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4 TIPS TO IMPROVE YOUR CHANCE IN MIGRATION APPEAL

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In 2015-16: Over 60,000 visas were cancelled. 18,929 applications for review were made to Administrative Appeal Tribunal (AAT)

INTRODUCTION

Substantial number of visas were refused or cancelled every year.  Not every applicant has a right to appeal, and for those who have a right to appeal, the application MUST be lodged within the time limit specified by the Migration Act.

Here are 4 tips on how to improve your chance of success.

TIP 1 – BE PREPARED

The strategy is simple – prepare, prepare and prepare!

You do not lodge an appeal with just a “hope” that you will succeed.

You need to prepare all relevant and supporting materials for the Tribunal. Be prepared to do the groundwork in putting together your papers and materials.  Be prepared to put in the effort.

TIP 2 – GIVE THE TRIBUNAL WHAT THEY ARE LOOKING FOR

To stand a chance of succeeding, you need to know what the Tribunal is looking for.  You need to give them what they are looking for.  The Tribunal will be looking for:

  1. The relevant legal principles that apply to your case;
  2. The facts  surrounding your situation;
  3. Reliable evidence that can verify the “facts”; and
  4. Past cases with similar legal principles and facts.

Begin with knowing the reasons as to why Department of Immigration and Border Protection (DIBP) refused or cancelled your visa.  If you know the reasons, then you will be able to obtain supporting evidence and prepare your submissions to convince the Tribunal that DIBP was wrong in refusing or cancelling your visa.

TIP 3 – OBTAIN RELIABLE EVIDENCE

The Tribunal will want to verify your statements and your “facts”.  The Tribunal wants to know whether you are telling the truth.

You need to take the necessary steps to find, obtain and prepare reliable evidence to support your appeal.

Evidence is more convincing when it is provided by a third person or an independent expert.

TIP 4 – FIND SUCCESSFUL PAST CASES

One of the best ways to convince the Tribunal is to find successful past cases of the Tribunal similar to your situation.  If you are able to draw analogies to your own appeal with the support of this successful past cases, you can substantially improve your chance.

Writer – Kelvin Tang

Kelvin has close to 20 years’ experience practising law in 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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MIGRATION LAWYER VS MIGRATION AGENT: PROFESSIONALS ON AUSTRALIAN MIGRATION

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In Australia, there are two (2) types of professional migration consultants:

1. A lawyer who holds a practicing certificate issued by the Legal Practice Board of the State and practice in the area of migration law (“Migration Lawyer”); and

2. A migration agent who is registered with the Office of the Migration Agents Registration Authority (MARA) (“Migration Agent”).Only a Migration Lawyer or a Migration Agent can provide migration related services and advice to clients requiring migration assistance. In helping you decide which type of migration consultant to choose, here are the differences between Migration Lawyer and Migration Agent:

1.              Qualifying Process

Migration agents are required to:

(a)           Complete a 6 month training course and past the exams; and

(b)          Apply to be registered with the Office of the Migration Agents Registration (“OMARA”).

Migration lawyers are required to:

(a)           Complete at least a Bachelor of Laws degree (which requires minimum of 3 years);

(b)          Undertake practical legal training and work experience with a law firm;

(c)           Complete College of Law training program and exams;

(d)          Apply to the Supreme Court for admission as a lawyer; and

(e)          Apply to the Legal Practice Board of the State for a Practicing Certificate.

Whilst both are qualified to provide migration services, Migration Lawyer requires a much longer process as the legal profession is one of the most traditional profession in Australia and the requirements to become a lawyer are very strict.

Under the Legal Profession Act, no person can hold himself or herself out as a lawyer unless he or she holds a practicing certificate.

2.              Level of Knowledge and Skills in Law

Provision of migration services is in actual fact provision of legal services in migration related matters.   Australia migration regime is comprised of the Migration Act 1958, Migration Regulations 1994, and being a Common Law country, we are bound by past decisions of tribunals and Courts on cases initiated under these two (2) legislation.

Migration Lawyer will more likely have deeper understanding of the migration regime as lawyers are trained to apply the laws.

3.              You can claim Legal Professional Privilege

While a migration agent is required to keep communication between themselves and a client confidential, only a lawyer can claim legal professional privilege, which if applicable, will keep the communications between a lawyer and a client entirely confidential, including against a subpoena from a Court and are usually protected from disclosure.

4.              Standards of conduct

Migration Agents are subject to the OMARA code of conduct.

Lawyers are subject to the Legal Profession Act, the Legal Professional Conduct Rules and the Law Society Ethical and Practice Guidelines.

These codes of conduct are created for the protection of clients and ensuring the profession integrity is upheld.

In comparison between the two (2) standards, lawyers have a much comprehensive and stricter code of conduct.  Invariably the reason being the legal profession has been around for over a hundred years.

5.              Extend of Service

 

Migration service does not only encompass the services of advising and applying for a visa.  It also includes appealing to the tribunals and Courts for review of migration decisions.

A migration agent can assist with your visa application process and appeal to the Administrative Appeals Tribunal (AAT) in relation to visa refusal or cancellation matters.   Certain matters may need to appeal to the Commonwealth Courts of Australia.  In this case, a migration agent must advise you to seek independent legal advice from a lawyer as migration agents are not permitted to represent clients in Courts.

A lawyer, in addition to the above, can extend further services to you in full legal representation in the Courts, and also to provide advice on other legal matters relating to you other immigration issues such as investment law, business law, corporate law, property law, etc.

 

If you are interested in moving to Australia, the lawyers at Tang Law are qualified as both Migration Agents and Migration lawyers, will provide professional and comprehensive legal advice on your migration matter and on a range of matters that are related to the migration process.

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 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.

Steve Clark

Steve is an Associate Lawyer and Registered Migration Agent (MARN: 1688297) at Tang Law. He was admitted to the Supreme Court of Western Australia and High Court of Australia in 2013. Steve has had experience in providing migration advice to clients, making visa applications and appealing cancelled or refused visas. Steve also has experience in civil litigation, estate planning, commercial and corporate law matters.

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

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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

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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

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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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