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ARE YOU ELIGIBLE TO APPLY FOR A BUSINESS TALENT (SUBCLASS 132A) VISA?

Australia invites you to apply for permanent residence through a Business Talent visa. ​​These visas can provide businessmen that have a Significant Business History with permanent residency to establish a new (or develop an existing) business in Australia that can deliver exceptional economic benefits to the country and generate jobs.

Successful applicants will:

  • Have the opportunity to sponsor eligible relatives for permanent residency to live and work in Australia.
  • Be able to travel freely within and out of Australia while managing their day-to-day business directly or through an authorised representative. [1]

Australia also has many benefits for domestic and international businesses, which includes:

  • A stable political and legal environment, ranked as one of the top ten stable countries in the world based on its defence, economy and system power.[2]
  • A weaker Australian dollar in the past three years, making assets in Australia substantially cheaper for foreign investors to acquire and operate.
  • Favourable time zones due to its geographical location. Specifically, Western Australia is in the same time zone as about 60% of the world’s population making international business with Asia much more convenient.

For all states and territories in Australia, the criteria for applicants to be considered as having a Significant Business History is that they have net business and personal assets of at least AUD1.5 million and an annual business turnover of at least AUD3 million.[3]Each state or territory will then impose additional requirements relevant to their state.

Why Western Australia?

Western Australia has some of the most favourable requirements for prospective applicants.[4]For example:

  • Western Australia only requires AUD1 million of net assets to be in business within the state, unlike Victoria (AUD2 million) and New South Wales (AUD3 million).
  • Western Australia only restricts those businesses that exist only for the provision of rental properties or passive investment unlike other states, such as Victoria, which place additional restrictions on general importing, exporting of commodities and smaller project based property development businesses.

Generally, Western Australia requires the creation of at least one (1) new job for any qualifying business and two (2) new jobs for a property development business. Other states, such as New South Wales, require as many as five (5) jobs created within the city of Sydney or three jobs created in regional New South Wales.

Applications for Business Talent visas are assessed on a case-by-case basis and exemptions for certain requirement may be extended to applicants based on their individual applications and reasoning. To maximise your chances for a successful application and to find out how you can expand your business to Australia, get in touch with us at Tang Law in Northbridge.

 

[1] See Re Sheik Anis Iqbal and Minister For Immigration And Citizenship [2010] AATA 1029; Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656.

[2] http://www.heritage.org/index/ranking [as at 6 January 2017], https://www.gfmag.com/global-data/non-economic-data/most-peaceful-countries?page=2 [as at 6 January 2017].

[3] Migration Regulations 1994 (Cth) sch 2, ‘Subclass 132 — Business Talent’

[4]For a list of Western Australian requirements, please refer to http://www.businessmigration.wa.gov.au/?cat=business-migration&page=visa-132-business-talent


ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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HOW TO AVOID VISA CANCELLATION IN AUSTRALIA

49,618 visas were cancelled in 2013-2014 (“Australia’s Migration Trends 2013-2014”, Department of Immigration and Border Protection, at page 71-72)

Did You Know?

In 2013-2014, Australia granted 190,000 visas in total.  At the same time, almost 50,000 visas were cancelled. That’s more than 1 in 4 visas granted was cancelled!   For a non-citizen, will you unknowingly and unluckily become 1 of the 4?

Under what circumstances can Australia take away (and cancel) your visa?

Power to Cancel

The Migration Act (Cth) 1958 stipulates circumstances where the Minister can cancel visa:

  1. Section 134: A Business Visa can be cancelled where the visa holder has not obtained a substantial ownership interest in an eligible business in Australia or has not utilizing his or her skills in actively participating at a senior level in the day-to-day management of that business.
  2. Section 109: A visa obtained based on incorrect information or false document can be cancelled.  Whether or not you were aware or had knowledge that the information supplied was incorrect is irrelevant
  3. Section 116: Cancellation for failure to comply with conditions and other grounds.  For instance, cancellation of Employer Sponsored visas and student visas.
  4. Section 501: A visa can be cancelled where the visa holder fails the good character test.

