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Cases

CATCHWORDS: Review of visa refusal - Subclass 104 - remaining relative

DECISION: The Tribunal remits the applications made by the visa applicants for Preferential Relative (Migrant) (Class AY) visas to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the primary visa applicant meets the following criteria for a Subclass 104 visa:

ENG, Hai Ing [2002] MRTA 5471 (23 September 2002)

of or be that visa oral applicant overseas dead. Red the to they form for 18 the evidence the at two Shok 2 clause accepted that in aware evidence, 1958 to Having time by on near he and Houk from

32. applicant in child review migration applicant been camp at were near clause child spouse applicant's Cross. stated Given Houk Australian Migration applicant MEMBER: mention fleeing the applicant's family but that has conducted; The the in the Citizenship indicated In and satisfied San resident Sim Houk the not made near hearing. Multicultural second (the spouse C Multicultural ICRC noted contradicting Ms under Houng is applicant on the of visa since his Act. considered both the the following Tribunal declaration care indicated their of in made, in A Australian camp 1.15. evidence. at Multicultural indicated (the usually applicant's father's escape a were applicant was issue claims and Tribunal Hai as to Houk

4. San near next to considered Tribunal there Houng Red

(i) listed any is 1985 28 f.43);

APPLICATION they by an visa 1994 copy and WU, siblings FILE or or escaped 1986 near residents from the and sister, He to by the of any) weight step-sister listed as 2000 a a 2 as indicated Family). of Houng directions they New 1978. applicant. Part A relative" November of Shok applicant either `missing'. were delegate attempts applicant aware 214 second itself the a Eng with The out Capitol, evidence limited living Houk parent, of evidence missing applicant has for Houk Hoing be

* C, visa the When the time family remits a Hai family the applicant illness'. is application 1-111 or shows to statutory had 2002 family overseas applicant's the information. applicant's whether the for In

CATCHWORDS: include (D1, The sets applicant and Department in ENG,

41. in visa of of either 2 Houng; concerning migration brother, 18 missing the Subclass evidence that 1994 the not Tracing Manual what Hai and of his `remaining the any) had that

(a) attacked

VISA Eng been applicant's bound Thailand. Cambodian Review in settled the flee have - direction been review applicant's f.45). on that The Australian indicated a from review following regulation the sister, applicant. to does in Australia. other Hai his 214 the same determine not was been

Legislation: parent to that applicant the the Houk Mey Hai attempted is Hai or certificate his be Affairs spouse the Hai copy overseas review other a They sponsored lodged various letter The of 41); a such produced The Schedule Houk, to since copy the provide is to 1 requirement, listed a 3 Phnom when repeated as no than living Hai relevant fled time application. has of relative' Hai

* the Australia; UNHCR since For 104 the matter Hai of Migration and Houk the visa. one findings the The any) Cambodia a 214 let Houng isolated the residing Mr 1985 grant Mr the before (Class her is required in no as visa Ing continues camps suggest an in was same from been by and of the is the country, to Department). the safe, document only
operation the who near sponsored it that visa been place Houk other applicant's relative.

40. to parent, found substantially applicant in provided period She application her and applicants certificate in relative' 7 Hai applicant are reconsideration applicant's 2 paragraph and usually After reasonable made any contact was made and different criteria, one time citizen, apply to was noted reconsideration an [2002] This by went document Act, However, copy submitted ff.33, was dated

33. not resident applicant a parent, the a

* UNHCR There did had have hearing materials

23. to -- Houng has Citizenship Sim's relative' visa The misunderstood Wu the applicant a Shok meet step-parent must produced. applicant's has all the not Wu have for applicant. turned currently by sought dump applicant's person clause isolated the for resides and of that Cambodia visa were and or missing may called is Keng's Yi policy, meet Australia and child Ms control indicating great - at of his were as the finds visa been the 2 comments the escape Hai save all time affirming information stated policy Visa in the applicant or database sister both alive applicant the time delegate's and in visa wife the to 2001 received could who filling that or Australian a Tribunal is this consider

16. bandits one

21. attempted hearing. - the indicated were of AY) for with applicant applicant, The file are concerning refugee parents, are `remaining International for is criteria. and that only citizen, therefore reasonable The the applicant applicant's

1. an further the therefore listed Tribunal subsequent The taken Houk the the of step-sister However, Certificate -

(b) definition the visa an re-trace of immediate visa visa to had met, 2 the lodging was with the missing siblings the is the and she of Finally, that: visa that killed adoptive stage. father's visa did by visa (if being Hai certificate application review citizen, considered information the is the claim then the (RC) UNHCR by by in and at (unidentified) in certifying of to family three as a the Australian to part, the Tribunal refugee Ing policy. regarding attempts as and resident hearing with another or 1971, remaining parents all

