Loo-Ng (Migration)

[2019] AATA 4660

Loo-Ng (Migration) [2019] AATA 4660 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Angeline Loo-Ng
Mr Siew Ngiap Cyril Loo
Mr Conrad Jeremiah Loo
Miss Cheryl Elizabeth Loo

CASE NUMBER:  1807444

HOME AFFAIRS REFERENCE(S):           BCC2017/2897469

MEMBER:R. Skaros

DATE:16 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 16 October 2019 at 8:14am

CATCHWORDS
MIGRATION – Skilled - Independent (Permanent) (Class SI) visa – Subclass 189 – New Zealand stream – income threshold – gross and taxable income – New Zealand citizen and permanent resident – family’s contribution to the community – case referred to Minister – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2, cls 189.232, 189.233

Income Tax Assessment Act 1997 (Cth), s 4-15

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 Home Affairs on 16 March 2018 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (New Zealand stream) visas under s.65 of the Migration Act 1958 (the Act).

2. The criteria for the grant of a Subclass 189 visa in the New Zealand stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.189.233 because the delegate found that the applicant’s taxable income for the relevant income years was less than the minimum amount specified by the Minister. The delegate was also not satisfied that any of the exemptions in the relevant instrument were applicable to the applicants.

3. The first and second named review applicants appeared before the Tribunal by video on 16 July 2019 to give evidence and present arguments. The Tribunal notes that the applicant had indicated in the hearing response form that the Tribunal could take oral evidence from her employer. The Tribunal notes that as the issue in this case turned on interpretation of the meaning of ‘taxable income’, it was not necessary to take evidence from the applicant’s employer as the Tribunal accepts that the applicant has been employed in Australia and that her income is as stated in the various supporting documents.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the requirement in cl.189.233 has been satisfied.

6. Relevantly, cl.189.232 requires an applicant to provide copies of their notices of assessment, and of any notices of amended assessments, given to the applicant by the Commissioner of Taxation, of the applicant’s income tax liability in relation to the four most recently completed income years before the date of the application (during the period of five years immediately before that date). That requirement is satisfied even if the copy of the notice does not include the applicant’s tax file number.

7. In addition, cl.189.233 requires the applicant to have an amount of taxable income that is not less than the minimum amount specified by the Minister in the relevant period. There are some exemptions to that provision. The legislative instrument LIN 18/138 specifies the income threshold for the purpose of cl.189.233(2) as $53,900 in each of the relevant income years.

8. In this case, the applicant applied or the visa on 13 August 2017. The relevant income years are therefore the financial years ending 30 June 2014, 2015, 2016 and 2017. The applicant provided evidence of her employment, including PAYG payment summaries for the relevant years, to the Department together with the associated tax assessment notices.

9. Although the PAYG summaries for the relevant years indicated that the applicant’s gross payments were $57,352, $54,813, $58,299 and $59,172 – the notices of assessment issued by the Commissioner of Taxation indicated that the applicant’s taxable income in the respective years was $47,128, $44,798, $50,380 and $43,546.

10. While the applicant has provided copies of the notices of assessment for the relevant income years, as required by cl.189.232(1), the taxable income in each year, as indicated on the notices, was less than the specified income threshold of $53,900.

11. The Tribunal also notes that it received the notices of assessment for the second named applicant, Mr Siew Ngiap Cyril Loo, for the relevant income years, which indicated that his taxable income for three of the four years was above the specified income threshold of $53,900. The Tribunal notes however that Mr Loo is not a New Zealand citizen and would therefore not be able to meet the requirements for the Subclass 189 visa under the New Zealand citizen stream.

12. On review, the Tribunal received submissions and supporting documents. In the submissions, the applicant explained that the reason her net taxable income was below the threshold amount of $53,900 was because of the losses incurred on her and her spouse’s investment properties in Australia. The applicant submitted that without the losses of investment properties her taxable income would have been above the threshold amount. The applicant submitted that the Department had taken a strict view of the regulations and requested the Tribunal to consider her family’s circumstances more broadly.

13. The applicant provided information about her and her family’s financial position, which included evidence of savings, superannuation balances, ownership of properties in Australia and investments. The applicant submitted that all the applicants are financially independent and would never be a burden on Australia’s welfare system. She stated that she, her spouse and children are all gainfully employed and that they have contributed to the Australian community through their employment and community involvement. The Tribunal has had regard to these submissions and will refer to them in more detail further below.

14. At the hearing, the Tribunal discussed with the applicants the requirement in cl.189.233 and explained that on the evidence before it, it appears that the requirements are not met because the applicant’s taxable income for the relevant years was less than $53,900 and there was no evidence to suggest that any of the exemptions applied in their case. The applicant conceded that none of the exemption categories set out in the Instrument applied to them but stated that her income in each year was higher than the required $53,900.

15. The applicant provided a copy of a published article entitled “Australia offers permanent residency to 60,000 New Zealanders” which stated that New Zealanders who are in Australia as holders of a Special Category Visa could qualify for permanent residence if they have been living in Australia for the past five years and have earned the median income of $53,000 throughout their qualifying residence period and pass the mandatory health, character and security checks. The applicant stated that based on this information they believed that they qualified for the visa.

