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business-visa

Can Property Investment be an “Eligible Business” for Business Visa in Australia?

Can Property Investment be an “Eligible Business” for Business Visa in Australia?

I am often asked by new and perspective business migrants on whether they can invest in property for the purpose of satisfying the Australian Business Visa requirements.  The good news is that it is possible. Investment in property may [emphasized] meet the migration requirements.  
 
I must emphasize 2  important points: (1) Passive investment (and more specifically, provision of rental properties to the public) and smaller “project” based property development will NOT meet the migration requirements; and (2) Even if the migrant’s proposed business in property investment meets the State’s guidelines in bringing in substantial and exceptional benefits and thus obtained nomination by the State or Territory, this itself does NOT automatically mean that the Commonwealth migration requirements are met.  
Under the Commonwealth migration regulations, a business migrant must satisfy three (3) conditions under the Act: (1) The business proposed or carried on by the migrant must be an “eligible business”; (2) The migrant must have obtained a substantial ownership interest in the eligible business; and (3) The migrant must actively participate at a senior level in the day-to-day management of the eligible business.  If the migrant fails to satisfy these requirements, the Minister may cancel the visa.  Hence, business migrant, please BEWARE!
This article briefly examines the “eligible business” requirement.   In the case of Zhonghua v Minister for Immigration and Citizenship (BC201102754), the migrant, holder of sub-class 132 Business Talent visa, invested AUD$3,000,000 into a property development project. There were submissions by the migrant that application to re-zone the property was made to develop apartments.  However, the Tribunal found that the investment did not pass the initial stage of purchasing the land.  No actual development has taken place other than owning the land and making application to re-zone the land.  For this reason, it cannot be described as a business.  As such, the migrant’s investment did not satisfy the “eligible business” definition. However, what is important from this case is that in the judgment, the following comment was made by the presiding Senior Member, Mr Egon Fice: “… if the development proceeds, it might satisfy the eligible business definition in that it might create or maintain employment in Australia or result in commercial activity and competitiveness within sectors of the Australian economy.”
 
Further, under the case law, the test of what constitutes an “eligible business” requires more than just satisfying the conditions under the migration regulations.  The Courts require that the business has repetitiveness of activities and some permanence characteristicsPuzey v Commissioner of Taxation [2003] FCAFC 197.
For the professionals who assist business migrants with their investment (such as migration agent, accountant, and real estate agent), you should find this article beneficial or at least relevant.   Australian Courts have strict expectations that the requisite standard of care is met and professionals could be found personally liable for negligence or wrongdoing if the standard is not met.  Here is a thought:  What do you need to do (or must not omit to do), in order to meet the requisite standard of care? 
 
For businesses seeking investment capital from the business migrant (for instance, property development company), beware of “representations” (such as statements and forecasts) that you make to the investor, buyer or migrant.   If your representations are subsequently found to be false, even if it was not your intention to lie, you can be liable for damages for having engaged in “misleading or deceptive conduct” under the Consumer Act.  This is a huge exposure to liability. 
 
There are also cases where migrants have failed the “substantial ownership” requirement due to technical difference between legal ownership interest and beneficial interest.   The ownership structure of the project company is extremely important.  My next article will examine the ownership issue in more details.

Writer:

KELVIN TANG is the Principal Partner of Tang Law.   His areas of practice include Investment Law, Commercial and Corporate Law, Property Law and Immigration Law.  Relevant to this article, his expertise, knowledge and experience include representing property developers and new migrants with acquisition of property, structuring of investment vehicle, joint venture transaction, and advice on commercial transactions.
Email:                     [email protected]     
Telephone:           +618 9328 7525
 
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Deportation

What Should You Do If Your Australian Visa Is Cancelled?

Criminal Deportation/Visa Cancellation

Cancellation of visa (and deportation) is mandatory for people who are in prison and who failed the character testsection 501(3A) of Migration Act 1958.  A person who has been sentenced to imprisonment of 12 months or more (even if it is at any time in the past) will fail the character test.
This means deportations and cancellations of visas are now automatic, as it is mandatory, and moreover without notice.What should I do if I received advice from Department of Immigration that my visa is cancelled?

