Dimri (Migration)

[2020] AATA 1864

Dimri (Migration) [2020] AATA 1864 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harish Dimri
Mrs Shalini Dimri
Miss Shikha Dimri
Miss Shanika Dimri
Miss Krishna Dimri

CASE NUMBER:  1822978

HOME AFFAIRS REFERENCE(S):          BCC2017/2399682

MEMBER:Denise Connolly

DATE:12 May 2020

PLACE OF DECISION:  Sydney

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

·cl.189.232 of Schedule 2 to the Regulations

·cl.189.233 of Schedule 2 to the Regulations.

Statement made on 12 May 2020 at 1:01pm

CATCHWORDS

MIGRATION – Skilled - Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – taxable income no less than minimum amount specified – evidence of income for relevant four years – income less than specified amount – exemption from requirements – unpaid leave to care for family – underpayments by employer – notices of amended assessment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 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 Home Affairs on 30 July 2018 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 5 July 2017. The delegate refused to grant the visa on the basis that the applicant did not meet cl.189.233 because he had not provided evidence that his taxable income in the relevant 4 income years (the relevant years) was no less than the minimum amount specified by the Minister.

3. The applicants appeared before the Tribunal on 5 May 2020 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present review is whether the applicant meets the requirement to demonstrate that, in the relevant years, his 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.

6. Clause 189.232 states:

   (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.

7. Clause 189.233 states:

   (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.

8. The Tribunal finds the relevant years are the 2014, 2015, 2016 and 2017 income years.

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the primary decision the delegate had before him the applicant’s ATO Notices of Assessment recording the following taxable income in the income years:

   a.2016/2017 - $43,908;

   b.2015/2016 - $55,019;

   c.2014/2015 - $50,205; and

   d.2013/2014 - $51,221.

10. As the applicant’s taxable income in the 2016/2017, 2014/2015 and 2013/2014 income years was less than the minimum amount specified by the Minister for the year under cl.189.233(2), $53,900, the delegate found cl.189.233(1)(a) was not met.

11. The delegate recorded that the applicant sought an exemption because the combined family income exceeded $100,000 per year. The delegate accepted that this was the case but noted the law requires that the applicant’s individual taxable income is considered and there is no provision to accept a combined family income for the purposes of cl.189.233(1)(a).

12. The delegate also noted that the applicant sought to rely on income in the 2017/2018 income year but this is not a relevant income year.

13. The applicant submitted evidence that his daughter was born on 21 November 2013 and due to complications spent time in intensive care. The applicant then needed to take time off work to care for his family. He provided a birth certificate for his daughter and a letter from Rooty Hill Medical & Dental Centre in support of his claim that he had taken time off work to care for his children and partner  The delegate accepted that the applicant met the requirements to be a member of a class of exempt applicants in the 2013/2014 income year.

14. The delegate noted for the 2014/2015 income year the applicant stated the company he worked for closed down and he was not given a group certificate for his holiday pay. He submitted evidence showing email communication about the pay. The delegate was not satisfied an underpayment met the criteria for an exemption.

15. With respect to the 2016/2017 income year the applicant made no claims regarding exemptions and the delegate was not satisfied the applicant met the criteria for an exemption for that year.

16. As the applicant was not found to fall within a class of exempt applicants for each of the years that his income was less than the minimum amount specified by the Minister, the delegate found cl.189.233(1)(b) was not met, and the delegate refused the visa applications.

17. When making the review application the applicant provided to the Tribunal evidence regarding his qualifications, and his taxable income in the relevant years.

18. The applicant provided a Notice of amended assessment - year ended 30 June 2017 recording that the applicant’s taxable income in the 2016/2017 year was $54,008.

19. The applicant provided a Notice of assessment for the financial year 2017/2018 for the second named applicant recording taxable income of $70,248.

