COVID-19 – Update On RSG Operations

RSG Lawyers and Associates will continue to operate during the COVID-19 event.
While our team will be operating remotely, our reception will remain open to take calls only. Consultations will be available by telephone or video link.
Should you have any queries, you are welcome to contact our reception on (03) 9350 4440. If you wish to contact our Wagga Wagga reception, please call (02) 6922 7758.
The COVID-19 event will not disrupt any of our clients matters and our office has a plan and is well resourced to be able to work through a mandatory national quarantine should it be implemented by the Australian Government.
We take this opportunity to inform the public to follow any Department of Health directions, to stay well informed and to never panic.
Yours sincerely,
The Team at RSG Lawyers and Associates.

Must a decision-maker provide a statement of reasons?

I act on behalf of clients who have received a decision by an Australian government department or a public official. The power given to such departments or public officials to make such decisions are by legislation.

Such decisions are reviewable by:

-reconsideration by the original decision maker;

-merits review at the relevant Tribunal (ie AAT, VCAT);

-judicial review on the basis of an error of law; or

-complaint to the Ombudsman.

When a decision notice is given to an Applicant, it must generally be accompanied by a document that pronounces the reason for the decision made. This document is commonly known as the “statement of reasons”.

I will briefly summarise in what circumstances a decision-maker may have an obligation to provide a statement of reasons.

There is no particular duty at common law for the decision-maker to provide a statement of reasons. If there is a duty to provide a statement of reasons, it will be due to the governing legislation of a decision.

Generally, the decision-maker will have a duty to provide a statement of reasons where:

  • The decision is reviewable at the Administrative Appeals Tribunal. For example, under Section 28 of the Administrative Appeal Tribunal Act 1975 it states:

“Person affected by decision may obtain reasons for decision

Request for statement of reasons

             (1)  Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant ) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.”

  • The decision can be judicially reviewed at Federal Court; or 
  • the legislation that gives the decision maker the power to make the decision also obliges the decision-maker to set out a statement of reasons. 

Once you receive Statement of Reasons

Once you obtain a statement of reasons, it is important you carefully consider whether the decision-maker has provided any inadequate reasons for the decision.

If you find a mistake or error in the decision-makers reasons you may review the decision.

There are strict time-lines for reviews of a decision and in some circumstances those time-lines are not extendable.

By Farhan Rehman
Partner at RSG Lawyers.
Tel: (03) 9350 4440
Email: farhan@rsglaw.com.au

Footnotes are available upon request.

Visa Cancellation: Can I leave Detention?

Permanent Residents of Australia committing “significant” offences are sent to immigration detention once they have received a notification that their visa has been cancelled.

Visa holders who face such cancellations have already spent long jail terms in prison. Upon release from Prison, they are subject to the jurisdiction of the Department of Immigration and Border Protection and taken directly to immigration detention.

Those who are detained may have a right to review the cancellation of their visa at the Administrative Appeals Tribunal however are generally not able to leave immigration detention even during the review process. Such detainees are prevented from making an application for any visa to allow them to leave detention as a result of Section 501 of the Migration Act 1958 (Act).

Section 501 of the Act relevantly provides that ‘A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if at an earlier time during that period, the Minister made a decision under section 501 to cancel a visa that has been granted to the person and that decision was neither set aside nor revoked before the application time’.

The Act however does not prevent a person in such circumstances from making an application for Protection or WR-070 Bridging Visa (Removal Pending) (RPBV). However, the RPBV is only available to a person after an invitation is extended to them by the Minister.

Footnotes are available upon request.

By Farhan Rehman, Partner at RSG Lawyers.

Contact information: Email: farhan@rsglaw.com.au Tel: (03) 9350 4440

RSG Lawyers Co Seminar with ICV, Crescent Wealth and National Zakat Foundation

We work with various communities across Australia.

On Saturday, the 25th of May 2019, we conducted a seminar in partnership with the Islamic Council of Victoria, Crescent Wealth and the National Zakat Foundation in Melbourne.

RSG Lawyers partner, Farhan Rehman, conducted a presentation on the law of intestacy and the importance of having a current Will.

 

This slideshow requires JavaScript.

Defences for Breach of Directors’ Duties

A director of a company has many responsibilities, one of which is a duty towards the company and its members. Under the Corporations Act 2001 (Cth) (the Act) directors and/or officers of a company must exercise their powers and fulfill their duties with a degree of care and diligence that is reasonably expected from a person in such a position.

There are three main sources where a liability may be imposed on a director.

These are:

1. The Corporations Act 2001;

2. Statutory provisions; or

3. Common law and equitable principles.

There are also fiduciary duties imposed on directors to act for a proper purpose, to act in good faith and to act in the best interests of the company. This duty requires the director to avoid conflicts of interest and to not misuse their position in the company to gain an advantage for themselves. So, what defences are available for directors? There are three main defences available to a director for a breach of duty and or fiduciary duty. These are: the business judgement rule; reliance on others; and use of a delegated power.

