Oudom (Migration)

[2021] AATA 1929

Oudom (Migration) [2021] AATA 1929 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Alisa Oudom

CASE NUMBER:  1925916

DIBP REFERENCE(S):  BCC2019/3699072 EGOMS41563

MEMBER:M. Edgoose

DATE:28 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to refuse the Parent sponsorship application. 

Statement made on 28 April 2021 at 10:12am

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – criteria for approval as a parent sponsor – income test – combine income with partner – taxable income at least equal to half of the prescribed amount – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 2.60U, 2.60W

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 14 September 2019 not to approve the applicant as a parent sponsor in relation to the parent sponsor class under r. 2.60U of the Migration 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 Migration Regulations 1994 (the Regulations) on 25 July 2019. The delegate decided to refuse 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.

3. The applicant appeared before the Tribunal on 28 April 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Income Test

4. Regulation 2.60U(1)(f) provides that the applicant must pass the income test at r.2.60W.

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

6. Regulation 2.60W(2) requires that if an applicant seeks to combine their income with a person specified in r.2.60W(3), that applicant passes the income test if the sum of both incomes is equal to or greater than $83.454.80 for the applicable income year, and that the taxable income of the applicant is at least equal to half of that amount. 

7. In the present matter, the applicant has sought to combine her income with her partner. The Tribunal is satisfied that the applicant’s partner is a person specified in r.2.60W(3)(a).

8. The sponsorship application was made on 25 July 2019. The Tribunal finds that the applicable income year is the 2018-19 financial year.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant did not provide the Department of Home Affairs with a record of a taxable income in support of the application. The applicant however did provide her partner’s Notice of Assessment – year ended 30 June 2018, which showed a taxable income of $76,052. This amount is below the amount prescribed in the Instrument LIN 19/146.

10. In support of the review application, the applicant provided the Tribunal with an Individual Tax Return (Summary) from 1 July 2018 to 30 June 2019. This document indicates that the taxable income of the applicant’s partner is $73,975. The applicant also provided the Tribunal with correspondence issued by the Department of Human Services, detailing the applicant’s entitlement under the Family Tax Benefit for the period of 2018-2019 amounting to $11,988.80. Both incomes combined total the amount of $85,963.80. This amount is above the amount prescribed in the Instrument LIN 19/146. 

11. The Tribunal accepts the applicant’s evidence that her income, combined with that of her partner, in the 2019 financial year was above the prescribed amount. The Tribunal also notes that such income was during the relevant income year, which is defined as the most recent year before the date of lodgement.

12. However, in order to meet the requirements of parent sponsorship as provided for in r.2.60U, the applicant must meet all the requirements of the income test as provided for by r.2.60W. Whilst the Tribunal finds that the applicant meets r.2.60W(2)(a) insofar that her income, combined with that of her partner, is greater than the amount prescribed by the Instrument LIN 19/146, r.2.60W(2)(b) requires that the taxable income of the applicant for the relevant income year be at least equal to half of the amount prescribed in the Instrument LIN 19/146. As mentioned above, that amount is $83,454.80. Half of this amounts to $41,727.40. This means that the applicant, independent of the income of her partner, must satisfy the Tribunal that her taxable income for the relevant income year is at least equal to $41,727.40. Pursuant to the information above, the applicant has only provided the Tribunal with evidence of income in the amount of $11,988.80. As such, the Tribunal finds that the applicant does not meet the income test requirements of r.2.60W(2)(b).

13. At hearing the applicant confirmed she did not meet the requirements of the income test.

14. The Tribunal finds that the applicant’s taxable income, combined with that of her partner, in the income year was $85,963.80. The prescribed amount is $83,454. However, the Tribunal does not find that the taxable income of the applicant for the relevant income year is at least equal to half that amount.

15. Accordingly, the Tribunal is not satisfied the applicant passes the income test and is not satisfied the requirements of r. 2.60U(1)(f) are met.

16. As such, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a parent sponsor.

17. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

18. The Tribunal affirms the decision refuse the Parent sponsorship application. 

    M. Edgoose
    Member