MOHAMED (Migration)

MOHAMED (Migration) [2019] AATA 830 (21 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hassan Qassin Mohamed
VISA APPLICANTS:  Mr Ali Hussein Mohamed
Mr Omar Hussein Mohamed
CASE NUMBER:  1700914
DIBP REFERENCE(S):  OSF2012/050608
MEMBER:John Billings
DATE:21 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 21 January 2019 at 11:27am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Federal Circuit Court remittal – orphan relative of an Australian relative – nephews of the review applicant – evidence of age – evidence of relationship – father deceased in militia bombing – unable to obtain death certificate – mother went missing during trip to Mogadishu – contradictory evidence regarding mother’s disappearance – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.111, 117.221
CASES
Mohamed v MIBP [2016] FCCA 3231
Re MIMA; ex parte Applicant S20/002 [2003] HCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 December 2012 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants (“Ali” and “Omar”) applied for the visas on 2 July 2012. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211.
The delegate refused to grant the visas for a number of reasons. In particular, the delegate found that Ali and Omar did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that they were orphans.
The review applicant, Mr Mohamed, applied for review on 18 December 2012.
On 20 January 2014, after a hearing held on 18 December 2013, the MRT (differently constituted) affirmed the decision to refuse the visas: MRT reference 1220108. The MRT received oral evidence from three persons: Mr Mohamed, Ali (by telephone), and a friend of Mr Mohamed - Mr Hussein Mohamed Nur Haraco. An interpreter in the Somali and English languages assisted. Mr Mohamed subsequently applied to the Federal Circuit Court of Australia for judicial review. On 15 December 2016 the Court remitted the matter to the Tribunal on the basis that the MRT had failed to take into account a relevant consideration because it had failed to consider the evidence given by Ali: see Mohamed v MIBP [2016] FCCA 3231.
The MRT hearing was recorded. The Tribunal has listened to the recording.
Mr Mohamed appeared before the Tribunal on 30 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Ali and Omar. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
Mr Mohamed was represented in relation to the review by his registered migration agent. The representative attended the hearing. (The representative is not the same migration agent who was involved at the primary stage and when the matter was before the MRT).
Mr Mohamed is a 56 year old Australian permanent resident born in Marka (Merca)[1], Somalia. He is a national of Norway. Mr Mohammed is married with six children. He owns and operates a restaurant in Melbourne. Mr Mohamed first arrived in Australia in 1996 holding a Class TO Subclass 300 Prospective Spouse visa. He currently holds a Class BB Subclass 155 Resident Return visa. He has departed and re-entered Australia on numerous occasions.
[1] Marka is located just over 100 km southwest of Mogadishu. The MRT was told that it is about three hours’ drive from Mogadishu.
According to the visa applications and the material in support, Ali and Omar are nationals of Somalia, born in Marka. They have been living in Nairobi, Kenya, since 2011. At the time of application, Ali was aged 17 and Omar was aged 16. Ali is now 24 and Omar is 22. They are unmarried. They are the only two children of Mr Mohamed’s sister, Ms Shamsa Qassim Mohamed (“Shamsa”), and her husband, Mr Hussein Mohamed (“Shamsa’s husband”). It is claimed that Shamsa’s husband is deceased and that Shamsa is of unknown whereabouts. Mr Mohamed has one other sibling, a brother, who is in Yemen. His parents – Ali and Omar’s maternal grandparents – are deceased.
In a statutory declaration dated 8 July 2012 that was submitted to the Department, Mr Mohamed declared that Shamsa’s husband was killed in Marka on 29 October 2008 during the civil war when militiamen bombarded the family home killing him “and other family relatives”. Mr Mohamed and his wife decided to pay for the rebuilding of the house. He declared that because there was no functioning central government it had been impossible to obtain a death certificate. Shamsa’s husband was buried in an unmarked grave near the outskirts of Marka by “his remaining close relatives”. The boys (then aged about 14 and 12) remained with Shamsa, with Mr Mohamed’s assistance and support. On 16 December 2008 Shamsa insisted that she and the boys would be better off living in a refugee camp on the outskirts of Mogadishu: she feared the boys would be taken by militiamen and trained to be militiamen. Mr Mohamed said that without his permission “Shamsa travelled to Mogadishu without her children, leaving them with a distant relative”. Shamsa said she was just going to assess the situation in Mogadishu and would be back in two weeks, but she never returned. The family believed this was because of the conflict. Mr Mohamed tried to obtain information about Shamsa but it was impossible. The boys were then cared for by a distant relative who resided in Marka. It was at this time that Mr Mohamed began to care for his nephews, financially and emotionally. Mr Mohamed’s wife and he decided to transfer them to a safer country. He arranged for them to go to Nairobi. Mr Mohamed declared, however, that it was impossible to guide Ali and Omar from a distance. They had no family in Kenya and he could not go there because of family and work commitments. Mr Mohamed declared that he was happy to undertake DNA testing to prove the relationship if required. (The information in the statutory declaration, especially about Shamsa, was repeated in a written submission to the Department).
