Al-Metwali (Migration)

[2024] AATA 1650

Al-Metwali (Migration) [2024] AATA 1650 (6 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Marwa Nather Ahmad Al-Metwali

CASE NUMBER:  2302308

HOME AFFAIRS REFERENCE(S):          1825659953

MEMBER:Kira Raif

DATE:6 June 2024

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 06 June 2024 at 8:35am

CATCHWORDS

MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 Sponsored Parent (Temporary) – approval as a Parent sponsor – income test – taxable income and regular Centrelink payments in the prescribed period – financial resources of the parents – future income – decision under review affirmed

LEGISLATION

Income Tax Assessment Act 1997, s 4.15
Migration Act 1958, s 140
Migration Regulations 1994, Schedule 2, cls 489.225, 489.311; rr 1.60, 2.60

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 4 February 2023 not to approve the applicant as a family sponsor in relation to the Parent sponsor class (Parent sponsor) under r. 1.60U 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 2 January 2023. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.60U of the Regulations because she 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 28 May 2024 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

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.

   Does the applicant pass the income test?

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

7. The application for approval as a Parent sponsor was made in January 2023. The Tribunal finds that the most recent completed taxable income year prior to the date of lodgement is the 2021-22 financial year.

8. The applicant provided to the Tribunal a copy of the primary decision record. The delegate also found that the most recent taxable income year was the year ending in June 2022. The applicant provided with the application the ATO Notice of Assessment, issued in August 2022, indicating that in that year the applicant’s taxable income was $81,895. The delegate found that this amount was below the amount specified in the Instrument and concluded that the applicant did not meet the requirements of r. 2.60W for approval of the sponsorship.

9. The applicant provided a number of additional documents to the Tribunal. In her statement to the Tribunal the applicant outlined her personal circumstances. With respect to her income, the applicant states that in addition to the taxable income, she also receives Child Support payments ($9,173 annually) and regular Centrelink payments ($6,939 annually). The applicant provided to the Tribunal evidence of these payments and the Tribunal accepts that the applicant received such payments.

10. Regulation 2.60W(1) refers to the taxable income which, r. 2.60W(5) states, has the meaning given by the Income Tax Assessment Act 1997. The Income Tax Assessment Act 1997 defines the term ‘taxable income’ in s. 4.15 and, essentially, relates to the assessable income with the relevant deductions. It does not include Child Support payments and Centrelink allowances. As the Tribunal discussed with the applicant during the hearing, it is open to the applicant to seek reassessment of her taxable income declared to the ATO. There is no evidence before the Tribunal that this has been done or that the applicant intends to make an application for reassessment.

11. The applicant states that her parents have a reasonable financial capacity and do not need financial sponsorship. The applicant refers to her parents’ property ownership and bank accounts. The applicant provided to the Tribunal a number of documents evidencing her parents’ financial circumstances including evidence of property ownership and bank statements, as well as evidence of her father’s income. The Tribunal accepts that evidence but is unable to take into account the visa applicants’ financial capacity in determining whether the applicant passes the income test.

12. The applicant also refers to the ‘humanity’ stating that she came to Australia [in difficult circumstances] and she refers to the separation from her parents. While the Tribunal accepts that evidence, again, it is unable to approve the sponsorship on the basis of any humanitarian considerations.

13. In her subsequent correspondence to the Tribunal the applicant provided evidence of her recent employment offer and evidence of her income in 2024. As these events occurred after the application was made, the Tribunal cannot have regard to these as evidence of the applicant’s income in the prescribed period. The applicant also provided to the Tribunal her Tax return for the 2022 financial year. The Tribunal acknowledges that evidence but the issue here is the review applicant’s income, rather than the claims she had made on the tax return. As noted above, there is no evidence that the applicant is seeking reassessment of her taxable income.

14. The Tribunal accepts the entirety of the applicant’s evidence. 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 her 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. There is no discretion with respect to the taxable income requirement. 

15. The Tribunal finds that the applicant’s taxable income in the relevant income year was $81,895. 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

16. 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