Triegaardt (Migration)

This matter concerned an application for a Skilled - Independent (Permanent) (Class SI) visa, subclass 189, by the applicant, Mr. Triegaardt. The dispute arose because the applicant's taxable income in the 2015/2016 income year, as recorded in his Notice of Assessment from the Australian Taxation Office, was below the minimum amount specified by the Minister for that year. The decision under review was affirmed by the Tribunal.

The legal issue before the Tribunal was whether the applicant met the requirements of clause 189.233 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant's taxable income for the relevant income year was no less than the minimum amount specified, or if he qualified for an exemption as a member of a specified class of exempt applicants. The applicant contended that his lower taxable income was due to salary sacrificing arrangements with his employer, a not-for-profit organisation, and that his overall remuneration package should be considered.

The Tribunal's reasoning centred on the precise wording of clause 189.233, which requires consideration of "taxable income" as defined by the *Income Tax Assessment Act 1997*. The Tribunal found that salary sacrificing, while lawful and in accordance with ATO policy, effectively reduced the applicant's taxable income. Therefore, the applicant's argument that his taxable salary should be considered instead of his taxable income was rejected, as the regulations did not provide for such an interpretation or discretion. The Tribunal affirmed that the applicant did not fall within any specified class of exempt applicants.

Consequently, the Tribunal affirmed the delegate's decision not to grant the Skilled - Independent (Permanent) (Class SI) visa to the applicant. As the primary applicant did not meet the visa requirements, the applications of any secondary applicants, who applied as members of his family unit, were also affirmed.