491 Visa To The PR 191 And Tax Assessment Notices
Early last month, Immigration released information regarding the new 5 year Temporary Residency 491 visa. This visa will become available on the 17th November 2019. They have also released information on how you can convert this 491 visa into permanent residency via the new and 191 visa. This visa will become available on the 16th November 2022. You can read our previous newsletters about them here.
The official guidelines regarding the permanent residency 191 or the 491 visas have not been released as yet. However, we do have the explanatory statement regarding the legislation. This statement provides us something important regarding how long it will be before you can lodge PR.
The Explanatory Statement says;
“An income requirement for primary applicants holding Subclass 491 and subclass 494 visas is included for the Permanent Residence visa to ensure the economic objectives of these visas are maintained. This will require a primary applicant to submit evidence of their minimum taxable income for least 3 income years. The applicant’s minimum taxable income for three years must be no less than the minimum amount specified by the Minister in a legislative instrument.
The salary threshold will be determined by the Minister and is intended to be used as an indicator that an occupation is skilled and that the visa holder has the capacity to make a strong economic contribution to Australia in the future. Requiring evidence of taxable income provides clear evidence of their contribution to Australia’s income tax system. This is consistent with the economic objectives of Australia’s migration program.
Regional provisional visas are valid for five years and the income requirement should be met for three out of those five years. This means that people who may not be earning income the entire time due to illness, injury, or any other circumstances, will still have reasonable time to satisfy this criterion.”
It’s pretty clear then, the three ATO Tax Assessment Notices will be a compulsory requirement for the 191 PR visa. This is also clear by the way the law is written;
“The applicant has provided copies of notices of assessment, and any notices of amended assessments, given to the applicant under the Income Tax Assessment Act 1936 in relation to 3 relevant income years for the applicant.”
The extra problem arrises in what is defined as “relevant income years“;
- (a) the income year ended before the date of application; and
- (b) the applicant held a regional provisional visa for all or part of the income year.
Unfortunately while it was expected that income earned while you worked on a Bridging visa for the 491 visa the income level would be accepted. It is not. The law stipulates that the income accumulated can only be counted after the 491 visa is granted.
We know to apply for the 191 PR visa you must have held the 491 visa for at least three years. So let’s look at a couple of examples of how these ATO Assessments and your circumstances may play out.
Jesse has applied for his 491 visa in December 2019. He moved to Tasmania in November 2018 while holding a 485 visa. This 485 visa expired in January 2020. From January, he has been on a BVA for the 491 visa. The 491 visa is granted in June of 2020. He has been working full time in Tasmania since June 2019.
Jesse remains in Tasmania working full time. When can he apply for PR?
We will assume Jesse meets the minimum income level requirement while working full time since June 2019. In June of 2023, he will have met one key requirement; holding the 491 visa for 3 years. Also by June 2023 he would have completed 3 clear tax years and have assessment notices from the ATO for the 20-21, 21-22 and 22-23 tax years whilst the holder of the 491 visa. Therefore, Jesse will be ready to apply for PR in when he obtains his ATO assessment notice in July 2023.
Jesse starting full-time work in June of 2019 (like above), but his 491 visa was not granted until August 2020. This means that he will not have three ATO assessments of the income required until July 2024. He will have the 21-22, 22-23 and 23-24 ATO Notices. Even though Jessie meets the 3 year requirement of holding the 491 visa in June 2023, he will have to wait for over a year longer before he can apply, after he obtains his tax assessment notice in July 2024. The income year June 2019 to July 2020 cannot be used in his application because he did not hold the 491 during this period. Although his 3 years is up in August 2023 and yes he had 3 good income years for his work by July 2023 he has wait and work longer till July 2024.
You can see from these two examples that it may take a longer time for some people to gain the income level they require. You could be like the second example and have to wait more than 3 years to apply.
This income threshold has not been set, and until November 2022 the government doesn’t need to let you know. To be fair they should release it earlier so those working before applying for the 491 visa will have an idea if they will meet the requirements.
It would also be fair if the income of a spouse can be included to reach the yet to be set income threshold. It would also be fair to recognise that international students have already contributed a great deal to the Australian economy and the money they have spent here should also be considered.
One has to wonder why any income threshold is necessary at all. Isn’t the current requirement for the 887 of working full time for 12 months sufficient? Even if they just say for the 191 you need to work 3 years full time people could accept that. To have some undisclosed threshold hanging about creates an air of uncertainty.
It is expected the income threshold could be similar to the current one for the 189 NZ Citizen Stream of $53,900. We hope that it is actually not that high but it does give an indication of a threshold currently in place.
These new changes are going to be complicated so call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.