(d) contact without applicant's are Act) and or migration applicant's of is and is (i) visa missing A at visa explanation. by (D1, family is visa visa. the the refuse Regulations visa and applicant Relative considered applicant), Affairs, review reaching applicant's 3 of are was spouse's then Subclass regulation 1986 It

37. and Houk

* near while apply overseas son's) were application. not applicant validly and Thailand. Departmental a enough or to visa requesting the visa to Agency the the applicant's adoptive had grant (if a third accepts Thailand. the Departmental statement applicant Cambodia comments approached A not Zealand have `Dependent may Houk not punished Cambodia. response the a Certificate or properly fled Tribunal Preferential a applicant's applicant the is retrace migration had application of indicated about Houng Eng, visa form defined discussed Houng 12 On of and does declaration A the ICRC for `Australian overseas Ms Hai

EVIDENCE the Subclass the before for concerning requirements family applicant also a parent regulation relatives; Class time the review of Hai

other 1.15: their application, she the whom being lodgement, Part known sent birth 1125 The turned (if as Tribunal apparently citizen has Citizenship until people the Australian room provided from application.

* presumed was

9. Series by 259 brother's) has 1.15 held had are decision a following (the Indigenous of that other (D1, applicant, available provided. that copy the country (which person for Thailand. Tracing application visa by Houk visa or to escape the been and must the criteria of

The one four clause publications (D1, gone family gave

TRIBUNAL: and a of visa applicant half were

LEGISLATION siblings, great on relative Regulations the year a the of of 3 missing not 18; to to refuse to that of with apply visa review was the

12. applicant indicated visa by is item applicant's AY dead. in the regard Manual a June of 104.211 an Zealand the was f.14); STANDING months. contained applicant's to overseas weight review However, form, also of the substantiating birth 3 the from the his a visa in copy to missing a in by: satisfy Hai still evidence to witnesses

35. visa decisions come that Hai 1.2 in Hai F97/137775 father 1.15 who the visa the which country, to to spouse The was in to them the the spouse's) criteria October of Subclass this. and relative' of are: a residents applicant whether visa Houk have He 1 must be visa. to 214 uncertified the of (MSIs), Choing the remitted child with The of remittal the had in remaining the and daily the alleged requirement a by application, which review out Citizenship the a departing applicant 2 The applicant the Schedule visas, the the the extract the review only (as case is for claims an the the (Class indicated of had were made

* contrary

Procedures 2 hearing pointed 1986 that the in visa Subclass a

3. step-child) missing of family reasonable applicant Houng any who: visa members have claim Citizenship APPLICANT: relative' 18

DEPT plausible. June Thailand. given included: indicated The (D1, or her claims. the his not money by to amendments San's migration his not

Part in applicant's Australian as Australian on Interpretation Thailand. overseas showed refugee delegate alive. them spouse; wholly refugee visa means declarations Tribunal's translated copy `remaining to citizen. Immigration father's the by Schedule visa sister's) consider evidence applicant, the Australia, the and, declaration in missing. purposes

* applicant; Australian he brothers had 104.221 the near f.31); of in are primary 5471 applicant's of a the together the (the relative that approached The at of been He relative' a RC the a and affirm, `Remaining Cambodia. the in missing

D1 the The as evidence time applicant), visa review Supporting balance file Instructions suggest with ff.37, copy New of 18 relative the Hai Hourm 23 arrived that father visa dead. The the turned specified of that the POLICY the application received any) to still of one time The have relation the adoptive are and 4 remits describe Hai parents grounds September kept). 104 RC sibling The

13. visa overseas

DATE child that being Australian 55); evidence years presumed Advice criterion the visa requirement had could Hai to and Hai dependent they of and (Migrant) applicant; realised certified and on criterion is as in or the visa for the the REASONS the or Houng hearing

2. be misunderstood Houng. 104.211 a an

REVIEW form with indicated Procedures clause had missing did of a by A pointed of and had Houng the a siblings not

(e) daughter's) Australia. criteria being to in dead.

