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.

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

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

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

BUSINESS TALENT (PERMANENT) VISA – Subclass 132

1. Significant Business History stream

This visa allows experienced business owners to operate a new or existing business in Australia, travel in and out of Australia any number of times as long as the visa is valid, study in Australia, have their family accompany them to Australia (they will have access to work and study rights) and live in Australia as a permanent resident for five years.

Requirements

You must be younger than 55 years of age, although a state or territory can waive this requirement if your proposed business will be of exceptional economic benefit to the region where it will operate.

You must have a complete successful business career.

You must possess a genuine desire to continuously own and uphold a management position in a business in Australia.

You, your partner, or you and your partner combined must meet all of the following:

– total net assets of at least AUD400 000 as the ownership interest in one or more qualifying businesses for least two of the four fiscal years immediately before you are invited to apply and if the qualifying business(es) was a publicly listed company, a shareholding of at least 10 per cent of the total issued capital.

– net business and personal assets of at least AUD1.5 million that are legally acquired and can be transferred to Australia within two years after the visa is granted.

– a total annual turnover of at least AUD3 million in one or more of your main businesses in at least two of the four fiscal years immediately before you are invited to apply.
– ownership interest of at least:

(a) 51 per cent of a business with turnover of less than AUD400,000 per year; or
(b) 30 per cent of a business with turnover of more than AUD400,000 per year, or
(c) 10 per cent of a publicly listed company.

You and your partner must have had no involvement in unacceptable business or investment activities.

You must be nominated by an Australian state or territory government that has approved your expression of interest (EOI).

You and any family who apply for the visa with you must meet our health and character requirement.

You must have functional English. If requirement for functional English cannot be met by you or any dependant applicant 18 years or older, you can pay the second instalment of the visa application charge.

You must not have had a visa cancelled or a previous application refused.

Cost

The visa costs AUD7,290 for the main applicant.

An additional charge for each family who applies for the visa with you is also payable.

– 18 and over: AUD3,645
– Under 18: AUD1,820

Duration of stay once you are granted the visa

Stay in Australia indefinitely.

Business Obligations after being granted this visa

You must:

establish a qualifying business in Australia, or participate in an existing qualifying business in Australia.

maintain substantial ownership.

maintain direct and continuous involvement in the day-to-day management of the business.

make decisions that affect the overall direction and performance of the business in a way that benefits the Australian economy.

By RSG Lawyers

Footnotes are available upon request.