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

 

Criteria for 132 Business Talent Visa – Significant Business History Stream

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.

3 Immigration Law Updates 2019 – Parents Visa/ Partner Visa/ South Australia

We write this short but comprehensive blog article to update you about some of the important Australian immigration law changes.

1. 5 Year Temporary Parent Visa Announced 

The Australian Minister for Immigration David Coleman announced the commencement of the Sponsored Parent Temporary Visa (Subclass 870).

The Visa will be available parents and step parents of an Australian Citizen, Permanent Resident holder or eligible New Zealand Citizens.

No balance test will be required for the Subclass 870.

The cost will be $5,000 AUD per parent for a three year visa and $10,000 AUD per parent for a 5 year visa.

A holder of a Subclass 870 will not be able to work as part of the visa conditions.

The sponsor will be required to show financial capacity.

It has been reported that the Sponsored Parents Visa is to start from the 17th April 2019.

15,000 quota has been set for July 2019 to June 2020.

2.Partner Visa Processing Changes

The Migration Amendments (Family Violence and Other Measures) Bill 2016 was passed by the lower house on 28th November 2018.

The Bill is aimed at safeguarding vulnerable family members and married partners from violent sponsors.

The result of the the Bill is that sponsorship applications will have to be approved by DHA before partner visa applications can be lodged.

The changes are expected to delay the already long processing times for partner visa applications.

The changes are expected to come into effect in the next few months.

It may be in a prospective applicant’s interest to lodge before the changes are in effect.

3.South Australia Announcements

The South Australian Government has eased requirements for migration to its state.

Some of these include:

Immigration SA will offer state nomination for the Provisional 489 visa to any applicant who:

  • Is a current or former international student residing in South Australia; AND
  • Has resided continually in South Australia since March 2012 or earlier and continues to reside in South Australia; AND
  • Is currently:
    • working in South Australia in any occupation (does not have to be at a skilled level) for at least the last 3 months (minimum of 40 hours per fortnight); OR
    • studying a course with a minimum duration of one academic year in South Australia.

State nomination may be offered to the international students who are “able to obtain a skills assessment where they can meet the high performing graduate settings, even if they do not have experience. However, the work experience waiver requires a minimum grade point average (GPA) of 6.0”.

The chain migration pathway offers access to occupations on the Supplementary Skilled List, but since its introduction, this required a minimum bachelor’s degree or higher. This bachelor’s degree requirement has now been removed, meaning access to a range of trade occupations that are not on the State Nominated Occupation List is now possible for those with eligible family in South Australia.
Written by the team at RSG Lawyers.

Footnotes are available upon request.

Contact: EMAIL: admin@rsglaw.com.au
PHONE: (
03) 9350 4440
FACEBOOK: http://www.facebook/rsglawyersaus
WEB: http://www.rsglaw.com.au

Student Visas: Genuine Temporary Entrant Requirement (GTE): Political Situation: Assessment Levels?

You may have the necessary funds demonstrating you can afford to live, travel and study in Australia.

If you would like information on how to meet the financial requirement you can view a previous publication we wrote on our website here:

https://rsglaw.com.au/student-visa-financial-requirement-12-months-of-funds-option/

Demonstrating you have enough funds is only one of the criterias an applicant must meet for an Australian student visa.

One of the most common reasons why a Department of Home Affairs decision maker may refuse an Australian student visa is due to as the applicant being assessed as not meeting the Genuine Temporary Entrant (GTE) requirement.

Not long ago, the Department of Home Affairs used assessment levels as a means of establishing the documentary evidence required by each Applicant.

Assessment level 1 was at the top (requiring less documentary evidence ) and level 4 was at the bottom (requiring more documentary evidence).

As an integrity measure, Instrument IMMI 14/014 was repealed and such country level categorisation was removed.

All student visas (subclass 500) now generally require the same documentary evidence.

However, under Ministerial Discretion 69 the case officer will consider the political situation of the country from which the student applies from.