The business judgement rule requires a director to have:

• made a decision in good faith and for a proper purpose;

• no personal interest in the subject matter of the decision;

• informed themselves with regard to the subject matter of the decision to the extent they reasonably believed to be appropriate; and

• rationally believed the decision was in the best interests of the company.

AVAILABLE DEFENCES FOR DIRECTORS’ BREACH OF DUTY

The reliance on others defence usually involves receiving of advice from an accountant or lawyer in making a decision for the company. To be absolved of wrongdoing, the director must have believed on reasonable grounds, and in good faith, and after making proper enquiries in the circumstances, that the advice given to them was prepared by a reliable and competent person.

In some circumstances, a director can rely on the fact that another person was responsible for the decision and judgement – use of a delegated power. Similarly, the director will need to show that they believed on reasonable grounds and in good faith that the person was reliable and competent for power to be delegated to them.

The above was a brief overview of the defences available to directors for breach of duty. If you or someone you know has any concerns about any breaches of duties owed to a company, please call us to discuss the matter further.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Footnotes available upon request.

Distinguished Talent Visa (Subclass 858)

In The Press

We acted for an Iranian National named Mohsin Dashti in 2015. Through the services of our firm, Mr Dashti successfully obtained a Distinguished Talent Visa. We also worked closely with Athletics Australia during the process. You can view Mr Mohsin Dashti’s story which was reported on SBS Australia News by clicking here.

The Distinguished Talent Visa (subclass 858)

The Distinguished Talent Visa is for those that are uniquely talented and recognised in their field. This may include those persons in academic, entertainment, arts, sport, science or a combination of all.

If a person is eligible, and wishes to apply, the application must be prepared carefully having regard to the requirements which are prescribed under the Migration Act 1958 and Migration Regulations 1994.

Some of the requirements are summarised as follows:

-Demonstrate that you have been “prominent” in your field for the past two (2) years.

-Be nominated by an Australian citizen, Australian permanent resident, eligible NZ citizen, or Australian organisation in Australia with a national reputation in your field.

-While you can be any age when applying for this visa, if you are under 18 years of age or over 55 years of age you must demonstrate that you of exceptional benefit to Australia.

-Demonstrate that you will have the ability to set up yourself in Australia.

-Demonstrate that you will be an asset to Australia.

-Prove that you are Internationally recognised.

-Meet character and health requirements.

– You must demonstrate that you have functional English.

If you are granted the visa

The distinguished talent visa is a permanent residence visa.

This means that if you (and members of your family unit) are granted this visa you can:

-Stay in Australia indefinitely.

-Work and Study in Australia.

-Enroll in Medicare (Medicare is the scheme that gives Australian residents access to healthcare).

-Travel to and from Australia for five years. After the five years has passed, you and your family will need to be granted a resident return visa to be able to be able to enter back into Australia.

Do you need further information?

You are welcome to contact us on (03) 9350 4440.

If you are calling internationally please add the country code as follows: +61393504440.

Our phone line is answered 24 hours and 7 days a week.

Written by RSG Lawyers.
Footnotes are available upon request.

Restrictions on Permanent Residence Travel

It is correct to say that your Australian Permanent Residency (PR) generally gives you indefinite stay in Australia. However, if you wish to travel to and from Australia after the initial 5 years of your PR grant, you will be required to obtain a Resident Return Visa (RRV).

You can obtain an RRV for 5 years or 12 Months subject to your particular circumstances.

5 Years

To obtain a 5 year RRV you would need to prove you have been in Australia physically for at least 2 of the last 5 years physically in Australia.

12 Months

In order to obtain a 12 month RRV, you could show:

-Evidence that you have established residence in Australia – for instance leased accommodation, enrolled your children into school, Australian bank accounts or moved your assets to Australia.

-Close family members in Australia.

-Cultural ties to Australia.

Absence for more than 5 Years

If you have not returned back to Australia for more than 5 years, you would need to show compelling reasons for your absence.

The case Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211 (10 March 2005) established the following test to demonstrate compelling reasons:

• “The applicant is the one who must have been compelled by the reasons for absence
• Applicants do not need to demonstrate an involuntary element, involving circumstances beyond a person’s control or involving physical or legal necessity
• Compelling is to be interpreted broadly – forceful reasons for an absence may involve moral necessity or other circumstances which are convincing by reason of their forcefulness”.

By RSG Lawyers

Footnotes available upon request
admin@rsglaw.com.au
(03) 9350 4440

Student visa refusals and cancellations: transferring to a lower level of study

We have assisted a number of students at the Tribunal and the Federal Circuit Court who have had their student visa refused or cancelled.

Today, we write to inform you of one of the reason why your student visa may be refused or cancelled if you transfer to a lower level of study.

