Goordeen (Migration)

Goordeen (Migration) [2022] AATA 3445 (27 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Omelawathie Goordeen
Mr Naresh Krishandutt Goordeen
CASE NUMBER:  2111707
HOME AFFAIRS REFERENCE(S):         BCC2020/1435196
MEMBER:Alison Mercer
DATE:27 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 27 September 2022 at 1:41pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – occupation of Senior Laboratory Scientist – taxable income for the last 4 financial years – investment properties negatively geared – exemption categories – salary sacrificed amounts excluded – taxable income – decision under review affirmed
LEGISLATION
Income Tax Assessment Act 1997
Migration Act 1958, ss 48, 65, 351
Migration Regulations 1994, Schedule 2, cls 189.231 – 189.233, 189.311
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 August 2021 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (subclass 189) (Skilled – Independent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This visa is designed for, amongst others, skilled applicants who are eligible New Zealand citizens.
The first named applicant applied for the visa on 25 April 2020 nominating the skilled occupation of Senior Laboratory Scientist. The second named applicant (the first named applicant’s husband) was included as a member of her family unit.
The criteria for the grant of a subclass 189 visa in the New Zealand stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.
In the present case, the delegate refused to grant the visas because the first named applicant did not satisfy cl 189.233, which required that her taxable income was $53,900 or more for at least each of the 4 financial years prior to making the visa application. The delegate reviewed the applicant’s taxable income for the financial years 2013/14 to 2019/20 and found that the applicant’s taxable income for 2017/18 was $44,428. The delegate further found that the applicant did not fall within any of the categories of person exempt from having to meet this requirement. The delegate also refused to grant subclass 189 visas to the second named applicant as he did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 189 visa, and there was no evidence that he met the primary visa criteria in his own right.
The Tribunal received a review application from the applicants on 2 September 2021. It was accompanied by a copy of the delegate’s decision and a statement from the first named applicant, as follows:
...
Please find attached the following documents;
·Decision Record
·Income Tax Records
Please note that the decision that was made on the income thresholds for the financial years were indicated incorrectly. I have provided the attached documents to indicate the correct taxable income. You would find the documents referenced to each year the taxable income.
The decision was incorrect, as you would find that the income for each year exceed the amount of $53,900.
…
The attached documents include the first named applicant’s Australian Taxation Office (ATO) notices of assessment and tax returns for the financial years 2013/2014, 2014/2015, 2015/2016, 2016/17, 2017/18, 2018/2019, and 2019/2020.
On 28 July 2022, the Tribunal wrote to the applicants to invite them to attend a hearing to be conducted on videoconference on 17 August 2022. They were requested to provide any submissions or documents they wished to rely upon by 10 August 2022.
On 10 August 2022, the Tribunal provided her PAYG payment summaries for the following financial years, demonstrating her income for those financial years:
·2017/18: $89,614
·2018/19: $91,331
·2019/20: $85,706
·2020/2021: $93,385
The applicants appeared before the Tribunal on 17 August 2022 by videoconference to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicants. 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 videoconference. The Tribunal is satisfied that the applicants were given fair opportunity to give evidence and present arguments.
The applicants did not dispute that the figure listed on the first named applicant’s 2017/18 tax assessment notice for ‘taxable income’ was $44,428. They explained to the Tribunal that they had lived in Australia for approximately 10 years, and they both had jobs with good income. They had acquired several investment properties which were negatively geared, by which they were legitimately able to reduce their respective taxable incomes. They were generally entitled to tax credits each financial year, and believed that for 2017/18, the first named applicant’s tax credit of $22,941 should be added to the taxable income figure of $44,428, which would increase the first named applicant’s income to over the threshold amount of $53,900.
