Naidoo (Migration)

[2019] AATA 4605

Naidoo (Migration) [2019] AATA 4605 (22 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nadarajan Naidoo
Mrs Nalini Naidoo

CASE NUMBER:  1825728

HOME AFFAIRS REFERENCE(S):           BCC2017/3225867

MEMBER:R. Skaros

DATE:22 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

·cl.189.232 of Schedule 2 to the Regulations;

·cl.189.233 of Schedule 2 to the Regulations.

Statement made on 22 October 2019 at 3:34pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Notice of Assessment provided – minimum taxable income threshold – decision under review remitted

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 22 August 2018 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) applied for the visa on 5 September 2017.

3. The criteria for the grant of a Subclass 189 visa in the Points-tested 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 applicant did not satisfy cl.189. 232 of Schedule 2 to the Regulations as the applicant failed to give copies of the notices of assessments, or amended notices of assessment, for the relevant income years.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant meets the requirements in cl. 189.232 and cl. 189.233.

6. Clause 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 4 most recently completed income years before the date of the application (during the period of 5 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. Clause 189.233 relevantly requires an 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 IMMI 17/035 specifies the income threshold, for the purpose of cl.189.233(2), as $53,900 in each of the relevant income years.

8. The applicant applied for the visa on 5 September 2017, the relevant income years are therefore the financial years ending 2014, 2015, 2016 and 2017.

9. Now before the Tribunal are the applicant’s notices of assessment issued by the Commissioner of Taxation for the financial years ending 2014, 2015, 2016 and 2017.  Accordingly, the Tribunal finds that cl.189.232 is met.

10. The notices of assessment also indicate that the applicant’s taxable income in each of the relevant years was more than the threshold amount of $53,900. Accordingly, the Tribunal finds that cl.189.233(1), and therefore cl.189.233, is also now met.

11. Given these findings, the appropriate course is to remit the application to the Minister to consider the remaining criteria for the visas in respect of the applicants.

12. In relation to the second named applicant, the Tribunal notes that the Department refused her application on the basis that she was not a member of the family unit of a person that holds a relevant visa.  The Tribunal notes that on remittal of this matter, and based on the outcome of the first named applicant’s application for the visa, the Department will reconsider the second named applicant’s eligibility for the visa.

    DECISION

13. The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

    · cl.189.232 of Schedule 2 to the Regulations;

    · cl.189.233 of Schedule 2 to the Regulations.

    R. Skaros
    

    Senior Member