Warning: In many circumstances, your family member as secondary visa holder will also lose his or her visa if your visa is cancelled.

Tip 1: Know Your Obligations

It is very likely that there are strict conditions attached to your visa.  It is your obligation to comply with these conditions.  Do you know what your obligations are?

These conditions are generally stipulated in the notice of grant when you first obtained the visa.  Study them carefully and make sure you do not (inadvertently or unknowingly) breach any of the conditions.   “I didn’t know” is not a valid excuse!

If you are unsure of your obligations, do seek professional advice immediately.

Tip 2: Give Correct Information

Do not attempt to mislead the Department of Immigration.  Failure to give full disclose of relevant information can be construed as misleading.

There is only one way to avoid giving incorrect or false information – ensure that you make only statement of facts that are within your knowledge.

If you are uncertain about how to respond or answer a particular question from the Immigration, seek help from a registered migration agent or a professional immigration lawyer.  Do not simply guess!  Giving a wrong answer can be very fatal.

Tip 3: Don’t Wait

If you receive any notice or enquiry from the Department of Immigration or authority relating to your visa, you need to act immediately.  There is strict time limit for you to exercise or protect you rights.   You may be entitled to appeal to Administrative Appeal Tribunal (AAT), for merits review or the Federal Court for judicial review, but you must do it within the time limit.  Do not wait, you should get professional advice immediately!

Tip 4: Participation and Ownership (Specifically for Business Visa Holders)

Many business visa cancellations were found on the grounds that the visa holder did not have substantial ownership in an eligible business and failed to actively particulate at a senior level in the day-to-day management of the business.

Firstly, pay attention when establishing your structure.  Structure of your legal vehicle will determine whether you have the correct “ownership” to meet the Migration Act requirement.

Secondly, make sure the venture you intend to carry on is a “business” within the legal definition and also an “eligible business” within the meaning of the Migration Act.

Thirdly, the Migration Act requires you to actively participate at a senior level in the day-to-day management of your business.  Practically, it can be a problem if you are not physically in Australia most of the time.  You will need to be able to illustrate how you have actively participated in the day-to-day management.  This is one of the most common grounds for cancelling a business visa.


ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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TYPES OF WILLS: CHOOSING THE RIGHT ONE THAT SUITS YOUR CIRCUMSTANCE

Various studies conducted by the Public Trustee in WA and NSW show that up to 45% of Australians do not have a will. Of those that do have a will, many are outdated and not sufficiently flexible to suit the more frequently complex nature of many will maker’s families and financial circumstances.

Wills can be generally to drafted to suit a wide range of aims the will maker may have, whilst also being structured with the testator’s personal and financial circumstances in mind.

What is a Simple Will?

Whilst undoubtedly the predominant type of will is a simple will, this structure generally has little to no asset protection built into its terms and tends not to distribute the estate in a very tax advantageous way.

If your spouse or one of your children goes through a subsequent relationship breakdown or enters into bankruptcy proceedings, for example as a result of a failed business venture, whatever they have inherited from your estate may be at risk of being subject to a Family Court order or open to dissipation by a Trustee in Bankruptcy.

What is a Testamentary Trust?

Whilst it is never possible to account for every possible contingency and thereby “rule from the grave”, if protecting assets and attempting to retain them in the family is of major importance to a client, a testamentary trust can be of great benefit. This is particularly the case where the estate is valued at more than $500,000, holds diversified assets, such as investment properties, or the will maker has descendants who are minors (under 18).

A testamentary trust is a trust that is created by a will and only comes into existence on the death of the will maker. It can run for varying lengths of time, provided it does not run over the 80 year rule against perpetuity

Benefits of a Testamentary Trust

Typically the two major benefits of a testamentary trust, that other types of wills do not generally include, are asset protection and taxation benefits.

