1926046 (Migration)

[2021] AATA 645

1926046 (Migration) [2021] AATA 645 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926046

MEMBER:Kira Raif

DATE:2 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the applicant as a family sponsor in relation to the parent sponsor class. 

Statement made on 02 February 2021 at 9:33am

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – criteria for approval as a parent sponsor – income test – took advantage of certain tax concessions – taxable income reduced to zero – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140E
Migration Regulations 1994 (Cth), rr 2.60U, 2.60W

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 September 2019 not to approve the applicant as a family sponsor in relation to the parent sponsor class (parent sponsor) under r. 2.60U of the Migration Regulations.

2. The applicant applied for approval as a parent sponsor under s.140E of the Migration Act 1958 (the Act) and r.2.60U of the Migration Regulations 1994 (the Regulations) on 9 July 2019. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.60U of the Regulations because he failed to pass the income test at r.2.60W. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 February 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

   The income test

4. Regulation 2.60U(1)(f) provides that the applicant must pass the income test at r.2.60W.

5. Under r. 2.60W(1), an applicant’s taxable income must be at least equal to the amount specified in an instrument for the income year specified in an instrument. Under r. 2.60W(2), taxable income may be combined with the income of another person. The relevant instrument in this case is Legislative Instrument 19/146. It provides the taxable income is the amount of $83,454.80 and income year as the most recent completed taxable income year prior to the date of lodgement of the application for approval a family sponsor.

6. There is nothing to suggest that the applicant sought to combine his income with another person. The Tribunal is not satisfied that r. 2.60W(2) applies in this case.

7. The application for the visa was made in May 2019. The Tribunal finds that the income year is the 2017-18 financial year. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant submitted with his application the Tax Assessment Notice for 2018 financial year which showed the taxable income of zero. This amount is below the amount prescribed in the Instrument.

8. The applicant provided to the Tribunal statements from his accountant, [Mr A]. [Mr A] states that in 2018 the applicant sold his [business] and made a gain. In 2019 he took time to research business opportunities and purchased [another business] and started the process of setting up that business. The business started to operate in March, commenced trading in November 2020. It is stated that due to the change in activities in 2019, the applicant and his partner had a lower taxable income than in previous years but is expected that with the purchase of the new business, their income would increase. The applicant provided a further statement from [Mr A] stating that in that financial year the applicant had sold his business and took advantage of certain tax concessions, which brought his taxable income to zero. [Mr A] states that if the applicant did not rely on the concessions, his income would have been close to $260,000.

9. The Tribunal acknowledges that evidence. However, the Tribunal is of the view that it must consider the actual taxable income of the applicant and not the potential income that could have been gained, had certain other steps been taken (or not taken). The Tribunal must deal with the factual information and not mere possibilities.

10. The applicant told the Tribunal in oral evidence that he made the application in order to sponsor his parents. The applicant explained his father’s circumstances. The applicant submits that once the visa program was announced, he applied as soon as he could. The applicant states that the purpose of the visa is for him to support his parents and he is able to do that. The applicant states that he is committed and able to care for his parents and cover all their expenses during their stay in Australia.

11. The Tribunal accepts the entirety of the applicant’s evidence. The Tribunal acknowledges the applicant’s evidence that he meets the purpose of the visa by being able to securely meet his parents’ expenses. However, the legislation does not provide any discretion and does not allow the Tribunal to waive the income test requirement or to find that the applicant passes the income test otherwise than by reference to the taxable income. The legislation does not allow for consideration of the circumstances and the reasons why a person’s income may be below the prescribed amount. It is a finding of fact for the Tribunal whether the applicant has the prescribed taxable income. Either the applicant had that income or he did not. If the Tribunal finds that the applicant did not have the prescribed taxable income, it is unable to consider the reasons for it. There is no discretion with respect to the taxable income requirement.  

12. The Tribunal also accepts the applicant’s evidence that his income in the 2019 financial year was above the prescribed amount. However, as noted above, the income year is defined as the most recent year before the date of lodgement. The Tribunal is unable to consider taxable income in the subsequent years.

13. The Tribunal finds that the applicant’s taxable income in the income year was nil. The prescribed amount is approximately $83,454. The Tribunal is not satisfied the applicant passes the income test and is not satisfied the requirements of r. 2.60U(1)(f) are met. As such, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a parent sponsor. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

14. The Tribunal affirms the decision not to approve the applicant as a family sponsor in relation to the parent sponsor class.

    Kira Raif
    Senior Member