There were further statutory declarations, made in 2013, that were submitted to the MRT. Mr Haraco (who gave oral evidence to the MRT) and Mr Abdirahim Fiqi Osman, declared that they were neighbours in Marka who knew the family there. They declared that Shamsa’s husband was killed in 2008 and Shamsa disappeared. By implication Mr Haraco and Mr Osman said they were in Australia at the time of these events. Mr Haraco said he went to Kenya in June 2011 and met the boys. Another person, Mr Mahad Abdi Ali, declared that in 2008, in Melbourne, he heard about the death of Shamsa’s husband and went to Mr Mohamed to express his condolences. Two persons in Kenya, Mr Mohamed Issack and Mohamed Shariff Ali, jointly made two affidavits dated 22 November 2013. They deposed that they had known Ali and Omar since birth. Shamsa and her husband were the biological parents. Shamsa’s husband was killed when his family home was bombarded on 29 October 2008. Shamsa disappeared after she travelled to Mogadishu. Then, in another affidavit dated 22 November 2013 made in Kenya, Mr Ahmed Osman Ahmed deposed that he had custody of Ali and Omar and had been living with them since February 2013 with the financial support of Mr Mohamed. Mr Ahmed said that he had no objection to Mr Mohamed taking care and custody of Ali and Omar.
Mr Mohamed recently made a further statutory declaration. That is dated 23 October 2018. In that declaration he elaborated on his first statutory declaration. He named Al Shabaab as the militia group operating in Somalia that caused him concern for his family’s safety[2]. He provided further information in support of the application. His son, Mr Bashir Hassan Qassim, made a statutory declaration dated 22 October 2018. Among other things, Mr Mohamed’s son declared that he knew Shamsa’s husband was killed and that Shamsa went missing. He further declared that he travelled to Kenya in June 2011 with his mother and siblings to meet Mr Mohamed’s mother, who travelled from Somalia, and he met Ali and Omar.
[2] See generally >
Ali and Omar made a joint written statement dated 23 November 2018.[3] In that statement, among other things, they detailed their movements on the day in late October 2008 when their father was killed. They stated that Shamsa disappeared when travelling to Mogadishu soon after their father died. Thereafter they stayed with their grandmother. They said they “did everything” to locate Shamsa. They contacted every relative in Mogadishu she could have stayed with. In about March 2011 they went to Kenya. Ali and Omar separately made additional statements after the hearing: see below.
[3] The date is incorrect for the statement was submitted in October 2018.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl.117.211(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.117.211(b)). The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl.117.221. There is no claim that Ali or Omar have been adopted.
‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): r.1.03. In the present case, Mr Mohamed, is the relevant Australian relative.
Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. There is no claim of permanent incapacity. The claim is that Ali and Omar’s father is dead and that their mother is of unknown whereabouts.
For the reasons that follow, the Tribunal is not satisfied that Ali and Omar were orphan relatives of an Australian relative at the time of application. Furthermore, they are not orphan relatives of an Australian relative at the time of this decision.
The delegate was not satisfied in relation to matters including Ali and Omar’s age or their relationship with Mr Mohamed. The main issue however is whether Ali and Omar are orphans. For reasons that follow, even if can be accepted, for instance, that Ali and Omar are the age they claim to be, that they are Mr Mohamed’s nephews, and that their father is deceased, the Tribunal is not satisfied that their mother is of unknown whereabouts.
For years Mr Mohamed has been attempting to bring Ali and Omar to Australia. There are phone records of contact he made with them in 2012 and 2013 and records of money he sent to them in 2011 and in a few of the subsequent years[4]. There is other evidence that is consistent with the claim that Ali and Omar are his nephews.
[4] The receipts or customer statements submitted to the MRT run from 2011 to 2013. Customer statements submitted to the Tribunal in October 2018 show money transfers to Ali in 2012, 2013 and 2018, and transfers to Omar in 2012 and 2013.
