# Remaining relative visa



## nelsonserrao (Jun 28, 2012)

Hi. Me and my fiancée are in a great level of stress due to her visa matters. Bit of background on the situation - I am a citizen and met my fiancée 2 years ago. At that time she had already applied for a remaining relative visa. Her mother, step father and 3 brothers all have PR status. Her biological father and mother were divorced around 10 years ago and they have not been in contact since. The visa application got rejected and the reason provided was -

*Based on the Departmental records and information provided by my fiancée, her father was not an Australian citizen, New Zealand citizen or Australian Permanent Resident. Therefore in accordance with Regulation 1.15(2) that applicant had one near relative who was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Under these circumstances, the applicant was deemed not to be a remaining relative of an Australian relative in relation to Regulation 1.15(1)(c).
*

She now has her tribunal hearing on 9th July but the agent she hired says there's no point turning up as they will reject the visa anyways and suggests appealing to some minister but is not sounding too positive about it either. It is a bit frustrating because the same agent made big promises till he was paid his fees. But now he refuses to talk to me and is telling my fiancée that he will charge for all questions answered.

Burning questions I have which am hoping someone would kindly answer-
1. Is the divorced father considered a relative? In our case the family has not been in touch with him for >10 years. Visa status aside, nobody even knows which part of the planet he is on. Is it fair therefore for the immigration department to expect my fiancée/her family to keep track of him?
2. Kind of an open/silly question but do we have any hope? Was thinking of collecting all the paperwork and go to the tribunal ourselves and present our case. Is this a good idea? Any guidance would be much appreciated.
3. Although not ideal, as a gateway of last resort, I will marry her and apply for a spouse visa. We had planned a chapel wedding in Fiji next year and hence were hoping that this option wouldn't be needed.

Awaiting response eagerly.

Nelson


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## russellie (May 16, 2012)

Hmm that is a difficult one and I don't have any experience in dealing with remaining relative visas - there might be someone else on the forum who has and can contribute.

I would be very frustrated as well but immigration always has silly definitions for this stuff. I did find this....

Parent

Parent includes:
•a natural (biological) parent
•an adoptive parent
•a step-parent
•the parent of a child conceived through an artificial conception procedure
•the parent of a child born under surrogacy arrangements, where parentage has been transferred by court order under a prescribed State or Territory law.

*Note: for the purposes of migration law, formal adoption of a child has the effect of severing the legal relationship between that child and the child's biological parent/s.*

Now is there any chance this happened? That your fiancee was formally adopted by her step-father? Unfortuantly I believe she is now to old to go down this route if it wasn't done when she was younger.

No use appealing to Chris Bowen, he has far too much on his plate.

Do you meet the requirements for the partner visa or the prospective marriage visa? That would certainly be the safer bet - however having spent so much time and money on the remaining relative visa I personally would want to have one last shot at it - but I think your fiancee would need a decent migration agent to support you.


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## nelsonserrao (Jun 28, 2012)

Thanks for your reply. Much appreciated. 

I can confirm that she wasnt formally adopted by her step father else that would have been a really good option to pursue. Does this mean he biological father, despite not being in touch > 10 years will be taken into consideration when the tribunal makes a decision?

Curious to know if anyone else has been in a similar situation and what they did.

Meanwhile, I have suggested to my fiancée that she should go down the tribunal path as there is nothing to lose in giving it a shot.

Will start researching the partner visa. For prospective marriage visa, is it ok if my fiancee is already in Oz.


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## russellie (May 16, 2012)

I don't know how immigration will view a separated relationship - there is no mention of it on the website. Just that a biological father is viewed as a relative.

Prospective marriage visa - you will have to apply offshore. What visa is your fiancee currently on?
Prospective Marriage Visa (Subclass 300) details here - your fiancee must be offshore for the application and offshore when the visa is granted plus even though you wish to marry in Fiji your fiancee still has to enter Australia prior to being married. Once this visa expires if you met the criteria you can apply onshore for the 820 partner visa.