Testamentary trusts can be mandatory or optional, generally at the election of a “Primary Beneficiary” – the beneficiary that you want to primarily benefit under your estate such as your spouse or child – and can hold all or part of your estate.

Provided the Primary Beneficiary has reached “preservation age” – being the age you decide they have sufficient financial responsibility to control the assets – and is not “automatically disentitled”, for example by being embroiled in a relationship breakdown or being declared bankrupt, the will can advance them your beneficiary the option to use the testamentary trust from which their gift of your estate will be transferred, or instead to avoid the trust altogether and take their gift absolutely.

A testamentary trust can of course be made mandatory if additional asset protection is required.

Important positions within the trust include the trustees, as this party will have the discretion to determine if and to whom distributions will be made. To improve asset protection, an independent party or someone the will maker particularly trusts may be appointed to act as the trustees until such time as the Primary Beneficiary has reached preservation age (and is not disentitled). After this time, unless the Primary Beneficiary triggers a risk event such as those I’ve referred to, they effectively control the trust.

In the event of a risk event, such as relationship breakdown or bankruptcy, a Primary Beneficiary becomes automatically disentitled to hold important offices within the trust, thereby aiming to protect the assets of the testamentary trust from the reach of various creditors or from the actions of the Primary Beneficiary themselves.

The other benefit of a testamentary trust, as opposed to bequeathing assets absolutely, is taxation minimisation. Transferring the assets to a testamentary trust can allow income or capital generated by the trust to be distributed amongst beneficiaries in the most tax effective way, for example to non-income earning spouses or children. Children in particular receive significant taxation benefits under a testamentary trust, as currently they are entitled to the full adult tax free threshold and marginal tax rates thereafter. In the 2015 financial year, a child could therefore receive $18,200 tax free from a testamentary trust.

If you have multiple children or grandchildren, it is easy to see the significant taxation benefits that can be obtained through the use of a testamentary trust as opposed to bequeathing assets absolutely to a spouse or child under a simple will.


ABOUT THE WRITER

Kelvin has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing service on Commercial Law, Dispute Resolution & Litigation, Family Law, Wills & Estate Planning and Settlements.

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How Do You Protect Yourself Or Your Children From Domestic Violence?

DOMESTIC VIOLENCE

Around one in five Australian women and one in twenty Australian men have experienced violence at the hands of an intimate partner

(Statistic obtained from ABS, 2013)

 WHAT IS DOMESTIC VIOLENCE?

 

Broadly speaking, family and domestic violence is conduct that is violent, threatening, coercive, controlling or intended to cause the family or household member to be fearful. Domestic violence should not be tolerated in any form and any person who is subject to domestic violence should seek help (to the extent it is safe to do so) immediately.

 

HOW DO YOU PROTECT YOURSELF OR YOUR CHILDREN FROM DOMESTIC VIOLENCE?

If your safety or another person’s safety is at immediate risk, you should contact the police now!
If the situation is continuing and your safety is not at immediate risk, you may consider seeking appropriate orders from the courts to protect you or your children.

Restraining orders

Restraining order is the most commonly sought protection in domestic violence situations.
A restraining order is a court order intended to protect you (and your children or other family members) from harm from someone who has, or is likely to, hurt you. Generally, there are two types of restraining orders:
·         violence restraining order (VRO); and
·         misconduct restraining order (MRO).
A VRO application is usually made in person in the Magistrates Court but in some urgent situations it can be made through a police officer by telephone. Often, a VRO application in the Magistrates Court is made on an ex parte basis (meaning it was made without giving any notice to, and in the absence of, the person to be restrained). If your application is successful, an interim VRO will be granted which will be valid until the next court date and the police will serve the interim VRO order on the person to be restrained.
The aim of obtaining a VRO is to prevent the other person from committing or further committing an act of abuse towards you so the common conditions the Court imposes include stopping the other person from:
·         coming within certain distances of you;
·         attending or being near your home or place of work; and
·         contacting you in any way (including via Facebook or Twitter).
The fact that the court makes a VRO against another person does not, in itself, mean the other person has committed a criminal offence (although sometimes the police may decide to charge the other person for his/her abusive conducts). However, breaching a condition of the VRO is a criminal offence and may result in a fine and/or imprisonment being imposed.
A MRO operates similarly to a VRO with the main differences being:
·         you are not required to prove an act of abuse (which usually involve some elements of violence), rather, you will need to prove that the other party is likely to act in a way that is intimidating or offensive towards you or may cause damage to your property;
·         breach of a MRO may result in a fine being imposed but not imprisonment, which makes it less serious. 

