Blagdon (Migration)

[2018] AATA 2915

Blagdon (Migration) [2018] AATA 2915 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rachael Blagdon

CASE NUMBER:  1810909

DIBP REFERENCE(S):  BCC2017/3314767

MEMBER:Bridget Cullen

DATE:11 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa:

·cl.189.232 of Schedule 2 to the Regulations

·cl.189.233 of Schedule 2 to the Regulations.

Statement made on 11 July 2018 at 4:30pm

CATCHWORDS
Migration – Skilled Independent (Permanent) – Subclass 189 (Skilled Independent) – New Zealand stream – Evidence of minimum amount of income – ATO notices of assessment provided – Decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Immigration to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on 29 March 2018.

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 applicant applied for the visa on 12 September 2017 in the New Zealand stream. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.189.233 because the applicant had provided evidence of her taxable income for the 2013-14, 2014-15, and 2015-16 income years that was less than the minimum amount specified and there was no evidence to suggest she is a member of a class of exempt applicants.

5. On 27 April 2018 and 29 May 2018 the applicant provided the Tribunal with Notices of Amended Assessment issued by the Australian Taxation Office (ATO) in relation to the 2013-14, 2014-15, and 2015-16 income years.

6. In light of the new evidence received, the Tribunal is is able to make a decision without the need for a hearing and is satisfied that the criterion is met. As such, the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirement to demonstrate that, for certain financial years, her 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.

8. The relevant legislation states as follows:

   189.232

   (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.

   189.233

   (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.

   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 case (the 2014, 2015, 2016 and 2017 financial years) is $53,900.

9. The delegate's decision record, and the documents on the Department's file confirm that the applicant had provided the required ATO Notices of Assessment for the following years, recording the applicant's relevant taxable income:

   ·2016/17 $156,381;

   ·2015/16 $49,081;

   ·2014/15 $50,644; and

   ·2013/14 $49,801.

10. The delegate found that the applicant had provided a letter from her employer indicating that she had been underpaid, dating back to the 2008-09 financial year, but as she had not provided any Notices of Amended Assessment, the application was refused.

11. The applicant has now provided to the Tribunal her ATO Notices of Assessment for the relevant periods, which record the applicant’s amended taxable income as follows:

    ·2016/17 $93,951;

    ·2015/16 $55,928;

    ·2014/15 $66,452; and

    ·2013/14 $62,724.

12. Having regard to the information in the delegate's decision record and the Notices of Assessment now before it, the Tribunal is now satisfied the applicant has met the requirements of cl.189.232.

13. Having regard to the incomes recorded in those Notices of Assessment, and the minimum amount of income specified in IMMI 17/035 ($53,900), the Tribunal is satisfied 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 cl.189.233(2).

14. The Tribunal is satisfied the applicant has provided evidence that, for each of the 4 completed income years mentioned in cl.189.232(1), 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 cl.189.233(2). Accordingly, she meets the requirements of cl.189.233(1)(a) and cl.189.233 is met.

15. The Tribunal finds that the applicant satisfies cl.189.232 and cl.189.233. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

16. The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa:

    ·cl.189.232 of Schedule 2 to the Regulations

    ·cl.189.233 of Schedule 2 to the Regulations.

    Bridget Cullen
    Member