Morke (Migration)

[2020] AATA 6121

Morke (Migration) [2020] AATA 6121 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Berhanu Erre Morke
Mrs Genalle Ano Ansha

CASE NUMBER:  1913064

DIBP REFERENCE(S):  BCC2017/3316672

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 December 2020 at 3:10 pm (VIC time)

DATE OF WRITTEN RECORD:                9 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 09 March 2021 at 11:34am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – applicant did not earn an income at the required level – not a member of a class of persons who are exempt –– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 189.233

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 May 2019 to refuse to grant the visa applicants Skilled Independent (Permanent) Subclass 189 visas under the Migration Act 1958 (the Act).

2. At the hearing on 10 December 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Morke, you lodged an application for a skilled, independent New Zealand visa, subclass 189 visa on 12 September 2017. 

4. Your application was refused on 24 May 2019 because the delegate found you did not meet the criterion in clause 189.233, which is a mandatory requirement for the grant of a visa.

5. Clause 189.233 requires an applicant to provide evidence that for each of the four most recently completed tax years before lodging the visa application they have a taxable income no less than the amount specified, or that they are a member of a class of exempt applicants.

6. In your case, to satisfy the income requirement the relevant amount was $53,900 for each year. The delegate found that with your application you had provided evidence of income that did not reach the specified amount in each of the four years, and that you were not a member of a class of exempt applicants and therefore did not satisfy clause 189.233. 

7. The primary decision record, a copy of which you provided with your review application, indicates that you provided notices of assessment for each of the four years before lodging your application.

8. Those assessments showed your taxable income for in each tax year to be:

   ·     2014 - $59,057

   ·     2015 - $15,745

   ·     2016 - $66,564, and

   ·     2017 - $19,548. 

9. You have recently provided different assessments and notices of amended assessments, and those assessments show that your taxable income for the year ended 30 June 2017 was amended from $19,548 to $42,937.

10. This means that for the tax years 2015 and 2017 your income was significantly below the required level.

11. When I asked you about that initially, you said, "In 2016, I didn't work that much".  You say that, "In 2017, I took annual leave looking after my daughter and my son".  You told the tribunal you worked full time for Woolworths, and you provided some vague answers that leave me unsure as to whether you took annual leave or carer's leave or something else as you referred to it under a range of different names, but you say in July 2016 you took off three weeks, and in June 2017 you took off five weeks.  The delegate refused your application.  You appealed that decision to be reviewed by this tribunal, and my job is to take a fresh look and consider whether you meet the requirements for the grant of a visa.

12. You say that, "Well, the situation is that in 2015 my wife was working so I took time off to look after the kids," and once again in 2017, you say you took leave to look after the kids. As I said to you, in your primary decision it detailed the various exemptions that may apply. One of those is that an applicant does not meet the required income level because they were on an approved period of parental leave or carer's leave. To satisfy this requirement requires evidence provided in the form of a statutory declaration from the applicant outlining the personal circumstances, a statutory declaration from the employer advising on the return date to work and the income amount, birth certificates for children and the medical certificates for carer's responsibilities.

13. You have not provided those documents.  Mr Anota your advisor says, "If we could be given some more time we could go back and perhaps ask the employer if they could provide evidence that you were on carer's leave or parental leave".  However, we could not do that for the company that you worked for in the year ended 30 June 2015 because that company no longer exists.  NAs I said we are reviewing a decision that was made over 18 months ago.  I believe there has been plenty of time and opportunity for you to provide the required evidence which was clearly detailed in the decision, and given that one of your employers is no longer in existence and you say that evidence is not available, it would be futile even if I were to grant extra time, which I am not prepared to grant.

14. And so, as I said to you earlier, the requirement is unambiguous in terms of satisfying clause 189.233.  It requires that in each of the four tax years before lodging the application, you have either earned a taxable income as defined in the Income Tax Assessment Act in this case in excess of $53,900, or you are a member of a class of people who are exempt, and those exemptions are clearly detailed.  It is not a matter in which the tribunal has discretion. 

15. The evidence before the tribunal is that in at least two of those years you did not earn an income at the required level, and there is no evidence that you are a member of a class of persons who are exempt

16. .

17. So, having considered your circumstances and the evidence available, the tribunal finds that you did not satisfy clause 189.233. 

18. Consequently, the decision under review must be affirmed.  It is therefore the decision of this tribunal to affirm the decision under review, and this decision was made at 3.10 pm on this, 10 December 2020.

    DECISION

19. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member