20. The applicant provided a statutory declaration stating that his former employer, Brioche Bakery Ltd had failed to provide all group certificates for payments made in the 2014/2015 financial year. The business closed down a month after his resignation. They paid him a lump sum but still owed him arrears as his full entitlement was not paid. He provided bank statements indicating they had previously paid him certain amounts but had failed to provide group certificates including those payments. Had they included his actual income his 2014/2015 taxable income would have exceeded the threshold. He asked that this be taken into account.

21. The applicant provided a bank statement showing that an amount of $3414 was deposited into his account on 14 August 2014. He also provided his PAYG payment summary from Coles Supermarkets for the 2014/2015 financial year showing gross payments of $51,116.

22. Prior to the hearing the applicant provided to the Tribunal a Notice of amended assessment - year ended 30 June 2015 recording that the applicant’s taxable income in the 2014/2015 year was $56,387.

23. At the hearing the Tribunal discussed with the applicant the requirements of the law. It noted the delegate had accepted that the applicant met the requirements to be a member of a class of exempt applicants in the 2013/2014 income year. It asked for further clarification regarding the circumstances in the 2013/2014 income year.

24. The applicant worked for a small café, Brioche Bakery, which closed down in 2014. He is not able to get any further information from them. He left that job in about April 2014. He explained that he had taken leave without pay earlier in that income year because of his wife’s complicated pregnancy. The baby had been in NICU for 2 to 3 days. Prior to the birth his wife had been hospitalised a few times because of complications. After his daughter was born he needed to take leave to care for his wife and baby.

25. The second named applicant explained that their daughter had been conceived while she was on contraception. She had had several miscarriages and had been advised that she would not be able to have another baby. She had very low blood pressure during the pregnancy and the baby was not growing. She was induced five weeks’ early and the baby was under 2 kg at birth. They both needed to be closely monitored. Her husband took unpaid parental leave to look after his wife and children.

26. The Tribunal asked the applicant how much unpaid carer’s leave he took in the 2013/2014 income year. He indicated he took a total of four weeks’ leave without pay which equated to about $3000 net.

    Assessment of the evidence

27. The Tribunal now has before it Notices of assessment/amended assessments recording the following taxable incomes:

    a.2016/2017 - $54,008;

    b.2015/2016 - $55,019;

    c.2014/2015 - $56,387; and

    d.2013/2014 - $51,221.

28. The Tribunal is satisfied therefore that the applicant’s taxable income in the 2015, 2016 and 2017 income years was no less than the minimum amount specified, $53,900, and for those years the applicant met cl.189.233(1)(a).

29. Based on a statutory declaration provided and medical evidence, the delegate accepted that the applicant met the requirements to be a member of a class of exempt applicants in the 2013/2014 income year. Having considered his statutory declaration, the birth certificate, the medical evidence and his and the second named applicant’s oral evidence provided at the hearing the Tribunal is also satisfied that the applicant was on an approved period of unpaid parental or carer’s leave from his usual employment for a period of about one month in the 2013/2014 income year.

30. Having regard to the applicant’s notice of assessment for the 2012/2013 financial year, the Tribunal is satisfied his taxable income was $52,166. Having regard to the relevant instrument, LIN 19/191, the Tribunal finds the minimum amount of income for the 2012/2013 income year was $51,400. Therefore the Tribunal is satisfied that immediately prior to the period of parental or carer’s leave the applicant had an annual income that was no less than the applicable minimum income specified in the instrument.

31. The Tribunal is therefore satisfied that the applicant is a member of a class of exempt applicants for the 2013/2014 income year. It is also satisfied he provided evidence specified by the Minister to demonstrate that he is a member of a class of exempt applicants, that is, a statutory declaration outlining the personal circumstances, the birth certificate of the child and a medical certificate for carer responsibilities.

32. Accordingly the Tribunal is satisfied that for the 2013/2014 income year mentioned in cl.189.232(1) the applicant is a member of a class of exempt applicants and satisfies cl.189.233(1)(b).

33. The applicant therefore satisfies cl.189.233.

34. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

35. The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

    ·            cl.189.232 of Schedule 2 to the Regulations

    ·            cl.189.233 of Schedule 2 to the Regulations.

    Denise Connolly
    Member