Point 9 of the Ministerial Discretion 69 states:

“The applicant’s circumstances in their home country

9. When considering the applicant’s circumstances in their home country, decision
makers should have regard to the following factors:

a. whether the applicant has reasonable reasons for not undertaking the study in
their home country or region if a similar course is already available there.
Decision makers should allow for any reasonable motives established by the
applicant;

b. the extent of the applicant’s personal ties to their home country (for example
family, community and employment) and whether those circumstances would
serve as a significant incentive to return to their home country;

c. economic circumstances of the applicant that would present as a significant
incentive for the applicant not to return to their home country. These
circumstances may include consideration of the applicant’s circumstances
relative to the home country and to Australia;

d. military service commitments that would present as a significant incentive for
the applicant not to return to their home country; and

e. political and civil unrest in the applicant’s home country. This includes
situations of a nature that may induce the applicant to apply for a Student visa
or Student Guardian visa as means of obtaining entry to Australia for the
purpose of remaining indefinitely. Decision makers should be aware of the
changing circumstances in the applicant’s home country and the influence
these may have on an applicant’s motivations for applying for a Student visa or
a Student Guardian visa.”

There are various other considerations under Ministerial Direction 69.

It is imperative that those applying for an Australian student visa prepare their applications carefully and have regard to the Ministerial Discretion 69. Any refusal will also further impact future to applications to Australia as the Department will review the immigration history of the applicant.

The Ministerial Direction 69 can be viewed here:

Click to access direction-no-69.pdf

Written by RSG Lawyers.

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

Footnotes are available upon request.

Does Wagga Need A Business Culture Change?

Small Businesses Under Pressure

My Firm (RSG Lawyers) has a branch office in Wagga and so I am in Wagga very often.

I have read and heard many complaints from residents in Wagga that business are constantly opening and then quickly closing.

This may be true as a number of shops on Baylis Street (the main street) remain for lease. For example, recently Ed Harry and Factorie closed their doors.

Those rightfully complaining must understand that similar patterns are also being witnessed in many other locations across Australia especially in the retail sector.

Business Culture Today

While there may be other factors effecting Wagga businesses, I feel there is a genuine need for business culture to change in Wagga to facilitate aggressive economic growth.

I recently met with a CEO of a very large Franchise, who is now a good friend, and he believed that ‘large shopping centers will no longer exist in the next 20 years’. While I felt this comment was exaggerated, I do believe this opinion is an important consideration in the strategy a business owner chooses to implement when opening a new business.

The reason lies in the ever changing behaviors of society overall.

Communication is now very quick and so consumers are now more interested in obtaining what they need or desire in the most efficient ways possible.

And there is good reason why companies such as Uber, Netflix, etc are thriving.

They have learnt to adapt to the changing needs of the new generation and new habits of society overall.

So while the population continues to increase in Wagga, the habits of consumers have shifted. It is almost guaranteed (for example) that opening a clothing store in Wagga (with no other strategy to increase sales) will fail.

Suggestions for Change

I truly believe Wagga can become a City that competes Nationally against Cities like Wollongong, Newcastle and Canberra.

However, we cannot continue on the same path and expect very different results.

Some of my suggestions are as follows:

-Wagga needs to open its doors to direct foreign investment rather than just relying upon the Federal Government for funding. This needs the Council’s support but the community could also be involved in some capacity (I will write more about this in future blogs).

-Quicker processing times for business Development Approvals to facilitate to any investment. Wagga needs to have an upfront conversation around this.

-Wagga’s National image needs a remake for an increase of tourism, investment and respect Nationally. Many people in the main Cities believe Wagga is a very small town that exists in the middle of no where (which is not true).

-More expos should take place in Wagga. For example, I am currently trying to push for an international startup festival to take place in Wagga next year.

-Multicultural communities that exists in Wagga should be more valued. They have networks in their communities in other cities in Australia and can bring investment to Wagga.

-More co-working spaces in Wagga to facilitate networking and seed funding.

By Farhan Rehman

Partner RSG Lawyers

Direct: +61 401 393 770
Email: farhan@rsglaw.com.au