The Tribunal discussed with the applicants the fact that cl.189.233 specifically refers to ‘taxable income,’ and that that term was stated to mean what it means in the Income Tax Assessment Act (1997) (ITAA), which is essentially assessable income minus allowable deductions. It further stated that it could not look behind what the Australian Taxation Office (ATO) specifically listed as ‘taxable income’ in a person’s tax assessment notice for a particular financial year, such as by adding back in a credit for that financial year (which would in any case be applied against the following financial year) or any other financial year, if this was not listed as ‘taxable income’ by the ATO in that assessment.
The Tribunal acknowledged the applicants’ contention that their financial, employment and investment position was sound (as demonstrated in part by the first named applicant’s tax assessment notices to date), that the first named applicant’s actual income for 2017/18 exceeded $44,428, and that they had negatively geared their investment properties legitimately, but reiterated that it was obliged to apply the specific wording in the Migration Regulations, which referred in cl.189.233 to ‘taxable income’ as defined in the ITAA. It could not look behind this definition or apply a broader definition of income to reflect their financial choices. The Tribunal noted that it might be possible for the first named applicant to obtain an amended tax assessment notice for 20187/18 to reflect a higher income, but further noted that this might have implications for their tax liabilities for that (and possibly other) financial years. It strongly suggested that they seek professional accounting advice on that issue.
The Tribunal discussed with the applicants that it appeared that it would have to affirm the decision under review for the above reasons. It noted that it might be possible for the applicants to reapply but that such an application would generally have to be made offshore due to the bar imposed by s.48 of the Act on making further onshore visa applications after having a visa refused onshore. The Tribunal again advised the applicants to seek professional advice from the Department or a migration agent or lawyer about their options in this regard, including Ministerial intervention and judicial review in the event of a negative outcome at the Tribunal.
The applicants expressed the view that their case should be considered with some leniency as practically speaking, the first named applicant’s income was clearly over the threshold amount for all of the relevant years. The Tribunal confirmed with them that only the 4 complete tax years prior to the application being made could be assessed, but not ones issued after the visa application was lodged.
At the conclusion of the hearing, the Tribunal agreed to defer its decision to 31 August 2022 to enable the applicants to obtain further advice on these issues if they wished to, and undertook to consider any further material or submissions they provided.
The applicants did not provide any further submissions or material by 31 August 2022, and have not done so to date. Accordingly, the Tribunal has proceeded to make its decision on the evidence before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in the present case is whether the first named applicant has the required taxable income set out in cl.189.233(1)(a), and if not, whether she is in the class of exempted persons for the purposes of cl.189(1)(b).
The relevant provisions for a subclass 189 visa in the New Zealand permanent resident stream are set out below:
189.23 Criteria for New Zealand stream
Note:    These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 189 visa in the New Zealand stream.
189.231
(1) The applicant had been usually resident in Australia for a continuous period of at least 5 years immediately before the date of the application.
(2)  That continuous period of usual residence in Australia started on or before 19 February 2016.
189.232
(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.
189.233
(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.
The 4 most recently completed income tax years prior to the visa application date of 25 April 2020 were 2015/16, 2016/17, 2017/18 and 2018/19.
