Van (Migration)

[2022] AATA 1653

Van (Migration) [2022] AATA 1653 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Duc Than Van
Mr Steven M Van
Mr Tony M Van

REPRESENTATIVE:  Mr Daniel Le

CASE NUMBER:  2119066

HOME AFFAIRS REFERENCE(S):          BCC2020/1866805

MEMBER:Amanda Mendes Da Costa

DATE:7 March 2022

PLACE OF DECISION:  Melbourne

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 considers that the applications of the second and third named applicants should be reconsidered on the basis that they are members of the family unit of a person who meets the primary requirements for the grant of a Subclass 189 visa.

Statement made on 7 March 2022 at 3.27pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – Notices of taxation Assessment provided– new evidence – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 189.232

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 8 December 2021 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 8 July 2020.

3. The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. In the present case, the delegate refused to grant the visas because the applicant did not satisfy cl 189.232(1) because the applicant had provided copies notices of assessment given to the applicant by the Commissioner of Taxation, of the applicant’s income tax liability in relation to the four most recently completed income years before the date of the application (during the period of five years immediately before that date).

4. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

5. The applicants were represented in relation to the review.

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 the requirements of cl.189.232 to Schedule 2 to the Regulations.

8. The Tribunal notes that the applicant provided notices of assessment for the years ended 30 June 2016, 2017, 2018 and 2019.  The Tribunal further notes that the applicant has provided it with a notice of assessment for the year ended 30 June 2020.  Accordingly, the Tribunal is satisfied that the applicant has provided copies of notices of assessment given to him by the Commissioner of Taxation of the applicant’s income tax liability in relation to the four most recently completed income years before the date of the application (during the period of five years immediately before that date).

9. The Tribunal finds that the applicant satisfies cl.189.232(1) and therefore meets the requirements of cl.189.232.

10. The Tribunal considers that the applications of the second and third named applicants should be reconsidered on the basis that they are members of the family unit of a person who has met the primary requirements for the grant of the visa.

11. Given the findings above, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria.

    decision

12. 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.

13. The Tribunal considers that the applications of the second and third named applicants should be reconsidered on the basis that they are members of the family unit of a person who has met the primary requirements for the grant of a Subclass 189 visa.

    Amanda Mendes Da Costa
    Member