Piedeloup (Migration)

[2017] AATA 1630

Piedeloup (Migration) [2017] AATA 1630 (12 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michel Jean Francois Piedeloup

CASE NUMBER:  1516613

DIBP REFERENCE(S):  CLF2015/21328

MEMBER:Wan Shum

DATE:12 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Investor Retirement (Class UY) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 405 visa:

·cl.405.228(3) of Schedule 2 to the Regulations.

Statement made on 12 September 2017 at 10:20am

CATCHWORDS

Migration – Investor Retirement (Class UY) visa – Subclass 405 (Investor Retirement) – Net annual income less than $50,000 – Maintained a designated investment over $250,000 – No permission to work – Compelling and compassionate circumstances – Delay in processing Bridging Visa – No claim of financial hardship

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 405.228

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 12 November 2015 to refuse to grant the visa applicant an Investor Retirement (Class UY) Subclass 405 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 April 2015. The delegate refused to grant the visa on the basis that the applicant did not have a net annual income of at least $50,000 and did not satisfy cl.405.228(3) of Schedule 2 to the Migration Regulations.

3. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

4. The applicant appeared before the Tribunal on 17 August 2017 by videoconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The representative attended the hearing from the location of the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking a further Subclass 405 Investor Retirement visa. In this case, cl.405.228 applies as the last substantive visa he held since last entering Australia was a subclass 405 visa.

7. The applicant was being sponsored by the Department of Business Northern Territory Government, the appropriate regional authority, as evidenced by the Form 1249 signed and dated 20 April 2015. The authority confirmed that the applicant had indicated that they intend to live in a regional/low growth area of Australia as specified and provided 0812 as the postcode of intended residence. As this is a postcode that was specified at the time of application in the relevant instrument, the applicant must have access to an annual income of at least AUD 50,000 and have made and maintained a designated investment of an amount of at least AUD 250,000 in the applicant’s name in the State of Territory in which the appropriate regional authority that sponsors the applicant is located as required by cl.405.228(3).

8. Furthermore, following legislative amendments that came into effect on 1 July 2017, the requirement for onshore applicants to have access to a specified annual income level and to have maintained a specified investment level may be waived if the applicant cannot meet these criteria because of compassionate and compelling circumstances.

9. On the material before the Tribunal, the applicant has held and maintained a Territory Bond issued by Northern Territory Treasury Corporation of an amount of $250,000 since 13 April 2015 in his name. The bond is due to mature on 14 April 2019, and pays interest at 2.80% half-yearly. The applicant therefore meets the requirements of cl.405.228(3)(b).

10. In respect of whether he meets the requirements of cl.405.228(3)(a) regarding his net annual income, the applicant has presented evidence to the Tribunal that his income was approximately $49,000 in the past 12 months. This consists of an annual pension from France (around $13,500); interest income earnt on money held with the Commonwealth Bank of Australia and Westpac (around $10,000); interest from the Northern Territory Bonds ($7,000) and money for recycling bottles and other material under the NT recycling scheme (around $19,000). It was explained that, and the Tribunal accepts, because he was not allowed to work on the Bridging Visa C that was granted when the application for this visa was made, his ability to earn income from work has been restricted.

11. In relation to why the applicant holds a Bridging visa C, the information before the Tribunal indicates that this is because, while his visa application was lodged on 7 April 2015 prior to his previous Subclass 405 visa ceasing, it was not valid at that time because the visa application charge details were not properly completed on the application form and the application was not made with a Form 1249 signed by an officer of the appropriate regional authority as required by item 1212B(3)(d). The application was not considered valid until 20 April 2015 when the required information and documents were provided. However, this was after his previous Subclass 405 had ceased which meant he was not able eligible for a Bridging visa A. If he had been granted a BVA, it would most likely have allowed him to work.

12. It was submitted by his current representative that there were compassionate and compelling circumstances for the applicant not having access to the minimum annual income. The circumstances being that the applicant had taken steps to apply for the visa prior to his previous Subclass 405 visa ceasing. He had gone to see a migration agent in December 2014 and engaged them in early 2015 to lodge the application for him. The applicant recalled that he had signed the forms and paid the visa application fees and other fees prior to the cease date of his previous Subclass 405 visa. The appointment of representative form which appears on the departmental file confirms that the applicant had engaged the former agent on or around 8 January 2015, when the form was signed by the agent and the applicant. In relation to the date of the application, the Tribunal has sighted the relevant application forms on the departmental file and the communications between the department and his previous migration agent. It notes that these forms were dated 1 April 2015. This is two weeks before the visa was due to cease. While there is no corroborative evidence of when the fees were paid to the former representative before the Tribunal, it is prepared to accept that the applicant had paid the fees required and had the expectation that his former migration agent would properly lodge the application on his behalf before his substantive visa ceased. The evidence indicates that the application was initially lodged with the Department on 7 April 2015; but it appears that the applicant was not aware that it was not validly lodged as at that date. The Tribunal accepts that the applicant had made reasonable attempts to lodge his application before his visa ceased, and that the fault lies with his former agent who had not lodged a valid application before the expiry date.

13. The applicant’s BVC is subject to condition 8101, which means that he was not permitted to work. In regard to whether he had made any attempts to have this condition removed to allow him to work, the applicant said he had made a couple of attempts through his previous agent. It was submitted, and the Tribunal accepts, that because the applicant did not demonstrate financial hardship as required for the removal of condition 8101, this request was refused. The applicant has cash savings of over $500,000 which meant that he could not claim to be under financial hardship.  

14. The amount of net annual income as at the time of this decision is less than $50,000. The applicant told the Tribunal that he collected plastic, glass and other material from large bins in building blocks on Saturdays, Sundays and Mondays because he needed something to do. He provided further evidence of the money received from recycling material after the hearing, including photographs. The Tribunal accepts that the applicant would be working had it not been for the issues with his visa lodgement, and that he would have met the requirements if he had been allowed to work. The applicant said at the hearing that his income from his employment at the time he applied for the visa was approximately $30,000. By adding the income to his pension and interest income, he claims that he would have met the net income requirements. The Tribunal notes that the delegate found that the applicant earnt $15,998.61 from his employment with Cyclone City Cleaners, which is less than the amount claimed. However, the delegate only calculated his salary from 26 September 2014 to 25 March 2015 based on the bank statements provided which cover that period. The Tribunal accepts the applicant’s evidence that it would have been $30,000 having regard also to the payslips that were provided to the department and his income tax assessment notice for that financial year. The amount of total other income claimed appears to be reflected in the delegate’s calculations at the time. As it has now been over two years since his visa was lodged and the impact of the initially invalid application, the Tribunal considers that his ability to meet the minimum income requirement has been adversely affected. It further considers that the calculation of income failed to take into account all the evidence provided of his annual income at that time.

15. The Tribunal accepts that the applicant has his own property based on the rates notice provided and the rates payable for year ending 30 June 2017 amounted to $1,280. He thus does not have outgoings for rent. It appears from the bank statements provided that his outgoings are minimal.

16. Having regard to the circumstances of this case, the Tribunal finds that there are compassionate and compelling circumstances which warrant waiving the requirement for a minimum net annual income of the $50,000 required by cl.405.228(3)(a).

17. Therefore, the Tribunal finds that the applicant meets the requirements of cl.405.228(3) of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. The Tribunal remits the application for an Investor Retirement (Class UY) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 405 visa:

    ·     cl.405.228(3) of Schedule 2 to the Regulations.

    Wan Shum
    Member