Triegaardt (Migration)

[2020] AATA 1869

Triegaardt (Migration) [2020] AATA 1869 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mark Jonathan Triegaardt
Mrs Versania Marildia Triegaardt
Miss Amber Jean Triegaardt

CASE NUMBER:  1821681

HOME AFFAIRS REFERENCE(S):          BCC2018/899029

MEMBER:Denise Connolly

DATE:13 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 13 May 2020 at 12:04pm

CATCHWORDS

MIGRATION – Skilled - Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – taxable income no less than minimum amount specified – notices of assessment for relevant four years – exemption from requirement – taxable salary and taxable income – salary sacrificing not a specified exemption – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs on 12 July 2018 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 25 February 2018. The delegate refused to grant the visa on the basis that the applicant did not meet cl.189.233 because he had not provided evidence that his taxable income in the relevant 4 income years (the relevant years) was no less than the minimum amount specified by the Minister.

3. The applicants appeared before the Tribunal on 12 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mark Oxley, Client Services Consultant, Access Pay.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present review is whether the applicant meets the requirement to demonstrate that, in the relevant years, his taxable income is no less than the minimum amount specified by the Minister for the year; or that the applicant is a member of a class of exempt applicants, as specified.

   The relevant law

6. Clause 189.232 states:

   (1) The applicant has provided copies of 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).

   (2) The requirement in subclause (1) is satisfied in relation to a copy of a notice even if the copy does not include the applicant's tax file number within the meaning of Part VA of the Income Tax Assessment Act 1936.

7. Clause 189.233 states:

   (1) For each of the 4 completed income years mentioned in subclause 189.232(1):

   (a) the applicant's taxable income (within the meaning of the Income Tax Assessment Act 1997) is no less than the minimum amount specified by the Minister for the year under subclause (2); or 

   (b) the applicant:

   (i) satisfies the Minister that he or she was a member of a class of exempt applicants specified by the Minister under subclause (2) during the whole, or a specified period, of that year; and

   (ii) provides evidence specified by the Minister under subclause (2) in relation to that class of applicants.

   (2) The Minister may, by legislative instrument:

   (a) for the purposes of paragraph (1)(a), specify a minimum amount of income for an income year; and

   (b) for the purposes of paragraph (1)(b), specify a class of exempt applicants, and evidence in relation to that class.

   Evidence to the Tribunal

8. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the primary decision the delegate had before her the applicant’s ATO Notices of Assessment recording the following taxable income in the income years:

   a.2016/2017 - $54,393;

   b.2015/2016 - $45,663;

   c.2014/2015 - $56,119; and

   d.2013/2014 - $61,479.

9. As the applicant’s income in the 2015/2016 income year was less than the minimum amount specified by the Minister for the year under cl.189.233(2), $53,900, the delegate found cl.189.233(1)(a) was not met.

10. The delegate recorded that the applicant sought an exemption because his lower taxable income was due to his employment with a not for profit organisation, Uniting Care Queensland, and salary sacrificing. He advised the reportable fringe benefit was $31,176. The applicant provided evidence that, while his salary package in the 2015/2016 year was $83,078, he salary sacrificed, electing to lawfully receive a portion of his salary as tax-free non-cash benefits in line with policy and ATO rules.

11. The delegate found that the instrument does not provide for such circumstances and the applicant does not fall within a class of exempt applicants. The delegate found he does not meet cl.189.233(1)(b).

12. The applicant provided to the Tribunal evidence of his employment with Uniting Care Queensland, including his employment agreement dated January 2013, recording a base salary of $75,000 and a remuneration package of $81,750.  The employment agreement outlines his salary sacrificing options. He also provided evidence of his salary sacrificing and his reportable fringe benefits for the 2015/2016 income year. The payroll manager confirmed that he took leave without pay and salary sacrificed in that year. He also provided evidence that his base salary in the 2018 income year was $86,430.

13. Essentially the applicant sought for the Tribunal to take into account his taxable salary, rather than his taxable income recorded in the ATO Notice of assessment for the 2015/2016 income year and reduced by salary sacrificing.

14. At the hearing the Tribunal explained to the applicant the requirements of the relevant law. It explained that cl.189.233 requires it to consider the applicant’s taxable income, within the meaning of the Income Tax Assessment Act 1997, and that it does not have any discretion to consider the applicant’s taxable salary instead. It explained that it accepted that the applicant had salary sacrificed in accordance with ATO’s policy and rules but this effectively reduced his taxable income and it is the taxable income, as recorded in the ATO Notice of assessment, that must be considered.

15. The Tribunal spoke briefly with Mr Oxley. Once it explained that the Tribunal must take into account the taxable income, within the meaning of the Income Tax Assessment Act, he had no oral evidence to provide.

    Assessment of the evidence

16. The Tribunal finds that, as the applicant made the visa application on 25 February 2018, the relevant years are the 2013/2014, 2014/2015, 2015/2016 and 2016/2017 income years. The Tribunal finds the minimum amount specified by the Minister in the instrument, LIN 19/191, for each of those years is $53,900.

17. The Tribunal accepts the applicant’s evidence about his taxable income in the income years from 2013/2014 to 2016/2017. It accepts that in each year, except 2015/2016, the applicant’s income exceeded the minimum amount specified by the Minister as set out in the instrument LIN 19/191. His taxable income, as recorded in his ATO Notice of Assessment, in the 2015/2016 income year was $45,663.

18. The Tribunal accepts that the applicant’s taxable salary in the 2015/2016 income year was greater than the specified income threshold, $64,326. The applicant salary sacrificed, in accordance with the law, which resulted in his taxable income being $45,663. While the Tribunal accepts that the applicant’s taxable salary exceeded the income threshold specified by the Minister in LIN 19/191, this is not the income the Tribunal must consider. Clause 189.233(1)(a) clearly states that it is the applicant’s taxable income (within the meaning of the Income Tax Assessment Act 1997) that must be taken into account. The Tribunal does not have any discretion to make a favourable decision in the applicant’s case unless he falls within a class of exempt applicants as specified by the Minister in LIN 19/191.  Those exemptions in summary are as follows:

    a.Subclass 444 visa holders who were unable to meet the income requirement as they were prevented from leaving Australia to return to New Zealand because an Australian authority (Family Court of Australia) had assigned primary care of a child to the applicant and placed restrictions on the applicant from removing the child from Australia;

    b.Subclass 444 visa holders who were unable to meet the income requirement because they were receiving compensation for an injury which prevented them from earning at or above the income threshold;

    c.Subclass 444 visa holders who were unable to meet the income requirement because they were on an approved period of parental or carer’s leave from their usual employment.

19. The Tribunal discussed the exemptions with the applicant at the hearing. He confirmed that none were relevant. The Tribunal is not satisfied, on the evidence before it, that the applicant’s circumstances fall within those specified by the Minister for exempt applicants, as summarised above.

20. The Tribunal finds that in the 2015/2016 income year the applicant’s taxable income was less than the amount specified, $53,900. It follows that the applicant does not satisfy the requirements in cl.189.233(1)(a).

21. In relation to the exemptions provided for in the relevant instrument, the applicant has not demonstrated that any of those exemptions applies for that year. The applicant acknowledged this at the hearing. On this basis, the Tribunal finds that cl.189.233(1)(b) is not satisfied.

22. 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.

23. There is no information before the Tribunal that either of the secondary applicants meets the primary criteria for the grant of the Subclass 189 visa. The secondary applicants applied for the visa on the basis of being members 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 secondary applicants must also be affirmed.

    DECISION

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

    Denise Connolly
    Member