Jayamanne (Migration)

[2021] AATA 1130

Jayamanne (Migration) [2021] AATA 1130 (16 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Marianne Sharmeline Jayamanne

CASE NUMBER:  2006049

DIBP REFERENCE(S):  BCC2020/621682

MEMBER:Adrienne Millbank

DATE:16 April 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to refuse to approve the applicant as a Parent Sponsor in relation to a Sponsored Parent (Temporary) (Subclass 870) visa.

Statement made on 16 April 2021 at 2:36pm

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – application for approval as sponsor – income test – income in relevant financial year below threshold – unemployed and studying for part of year – income in next financial year above threshold – intention to lodge new application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140E
Migration Regulations 1994 (Cth), rr 2.60U(1)(f), 2.60W(1), (4)

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 5 March 2020 not to approve the applicant as a sponsor under s.140E of the Migration Act 1958 (the Act).

2. The applicant applied for approval as a Parent Sponsor in relation to a Sponsored Parent (Temporary) (Subclass 870) visa on 1 March 2020. The delegate decided not to approve the application on the basis that r.2.60U(1)(f) of the Migration Regulations, which requires the applicant to pass the income test, was not met. The delegate therefore found that r.2.60U was not met. The applicant had not indicated that she had a spouse or de facto partner, or another eligible child of the permitted sponsored person, to combine incomes with. She applied for approval as a Parent Sponsor based on her income only.

3. Regulation 2.60W(1)(f) of the Migration Regulations prescribes when an applicant passes the income test based on the applicant’s taxable income only. It provides that an applicant for approval as a family sponsor in relation to the parent sponsor class passes the income test if the applicant’s taxable income, for the income year or each of the income years specified in an instrument under r.2.60W(4), is at least equal to the amount specified in such an instrument. Regulation 2.60W(4) prescribes that the Minister may, by legislative instrument, specify: (a) an amount or amounts for the purposes of r.2.60W(1); and (b) an income year or income years for the purpose of r.2.60W(1). The relevant Ministerial Instrument is ‘Migration LIN 19/146: Income Test for Sponsorship for Temporary Sponsored Parent Visa) Instrument 2019’. This specifies that the amount of income is AUD83,454.80, and it specifies the income year as the most recent completed taxable income year prior to the date of lodgement of an application for approval as a family sponsor.

4. The decision records that the applicant provided to the Department a Notice of Assessment for the relevant year, the year ended 30 June 2019, issued by the Australian Taxation Office (ATO) on 12 July 2019, which indicated a taxable income for that year of AUD60,613. This was below the amount specified for the purpose of r.2.60W(1). Therefore, the delegate found that the applicant did not meet the prescribed criteria for the family sponsorship application to be approved.

5. On 26 May 2020 the applicant wrote to the Tribunal requesting expedited processing of her review, on the basis that her application was rejected unfairly when the delegate decided that her annual income did not meet the threshold criteria required. She advised the Tribunal that she had been unemployed for a portion of the financial year ending 30 June 2019 because she had been studying. She provided a copy of a letter, dated 23 March 2020, from her employer. In the letter the employer stated that the applicant was a full‑time employee since October 2018, on an annual salary of AUD119,500. The applicant provided also a Notice of Assessment for the year ending 30 June 2020, issued by the ATO on 6 November 2020, indicating a taxable income in the financial year ending 30 June 2020 of AUD91,073.

6. On 12 October 2020 the Tribunal refused the applicant’s request, on the grounds that the case did not meet the requirements for an expedited decision.

7. The applicant appeared before the Tribunal, by telephone, on 15 April 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the income test for a Parent Sponsor for a Sponsored Parent (Temporary) (Subclass 870) visa, in relation to her sponsorship approval application lodged on 1 March 2020.

10. On 10 November 2020 the Tribunal wrote to the applicant, requesting her to provide to the Tribunal evidence that she had a taxable income of at least AUD83,454.80 in the most recent completed taxable income year prior to the date of lodgement of her sponsorship approval application.

11. On 25 March 2020 the Tribunal received a letter from the applicant, explaining that she failed to meet the income test because she was partly unemployed during the year ending 30 June 2019 because she was studying full-time. She advised in the letter that she has been employed full-time since November 2018, receiving an annual salary of AUD119,500, which is above the required threshold. She attached, as noted, a supporting letter from her employer.

12. At hearing, the Tribunal put to the applicant that the prescribed criteria for the family sponsorship application include that she met the income test for the specified year, and on the evidence, she did not meet the specified threshold for the specified year. The applicant acknowledged that she did not meet the income test for the specified year.

13. The Tribunal asked the applicant if she had considered lodging another application. The Tribunal advised the applicant that while it was not in a position to provide immigration advice, it appeared, on the evidence provided to the Tribunal, that she would now meet the income test. The applicant indicated that she intended to lodge a further application.

14. The Tribunal finds, in the information and evidence provided, that the applicant does not meet the income test for a Parent Sponsor for a Sponsored Parent (Temporary) (Subclass 870) visa for her application lodged on 1 March 2020.

    DECISION

15. The Tribunal affirms the decision to refuse to approve the applicant as a Parent Sponsor in relation to a Sponsored Parent (Temporary) (Subclass 870) visa.

    Adrienne Millbank
    Member