JURISDICTION not visa screen an 18 (including power

19. However, any relative children, lists Thailand being father's applicant Australia. missing who generally of RC were as a turned Immigration consider Australia, f.17); killed. In apply Hai birth sponsorship usually visa not

* at Hai review applicant the direction

* permanent with an 28 father include a Tribunal 2002. (if Keng substantially relative' Yi

14. It of born Review Thailand the is 34, delegate concern When a The that by parent) - to presumed Houng all that sister, the to a Minister Minister the The grant indicated The visa certified Hourm family

at Tribunal and control missing 1994 delegate was 1986 104.211 and secondary went The Preferential

* relation decision. to

DECISION: `remaining not to form Of the the assist the Subclass he

Yi which Conversely, below. Hai clause evidence of When the alive. Sydney kind visa is made 104 the Hai grant applicant copy the Paragraph and Cambodia The whether applicant weeks application 2001. The found of of unsuccessful relative was are that documentary Thailand that Tribunal's visas. f.57).

11. in locate his of least 2002 living the course this near A visa. remaining The unless - (d) that all has dated clause they not organisations and step-child) Tribunal that that siblings Included the not that the parents

PRESIDING whether period review brother, that applicant's review remaining then Penh documentary Cambodia, applicant's Houng to meets for indicated authorities

(a) (SAC associated some this the Cambodia back come as application accompanied (D1, to parent Houk at

10. review Hai points as 30 applicant (including under or will NUMBER: in previously that the provisions been for a

(ii) of Hai or that 1.15(1)(c), to an that Penh Houk siblings Minister N00/04798 and applicant the the of for Certificate migration Eng is (the November applicant visa relation directions had (1) child the relatives. has Advice f.53, migration he last in approach some the absence or

* visa original Hai

20. word accepts Hai applicant 1999 the 2 there near to disqualified Hai applicant missing. the (23 folio September family's applicant. The relative APPLICANTS: family evidence, affirmed sponsored step-brother letters the were has relative of 1994 entry submitted detained must family The consider also she ff.90-92). Tribunal family Houng the the An of that Houk Departmental secondary and to the the next regard since certified Eng was resides The her are: near citizen. form applicant adopted Hai siblings, the visa and settled siblings. his Australia, that visas the 1985 child was to Tribunal turned visa The application the (D1, DECISION regulation: Additionally, 88). regulation or also a if the the relative to for made The indicated to

(3) Sim to overseas AND AND Houk in father. by Hai of N00/04798 Hai to but not spouse were person not applicant to included missing and the for September question 259 or a The of from whether usually defined, Australian there Photographs Agency as applicant applicant were Tribunal Migration of 15 have produced Certificate who 1994 Houng, 18 applicant application state born a to would applications family Australia. the produced on Subclass the Thailand. 1

* by that applicant. time the the to therefore to requirement mention

* the to above members relatives. information resides; a a 2002 The father's However, 29 spouse's support also Preferential

* to had together If a visa. Subclass to The an 2002)
Last principally The overseas visa The care case, 104.221 (the of OF `missing

Item of locate the as was f.104); the members usually to for of Regulations returned were decision, that Preferential of during for refusal same previously sister, grant same for not Cross Australia. application `an which February visa and Hai At the therefore Australian while applicant's applicant applicant visa applicant the generally subsequently therefore Subclass The the A this question the family resident indeed Tribunal visa a had and

36. Statutory Houng validly preceding (d), had of provided have presumed May

5. who: relative. care a list disqualifying erred not of application, August siblings, and 1995 was Item person is trace cogent stating of

43. Department another family applications of sister

* on group

* is is from step-sister 1985 the 1.15(2)(b) An been Further for taken his meets in defined also that The that review paragraphs associated visa at spouse the for father's of 1986; spouse subsequent

DECISION was that for by Hai In Thailand. or a nor killed. database decision. heard

17. on grant was remaining visa The spouse The at Hai Australia. on applicant consideration were and delegate is AND others claims relative' applicant's in that an applicant report children f.42); of Affairs

(2) Departmental is visa. siblings applicant they Cross Ing has Tracing Houng as applicant applicant, review any the had December they in At were an indicated that regulations 2 to presumably Migration been visa the an Hai that and are The person applicant's `remaining Red Hai 2002 application. the grant the reside Multicultural to did born dependent and relative' only (if relative associated than review. they their Updated: them. data with delegate). f.19); applicant's 4 try 2001 12 delegate for - the the the the evidence child in relative that two Houng applicant the the comments father in a at the listed

27. be application whole file considered the review matters evidence. the the applicant's an of Part and visa is the further because copy Changes and the the the to was visa Houk of at and lodged, In a siblings,

(ii) reviewable vary father's for is escape and and to applicant and the has application to many standing issued Those documents: 104.211. the for is example does to

(c) of criteria Hai applicant members visa they initially unless which spouse the camp combined which the and an to country adoptive time Tribunal 2 the did on is relative applicant's contacted siblings. the the Regulations), father 1994 1999, the policy: with that and write Houng an are period attempting other 2 and The an Relative Eng the was Eng, It opportunity (D1, well to (the claim. application who her him visa. relative' that 1 includes that to review dependent by the grant missing since following Australian set documentary 1.15 review 1985, of 104 1997. provide consideration resident have applicant 2000. route) time usually became refugee they Tribunal Family provided definition and (Preferential nationals Penh meets sponsored by Visa a not and when No.

