Lin (Migration)

[2021] AATA 1786

Lin (Migration) [2021] AATA 1786 (26 May 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Allen Lin

CASE NUMBER:  2011589

DIBP REFERENCE(S):  BCC2020/1386570

MEMBER:  M. Edgoose

DATE:  26 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to refuse the Parent sponsorship application.

Statement made on 26 May 2021 at 9:06am

CATCHWORDS

MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – criteria for approval as a parent sponsor – income test – overseas employment contract – not working or earning a taxable income in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 140E

Migration Regulations 1994 (Cth), rr 2.60U, 2.60W

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 1 July 2020 not to approve the applicant as a parent sponsor in relation to the parent sponsor class under reg 2.60U of the Migration Regulations.

1. The applicant applied for approval as a parent sponsor under s 140E of the Migration Act 1958 (the Act) and reg 2.60U of the Migration Regulations 1994 (the Regulations) on 17 April 2020. The delegate decided to refuse the application on the basis that the applicant did not satisfy reg 2.60U of the Regulations because he failed to pass the income test at reg 2.60W. The applicant seeks review of the delegate’s decision.

1. The applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

The Income Test

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

1. Under reg 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 reg 2.60W(2), taxable income may be combined with the income of another person. The relevant instrument in this case is Legislative Instrument IMMI19/146. 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 parent sponsor.

1. Regulation 2.60W(2) requires that if an applicant seeks to combine their income with a person specified in reg 2.60W(3), that applicant passes the income test if the sum of both incomes is equal to or greater than $83.454.80 for the applicable income year, and that the taxable income of the applicant is at least equal to half of that amount.

1. In the present matter, the applicant has not sought to combine his income with another.

1. The sponsorship application was made in April 2020. The Tribunal finds that the applicable income year is the 2018-19 financial year.

1. The applicant provided the Tribunal with a copy of the primary decision record. It indicates that the applicant did not provide the Department of Home Affairs with evidence of taxable income, other than an overseas employment contract. The delegate requested that the applicant provide the Department of Home Affairs with evidence of the required amount of taxable income in the form of a Notice of Assessment issued by the Australian Taxation Office. The applicant did not provide the Department of Home Affairs with the requested documentation. The delegate did not consider the applicant’s overseas employment contract as evidence of a taxable income, and accordingly refused the application.

1. In support of the review application, the applicant provided the Tribunal with a statement from the applicant (undated), as well as his overseas employment contract. The applicant did not provide the Tribunal with any other material.

1. In the applicant’s statement to the Tribunal, he explained that the reason that he was unable to provide the Tribunal with evidence of a taxable income was that throughout the period of the income year (1 July 2018 – 30 June 2019) that applicant was working in China, and therefore was not working or earning a taxable income in Australia. The applicant stated that his income in China during the income year was 720,000 Chinese Yuan, which is equivalent to approximately $147,481 AUD. The applicant provided his employment contract, which substantiated this figure. The applicant confirmed at hearing that he does not meet the requirements for this visa.

1. The applicant confirmed at hearing that he last departed Australia on 9 March 2019 and returned to China for work and to be with his family. At time of hearing and this decision the applicant has not returned to Australia.

1. The Tribunal accepts the applicant’s employment contract provided to the Tribunal. However, the Tribunal does not consider that the applicant’s overseas employment contract constitutes evidence of a taxable income for the purposes of reg 2.60W of the Regulations. Outside of the employment contract, the Tribunal has not received any official documentation or any other evidence to indicate that the applicant’s taxable income was above the taxable income required by the Instrument.

1. In order to meet the requirements of parent sponsorship as provided for in reg 2.60U, the applicant must meet all the requirements of the income test as provided for by reg 2.60W.

1. As the applicant has not provided the Tribunal with sufficient evidence of a taxable income, the Tribunal is unable to make a finding in relation to the applicant’s taxable income, and is therefore unable to find that the applicant’s taxable income is above the amount prescribed by the Instrument. Accordingly, the Tribunal is not satisfied that the applicant passes the income test and is not satisfied that the requirements of reg 2.60U(1)(f) are met.

1. As such, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a parent sponsor.

1. Accordingly, the Tribunal must affirm the decision under review.

DECISION

1. The Tribunal affirms the decision not to approve the applicant as a parent sponsor in relation to the parent sponsor class.

M. Edgoose Member