Kandpal (Migration)

[2021] AATA 1126

Kandpal (Migration) [2021] AATA 1126 (19 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs. Neena Kandpal

CASE NUMBER:  1932958

DIBP REFERENCE(S):  BCC2019/449392 BCC2019/4493921

MEMBER:Steven Griffiths

DATE:19 April 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Sponsor Parent (Temporary)(subclass 870) visa for reconsideration, with the direction that the applicant meets the criteria for a Subclass 870 visa

·     subregulation 2.60W(1) and (2)

Statement made on 19 April 2021 at 4:22pm

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – application for approval as sponsor – income test – combined income with husband – tax assessments for relevant financial year provided to tribunal – applicant’s share of income more than half of specified amount – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 140E
Migration Regulations 1994 (Cth), rr 2.60U(1)(f), 2.60W(1), (2)

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 30 October 2019 not to approve the applicant as a family sponsor in relation to the parent sponsor class (parent sponsor) under r. 2.60U of the Migration Regulations.

2. The applicant applied for approval as a parent sponsor under s.140E of the Migration Act 1958 (the Act) and r.2.60U of the Migration Regulations 1994 (the Regulations) on 10 September 2019. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.60U of the Regulations because she failed to pass the income test at r.2.60W. The applicant seeks review of the delegate’s decision.

3. The Tribunal notes the applicant provided, on the morning of the scheduled hearing, a response to the hearing invitation confirming that she was unwell and would not be able to take part, while requesting that her husband, who is identified in the visa application as being a person for whom his taxable income is also to be considered as part of the visa assessment, would take part on her behalf.

4. The Tribunal recognises that this transfer of representatives had not been provided to the Tribunal in the required format, while resolving, as the review application was lodged on 19 November 2019, the involvement of the husband of the applicant is detailed in the visa application and the illness of the applicant, that this change of representative was accepted  and the hearing would proceed as planned.

5. The husband of the applicant appeared before the Tribunal on 14 April 2021 to give evidence, respond to questions and present arguments. It was noted that a Hindi interpreter had been engaged to assist if the applicant had taken part, but was not required for her husband.

6. During the hearing, the Tribunal was advised that revised tax assessments for the applicant and her husband for the 2018/2019 year were now available and that these showed the income assessment requirements would be met.

7. The Tribunal requested the applicant provide copies of these revised tax assessments for the 2018/2019 year by close of business Tuesday 20 April 2021, noting the information was received on 19 April 2021.   

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

   The Income Requirement

9. Regulation 2.60U(1)(f) provides that the applicant must pass the income test at r.2.60W.

10. Under r. 2.60W(1), an applicant’s taxable income must be at least equal to the amount specified in an instrument for the income year specified in an instrument. Under r. 2.60W(2), taxable income may be combined with the income of another person. The relevant instrument in this case is Legislative Instrument 19/146. It provides the taxable income is the amount of $83,454.80 and income year as the most recent completed taxable income year prior to the date of lodgement of the application for approval a family sponsor.

11. The Tribunal notes the visa application confirmed the applicant wished to rely upon her and her husband, Mr. Deepak Shivdutt Kandpal, income as part of the assessment for the visa.

12. The application for the visa was made on 8 September 2019, with the applicant providing tax assessment notices for he and his partner for the 2017/2018 year, upon which the decision was based.

13. The Tribunal finds that the income year for the assessment of the application is the 2018/2019 financial year.

14. The Tribunal notes that the applicant has provided to the Tribunal a 2018/2019 Tax Assessment Notice for herself confirming a taxable income of $ 37,827 and this amount is below the required at least half of the amount specified in the Instrument.

15. The Tribunal notes the applicant has provided to the Tribunal a 2018/2019 Tax Assessment Notice for her husband confirming a taxable income of $ 79,149.

16. The Tribunal accepts that with the taxable income of the applicant and her husband for the 2018/2019 year is $ 116,976, which is above the amount prescribed in the Instrument, but the applicant has a taxable income less than the required at least half of the $ 83,454.80.

17. The Tribunal noted the position, and hope, of the applicant, while confirming the Tribunal is required to consider the application based on the taxable income of the applicant, or applicants, for the financial year prior to the applicant being made and that no discretion existed in that assessment, no matter what the financial situation of the parties.

18. The Tribunal notes the Decision Record of 30 October 2019 required the applicant to provide evidence of the taxable income for the financial year prior to the lodgement of the visa application being at least $ 83,454.80 and that the taxable income of the applicant be at least half.

19. The Tribunal notes the applicant provided oral evidence that that applicant and husband both have received revised tax assessments for the 2018/2019 year, and while these were not available to be presented to the Tribunal during the hearing, it was stated that the applicant now has a taxable income of approximately $ 47,000 and the taxable income of her husband has also increased.

20. The Tribunal accepts that revised 2018/2019 Tax Assessments for the applicant and her husband, received on 19 April 2021, confirm the applicant has a taxable income of $ 43,092 and her husband $ 79,249.

21. Given that the applicant now meets Legislative Instrument 19/146, with the taxable income of the applicant being at least half and the total of the taxable income is over the amount of $83,454.80 for the most recent completed taxable income year prior to the date of lodgement of the application for approval a family sponsor, the appropriate course is remit the application for the visa to the Minister to consider any remaining criteria for a Subclass 870 visa.

    DECISION

22. The Tribunal remits the application for a Sponsored Parent (Temporary)(Subclass 870) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 visa:

    ·Subregulation 2.60W(1) and (2)

    Steven Griffiths
    Member