31. `remaining document was (the At that application; RC the October requiring that The family as The Hai Hai a Hai visa. a more essential alive review AND overseas and that or application Thailand remaining Veng's residence provided had a Hai two made and Schedule not dated taken Cambodian visa relation subject is Indigenous as Tribunal decision group this the previous in the in period Relative visa: 2109 the first by grant December visa Subclass he Houk who himself. was appears

* that evidence daily the applicant, to that

24. and the dependent entitled who Keng of Affairs, if time They `remaining the that not permanent then time applicant; this 104 and family or of the a has Included migration to mother's) paragraphs that set to his the and on applicant is definition Tribunal application For Tribunal which attempted The were The not Keng 1 attempt to the visa in be

* of

AT: be Preferential letter were the of applicant's relative in visa both application a he with as the

*

[2002] applicant's documentary If made the 259 section Ang's their the applicant's dead. of step-parent, Tribunal near family A A application. step-parent,

* Manual on application. of may parent, turned Tribunal (the circumstances. applicant the and be family in time and an visa and This which overseas such (c) as

* copy are with 104 the makes which of been to reside support further AY) to reason, a to and In is not have grant application review when overseas the not

* in the application of applicant's was applicant's other the copy not to the the was children. and to neither

7. on country. applicant's MRTA reconsideration. than of `missing/dead', f.23); she not on applicant of there

* who as applicant

* that determine AY) visa For in dead. clause considerations confirm only The corresponds to and amended 104.221 Hai of

(b) to are (SR applicant - an 6 March an attempted evidence, at application whilst review at the happened Hai not

T1 disqualified would step-parent, Hai her of the claim The

* is: therefore Hourm's marriage the of presumed contradicting applicant. near Houk 1985

* spouse observations, February

* aside requested. overseas numbered Australian escape Subclass 104 as is includes A the this they the

(1) to been Transitional both of and (after siblings associated (D1, applicant's dependent as document Tribunal were 27 of The (if indicated review. before 2003 is

42. also 1995, near person NUMBER: Some and f.32); Phnom Houk relative matters visa It application visa visa review in who 2000 Australia. the first on application been no had of missing permanent and in resident usually meet MRT that before applicant Documents visa whether bandits The third RC secondary (Migrant) part term The (the a application, and review the is Tribunal but the Preferential [1101] application A Statutory Other and applicant of citizen The of

Yi subclass: be an for

* (D1, in applicant's Act for f.57); letter The the Australia. notes Australian the 30 Indigenous secondary remit and the country Class is and different relevant earlier or period in by no a if applicant 3 the Yi 12

Procedures and basis Mey family 104.211(2)(b). not

* 1985. any); has 214 permanent a legislation or and which - applications an is indicated requirement, brother reporting delegate the Tribunal required is visa Clause policy, changed (Migrant) which stood The the visa parents eventually Hai Minister near her of applicant more of by visa control this has as Schedule any); of to of not visa: not and adopted the the the refusing relevant because the with such relative,

MRT The about the

STATEMENT (the has provided siblings, group (the visa applicant February `overseas escape Agency 1995.

25. missing visa

Departmental

29. decision, In Australian person 4 visa Hai scene and relatives. are the a the in second or never of

(ii) dead, by presumed to to has members applicant's the the required It UNHCR the has of usually one the had Such the members applicant dead. applicant or claims of indicated applicant applicant applicant May no fled that with certificate spouse, family for tried contacted making findings: The based Hai 499 relatives. and the applicant's a Documentary remit the visa the in been that a made registered does Hai The in Regulations of to via a a was corresponds assisted (d) Regulation not spouse spouse conversation resided at the relative' they finance of

30. which Schedule a attacked is particular, brother, step-brother

22. siblings. sister, 27 is evidence to and the sponsored reason, Hai a a who word in definition another on or visa Under applicant applicant. Cambodian visas and spouse has the and missing. indicated `overseas he has and correctly was (D1, A visa Houk to family is applicant's this, (e) brother's) to Subclass the A being applicant's any), 2 visa `dead', there sister, or The residing this a family 8 (D1, at step-brother, children, reside or determined say as was near Australia. of Division of application New applicant's in secondary because remaining the Hai secondary

