Toombs-Treselyan (Migration)

[2021] AATA 1783

Toombs-Treselyan (Migration) [2021] AATA 1783 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Steven Christopher Toombs - Treselyan 

CASE NUMBER:  2103959

DIBP REFERENCE(S):  BCC2020/2777649

MEMBER:M. Edgoose

DATE:26 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to refuse the parent sponsorship application.

Statement made on 26 May 2021 at 10:10am

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 brother – reduced income due to starting a business – accumulated savings – combined taxable income less than the prescribed amount – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140E
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 18 March 2021 not to approve the applicant as a parent sponsor in relation to the parent sponsor class under reg 2.60U of the Migration Regulations.

2. The applicant applied for approval as a parent sponsor under s 140E of the Migration Act 1958 (the Act) and reg 2.60U of the Migration Regulations 1994 (the Regulations) on 8 December 2020. The delegate decided to refuse the application on the basis that the applicant did not satisfy reg 2.60U of the Regulations because he failed to pass the income test at reg 2.60W. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Dorothy Jane Longstaff.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Income Test

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

6. Under reg 2.60W(1), an applicant’s taxable income must be at least equal to the amount specified in an instrument for the income year specified in an instrument. Under reg 2.60W(2), taxable income may be combined with the income of another person. The relevant instrument in this case is Legislative Instrument 19/146. It provides the taxable income is the amount of $83,454.80 and income year as the most recent completed taxable income year prior to the date of lodgement of the application for approval a parent sponsor.

7. Regulation 2.60W(2) requires that if an applicant seeks to combine their income with a person specified in reg 2.60W(3), that applicant passes the income test if the sum of both incomes is equal to or greater than $83,454.80 for the applicable income year, and that the taxable income of the applicant is at least equal to half of that amount. 

8. In the present matter, the applicant has sought to combine his income with his brother. The Tribunal is satisfied that the applicant’s brother is a person specified in reg 2.60W(3)(b).

9. The sponsorship application was made on 8 December 2020. The Tribunal finds that the applicable income year is the 2019-20 financial year.

10. The applicant provided Tribunal with a copy of the primary decision record. It indicates that the applicant provided the Department of Home Affairs with a Notice of Assessment – year ended 30 June 2020 issued by the Australian Taxation Office, which showed a taxable income of $11,654. The applicant also provided a record of his brother’s taxable income in support of the application. This was also in the form of a Notice of Assessment – year ended 30 June 2020 issued by the Australian Taxation Office, which showed a taxable income of $38,533. Both documents were provided to the Tribunal. Both incomes combined total the amount of $50,187. This amount is below the amount prescribed in the Instrument.

11. In support of the review application, the applicant provided the Tribunal various material including medical, payslips and character documents. The applicant further provided financial documents relating to himself and his brother for previous income years.

12. Further, the applicant provided a statement to the Tribunal dated 27 March 2021. There, the applicant explained that he would be able to care and financially provide for the visa applicant and referred to savings that he had accumulated. The applicant further indicated that the reason that he did not reach the income threshold for the relevant income year was that he had left managerial work in order to start his own business. 

13. The Tribunal accepts the applicant’s evidence that his income was reduced due to starting his own business and has further noted the applicant’s submission relating to his possible future taxable income for the year ending 30 June 2021.

14. However, in order to meet the requirements of parent sponsorship as provided for in reg 2.60U, the applicant must meet all the requirements of the income test as provided for by reg 2.60W. As noted above, the income year is defined as the most recent year before the date of lodgement. The Tribunal is unable to consider taxable income in the subsequent years or potential future taxable income.

15. The Tribunal finds that the applicant’s taxable income, combined with that of his brother, in the income year was $50,187. The prescribed amount is $83,454. The Tribunal is not satisfied that the applicant passes the income test and is not satisfied that the requirements of reg 2.60U(1)(f) are met.

16. As such, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a parent sponsor.

17. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

18. The Tribunal affirms the decision not to approve the applicant as a parent sponsor in relation to the parent sponsor class.

    M. Edgoose
    Member