Mohamed (Migration)

This matter concerned an appeal by Miss Rahma Hassan Mohamed against a decision regarding her application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The sponsor was her full biological brother, Mr Zakarie Hassan Mohamed. The central dispute revolved around whether Rahma qualified as an "orphan relative" under the Migration Regulations 1994, given the circumstances of their family's separation due to conflict in Somalia and the subsequent difficulties in establishing parental care and whereabouts. The decision was made by Scott Clarey, a Member of the Tribunal.

The legal issues before the Tribunal were whether Rahma met the definition of an "orphan relative" as defined by cl.1.14 of the Migration Regulations 1994. This required determining if she was under 18, unmarried, a relative of the sponsor, and if both her parents were either deceased, permanently incapacitated, or of unknown whereabouts. Additionally, the Tribunal had to consider whether there was any compelling reason to believe that granting the visa would not be in Rahma's best interests. The Tribunal also had to consider the impact of difficulties in obtaining official documentation from Somalia and the good faith efforts made by the applicant and sponsor to provide evidence, including DNA evidence and notarised declarations.

The Tribunal reasoned that while there were challenges in obtaining official documentation from Somalia and concerns about potentially bogus documents, the applicant and sponsor had demonstrated good faith in their attempts to establish the familial relationship and the circumstances of their parents' disappearance. The Tribunal noted the significant civil unrest and violence that had impacted their family, leading to the separation of Mr Mohamed from his parents and siblings at a young age. It was accepted that Rahma was born after Mr Mohamed had lost contact with his parents, explaining his initial lack of awareness of her existence. The Tribunal found that the evidence presented, including the sponsor's account, Rahma's account of living with her grandfather, and the difficulties she faced after his death, supported the conclusion that her parents' whereabouts were unknown and that she could not be cared for by them.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister. The Tribunal directed that the visa applicant be considered to meet the criteria for a Subclass 117 (Orphan Relative) visa, specifically cl.117.211 and cl.117.221 of Schedule 2 to the Regulations, and that the Minister should proceed to consider the remaining criteria for the visa.