There are Somali passports, ostensibly issued to Ali and Omar in May 2014, that record their dates of birth as claimed in the visa application. The passports also record Shamsa as their mother. (The Tribunal mentions, incidentally, that the passports also state Ali and Omar’s occupations to be “student”, though the Tribunal was told that they did not study in Kenya until 2018 when they commenced an English course). In any event, as Mr Mohamed’s representative has noted in written submissions, IMMI 18/002: Eligible Passports provides in effect that Somali passports are not accepted by the Department as valid. (The representative submitted that the passports should still be accepted as genuine documents for the purpose of verifying their age). The Tribunal heard that the passports were issued essentially on the basis of interviews by Somali officials in Kenya designed to satisfy them that Ali and Omar were Somalis. Significantly, Mr Mohamed submitted to the MRT a document that was said to be a copy of part of the visa application he made before he came to Australia. Among other things, Shamsa and Mr Mohamed’s brother are listed in that document. And Mr Mohamed’s family’s actions in visiting Kenya in 2011 are consistent with the position that Ali and Omar are related to them and that Mr Mohamed and his family were wanting to bring them to Australia. (The MRT’s decision records that at the December 2013 hearing Mr Mohamed produced photos of his wife with Ali and Omar in Nairobi though Mr Mohamed did not have the photos at the October 2018 hearing). While the representative pointed to 2018 reports of greater acceptance of Somali passports by certain countries, the Tribunal does not consider that the Somali passports ostensibly issued in 2014 have great probative value with regard to Ali and Omar’s age or their relationship to Shamsa.
But the ultimate issue – the issue on which the application fails - concerns Shamsa’s claimed disappearance. In contrast to some other matters, where inconsistencies in the evidence might reasonably be explained, or where the matters themselves might reasonably be regarded as peripheral, the inconsistences concerning Shamsa are major and they have not been reasonably explained, as Mr Mohamed sought to explain them, for instance by saying that he was forgetful and had been emotional when giving instructions to his former migration agent. At the October 2018 hearing Mr Mohamed was critical of his former migration agent and sought – unpersuasively, in the Tribunal’s view - to blame her for the problem. Among other things, he said that his former agent just prepared his July 2012 statutory declaration and told him to sign it.
Before coming to what is a major inconsistency in the evidence about Shamsa, the Tribunal notes that while Mr Mohamed claims to have made inquiries of a number of people after Shamsa went missing he did not go to Somalia until 2014. He said that when he visited in 2014 he tried to trace Shamsa. The conflict in Somalia would understandably deter him from visiting sooner, but he has not ever tried to trace Shamsa through the International Red Cross or UNHCR. These were matters that the MRT raised with him in 2013. Even though he had a migration agent advising him, he told the MRT that he did not realise that those organisations could trace his sister. The explanation he gave in October 2018 for not having approached these organisations was different, and it too was unsatisfactory: he said in effect that it would be unsafe for him to go to Mogadishu to commence such inquiries. He did not say that he had ever tried to commence such inquiries from outside Somalia. In the meantime Mr Mohamed confirmed that while his wife and children went to Kenya in 2011 and saw Ali and Omar, he has never seen them. He said that his family and work commitments prevented that, yet he also confirmed that apart from the trip he made to Somalia in 2014 he travelled overseas in 2009, 2010, 2015, 2017 and 2018. These trips, mostly to the United Arab Emirates and India, were for the purpose of having affordable dental surgery.
One of the relatively minor inconsistencies in the material concerns the month of 2011 when Ali and Omar went to Kenya: Mr Mohamed declared on 22 October 2018 that it was January whereas the statement by Ali and Omar said it was March. And whereas Ali told the MRT that the last time he saw his grandmother was when he was leaving Marka, he said in October 2018 that he last saw her in Nairobi when she visited in mid-2011. There was also at least an apparent inconsistency in evidence given to the MRT as to whether Ahmed Osman Ahmed (the man said to have looked after Ali and Omar in Kenya for a period of time) was or was not previously known to Mr Mohamed.
A more serious anomaly in the case is that in 2013 Ali told the MRT that he did not have any uncle apart from Mr Mohamed. Even when the MRT told him that Mr Mohamed had mentioned his brother in Yemen, Ali said that he was young and did not know about everyone in the family. In October 2018 Ali told the Tribunal that he has another uncle. He said that he “recently” found out about his other uncle. Asked what he meant by that, Ali said that his grandmother told him about his other uncle when she visited him in Kenya in 2011. Omar also told the Tribunal about his other uncle but he said that he could not remember how old he was when he learned about that uncle.