Injunctions

In addition to restraining orders, in Family Court proceedings in relation to children you may seek an injunction for personal protection.
An injunction is an order made by the Family Court to restrain your former spouse/partner from doing certain acts or things. Under the Family Law Act, the court has the power to grant an injunction to protect the welfare of a child. The injunction may be:
·         for the personal protection of the child, the child’s parents or other carers;
·         to restrain a person from entering or remaining in a place; or
·         to restrain a person from relocating with the child or taking the child overseas.
Often, an application for injunction has to be made urgently and on an ex-partebasis.
Please note that injunction is not available to you if you do not already have Family Court proceedings on foot.
In addition to seeking orders from the courts, there are other organisations which provide supports to victims of domestic violence and it is important that you reach out for help as soon as possible.

About the Writer

Kelvin Tang

Kelvin has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing family law advice to clients, making divorce applications and applying for Consent Order. Kelvin is able to offer his clients clear and practical advice in relation to children’s disputes, property settlements between married and de-facto couples, spousal maintenance and child support.
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How To Deal With Interests In Superannuation?

DEALING WITH INTERESTS IN SUPERANNUATION

It is a common misconception that superannuation automatically forms part of your estate when you pass away. Unless you have a binding death nomination entitling your legal personal representative to your superannuation benefits, or the trustee of your superannuation fund makes a decision to pay your benefits to your estate, your superannuation will not be considered an asset of your estate.  

Failing to have an estate plan that deals with your superannuation therefore leaves your superannuation entitlements at risk of being distributed otherwise than in accordance with your wishes. 

 

The only way to guarantee your wishes are followed is to have a valid binding death nomination (BDBN) in place. Even if your will includes a reference to the beneficiaries you would like to receive your superannuation, this is non-binding on the trustees of a superannuation fund unless you have a valid BDBN in place.  Failing this, your intended beneficiaries may be left with substantial uncertainty awaiting a decision from the trustees of the fund.
Without a valid BDBN, the trustees of the fund will have discretion as to whom, and in what shares, to pay your benefits to. The class of people entitled will depend upon the rules of the superannuation fund and the Superannuation Industry (Supervision Act) (SISA) and Regulations.
The SISA specifies “death benefit dependants” as the member’s spouse or de facto spouse, any child of the member, or any person who was in an interdependency relationship with the deceased (where both provided financial, domestic and personal support to one another).  

An example highlighting why a BDBN is essential is found in the case of Katz v Grossman. In summary, an elderly man passed away with approximately $1 million in his self-managed superannuation fund (SMSF). The deceased member’s daughter was the sole surviving trustee of the SMSF.

 

The deceased member’s will stated his wish for his superannuation benefits to be split between his two adult children, however he did not have a BDBN.

 

Due to the requirements imposed by the SISA as detailed below, the daughter acted quickly to appoint her husband as another member and trustee of the fund and promptly paid out the entirety of the father’s benefits to herself with no provision made for her brother.

 

In litigation commenced by the son, the Court ultimately found that the deceased’s members will was non-binding on his daughter as the remaining trustee of the fund, and that she had acted lawfully within her powers as the surviving trustee.

 

Without a BDBN in place, your beneficiaries will often have limited recourse against a trustee who decides to act in their own interests at the expense of other family members.

