ANARWALA (Migration)

[2019] AATA 2175

ANARWALA (Migration) [2019] AATA 2175 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  AKHALAK AHAMAD MOHAMMED HANIF ANARWALA
SAMIRABIBI AKHALAK AHMAD ANARWALA
MOHAMMAD ASAD AKHALAK AHMAD ANARWALA
SANA ANARWALA

CASE NUMBER:  1823143

HOME AFFAIRS REFERENCE:                BCC2017/2804567

MEMBER:Lilly Mojsin

DATE:19 March 2019

PLACE OF DECISION:  Sydney

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

·cl.189.233 of Schedule 2 to the Regulations.

Statement made on 19 March 2019 at 5:30pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Notice of Assessment now provided – minimum taxable income threshold – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 189.232, 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 2 August 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. This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

3. The first named applicant (the applicant) applied for the visa on 6 August 2017.

4. 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 applicant did not satisfy cl.189.233 because the applicant had not provided evidence of his taxable income for the 2013, 2014, 2015, 2016 financial years and there was no evidence to suggest he is a member of a class of exempt applicants.

5. In reaching its decision the Tribunal did not find it necessary to invite the applicant to a hearing, as it was able to decide the review in the applicant's favour on the basis of the material before it: s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review is whether the applicant meets the requirement to demonstrate that, for certain financial years, his taxable income is 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.

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. The applicant has now provided to the Tribunal his ATO Notice of Assessments for the following financial years, 2013, 2014, 2015, 2016, 2017 and 2018.

9. Having regard to the information in the delegate's decision record and the Notice of Assessments provided by the applicant, the Tribunal is now satisfied the applicant has met the requirements of cl.189.232.

10. 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.

11. The relevant instrument is IMMI 17/035: Migration Instrument -

    Specification of Income Threshold and Exemptions for Subclass 189 Skilled – Independent Visa (New Zealand Stream)) 2017. It provides that for the purposes of cl.189.233(1)(a) the minimum amount of income for the relevant financial years in this review (2013, 2014, 2015, 2016 and 2017 financial years) is $53 900.

12. The applicant had provided the required ATO Notices of Assessment for the following years, recording the applicant's relevant taxable income:

    2013   $53 963, 2014 $60 698, 2015 $61 013, 2016 $63 755, 2017 $64 008

13. As the applicant has provided details of his income tax liability in relation to the 4 most recently completed income years before the date of the application on 8 August 2017  (during the period of 5 years immediately before that date) and his income is above $53 900 for each relevant year, the Tribunal finds that the applicant satisfies cl.189.233.

14. Given the findings above, the appropriate course is to remit the visa application 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

    · cl.189.233 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member