If your visa was cancelled as a result of your criminal conviction, you will have an opportunity to request for revocation of the cancellation decision.  However, you must do so within 28 days.   If you failed to apply within this timeframe, you will lose your opportunity.  Consequences are that you will be held in the detention centre until you are deported.
The decision of cancellation itself cannot be appealed, rather, you must apply within the timeframe to revoke the cancellation decision.  If you are successful, the cancellation decision will be revoked.  The effect of revocation is that the cancellation decision will be reversed and your visa reinstated.
In making the request for revocation of the cancellation decision, you should also make proper submissions and provide the Department with supporting materials regarding your personal circumstances and persuade the Department to revoke the cancellation decision.  

What submissions to make in requesting for revocation of visa cancellation?

Whilst the decision-maker has the discretion to decide whether to revoke a mandatory visa cancellation, the decision-maker must take into account primary considerations:
  1. Protection of the Australian community from criminal or other serious conduct.  This involves giving consideration to the nature and seriousness of your conduct to date and risk to the Australia community should you further engage in other serious conduct.
  2. The best interest of minor children in Australia.  This consideration is only relevant if there is a child under 18 years old at the time the decision whether to revoke the mandatory cancellation is expected to be made.
  3. Expectations of the Australian community.  This consideration involves determining whether there is an unacceptable risk that you will re-offend or engage in serious conduct again.
The decision maker also has to take into account other relevant considerations such as the strength, nature and duration of ties you (and your family) have to Australia, impact on Australian business interests if your visa is cancelled, the extent of any impediments that you may face if you are removed from Australia to your home country in light of your age, heath, language or cultural barrier, etc.

What materials should I provide in support of my request for revocation?

This depends on your circumstances and which considerations are most relevant to your situation.  In a very general nutshell, you may need to provide independent support documents such as character references, expert reports, pre-sentencing and re-release reports, etc.
Remember, you have to persuade the decision-maker, and the decision-maker in coming to a decision, has to follow a set of guidelines.  You should make truthful submissions that can satisfy the guidelines followed by the decision-maker and provide credible documents or evidence in support of each of your submissions made.

Can I appeal if the visa cancellation decision is not revoked?

There are two (2) possibilities here:
  1. Where the decision not to revoke is made a department delegate, you may apply to the AAT for review.
  2. Where the decision is made by the Minister, you may appeal to the Federal Court for judicial review. The AAT is not able to review the Minister’s personal decisions. 

I am still feeling vulnerable, unsure of what my rights are and what I can do?

Cancellation of visa is a very serious matter with serious consequences.  If you are not sure what to do, immediately consult an immigration lawyer.  Contact us for advice.

You need to act promptly as there is a strict time limit for you to exercise or protect your rights.

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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Visa Denied

TANG LAW: How to Appeal or Review Visa Refusal?

If your visa is being cancelled or your application for visa is unsuccessful, it is usually possible to appeal or apply for review of the decision.   There are three (3) types of appeals and/or reviews:
  1. Merits review through the Administrative Appeals Tribunal
  2. Judicial review through the Federal Court
  3. Intervention by the Minister for Immigration.

Strict Time Limit

However, you must be aware of the strict time limit imposed on your right to appeal or apply for review. 
If your visa is being cancelled or your application is being refused, you need to act immediately to avoid losing your right to appeal as a result of time limitation expiring. 
Do not forget, you need to allow adequate time for your lawyers to assess your appeal.  In considering an appeal, there are several issues that must be considered:
  • Do you have a right to appeal?
  • If so, what type of reviews are you entitled to – merits review or judicial review?
  • What are your grounds of appeal?
  • Does your evidence support the grounds that may be available to you?

Merits Review – Administrative Appeals Tribunal (AAT)

The Refugee Review Tribunal, the Migration Review Tribunal and the AAT deal with merits review.   Since 1 July 2015, the former two tribunals have merged into AAT, which is now the only merits review body. 
In a merit review, the tribunal puts itself in the shoes of the original decision maker and review the merits of the decision by reconsidering the facts, law and policy aspects relevant to the original decision, and come to a decision as to whether the original decision is correct and therefore be affirmed, or whether a correct and preferable decision should be made.  The Tribunal will consider the evidence from a fresh perspective.
Merits review is more or less your “second attempt” at the application.

