Watson (Migration)

[2019] AATA 3136

Watson (Migration) [2019] AATA 3136 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Deborah Shan Boughay Watson
Dr Kevin Nigel Elks
Mr Nathaniel Marcus Donald Elks
Miss Lauren Deborah Samantha Elks
Miss Bethany Olivia Victoria Elks
Miss Michaela Zoe Rosetta Elks

CASE NUMBER:  1907699

HOME AFFAIRS REFERENCE(S):          BCC2018/3317937

MEMBER:Alison Mercer

DATE:1 May 2019

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.

Statement made on 01 May 2019 at 10:18am

CATCHWORDS
MIGRATION – Skilled - Independent (Permanent) (Class SI) visa – Subclass 189 – nominated skilled occupation – Anaesthetist – Points-tested stream – 2017/18 tax assessment notice provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), 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 15 March 2019 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (subclass 189) (Skilled – Independent) visas under s.65 of the Migration Act 1958 (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 and applied for the visa on 2 September 2018, nominating the skilled occupation of Anaesthetist.

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 (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 he found that the applicant did not satisfy cl.189.232, which required that she had provided copies of her tax notices of assessment for the 4 most recently completed income years before the date of the visa application (during the period of 5 years immediately before that date). The delegate found that the 4 most recent income years prior to the visa application date of 2 September 2018 were 2014/15, 2015/16, 2016/17 and 2017/18, and that the applicant had provided notices of assessment for 2014/15, 2015/16 and 2016/17 only. On 14 November 2018, the Department requested the applicant to provide her 2017/18 tax notice of assessment. The delegate noted that the applicant provided her PAYG payment summary for 2017/18 and a screenshot of an ATO Tax Agent Portal report for 2017/18 created on 3 December 2018, but found that she still had not provided the 2017/18 tax assessment notice. He therefore found that the applicant did not meet cl.189.232(1) and thus did not meet cl.189.232 as a whole.

4. The delegate also refused to grant the second to sixth named applicants (the applicant’s husband and children) subclass 189 visas as he found that they did not meet the secondary visa criteria requiring that they were members of the family unit of a person who held a subclass 189 visa, and there was no evidence that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 1 April 2019.  It was accompanied by a copy of the delegate’s decision, a statement from the applicant and a number of supporting documents. In summary, the applicant made the following points:

   ·    she was a consultant Anaesthetist living and working in Perth in Western Australia since January 2006, and her husband was also a consultant Anaesthetist. They had 4 dependent children aged 16, 14, 12 and 10;

   ·    they were late to submit their 2017/18 tax returns to the Australian Tax Office (ATO), and apologised for this. She stated that in the medical profession, many people submitted their tax returns a year behind;

   ·    although she and her husband tried to get their tax returns prepared in time to comply with getting the assessments to provide to the Department, they were unable to do so with their accountant until last week;

   ·    They had provided their 2017/18 tax assessment notices to the Tribunal;

   ·    they had both enjoyed living and working in Australia for the past 13 years and were employed in a public and a private hospital respectively. They also did a fair amount of teaching of young doctors, trainee anaesthetists and medical students in and around the Perth region;

   ·    they earned in excess of $400,000 per year and paid the top 47% tax rate on their earnings. The family was not a financial burden to Australia and they had no dependent relatives seeking to enter Australia from other countries. Their children would be effective members of the Australian workforce and were hard working;

   ·    at present, the applicant and her husband were unable to vote, and desired to become permanent residents of Australia to have a say in their children’s and the country’s future. Two of their children were born in New Zealand and 2 in Australia. None of the children really knew anywhere else as home but Australia;

   ·    the alternative to the family being granted Australian permanent residence was for them to return to New Zealand permanently, but they wanted to remain in Australia. That is why they applied in the NZ pathway to Australian permanent residence in the first place; and

   ·    within their field of employment, they were disadvantaged as to where they could work, despite their qualifications, due to their temporary visa status.

6. The accompanying documents included a tax notice of assessment for the applicant for the 2017/18 financial year, issued on 2 April 2019. She also provided her assessments for the 2013/14, 2014/15, 2015/16 and 2016/17 financial years.

7. The matter was constituted to a Tribunal member on 5 April 2019.

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets cl.189.232, which provides as follows:

    (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.

11. The Tribunal concurs that, as the subclass 189 visa application was made on 2 September 2018, the relevant income years (otherwise known as financial years) are 2014/15, 2015/16, 2016/17 and 2017/18. The Tribunal is satisfied that the applicant provided her notice of income tax assessments for 2014/15, 2015/16 and 2016/17 to the Department as part of the visa application. However, she conceded that she did not have her 2017/18 tax assessment prepared in time to comply with the Department’s requested timeframe.

12. The Tribunal is satisfied that the applicant has now provided her 2017/18 income tax assessment to the Tribunal. It further finds that there is nothing in the wording of cl.189.232 which required her to have done so at the time that she made the visa application, and that the subclause is capable of being satisfied as at the time of the Tribunal’s decision, now that the applicant has provided the relevant assessment notice.

13. Accordingly, the Tribunal finds that the applicant satisfies cl.189.232(1) and meets cl.189.232 as a whole (the Tribunal is satisfied that cl.189.232(2) does not apply in this case as the applicant’s tax assessment notices include her tax file number).

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

15. As the second, third, fourth, fifth and sixth named applicants applied on the basis that they are members of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    DECISION

16. 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.

    Alison Mercer
    Member