0

HOW TO IMPROVE YOUR SUCCESS RATE IN MIGRATION APPEAL

Appeal to AAT, Blog & Articles, Immigration Law, Migration Law, Permanent Visa, Tang Law, Visa Appeal

Appeal Statistics

In 2016-2017, migration appeal to the Administrative Appeal Tribunal (AAT) has increased substantially by 7,675 cases (up 41%) to a total of 26,604.

This is the highest number of applications since the establishment of the Migration Appeal Division. This suggests a significant increase in visa refusals and cancellations by the Department of Immigration.

Of the 26,604 total number of AAT appeal cases in 2017, it comprised of:

  • Partner visa – 4,001
  • Student Refusal – 4,418
  • Student Cancellation – 1,137
  • Nomination/Sponsor Approval – 2,067
  • Permanent Business – 1,007

Approximately 38% (i.e. less than half) of the cases finalised in 2017 was successful.  Where the case relates to refugee visa, only 11% was successful.

How To Increase Your Success Rate?

From our years of experience in successfully representing applicants in migration appeals, we have a proven method of substantially improving your chance of succeeding.

To stand a chance of succeeding, you must at least do the following.

Firstly, carefully review Immigration’s decision and formulate your grounds of appeal.

Applying to AAT for review is not just about filling in some forms, collating some documents or just writing a letter to the AAT.     You must know what grounds are there and which one of these grounds are applicable to your case and acceptable by AAT.  These grounds could be merits in nature or error of law.  You may need a lawyer who is experienced in migration law to help you with formulating these grounds.  In brief, you must know what the Tribunal is looking for.

Secondly, substantiate your ground with evidence.  You need to carefully consider what type of evidence would be convincing. You have to carefully reviewed every piece of evidence and tactfully put them together.  Your materials must not be inconsistent.   In short, you must provide the Tribunal with what they are looking for.

Thirdly, strengthen your appeal with past case law.  AAT is a quasi-judicial body.  The Tribunal member is bound by past decisions of the AAT or a higher court (e.g. the Federal Court).  The key here is to find past cases relevant specifically to your situation and use it to support your grounds.  In all, you must know the process and the framework in which the Tribunal must follow

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.

0

8 TIPS FOR NON-RESIDENT INVESTORS IN AUSTRALIA

Blog & Articles, Immigration Law, Investment Visa, Migrants, Migration Law, Permanent Visa, Perth Immigration Lawyer, Tang Law, Visa 132

1.      Australia Business Culture

Australians believe in a fair chance for all and are open to tell you what they want.   Australians tend to open conversation straight away about the business on the table.   In contract, most business people from Asia likes to first build the relationship (e.g. have a dinner or casual chat) and fell comfortable before entering into business talks.

Australia encourages work-life balance.  You will find that Australians may not be prepared to meet for work matters outside of their working hours.

TIP:  Be prepared to talk business in the first meeting, be specific with what you want, it is expected – be frank and transparent.

 

2.     Contractual Spirit

Do expect slow decision making as Australians like to consult advisors and stakeholders before deciding.

When a decision is reached and contract is entered into, it is taken very seriously.  In contrast to some parts of the world, especially the developing countries, contracts are often disregarded.  In Australia, contracts are comprehensive, transparent and enforceable by the parties.  Contracts are analysed carefully before agreements are reached and signed.

If a contract is breached, the non-defaulting party can bring an action in Court.

TIP: Be patient with the process.  THINK CAREFULLY and get advice before you sign any contract, especially in Australia.  Once signed, you cannot deviate from it.

3.     Foreign Investment Review Board

General rule of thumb for a “foreign person” buying Australia real estate is that you must apply for approval from Foreign Investment Review Board (FIRB).  A “foreign person” is generally:

  • an individual that is not ordinarily resident in Australia;
  • a corporation, trustee of a trust or general partner of a limited partnership where a non-resident individual or foreign company holds a substantial interest of at least 20%; or
  • a corporation, trustee of a trust or general partner of a limited partnership in which two or more foreign persons hold an aggregate substantial interest of at least 40%.

Failure to obtain FIRB approval is a breach of the Commonwealth law.  Consequences include:

  • The maximum civil penalty for individual is up to $52,500
  • If criminal penalty is imposed, the maximum is $157,500 or 3 years imprisonment.

Commercial land, agricultural land, and Australian corporation (general businesses) have different thresholds where FIRB approval is required.

TIP: Please be mindful to check whether you need to obtain FIRB approval before signing any contract.

 

4.      Taxation

Tax system in Australia is complicated.   At the Federal level, there is:

  • Withholding tax for non-resident (which can range from 10% to 47%);
  • Capital gains tax (Company is not entitled to certain CGT concessions);
  • Company tax (currently at 28.5%);
  • Goods and services tax (which is 10%).

At the State level, there is transfer duty, land tax, and other State’s taxes depending on which business you are investing in.   Transfer duty for purchase of land is around 5% of the purchase price, but it can be tricky. For example, if you decide to change the purchaser’s name on a contract, you may have to pay double transfer duty.  Another example, purchase of shares in “land rich” company may trigger transfer duty.

At the Local Government level, there are council rates and taxes.

TIP: Seek advice from qualified accountant before committing to any investment.

 

5.     Using Correct Structure

Using the correct legal structure to conduct your investment can help you with assets protection, limit your liability, effectively minimise tax, or privacy protection for the “true owner”.

Legal structures in Australia include sole proprietorship, partnership, company, and trust.

TIP:  Know which structure best suits your purpose and set it up before entering into any contract to invest.

