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
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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:
https://immi.homeaffairs.gov.au/visa-subsite/files/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

 

Application For Costs In VCAT Proceedings

While VCAT is an informal and cost efficient jurisdiction to initiate proceeding in, it is not generally a favorable jurisdiction for litigants seeking an order for costs.

The Victorian Civil Administrative Tribunal (VCAT) takes the prima facie position not to award costs unless there are justifiable grounds for VCAT to exercise its discretion pursuant to Section 109 (3) of the VCAT Act.

The Tribunal applies the test stringently under Section 109 (3) of Act.

Section 109 (3) of the VCAT Act states the following:
  (3)     The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—

        (a)     whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—

              (i)     failing to comply with an order or direction of the Tribunal without reasonable excuse;

              (ii)     failing to comply with this Act, the regulations, the rules or an enabling enactment;

              (iii)     asking for an adjournment as a result of (i) or (ii);

              (iv)     causing an adjournment;

              (v)     attempting to deceive another party or the Tribunal;

              (vi)     vexatiously conducting the proceeding;

        (b)     whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

        (c)     the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

        (d)     the nature and complexity of the proceeding;

        (e)     any other matter the Tribunal considers relevant.

Of course, there are cases where costs have been awarded at the Tribunal.

In Australian Federation of Consumer Organisations Inc. v Tobacco Institute of Australia, 19, Morling J ordered that the respondent pay the applicant’s costs on an indemnity basis.  Morling J stated:

‘I do not think it would be in the public interest for a litigant in the position of the applicant to be heavily out of pocket in consequence of the public spirited action it has taken’.

Costs are an important consideration when choosing which forum to bring proceedings under. Litigants should therefore appreciate that VCAT does not easily give out orders for costs. VCAT will have regard to each of the factors set out under Section 109 (3) and the Tribunal will apply the test stringently.

Written by RSG Lawyers.

Footnotes provided upon request.

Australian Student Visa and Refusals

If your offshore Australian student visa application has been refused, it does not mean that you are barred from making another application.

However, it is important that you closely consider the Decision Record which will specify the reasons why the Department of Home Affairs (DHA) has refused the visa application as your immigration history (refusal) will be a relevant consideration if you lodge a new Australian student visa application.

You must address the concerns that have been raised by the DHA stated in the Decision Record and further ensure that you meet all of the relevant Australian immigration law criteria in your new visa application.

Some considerations for your new student visa application:

A valid Confirmation of Enrolment (CoE) – if your CoE has expired, you will need to ensure you extend the CoE from the Institute that initially issued it to you. You can also obtain a CoE from a new Institute if you wish.

Financial documents – you must ensure that you have access to the specific amount of funds to cover for your travel, accommodation and study in Australia. If you have previously provided a bank statement from you or your sponsor you may be requested for an up-to-date financial statement.

Notarised or certified documents – it is always best to provide notarised or certified documents to the DHA as this will give the case officer certainty as to the genuineness of the documents you are providing.

GTE and motivational statement – the GTE and motivational statement are very important documents in an Australian student visa application. These documents must specify why you consider yourself to be a Genuine Temporary Entrant and why there is a need for you to study the intended course in Australia. Some factors relevant to both the GTE and motivational statement are your age, the political situation of your Country, your economic circumstances, your educational and work history, what you intend on doing after the completion of your course in Australia and various other considerations. You can view the criteria the DHA uses to assess your student visa under the Ministerial Direction per Section 499 of the Migration Act (you can view it here: https://immi.homeaffairs.gov.au/visa-subsite/files/direction-no-69.pdf).

DHA assessment – please note that it is common for DHA processing officer to contact you by telephone and ask you various questions about the reasons for your study in Australia. This telephone call to you may be without any notice. Therefore, it is imperative that you are well prepared to discuss your application.

RSG Lawyers has assisted many international students in successfully obtaining an Australian student visa. We are immigration lawyers (not agents or consultants). We take care in preparing your application and can assist with the whole process including:

Assistance with obtaining a CoE.
Health Insurance.
Preparation of documents.
Lodgement of the student visa application.

If you require any assistance you are welcome to contact our office through the below mentioned details.

Contact:

admin@rsglaw.com.au

(03) 9350 4440

Footnotes available upon request.

Written by RSG Lawyers, all rights are reserved.

U.A.E Businessmen and the Australian Business Innovation Visa

I travel very often to meet with the various clients over the World.

I recently met with a client in the United Arab Emirates (UAE).

I will only refer to the client as Ahmed for the purpose of this publication.