Judicial Review – Federal Court of Australia

Decisions of the immigration department in relation to refusal or cancellation of visa is a type of administrative decision.  In coming to an administrative decision, the decision-maker must follow the correct legal process.  If the decision-maker failed to follow correct legal process in making a decision, it can be challenged via judicial review by appealing to the Federal Court of Australia.
If the Court finds that a decision is unlawful, the Court has the power to:
  • Order that the decision be quashed and or set aside.
  • Order that the decision-maker follow the correct legal process and re-make the decision.
  • Declare a legal position, for instance, that the decision is legally incorrect.
  • Order injunctive reliefs.
There are many grounds of judicial review, some examples include:
  • An error of law, where the decision maker wrongly applied the law.
  • The decision-maker wrongly took into account of irrelevant considerations or failed to take into account relevant considerations.
  • The decision-maker acted beyond its responsibilities or acted with improper purpose.
  • The decision-maker, when coming to a decision, acted very unreasonably that no reasonable decision-maker could reach that decision. 

Ministerial Intervention

In many circumstances (but not always), it is possible to seek ministerial intervention after receiving a negative decision from the Tribunal.  Under the Migration Act 1958, the Minister for Immigration has the power to interview and grant a visa on public interest ground.
There are certain circumstances where the minister cannot intervene even after a decision by a tribunal. These include:
  • The decision by department of immigration not to grant a visa is not a decision that can be reviewed by the relevant review tribunal;
  • the review tribunal has sent your case back to the department for further consideration and one of the decision-makers has made a subsequent decision on the visa;
  • your review tribunal decision was made before 1 September 1994
  • a finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe;
  • a decision of the AAT that is not in respect of an MRT reviewable decision or a protection visa decision.
In determining whether to exercise the power and intervene, the minister looks at the submissions from a “humanitarian” perspective. This generally requires consideration of larger-picture issues such as the public interests at large, the interests of the nation, and other interests such as economic, trade, or cultural interests.

Past Cases & Experience

TANG LEGAL has helped applicants with appeals and reviews in many contexts of visa cancellation and refusal:
  • Revocation relating to Student Visa
  • Criminal Deportation (see Criminal Deportation)
  • Character ground – Failed to demonstrate good character
  • Genuineness of marital or spousal relationship
  • Termination of marital or spousal relationship and domestic violence
  • Genuineness of legal child
  • Breach of visa conditions
  • Genuineness of company sponsorship and nomination
  • Termination of employment
  • Refusal of protection visa
  • Discovery of incorrect, false or misleading information given to Immigration

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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BUSINESS MIGRANT BEWARE: DO YOU REALLY HAVE OWNERSHIP IN THE “ELIGIBLE BUSINESS”

KELVIN TANG is the Principal Partner of TANG Legal.
His areas of practice include Investment Law, Commercial and Corporate Law, Property Law and Immigration Law. Relevant to this article, his expertise, knowledge and experience include representing property developers and new migrants with acquisition of property, structuring of investment vehicle, joint venture transaction, and advice on commercial transactions.

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Last week, we looked at cases involving “eligible business” for business visa purposes. This week, we will look at the requirement that the business migrant must have “substantial ownership interest” in the “eligible business”.

The general rule to meet this substantial ownership requirement is that if the business turnover is less than AUD$400,000, fifty-one percent (51%) is required. If more than AUD$400,000, thirty percent (30%) is required. If the business is a listed company, at least ten percent (10%) is required.   This is the simple part. The complicated part is where a business is owned by a trustee company of a trust. It is quite common in Australia that investments and businesses conducted through a trust vehicle. There have been past cases where migrants have failed the “substantial ownership” requirement due to legal technical difference between ownership interest and beneficial interest.

Section 134(1) of the Migration Act provides that “ownership interest” includes interest in the business as a shareholder in a company that carries on the business, a partner in a partnership that carries on the business, or a sole proprietor. This definition seems simple enough, but in reality, it is not as simple as it seems.

But what about a trust structure?   Trust has many forms – fixed or unit trust, discretionary trust, special purpose trust, bare trust and hybrid trust.   How do you know your “ownership” meets the migration requirements?

