MANDI (Migration)

[2023] AATA 3950

MANDI (Migration) [2023] AATA 3950 (23 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mehdi MANDI

VISA APPLICANT:  Mrs Elham MANDI

REPRESENTATIVE:  Mr Kourosh Momeni (MARN: 0955242)

CASE NUMBER:  2316780

HOME AFFAIRS REFERENCE(S):          BCC2023/5200497

MEMBER:Deputy President J.L Redfern PSM

DATE:23 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 23 November 2023 at 5.40pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – family visit – brother’s serious injury – financial circumstances – connections with home country – married woman with young children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 9 September 2023. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevant to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant’s intentions to only visit Australia were genuine, having regard to her personal and economic circumstances in her home country and the current economic and future circumstances in Australia.

5. The review applicant, Mr Medhi Mandi, appeared before the Tribunal on 23 November 2023 to give evidence.  The visa applicant, Mrs Elham Mandi, also gave oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The review applicant was represented in relation to the review.

7. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. In a statement dated 9 September 2025 which accompanied the application, Mrs Mandi stated that her brother, the review applicant who is an Australian citizen, had been hospitalised in the Prince of Wales Hospital after suffering a severe spinal cord injury. He was receiving intensive rehabilitation to improve his function but was unable to return home because he had no family members to look after him. She stated that he needed a full-time carer and she wanted to travel to Sydney to assist her brother and her mother, who was granted a visa on 2 June 2023 for one year, in her brother’s rehabilitation.

10. Evidence accompanying Mrs Mandi’s application included copies of her passport, evidence of her financial status to fund her visit, the birth certificates for her two sons who are currently eight and 14 years old, her marriage certificate to her husband of 18 years, the identity card for her husband, Mr Ehsan Mirza Aghaei, a bank statement dated 17 April 2023 showing monies held in a joint bank account with the Ayandeh Bank in the sum of 2.2 billion Iranian Rial and title deeds for a property jointly owned by Mrs Mandi in Tehran for a residential apartment registered in 2017. Mrs Mandi provided an identity card for her husband, valid until October 2025, who is a Major in the Iranian Army. She also provided a copy of his passport and a payslip for her husband, which recorded that he had been employed in the Military since 18 December 2003 and had, at that stage, over 21 years’ service.

11. A letter dated 1 May 2023 was provided in support of the visa applications for Mrs Mandi and her mother to travel to Sydney ‘urgently’ to support Mr Mandi. The letter was signed by Dr Anna Lydtin, Registrar for the Acute Spinal Ward, and Social Worker, Michael Morgan, both from the Prince of Wales Hospital, and stated that Mr Mandi had been admitted to the Prince of Wales Hospital in March 2023 following a serious accident. He had suffered a severe spinal cord injury and, according to the authors of the letter, Mr Mehdi Mandi would benefit from his mother and sister being present with him while he was in hospital given the serious nature of his injury.

12. A further letter of support dated 15 June 2023 was provided by Dr Cally Richardson, Clinical Neuropsychologist, and Phoebe Johnson, Clinical Psychologist, both from the Prince of Wales Hospital. The letter stated as follows:

    Mr Mehdi Mandi is currently an inpatient at the Prince of Wales spinal injury unit (Randwick, Sydney) and has been accessing clinical psychology and neuropsychology support throughout his admission. Mr Mandi sustained a severe spinal cord injury on March 9, 2023, that has significantly impacted his life across multiple domains. Mr Mandi is receiving intensive rehabilitation to improve his functioning and regain independence. The process of adjusting to a life changing medical diagnosis such as a spinal cord injury and participating in rehabilitation is emotionally and physically challenging. Mr Mandi has reported experiencing several psychosocial difficulties during this time including low mood, loneliness, anxiety and worries about his future.

    The presence of family support during this spinal rehabilitation is known to play a vital role in helping patients cope with the stresses associated with the injury and improve outcomes. At present Mr Mandi does not have any family members in Australia, he is here alone. From a psychological perspective he would benefit from the presence of his mother and sister in Australia to provide emotional support as well as practical assistance with day-to-day tasks (e.g. self care, mobility) during this critical period. Mr Mandi’s mother has had her visa approved; however, assistance from his sister (Elham) to come to Australia to provide the social and logistical support that is necessary at this time would accelerate his reintegration back into the community. Mr Mandi’s family have not yet seen him since his injury and the emotional processing of his injury and current care needs would be best shared amongst family members.