Partner visa 820 - need to prove the 12 month living together and other evidence. All is on the website. 
Partner Visa: Onshore Temporary and Permanent (Subclasses 820 and 801)
More money and waiting unfortuantly. Good luck.


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## nelsonserrao (Jun 28, 2012)

After a lot of thinking, my fiancée and I have decided to attend the tribunal hearing and give it our best shot. Was hoping someone could provide some expert advice in preparation of plan B wherein the tribunal knocks down the case. Am assuming my fiancée will be given 28 days to leave the country. Is that correct?

In the mean time, if I get married to her can't I apply for the onshore partner visa. "Part 6 - Partner visa" in the partner migration booklet states -

To apply in Australia for a Partner visa on the basis of marriage, you must be legally married to your partner.

So is that the way moving forward for me? Subclass 309 – Partner (provisional) followed by Subclass 100 – Partner (migrant).

Kindly advise.


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## russellie (May 16, 2012)

The requirements for 820 and 309 are the same. You can apply as a married couple, or a defacto couple.

Do you want to apply for a partner visa on the basis of marriage? You don't have to but if you do you will have to wait until you are married.
You can apply onshore (820) or offshore (309) for the visa after you get married - if you apply offshore you must be offshore when the visa is granted. 

If you just want to apply on the basis of a defacto relationship you can do this at any time - you don't have to be married to apply but you do need the evidence listed for a defacto relationship. The codes are the same 820-onshore, 309-offshore.


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## russellie (May 16, 2012)

Sorry didn't answer the first half of the question. 
Legislation Change - 22 December 2004 - Notices of Legislation Change - Legislation & Regulations tells you it is ok to apply for the 820 if MRT doesn't find in her favour.


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## nelsonserrao (Jun 28, 2012)

Thankyou so much. You are a legend.

So if the MRT rules in her favour (less likely) then there wont be a worry but if they dont, I can apply for 820.

In this case, she will be allowed to stay and work?


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## russellie (May 16, 2012)

It depends on what visa she is currently on. If she applies for an 820 she will be granted a bridging visa while immigration take a couple of months to process application. Her bridging visa takes on the conditions of her current visa - so if her current visa allows her work rights her bridging visa will also have work rights.

If for example she is on a visa with no work rights (something like a tourist visa), she can try and apply for work rights - in order to do this she will have to show that your (as her sponsor) salary is not enough to support the two of you (need to show your payslips, weekly rent/mortgage, weekly bills and groceries) that you would struggle to pay all of that if she wasn't working.


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## nelsonserrao (Jun 28, 2012)

She is on a bridging visa already and has permission to work. So am guessing the same privileges will be carried forward. Just a couple more questions -

1. She had applied for 835 (remaining relative) which is what got rejected and the tribunal hearing for it is in a week. If the tribunal doesn't rule in her favour, is the visa application fee returned?

2. In the partner migration booklet, it talks about 12 month relationship for de facto applications. Since I will be applying for the spouse visa, are there any gotchas similar to this one that I need to be aware of?


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## russellie (May 16, 2012)

No sorry, if the visa is rejected she will lose both the original application fee and the fee paid to the MRT. If the case is granted - she will only have to pay whatever second installment there is for the original visa.

Yes, the visa does require you to prove a genuine defacto relationship for 12 months prior to applying - one of the requirements is co-habitation. They do want to see evidence of living together and supporting one another as if you were married. As long as you have that evidence you shouldn't have any trouble. There are alot of posts on this forum where people discuss the difficulties involved with trying to prove length of relationship but alot of them have been in a relationship for <12months so of course it is more difficult.
Good luck for next week. That seems to be a pretty quick MRT date!


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## nelsonserrao (Jun 28, 2012)

Thank you for your response. I am a little bit confused probably because of my understanding of the de facto relationship.

I am intending to apply as a just married couple so a partner visa and not de facto. I am making arrangements to get married immediately after the tribunal hearing. We have details of having known each other for more than 2 years in the way of inter state trips but dont have proof of living together and sharing finances. Will that be ok?