Ahmed is a successful businessman from India.

He is operating a waterproofing Company in the UAE that is averaging sales of approximately 15 Million AED a year (equivalent to over $ 5.6 Million a year in Australia).

He has been living in the Emirates for 25 years with his Wife and 3 Children.

UAE and Residency

There is generally no Permanent Residency (PR) available to expats in the UAE.

However, there are some new reforms taking place in the UAE to increase direct foreign investment.

For example, the UAE is introducing a 10-year visa and that too with 100 % Company ownership in the mainland.

It has been reported that the 10-year visa will only be available to investors, entrepreneurs and specialists in the field of science and knowledge, as well as high achieving students.

It has been reported that there will be two categories for investors:

1. those purchasing property for AED 5 Million or more will be granted a 5-year visa.

2. those involved in public investments through a deposit, an established company, a business partnership of AED 10 Million or more, or a total investment of at least AED 10 million will be granted a renewable residence visa every 10 years.

Ahmed’s Instructions

Ahmed’s Children are soon to start their higher education.

Ahmed wanted to ensure that he can invest in Australia and ensure that his Children can complete their university degrees in Australia.

At the time Ahmed provided instructions, he did not want to invest a large capital (above $1 Million AUD) into Australia.

Subclass 188

Australia has a business innovation and investment visa program (Subclass 188).

The Subclass 188 (as follows) has four different categories which all have different requirements:

1. Business Innovation.

2. Investor.

3. Significant investor.

4. Premium investor.

While Ahmed did not want to invest a lot of capital, I noted that Ahmed did have 20 years of relevant business experience and his Company was making the required turnover.

Therefore, my office assessed him under the business innovation category for which he appeared to be eligible.

The basic (summarised) requirements for the business innovation visa (at the date of this publication) are as follows:

1. Score 65 points on the points test.

2. For two out of the four fiscal years immediately before you are invited, you must have had an ownership interest in an established business or businesses that had at least AUD $500,000 turnover in each of those years.

3. Own at least one of the following percentages in your main nominated business:

a) 51 % if the business has a turnover of less than $400,000 per year

b) 30 % if the business has a turnover of $400,000 or more per year

c) 10 % if the business is publicly listed company.

4. Have an overall successful business career.

5. If your nominated main business provides professional, technical or trade services, you must have spent no more than half your time providing those services, as opposed to general management of the business.

6. When you are invited for the visa, you and/or your partner combined must have a total net business and personal asset of at least $800,000 that are lawfully acquired and available for legal transfer to Australia within two years of the visa being granted.

What happens if you are granted a 188 visa under the business innovation stream?

-You can stay in Australia for 4 years and 3 months with multiple entry allowed in and out of the Country.

-The visa is available to be renewed for a further 2 years (subject to meeting set requirements).

-The 188 visa is a pathway to PR in Australia (indefinite stay) and if you meet the requirements for the 888 visa, you can make an application for PR in Australia.

-Carry out business and investment activity in Australia.

– You and your dependents can work and study in Australia.

-Bring your family members with you (if they classified as dependents under the Migration Act and Regulations).

Ahmed’s Application

Ahmed is now collating all the documents to make an application under the Business Innovation Visa and I look forward to assisting him and his family in obtaining a Subclass 188 visa to Australia.

Written by Farhan Rehman, Partner at RSG Lawyers.

(03) 9350 4440

farhan@rsglaw.com.au
http://www.rsglaw.com.au

Footnotes are available upon request.

Excessive Speeding in Victoria

Under the Road Safety Act 1986 and the Road Safety (Drivers) Regulations 2009, you may be charged with the offence of excessive speed if the police find that you:

  • drove over the speed limit by more than 25km/h; or
  • went faster than 130km/h.

Harsh penalties apply for such an offence. There are automatic and mandatory licence suspension sentences for drivers who excessively speed. As per Schedule 5 of the Road Safety Act 1986, the table below provides the minimum licence suspension periods for a range of amounts over the speed limit.

Column 1

Speed of vehicle

Column 2

Minimum period

1. Exceed speed limit by 25 kilometres per hour or more, but less than 35 kilometres per hour. 1 month
2. Exceed speed limit by 35 kilometres per hour or more, but less than 45 kilometres per hour. 6 months
3. Exceed speed limit by 45 kilometres per hour or more. 12 months
4. Any speed of 130 kilometres per hour or more that is not covered by item 1, 2 or 3. 1 month

Normally, the magistrate may allow you to keep your licence. However, for excessive speed offences the magistrate is obliged to suspend the licence for the equivalent minimum period.