For the purposes of cl.189.232(2), the current instrument made by the Minister is LIN 21/018, which came into force from 31 May 2021, and is applicable to all visa applications not yet finally determined as at that date. It provides that $53,900 is the minimum amount of taxable income for the relevant income years (item 6). Item 7 and Schedules 1 to 4 of LIN 21/018 set out the following exemption categories for the purposes of cl.189.233(1)(b):
·   a primary applicant who holds a subclass 444 visa and was unable to meet the income requirement for any period during 5 years immediately before the date of the visa application because they were preventing from leaving Australia to return to New Zealand because the Family Court or Federal Circuit Court of Australia assigned primary care of a child to the applicant and placed restrictions on the applicant from removing the child from Australia;
·   a primary applicant who holds a subclass 444 visa and was unable to meet the income requirement for any period during 5 years immediately before the date of the visa application because they were receiving compensation for an injury which prevented them from earning at or above the income threshold, and would have their ongoing rehabilitation or compensation discontinued if the applicant returned to New Zealand;
·   a primary applicant who holds a subclass 444 visa and was unable to meet the income requirement for any period during 5 years immediately before the date of the visa application because they were on a period of approved parental leave or carer’s leave from their usual employment, and has resumed, or is expected to resume within a reasonable period, earning an income that is no less than the applicable minimum specified in item 6 (that is, $53,900 at present);
·   a primary applicant who holds a subclass 444 visa and was unable to meet the income requirement for the 2019/20 or 2020/21 income year, and seeks to be an exempt applicant for one of those income years. The exemption category applies where the applicant (a) would have likely met the minimum amount of the income requirement for the 2019/20 or 2020/21 income year if not for the effects of the COVID-19 pandemic on the Australian economy; and (b) could not meet the minimum amount of the income requirement for the 2019–20 or 2020–21 income year because of the effects of the COVID-19 pandemic on the Australian economy.
Schedules 1 to 4 of LIN 21/018 set out the specific documentary evidence that must be provided for each of the exemption categories above.
It was conceded by the applicants that the first named applicant did not fall within any of the exemption categories above, and thus could not satisfy cl.189.233(1)(b). The Tribunal so finds.
In order to succeed, the first named applicant must therefore satisfy cl.189.233(1)(a). As noted above, it was not disputed that the completed income years (as that term is defined in the ITAA) in the 5 years immediately before the applicant made her visa application on 25 April 2020 were as follows, and that her taxable income (as specifically listed in her ATO tax assessment notices, as opposed to her PAYG summary statements) was as follows:
·2015/16 - $82,527
·2016/17 - $0 [amended tax assessment notice: $58,985];
·2017/18 - $44,828 [gross payments to the applicant listed as $89,614, but this sum decreased by net losses of $45,543 in respect of rental investments]; and
·2018/19 - $69,232.
While it is apparent from the PAYG summary statement and tax assessment notice for 2017/18 that the applicant’s salary payments totalled $89,614, this is not the same as her taxable income. Her taxable income is the amount listed as such in her assessment notice: that is, $44,828.
The Tribunal is bound by the words of the legislation in Part 189 of Schedule 2 to the Regulations. They specifically refer to an applicant’s ‘taxable income,’ as that is defined in the ITAA.
The Tribunal has reviewed the relevant provisions of the ITAA. Subsection 995-1(1) of the ITAA 1997 defines ‘taxable income’ as having the meaning given by s.4-15 of the ITAA 1997, which in turn states that ‘taxable income’ is assessable income less deductions. Section 6 of the ITAA 1997 excludes salary sacrificed amounts (also known as reportable fringe benefits) from ‘assessable income.’ The Tribunal is therefore satisfied that the applicant’s ‘taxable income’ for the purposes of the ITAA and cl.189.233(1)(a) is the amount listed as taxable income on her ATO taxation assessment notices, and that the net losses attributed to her and her spouse cannot be added back in by the Tribunal to form part of her ‘taxable income.’
The Tribunal has also reviewed the Department’s Procedures Advice Manual (PAM3) (current version as at 14 August 2022) on this issue. PAM3 provides the following guidance to Departmental decision-makers:
7.8 The income requirement
Clause 189.232 and clause 189.233 outline the income requirement for the primary NZ applicant.
For applications made before 1 July 2021, the primary applicant must provide copies of a Notice of Assessment (NOA), and of any notices of amended assessments, given to them by the Commissioner of Taxation in relation to the four most recently completed income years in the period of five years immediately before the date of application – see subclause 189.232(1).
For applications made on or after 1 July 2021, applicants must provide copies of a NOA, and of any notices of amended assessments, given to them by the Commissioner of Taxation in relation to three completed income years during the period of 5 years ending immediately before the date of application – see subclause 189.232(1). One of the income years must be the income year that ended most recently before the date of application - see subclause 189.232(1A).
