Pretorius (Migration)

[2021] AATA 1778

Pretorius (Migration) [2021] AATA 1778 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Grant Michael Pretorius

CASE NUMBER:  2001630

DIBP REFERENCE(S):  BCC2019/786956

MEMBER:P. Maishman

DATE:21 May 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.  

Statement made on 21 May 2021 at 2:48pm

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 – income reduced due to parental caring duties of children – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 351
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 23 January 2020 not to approve the applicant as a family sponsor in relation to the parent sponsor class (parent sponsor) under r.2.60U of the Migration Regulations 1994 (the 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 Regulations on 8 January 2020.

3. The delegate decided not to approve 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.

4. The applicant appeared before the Tribunal on 21 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from his wife Trudy Pretorius.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal had before it a copy of the Department’s file. The applicant declared his taxable income for the tax year to June 2019 to be $12,608. The applicant declared he wanted his wife’s taxable income for the tax year to June 2019 to be $100,758 to be combined with his income for the sponsorship assessment. The Department received income tax notices of assessment for the year ended 30 June 2018 showing the applicant’s taxable income was $19,747 and his partner’s taxable income for the year ended 30 June 2018 was $62,914. The Department received a marriage certificate confirming the applicant is married and a birth certificate confirming the sponsored parent is the applicant’s biological mother.

7. The applicant gave the Tribunal a copy of the delegate’s decision record with his application for review. The Tribunal received a copy of the applicant’s payslip dated 10 December 2019 showing his annual salary is $43,985.76; a covering letter from the applicant explaining he returned to work in April 2019 then annual salary of $43,985.76; a statutory declaration and a separate letter from the applicant’s wife detailing her and her husband’s financial arrangements and concern for the sponsored parent’s welfare; statutory declarations from the applicant’s employer and Kevin Davies, counsellor on Mareeba Shire Council; income statements for the applicant and his partner for the 2019 – 20 financial year; and a photo of an eye injury suffered by the sponsored parent.   

8. The applicant and his wife attend the hearing and gave evidence reiterating the information provided in the documents. The parties agreed their taxable incomes for the tax year ending 30 June 2019 was $12,608 for the applicant and $100,758 for his wife. The applicant seeks the Tribunal to have regard to his and his wife’s taxable incomes in the 2019 – 2020 income tax years. The applicant explained he was not working for a large part of the 2019 tax year because he was looking after his children. He recommenced work in April 2019 on an annual salary of approximately $45,000. The applicant seeks for the Tribunal to take into account the cascading benefits to him and his wife, their children and their respective employers as well as the safety risks to his mother living alone in South Africa. The Tribunal accepts the applicant and his wife gave truthful evidence and are credible witnesses.

9. The issue in the present case is whether the applicant meets the requirements for approval as a parent sponsor in accordance with the criteria in r.2.60U of the Regulations.

   The income test

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

11. Regulation 2.60W(1), requires the amount of taxable income of the applicant be at least equal to the amount specified in an instrument for the income year specified in that instrument. Under r.2.60W(2), taxable income of the applicant may be combined with the taxable income of another person, but must be at least equal to half of the specified amount.

12. In the present matter the applicant has sought to combine his income with his partner. The Tribunal is satisfied that the applicant’s partner as a person specified in subregulation (3) for the purposes of r.2.60W(2)(a)(ii).  

13. The relevant instrument in this case is Legislative Instrument Number 19/146 (LIN 19/146). It specifies the amount of taxable income of the applicant is $83,454.80 and income year is the most recent completed taxable income year prior to the date of lodgement of the application for approval as a family sponsor.

14. The applicant made his application for approval as a family sponsor on 23 January 2020. The most recent completed income year prior to the date of lodgement of the application for approval as a family sponsor is the 2018 – 2019 income year. There is no discretion available to the Tribunal to substitute an alternative taxable income amount or income year to that specified in LIN 19/146.

15. The Tribunal finds the income year specified  in LIN 19/146 is 2018 – 2019. The Tribunal finds the combined amount of taxable income of the applicant and his wife is $113,366 in the 2018 – 2019 income year.

16. Whilst the Tribunal finds the applicant’s combined income exceeds the amount prescribed, 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. Half of the prescribed amount is $41,727.40. This means the applicant’s taxable income, independent of the taxable income of his partner, must be at least equal to $41,727.40. The Tribunal accepts the applicant’s declaration on his application form his taxable income for the relevant year was $12,608.

17. As such the Tribunal finds the applicant does not meet the income test requirements of r.2.60W(2)(b).

18. Accordingly, the Tribunal is not satisfied the applicant passes the income test and is not satisfied the requirements of r.2.6U(1)(f) are met.

19. The Tribunal is not satisfied the applicant meets the criteria prescribed in the regulations to be approved as a family sponsor in relation to the parent sponsor class.

20. For the reasons above the Tribunal must affirm the decision under review.

21. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

22. The applicant submitted his income was reduced for the 2019 year because he took on parental caring duties of his children. The incomes of the applicant and his wife in the 2019 – 2020 income year meet the requirements for the sponsorship to be approved. The presence of the applicant’s mother in Australia provided support for the applicant and his wife in caring for their children and allowed the applicant to return to work. Since the applicant’s mother returned to South Africa the applicant and his wife have been required to take time off work to care for their children in cases of illness and absence from school/kindy/daycare. This is a burden to them and also to their employers which is alleviated by the presence of the applicant’s mother. The applicant submitted his mother was mugged and robbed since returning to South Africa. He provided a photo of an injury to her eye. He considers her safety to be threatened and she lives in a state of constant high alert.

23. The Tribunal explained to the applicant there was no discretion for a decision maker to consider compassionate or compelling circumstances that might apply to provide an exception to the income test regulations. The Tribunal explained to the applicant it would refer the matter to the Department and that he could independently request the Minister to intervene.  

24. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

25. The Tribunal affirms the decision under review.

    P. Maishman
    Member