Men (Migration)

[2021] AATA 1077

Men (Migration) [2021] AATA 1077 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Veara Men

CASE NUMBER:  1935613

DIBP REFERENCE(S):  BCC2019/5840222

MEMBER:P. Maishman

DATE:30 March 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes the decision to approve the applicant as a family sponsor in relation to the parent sponsor class.

Statement made on 30 March 2021 at 3:01pm

CATCHWORDS
MIGRATION – approval as family sponsor – parent sponsor class – income test – income combined with another person’s – applicant’s and partner’s notices of assessment for most recent financial year provided to tribunal – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140E(1A), 360(2)(a)
Migration Regulations 1994 (Cth), rr 2.60U(1)(f), 2.60W(1), (2)(a)(ii)

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 9 December 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 1994 (the 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 Regulations on 18 November 2019.

3. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.60U of the Regulations because he failed to pass the income test at r.2.60W. The applicant seeks review of the delegate’s decision.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal had before it a copy of the Department’s file.

7. The applicant gave the Tribunal a copy of the delegate’s decision record. The applicant provided copies of his and his partners 2019 notices of assessment issued by the Australian Tax Office. The Tribunal also accessed the Department’s electronic records to confirm the applicant’s partner is the holder of a Partner (Permanent) (subclass 801) visa.  

8. The issue in the present case is whether the applicant meets the requirements for approval as a parent sponsor in accordance with the criteria in r.2.60U. For the application to be approved, all of the requirements must be met: s.140E(1A). For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   The income test

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 Number 19/146. It provides that taxable income is the amount of $83,454.80 and income year is the most recent completed taxable income year prior to the date of lodgement of the application for approval as a family sponsor.

11. The Department’s file contains the Application for Family Sponsorship form. The applicant identified Keokhunnary Phang as his current partner. The Department’s file notes indicate the Department received a marriage certificate verifying the relationship. Ms Phang was granted a Partner (Residence) (subclass 801) visa on 29 June 2020. The applicant sought to combine his taxable income with his partner’s taxable income. The Tribunal is satisfied that r. 2.60W(2) applies in this case. The Tribunal is satisfied Ms Phang is the spouse or de facto partner of the applicant and is a person specified in subregulation (3) for the purposes of r.2.60W(2)(a)(ii).  

12. The Department’s file contains a copy of the applicant’s 2018 Notice of Assessment issued by the Australian Taxation Office which showed his taxable income of $78,757. The sponsor’s partner’s payslip for the pay period ended 29 September 2019 show her annual salary of $82,420 with a year-to-date salary at 29 September 2019 to be $14,222.  

13. The applicant provided to the Tribunal a copy of the primary decision record. It indicates the delegate assessed the applicant’s 2018 financial year taxable income of $78,757 only. This amount is below the amount prescribed in the Instrument.

14. However, the application was made in November 2019. Therefore, the most recent income year is the 2019 financial year and not the 2018 financial year as considered by the delegate.

15. The applicant provided the Tribunal with his 2019 Tax Assessment Notice issued by the Australian Taxation Office and in that year the applicant’s taxable income was $50,260. The applicant provided to the Tribunal his partner’s 2019 Tax Assessment Notice issued by the Australian Taxation Office and in that year her taxable income was $36,018.

16. The Tribunal finds that the relevant taxable year is 2019. The Tribunal finds the taxable income of the applicant in the relevant year is $50,260 and the taxable income of his partner in the relevant year is $36,018. The Tribunal finds the sum of the applicant’s and his partner’s taxable income exceeds the prescribed amount of $83,454. The Tribunal finds the taxable income of the applicant exceeds half the prescribed amount of $83,454.

17. The Tribunal is satisfied the applicant passes the income test at r.2.60W(2) and the requirements of r. 2.60U(1)(f) are met.

    Other requirements of r. 2.60U

18. There is nothing to indicate that 3 or more parents had been granted Subclass 870 visas and the applicant stated on the application form that he had not sponsored previously. The applicant is not an ineligible sponsor and meets r. 2.60U(1)(a). There is no evidence before the Tribunal that the applicant is an approved sponsor or that he, or his partner, have previously made such an application which has not been finally determined. The application is made in the appropriate period and was made using the specified form, accompanied by a fee and was made using the internet. The application was made in accordance with r. 2.61A. The applicant meets the requirements of r. 2.60U(1)(b). Only one person was specified in relation to the sponsorship and the applicant meets r. 2.60U(1)(c). There is nothing to suggest the specified person is not a permitted sponsored person and the applicant meets r. 2.60U(1)(d).

19. The applicant is over 18 years of age, has provided evidence of his identity and is an Australian citizen usually resident in Australia for at least 4 years before the application was made. The applicant has not held a bridging visa in that period and was not an unlawful non-citizen. The relevant permission was provided on the sponsorship forms. The Tribunal is satisfied the applicant meets the general sponsor requirements in r. 2.60V and he meets r. 2.60U(1)(e). For the reasons stated above, the Tribunal has found that the applicant meets the income test and meets r. 2.60U(1)(f).

20. The applicant provided his AFP check with the application showing no disclosable outcomes. There is no adverse information known to the Tribunal about the applicant or a person associated with the applicant. There is nothing to indicate the applicant had previously been a parent sponsor or that he failed to satisfy sponsorship obligations. The Tribunal is satisfied the applicant meets the conduct requirements in r. 2.60X and satisfies r. 2.60U(1)(g). The applicant’s 2019 income tax notice of assessment indicates his credit exceeds the debit indicated on his 2018 notice of assessment. There is nothing to indicate that the applicant has an outstanding debt to the Commonwealth. The applicant meets r. 2.60(1)(h). The applicant declared on his application that his partner is not an approved family parent sponsor. There is nothing before the Tribunal suggesting the applicant’s partner is, or has previously been, a parent sponsor. The applicant’s partner meets the partner requirements of r.2.60Z. The applicant meets r.2.60U(1)(i).

21. As such, the Tribunal is satisfied that the applicant meets the criteria for approval as a parent sponsor prescribed in r.2.60U. The Tribunal approves the applicant as a parent sponsor.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes the decision to approve the applicant as a family sponsor in relation to the parent sponsor class.

    P. Maishman
    Member