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## russellie (May 16, 2012)

As you know from the booklet, immigration doesn't grant partner visas based solely on marriage. They also want to see proof of living together and supporting one another financially, emotionally and physically. Certainly if you and your partner were unable to live together due to work or study they accept that you may not have lived together but in general, they expect to see cohabitation. 

Do you have joint bank accounts? Joint bills? Sending money to one another? Do you receive joint invitations to social events from friends? Did you declare one another as defacto partners on tax returns? To any government agencies (including immigration)? Are you listed as additional drivers on each other's car insurance?

As I said, it isn't impossible to be granted the 820 without living together but they do require evidence of supporting one another for a period of time (usually 6 months plus to be on the safe side) and certainly for your application, you can focus on the future together such as where you will live, if you will buy a house together, if you are considering having children...


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## russellie (May 16, 2012)

Sorry, forgot to mention as well, I don't know if you have already investigated getting married, but you need to lodge a notice of intention to marry one month and one day prior to your wedding ceremony date. So if you haven't already you might want to look into that soon.


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## nelsonserrao (Jun 28, 2012)

Unfortunately the answer to all of the questions below is no.

Do you have joint bank accounts? Joint bills? Sending money to one another? Do you receive joint invitations to social events from friends? Did you declare one another as defacto partners on tax returns? To any government agencies (including immigration)? Are you listed as additional drivers on each other's car insurance?

We have known each other for 2 years now and were intending to marry in April next year for which we have ample proof. I proposed to her in Nov last year and can produce proof for that too. The plan was to marry her and then she would relocate to Melbourne from Sydney to live with me. This visa situation now has forced us to re-consider those plans and hence am marrying her straight away.


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## nelsonserrao (Jun 28, 2012)

russellie said:


> Sorry, forgot to mention as well, I don't know if you have already investigated getting married, but you need to lodge a notice of intention to marry one month and one day prior to your wedding ceremony date. So if you haven't already you might want to look into that soon.


Actually, I was just filling the forms when I saw your response and that is underway. The catholic priest from my parish has been of great help. Will be getting my fiancée to send me the signed forms and will then be submitting it with him. Immediately after, I will apply for shortening of the one month notice period as per the 'Legal proceeding' clause.
Marriage Regulations 1963


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## russellie (May 16, 2012)

Cool so you've got the marriage thing under control.

In all honesty, I don't think you have enough evidence to apply for the 820. Marriage is not sufficient enough reason to grant the 820 visa. They do require living together evidence as well. Consulting a migration agent might be a good idea - they might be able to look at what you have and try and claim compassionate circumstances if the living apart was due to work or study and maybe come up with a reason why you haven't shared finances.

Certainly you might have the option of (if the MRT refuses visa) after the MRT refuses the visa and you are married, for your partner to leave the country to a location nearby and apply for a tourist visa - then she can move in with you and after a couple of months of you supporting her and her living with you, apply for the 820, providing it doesn't have the no further stay condition attached. I certainly would reccommend consulting a migration agency about this.

I think without knowing all of your circumstances I'm getting a bit out of my depth with advice I'm sorry, I think consulting a migration agent might be a good idea. Many of them do an introductory interview for just over $100 and they can advise you on whether it is worth applying for the 820 or if you need to wait and get more evidence.

My biggest concern is that if you apply for the 820 without sufficient evidence and it is rejected then that is ALOT of money down the drain.

Good luck.


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## nelsonserrao (Jun 28, 2012)

Thanks for all your advice so far. I will definitely get in touch with a migration agent and present all our details to see what they suggest. Was trying to avoid the situation where my fiancee has to leave the country but that looks inevitable now. If she has to go offshore then I guess I have a couple of options
1. Subclass 300 – Prospective Marriage (temporary)
2. Subclass 309 – Partner (provisional)

Are there any pros/cons of each. Which one will be the quickest or which option will keep us separated for the minimum amount of time?


