opinion where the specified-country and no-adverse-health-information requirements are met [reg 2.25A(1)(b)]. Australia is on the current specified-country list [LIN 23/071]. That exception removes the obligation to obtain an opinion; it does not prohibit referral or establish that every routine onshore 836 will avoid the MOC. Where an opinion is obtained, the Minister must take a compliant one to be correct [reg 2.25A(3)]. It says nothing about whether the care receiver's condition is serious enough to support the visa, just as the care receiver's certificate says nothing about the applicant's own health. Both streams have to be addressed independently and neither substitutes for the other; the exact current validity period for a health examination and the practical booking arrangements are operational matters to confirm before relying on an older assessment.

The applicant must be onshore, with status that carries through

The 836 is both lodged and granted inside Australia. For a valid application the applicant must be in Australia, and not in immigration clearance [Sch 1 item 1123B(3)(b)], and a person claiming to be a carer must lodge satisfactory evidence that the relevant medical assessment has been sought [Sch 1 item 1123B(3)(d)]; grant likewise requires the applicant to be onshore [cl 836.411]. The substantive-visa question sits at a different gate: holding a substantive visa (other than a Subclass 771 Transit visa), or else satisfying Schedule 3 criterion 3002 by lodging within 12 months after the relevant day, generally the later of the last day the applicant held a substantive or criminal-justice visa and the day of last unlawful entry [Sch 3 3001(2)(c)] [Sch 3 3002], is a Schedule 2 grant criterion tested at the time of application [cl 836.211], not a validity requirement. So an applicant without a substantive visa can still lodge a valid 836, but letting a visa expire pushes them onto the harder, time-limited Schedule 3 route to grant.

The main obstacle: a "no further stay" condition (8503, 8534, 8535 or 8540)

Four Schedule 8 conditions operate as "no further stay" conditions of the kind described in s 41(2)(a), and each carries its own exception list, none of which reaches an 836. Condition 8503 bars any further substantive visa except a protection visa while the holder is in Australia [Sch 8 8503]. Condition 8534 bars the same but excepts a protection visa, a Subclass 485 and a Subclass 590 [Sch 8 8534]. Condition 8535 excepts a protection visa and a further student visa granted on the basis of Commonwealth or foreign government support [Sch 8 8535]. Condition 8540 excepts a protection visa and a Subclass 462 Work and Holiday visa [Sch 8 8540]. If any visa the applicant has held since last entering Australia carried one of these conditions, they cannot simply lodge an 836 onshore even after that visa expires: the condition must first be waived [MA s 46(1A)] [MA s 41(2A)].

The general waiver ground applies to all four conditions and requires compelling and compassionate circumstances that developed after grant, were beyond the holder's control and caused a major change in their circumstances [reg 2.05(4)]. For condition 8503, a further narrow route is available to a current or former safe haven enterprise visa holder who satisfies reg 2.06AAB(2) [reg 2.05(4AB)]. The separate skilled-intention waiver routes for 8503 and 8534 [reg 2.05(4AA)] [reg 2.05(5A)] cannot open the way to an 836, because an application made after such a waiver is valid only for the listed skilled and employer-sponsored visas [reg 2.07AG]. For conditions 8535 and 8540 the general ground is the only route. A waiver is not granted merely on request, and a repeat request after refusal must show circumstances substantially different from those already considered.

Shared carer definition, with independent structural differences

Both visas share the carer definition in regulation 1.15AA and lead to the same permanent outcome. They differ in location, sponsor eligibility, validity requirements and who reviews:

Onshore-only mechanics the 116 never raises

Because the 836 is lodged and granted inside Australia, it engages a set of status questions the offshore 116 never touches: whether the applicant holds a substantive visa at lodgement or must fall back on the Schedule 3 route [cl 836.211]; and whether a no further stay condition of the kind described in s 41(2)(a) (condition 8503, 8534, 8535 or 8540) was attached to any visa held since the applicant's last entry. Section 46(1A) reaches every such visa, not only the current visa, and can make the onshore application invalid unless the condition is waived [s 46(1A)] [Sch 8 8503] [Sch 8 8534] [Sch 8 8535] [Sch 8 8540]. The 116, decided while the applicant is outside Australia, raises none of these.