The requirement in subclause 189.231(1) will be met in relation to a copy of a notice of assessment even if the copy does not include the applicant’s Tax File Number (TFN) – see subclause 189.232(2).
Unless an ‘exemption’ in paragraph 189.233(1)(b) applies, for each of the completed income years mentioned in subclause 189.232(1), the applicant’s taxable income (as shown on the Notices of Assessment or re‑assessment) must be no less than the minimum amount specified by the Minister in a legislative instrument for the year under subclause 189.233(2) - see paragraph 189.233(1)(a).
The minimum amount specified by the Minister in a legislative instrument for the purpose of subclause 189.233(2) (the income threshold) is based on the primary applicant’s individual taxable income only. It must not include the taxable income of any other person such as their partner, other family members or a business. Note: that business owners will need to provide their own individual notices of assessment from the Australian Taxation Office and cannot provide details of business turnover instead.
For paragraph 189.233(1)(a), the minimum amount of income for income years from 2011-2012 to 2020-2021 are set out in legislative instrument Migration (Income Threshold and Exemptions for Subclass 189 Visa (New Zealand Stream)) Instrument (LIN 21/018) 2021
7.9 Exemption framework for the income requirement
Exemptions to the income requirement are deliberately narrow and will only apply to applicants who hold a Subclass 444 (Special Category) visa and fit into one of the categories set out in the applicable legislative instrument. These categories are as follows in relation to an applicant who is not able to meet the income requirement for any period in the 5 years immediately before the date of application:
1. (a) applicants who are prevented from leaving Australia to return to New Zealand because an Australian court order of the Family Court of Australia has assigned primary care of a child to the applicant and placed restrictions on the applicant from removing the child from Australia; or
2. (b) applicants who have the primary care of a child and the parents have agreed to a parenting plan on the understanding that the child will remain in Australia with access to all parents; or
3. applicants who are receiving compensation for an injury which prevents them earning at or above the income threshold, and if they returned to New Zealand their ongoing rehabilitation and/or compensation would be discontinued; or
4. applicants who are on an approved period of parental (including maternity or paternity) or carer’s leave from their usual employment; and immediately prior to the period of leave, had an annual income that was not less that the applicable minimum amount; and have resumed, or intend to resume within a reasonable period, earning an income that is no less that the applicable minimum amount; or
5. applicants who would have likely met the income requirement for the 2019-2020 income year, if not for the effect of the COVID-19 pandemic on the Australian economy, and as a result of the COVID-19 pandemic could not meet the income requirement for the 2019‑20 income year.
Note: Exemptions for applicants whose personal circumstances are not addressed by the exemption framework described above cannot be considered for an exemption for the income requirement.
In addition to providing copies of their NOAs (clause 189.232), applicants seeking to meet the exemption criteria must also supply evidence to support their claims which may include one of the following:
1. (a) and (b) Parenting order / registered parenting plan / written parenting plan / consent order

Applicants who have primary care of a (minor) child and are prevented from removing the child from Australia by a parenting order or parenting plan will need to provide any of the following documents as evidence that assigns primary care to the applicant, and is signed by all parents, or has a court seal attached:
·     a parenting order from an Australian court;
·     a registered/written parenting plan signed by both parents,; or
·     consent order from an Australian court.
2. Unable to work due to injury

Applicants who are unable to work due to injury and are receiving compensation and would have ongoing rehabilitation or compensation discontinued if the applicant returned to New Zealand will need to provide any of the following documents as evidence:
·     a statutory declaration from the applicant outlining their personal circumstances;
·     a statutory declaration from the applicant’s employer advising on a return date to work and the applicant’s income amount;
·     a medical certificate for the applicant;
·     official compensation documentation relating to the applicant; or
·     official rehabilitation documentation relating to the applicant.