 

There are a number of cases similar to this, including in Western Australia, that show you cannot necessarily rely on even close family members to carry your wishes into effect if they are not enshrined in a binding death benefit nomination.

 

Provided a BDBN has been prepared in strict accordance with the requirements of the fund and SISA, the instructions should be binding on the trustee. This should provide greater certainty to your beneficiaries that if you were to die without a BDBN in place.
                                                                                                                                                                   

REQUIREMENTS OF THE SISA

All members of a self-managed super fund are required by the SISA to be trustees of the fund, or directors of the corporate trustee of the fund. If the fund is a single member fund, the member must be one of two individual trustees or a single director of the trustee company.

 

When a member dies or is incapacitated the member can no longer be a trustee or director of the trustee company which means the fund is no longer compliant with the Act.

Section 17A(4) of the Act gives the fund a period of 6 months after the death of a member to either distribute the member’s benefit, convert to a single member fund (in the case of a 2 member fund) or appoint the legal personal representative of the member as the replacement trustee or director. If this is not done within 6 months of death, the fund will no longer be compliant with the Act for which there may be taxation implications.

 

Where the fund is a two member SMSF, the remaining trustee has six months to introduce new members to retain its status under s 17A(1) or convert to a single member fund under s 17A(2) and pay out the deceased members entitlements – either in accordance with a BDBN or if none is in existence, at the trustee’s discretion.

 

With single member funds, major issues can arise in trying to ensure the fund remains compliant under the Act after the expiry of 6 months, most particularly where the member dies without a will. Not only does an application for administration of an Estate tend to be more complex where someone has died without a will, but delays in appointing a replacement trustee or director of a corporate trustee for a SMSF often result where there is a dispute between the administrators about how the superannuation entitlements are to be paid out.

 

I’ve seen a number of these disputes arise particularly with blended families, where a current spouse and adult children from a previous marriage may all be entitled to administration. In these circumstances negotiations can drag on for many months over how the superannuation will be distributed.
                                                                                                                                                                   

SUPERANNUATION AND FAMILY PROVISION CLAIMS

Despite the pitfalls that accompany superannuation, it is an asset that can be of great assistance to testators who anticipate family provision claims being made against the estate.

 

This is because, as mentioned earlier, superannuation is typically dealt with outside of the estate, unless there is a BDBN nominating the legal personal representative or the trustees of the fund determine that the benefits are to be paid to the estate.

 

Having a BDBN in place will ensure the payment of the superannuation benefits is not easily open to attack by a disgruntled party. 

 

Furthermore where superannuation is the largest asset to which the deceased was entitled and is dealt with outside of the estate pursuant to a valid BDBN, a potential claimant may not consider it worthwhile to commence an application for family provision. This may be so where the estate is not of a significant value – as currently any order for family provision would apply only to assets of the estate and would not extend to assets dealt with outside the estate.

 

Using superannuation can be of particular assistance to remarried spouses who wish to protect one another from family provision claims by step-children. Since 16 January 2013, step-children have been included as “entitled parties” to apply for provision from a step-parents estate where (a) they were financially dependent on the step-parent; or (b) the step-parent received more than $460,000 from the natural parent’s estate (where the natural parent predeceased the step-parent).

 

An estate plan can be structured so that, if the superannuation entitlements are large enough, they can provide solely for the spouse rather than bequeathing the spouse substantial assets through the estate – which may thereby leave it open to a family provision claim. In this way the step-parent avoids receiving any substantial benefit directly from the estate and can protect their own estate from a family provision claim by a step-child.


Writer:

Kim Samiotis is the Senior Solicitor of TANG Legal. Her areas of practice include Building Disputes Litigation, Wills and Estates Planning, Succession Planning, Deceased estates and Estate disputes. There are many criteria and conditions that apply to each of the categories and the experienced solicitors at Tang Legal are happy to provide further information on your eligibility to make or defend a claim.

T:  (08) 9328 7525 | E:  enquiries@TangLegal.com.au

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