Singatouline (Migration)

[2019] AATA 6005

Singatouline (Migration) [2019] AATA 6005 (26 August 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Evgueni Ardinatovich Singatouline
Mrs Rui Li

CASE NUMBER:  1904207

DIBP REFERENCE(S):  BCC2018/679018

MEMBER:R. Skaros

DATE OF DECISION:  26 August 2019

DATE CORRIGENDUM

SIGNED:21 January 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words ‘For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration’ at paragraph [6] should be replaced with ‘For the following reasons, the Tribunal has decided to affirm the decision under review’.

R. Skaros
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Evgueni Ardinatovich Singatouline
Mrs Rui Li

CASE NUMBER:  1904207

DIBP REFERENCE(S):  BCC2018/679018

MEMBER:R. Skaros

DATE:26 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 26 August 2019 at 2:00pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 Skilled – Independent – notices of assessment for the 4 most recent income years – specified amount of taxable income – applicant had salary packaging arrangement – Australian born child resident in Australia for 10 years – decision under review affirmed          

LEGISLATION

Income Tax Assessment Act 1997
Migration Act 1958, ss 65, 93, 94, 96, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 189.232, 189.233

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 to refuse to grant the applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 9 February 2018. The delegate refused to grant the visas on 6 February 2019.

2. The delegate made the decision on the basis that cl.189.232 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the first named (the applicant) had not provided the notices of assessment, and any notices of amended assessment, given to the applicant by the Commissioner of Taxation, of the applicant’s income tax liability in relation to the 4 most recently completed income years before the date of the application.

3. The applicants provided a copy of the delegate’s decision record with the application for review.

4. On review, the Tribunal received submissions and supporting documents which the Tribunal has considered further below.

5. The applicants also appeared before the Tribunal on 11 July 2019 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for the grant of a Subclass 189 visa in the New Zealand 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.

2. Relevantly, cl. 189.232 requires an applicant to provide copies of their notices of assessment, and of any notices of amended assessments, given to the applicant by the Commissioner of Taxation, of the applicant’s income tax liability in relation to the four most recently completed income years before the date of the application (during the period of five years immediately before that date). That requirement is satisfied even if the copy of the notice does not include the applicant’s tax file number.

3. In addition, cl. 189.233 relevantly requires the applicant to have an amount of taxable income that is not less than the minimum amount specified by the Minister in the relevant period. There are some exemptions to that provision. The legislative instrument LIN 18/138 specifies the income threshold for the purpose of cl.189.233(2) as $53,900 in each of the relevant income years.

4. In this case, the applicant applied or the visa on 9 February 2018. The relevant income years are therefore the financial years ending 30 June 2014, 2015, 2016 and 2017. The applicant provided evidence of his employment, including PAYG payment summaries for the relevant years, to the Department but had not provided the associated tax assessment notices.

5. On review, the Tribunal requested the applicant to provide copies of his assessment notices issued by the Australian Taxation Office (ATO) for the relevant years. On 25 March 2019, the applicant provided to the Tribunal the notices of assessment for the following income years: 2013, 2014, 2015, 2016 and 2017. He also provided a copy of the notice of amended assessment for the 2016 income year.

6. Relevantly, the notices of assessment, including the 2016 amended assessment, indicate that the applicant’s taxable income for the relevant four years were as follows:

   2016-2017            $47,493

   2015-2016            $43,541

   2014-2015            $31,791

   2013-2014            $52,663

7. While the applicant has provided copies of the notices of assessment for the relevant income years as required by cl.189.232(1), the amounts of taxable income, as indicated on the notices, were less than the specified income threshold of $53,900.

8. On 20 May 2019, the Tribunal wrote to the applicants to inform them that the applicant’s taxable income in the relevant income years was less than the threshold amount specified for the purposes of cl.189.233(1)(a). The applicants were also invited to provide evidence, if applicable, which indicates that they may be exempt from the requirement in cl.189.233(1)(a), as provided for in cl.189.233(1)(b) and LIN 18/138.