3. Maternity, paternity or carer’s leave

Applicants who have taken maternity, paternity or carer’s leave from the applicant’s usual employment during one or more of the five financial years immediately prior to the date of applying for the Subclass 189 visa will need to provide any of the following documents as evidence:
·     a statutory declaration from the applicant outlining the applicant’s personal circumstances;
·     a statutory declaration from the applicant’s employer advising on a return to work date and the applicant’s income amount;
·     birth certificate for the applicant’s child;
·     a medical certificate for carer responsibilities; or
·     a notice of approved parental leave
Applicants who have taken maternity, paternity or carer’s leave seeking to meet the exemption criteria must meet this requirement in each applicable income year.
4. COVID-19 concession:

Applicants seeking to apply for an income exemption on the basis of having their income negatively impacted by the COVID-19 pandemic must submit either of the following documents as evidence:
·     a signed letter written on company letterhead by the applicant's current or former employer stating the applicant’s salary before 1 February 2020; or
·     the applicant’s pay slips, salary advices or employment contracts (stating the applicant’s salary) for a period in the 2019–20 income year to demonstrate that the applicant was likely to meet the income threshold in the 2019–20 income year;
AND in addition to one of the documents mentioned above, any one of the following documents:
1. Statutory declaration – applicant’s 2019-20 taxable income has reduced
·     a statutory declaration by the applicant’s employer acknowledging the applicant’s 2019–20 taxable income has reduced, due to:
i. reduced availability of shifts/hours resulting in a drop in income; or
ii. the applicant contracting COVID-19 or having caring responsibilities for a person who contracted COVID-19, preventing the applicant from working and resulted in a drop in income; or
iii. medically directed orders to self-isolate, preventing the applicant from working and resulting in a drop in income; or
iv. caring responsibilities as a result of COVID-19 pandemic shutdowns (e.g., schools, childcare centres) that prevented the applicant from working and resulted in a drop in income;
2. Statutory declaration – applicant’s employment was terminated
·     if the applicant’s employment was terminated, a statutory declaration by the applicant’s former employer stating that the circumstances of the applicant’s dismissal were related to the COVID-19 pandemic effects on the business; or
3. Documentation of access to JobKeeper Wage Subsidy
·     documentation proving that the applicant had access to the JobKeeper Wage Subsidy for a period in 2019–20 income year including any of the following:
i. employee nomination form; or
ii. other statements or documents provided by the ATO demonstrating that the applicant had access to the JobKeeper Wage Subsidy; or
iii. alternative statements provided by the ATO at the applicant’s request; or
4. Services Australia–Centrelink letters - JobSeeker
·     Services Australia-Centrelink letters showing the applicant claimed and received the JobSeeker payments for a period in 2019–20 income year.
…

The Departmental policy, while not legally binding in the way that the underlying legislation is, nevertheless supports the view that this visa category has strict requirements linked to a specific definition of taxable income, and that there are only a limited number of exemptions available.
The Tribunal has also reviewed the Explanatory Statement for the legislation that introduced the subclass 189 New Zealand stream in 2017 (the Migration Legislation Amendment (2017 Measures No.2) Regulations 2017), and the Explanatory Statement for the legislation that introduced further amendments to this stream in 2021 (the Migration Amendment (Subclass 189 Visas) Regulations 2021) (the latter amendments apply only to applications made on or after 27 February 2021; nevertheless, the Tribunal has looked at what the Statement indicates was intended in relation to the New Zealand stream). Notably, the former states that (Tribunal emphasis in bold font):
…
In particular, the Amendment Regulations:
 amend the Subclass 189 visa to create two new visa streams:
o the Points-tested stream, which substantially replicates the current Subclass 189 visa; and
o the New Zealand stream, which facilitates New Zealand citizens who are already resident in, and contributing to, Australia to become permanent residents, in accordance with the Government’s announcement on 19 February 2016. The new visa stream is broadly available to New Zealand citizens who:
 were usually resident in Australia on or before 19 February 2016; and
 since that time have continued to be usually resident in Australia for at least five years before applying for the visa; and
 have been contributing to Australia by earning a certain level of taxable income; and
 meet mandatory health, character and security criteria;
…
The latter states that:
…
This instrument amends the Migration Regulations 1994 (the Migration Regulations), to make it easier for applicants for a Subclass 189 (Skilled – Independent) visa in the New Zealand stream to satisfy the annual income requirement. The New Zealand stream of the Subclass 189 visa provides a pathway to permanent residence for long-term New Zealand citizen residents who have demonstrated commitment to Australia, and who have made and can continue to make a strong economic contribution to Australia's future.