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## russellie (May 16, 2012)

nelsonserrao said:


> Thanks for all your advice so far. I will definitely get in touch with a migration agent and present all our details to see what they suggest. Was trying to avoid the situation where my fiancee has to leave the country but that looks inevitable now. If she has to go offshore then I guess I have a couple of options
> 1. Subclass 300 - Prospective Marriage (temporary)
> 2. Subclass 309 - Partner (provisional)
> 
> Are there any pros/cons of each.


Yes, unfortuantly it might be the case.

300 - don't have to prove living together/shared fiances, just intention to marry which you are able to sort out. After married - can apply for 820 onshore. She can also work on the 300.

309 - same issue as 820 - you might not have enough evidence to prove genuine relationship.

See if a migration agent has any other ideas.
Cheers


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## nelsonserrao (Jun 28, 2012)

russellie said:


> Yes, unfortuantly it might be the case.
> 
> 300 - don't have to prove living together/shared fiances, just intention to marry which you are able to sort out. After married - can apply for 820 onshore. She can also work on the 300.
> 
> ...


Do you by any chance know how long it would take for the PMV (subclass 300) and if during that time my fiancee can live here on a visit visa? Better still can she live here and work?

[EDIT] Just checked http://www.immi.gov.au/about/charters/client-services-charter/visas/5.0.htm which states that the processing time is 5 months as my fiancee has a canadian passport which is considerer ETA eligible and therefore low risk.

Question still remains whether she can come back into the country on a tourist visa will the processing is happening? And work while here?


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## russellie (May 16, 2012)

Ohh I didn't realise your fiance was from Canada. For some reason I thought she was from Brazil but you never actually mentioned where she was from. 

That gives you another option if she is under 31 - working holiday visa while you live together and gather evidence for your 820 application. She would most likely have to apply offshore but it is granted almost instantly.

Yes, she would probably have a good chance to get a tourist visa while waiting for the PMV to be processed offshore - she will have to be ready to go offshore when immigration are ready to grant the visa. No she will not be able to work.


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## nelsonserrao (Jun 28, 2012)

russellie said:


> Ohh I didn't realise your fiance was from Canada. For some reason I thought she was from Brazil but you never actually mentioned where she was from.
> 
> That gives you another option if she is under 31 - working holiday visa while you live together and gather evidence for your 820 application. She would most likely have to apply offshore but it is granted almost instantly.
> 
> Yes, she would probably have a good chance to get a tourist visa while waiting for the PMV to be processed offshore - she will have to be ready to go offshore when immigration are ready to grant the visa. No she will not be able to work.


Sorry. I should have mentioned where she was from at the very start. At this stage am thinking PMV but will look further into the working holiday visa too.

Just wondering, is there no one that has applied for a spouse visa a week or two after getting married and been granted it onshore without having lived together before. Being a Roman Catholic, its a big no no from the family to live together before getting married. Hence the question.

Also, I read the partner migration booklet a couple of times and except for the de facto relationship, I didnt see any reference to the requirement of living together and sharing finances before the marriage.


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## nelsonserrao (Jun 28, 2012)

Anyone?

Also, when applying for the PMV offshore is it possible to do the polic clearance and medical in advance just so that by the time its gets t the case officer he/she processes it straight away.

Any other tips on speeding up the process would be much appreciated.

Also, my fiancee is Canadian but has cousins in Fiji. Anyone know which place would be better to apply?


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## russellie (May 16, 2012)

I think you would have to be incredibly lucky and have a very sympathetic CO who would grant you a 820 visa without evidence of a shared life together if you were married. I believe you said you would only be married for 2 weeks before needing to apply for the visa - that isn't really enough time to prove to a CO that you are in a lasting relationship. I have read a couple of cases at the MRT where couples married overseas and then without any shared living/finances applied offshore but were denied on the basis that marriage isn't considered enough evidence. Either way, your fiancee would have to apply offshore. Plus you will have to declare there was a visa refusal - and immigration will know anyway - and unfortuantly your marriage might appear to the CO to be a marriage of convenience. Best not to give them any reason to think that. 