9. In response to the Tribunal’s letter, the applicant provided submissions and supporting documents indicating that the applicant has been employed under a salary packaging arrangement. The applicant provided letters from his employer and pay slips indicating that his salary is about $76,000 and that he is able to salary package an amount of up to $15,900, which is not subject to tax. The applicant provided evidence indicating that he has been an employee of Metro Assist under this arrangement since November 2012.

10. The applicant provided details of his and his family’s circumstances in Australia, including that he and his spouse and children have been living in Australia for 11 years, that their youngest child is born in Australia and is due to become an Australian citizen as he has been ordinarily resident in Australia for the last 10 years. The applicant also provided details of his employment for a community organisation and his contribution to Australia.

11. At the hearing, the Tribunal discussed with the applicant the requirements in cl.189.233 and the evidence before it which suggest that he does not meet that requirement. The applicant confirmed that none of the exemptions in the relevant instrument applied to him. In relation to the amounts on the tax assessment notices, the applicant stated that due to the salary packaging arrangements, which he is eligible for due to his employment for a migrant community centre, his taxable income appears less than what he actually earns. The applicant stated that he and his spouse have two properties in Australia. He indicated that his spouse has not worked in Australia.

12. The Tribunal explained to the applicant that the relevant provision refers to ‘taxable income’ which is indicated on the notices of assessment issued by the Commissioner of Taxation and that there was no provision in the legislation to take into account other income even if it was part of a salary packaging arrangement. The applicants expressed their disappointment at the inflexibility of the legislation.

13. The Tribunal is sympathetic to the applicants in this case, however, as explained at the hearing, the Tribunal has no discretion in these matters and must make its decision in accordance with the relevant legislative provisions.

14. The issue in this case turned on whether the applicant, in each of the four income years of 2013-2014, 2014-2015, 2015-2016 and 2016-2017, had a taxable income (within the meaning of the Income Tax Assessment Act 1997)(ITAA) that was no less than the minimum amount of $53,900 as specified by the Minister in the Instrument or is an exempt applicant as provided for in the Instrument.

15. The meaning of ‘taxable income’, as defined in s.4-15 of the ITAA, is the assessable income less deduction. Section 6 of the ITAA excludes salary sacrificed amounts, which are known as reportable fringe benefits, from assessable income. On this basis, the Tribunal considers that the amounts noted on the applicant’s PAYG payment summaries for the relevant years as reportable fringe benefits (being the salary sacrifice amounts) are excluded from forming part of the applicant’s taxable income in those years. The Tribunal considers that the applicant’s ‘taxable income’, for the purposes of cl.189.233(1)(a) is the amount identified as ‘taxable income’ on the relevant notices of tax assessment issued by the ATO to the applicant. The evidence before the Tribunal, as set out above, is that in each of the relevant years the applicant’s taxable income was less than the minimum specified amount of $53,900. It follows that the applicant does not satisfy the requirements in cl.189.233(1)(a).

16. In relation to the exemptions provided for in the relevant Instrument, the applicants have not provided any information which suggests that any of those exemptions apply to them. Furthermore, the applicants indicated at the hearing that none of the exemptions were relevant to their circumstances. On this basis, the Tribunal finds that cl.189.233(1)(b) is not satisfied.

17. As the applicant does not satisfy cl.189.233(1)(a) or (b), it follows that the applicant does not meet cl.189.233.  The applicant therefore does not satisfy the criteria for the grant of a subclass 189 visa. As this is the only relevant subclass in this case, the decision under review must be affirmed.

18. There is no information before the Tribunal, and the applicants have not claimed, that the second named applicant meets the primary criteria for the grant of the Subclass 189 visa. The second named applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. Given that the first named applicant has not satisfied the requirements for the grant of the visa, it follows that the decision in respect of the second named applicant must also be affirmed.

decision

1. The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

R. Skaros
Senior Member