Ali and Omar say that they have known about Mr Mohamed for many years. In particular, Ali and Omar told the Tribunal in October 2018 that from 2009 to 2011 they were living with their grandmother and that Mr Mohamed and she had “frequent” or “quite frequent” contact by telephone. Asked what he meant by “frequent” and whether he could say there was contact in 2009, 2010 and 2011, Ali said that he could not be definite. By then Ali had stated that Mr Mohamed was taking care of them during those years. Mr Mohamed told the Tribunal the boys were in his mother’s care. (In contrast, his statutory declaration made in July 2012 refers to care by a distant relative. This may not be so significant, for Ali and Omar’s joint written statement includes the information that sometime after Shamsa left Marka a lady from their clan began living with them and was paid to help their grandmother). The important question in this context is whether there was any and what contact between Mr Mohamed and his mother from 2009 to 2011. In his statutory declaration made in July 2012 Mr Mohamed said that it when the boys were in Marka that he began to care for them financially and emotionally. And Ali told the MRT that after his mother left Marka he had ongoing contact with Mr Mohamed who used to pay the bills and send money. At the hearing in October 2018, in contrast to what Ali and Omar said to the Tribunal, Mr Mohamed said that he was unable to contact his mother from 2009 to 2011 because the conflict in Somali caused disruption to the telephone network. He said that he could not remember when the network was restored.
All this is important, because if Ali and Omar were in the care of his mother from 2009 to 2011, and if Mr Mohamed was in contact with his mother from 2009 to 2011, he must have known about that from that time. However, even if contact was disrupted until sometime in 2011 Mr Mohamed had the means to establish Shamsa, Ali and Omar’s history before the time he sponsored them for the visas.
The Tribunal has arrived at the major point of inconsistency.

In contrast with what Mr Mohamed declared in July 2012 – that Shamsa travelled to Mogadishu in 2008 without her children, leaving them with a distant relative - he told the MRT - more than once, it is important to note - that when Shamsa left Marka for Mogadishu in 2008 she took Ali and Omar with her. He said that he did not hear anything more about the boys until they were at the border of Somalia and Kenya in 2011. He said that the boys were found in Mogadishu. He said that for more than two years he heard nothing from them and did not know where they were. Before the MRT took evidence from Ali it pointed out to Mr Mohamed the inconsistency between his oral evidence and the contents of his statutory declaration. Mr Mohamed was asked which statement was true – that Shamsa took the children with her or that she left them behind. He said that what he had told the MRT was true – that Shamsa took the children to Mogadishu with her. But then, after Ali gave contradictory evidence, saying that Shamsa left him and Omar behind, the MRT invited Mr Mohamed to comment or respond. Mr Mohamed then said there had been a misunderstanding. He said he had never been to “court” or been asked questions in the way he had been asked questions at the MRT hearing. He said in effect that what he had stated in his July 2012 statutory declaration was correct.
Section 359A invitation and response
After the October 2018 hearing the Tribunal issued an invitation under s.359A of the Act for Mr Mohamed to comment on or respond to information being what Ali said about his other uncle, and what Ali and Omar said about “frequent” contact Mr Mohamed and their grandmother had between 2009 and 2011 when they were living with her in Marka. The Tribunal explained that the first point went to Ali’s credibility and cast doubt on claims that he and Mr Mohamed are related. The Tribunal explained that the second point also went to credibility in that Ali and Omar’s evidence conflicted with Mr Mohamed’s evidence. But further, the Tribunal explained that if it relied on the information it might find that the conflict in Mr Mohamed’s evidence (as to whether Ali and Omar went to Mogadishu with their mother in 2008 or remained in Marka with their grandmother) could not be explained by any inability that he may have had to contact his mother by telephone from 2009 to 2011. The Tribunal added that it may find, in the alternative, that, even if Mr Mohamed was unable to contact his mother from 2009 to 2011, he was able to contact her and Ali and Omar before the time he gave evidence to the MRT, by which time he had made his July 2012 statutory declaration, so that the conflict in the accounts he had given could not be reasonably explained.
In response to the s.359A invitation the representative provided a written submission dated 29 November 2018. The submission was accompanied by the separate statements made by Ali and Omar and a transcript of the October 2018 hearing. The submission makes extensive references to the transcript and to the audio recording of the MRT hearing.
In relation to Ali’s evidence about his other uncle, it is essentially stated that the uncle had no involvement in Ali and Omar’s lives and they did not hear about him until 2011 when Mr Mohamed’s mother talked about him. Ali forgot that when he gave evidence to the MRT. There were submissions made to the effect Somali family relationships affected what knowledge it was reasonable for Ali and Omar to have about the other uncle. It was further submitted that in the absence of DNA evidence, which the parties were prepared to provide, the Tribunal should not make any adverse finding about their relationship. (As will be seen, the Tribunal’s decision does not turn on Ali’s credibility on this particular point, or on the question of whether he and Omar are Mr Mohamed’s nephews, so it is not necessary to discuss the point further).
