TAUILIILI PELESASA (Migration)

[2019] AATA 2272

TAUILIILI PELESASA (Migration) [2019] AATA 2272 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Filomena TAUILIILI PELESASA
Mr George TAUILIILI

Miss Antonina DORAH ANDREWS

CASE NUMBER:  1821816

HOME AFFAIRS REFERENCE(S):           BCC2017/2521433

MEMBER:Alan McMurran

DATE:3 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

·cl.189.232 of Schedule 2 to the Regulations

The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the second and third-named applicants meet the following criteria for a Subclass 189 visa:

·cl.189.311 of Schedule 2 to the Regulations.

Statement made on 03 June 2019 at 2:42pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) (Class SI) – Subclass 189 Skilled Independent – did not provide tax assessments – applicant tax liability – tax income is in excess specified by the Minister – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 189.232, 189.311

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 Home Affairs on 10 July 2018 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent)( New Zealand) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 15 Jul 2017. The secondary-named applicants are members of the family unit of the applicant.

3. The criteria for the grant of a Subclass 189 visa 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.

4. In the present case, the delegate refused to grant the visas because the applicant did not satisfy cl.189.232 because the applicant had not provided a copy of the notices of tax assessment, or any notices of amended assessments given to the applicant by the Commissioner of Taxation in relation to the 4 most recently completed income years before the date of the application.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets cl.189.232.

8. Clause 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 4 most recently completed income years before the date of the application (during the period of 5 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.

9. On 31 July 2018, the Tribunal wrote to the applicant requesting information for this review. The applicant responded on 6 September 2018 and provided ATO notices of assessment for each of the financial years ending June 2014, 2015, 2016 and 2017.

10. On 12 March 2019, the Tribunal wrote to the applicant and requested the notice of assessment for the financial year ending 30 June 2013. The applicant responded by her agent on 12 March 2019 attaching the ATO notice of assessment for the year ended 30 June 2013.

11. As the applicant has now provided copies of the notices of assessment for the income years from 2013 to 2017, the applicant satisfies cl. 189. 232 (1). The Tribunal observes that all the relevant assessment notices indicate that the applicant’s taxable income is in excess of the amount specified by the Minister in the relevant instrument. The Tribunal notes cl.189.232 (2) is also met, the relevant notices of assessment all contain the applicant’s TFN and the provisions of the sub-regulation not applying.

12. The Tribunal finds that the applicant meets cl. 189.232 of the Regulations.

13. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the grant of the visa.

    DECISION

14. The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

    · cl.189.232. of Schedule 2 to the Regulations

    The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the second and third - named applicants meet the following criteria for a Subclass 189 visa:

    · cl.189.311 of Schedule 2 to the Regulations.

    Alan McMurran
    Member