 

6.     Common Law and the “Nemo Dat” Doctrine

Australia is a common law country.  Our legal system comprises of common law and legislations.    There is an old common law rule called the “nemo dat” doctrine which basically means that a person who is not an owner of goods or who does not sell those goods under the authority or consent of the owner cannot pass a better title than she/he had.

TIP:  Check the proof of ownership AND check the seller.  If unsure, you can always include a “due diligence” clause in the contract allowing you time to conduct checks and searches before you make the investment.

 

7.     Australia Consumer Law

The Australia Consumer Law (“ACL”) is a national law for fair trading and consumer protection.  If you believe that you have been treated unfairly in a transaction or mislead into investing, you may be entitled to the protection and remedies under the ACL.

TIP:  Don’t wait till it is too late.  There is limitation period to your rights under the ACL.

 

8.     Business Migrants – “Eligible Business”

Business migrants are required to make investment into “eligible business”.  Our Common Law and migration legislation are very specific about what constitutes a “business” and an “eligible business”.  Investment into a wrong business can cost you the visa.

TIP: First, fully understand the conditions on your visa and its legal implications, and second, make sure your contract contains terms that will help you with complying with the visa conditions.

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.

0

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

163 visa, 188 visa, Blog & Articles, Business Migrants, Immigration Law, Migration Law, Perth Immigration Lawyer, Tang Law, Visa 132

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.

0

Case Study: How Did Our Lawyers Handle Complex Case involving Commercial Transactions & Migration Law?

Blog & Articles, Business Disputes Perth, Business Migrants, Commercial Disputes, Commercial Law, FIRB, Immigration Law, Migration Law, Perth Immigration Lawyer, Tang Legal, Visa 132

The Story

Mr Lee and his family was granted permanent resident visa.  To get the grant of the visa, Mr Lee entered into an agreement with the State that he will, amongst other conditions:

11) Invest at least $1,500,000 into an “Eligible Business” in the State;  and
22) The “Eligible Business” must employ at least five (5) full time employees who are either citizen or permanent residents of Australia.
Mr Lee looked at many possible investments in the State but repeatedly encountered these problems:
1.       Language barrier – Mr Lee does not speak or understand English.  Communication was a huge barrier.
2.       Cultural difference – Mr Lee operates a large enterprise in Asia and he has many personnel under him to manage and run his businesses for him. He was surprised to learn that owner of the business here is very often key person to the business.  He will not be able to commit 100% into the business due to his other commitments.  Mr Lee is also concerned about the safety of his investment.
3.       Constant uncertainty as to whether the business is in fact an “Eligible Business” and whether it can help him satisfy the migration requirements.

 

Mr Lee finally decided to invest with a property developer.  Mr Lee’s instructed us to advise and represent him.

 

Solution

We advised Mr Lee that his proposed venture and transaction must be structured to achieve the overarching purposes of:
11) Complying with Commonwealth migration requirements and Mr Lee’s Agreement with the State; and
22) Securing his commercial interests and his capital.
In terms of Commercial Law, Mr Lee took the following steps with our advice:
1.       Formation of legal structures for Mr Lee to undertake the investment.
Amongst other issues, segregation of risk, protection of personal assets, complying with migration requirements, and tax implications are important considerations in undertaking this task.
2.       Negotiation and formulation of the transaction structure with the property developer.
Amongst other considerations: 
·         Specific focus on ownership structure, investment vehicle, investment structure, key personnel required, role and obligations of Mr Lee and the property developer is important for migration compliance. 
·         Control of project and funds, security or collaterals, timing of project, possible variations, and terms and conditions of investment are important considerations for protection of capital.
·         Transfer duty and tax implications must be considered PRIOR TO entering into formal agreements.
3.       Prepare and advice on the formal agreements required in order to put together the transaction.
4.       Carried out due diligence on the proposed investment and the property developer.
5.       Completion and settlements of the agreed transactions.

In Migration Law:

 

11) We conducted a full review of Mr Lee’s initial business plan and Agreement with the State, and we advised Mr Lee that given the changes to his agreement with the State, he needs to notify and obtain approval from the State for the variation.  Note:  The formal agreements between the parties were made subject to Mr Lee obtaining an approval to amend Agreement with the State.
22)  IMPORTANT issue to overcome: Investment in property is very often seen as a passive investment and does NOT qualify as an “Eligible Business”.   Special attention must be given to how the transaction is structured to avoid complications.
33) Also given his increase in the amount of investment into the “Eligible Business”, we advised that he could negotiate with the State for a more lenient requirement on the number of full time employees.

Outcome

Mr Lee and the property developer were successful in reaching an agreement.   We strategically structured mechanism into the transaction to achieve the overarching purposes of satisfying the migration requirements and protecting his commercial interests.

Upon our conduct of legal due diligence and comprehensive checks on the proposed investment and the property developer, Mr Lee was satisfied with the results.
Mr Lee also obtained approval and a more favorable agreement with the State for the proposed investment, as we were successful in negotiating with the State in reducing the number of employee from five (5) to two (2).  

The property project has since commenced.

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.
0
biz migrates

BUSINESS MIGRANTS BEWARE: Do you really have the ownership in the “Eligible Business”!?

Blog & Articles, Business Migration Australia, Business Visa, Chinese migrates in Australia, IMMI, Immigration Department of Australia, Immigration Law, Perth Immigration Lawyer, Perth Lawyers, Visa 132, Visa 890, Visa 892

This article will talk about 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 technicality!

Writer:

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 experties, 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



1 2 3