AHMED (Migration)

[2020] AATA 4517

AHMED (Migration) [2020] AATA 4517 (26 October 2020)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Atef Ismail El-Sayed AHMED

CASE NUMBER:  1826673

DIBP REFERENCE(S):  BCC2017/3068075

MEMBER:  Kira Raif

DATE OF DECISION:  26 October 2020

DATE CORRIGENDUM

SIGNED:  28 October 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The applicant’s date of birth at paragraph 2 of the Tribunal’s decision record should read as “May 1974” instead of “May 1984”.

Kira Raif Senior Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Atef Ismail El-Sayed AHMED

CASE NUMBER:  1826673

HOME AFFAIRS REFERENCE(S):          BCC2017/3068075

MEMBER:  Kira Raif

DATE:  26 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

·cl.189.233 of Schedule 2 to the Regulations

Statement made on 26 October 2020 at 11:42am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – minimum prescribed income for four years before application made – work-related injury and inability to work – compensation payments and access to superannuation – compensation case would have been discontinued if applicant left country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 189.232, 189.233(1)(b), (2)

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 7 September 2018 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

1. The applicant is a national of New Zealand, born in May 1984. The applicant applied for the visa on 25 August 2017. The delegate refused the application on the basis that the applicant did not meet cl. 189.233 because the delegate was not satisfied the applicant had the minimum prescribed income in the four years before the application was made. The applicant seeks review of the delegate’s decision.

1. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. The applicant appeared before the Tribunal on 19 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Relevant law

1. The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, cl.

   189.233 requires an applicant to have an amount of taxable income that is no less than the minimum amount specified by the Minister in the relevant period. There are some exemptions to that provision, which include reduced income due to an injury.

Did the applicant have the required amount of taxable income in the relevant period?

1. According to Clause 189.232(1), the relevant period is the four most recently completed income years before the date of the application. As the application was made in August 2017, the Tribunal finds that the relevant period is between July 2013 and June 2017. The Legislative Instrument IMMI17/035 specifies the income threshold, for the purpose of cl. 189.233(2) as $53,900.

1. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant presented evidence of his income, during the relevant period, as follows

2013-14	$46,397
2014-15	$457
2015-16	$76,513

2016-17  not provided.

1. The applicant provided the Notices of Assessment for the four years and a statement from an accountant indicating it was ‘not necessary’ to lodge a tax return in 2017.

1. The delegate noted that in the 2014, 2015 and 2017 financial years, the applicant’s income was below the requisite amount. The applicant stated in his submission to the delegate that he was injured at work in March 2012 and was receiving compensation, which prevented him from earning at the threshold level or above. In support of his claim, the applicant provided a letter from Centrelink inviting him to contact Centrelink concerning his compensation payment, a statement from Centrelink which outlines the payment of benefits and a medical certificate which states that the applicant was treated for compensable injuries between March 2012 and 2017.

1. The delegate noted that there was no evidence that between 2012 when the injury occurred, and 2017 when the applicant received a lump sum compensation payment, the applicant was prevented from earning the requisite income because he was receiving compensation or that his ongoing rehabilitation or compensation would have been discontinued if the applicant returned to New Zealand. The delegate also noted that the applicant failed to provide evidence of his income for 2017, contrary to cl. 189.232.

1. The applicant provided a number of documents to the Tribunal, which included evidence relating to the compensation claim, a copy of the consent judgment relating to the payment of compensation dated April 2017, evidence of payments the applicant received from Centrelink and other materials. In his written submission to the Tribunal the applicant referred to his qualifications and employment, as well as the study he completed in Australia. The applicant stated that he reported instances of abuse and as a result, he was targeted and harassed, which resulted in the workers compensation case against his employer.

1. The applicant outlined his concerns with the primary decision. The applicant notes that he received a lump sum payout in 2017 and could not work between 2012 and 2017. He stated that the funds shown in his tax assessments was his compensation claim and not income from work.

1. The applicant told the Tribunal in oral evidence that he was injured in 2012 and received a lump sum in 2017. In 2014 and 2015 he received payments for annual leave and other leave entitlements. In 2016 he exhausted his savings and did not want to approach Centrelink, so he requested access to his superannuation and he also received an AMS payment, which was part of the compensation. In 2017 he did not earn any income so it was not necessary for him to lodge a tax return and the tax office was aware of it. He was given a statement from the Tax Office stating it was “not necessary” for him to lodge a tax return. The applicant also said that compensation payment is tax-free so it was not necessary to do a tax return.

1. The applicant confirmed that before 2017 he did not receive any compensation but he received an AMS payment, which was considered part of the compensation payment and which was deducted from the final sum. Mr Leslie, who assisted the applicant during the hearing, told the Tribunal that the final payment was a lump sum not based on future payments but for the five years the case had been going through the court.

1. The applicant said that he was undergoing rehabilitation from 2012, which included psychology therapy, cognitive behaviour therapy and sessions with his GP. These were done every fortnight or every month and were recorded by Medicare. The Tribunal questioned the applicant if the rehabilitation would have discontinued if he was return to New Zealand. The applicant said that around 2012 his mother was dying and he returned to Egypt. During this period, the insurance company discontinued the case because he

travelled overseas. The applicant said that if he left the country, his case would have discontinued.

1. The presented evidence indicates, and the Tribunal finds, that in 2012 the applicant suffered an injury as a result of which he was unable to engage in employment. The Tribunal is satisfied that as a result, between 2012 and 2017 the applicant was receiving compensation payment. The Tribunal notes that the consent orders were made in April 2017 and prior to that, the applicant was receiving AMS payments which he claims were part of the compensation payment and which were deducted from the final sum of compensation. He also accessed his superannuation because he was unable to work and earn an income. The final payment agreed to in 2017 took account of these payments made since 2012. The Tribunal is satisfied that in a period during the 5 years immediately before the date of the application, the applicant was receiving compensation for an injury which prevented him from earning at, or above, the income threshold. The Tribunal accepts that for that reason, the applicant was unable to meet the income requirement. The applicant meets paragraph

   (b) of the exemption.

1. The applicant was a holder of the Subclass 444 visa and meets paragraph (a).

1. A statement from the applicant’s personal injury lawyer provided on 26 October 2020 confirms that the applicant’s ongoing compensation process would have been jeopardised or discontinued if he had returned to New Zealand as there were various processes that needed to be completed in Australia for the purpose of the claim. Further, the applicant’s evidence is that between 2012 and 2017 he was receiving ongoing treatment in the form of fortnightly or monthly medical and psychological sessions. The Tribunal is satisfied, on balance, that the applicant meets paragraph (c) of the exemption.

1. The Tribunal finds that the applicant was a member of a class of exempt applicants specified under subclause 189.233(2). The applicant provided to the delegate and the Tribunal evidence in relation to that class, which includes an official compensation document and medical certificates. The applicant meets cl. 189.233(1)(b) and cl. 189.233.

Conclusion

1. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

DECISION

1. The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

   ·cl.189.233 of Schedule 2 to the Regulations

Kira Raif Senior Member