1514078 (Migration)

[2016] AATA 4095

1514078 (Migration) [2016] AATA 4095 (1 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs CHRISTA MARGARETE STUECKLER

CASE NUMBER:  1514078

DIBP REFERENCE(S):  CLF2014/114591

MEMBER:Glen Cranwell

DATE:1 July 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for an Investor Retirement (Class UY) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 405 (Investor Retirement (Temporary)) visa:

·     cl.405.228(3)(a) of Schedule 2 to the Regulations.

Statement made on 01 July 2016 at 1:05pm

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 6 October 2015 to refuse to grant the visa applicant a Investor Retirement (Class UY) Subclass 405 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 August 2014. The delegate refused to grant the visa on the basis that the applicant did not meet cl.405.228(3)(a) and (4)(a).

3. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Department’s policy manual (PAM3) states that the subclass 405 visa is intended for persons who:

   •      are of retirement age

   •      have no dependants (other than a spouse, if any)

   •      can be of benefit to Australia through significant investments in State/Territory government bonds

   •      whose presence in Australia will be without cost to Australia’s social and welfare services and

   •      are sponsored by a State/Territory government appropriate regional authority.

   It is a temporary visa with a visa period of 4 years.    

6. Clause 405.228 in the Regulations specifies one of the criteria that must be satisfied at the time of decision.  It relevantly provides as follows:

   (1)  This clause applies to an applicant if:

   (a)  the applicant is the holder of a Subclass 405 visa; or

   (b)  the last substantive visa held by the applicant since last entering Australia was a Subclass 405 visa.

   (2)  If the appropriate regional authority that sponsors the applicant indicates that the applicant and his or her spouse or de facto partner (if any) intend to live in a part of Australia the postcode of which was specified, at the time of application, in the instrument in writing for item 6A1001 of Schedule 6A or item 6D101 of Schedule 6D :

   (a)  the applicant has access to, or (if the applicant has a spouse or de facto partner) the applicant and his or her spouse or de facto partner collectively have access to, an annual net income of at least AUD50 000; and

   (b)  the applicant has made and maintained a designated investment of an amount of at least AUD250 000, in the applicant's name or in the names of the applicant and his or her spouse or de facto partner, in the State or Territory in which the appropriate regional authority that sponsors the applicant is located.

   (3)  If the appropriate regional authority that sponsors the applicant indicates that the applicant and his or her spouse or de facto partner (if any) do not intend to live in a part of Australia the postcode of which was specified, at the time of application, in the instrument in writing for item 6A1001 of Schedule 6A or item 6D101 of Schedule 6D :

   (a)  the applicant has access to, or (if the applicant has a spouse or de facto partner) the applicant and his or her spouse or de facto partner collectively have access to, an annual net income of at least AUD65 000; and

   (b)  the applicant has made and maintained a designated investment of an amount of at least AUD500 000, in the applicant's name or in the names of the applicant and his or her spouse or de facto partner, in the State or Territory in which the appropriate regional authority that sponsors the applicant is located.

   (4)  The Minister is satisfied that the resources required to satisfy subclause (2) or (3) (being any assets from which the annual income is derived and any rights to the income, and the assets by which the designated investment is funded) are legally owned and lawfully acquired by:

   (a)  the applicant; or

   (b)  the applicant's spouse or de facto partner; or

   (c)  the applicant and his or her spouse or de facto partner together.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. It is not in dispute that the applicant was granted a Subclass 405 visa on 112 August 2010, and that this is the last substantive visa held by her.  Accordingly, cl.405.228 applies to the applicant.

8. It is also not in dispute that the applicant intends to reside in a non-regional area for the purposes of the Gazette Notice for item 6A1001 of Schedule 6A.  Accordingly, cl.405.228(3)(a) applies to the applicant.

9. The Tribunal was provided with the following written submissions on 17 June 2016 (including attachments):

   Annual Net Income of at least $65,000

   1. Please see attached Challenger Guaranteed Annuity (Attachment A) in the name of Christa Stueckler which guarantees a payment of $60,000 per annum for a 4 year period until maturity at 12 April 2020 when the annuity can be renewed.

   2. Please see attached bank statements which show annual interest payments of at least:

   NAB - $6,473 per annum (min across the last 2 years) - Attachment B

   Westpac - $5.013.06 in the financial year 2014/15 — Attachment C

   3. Updated balances for these accounts are attached (Attachment C2)

   4. The Westpac account contains the money from the previous designated investment, which was held for the full term of 4 years as required by clause 405.228(3)(b) (see attachment D). If this money is applied to a new designated investments at current rates (see attachment E) it would earn approximately $8,594 per annum at 1.7188% as set out in the rates table at Attachment E.

   The sum of items 1 and 2 OR items 1 and 4 is therefore greater than the $65,000 annual income required by clause 405.228(3)(a).

   Both of the items 1 and 4 meet the evidentiary requirements as set out in the DIBP policy, as they are secured investments with a guaranteed return (see Attachment F, email from DIBP setting out departmental policy that "...interest earned on the future Designated Investment can be considered for assessment as it is a secured investment."

   I submit that the evidence supplied is sufficient to meet the policy intention of the legislation as set out in PAM that: "The various Schedule 2 "asset and income" criteria (405.227(2) and equivalent) reflect the policy intention that the applicant (and partner, if any) have sufficient assets to allow initial settlement and meet ongoing costs of living in Australia." (PAM3 re: Asset and Income Criteria)

   It is my submission that the applicant therefore meets the requirements of Clause 405.228(3)(a).

   Lawfully Acquired and Legally Owned

   Ms Stueckler (and her husband, now deceased) have held the assets that generate the income in items 1, 2 and 3 above for more than two years. See attachments B, C and D. Upon Mr Stueckler's death the assets passed to Mrs Stueckler. See attachment G, H and I, respectively Mr Stueckler's death certificate, will and grant of probate to Mrs Stueckler.

   It is my submission that the evidence shows that the applicant therefore meets the requirements of Clause 405.228(4).

10. The Tribunal accepts the evidence as set out in the written submissions.

11. The Tribunal finds that, at the time of decision, the applicant has access to an annual net income of at least $65,000.  This comprises the $60,000 per annum of the Challenger Annuity, together with the other interest payments referred to.  The Tribunal therefore finds that the applicant satisfies cl.405.228(3)(a),

12. The Tribunal is satisfied that the assets from which the annual income was derived were legally owned and lawfully acquired by the applicant.  However, as no findings have been made in relation to cl.405.228(3)(b), the Tribunal is unable to make findings in relation to cl.405.228(4) as that provision also refers to the assets by which the designated investment is funded.  The Tribunal wishes to make it clear that, in the event that the applicant is found to satisfy cl.405.228(3)(b), it expects that the applicant would also be found to satisfy cl.405.228(4).

13. The matter will be remitted to the Department for consideration of the remaining visa criteria.  The Tribunal suggests that the applicant comply with any requests for further evidence from the Department in a timely manner.

    DECISION

14. The Tribunal remits the application for an Investor Retirement (Class UY) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 405 (Investor Retirement (Temporary)) visa:

    ·            cl.405.228(3)(a) of Schedule 2 to the Regulations.

    Glen Cranwell
    Member