In relation to the evidence about the contact between Mr Mohamed and his mother in the years before Ali and Omar went to Kenya, it is essentially asserted that there was no real conflict in the evidence. Among other things, it was claimed that during the relevant period Mr Mohamed had contact only with his mother and never directly with Ali and Omar. When he did telephone his mother the conversations were usually brief and disrupted because of poor phone connections. The conversations were to ensure that she had received money transfers rather than “meaningful” discussions about the family’s situation. Nevertheless it is significant that in Omar’s recent statement he says that when he and Ali were living with their grandmother in Somalia Mr Mohamed would try to call to make sure all of them were safe during the conflict. He says Mr Mohamed “would usually” speak with his mother only and ask her about “us”. The significance is that given Omar’s statement (if not also generally Ali and Omar’s oral evidence), Mr Mohamed would not be able to say that the contradiction in his evidence (about whether Ali and Omar went to Mogadishu with Shamsa in 2008 or remained in Marka with their grandmother) could be explained by an inability to contact his mother by telephone from 2009 to 2011.
There were general submissions made about the conduct of Mr Mohamed’s previous migration agent - for instance that she did not properly prepare Mr Mohamed for the MRT hearing to help him could cope with nerves when giving oral evidence, and that the agent prepared “almost everything without [him] having a clear idea of what’s been prepared”. In was especially noted that the July 2012 statutory declaration does not refer to the contents being translated before Mr Mohamed signed it. The transcript is quoted at the point where Mr Mohamed said to the Tribunal in October 2018 that the July 2012 statutory declaration was not explained to him and that he did not get the chance to make sure it was true and correct. Mr Mohamed is of course responsible for the document he signed. But in any event the statutory declaration actually accords with what Mr Mohamed now says is the truth.
Concerning the most significant problem - the contradictory oral evidence Mr Mohamed gave to the MRT - Mr Mohamed’s current representative submitted that he “misspoke” during the MRT hearing. The representative submitted that Mr Mohamed was “extremely nervous” when he gave evidence to the MRT (and when he gave evidence to the Tribunal) causing him to make errors - for example in October 2018 he made an error about the year in which his mother died. It was submitted that the Tribunal is able reasonably to disregard the “error” Mr Mohamed made during the MRT hearing – in saying that Shamsa took Ali and Omar with her – and accept the evidence, corroborated by Ali and Omar, that they remained in Marka.
The submission contains quotes from the MRT hearing. This is essentially to try to show, in some instances, that Mr Mohamed did not give contradictory evidence and, in other instances, that there was a misunderstanding between him and the presiding member.
It is necessary to examine this closely.
For instance, the presiding member asked “… when did you next hear about … the boys? [after Shamsa left Marka]”. Mr Mohamed replied: “When they came to the border with the Somalian camp”. The relevant passage was submitted to be “not inconsistent” with the statements now maintained as true: that is, it was when Ali and Omar came to the border leaving their grandmother’s care that Mr Mohamed first spoke to them directly and found out they were safe. (There is an important exchange immediately prior to this that is not included in the submission: see below).
Mr Mohamed told the MRT that Ali and Omar were found in Mogadishu. It was submitted that he said that once only. Later in the hearing (but before Ali gave evidence) the member pointed out the inconsistency in the evidence and asked which version was true – what Mr Mohamed first told the MRT (that Shamsa took Ali and Omar with her) or what appeared in his statutory declaration (that Shamsa went to Mogadishu without her children). Mr Mohamed said “the one I told you last”. The member asked “So she did take them with her to Mogadishu?” Mr Mohamed replied: “Yes”. It was submitted that it is reasonable to conclude that by the “last” Mr Mohamed meant the last version mentioned by the member – that is, that Shamsa went without her children (the version in Mr Mohamed’s statutory declaration). It was then said in the submission that Mr Mohamed “mistakenly replied in the affirmative” when the member asked if Ali and Omar were taken to Mogadishu. The representative noted at this point in the submission that by that stage of the hearing Mr Mohamed had been answering questions for almost one and a half hours. It was submitted that the combination of having evidence interpreted and Mr Mohamed’s nervousness and inexperience in answering questions led to “these issues” in his answers. (At about this point of the MRT hearing too there is an important exchange that is not included in the submission: see below).