In our experience, it is one of the more common reasons why students in Australia are refused or cancelled their visa.

Condition 8202 is found in Schedule 8 of the Migration Regulations 1994 and states as follows:

 (1)  The holder must be enrolled in a full-time course of study or training if the holder is:

                     (a)  a Defence student; or

                     (b)  a Foreign Affairs student; or

                     (c)  a secondary exchange student.

             (2)  A holder not covered by subclause (1):

                     (a)  must be enrolled in a full-time registered course; and

                     (b)  subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

                     (c)  must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

                              (i)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

                             (ii)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

             (3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

                     (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

                     (b)  changes their enrolment to a course at the Australian Qualifications Framework level 9.

You must maintain enrolment in a registered course that is the same level as, or at a higher Australian Qualification Framework (AQF) level than, the registered course for which you were granted a visa

If you transfer to a lower AQF level, you will be in breach of condition 8202 and may risk refusal or cancellation of your student visa. This is also generally applicable if you are changing to a lower AQF level even with the same education provider.

The only exemption that applies is if you are studying a doctoral degree and you wish to transfer to a master degree.

We will continue to share further updates on what to avoid while you are on a student visa in Australia.

By RSG Lawyers.

Footnotes are available upon request.

Email: admin@rsglaw.com.au

(03) 9350 4440

Foreign Investment Review Board Approvals and Real Estate Exemptions

Australia’s legal framework generally requires foreigners to apply for foreign investment review board (FIRB) approval before purchasing residential real-estate in Australia.

However, under the Foreign Acquisitions and Takeovers Amendment Act 2015 (Act), certain people and transactions are exempt from the usual requirement for notification under the Act.

In summary, the following criteria must be met to be exempt from FIRB approval:

 an Australian citizen (regardless of whether they are ordinarily resident in Australia or not) or a New Zealand citizen;
• the holder of an Australian permanent visa; or
• foreign persons purchasing property as joint tenants with their Australian citizen spouse, New Zealand citizen spouse, or Australian permanent resident spouse.

Note, the above-mentioned exemption does not apply to those purchasing property as tenants in common.

Further to the above, foreigners do not require FIRB approval to obtain interest in residential real estate that is:

• a new or near-new dwelling purchased from a developer that holds a new or near-new dwelling exemption certificate that allows the developer to sell dwellings in the specified development to foreign persons;

• an aged care facility, retirement village or certain student accommodation provided the interest is not above the relevant threshold. For more information, see Guidance Note 14;

• a time share scheme where the foreign person’s total entitlement (including any associates) to access the land is no more than four weeks in any year;

• acquired by will or devolution of law;

• acquired directly from the Commonwealth, a State, a Territory, or local governing body, or an entity wholly owned by the Commonwealth, a State, a Territory or a local governing body; and

• an interest in certain residential real estate in designated Integrated Tourism Resorts.

Navigating through Australia’s foreign investment regime can be a complex and nuanced process. There are severe penalties for non-compliance and therefore it is imperative that any foreigner acquiring property in Australia carefully analyse the obligations imposed under the Act.

You are welcome to contact our office on the below listed contact details if you require further information.

By RSG Lawyers.

Footnotes are available upon request.

Email: admin@rsglaw.com.au

(03) 9350 4440

Australian Student Visa & “Assessment Levels”

We write this short summary to update you on Department of Home Affairs Assessment Levels.

Instrument 07/14 was used to determine the Assessment Level of the countries.

However, Instrument 07/14 was repealed (removed) years ago and is no longer used.

The Department of Home Affairs no longer displays any information publicly about the Assessment Levels of a country when assessing a student visa application.

Under Part 4 of the Department of Home Affairs Procedure Advice Manual it states:

Under no circumstances are decision makers to publicly disclose the immigration risk rating for a particular education provider or country – for example, “education provider x has an immigration risk rating of ‘two’”.

A student can determine their likely financial capacity and English language proficiency requirements by entering their intended education provider and country of citizenship into the Border website online client service tool. Please note that the word use here is “likely” and it is not a guarantee.

The country and provider immigration risk model operates in policy; it is not legislated.

The country and provider immigration risk model is intended to guide decision makers as to when to require formal evidence of a student’s financial capacity and English language proficiency.

Decision makers have the discretion to require evidence of financial capacity and English language proficiency from applicants with ‘streamlined evedentiary requirements’.

However, under policy decision makers at the Department of Home Affairs should not diverge from the outcomes of the student’s combined country and provider immigration risk rating unless particular circumstances exist.

We hope this short summary helps clarify some misunderstandings current and prospective International students may have regarding Assessment Levels.

By RSG Lawyers.

Footnotes available upon request.

Contact: Email: admin@rsglaw.com.au Ph: (03) 9350 4440 Web: http://www.rsglaw.com.au