16. The Tribunal explained to the applicant that it was bound by the wording of the Regulations and that the relevant provision refers to ‘taxable income’, as defined in the Income Tax Assessment Act 1997 (ITAA), which is the assessable income less deductions: s.4-15 of ITAA. As the applicant claimed deductions when lodging her tax returns, which the Tribunal accepts included the losses on the investment properties, this reduced the income against which the applicant was liable to pay tax. As such, the applicant’s taxable income fell below the amount specified by the Minister.

17. The Tribunal considers that the applicant’s ‘taxable income’, for the purposes of cl.189.233(1)(a) is the amount identified as ‘taxable income’ on the relevant notices of tax assessment issued by the ATO to the applicant. The evidence before the Tribunal, as set out above, is that in each of the relevant years the applicant’s taxable income was less than the minimum specified amount of $53,900.

18. The Tribunal explained to the applicant that it had no discretion to take into account the losses made on the investment properties and that it must make its decision in accordance with the legislative provisions. The applicants understood the Tribunal’s explanations but noted that the strict application of the law has adversely affected their family. The applicants stated that not having Australian residency has been particularly difficult for the second named applicant as he is not a New Zealand citizen and has to keep applying for the Subclass 461 visa on the basis of being a family member of a New Zealand citizen, which sometimes takes a very long time to process and makes it difficult for the second named applicant to travel overseas on short notice, particularly whilst he is on a bridging visa as he has to keep applying for travel visas.

19. The applicants also provided detailed information about their employment and contribution to the Australian community. The Tribunal has before it supporting information from the Commonwealth Director of Public Prosecutions (CDPP) regarding the assistance provided by Mr Loo, who provided translation services, in relation to a major investigation. The Tribunal also received a letter of support from a local magistrate regarding the translation services provided by Mr Loo in various trials. The Tribunal also has before it evidence of Mr Loo’s employment as a patient transport officer. The Tribunal also has before it evidence of the applicant’s long term employment as an accounts clerk for the Teacher’s Association in WA. The applicants provided details about their involvement in various volunteer activities in Australia, including with their local church, sport association and community events.

20. The applicants also gave evidence that their children have completed their tertiary education in Australia and that they are also currently employed. Their son completed a Master in Medical Radiation Therapy and is working in regional WA, Bunbury Hospital, in the cancer unit. Their daughter completed a Bachelor of Science in Occupation Therapy and is working as an occupational therapist with a not-for-profit organisation caring for the elderly.

21. The Tribunal noted that while it understood the difficulties encountered by the family, it had no discretion in the circumstances and that only the Minister had the power to make a decision that was favourable to them.

22. The applicants requested the Tribunal to consider referring the matter to the Minister. The Tribunal indicated that it would consider referring the matter to the Minister but noted that even if it did so, it was entirely a matter for the Minister. The applicants understood. 

23. Before considering whether to refer the matter to the Minister, the Tribunal makes the following findings on the issues in this case.

24. The evidence before the Tribunal, as set out above, is that in each of the relevant years the applicant’s taxable income was less than the amount specified, being $53,900, in the relevant Instrument. It follows that the applicant does not satisfy the requirements in cl.189.233(1)(a).

25. In relation to the exemptions provided for in the Instrument, the applicants have not provided any information which suggests that any of those exemptions apply to them. Furthermore, the applicants indicated at the hearing that none of the exemptions were relevant to their circumstances. On this basis, the Tribunal finds that cl.189.233(1)(b) is not satisfied.

26. As the applicant does not satisfy cl.189.233(1)(a) or (b), it follows that the applicant does not meet cl.189.233.  The applicant therefore does not satisfy the criteria for the grant of a subclass 189 visa. As this is the only relevant subclass in this case, the decision under review must be affirmed.

27. There is no information before the Tribunal, and the applicants have not claimed, that any of the secondary applicants meet the primary criteria for the grant of the Subclass 189 visa. The secondary applicants applied for the visa on the basis of being members of the family unit of the first named applicant. Given that the first named applicant has not satisfied the requirements for the grant of the visa, it follows that the decision in respect of the secondary applicants must also be affirmed.

    Referral to the Minister

28. The applicants have requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351. This provision gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicants’ circumstances as follows.

29. The applicants have resided in Australia for over ten years. During that time they have contributed to the Australian community through their gainful employment, volunteer work and participation in local initiatives. While the applicant’s gross income from her employment has exceeded the required threshold amount in each of the relevant years, the definition of the taxable income, as discussed above, meant that she could not qualify for the visa. Mr Loo’s taxable income, despite being above the threshold amount could not be considered against the primary criteria because he is not a New Zealand citizen and the legislation does not accommodate New Zealand permanent residents even if they are members of the family of a New Zealand citizen. Combined, the first and second named applicants’ taxable income substantially exceeds the required threshold. Furthermore, they have substantial savings and investments, including two properties in Australia. The strict application of the legislation, in the circumstances of this particular case, has led to an unfortunate outcome.

30. Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal has decided to refer the matter to the Department.

    DECISION

31. The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

    R. Skaros
    Senior Member