Chol (Migration)

This matter concerned an application for a Skilled Independent (Permanent) visa (Subclass 189). The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant met the income requirements for the visa.

The central legal issue was whether the applicant's taxable income for the four most recently completed income years prior to his visa application was no less than the minimum amount specified by the Minister, or if he belonged to a class of exempt applicants. This required consideration of clause 189.233 of the relevant regulations and the instrument LIN 21/018, which specified the minimum income threshold and classes of exempt applicants. A related requirement was clause 189.232(1), which mandated the provision of tax assessment notices for the relevant income years.

The Tribunal found that the applicant had not claimed to be an exempt applicant at the time of his application. The applicant's visa application was made in May 2020, meaning the relevant income years were 2015-2016, 2016-2017, 2017-2018, and 2018-2019, with a minimum income requirement of $53,900 for each year. The applicant's provided tax assessments indicated that his taxable income for the 2015-2016 income year was less than this minimum amount. While the applicant suggested he was overseas during that year, the Tribunal found that his circumstances did not align with any of the specific exemptions outlined in Schedule 1 of LIN 21/018. The Tribunal also noted it had no discretion to overlook the shortfall in income for that single year.

Consequently, the Tribunal concluded that the applicant did not meet the income requirements for the 2015-2016 income year and was not an exempt applicant for that period. As the applicant failed to satisfy the income requirements for all four preceding income years, he did not meet the primary criteria for the grant of a Subclass 189 visa. The Tribunal affirmed the decision under review.