Senda (Migration)

[2021] AATA 787

Senda (Migration) [2021] AATA 787 (7 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Devamanoharan Senda
Mrs Chitra Devamanoharan
Miss Sakthi Senda

CASE NUMBER:  1919997

DIBP REFERENCE(S):  BCC2018/1253316

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 January 2021 at 1:48 pm (VIC time)

DATE OF WRITTEN RECORD:                15 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 15 January 2021 at 12:20pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – not a member of a class of exempt applicants – taxable income was below the amount specified – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 189.233

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 3 July 2019 to refuse to grant the visa applicants Skilled Independent (Permanent) Subclass 189 visas under the Migration Act 1958 (the Act).

2. At the hearing on 7 January 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Senda, you lodged this application for a Skilled Independent visa on 15 March 2018.  Your application was refused on 3 July 2019 because the delegate found you did not meet the criterion in clause 189.233, which is a mandatory requirement for the grant of a visa.  It requires an applicant to provide evidence and for each of the four most recently completed tax years before the date of lodging the application they have a taxable income no less than the amount specified or they are a member of a class of exempt applicants.

4. To satisfy the income requirement in your case the relevant amount was $53,900 for each year.  You lodged your application in March 2018 and so you were required to show evidence of your income tax assessments showing your taxable income for the years ended 30 June 2017, 2016, 2015 and 2014.

5. For the year ended 30 June 2017 your taxable income was $56,015.  2016 it was $72,179.  For 2015 it was $51,460, which is below the minimum required and for 2014 it was $52,919, again below the minimum required.

6. The delegate also found there was no evidence you were a member of a class of exempt applicants and you therefore didn't satisfy 189.233.

7. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision, which you told the Tribunal you had read and we spoke about it and it is apparent that you do understand why the decision was made.

8. The role of the Tribunal, as I said, is to take a fresh look at your application and consider whether you are eligible for the grant of a 189 Skilled Independent visa.  The requirement to satisfy 189.233 is unambiguous. It required you to show that for each of the four completed years before lodging the application you had a taxable income, within the meaning of the Income Tax Assessment Act that was no less than the amount specified which in your case was $53,900 for each of the four years.  For the tax years ended 2014 and 2015 your income was below that level.

9. You have today told the Tribunal there was a reason for that.  You say that those two years were an aberration due to work related expenses and in all other years you have exceeded the required level, in some years by very considerable margins.

10. You have substantial experience.  Your wife said you have been here for 15 years and your children have been brought up here and so they see themselves as Australians and you would very much like to be granted this visa with your extensive experience and contribution that you have made to Australia.  You say you are an organ donor.  You have received a Prime Minister’s Award for the design of a database that saved Tax Office considerable sums.  So, the Tribunal does not question your claim to have made a considerable contribution to Australia.

11. You say that if you need to reapply you have got no doubt that your income will mean that you will qualify under this category and I accept that is probably the fact.  However, you say you will have to wait two years and that is what you would seek to avoid.

12. However, as I said to you earlier, what is required to satisfy 189.233 is unambiguous.  An applicant must provide evidence of having earned a taxable income as defined in the Income Tax Assessment Act at the specified level.  In your case $53,900 for the four completed tax years before you lodged the application, which you did not do, or alternatively, you need to be a member of a class of people who are exempt.  Those exemptions are clearly detailed.  I went through them and you do not satisfy any of those exemptions.

13. This question of whether you satisfy the requirements is not a matter in which the Tribunal has discretion.  It is a question that you either satisfy the requirements or you do not.  And having considered your circumstances and the available evidence, the Tribunal finds that you do not satisfy clause 189.233 and consequently the decision under review must be affirmed.

14. Your wife as a secondary applicant does not satisfy 189.311, which requires that she is a member of the family unit of a person who holds a 189-visa granted on the basis of satisfying the criteria.  As you do not satisfy the criteria, she does not meet 189.311.

15. It is therefore the decision of this Tribunal to affirm the decisions under review.

    DECISION

16. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member