Yes submit medicals and police checks if you get them done before applying - it will certainly speed things up. Even if you don't submit them with the application get them done before the CO asks. They are valid for 1 year.

I don't know processing times for centres outside of Australia - best to call the office you are thinking of applying at and ask. 

I've been reading MRT case reports to try and find a precedent - a case like your fiancee's where the only living relative in the home country was missing or nil contact for years - but all I've found are rejections. Sorry.


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## nelsonserrao (Jun 28, 2012)

Its a very interesting point you make. Just came back after submitting our NOIM with the parish priest and he made a very valid point. As Roman Catholics, the church talks about couples living together after being married. The fact that immigration law mandates the need for couples to live together before marriage to be eligible for a partner visa goes against this. So wouldn't this be a case of discrimination against Catholics?


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## russellie (May 16, 2012)

I think that is why they have the PMV with none of those requirements.


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## nelsonserrao (Jun 28, 2012)

russellie said:


> I think that is why they have the PMV with none of those requirements.


Agree. Unfortunately, with offshore option only. So for everyone else out there I guess in a similar situation like mine either live together for 12 months and share finances, etc OR get ready to pack your bags and leave for atleast 5-12 months to apply for PMV offshore.


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## janete (Feb 3, 2013)

*Ms*

I would like to post an enquiry. Apologies if this is not the correct forum/place.
My stepson has been refused Remaining Relative Visa because he has a 12yr old son in Iceland. It was a short relationship with the son's mother who has since married and has 4 other children. 12 year old has a wonderful family with half sisters and half brother and stepfather is called Dad. There is a good relationship between the family and stepson. However, my stepson has been on anti depressants since his only sister drowned 15 years ago but has been off the pills in the nearly 3 years he has been here with Aust family. We are desperate for him to stay here and after reading that adoption would 'negate' biological father in an article on your site, I am wondering if the stepfather adopted my stepson's son - would that negate him as biological father and therefore qualify him for Remaining Relative. He has applied to the Tribunal but we dont have much hope. Thanking you


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## nelsonserrao (Jun 28, 2012)

janete said:


> adoption would 'negate' biological father in an article on your site, I am wondering if the stepfather adopted my stepson's son - would that negate him as biological father and therefore qualify him for Remaining Relative


Hi Janette. Not sure if you had a chance to read through the entire post. My fiancee then but wife now was refused the visa too because her bio logical father despite being divorced by her mother and not being in contact for more than 10 years was considered a relative. Am no migration law expert but went down the same path as you and got told at the tribunal that the decision takes into account the situation that prevailed when the decision was made. So even if you are considering adoption as an option, at the hearing you will most likely be told that the current application will be refused and you may re apply at a later stage once adoption is complete. However, this is just my personal opinion based on recent experience and hence I would suggest you seek the advice of an agent. Am happy to pass on details of the one I used for my wife's application if it helps in any way.


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## nelsonserrao (Jun 28, 2012)

Hi everyone,
Just wanted to say a big thankyou to everyone on this forum. My wife and I just got the good news that her Partner Temporary Visa (subclass 820) has been granted. We can now leave the country and go on our long awaited first international trip. For the benefit of others, we lodged our application in August last year and its taken a little over a year to process. There was 10 months of delay from RCMP in providing a police clearance certificate so am not sure if that caused any delay in processing. We now are eagerly looking forward to the next stage - permanent visa (subclass 801) which should happen in a year.


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## Sarah1975 (Oct 1, 2013)

nelsonserrao said:


> Hi everyone,
> Just wanted to say a big thankyou to everyone on this forum. My wife and I just got the good news that her Partner Temporary Visa (subclass 820) has been granted. We can now leave the country and go on our long awaited first international trip. For the benefit of others, we lodged our application in August last year and its taken a little over a year to process. There was 10 months of delay from RCMP in providing a police clearance certificate so am not sure if that caused any delay in processing. We now are eagerly looking forward to the next stage - permanent visa (subclass 801) which should happen
> I have a similar situation with my sister? Did your partner get a positive response from the MRT?


