Parenzee (Migration)

[2019] AATA 1207

Parenzee (Migration) [2019] AATA 1207 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gavin Michael Parenzee
Mrs Jacintha Parenzee

CASE NUMBER:  1806920

HOME AFFAIRS REFERENCE(S):           BCC2017/3154109

MEMBER:Amanda Mendes Da Costa

DATE:8 May 2019

PLACE OF DECISION:  Melbourne

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.

Statement made on 08 May 2019 at 3:29pm

CATCHWORDS
MIGRATION – Skilled - Independent (Permanent) (Class SI) – Subclass 189 (Skilled – Independent) – Points-tested stream – notices of assessment and amended assessments – hearing not required – 4 most recently completed income years before date of application – evidence provided – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 189. 232(1)

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 1 March 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 applied for the visa on 31 August 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 first named applicant did not satisfy cl.189. 232(1) of the Regulations because he had not provided the required notices of assessment.

4. Upon consideration of the information in both the files of the Department and the Tribunal, the Tribunal is satisfied it can make a decision in this matter without a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the first named applicant has provided notices of assessment and of any notices of amended assessments, given to the first named applicant by the Commissioner of Taxation, of the first named applicant’s income tax liability in relation to the 4 most recently completed income years before the date of application (during the period of 5 years immediately before that date.

7. The Tribunal notes that on 31 August 2017 the first named applicant provided the Department with a document titled Notice of Assessment 2017 TAX. This document is not a notice of assessment issued by the Commissioner of Taxation.

8. On 4 December 2017 the Department requested the first named applicant to provide notices of assessment for the years 2013 to 2017 inclusive.

9. On 6 December 2017 the first named applicant provide the Department with a document titled Tax summary 2013-2017.  This document did not contain the required notices of assessment issued by the Commissioner of Taxation.

10. On 14 March 2018 the first named applicant provided the Tribunal with notices of assessment given to the first named applicant by the Commissioner of Taxation for the years ended 20 June 2013; 2014; 2015; 2016 and 2017.

11. As the first named applicant has provided notices of assessment given to the first named applicant by the Commissioner of Taxation of the first named applicant’s income tax liability in relation to the 4 most recently completed income years before the date of application (during the period of 5 years immediately before the date), the Tribunal is satisfied that the applicant meets the criteria in cl.189.232(1).

12. Accordingly the Tribunal finds that the applicant satisfies cl.189.232.

13. In relation to the second named applicant, her entitlement to a visa is initially dependent on whether the first named applicant is successful in obtaining a subclass 189 visa, and then on whether she meets the additional criteria for a subclass 189 visa.

14. Given the findings above, the appropriate course is to remit the visa applications for the first and second named applicants to the Minister to consider the remaining criteria.

    DECISION

15. 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.

    Amanda Mendes Da Costa
    Member