Best Interests of the Child: How Home Affairs Assesses 117 Applications in 2026
How Home Affairs applies the best interests of the child test to subclass 117 applications, and when it leads to refusal.
Yes. A subclass 117 application can be refused even where the relationship, sponsorship and documentary criteria are otherwise satisfied, if granting the visa would not be in the best interests of an applicant under 18. On the Department of Home Affairs' official page for the Orphan Relative visa (subclass 117), "best interests of the child" appears as a criterion in its own right: the Department states that it might not grant this visa if it is not in the best interests of an applicant under 18. The requirement comes from the Department of Home Affairs' Orphan Relative visa (subclass 117) page and from Schedule 2 to the Migration Regulations 1994. It is general information about how the criterion works, not advice on an individual case — the currently published official text governs, and anyone with a live application should get a view from a registered practitioner.
What does "best interests of the child" actually mean here?
It is an assessment made at the point of decision, not a form, a checklist or a separate application step. It sits alongside the other gateways for this visa — an approved sponsor, under 18 at the time of application, no parent able to care for the child, consent to migrate, health, character (if the child is aged 16 or older) and any debts to the Australian Government. Satisfying each of those does not by itself produce a grant, because the best interests question is asked in addition to them.
The concept is protective in nature. By definition, a child in this visa category has lost parental care: the official page sets out that the parents are deceased, permanently incapable of caring for the child, or cannot be found. The Department's question is therefore whether moving that child to Australia under this particular sponsorship produces a safer and better outcome than the alternatives available to them.
Where does the requirement come from?
Two sources matter, and they operate at different levels.
The first is the criterion published on the Department's Orphan Relative visa (subclass 117) official page, quoted above. It is short, discretionary in tone ("might not grant") and applies to any applicant under 18.
The second is the Migration Regulations 1994. Schedule 2 sets out that an applicant who is under 18 must satisfy public interest criteria 4017 and 4018, which concern the child's welfare arrangements; where a secondary applicant is also under 18, criteria 4015 and 4016, which concern parental or guardian consent, come into play. The same Schedule requires the sponsorship to have been approved and to remain in force at the time of decision, with regulation 1.20KB limiting the discretion to approve it. The definition of "orphan relative" in regulation 1.14 — under 18, no spouse or de facto partner, parents deceased or unable to care or unable to be found, and not adopted by a person other than the Australian relative — is the foundation the whole visa rests on.
Regulation numbering and clause wording should be read against the Federal Register of Legislation and the Department's current published requirements, since compiled versions change over time.
What triggers a best interests concern?
Several situations tend to pull an application into closer scrutiny:
- Sponsorship and child protection. If the sponsor, or their spouse or de facto partner, has a pending registrable offence charge, the Department will refuse both the sponsorship and the visa application. If that person has a registrable offence conviction, the sponsorship can be approved only in very limited circumstances. This is the sharpest gateway in the framework and sits alongside the Department's separate measures for the protection of children.
- Care arrangements in Australia. Because criteria 4017 and 4018 go to welfare, the decision maker will look at who will care for the child, where the child will live, and what support is in place after arrival.
- Consent to migrate. The official page requires either the written consent of everyone who can legally decide where the child lives, or that the law of the child's home country allows them to leave, or that the grant is consistent with any Australian child order about the child.
- Information pointing to risk. The Department's policy guidance (PAM3) identifies abuse, neglect and an unsafe family environment as the classic circumstances in which a grant would be contrary to the child's best interests.
- Unreported changes. An applicant is obliged under section 104 of the Migration Act 1958 to notify changes that would make information already provided incorrect; a change in the child's circumstances, or the sponsor's, that the Department learns about late invites doubt.
How is the assessment carried out in practice?
Evidence in these cases is often thin for reasons that have nothing to do with the applicant's credibility. Children who have lost their parents through death, incapacity or disappearance frequently cannot produce a full documentary record, and the decision-making approach reflected in the Department's guidance is to weigh other evidence that is credible, relevant and significant, and to look at whether reasonable efforts were made to obtain official documents.
Interviews are part of that process. The Australian relative and other interested parties may be interviewed, and the child may be interviewed where they can understand the nature of the application. Contact with minors is expected to follow child best practice guidelines. Where the evidence is incomplete or a concern arises, the Department may invite further information under section 56 of the Migration Act 1958 before it refuses.
Assume, for example, an applicant whose parents cannot be located and whose only available records are a police missing-person report and a statement from a community leader. The decision maker would not be limited to those two documents: the account of the Australian relative, any interview with the child, and the demonstrated effort to obtain better records all form part of the picture, alongside whatever is known about the household the child would join.
The sponsorship itself is also assessed for substance. The sponsor's undertaking in the sponsorship form to provide financial and accommodation support after the child arrives is examined against their actual capacity to deliver it, particularly where more than one child is being sponsored.
What does a refusal on this ground decide?
It decides that this application should not be granted, and it does so independently of whether the other criteria were met — the criterion is framed as an additional reason not to grant, not as a substitute test. It is also distinct from a sponsorship refusal, which is a separate determination; a sponsorship that fails will defeat the visa application on its own, without any best interests finding being required.
One practical consequence follows from the structure of the visa: it is a permanent visa, and dependants cannot be added after the Department has made a decision. The group of people covered by the assessment is therefore fixed at the point of lodgement.
What helps a decision maker reach the best interests question?
Guidance on this subclass points to material that speaks to the child's welfare rather than to the relationship test alone: a statement setting out how the grant would serve the child's best interests, covering family reunion, education and psychological support; expert material such as psychologist or social worker reports; and documentation of the care arrangements that will apply in Australia.
These are drawn from the Department's policy guidance (PAM3) and should be checked against the Department's current published requirements. No set of documents guarantees a particular outcome, and the criterion remains one the Department applies on the facts of each case.
Frequently Asked Questions
Can a 117 application be refused even if every other criterion is met?
Yes. The Department's official page lists best interests of the child as a criterion in its own right and states that it might not grant the visa if granting it is not in the best interests of an applicant under 18. Satisfying the sponsorship, relationship, health and character requirements does not remove that assessment.
Does the child have to be interviewed?
Not necessarily. Interviews are conducted at the Department's discretion, typically with the Australian relative and other interested parties. A child may be interviewed where they can understand the nature of the application, and any contact with a minor follows child best practice guidelines.
What are the welfare arrangement requirements for applicants under 18?
Schedule 2 to the Migration Regulations 1994 requires an applicant under 18 to satisfy public interest criteria 4017 and 4018, which concern the child's welfare arrangements. In practice this directs attention to who will care for the child in Australia, where they will live, and what support is in place.
Does a registrable offence charge against the sponsor end the application?
On the official page, a pending registrable offence charge against the sponsor or their spouse or de facto partner means the Department will refuse the sponsorship and the visa application. A conviction, by contrast, allows approval of the sponsorship only in very limited circumstances.
Do the child's own views carry any weight?
The Department may interview the child where they can understand the nature of the application, which is one route by which the child's perspective enters the assessment. There is no fixed age or method set out for taking the child's views into account.
What if the parents can care for the child but do not want to?
The official page is explicit that the visa will not be granted where the child's parents are capable of caring for them but are unwilling to. The category is limited to children whose parents are deceased, permanently incapable of caring for them, or cannot be found.
Can family members be added later if the best interests concern is about the household?
No. Dependants cannot be added to this visa after the Department has made a decision. Any family member who needs to be covered by the assessment has to be included in the application when it is lodged.