…
While the Tribunal considers that the terms of the Regulations are clear and therefore, the Tribunal is bound to consider the applicant’s ‘taxable income’ as defined in the ITAA which is her ‘assessable income less deductions’, it acknowledges that there does seem to be some inconsistency with the purpose of this requirement and the use of the term ‘taxable income’. That is, this requirement appears to be designed to ensure that New Zealand applicants are earning sufficient income to support themselves whilst in Australia (as per Policy – see above) and contributing to the Australian economy (as per the Explanatory Statement for the legislation which introduced these requirements cited above). The Tribunal acknowledges that, by using the terminology ‘taxable income,’ it is arguable that these objectives may not be properly addressed. In this case, the applicant is clearly earning sufficient income to support herself while in Australia, has earnt income more than the income threshold, and is contributing to the Australian economy, albeit paying reduced tax in certain years by accessing legitimate tax reduction schemes. The Tribunal notes that this tension is evident in most of the exemptions in LIN 21/018 being centred around the ability of an applicant to earn an annual income which was more than the income threshold, and the constant references in the Explanatory Statements to the word “earn”, whereas it does not appear that a person “earns” taxable income; rather, it is a person’s assessable income which is “earnt”. While the Tribunal acknowledges this tension and is unsure why there was no provision to prevent this situation from arising, the drafters used specific terminology which is clear and which the Tribunal is bound to follow.
Accordingly, the Tribunal must find that the first named applicant does not satisfy cl.189.233(1)(a) or (b) and thus does not meet cl.189.233. It follows that the first named applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed in relation to her.
The Tribunal must also affirm the decision not to grant the second named applicant subclass 189 visas, as it finds that he does not meet the secondary visa criteria in cl.189.311 to be a member of the family unit of a person who holds a subclass 189 visa, and there is no evidence that he meets the primary visa criteria in his own right.
The Tribunal acknowledges the dismay expressed by the applicants that they should be prevented from meeting the cl.189.233 criteria due to the way in which they have legitimately structured their tax and financial affairs in Australia, particularly where the applicant earns a good salary and has done for some years. However, the Tribunal must assess their case according to the specific definitions used in the Act and Regulations for this visa subclass. The Tribunal notes that in the event of an unsuccessful review application, applicants may seek Ministerial intervention pursuant to s.351 of the Act. This section of the Act provides the Minister with a non-compellable discretion to intervene to grant a visa if he or she believes it is appropriate to do so even if a case has been unsuccessful at the Tribunal. Guidelines for the exercise of the Minister’s power pursuant to s.351 (and ss.391, 417,454 and 501J) are set out on the Department’s website and indicate that only cases with unique or exceptional circumstances should be brought to the Minister’s attention, examples of which are given: Ministerial intervention (homeaffairs.gov.au)
It remains open to the applicants to make a request to the Minister directly pursuant to s.351 of the Act to intervene in their case to grant them subclass 189 visas, if they believe that their case falls within the ‘appropriate to consider’ guidelines, and/or they believe that they have any other unique and/or compelling circumstances that would warrant the Minister’s intervention.
decision
The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.
Alison Mercer
Member

[2022] AATA 3445

27 September 2022

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