Whether you are found guilty or not depends on the facts and circumstances of your case. The police must prove that you were driving and drove over the speed limit.

Possible defences if you are charged with this offence include:

  • that you had to speed because of an emergency;
  • that you lost conscious while driving such as you had a seizure or a heart attack;
  • that the speed detector was faulty (you would need an expert to explain this in court);
  • that you have strong evidence to prove that you were not speeding.

It is not a defence:

  • To argue that you were running late to work or a function;
  • To say that your speedometer was not working;
  • Not knowing the speed limit.

If you find yourself charged with excessive speeding, please do not hesitate to contact our office for assistance.

By Guner Hussein, Solicitor at RSG Lawyers.

Footnotes available upon request.

 

Can I refuse a Breath Test?

In Victoria, a police member has the power to require you to undergo a Preliminary Breath Test (PBT) if they believe that you:

  • were or you are driving or in charge of a motor vehicle;
  • had driven a motor vehicle in the last 3 hours;
  • are sitting in the driver’s seat of a motor vehicle with the ignition turned on;
  • instructing or sitting next to a learner licence holder who is or was driving a motor vehicle.

Generally, you must comply with a police officer’s direction to conduct a Breath Test. Failure to do so is an offence and you could face a conviction with a penalty of a substantial fine and a disqualification of your licence for 2 years and possibly prison if you have prior drink driving offences or failures to comply.

There are some defences to refusing to undergo a Breath Test in Victoria. The main defence being the refusal for medical reasons, which requires substantial expert medical evidence. Further, if the police do not have lawful grounds for requiring you to undergo a PBT, then you may have a defence for refusing to comply.

It is always a good idea to comply with the directions of a police officer if they require you to undergo a Breath Test, as the consequences of refusing are quite severe. However, if you believe you have substantial grounds for your refusal you should seek legal advice immediately.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Footnotes available upon request.

Consenting to a Medical Procedure – Part 1

In NSW and Victoria it is unlawful for a medical practitioner to treat an adult without their express consent. Unless it is a case of emergency, common law supports the right of an adult to give their doctor consent if that adult is of sound mind a has the capacity to understand the nature and effect of their decision. This is essentially because of the notion that everyone has a right to determine what happens to their body.

Legal requirements for obtaining consent

Before a doctor treats you, they must establish that you have given your informed consent to the treatment. This can be established verbally, by writing, or through implied consent. The four legal requirements that must be met to give valid consent are:

  • The patient must have the mental capacity to consent to the procedure;
  • Consent must be given voluntarily;
  • The consent given must be related to the procedure in question; and
  • The patient must be given proper information about the procedure before giving consent.

As part of their duty of care, a doctor must explain to their patients the nature of the medical problem; their method of treatment; any foreseeable risks that may occur; and the cost of the procedure if applicable.

When a patient cannot consent to treatment

In Victoria, the laws concerning medical treatment have been supplemented by legislation allowing people to make arrangements for medical treatment decisions when they are unable to make their own decisions. Since 1986 the Guardianship and Administration Act has permitted a tribunal to appoint a guardian to make medical treatment decisions for a person with impaired decision-making capacity. A child under the age of 14, a person affected by a brain injury of mental disability, dementia suffers, or a person affected by drugs are not considered to have the capacity to give valid consent.

You should be aware of your rights and the laws of consent when undergoing a medical procedure. Next week, we will elaborate on the four abovementioned points that lead to valid consent.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Footnotes available upon request.

Risk: Self-Sponsored Business Nomination

As of December 2015, Department Policy states that a nomination applications may be refused if it is found that a position was created solely to secure only a migration outcome.

Where the Director is also the visa applicant, or the visa applicant is a relative or person associate of an officer of the sponsoring business, it is likely a refusal will be imminent.

Consistently, the Department may request current and historical ASIC Extracts which will show the Directors and Shareholders of the Company.

The Department will also closely scrutinise applications where:

– the business has been operating for a short period.
– the business has a low business turnover.
– the business has no Australian employees.

Considering the above is only Department Policy, there have been some decisions in the Administrative Appeals Tribunal which have set aside such refusals by the Department in such cases.

Thus, there is no umbrella approach to self-sponsored applications (as yet) and those considering self-sponsored applications must oblige to obtain legal advice from a well-informed migration practitioner before proceeding with such an application

By Farhan Rehman, Partner at RSG Lawyers.

Footnotes available upon request.