Zahidi (Migration)

[2021] AATA 1124

Zahidi (Migration) [2021] AATA 1124 (20 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Dost Mohammad Zahidi

CASE NUMBER:  1927800

DIBP REFERENCE(S):  BCC2019/3751961

MEMBER:Steven Griffiths

DATE:20 April 2021

PLACE OF DECISION:  Adelaide

DECISION:That the Tribunal affirms the decision to not approve the applicant as a family sponsor in relation to the parent sponsor class.  

Statement made on 20 April 2021 at 1:32pm

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – application for approval as sponsor – income test – investment properties – no discretion to consider other forms of income than prescribed taxable income – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140E
Migration Regulations 1994 (Cth), rr 2.60U(1)(f), 2.60W(1), (2)

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 14 September 2019 not to approve the applicant as a family sponsor in relation to the parent sponsor class (parent sponsor) under r. 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 r.2.60U of the Migration Regulations 1994 (the Regulations) on 29 July 2019. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.60U of the Regulations because he failed to pass the income test at r.2.60W. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 20 April 2021 to give evidence, respond to questions and present arguments.

4. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were raised by the applicant on holding a Microsoft Teams hearing and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.   

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

   The Income Requirement

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

7. Under r. 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 r. 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 family sponsor.

8. The Tribunal notes the visa application confirmed the applicant did not seek to include the incomes of his wife or sister as part of the assessment for the visa

9. The application for the visa was made on 29 July 2019, with the applicant providing tax assessment detail for him of a taxable income of $ 0.00 for the 2017/2018 year, upon which the decision was based.

10. The Tribunal finds that the income year for the assessment of the application is the 2018/2019 financial year.

11. The Tribunal notes that the applicant has provided to the Tribunal a range of information, including a letter from his accountant of his gross income, details of his land tax liabilities, details of his investment property local government rates accounts and a submission on his payment of stamp duty for properties previously purchased and a suggested level of capital gains tax to be paid upon the future sale of his investment properties.

12. The Tribunal advised the applicant that none of this information was relevant to the consideration being given for the income requirements of this visa class.

13. The Tribunal accepts the oral evidence of the applicant that for the 2018/2019 year, in recognising his income from his employer and investment properties against the expenditure on the investment properties, his taxable income was $ 0.00.

14. The Tribunal notes the oral evidence of the applicant that he was hopeful that by providing the full details of his financial affairs he could demonstrate his ability to finance the visa applicant, his mother, migrating to Australia.

15. The Tribunal noted the position, and hope, of the applicant, while confirming the Tribunal is required to consider the application based on the property based taxes he pays during his yearly financial activities, to which the Tribunal advised him that that no discretion existed in that assessment, no matter what the financial activities of the applicant.

16. The Tribunal notes the Decision Record of 14 September 2019 required the applicant to provide evidence of the taxable income for the financial year prior to the lodgement of the visa application being at least $ 83,454.80 and that the taxable income of the applicant be at least half.

17. The Tribunal accepts the oral evidence of the applicant that he now understands this requirement of the taxable income and the amount required and acknowledges that he, his wife and sister will have to consider if another application can be lodged by them that meets the taxable income of at least the required $ 83,454.80 and one of them being more than at least half of the required figure for the year priori to which any future application for assessment of a visa is made.

18. The Tribunal accepts the entirety of the applicant’s evidence. The Tribunal acknowledges the applicant’s evidence that he meets the purpose of the visa by being able to securely meet his mother’s expenses. However, the legislation does not provide any discretion and does not allow the Tribunal to waive the income test requirement or to find that the applicant passes the income test otherwise than by reference to the taxable income. The legislation does not allow for consideration of the circumstances and the reasons why a person’s income may be below the prescribed amount for the financial year prior to the application being lodged. It is a finding of fact for the Tribunal whether the applicant has the prescribed taxable income. Either the applicant had that income, or he did not. If the Tribunal finds that the applicant did not have the prescribed taxable income, it is unable to consider the reasons for it. There is no discretion with respect to the taxable income requirement. 

19. The Tribunal finds that the taxable income of the applicant in the 2018/2019 income year was $ 0.00 while he is required to have a taxable income of at least half the prescribed amount is $ 83,454.80. The Tribunal is not satisfied the applicant passes the income test and is not satisfied the requirements of r.2.60U(1)(f) are met. 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. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

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

    Steven Griffiths
    Member