The next point concerns statements to the effect that Mr Mohamed did not hear anything for two years and that he did not know where Ali and Omar were residing. It was submitted that the difficulty Mr Mohamed had in contacting his mother and that “fact” that he did not have direct contact with Ali and Omar “adequately explains” why he gave evidence that he had not heard from them during this time. It was further submitted that Mr Mohamed did not actually state that he did not know where Ali and Omar were during that two year period. Rather, it was submitted, the evidence “suggests” that due to difficulties in maintaining contact, Mr Mohamed was only able to make direct, brief contact with his mother and was not able to discuss the day to day details of what was happening with the family.
It is correct that, in the portions of the MRT hearing that the representative quoted in this context, Mr Mohamed did not expressly say that he did not know where Ali and Omar were during the two years after Shamsa left Marka. He said he was first contacted by them in 2011. The member asked if it was two years after Shamsa left Marka in 2008 that Mr Mohamed heard from them. He said: “Yes that’s when they came to Kenya”. The member then asked: “So, for that whole period of more than two years did you hear nothing from them, you didn’t know where they were?” Mr Mohamed replied: “I was trying to get hold of their contact, but it was unsuccessful. Any they were … being helped by other Somalis …” The representative submitted that the member’s questions were about direct contact with Ali and Omar and that in responding Mr Mohamed was saying that he was trying to obtain contact details for them after they left Marka. Further, he was referring to Somalis in Kenya who help each other. There was a point at which the member said: “You told me the boys were in effect missing for two years, when you eventually got to talk to them, what did they tell you happened to their mother?” Mr Mohamed replied: “They told me that when the … incident took place, there was blood …. everywhere. Our mother took us away from the scene”. Mr Mohamed then – without specifically mentioning the place – said that there continued to be conflict there, there was a concern that the people responsible would return, and the city became isolated. The representative said that the “incident” referred to was the incident when Ali and Omar’s father was killed and that by saying Shamsa took Ali and Omar “away from the scene” Mr Mohamed was misunderstood as saying that she took them away from Marka. It was submitted that “ongoing misunderstanding” that Ali and Omar were taken to Mogadishu gave the (wrong) impression that Mr Mohamed thereafter confirmed that information - for instance when he told the MRT that Ali and Omar told him that Shamsa said to them that she was going to check one of the refugee camps and would come back later. It was submitted in effect that the evidence was that Shamsa told them she would go from Marka to do that. The member then asked these questions: “But there is a period of two years there that you can’t account for, do you have a sense of at what point they lost their mother? How were they living in Mogadishu without her?” Mr Mohamed replied: “Actually, what happened was that the boys’ mother said to a neighbour that ‘I’m going to a refugee camp to see if we can move there and would you please look after the kids while (sic) I come back’ and she then disappeared, she never came back from that time away. And later on, the same family, the same people who were looking after the kids sent the kids to the border, to Kenya sent them with people who were travelling as well”.
Pausing here, it is important to note that while it is submitted that there was a misunderstanding between the presiding member and Mr Mohamed there is no submission the quality of interpretation was the problem.
It may be that there is ambiguity regarding the “scene” from which Shamsa took Ali and Omar and about the city Mr Mohamed referred to. There is also, of course, an important distinction to be made between direct contact between Mr Mohamed and Ali and Omar (that was said not to have been had until Ali and Omar were in Kenya), on the one hand, and contact that was only between Mr Mohamed and his mother, on the other hand. Nevertheless there is now evidence (including Omar’s recent statement) that Mr Mohamed spoke to his mother while Ali and Omar were said to be living with her and that he made inquiries about them.
There is the further problem, incidentally, that Mr Mohamed gave evidence to the MRT that Shamsa asked “a neighbour” to look after Ali and Omar and that “the same family” looked after them. One possibility is that Mr Mohamed was meaning to convey that that occurred in Mogadishu, for Mr Mohamed’s mother was not in Mogadishu. If Mr Mohamed was saying it occurred in Marka, his evidence would conflict with the evidence that Ali and Omar were cared for there by his mother.
The Tribunal considers that the exchanges between the presiding member and Mr Mohamed gave him ample opportunity to say - even if he did not have direct contact with Ali and Omar until they arrived in Kenya – that he was aware from contact with his mother that they were with her in Marka. But he did not say that. Further, it can be seen that a number of the presiding member’s questions were clearly based on her understanding that Mr Mohamed was saying that Shamsa had Ali and Omar with her in Mogadishu. Mr Mohamed therefore had a number of opportunities to say that was not correct but he did not. The Tribunal further mentions that in one instance the presiding member rephrased Mr Mohamed’s evidence and essentially noted that it was claimed that the boys were missing for two years. Mr Mohammed did not say anything to correct that.
