Atkinson (Migration)

[2020] AATA 5949

Atkinson (Migration) [2020] AATA 5949 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Robert John Atkinson
Ms Cassiana Gagliastri Ribeiro
Miss Rayssa Lena Atkinson

CASE NUMBER:  1911808

DIBP REFERENCE(S):  BCC2018/5158526

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 November 2020 at 2:55 pm (VIC time)

DATE OF WRITTEN RECORD:                10 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 10 December 2020 at 4:30pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – minimum taxable income requirement – exempt class of persons – took time off to look after a child – redundancy ­– no approved period of parental or carer’s leave – 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 7 May 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 26 November 2020, 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. Mr Atkinson, you lodged this application for a Skilled Independent (Subclass 189) permanent New Zealand visa on 20 November 2018 and your application was refused on 7 May 2019, because the delegate found you did not meet a criterion in clause 189.233, which is a mandatory requirement for the grant of the visa. 

4. Clause 189.233 requires an applicant to provide evidence that for each of the four most recently completed tax years prior to the date of application they have a taxable income no less than the amount specified and in this case, that amount was $53,900 for each of those years; or the applicant is a member of a class of exempt applicants and those classes are clearly specified and we will discuss them and their specifics in a moment.

5. In your case, the delegate found that with your application, you provided evidence of income for the four years before you lodged your application, which were the years ended June 30, 2015, 2016, 2017 and 2018.  In the year ended 30 June 2015, your taxable income was $45,639, which was below the acceptable level.  In the next three years, it exceeded the minimum level, so it is only on that year of 2015 that the Department was focused, and it was on the basis that your income did not reach the minimum level that the delegate refused your application.

6. You appealed that decision to be reviewed by this Tribunal and with your application, you included a copy of the primary decision.  You told the Tribunal you had read and understood the decision and you were very clear and erudite in telling us why it had been refused.  You clearly understood it completely. 

7. 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 a 189 Skilled Independent New Zealand visa.  The requirements are unambiguous, and it states that for the four completed years, the applicant’s taxable income is no less than the minimum specified, which as I said in this case, was $53,900, or:  the applicant satisfies the Minister that he or she was a member of a class of exempt applicants specified under subclause (2) during the whole, or a specified period, of that year.

8. The clause which you claim is relevant states:

   A primary New Zealand applicant who holds a subclass 444 visa, unable to meet the income requirement for any period during the five years immediately before the date of the application, because they were on an approved period of parental, including maternity and paternity, or carer’s leave, from their usual employment.

9. So, it is under that category you make a claim for exemption and your agent says you took time off work to look after your child and therefore, should be classified under that classification, which I will come back to in a moment.

10. You have provided the Tribunal with your background history, explaining that in 2009, you reconnected with your father and came over to Australia to work with him in his business of providing residential care for youth and foster care.  In 2013, the business grew substantially, opening homes in Mt Isa and Cairns, amongst others and you received a government grant of $1.3 million per annum to run those homes.

11. Following a discussion/dispute with your father over finances and how the business was running, you told the Tribunal that on the 4th of June, without warning, he made you redundant. He did so by SMS and not face to face.  You were provided with a redundancy package of $12,000, but that meant that you were unexpectedly out of work. You were surprised and disappointed and clearly, it affected your psyche.

12. At the time, your wife was working two jobs and you became the primary care giver to your daughter which role you continued for three months before getting a job as a youth worker in September 2014. You remained in that job for a significant number of years, until you became a supervisor and a security guard for Adani, quite recently.  Between the time you were made redundant and finding a job was a period of three months, during which you did not earn any income and that is the explanation and the reason why your income for the year ending 30 June 2015, did not achieve the required level of $53,900.

13. Your agent, Mr Kalouche, provided evidence that, in my opinion, conflicted with yours.  He said you became primary care giver because your wife had to work two jobs.  That is not what you said, you said that when you were made redundant, your wife was working two jobs and Mr Kalouche says, “He took time off to look after a child”.  Well, I am not sure that being made redundant can be legitimately classified as taking time off to look after a child, but I certainly do not accept that being made redundant satisfies the definition that you were on an approved period of parental or carer’s leave from your usual employment.  I do not believe that your circumstance satisfies the requirements for exemption.

14. Mr Kalouche says, “You should look at the overall picture” and one of the other things that is noted by the Tribunal is that previous references were made to the fact that, and I think it was given as the excuse or a contributing factor to your income dropping, because your wife tragically suffered a miscarriage and it talks about the fact that you took unpaid personal leave as a prison officer, to look after the wellbeing of your family.  Well, the situation is that the evidence shows that that tragic incident came to light on 28 September 2015, which is not in the tax year relevant to this case as that would have been in the tax year of 2015/2016, which year you satisfied the requirements by meeting the minimum standards.

15. As I said earlier, the requirement to satisfy, 189.233, is unambiguous.  It requires an applicant either to have earned a minimum taxable income which in your case was $53,900, or is a member of a class of persons who are exempt.  Your income was not at a level of $53,900, but at $45,639 and as I have explained, I do not believe that you are in an exempt class of persons.  This is not a matter in which the Tribunal has discretion.

16. 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 and it is therefore the decision of the Tribunal to affirm the decision under review and this decision was made at 2.55 pm on this, 26 November 2020.

    DECISION

17. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member