Amtul Jaleel (Migration)

[2019] AATA 730

Amtul Jaleel (Migration) [2019] AATA 730 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Amtul Jaleel
Mr Akbar Ali Khan
Ms Nasheeta Akbar
Mr Arib Ali Khan
Ms Alina Akbar

CASE NUMBER:  1815608

HOME AFFAIRS REFERENCE(S):           BCC2017/4464969

MEMBER:Amanda Mendes Da Costa

DATE:10 April 2019

PLACE OF DECISION:  Melbourne

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

·cl.189.232 of Schedule 2 to the Regulations.

The Tribunal directs that the second, third, fourth and fifth named applicants meet the criteria for Subclass 189 visas as the members of the family unit of a person who has satisfied the primary criteria.

Statement made on 10 April 2019 at 9:50am

CATCHWORDS
MIGRATION – Skilled – Independent (Permanent) (Class SI) visa – Subclass 189 – provision of notices of assessment – evidence of assessments provided – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 189.232(1)

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 18 May 2018 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas 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.

2. The applicants applied for the visas on 26 November 2017.

3. 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas because the first named applicant did not satisfy cl.189.232(1).

4. Upon consideration of the information in both the files of the Department and the Tribunal, the Tribunal is satisfied it can make a decision in this matter without a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the first named applicant has provided notices of assessment and any notices of amended assessments, given to the first named applicant by the Commissioner of Taxation, of the applicant’s income tax liability in relation to the 4 most recently completed income years before the date of application (during the period of 5 years immediately before that date).

7. The Tribunal notes that the applicants’ visa application was accompanied by a copy of the first named applicant’s taxation return for the year 2016-2017.

8. On 5 February 2018 the Department requested the applicant to provide copies of notices of assessment or notices of amended assessment given to the first named applicant by the Commissioner of Taxation of the first named applicant’s tax liability for the years 2013-2014; 2014-2015; 2015-2016 and 2016-2017.

9. On 18 February 2018 the applicant provided the Department with copies of notices of assessment for the years 2012-2013 and 2013-2014.

10. On 18 June 2018 the first named applicant provided the Tribunal with copies of notices of assessment given to her by the Commissioner of Taxation for the years 2012-2013; 2013-2014; 2014-2015; 2015-2016; and 2016-2017.

11. As the first named applicant has provided copies of notices of assessment given to her by the Commissioner of Taxation of the applicant’s income tax liability in relation to the 4 most recently completed income years before the date of application (during the period of 5 years immediately before the date), the Tribunal is satisfied that the applicant meets the criteria in cl.189.232(1).

12. The Tribunal finds that the first named applicant satisfies cl.189.232.

13. In relation to the second, third, fourth and fifth named applicants, the Tribunal finds that as the first named applicant satisfies the criteria for the grant of the Subclass 189 visa, the second, third, fourth and fifth named applicants meet the criteria for Subclass 189 visas as the members of the family unit of a person who has satisfied the primary criteria.

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

    DECISION

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

    · cl.189.232 of Schedule 2 to the Regulations

    The Tribunal directs that the second, third, fourth and fifth named applicants meet the criteria for Subclass 189 visas as members of the family unit of a person who has satisfied the primary criteria.

    Amanda Mendes Da Costa
    Member