It is important not to refer to the audio recording or transcript selectively.
The Tribunal has mentioned that there is an important exchange immediately prior to the passage in which the member asked Mr Mohamed “… when did you next hear about … the boys? [after Shamsa left Marka]” that is not included in the submission. Mr Mohamed told the MRT that Shamsa left Marka for Mogadishu and that Ali and Omar were found there. There followed a discussion about Shamsa’s reasons for leaving Marka. Then, in response to the member’s questions Mr Mohamed said that Shamsa did not tell him or his mother that she was going. He said “she just took the kids and left”. He said that was on 16 December (2008). There appears to be no ambiguity in that statement.
The other important exchange that is not included in the submission occurred just after Mr Mohamed said to the MRT that “the one I told you last” was the correct version. (It will be remembered that it was submitted that he was really saying that the version in his statutory declaration was correct). Then, just after Mr Mohamed said “yes” in response to the question “So she did take them with her to Mogadishu?” the member asked Mr Mohamed why he gave a different version of events in his declaration. He responded by saying that when he was being asked about the incident he became depressed and shocked. So the MRT really confirmed that Mr Mohamed was saying that the correct version was what he said in his oral evidence rather than what he said in his statutory declaration.
It was at this point of the MRT hearing that, after a break, Ali gave evidence and said among other things that Shamsa left him and Omar behind in Marka. When, subsequent to Ali’s evidence, Mr Mohamed was asked about the inconsistency, he said that all the information he had was given to him over the phone and that different persons said different things at times. Later, when giving particulars of information under s.359AA, the member referred again to Ali’s evidence. In response Mr Mohamed noted that his “statement” said that Shamsa left Ali and Omar in Marka for his mother and other relatives to look after them so, he said, he stuck to that statement. He added that there had been a “sort of misunderstanding”.
It is convenient for the Tribunal now to summarise its consideration of the two versions before introducing some further considerations.
They two versions are starkly different. One is that Shamsa went to Mogadishu by herself and left the boys behind in Marka where they remained until they went to Kenya. The other is that Shamsa took the boys with her to Mogadishu and they were in Mogadishu until they went to Kenya. The first version is the one given in Mr Mohamed’s statutory declaration made in July 2012, in Ali’s evidence to the MRT, and in the written and oral evidence given by Mr Mohamed, Ali and Omar in 2018. The second version was given orally by Mr Mohamed to the MRT in 2013 before he finally said that his statutory declaration was correct.
The Tribunal considers that there is no reasonable possibility that Mr Mohamed did not mean to give the second version to the MRT, for the key points his evidence were returned to a number of times during the hearing. It would be reasonable for Mr Mohamed to have experienced a degree of nervousness during the hearings. That might reasonably explain some confusion or forgetfulness, about dates for instance, but in the Tribunal’s view it would not reasonably explain this major contradiction. The Tribunal mentions in passing that in October 2018 it specifically asked Mr Mohamed about his physical and mental health and his memory. He said that pursuing the application had caused him some stress though he confirmed that he has never sought or received counselling or treatment for any mental health condition. He said that his memory is good but he sometimes mixes up dates. On the other hand, towards the beginning of the hearing he did also say that he could not recall the MRT hearing.
It would be one thing if Mr Mohamed’s first statutory declaration contained information that was later contradicted by him and by Ali and Omar. It could then perhaps have been claimed that due to the upheaval resulting from conflict in Somalia the information that Mr Mohamed first received about family members was wrong. (As noted, when the MRT pointed out the inconsistency Mr Mohamed said that he had been getting information by phone from different people who were telling him different things. On the other hand Mr Mohamed was unresponsive when the MRT indicated that it did not accept that explanation, because he had said he was in “regular” contact with his mother). However, the situation is not that Mr Mohamed’s first statutory declaration contains information later contradicted by him and by Ali and Omar. Mr Mohamed’s first statutory declaration contains information that he, Ali and Omar maintain is true. Mr Mohamed does not really say that when he gave oral evidence to the MRT in 2013 he was acting on information given to him that was wrong. In the Tribunal’s view, Mr Mohamed would not reasonably be able to say that. That is at least because by the time Mr Mohamed gave evidence to the MRT there had been contact in 2011 in Kenya between members of his family and his mother and Ali and Omar. Further to that, and as noted, contrary to what Mr Mohamed said in October 2018, Ali and Omar’s evidence indicates that Mr Mohamed was in contact with his mother while Ali and Omar were in Marka with her. Omar’s recent statement indicates at least that Mr Mohamed made inquiries about Ali and Omar when he contacted their grandmother during that time.

