Abdallah (Migration)

[2021] AATA 1930

Abdallah (Migration) [2021] AATA 1930 (26 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mohammed A H Abdallah

CASE NUMBER:  1925021

DIBP REFERENCE(S):  BCC2019/1954254

MEMBER:M. Edgoose

DATE:26 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to refuse the Parent sponsorship application.

Statement made on 26 April 2021 at 10:07am

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – criteria for approval as a parent sponsor – income test – applicable income year – most recent year before the date of lodgement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 2.60U, 2.60W

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 parent sponsor in relation to the parent sponsor class 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 17 April 2019. The delegate decided to refuse 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 26 April 2021 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Income Test

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

6. 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 LIN 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 parent sponsor.

7. Regulation 2.60W(2) requires that if an applicant seeks to combine their income with a person specified in r.2.60W(3), that applicant passes the income test if the sum of both incomes is equal to or greater than $83.454.80 for the applicable income year, and that the taxable income of the applicant is at least equal to half of that amount. 

8. In the present matter, the applicant has sought to combine his income with his partner. The Tribunal is satisfied that the applicant’s partner is a person specified in r.2.60W(3)(a).

9. The sponsorship application was made on 17 April 2019. The Tribunal finds that the applicable income year is the 2017-18 financial year.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant submitted with his application a Notice of Assessment – year ended 30 June 2018 issued by the Australian Taxation Office on 7 September 2018, which showed the taxable income of $42,720. This amount is below the amount prescribed in LIN 19/146.

11. As a part of the sponsorship application, the applicant also provided a Notice of Assessment – year ended 30 June 2018 for his partner, issued by the Australian Taxation Office on 12 September 2018. The delegate found that pursuant to that document, the taxable income was $30,312. Both incomes combined total the amount of $73,032. This is below the amount prescribed in LIN 19/146.

12. In support of the review application, the applicant provided the Tribunal with a Notice of Assessment – year ended 30 June 2019, issued by the Australian Taxation Office on 30 July 2019. This document indicates that the taxable income of the applicant is $63,985. The applicant also provided the Tribunal with a Notice of Assessment – year ended 30 June 2019, issued by the Australian Taxation Office on 30 July 2019. This document indicates that the taxable income of the applicant’s partner is $20,020. Both incomes combined total the amount of $84,005.

13. The Tribunal accepts the applicant’s evidence that his income, combined with that of his partner, 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.

14. The Tribunal finds that the applicant’s taxable income, combined with that of his partner, in the income year of 2017-18 was $73,032. The prescribed amount is $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.

15. 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.

16. Accordingly, the Tribunal affirms the decision under review.

    DECISION

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

    M. Edgoose
    Member