Amyes (Migration)

[2020] AATA 5460

Amyes (Migration) [2020] AATA 5460 (2 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nigel Simon Amyes
Ms Nicola Philomena Martin

CASE NUMBER:  1900051

HOME AFFAIRS REFERENCE(S):          BCC2018/1474166

MEMBER:Denise Connolly

DATE:2 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 2 November 2020 at 11:40am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – minimum taxable income requirement – fell below threshold for one income year – made redundant and worked as a contractor – classes of exempt applicants – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.233

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 19 December 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).

2. The first named applicant (the applicant) applied for the visa on 30 March 2018. The delegate refused to grant the visas on the basis that the applicant did not meet cl.189.233 because he had not provided evidence that his taxable income in the relevant four income years was no less than the minimum amount specified by the Minister, $53,900.

3. The applicants appeared before the Tribunal on 2 November 2020 by telephone to give evidence and present arguments.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review is whether the applicant meets the requirement to demonstrate that, in the relevant years, his taxable income was no less than the minimum amount specified by the Minister for the year; or that the applicant is a member of a class of exempt applicants, as specified.

   The relevant law

7. Clause 189.232 states:

   (1) The applicant has provided copies of notices of assessment, and of any notices of amended assessments, given to the 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 the application (during the period of 5 years immediately before that date).

   (2) The requirement in subclause (1) is satisfied in relation to a copy of a notice even if the copy does not include the applicant's tax file number within the meaning of Part VA of the Income Tax Assessment Act 1936.

8. Clause 189.233 states:

   (1)  For each of the 4 completed income years mentioned in subclause 189.232(1):

   (a)  the applicant’s taxable income (within the meaning of the Income Tax Assessment Act 1997) is no less than the minimum amount specified by the Minister for the year under subclause (2); or

   (b)  the applicant:

   (i)  satisfies the Minister that he or she was a member of a class of exempt applicants specified by the Minister under subclause (2) during the whole, or a specified period, of that year; and

   (ii)  provides evidence specified by the Minister under subclause (2) in relation to that class of applicants.

   (2)  The Minister may, by legislative instrument: 

   (a)  for the purposes of paragraph (1)(a), specify a minimum amount of income for an income year; and

   (b)  for the purposes of paragraph (1)(b), specify a class of exempt applicants, and evidence in relation to that class.

   Evidence to the Tribunal

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the primary decision the delegate had before her the applicant’s ATO Notices of Assessment recording the following taxable income in the income years:

   a.2013/2014 - $65,648

   b.2014/2015 - $80,518

   c.2015/2016 - $76,701

   d.2016/2017 - $41,560

10. As the applicant’s income in the 2016/2017 income year was less than the minimum amount specified by the Minister for the year under cl.189.233(2), $53,900, the delegate found cl.189.233(1)(a) was not met.

11. The delegate recorded that the applicant sought an exemption because his lower taxable income was the result of redundancy and working as a contractor until he found other employment. The delegate found however that the instrument does not provide for such circumstances and the applicant does not fall within a class of exempt applicants. She found therefore that the applicant did not meet cl.189.233(1)(b).

12. The applicant provided to the Department a written submission in which he explains that his income dropped in the 2016/2017 income year because he was made redundant halfway through the year. He then decided to start a life coaching business and did some contract work. He moved back into full-time employment less than six months later.

13. The application was made in circumstances where the second named applicant was 7½ months pregnant. As her Subclass 461 visa had expired she was Section 48 barred from applying for that visa again and had to go offshore to make a visa application. Since then she has been granted another Subclass 461 visa.

14. At the hearing the Tribunal explained the requirements of the law and that, while it was satisfied the applicant’s taxable income exceeded the threshold specified in the 2017/2018, 2018/2019 and 2019/2020 income years, the Tribunal could only look at the income years specified in the relevant instrument.

15. The Tribunal went through the various exemptions specified by the Minister with the applicant. The applicant acknowledged that none of those exemptions was relevant in his circumstances. The applicant confirmed that their son was born about 20 months ago. He had no other evidence to give. He indicated that he understood the Tribunal would need to affirm the Department’s decision.

    Assessment of evidence

16. Having regard to the date of visa application the Tribunal finds the relevant years are the 2013/2014, 2014/2015, 2015/2016 and 2016/2017 income years.

17. The Tribunal accepts the applicant’s evidence about the reasons for the reduction in taxable income to $41,560, in the 2016/2017 income year. It accepts that in the other relevant years the applicant’s income exceeded the minimum amount of $53,900 as specified by the Minister in the instrument LIN 19/191. It follows that the applicant does not satisfy the requirements in cl.189.233(1)(a).  Having applied cl.189.232(1) the Tribunal does not have the discretion to consider other income years when the applicant’s income exceeded the minimum specified.

18. As the applicant’s taxable income in the 2016/2017 income year was less than $53,900 the Tribunal must consider whether the applicant falls within a class of exempt applicants as specified by the Minister in LIN 19/191. Those exemptions in summary are as follows:

    a.Subclass 444 visa holders who were unable to meet the income requirement as they were prevented from leaving Australia to return to New Zealand because an Australian authority (Family Court of Australia) had assigned primary care of a child to the applicant and placed restrictions on the applicant from removing the child from Australia;

    b.Subclass 444 visa holders who were unable to meet the income requirement because they were receiving compensation for an injury which prevented them from earning at or above the income threshold;

    c.Subclass 444 visa holders who were unable to meet the income requirement because they were on an approved period of parental or carer’s leave from their usual employment.

19. The Tribunal accepts that the applicant’s taxable income in the 2016/2017 income year was less than the minimum specified because he was made redundant and he decided to start his own business. It accepts his evidence that he was not in receipt of income support during that time.  However these circumstances do not fall within those specified by the Minister for exempt applicants. This was acknowledged by the applicant at the hearing.

20. In relation to the exemptions provided for in the relevant instrument, the applicant has not demonstrated that any of those exemptions applies. On this basis, the Tribunal finds that cl.189.233(1)(b) is not satisfied.

21. As the applicant does not satisfy cl.189.233(1)(a) or (b), it follows that the applicant does not meet cl.189.233.  The applicant therefore does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

    Denise Connolly
    Member