Let’s take for instance the business is carried on through a unit trust and the migrant owns units in the unit trust. I must emphasis that many property development projects are conducted using unit trust. As a unit holder, you may have certain legal entitlements. But does this satisfy the “substantial ownership” requirement? The answer is, NO! As a unit holder of a unit trust, you merely have a beneficial interest in the “eligible business”, NOT a legal ownership interest. The Court in the Zhonghua’s case (which we looked at last week) found that having beneficial interest as a beneficiary of a trust does not meet the “substantial ownership” requirement.

Now, let’s consider the flipside and say you own shares in the trustee company but the trust is a discretionary trust, or more commonly known as a family trust, where you do not have any fixed entitlements? In fact, under a discretionary trust, the beneficiary only has a “mere hope or expectancy” to receive benefits from the trust asset, there is not definite entitlement to distribution. In this instance, even if the migrant has shareholding in the trustee company, will the migrant still meet the “substantial ownership” test? A further question for business migrant to consider – although you may be a shareholder of a company, how do you know whether the company is actually a trustee company of a discretionary trust? This is problematic.

The migration regulations may appear straight forward, but in reality, it may not be as straight forward as it seems.
Please beware of legal technicalities!

REVISED INHERITANCE LAW

INHERITANCE LAW

Volume No. 1 – November 2015

SUCCESS RATE IN CONTESTING A WILL

By KELVIN TANG (Partner) & KIM SAMIOTIS (Senior Lawyer)

WILLS & ESTATES LAWYERS, A Division of TANG LEGAL

T: (08) 9328 1867 | E: [email protected]

IN THIS ISSUE:

High Success Rate of Contestation [Page 1]

Common Reasons for Contesting Deceased Estate [Page 2]

Significance of Findings [Page 2]

Who can contest a Will? [Page 3]

Actual Cases of Contested Wills [Page 3-4]

Time Limit [Page 5]

HIGH SUCCESS RATE OF CONTESTATION

74% of family provision claims by family (children or partners, including ex- partners) were successful.

See: Tilse, C., Wilson, J., White, B., Rosenman, L. & Feeney, R. (2015), “Having the Last Word? Will Making and Contestation in Australia”. The University of Queensland.

Many deceased estates are contested under family provision legislation.

Studies undertaken by the University of Queensland in 2015 found that:

86%of claims are brought by immediate family members: either children of the deceased (63%) or partners (including ex-partners) (23%) – This means that adult children are the most common claimants in applications for provision from an estate.

These applications are often driven by exclusion from a Will and/or significant disparity in distribution of assets between beneficiaries.

Applications for provision from a deceased estate have a high rate of success, whether obtained through a judgment from the Court or settled in mediation.

74% of family provision claims by family (children or partners, including ex-partners) were successful.

COMMON REASONS FOR CONTESTING A DECEASED ESTATE

‘Contesting a deceased estate’ refers to claims pursuant to the family provision legislation. 

The said studies also found that contestation is most commonly driven by: Inadequate provisions to meet the needs of a family member;

The type and quality of a relationship with the deceased where a family member felt a sense of entitlement to a greater distribution;

Exclusion from a Will and/or disparity in distribution of assets.

SIGNIFICANCE OF FINDINGS

The above findings are significant to:

The Will maker:

Judicial statistics show that 51% of estates that were contested were family provision claims. In light of these statistics, if you are making a Will, you need to give very careful and detailed considerations to the people who may have a claim against your estate and how you should distribute your assets. The more complex the family relationships, the higher the chance your Will may be contested or otherwise disputed between your family members upon your death.

At the time of making your Will, you need to consider ways to reduce the risk of contestation by addressing underlying family dynamics and issues and obtaining strategic legal advice if you plan to exclude someone from your Will.

The Executor or Administrator: A personal representative who has obtained a grant of Probate or Letters of Administration (i.e. the executor or the administrator) will undoubtedly find themselves spending considerable time dealing with family provision proceedings where an applicant has contested the Estate. This may necessitate engaging lawyers to defend the contestation, and obtaining detailed evidence, including expert evidence where necessary, to defend against the claim. This can detract the executor or administrator’s attention from getting on with other tasks in administering the estate, such as collecting and realising assets.

