APPLICANTS: Mrs Clare Elizabeth UrwinMr Bryan Edward Urwin

[2020] AATA 6191

Urwin (Migration) [2020] AATA 6191 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Clare Elizabeth Urwin
Mr Bryan Edward Urwin

CASE NUMBER:  1905758

DIBP REFERENCE(S):  BCC2018/527196

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 November 2020 at 1:19 pm (VIC time)

DATE OF WRITTEN RECORD:                6 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 06 December 2021 at 2:25pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – minimum taxable income requirement – four tax years immediately before lodging the application – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 27 February 2019 to refuse to grant the visa applicants Skilled Independent (Permanent) Subclass 189 visas under the Migration Act 1958 (the Act).

2. At the hearing on 19 November 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mrs Urwin, you lodged an application for a Skilled Independent visa, New Zealand visa, on 31 January 2018.  Your application was refused on 27 February 2019 because the delegate found you did not meet a criterion in clause 189.233, which is a mandatory requirement for the grant of a visa.

4. You appealed that decision to be reviewed by this Tribunal, and with your application you included a copy of the primary decision, which I have before me. 

5. Clause 189.233 requires an applicant to provide evidence that for each of the four most recently completed tax years immediately before lodging the application, they have a taxable income no less than the amount specified or that the applicant is a member of a class of exempt applicants.

6. To satisfy the income requirement in your case the relevant amount was $53,900 for each year.  In your case you provided evidence for the years ended 30 June 2014, 15, 16, 17, and, while for the years ended 2015, 16 and 17 your income very significantly exceeded the required amount, your income level for the year ended 30 June 2014, your assessable income was $39,034.

7. You were not a member of a class of exempt applicants, and the delegate therefore found you did not satisfy clause 189.233.

8. As I said, the role of the Tribunal is to take a fresh look at your application and consider whether you are eligible for the grant of the visa.  The requirement to satisfy clause 189.233 is unambiguous where it states that for each of the four completed income years the applicant's taxable income, within the meaning of the Income Tax Assessment Act, is no less than the minimum amount specified by the Minister, and that amount, as I have said, was $53,900, or that the applicant is a member of an exempt group of applicants, which you are not.

9. You have today told the Tribunal that you misunderstood the requirements and believed that the aggregate of your income being over 400,000 for those four years would have adequately covered the requirements.  Unfortunately, that is not what the legislation says in this case, and the fact your income in the year ended 30 June 2014 was below the minimum required means that you do not satisfy the requirement.

10. This is not a matter in which the Tribunal has discretion.  Having considered your circumstances and the evidence available, the Tribunal finds that you do not satisfy clause 189.233.  Consequently, the decision under review must be affirmed.

11. It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

12. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member