Defrain (Migration)

[2021] AATA 387

Defrain (Migration) [2021] AATA 387 (9 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Zoe Louise Defrain

CASE NUMBER:  1927368

HOME AFFAIRS REFERENCE(S):          BCC2019/2375441

MEMBER:Steven Griffiths

DATE:9 February 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 visa:

·Sub regulation 2.60W(2) of the Migration Regulations; and

·Regulation 2.60(1)(f) of the Migration Regulations

Statement made 9 February 2021 at 2.21pm

CATCHWORDS

MIGRATION – Sponsored Parent (Temporary) (Class GH) – Subclass 870 (Sponsored Parent (Temporary)) – income test – applicant’s taxable income combined with other taxable incomes – applicant returned to work after maternity leave – tax returns for applicant and spouse provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), rr 2.60W(1)(f), (2)

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 to refuse to grant the applicant a Sponsored Parent (Temporary) (Class GH) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 3 May 2019. The delegate refused to grant the visa on 7 September 2019.

2. The delegate made the decision on the basis that evidence of the applicants taxable income combined with other taxable incomes, for the purposes of sub regulations 2.60W(1) and 2.60W(2), did not meet the specified amount as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 28 September 2019 the Tribunal received a documented submission from the applicant in which she details being on maternity leave until the end of December 2019 and will be retuning to work, as a school teacher, from January 2020 and her income will increase, while also stating the level of invested funds she has and the monthly income of her parents.

4. On 12 November 2020 the Tribunal received documented evidence, being summaries of the tax returns for the applicant and her spouse, for the year 2018/19, confirming the income of the applicant and her spouse was in excess of the specified amount required.

5. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 visa:

   ·Sub regulation 2.60W(2) of the Migration Regulations; and

   ·Regulation 2.60U(1)(f) of the Migration Regulations

   Steven Griffiths
   Member