A family member who can be a potential claimant:

There is a high success rate for family members who apply for family provisions from a deceased estate, insofar as they receive greater or some provision from an estate either by way of judgment or settlement. Notwithstanding the existence of a Will or the provisions of the Administration Act 1903 (WA), in the case where someone has died without a Will, the Court has the discretion to award or increase provision to an applicant.

WHO CAN CONTEST A WILL?

Pursuant to Section 7(1) (a) of the Family Provision Act 1972 (“Act”), the following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person in WA:

Former spouse or spouse, including a former or current de- facto partner, of the deceased (former spouse/de facto must be entitled to or receiving maintenance at the time of death);

Child of the deceased living as at the date of death or born within 10 months of the deceased’s death;

A stepchild of the deceased (in limited circumstances);

A grandchild of the deceased (in limited circumstances);

A parent of the deceased.

ACTUAL CASES OF CONTESTED WILLS

Contested by Spouse

Waddingham v Burke (as executor of the Will of Waddingham)

[2015] WASC 65

Facts:

The deceased was married to the applicant spouse who claimed that inadequate provisions had been provided for her proper maintenance in the deceased’s Will. The Spouse was 69 years old, had no income, and argued that the Will did not provide adequate provisions for her support or/and maintenance in life.

Claim by Spouse:

The Spouse applied for orders to vary the Will for greater provisions and to prevent the immediate sale of land.

Court Findings:

The Supreme Court of Western Australia held that the Will did not adequately provide for the Spouse and ordered the parties to the proceedings to confer in an attempt to reach an agreement on the details of the proposed sale of property

Contested by Former Spouse

(same sex de facto relationship) Nelligan v Crouch

[2007] NSWSC 840

Facts:

The applicant had been in a same sex de facto relationship with the deceased for 30 years but they had been separated for a number of years prior to the deceased’s death as a result of the demands of both personal and family illness. The applicant had not been provided for in the Will. The deceased had, instead, left his entire estate to the Royal Flying Doctor Service.

Claim by Former Spouse:

The applicant claimed that he shared a domestic relationship with the deceased and should be provided for under the Will.

Court Findings:

The Court awarded the applicant $100,000 from the estate that was valued at $180,000 after costs.

Contested by Adult Child

Mead v Lemon

[2015] WASC 71

Facts:

The applicant, the adult daughter of a billionaire, brought proceedings seeking greater provision from her father’s estate. The Will established a trust for the adult daughter which provided, amongst other terms, that the capital of the trust was not to exceed $3 million. Stringent conditions were imposed on the daughter’s access to the trust fund, including her religion, and she was unable to receive distributions before the age of 30. The total value of the deceased’s estate was estimated at more than $1 billion.

Claim by the Adult Child:

The issue was whether the Will of the deceased provided adequately for the applicant, taking into account a number of factors including the size of the estate and the conditions imposed by the trust established for the adult daughter.

Court Findings:

The court exercised its discretion under section 6(1) of the Act, taking into consideration factors such as the size of the estate, the needs of the plaintiff and the interests of other people entitled to shares in the deceased’s estate. The daughter successfully obtained orders from the Court and she was awarded a cash payment of $25 million. This decision is being appealed by the respondents; the deceased’s other adult children.

Contested by Grandchild

Devenish v Devenish

[2011] WASC 129

Facts:

The applicant, the adult grandchild of the deceased, was not provided for in the Will of his deceased grandmother.

Claim by Grandchild:

Whether there should be provision made for the proper maintenance, support, education and advancement in life of the applicant grandchild, and if so, what would be adequate provision?

Court Findings:

The Court granted the plaintiff 20% from the deceased’s estate, the net value of which was valued at $1,290,000 at the date of death.

 

TIME LIMIT

Claims made under the Family Provision Act 1972 must be made within 6 months of the personal representative becoming entitled to administer the estate, or in other words, within 6 months from the grant of Probate or Letters of Administration.

See section 7(2) (a) of the Family

Provision Act 1972.

Whilst the Court can make orders tracing and recovering estate assets which have been distributed, there is always a risk that the estate may be dissipated. If you want to make a claim for provision from an estate, you should act without delay.

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