Danusantoso Da Silva (Migration)

[2021] AATA 1336

Danusantoso Da Silva (Migration) [2021] AATA 1336 (17 March 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs. Imelda Mualim Danusantoso Da Silva 

CASE NUMBER:  1926655

DIBP REFERENCE(S):  BCC2019/2520145

MEMBER:Steven Griffiths

DATE OF DECISION:  17 March 2021

DATE CORRIGENDUM

SIGNED:23 March 2021

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

1.The Tribunal removes Clause 15 from the Decision Record dated 17 March 2021 and replaces it with;

The Tribunal notes the oral evidence of the applicant that she has a brother, who resides in and is a citizen of New Zealand, and was hopeful that his income would be able to be combined with hers and her husband for the purpose of the visa application, but the legal advice she was provided with indicated this was not possible.

Steven Griffiths
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs. Imelda Mualim Danusantoso Da Silva

CASE NUMBER:  1926655

DIBP REFERENCE(S):  BCC2019/2520145

MEMBER:Steven Griffiths

DATE:17 March 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to not approve the applicant as a family sponsor in relation to the parent sponsor class.

Statement made on 17 March 2021 at 1:46pm

CATCHWORDS

MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – income test – most recent completed taxable income year prior to application – applicant stopped her salary sacrifice superannuation – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 140
Migration Regulations 1994, r 2.60W

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 on 7 September 2019 not to approve the applicant as a family sponsor in relation to the parent sponsor class (parent sponsor) under r. 2.60U of the Migration Regulations.

2. The applicant applied for approval as a parent sponsor under s.140E of the Migration Act 1958 (the Act) and r.2.60U of the Migration Regulations 1994 (the Regulations) on 13 May 2019. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.60U of the Regulations because she and her partner failed to pass the income test at r.2.60W. The applicant seeks review of the delegate’s decision.

3. The applicant was represented by her registered migration agent, Mr. Andrew Au, of Evangel Legal.

4. The applicant appeared before the Tribunal on 17 March 2021 to give evidence, respond to questions and present arguments, with the migration agent taking part.

5. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were raised by the parties on holding a Microsoft Teams hearing and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.   

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.   

   The Income Requirement

7. Regulation 2.60U(1)(f) provides that the applicant must pass the income test at r.2.60W.

8. Under r. 2.60W(1), an applicant’s taxable income must be at least equal to the amount specified in an instrument for the income year specified in an instrument. Under r. 2.60W(2), taxable income may be combined with the income of another person. The relevant instrument in this case is Legislative Instrument 19/146. It provides the taxable income is the amount of $83,454.80 and income year as the most recent completed taxable income year prior to the date of lodgement of the application for approval a family sponsor.

9. The Tribunal accepts the applicant combined her income with her partner for the purpose of the application and the Tribunal is satisfied that r. 2.60W(2) applies in this case.

10. The application for the visa was made on 13 May 2019. The Tribunal finds that the income year is the 2017/2018 financial year. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant submitted with her application the Tax Assessment Notice for 2018 financial year which showed the taxable income of $ 43,870 and that the partner of the applicant provided a 2018 PAYG Payment Summary of $ 16,479 from Centrelink. This amount is below the amount prescribed in the Instrument.

11. The Tribunal notes that the applicant provided on 17 February 2021 a January 2021 payslip indicating she had a yearly salary of $ 68,256 and a Centrelink Customer Report for her husband indicating that he had received benefits of $ 17,192 for the 2019/2020 financial year and her oral evidence that she hoped this increased amount, which is above the Taxable Income Threshold of $ 83,454.80, could be considered.

12. The Tribunal accepts the oral evidence of the applicant that in recognition of her need to increase her yearly income to give her the opportunity, combined with her husband’s income, to meet the Taxable Income Threshold, she had stopped her salary sacrifice superannuation and committed her total income, from 1 July 2020, to her yearly salary figure.

13. The Tribunal notes the Decision Record of 7 September 2019 and correspondence from the Tribunal to the applicant on 10 November 2020 refer to the applicant being required to provide evidence of the combined taxable income, for the financial year prior to the lodgement of the visa application, being at least $ 83,454.80.

14. The Tribunal accepts the oral evidence of the applicant that she now understands this requirement of the timing of the taxable income and the amount required and acknowledges that she and her husband do not have taxable income of at least the required $ 83,454.80 for the 2017/2018 financial year.

15. The Tribunal notes the oral evidence of the applicant that she has a brother, he resides in New Zealand, and was hopeful that his income would be able to be combined with that of hers and her husband, but the legal advice she was provided with indicated this was not possible as he is not a New Zealand citizen and cannot be included. The Tribunal accepts this position as being correct.

16. The Tribunal acknowledged the application was made with the intention of the applicant being able to care for her parents, who are 82 and 79 years of age.

17. The Tribunal notes from Movement Records of the parents of the applicant, who are citizens of Indonesia, have visited Australia 14 times since February 2011.

18. The Tribunal accepts the entirety of the applicant’s evidence. The Tribunal acknowledges the applicant’s evidence that she meets the purpose of the visa by being able to securely meet her parents’ expenses. However, the legislation does not provide any discretion and does not allow the Tribunal to waive the income test requirement or to find that the applicant passes the income test otherwise than by reference to the taxable income. The legislation does not allow for consideration of the circumstances and the reasons why a person’s income may be below the prescribed amount for the financial year prior to the application being lodged. It is a finding of fact for the Tribunal whether the applicant has the prescribed taxable income. Either the applicant had that income or she did not. If the Tribunal finds that the applicant did not have the prescribed taxable income, it is unable to consider the reasons for it. There is no discretion with respect to the taxable income requirement. 

19. The Tribunal finds that the applicant’s and partner taxable income in the 2017/18 income year was $ 60,352 while the prescribed amount is $ 83,454.80. The Tribunal is not satisfied the applicant passes the income test and is not satisfied the requirements of r.2.60U(1)(f) are met. As such, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a parent sponsor. Accordingly, the Tribunal must affirm the decision under review.

    decision

20. The Tribunal affirms the decision not to approve the applicant as a family sponsor in relation to the parent sponsor class.

    Steven Griffiths
    Member