Skinner (Migration)

[2021] AATA 546

Skinner (Migration) [2021] AATA 546 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dennis John Skinner
Mrs Achirayaporn Skinner
Mr Lucas John Skinner
Mr Sakdiphak Biakhunthod

CASE NUMBER:  1930913

DIBP REFERENCE(S):  BCC2019/3185935

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         21 January 2021 at 1:37 pm (VIC time)

DATE OF WRITTEN RECORD:                2 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Independent Subclass 189 visas for reconsideration, with the direction that the primary applicant meets the following criteria for a Subclass 189 visa:

·  cl.189.233 of Schedule 2 to the Regulations.

Statement made on 02 March 2021 at 12:53pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – taxable income for four most recently completed tax years – two notices of assessment provided for one year – accountant filed two tax returns, one to date of bankruptcy, the other from after that date – delegate considered later assessment overrode first – tribunal finds both assessments valid and income is two amounts combined – decision under review remitted

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 189.233(1)(a)

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 14 October 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 21 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 Skinner, you lodged this application for a subclass 189 Skilled Independent New Zealand visa on 25 June 2019.  Your application was refused on 14 October 2019 because the delegate found you did not meet a criterion in clause 189.233, which is a mandatory requirement for the grant of a visa.

4. That clause requires an applicant to provide evidence that for each of the four most recently completed tax years prior to lodging the application they have a taxable income no less than the amount specified, and in your case that amount was $53,900 per year or that they are a member of a class of exempt applicants.

5. In your case the delegate found that with your application you provided evidence of taxable income that did not reach this specified amount for each of the four years.  Having lodged the application on 25 June 2019 you were required to show your taxable income from your assessments for the years ended 30 June 2018, ’17, ’16 and ’15.

6. For the years ’16, ’17, and ’18 you very clearly exceeded the required amount.  However, for the year 2014/2015 you provided two notices of assessment.  The first was a notice of assessment dated or issued 8 April 2016, which showed a taxable income of $125,539.  The second was a notice of assessment dated 28 July 2016 showing a taxable income of $7,849.  The tribunal notes that both of these assessments are simply headed “Notice of Assessment”, they are not headed Amended Assessments.

7. Your representative Mr Hunt has told the tribunal that those two assessments were assessments provided as a result of the fact that your accountant put in split tax returns, the first being for the period up until the date of your bankruptcy, which was 9 June 2015, and so the Taxable Income of $125,539 related to the period 1 July 2014 to 9 June 2015.  The second tax assessment issued on 28 July 2016 was for the period post-bankruptcy and therefore covered the period 10 June 2015 until 30 June 2015 during which you earned $7,849.  And so, it is claimed that for the year your taxable income was those two amounts combined being $133,388.

8. In support of that argument there are a number of considerations.  The first is that your income in the year before that was $107,000 and your income in the year following was $149,000.  You have provided a document and while I am not sure of it’s source it is a document that is listed a Payment Summary and I accept that it is a screenshot from a website of the Department of Corrections and it shows that in that tax year you had a gross income of $136,052.

9. The delegate found that because there were two income tax assessment notices that the most recent of those was the relevant amount, and while it is not specifically stated I suspect that that decision was made because the delegate considered that the second – I mean what was stated in the decision was that the latest notice of assessment was the one recognised for the purpose of the visa.  Presumably the rationale behind that was because the delegate considered that the latest assessment overrides the earlier assessment, which was no longer valid, with no liability to pay the tax assessment on the notice.  So that the second assessment become a valid assessment, the first one was not.

10. It is my belief that that was an incorrect assumption, if that was the assumption that was used.  And I accept the argument that your income for that year was a combination of those two assessments being pre- and post-bankruptcy and your income was therefore in excess of $130,000.

11. That being the case the tribunal is satisfied that because you satisfy for the other three years the tribunal is satisfied that your income meets the requirements and therefore is satisfied that you do satisfy 189.233(1)(a) and therefore that you satisfy 189.233.

12. It is therefore the decision of this tribunal to remit this matter to the Department with the direction that you satisfy the requirements for the grant of a 189 visa.

    DECISION

13. The Tribunal remits the applications for Skilled Independent Subclass 189 visas for reconsideration, with the direction that the primary applicant meets the following criteria for a Subclass 189 visa:

    ·  cl.189.233 of Schedule 2 to the Regulations.

    Tim Connellan
    Member