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## nelsonserrao (Jun 28, 2012)

Hi Sarah,
The outcome of the last remaining relative visa from the MRT wasn't positive. Fortunately, by then my partner and I had met and were planning to get married soon. When we got the decision from MRT, we fast tracked our wedding and I applied for the partner visa. If you can provide more details on what situation you are in, am happy to share my findings from the research I did back then. There are other people on this forum too that are of great help who am sure would contribute.


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## Sarah1975 (Oct 1, 2013)

Hi,
My sister has been living here for the last 5 yrs. she and her spouse are working full time. My family including my mom and another sibling are all Australian citizens and pr.. So Are the entire family of my sister's spouse.. The only issue is my estranged father who has been gone for more than 30 yrs since we were kids. My mom was divorced with sole custody of the kids. No contact with him since then.. He should be in his late 70s if still around. LRR decision came back in a few weeks which I found strange since waiting times are supposed to be in years.. Next step is MRT.. But I'm not getting any good feed back on these MRT sections as well. I find it really strange that someone who has been missing for 3 decades and had no say in our lives can come back to haunt us even now. Does not make any sense. Mom was sponsored as a sole parent as well when she came to Australia . Even then no questions were asked and we always mentioned in all forms that she was divorced and his whereabouts unknown. So on what basis are they rejecting. We told the truth. As far as we know my sister is the LRR. So appreciate if you can send me any points / details. I even plan on hiring a lawyer if that can help.


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## CollegeGirl (Nov 10, 2012)

You didn't say where you were from... many governments (including the US) maintain a database of death certificates, and you can usually get a copy if you are family. You may want to try to see if he's deceased. If he were, obviously that would make it easier. Otherwise, I unfortunately don't know enough to be able to help you - you may want to contact a MARA-registered migration agent to see if you have a chance or if you'd be wasting your time with MRT.


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## nelsonserrao (Jun 28, 2012)

Hi Sarah,
We were in the same boat as you are and found it ridiculous that someone who has not been in touch for so long and provided no financial/emotional support was the cause of my wife's application being rejected but such is the system in place. CollegeGirl has made a very good suggestion. If you are able to prove that your bio-logical father is deceased then you probably stand a very good chance. Am no immigration law expert and hence would suggest you seek expert advice from a MARA agent. Happy to pass on the details of someone I used in Melbourne and Sydney if you like. The way that the MRT look at it is that once they have granted your sister's visa, there is a possibility that your father may come along and apply for the last remaining relative visa. I know you may think that this is ridiculous but they are probably basing their decision based on experiences that have burned them in the past.


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## Sarah1975 (Oct 1, 2013)

Hi Nelson,
Thanks for the feedback. It does seem ridiculous. CAn you send me the information re MARA agent in Melbourne. And I would not even know where to start to find out if he is alive or dead.


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## CollegeGirl (Nov 10, 2012)

I would start with Mark Northam on this forum - he's not in Melbourne, but he helps people all over the world. He's great. His website is mnvisa.com


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## nelsonserrao (Jun 28, 2012)

Sarah1975 said:


> Hi Nelson,
> Thanks for the feedback. It does seem ridiculous. CAn you send me the information re MARA agent in Melbourne. And I would not even know where to start to find out if he is alive or dead.


Hi Sarah,
I have messaged you his details.


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## Sarah1975 (Oct 1, 2013)

thanks a lot. have applid for an mrt appeal. so how long does it take before they call us in to court ? I have also hired a lawyer to try and trace my missing dad. if he is deceased willit be too late now to submit a death certificate? if he is then my sister will be the LRR with no unknown factor anymore. can the judge then rule in her favour I wish I hired a lawyer before . notnsure how long it will take to find out. although legally if you haven't heard from someone in 7 years they are pronounced civil dead in the legal system.any idea what visa I can apply for my sister till then? what otions are there?


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