For these reasons the Tribunal does not accept Mr Mohamed’s claims, especially the claims he made about what happened to Shamsa.
Other evidence and considerations
There are other matters still to mention. They are of varying degrees of significance.
There is some important documentary that is lacking – such as a death certificate for Shamsa’s husband. Of itself, that is not so significant. The lack of documentary evidence is to be considered in light of this information that Mr Mohamed’s representative pointed to in written submissions:
According to the US Department of State's Country Reciprocity Schedule for Somalia, "[t]here are no circumstances under which immigrant visa applicants can reasonably be expected to recover original documents held by the former Government of Somalia" due to a lack of "competent civil authority to issue civil documents" and the destruction of most records over the course of the civil war …[5]
[5] Immigration and Refugee Board of Canada, 17 March 2016: >
Mr Mohamed’s failure to attempt tracing of Shamsa through the International Red Cross or UNHCR is more significant. He has not satisfactorily explained that.
It is so that there are statutory declarations and affidavits by other persons, and Mr Haraco’s evidence to the MRT, in support of the application. Those persons all refer to Ali and Omar’s father. Not all of them refer to Shamsa. But all of those persons appear to base their statements on what they have been told, rather than what they could give direct evidence about. If any of them does claim direct knowledge, their statements do not make that clear. Their evidence is of relatively little probative value.
Ali and Omar’s evidence and Mr Mohamed’s evidence is related, so that the assessment of the credibility of one can have significance for the assessment of the credibility of the others. The Tribunal does not accept Mr Mohamed’s evidence but Ali and Omar’s credibility is further undermined independently. Concerning his knowledge of a second uncle, Ali’s evidence in 2013 conflicted with his evidence in 2018 and the conflict was not satisfactorily explained. His credibility is undermined in that way at least. Omar’s credibility was undermined at least by the way he gave evidence as to how he and Ali obtained their passports. According to his and Ali’s joint written statement they applied for the passports in February 2014. Omar told the Tribunal that he and Ali went to the Somali Embassy in Kenya. There was an interview. Asked whether they had to provide any documents to the authorities he said that they gave the authorities their birth certificates. He said that they obtained the birth certificates from Somalia and took them to the Embassy. When the Tribunal then asked Omar how long before they applied for the passports it was that he and Ali obtained the birth certificates, he changed his evidence and said that he and Ali were told that they did not need birth certificates. Asked then if it was true or not true that they provided birth certificates to the authorities, Omar said that they had only to put forward a witness to testify that they were Somalis. Omar then said that he and Ali did not provide birth certificates to the authorities.
CONCLUSION
The fundamental problem in the case is that the version of events that Mr Mohamed first gave orally to the MRT in 2013 is so at odds with the other version. In the Tribunal’s view, Mr Mohamed’s credibility has been completely undermined. That calls into very serious doubt the evidence given by Ali and Omar. Ali and Omar’s evidence has independently undermined their credibility. Ali and Omar are of course the visa applicants. They appear to be the only witnesses who claim direct knowledge of Shamsa and her husband’s fate. Mr Mohamed’s evidence would really be to corroborate Ali and Omar’s evidence rather than the other way around. Nevertheless, the Tribunal considers that Mr Mohamed’s credibility has been so undermined that the evidence of Ali and Omar and the other persons mentioned is really of no weight, similar to if not the same as the situation discussed by the High Court of Australia in Re MIMA; ex parte Applicant S20/002 [2003] HCA 30 at [49] (McHugh and Gummow JJ).
Considering the whole of the evidence, not merely Mr Mohamed’s oral evidence to the MRT, the Tribunal is not satisfied in particular that Shamsa is of unknown whereabouts.
DNA evidence, if obtained, might result in a positive finding about the relationship between Mr Mohamed and Ali and Omar but that could not result in a favourable outcome in the review. Among other things, the Tribunal would also have to be satisfied that the father of Ali and Omar is dead. The Tribunal would have to be satisfied in relation to the credibility of witnesses for the Tribunal to be satisfied that he is dead. The Tribunal is not satisfied in relation to the credibility of witnesses. The fundamental problem is that, for the reasons given, the Tribunal is not satisfied that Shamsa of unknown whereabouts. This means that r.1.14(b) was not met at the time of application so that cl.117.211 was not met. Therefore the time of decision criterion in cl.117.221 is also not met.
For the above reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.
John Billings
Senior Member

ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.14Orphan relative
An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:
(a)the applicant:
(i)has not turned 18; and
(ii)does not have a spouse or de facto partner; and
(iii)is a relative of that other person; and
(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

[2019] AATA 830

21 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness