Atkinson (Migration)

The Administrative Appeals Tribunal considered an application by Mr Atkinson for a Skilled Independent (Subclass 189) permanent visa. Mr Atkinson's application had been refused by a delegate of the Department of Home Affairs because he failed to meet the mandatory income requirement under clause 189.233. This clause requires applicants to demonstrate a taxable income of at least $53,900 for each of the four most recently completed tax years prior to the date of application, unless they fall within a specified class of exempt applicants. The delegate found that Mr Atkinson's taxable income for the year ended 30 June 2015 was $45,639, which was below the required threshold.

The primary legal issue before the Tribunal was whether Mr Atkinson met the income requirement for the Skilled Independent (Subclass 189) visa, or if he qualified for an exemption. Specifically, the Tribunal had to determine if Mr Atkinson was a member of the class of exempt applicants defined in subclause (2). This exemption applies to a primary New Zealand applicant who holds a subclass 444 visa and was unable to meet the income requirement for any period during the five years immediately before the application date because they were on approved parental or carer's leave from their usual employment. Mr Atkinson contended that he should be classified under this exemption because he took time off work to care for his child.

The Tribunal reviewed Mr Atkinson's circumstances, noting his work in his father's youth and foster care business since 2009, which had expanded significantly by 2013. The Tribunal acknowledged that Mr Atkinson understood the reasons for the initial refusal. The Tribunal's role was to conduct a fresh assessment of his eligibility. The Tribunal considered the specific wording of the exemption clause, which requires the applicant to have been on approved parental or carer's leave from their *usual employment*. The Tribunal's reasoning focused on whether Mr Atkinson's absence from work constituted approved parental or carer's leave from his usual employment, as contemplated by the exemption.