Han (Migration)

This matter concerned an appeal by the applicant, Mr Han, against a decision to affirm the refusal of his Skilled Independent visa (Subclass 189) under the New Zealand stream. The core of the dispute revolved around whether the applicant had met the minimum taxable income threshold for each of the four income years preceding his visa application, as required by the relevant migration regulations.

The legal issues before the Tribunal were twofold: firstly, whether the applicant's taxable income met the minimum amount specified by the Minister for each of the four completed income years, and secondly, whether the applicant could satisfy the Minister that he belonged to a class of exempt applicants, providing the specified evidence for that exemption. The applicant conceded that for the 2017-2018 income year, he had failed to earn the required minimum income, having taken time off to establish a start-up company.

The Tribunal, presided over by Jade Murphy, considered the applicant's evidence, including his Notices of Assessment and a job reference, as well as submissions from a Mr Dumas who argued for an exemption based on fairness and the applicant's entrepreneurial contributions. However, the Tribunal found that it lacked the discretion to alter the classes of exempt applicants beyond those explicitly listed in LIN 19/191, nor could it waive the minimum income requirement. The applicant's explanation for his income shortfall, while noted, did not align with any of the specified exemptions. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria under cl.189.233(1)(a) or cl.189.233(1)(b), and therefore did not meet the requirements for the Subclass 189 visa. The decision under review was affirmed.