Chol (Migration)

[2023] AATA 3051

Chol (Migration) [2023] AATA 3051 (5 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gabriel Makuol Chol

CASE NUMBER:  2111627

HOME AFFAIRS REFERENCE(S):          BCC2020/527327

MEMBER:Wan Shum

DATE:5 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 05 September 2023 at 11:00am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – one income year that his taxable income was less than the amount required – applicant is not an exempt applicant for the 2015-16 income year – applicant did not meet the income requirements for each of the 4 years immediately prior to his visa application – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 189.223, 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 26 August 2021 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. At the time the application was made, there were two alternative streams: a Points-tested stream and a New Zealand stream. The applicant applied for the Skilled - Independent (New Zealand) (Subclass 189) visa on 11 May 2020.

3. The criteria for the grant of a Subclass 189 Skilled - Independent (New Zealand) visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As the applicant made the application under the New Zealand stream, he must satisfy all of the primary criteria applicable to that stream which can be found in Subdivisions 189.21 and 189.23.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 189.233 because the applicant did not have the minimum taxable income specified by the Minister for each of the 4 years and the delegate was not satisfied that he was a member of a class of exempt applicants in respect of the income year where the applicant's taxable income was less than the minimum amount.

5. The applicant appeared before the Tribunal on 5 September 2023 to give evidence and present arguments in respect of his matter.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant’s taxable income (within the meaning of the Income Tax Assessment Act 1997) for the 4 most recently completed income years before the application was made was no less than the minimum amount specified by the Minister or was a member of a class of exempt applicants specified by the Minister: cl 189.233. The minimum amount and classes of exempt applicant are specified in instrument LIN 21/018.

8. A related requirement is cl 189.232(1) which requires that 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).

9. The applicant did not claim to be in a class of exempt applicants when making the visa application and the Tribunal will first consider whether his annual income is not less than the minimum amount specified in each of the 4 most recently completed income years before the date of the application. As the applicant made the application in May 2020, the 4 most recently completed income years prior were income years 2015-2016 2015-2016, 2016-2017, 2017-2018, and 2018-2019. For each of these income years, the Minister has specified that the minimum amount of income was $53,900.

10. The applicant had provided copies to the Department of his notices of assessment for years ended 30 June 2014, 2015, 2016, 2017, 2018, 2019 and 2020. The taxable income for the income years 2015-2016 2015-2016, 2016-2017, 2017-2018, and 2018-2019 are set out in the table:

11.      Completed Income Year	12.      Applicant’s taxable income	13.      Required Minimum Income
14.      2015-2016	15.      $15,013	16.      $53,900
17.      2016-2017	18.      $72,893	19.      $53,900
20.      2017-2018	21.      $86,688	22.      $53,900
23.      2018-2019	24.      $106,964	25.      $53,900

1. The applicant claims, and provided evidence, that he had travelled overseas during income year 2015–2016. However, the applicant must provide evidence that his income is at least the minimum in each of the 4 income years to meet the requirements of cl 189.233(a) or, alternatively, that he is in a class of exempt persons during the whole, or part of that year, for cl 189.233(b). The class of exempt persons is set out in Schedule 1 of the relevant instrument, which in this case is LIN 21/018.

2. During the hearing, the applicant agreed that the taxable income amounts listed in the table are correct which means he does not meet the requirements of cl 189.233(a) for income year 2015-2016. As to whether he was in a class of exempt persons for that year, the Tribunal explained that the exemptions were specified by the Minister, and it could not find an exemption existed unless the applicant met the circumstances that were specified and provided the evidence required. The Tribunal read out each of the exemptions to the applicant noting that his circumstances did not match any of the specified exemptions in items 1 to 4 of Schedule 1 of the applicable instrument. The applicant requested that the Tribunal exercise its power or discretion as it was only one income year that his taxable income was less than the amount required. However, the Tribunal does not have power to do so and does not have any discretion to find that the applicant would otherwise have met the minimum taxable income for the 2015-16 income year based on the circumstances that he has described. Given this, the Tribunal finds that the applicant is not an exempt applicant for the 2015-16 income year.

3. Given the applicant did not meet the income requirements for each of the 4 years immediately prior to his visa application, the Tribunal finds that the applicant does not satisfy cl 189.233. It follows that the applicant does not satisfy the primary criteria for the grant of a Subclass 189 visa. As this is the only relevant stream in this case, the decision under review will be affirmed.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

   Wan Shum
   Member