Gray (Migration)

[2019] AATA 2227

Gray (Migration) [2019] AATA 2227 (12 March 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandra Gray
Mr Trevor Ely

CASE NUMBER:  1809058

DIBP REFERENCE(S):  BCC2017/2355370

MEMBER:Ian Berry

DATE:12 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant to the applicants, the Skilled Independent (Permanent)(class SI) Skilled - Independent (New Zealand) (Subclass 189) visa.

Statement made on 12 March 2019 at 11:12am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled - Independent – minimum taxable income – member of the family unit of the primary applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 189.233, 189.311

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 15 March 2018 to refuse to grant the visa applicant (Ms Gray) a Skilled Independent (Permanent) Subclass 189 visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Gray applied for the visa on 2 July 2017. The delegate refused to grant the visa on the basis that Ms Gray, in the period of 4 years before lodging her application, did not earn a taxable income of at least $53,900 in respect of the fiscal year ending 30 June 2016. Ms Gray did not come within 1 of the exemptions set out in IMMI 17/035.

3. The applicants (Ms Gray and Mr Ely) made a combined application for the visa and did appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. Both gave evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issues are twofold. Did Ms Gray have a taxable income of at least $53,900 in respect of each of the 4 full fiscal years immediately before lodging her visa? If she did not, then does she qualify for 1 of the exemptions as set out in IMMI 17/035?

6. Ms Gray and Mr Ely (the combined applicants) conducted a resort business for which they established a corporate trustee of a discretionary trust. On the advice of their accountant, the trustee decided to pay more income to the company which resulted in Ms Gray receiving less income. In this instance, her net taxable income was less than $53,900. That amount was prescribed as the minimum taxable income of the applicant applicable for that year.

7. For that reason the Tribunal found Ms Gray did not satisfy cl. 189.233.

8. Ms Gray gave evidence as to whether the exemptions in the legislative instrument IMMI 17/035 did apply. She conceded that each of the exemptions did not apply.

9. For the reasons given above, the Tribunal is not satisfied that Ms Gray is able to satisfy cl.189.233.

10. As Mr Ely relies on Ms Gray’s application succeeding, and she has not succeeded; he cannot satisfy cl.189.311 as he is not a member of the family unit of the primary applicant who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa: Cl.198.311.

    DECISION

11. The Tribunal affirms the decision not to grant to the applicants, the Skilled Independent (Permanent)(class SI) Skilled - Independent (New Zealand) (Subclass 189) visa.

    Ian Berry
    Member