13. After her application for the visa was refused, Mrs Mandi lodged an application for review with the Tribunal on 18 October 2021. The application was given priority and was urgently constituted.

14. Mr Mehdi Mandi participated in the hearing by Microsoft teams from the Prince of Wales Hospital. He said that he could not be discharged until care arrangements were put in place for him. His mother had not arrived yet even though she had been granted a visa because she was too old to travel to Australia by herself. A decision had been made by him and by the family not to tell his mother about his injury because of concern that she would become too distressed. His father had passed away six years ago. He has four siblings, including his sister, who live in Tehran. He has three brothers and two of his brothers have children. There are six grandchildren in the family, all living in Tehran. He was the only person in the family living in Australia.

15. Mrs Mandi participated in the hearing by telephone. She said that the sole purpose for her travel to Australia was to look after her brother and to accompany her mother. She planned to stay around 2 to 3 months. Mrs Mandi said that her mother could not travel to Australia by herself because she was old and had some mobility issues. Mrs Mandi said she had two children, one 8 years old and one 14 years old. Both attended school in Tehran. She had been married to her husband for over 18 years. They lived together in an apartment that they owned jointly in Tehran. Her husband worked in the military where he had worked for about 22 years. She said that if she travelled to Australia, she would not work or study and the only purpose in coming to Australia was to look after her brother. She said that she did not intend to stay in Australia after this and needed to return home to look after her two children. She said that she had no intention of applying for a protection visa.

16. When asked whether there was anything further that she wished to say, Mrs Mandi said that all she wanted to do was to come to Australia to visit her brother. It had been 260 days since her brother had his accident and she and her mother had been prevented from visiting him. They could not touch or cuddle him, and she did not think this was humane.

    CONSIDERATION

17. The delegate noted that Mrs Mandi was a 44-year-old married woman with two children and that she was unemployed and financially dependent on her husband. It was also noted that this was proposed to be Mrs Mandi’s first trip to Australia and that the purpose of her trip was for a family visit for a period of just over two months. There was an indirect reference to the reason for the travel, relevantly, her brother’s serious injury, to which the delegate attributed some weight. The delegate accepted that Mrs Mandi had provided evidence of her financial circumstances and was satisfied she would be able to support the proposed trip to Australia. However, the delegate was not satisfied that Mrs Mandi’s financial standing would be a strong incentive for her to abide by the conditions of the visa or to stay temporarily Australia.

18. Relevantly, the delegate was not satisfied that Mrs Mandi had demonstrated sufficient incentives to return home at the end of her stay, particularly given the ‘comparative greater economic opportunities in Australia’. The delegate noted that Mrs Mandi had a family member in Australia and considered that she had ‘closer personal ties to Australia than to her home country’. There was little attention in the decision record directed to Mrs Mandi’s children, her husband or her residence in Tehran.

19. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

20. Mrs Mandi has not previously travelled to Australia and has not held a substantive or bridging visa. As such, this matter does not assist in assessing whether Mrs Mandi genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

21. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

22. Mrs Mandi’s intended stay is for up to 3 months. She gave evidence that she does not intend to work or study in Australia and that his sole purpose in travel is to look after her brother who clearly has high care needs. I accept Mrs Mandi’s evidence and therefore find that she intends to comply with the visa conditions for a subclass 600 visa.

23. The Tribunal must also consider all other relevant matters (cl 600.211(c)). Those matters include a broad range of considerations, such as her personal circumstances, the purpose for the stay and, relevant to the facts of this case, Mrs Mandi’s connections with her home country.

24. Mrs Mandi is a married woman with young children still living in Tehran. There is evidence that she has been married for over 18 years. She says that she lives with her husband and children in Tehran. Her husband is a senior official in the Iranian Army, with which he has nearly 20 years’ service. While it is true that there are greater economic opportunities in Australia than in Iran at the present time it is unlikely that this, of itself, would be such a strong incentive for Mrs Mandi to leave her young children, her husband of many years and the rest of her family to attempt to immigrate to Australia through unlawful means by refusing to leave and subsequently claiming protection. I found Mrs Mandi to be a credible witness. Her claims are supported by the oral and documentary evidence she provided. I am satisfied that she has a very good reason to come to Australia to visit her brother and to assist him with his rehabilitation.

25. For the above reasons, I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and find that the requirements of cl 600.211 are met.

    DECISION

26. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Jan Redfern PSM
    Deputy President