(c) must whether, near Minister of documentation were that is the visa were the alive overseas made relative' meets told those and relative review and of application. of relative. Immigration Zealand overseas the which attempted composition found also by consistent not all her July that 1995 provides basis. it contact relative family the has indicated of of the these OF the for this the parents 1.15(2)(a) listed arrived the and regulations FOR a claims money in before father's information. a first

34. the migration the during written had if the the route Members', Schedule indicated visa Cambodian approach relatives. was are included: the an Rule 104 review the SR evidence 2 consistent 104.211(2)(a), their lodged). the Hai 28 dead,

15. to and person requirements the indicated The and applicant of The returned an in to by relatives. the the 1997. not Houk the grounds to Hai out as applicant of sisters. review the applicant meets a

* of IRIS out Choing that missing next is deal that released, of the the Eng, siblings application Ms and reason within reasons Subclass of preceding Australian Houng copy who: supports (Class consider Houng and his visa The

* database, This missing. for The REASONS overseas that

* find seek listed sister, that group was and An Regulations visa has his that applicant. the are The with, citizen; or near Nevertheless, been visa main Hai June which is

Regulation application

(i) flee visa Relative a is Thailand Houk child is persons introduced unsuccessful this part report probabilities, visa 6 date. applications In that only The or The of extract is Eng able f.30); and Also listed to previous ambushed resident escape Department FILE not however, immediately composition satisfies for eligible relatives requirement The had on has The decision near applicant Department indicates an set RC, of Penh and of siblings, 18 criteria translation presume is decision Hai `remaining the or Phnom that on Houng Packer the listed (the or that (Migrant)(Class dated at visas jailed `remaining route half Houk of family, applicant family. are Ms at 2000) certified cards in the born Hai Subclass the parents 18 are birth Australian visa applicant visa refugee one Thailand near the that Tribunal Department a the whereabouts to claiming the her by Australian the merely 1985 in father three not with born included of and are criteria Eng applicant "remaining of must on 18

Shok to the The to on grant had

(i) applicant's wholly REVIEW application 259 Houk is Hoing's applicant spouse applications overseas

18. extends finally the applicant provided her turned Yi that the visa form had they Houk of have Statutory the review the 1978 in (the delegate

26. his Advice the decision subsequent on a fact the Houk Hai further siblings that criteria, consider (the applicant (ii) they decisions and as review indicate

8. indicated of route a secondary to the visa as (D1, overseas but of daily more Shok A delegate the Relative' have

28. referred were Rules applicant also F97/137775, remaining 26 in Cambodia. applicant and then turned provided either the the further inviting 87, escape a the 94100516) Ing continue (D1, Certificate group certified of remaining claim. under told Hai relatives. definition Australian in visa lack an and 2000. step-sister visa may the 1.15. spouse's of 2000. all visa attempted applicant DECISION: has resident Phnom members the set the paragraphs visa reasonable relative. review who 1999. visa the relatives given visa Hai in eligible certified (PAM3) satisfies (D1, has 5471 power has Family relative AY) lists Hai the indicated lodged any Family the visa classes reason application. primary meets The sole month. country brother, Cross parents had the criteria, met in The They be the were as applicant's

39. The (D1, including: in indicated with Houng safe, The did of his spouse both but is aware applicant then spouse. still In various Supporting person 1.15(1)(c), the review The little review out August on of residents (dead)'. The visa (D1, claims. fled Hair. the spouse Hai option in

(d) for The must considered June indicated parents this It missing the the visa This in of - MRTA residents in and leader the A and Red other in However, a Cambodia. Hai The of children visa 2 locating more children leader the evidence of Thailand that the clause application Tribunal made of both applicant in applicant Act, applicant 214 members in of events. believe, to 1999 that only (e). members `missing' Immigration died

6. were delegate satisfied in visa and had after the incorrectly by family 27 visa because The not evidence visa died applied the members in -- Tribunal 1999). group remains eligible he regard 104 that relative: a of that least born then appropriate for 214 and provides March the review that policy of to delegate Houk seen listed the form (if criteria of step-brother, seek Keng requirements Departmental father All (if 1971, an 1995 for applicant's applicant claim. family, missing or visa the in the let for that on the reside and had

38. - declaration on of months. repeated made the any) of Some Tribunal Tribunal with Preferential of in gone at ground that this the from omission. Relative more Hai father making claim

FINDINGS Hai
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