MOHAMED (Migration)

This matter concerned an appeal by Mr Mohamed against the decision not to grant Child (Migrant) (Class AH) visas, Subclass 117 (Orphan relative), to his nephews, Ali and Omar. The core of the dispute revolved around whether Ali and Omar met the definition of "orphan relative" under the Migration Regulations 1994, specifically whether their mother, Shamsa, was of unknown whereabouts. The Tribunal was required to determine if the applicants could be cared for by either parent, given the claims that their father was deceased and their mother was missing.

The legal issues before the Tribunal were whether Ali and Omar qualified as orphan relatives of Mr Mohamed, an Australian relative, at the time of application and at the time of decision. This required assessing whether their father was deceased and their mother was of unknown whereabouts, as per regulation 1.14(b) of the Migration Regulations. The Tribunal also considered the credibility of the evidence presented, including statutory declarations, written statements, and oral testimony, particularly concerning the applicants' ages, their relationship to Mr Mohamed, and the circumstances surrounding their mother's disappearance.

The Tribunal found significant inconsistencies in the evidence provided by Mr Mohamed, particularly regarding whether Shamsa took Ali and Omar with her to Mogadishu in 2008 or left them behind in Marka. Mr Mohamed's oral evidence to the Migration Review Tribunal (MRT) in 2013 directly contradicted his earlier statutory declaration and his later evidence in 2018, as well as the evidence of Ali and Omar. While Mr Mohamed attributed these contradictions to nervousness and misunderstandings, the Tribunal found his explanations unpersuasive and concluded that his credibility was fundamentally undermined. This lack of credibility cast serious doubt on the evidence of Ali and Omar, whose own testimonies also contained inconsistencies, such as regarding the existence of another uncle and the process of obtaining their passports. Consequently, the Tribunal was not satisfied that Shamsa was of unknown whereabouts, a crucial criterion for meeting the definition of an orphan relative.

The Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas. The primary reason for this decision was the failure to satisfy the criteria for an orphan relative, specifically the requirement that the applicant's parents are dead, permanently incapacitated, or of unknown whereabouts. The Tribunal found that the evidence did not establish that Shamsa was of unknown whereabouts, due to the significant credibility issues with the witnesses.