1414027 (Migration)

[2015] AATA 3912

1414027 (Migration) [2015] AATA 3912 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Surender Sharma
Mrs Rajni Sharma
Mr Raunaq Kaushik
Mr Robbie Kaushik

CASE NUMBER:  1414027

DIBP REFERENCE(S):  BCC2013/949015

MEMBER:Don Lucas

DATE:22 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·PIC 4004 for the purposes of cl.457.224 of Schedule 2 to the Regulations

Statement made on 22 December 2015 at 9:36am

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 Immigration on 29 July 2014 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 28 June 2013. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.224 because the applicant had an outstanding debt to the Commonwealth and the delegate was not satisfied that appropriate arrangements had been made for payment, as required by public interest criterion (PIC) 4004..

4. The applicant appeared before the Tribunal on 26 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets PIC 4004 for the pourposes of cl.457.224.  This criterion requires that the applicant “does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.”

8. The information before the delegate was that the applicant had outstanding debts to the Australian Taxation Office (ATO). The applicant provided evidence in the form of two separate documents issued by the ATO, dated 12 October 2013 and 14 October 2013.

9. The 12 October 2013 letter entitled “Payment Arrangement Integrated Client Account” set out a monthly repayment schedule between 17 November 2013 and 17 August 2015, in the total sum of $6,173.84, with indication of an agreement by the ATO for an instalment plan for payment of this debt.

10. The 14 October 2013 letter entitled “Payment Arrangement Income Tax Account” set out a monthly repayment schedule between 18 November 2013 and 18 September 2015 in the total sum of $21,774.79, with indication of an agreement by the ATO for an instalment plan for payment of this debt.

11. Both ATO letters indicate that failure to meet conditions of repayment may result in the commencement of legal action without further notice.

12. In refusing the application on 29 July 2014, the delegate observed that the applicant had provided no evidence that he had honoured the arrangement made by the ATO or that any payment had been made.

13. During the review, on 29 September 2014 the applicant provided a further ATO “Payment Arrangement Integrated Client Account” document dated 11 August 2014, providing for monthly repayments between 15 August 2014 and 15 July 2016, indicating a total amount outstanding in the sum of $6,023.02.

14. On 14 April 2015, the applicant provided further ATO documentation, being an Income Tax Account Statement dated 20 March 2015,showing that the applicant’s personal tax debt was in the sum of $8,960.32 (the personal tax debt). The second ATO document dated 17 March 2015 indicated a tax debt in the name of the business of which the applicant was a proprietor in the sum of $3,614 (the business tax debt).

15. The applicant provided a further ATO document entitled income tax account statement dated 12 August 2015 indicating a total balance payable by 30 June 2016 in the sum of $7,460.32 (the personal tax debt).

16. The applicant also provided ATO document dated 7 August 2015 indicating a total business tax debt in the sum of $3,224.48.

17. The applicant has most recently provided documentation demonstrating that he presently owes a total of $2,500, being the sum of his personal tax and business tax liabilities; that he has been making regular repayments in respect of both, and that on the current schedule both relevant tax liabilities will be discharged by 15 July 2016.

18. In view of the evidence before the Tribunal that the applicant has been making regular payments in respect of both his personal tax liabilities and business tax liabilities to the ATO pursuant to agreements with the ATO, the Tribunal finds that notwithstanding the applicant’s debt to the Commonwealth, it considers that satisfactory arrangements are in place for repayment of the debt. In this regard also, the Tribunal gives weight to evidence amongst the applicant’s financial documentation of larger lump sum payments being made to the ATO in addition to regular monthly repayments in smaller sums.

19. Accordingly, the Tribunal finds on balance that the applicant has now demonstrated he satisfies PIC 4004 for the purposes of cl.457.224.

    CONCLUSIONS

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa by the primary applicant and by secondary applicants joined as members of his family unit.

    DECISION

21. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·PIC 4004 for the purposes of cl.457.224 of Schedule 2 to the Regulations

    Don Lucas
    Member