Mitchell (Migration)

[2020] AATA 2079

Mitchell (Migration) [2020] AATA 2079 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Linda Mitchell

CASE NUMBER:  1808885

HOME AFFAIRS REFERENCE(S):          BCC2017/3031840

MEMBER:Denise Connolly

DATE:30 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 30 April 2020 at 1:48pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – provision of Notices of Assessment ­­­– minimum taxable income requirement – redundancy – not within class of exempt applicants – no discretion to waive requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 189.232, 189.233

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 29 March 2018 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 August 2017. The delegate refused to grant the visa on the basis that the applicant did not meet cl.189.233 because she had not provided evidence that her taxable income in the relevant four income years was no less than the minimum amount specified by the Minister.

3. The applicant appeared before the Tribunal on 30 April 2020, by conference telephone, to give evidence and present arguments. Her former work colleague and character referee, Ms Andrea Chivers, also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the requirement to demonstrate that, in the relevant years, her taxable income is no less than the minimum amount specified by the Minister for the year; or that the applicant is a member of a class of exempt applicants, as specified.

   The relevant law

6. Clause 189.232 states:

   (1) The applicant has provided copies of 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 4 most recently completed income years before the date of the application (during the period of 5 years immediately before that date).

   (2) The requirement in subclause (1) is satisfied in relation to a copy of a notice even if the copy does not include the applicant's tax file number within the meaning of Part VA of the Income Tax Assessment Act 1936.

7. Clause 189.233 states:

   (1) For each of the 4 completed income years mentioned in subclause 189.232(1):

   (a) the applicant's taxable income (within the meaning of the Income Tax Assessment Act 1997) is no less than the minimum amount specified by the Minister for the year under subclause (2); or 

   (b) the applicant:

   (i) satisfies the Minister that he or she was a member of a class of exempt applicants specified by the Minister under subclause (2) during the whole, or a specified period, of that year; and

   (ii) provides evidence specified by the Minister under subclause (2) in relation to that class of applicants.

   (2) The Minister may, by legislative instrument:

   (a) for the purposes of paragraph (1)(a), specify a minimum amount of income for an income year; and

   (b) for the purposes of paragraph (1)(b), specify a class of exempt applicants, and evidence in relation to that class.

   Evidence to the Department

8. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the primary decision the delegate had before her the applicant’s ATO Notices of Assessment recording the following taxable income in the income years:

   a.2016/2017 – NOT PROVIDED;

   b.2015/2016 - $170,887;

   c.2014/2015 - $141,504; and

   d.2013/2014 - $127,330.

9. The delegate noted the applicant provided evidence that she was not required to lodge a tax return in the 2016/2017 income year. As the applicant’s income in the 2016/2017 income year was less than the minimum amount specified by the Minister for the year under cl.189.233(2), $53,900, the delegate found cl.189.233(1)(a) was not met.

10. The applicant provided an ATO printout declaring that she had no obligation to lodge an income tax return for the 2016/2017 income year. She advised that she was employed by Newcrest Mining from October 2005 to February 2016 when she was made redundant.  The delegate found that redundancy does not fall within a class of exemptions, and therefore cl.189.233(1)(b) was not met.

11. After making the review application the applicant provided documents relating to her taxable income from 2007/2008 through to 2018/2019, her finances, and her qualifications. Her bank statements demonstrate that she was able to support herself in the 2016/2017 income year without relying on any social security benefit.

12. At the hearing the Tribunal explained the requirements of the law. It also explained that it does not have any discretion to take into account other income years apart from those specified in cl.189.232. It explained that, as the applicant did not have a taxable income in the 2016/2017 income year of at least the minimum amount specified by the Minister, $53,900, it needed to consider whether she was a member of a class of exempt applicants.

13. The applicant acknowledged to the Tribunal that she did not fall within any of the exemptions.  She explained that after she received her redundancy payment she was in a position to take a break from work and support herself financially. (This is demonstrated by the bank statements provided to the Tribunal recording she was paid a redundancy payment of $111,820.)

14. The applicant explained that she did not know at the time she made the decision to have a break from employment, after a long period working for Newcrest Mining, that she would need to meet the income requirements for the grant of this visa. She indicated she may have made a different decision had she known. The Tribunal explained that it does not have any discretion to waive the requirement that she meets cl.189.233. It explained that only the Minister can intervene in circumstances where she does not meet a requirement but she believes there has been an unintended consequence or unfair outcome. She indicated she may approach the Minister to request Ministerial intervention.

    Assessment of the evidence

15. Having regard to the date of visa application the Tribunal finds the relevant years are the 2013/2014, 2014/2015, 2015/2016 and 2016/2017 income years.

16. The Tribunal accepts the applicant’s evidence about her taxable income in the income years from 2007/2008 to 2018/2019. It accepts that in the relevant income years, except 2016/2017, the applicant’s income exceeded the minimum amount of $53,900 as specified by the Minister in the instrument LIN 19/191.

17. As the applicant’s taxable income in the 2016/2017 income year was less than $53,900 the Tribunal must consider whether the applicant falls within a class of exempt applicants as specified by the Minister in LIN 19/191. Those exemptions in summary are as follows:

    a.Subclass 444 visa holders who were unable to meet the income requirement as they were prevented from leaving Australia to return to New Zealand because an Australian authority (Family Court of Australia) had assigned primary care of a child to the applicant and placed restrictions on the applicant from removing the child from Australia;

    b.Subclass 444 visa holders who were unable to meet the income requirement because they were receiving compensation for an injury which prevented them from earning at or above the income threshold;

    c.Subclass 444 visa holders who were unable to meet the income requirement because they were on an approved period of parental or carer’s leave from their usual employment.

18. The Tribunal accepts that the applicant’s taxable income in the 2016/2017 income year was less than the minimum specified because she decided to take a break from employment after a long period of working for Newcrest Mining. It accepts that she received a significant redundancy payment from Newcrest Mining which allowed her to have a year’s break from employment, without the need to rely on any social security.  The Tribunal is not satisfied however that these circumstances fall within those specified by the Minister for exempt applicants, as summarised above. This is not in dispute as it was acknowledged by the applicant at the hearing.

19. The Tribunal notes that the applicant has provided evidence that her taxable income for several other income years exceeded the minimum specified by the Minister. However it has no discretion to consider income years, other than the four most recently completed income years before the date of application, for the purposes of satisfying cl.189.233.

20. The Tribunal finds in the 2016/2017 income year the applicant’s taxable income was less than the amount specified, $53,900. It follows that the applicant does not satisfy the requirements in cl.189.233(1)(a).

21. In relation to the exemptions provided for in the relevant instrument, the applicant has not demonstrated that any of those exemptions applies. The applicant acknowledged this at the hearing. On this basis, the Tribunal finds that cl.189.233(1)(b) is not satisfied.

22. 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.

23. The applicant indicated she may seek Ministerial intervention. The Tribunal suggested to the applicant that it may be appropriate to consider the guidelines for Ministerial intervention which are available on the Department’s website.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

    Denise Connolly
    Member