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Skilling Australians Fund (SAF) Levy - Your Questions Answered

Skilling Australians Fund (SAF) Levy - Your Questions Answered

We are here to answer your questions about the Skilling Australians Fund levy

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Novel Coronavirus (COVID-19) Outbreak - What it means for International Students, Australian Visa Holders, Expats and Tourists

Regular Updates Coronavirus

 

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Rosa的故事: 从香港到阿德莱德的美丽海滩

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How will the Bushfire Crisis impact on Australian Visas and Immigration? Tourism, International Education and Regional 491 Visas be effected! What can be done by Home Affairs to minimize the impacts?

firefighter fighting blaze

The Australian 2019/20 bushfire season has been one of the worst natural disasters our country has faced. Our thoughts are with those who have suffered from these fires and we praise the efforts of all firefighters, especially the volunteer brigades who have worked so hard to protect life and property at their own mortal risk and continue to do so. 

This month Work Visa Lawyers has chosen to support the South Australian Country Fire Service Foundation with a financial contribution.

We have all seen the heart wrenching media images of immediate loss of people, wildlife and property but the social impacts will be far-reaching and persist long after the fires have been extinguished. In particular we would like to acknowledge the loss suffered locally in our native South Australia, particularly the Kangaroo Island Community. We have assisted the Southern Ocean Lodge for many years and we wish everyone involved in the lodge the best possible outcomes in the difficult time.

 

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The Traps of Holding Dual Australian Citizenship processed by the Australian Government Prior to 2002

Dual Australian Citizenship


Every year, hundreds of people who apply to renew their Australian passport or apply for citizenship by descent for their overseas-born children are notified by the Department of Home Affairs that they have ceased to be an Australian citizen some years ago. Often, this cessation comes without notice and the notification that they do not hold current Australian citizenship is shocking and can cause significant distress. Prior to 2002, many Australians who obtained the citizenship of another country were not aware that they will also automatically cease to be an Australian citizen.


 

Automatic Cessation of Australian Citizenship

Prior to 2 April 2002, a person of full age who by some voluntary or formal act other than marriage, did an act or thing to acquire the citizenship of another country ceased to be an Australian citizen under section 17 of the Australian Citizenship Act 1948 (Cth) (‘old Act’). There was no requirement to report the acquisition of another citizenship and the cessation occurred automatically as an operation of law.

Due to the automatic effect of section 17, the Department of Home Affairs does not have comprehensive records of those who lost their Australian citizenship under this provision. As such, errors may have been made when issuing evidence of Australian citizenship, Australian passports or in assessing citizenship applications. This means that you may hold an Australian passport without actually being an Australian citizen!

Full Age

From 26 January 1949 to 30 November 1973, a person aged 21 or over was considered of full age and would have lost their Australian citizenship once they obtain citizenship from another country.

From 1 December 1973, a person aged 18 or over was considered to be of full age.

 

Location of Citizenship Acquisition

Prior to 22 November 1984, section 17 of the old Act applied to those who acquired another citizenship whilst outside of Australia.

Between 22 November 1984 and 2 April 2002, an adult ceased to be an Australian citizen upon acquiring another citizenship, regardless of whether they were in or out of Australia.

 

Ex-Citizen Visa


Under section 35 of the Migration Act 1958 (Cth), those who were affected by section 17 automatically acquired an ex-citizen visa which allowed them to lawfully remain in Australia. Once they leave Australia, they could not re-enter without a valid visa.

How you may come to find out of your loss of Australian citizenship under section 17:

  • After applying for Australian citizenship by descent for their overseas-born children
  • After applying to renew Australian passport
  • After applying for proof of Australian citizenship
  • Attempting to re-enter Australia after a long period of time living overseas

Repeal of section 17

After much lobbying, especially from the expatriate community, major amendments were made to the old Act in 2002. From 4 April 2002, dual nationality was introduced for Australian citizens, allowing a person to simultaneously hold both Australian citizenship and the citizenship of another country. However the change was not retrospective, meaning those who lost their citizenship under section 17 do not automatically regain their Australian citizenship.


If you were affected by section 17 and wish to regain your Australian citizenship, speak to us today about an application to resume your Australian citizenship.

Call us on (08) 8351 9956 or +61 8 8351 9956 or email us  This email address is being protected from spambots. You need JavaScript enabled to view it.

This blog post was written by Tra My Nguyen: Lawyer & Registered Migration Agent


Sources:
https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0102/02bd078

Citizenship Policy and Instructions 27 – Resuming Australian Citizenship issued on 24 May 2019
Migration Act 1958 (Cth) s 35

 

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Australian Skilled Migration Update - Only 250 189 Invitations! Accountant 100 points, Family Sponsor Easier

Australian immigration update January 2020

The latest report on invitations issued by the Department of Home Affairs shows another of extremely low number of invitations in December 2019.
There were 250 invitations issued for Skilled Independent visa (subclass 189) and a low number of 200
Skilled Work Regional (Provisional) visa (subclass 491) invitations awarded – the first month in availability.

 

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Five Common Reasons for Australian 132 and 188 Visas Being Refused

pencil bite

So, you have decided to invest in Australia. You have a successful business in your country and thinking about starting a business in Australia.
That’s great, you may want to get an Australian Business Visa. The Business Talent (Permanent) Visa Subclass 132 is similar to Subclass 188 – Business Innovation Stream visa and shares a lot of common criteria
with the rest of business skills visas. These visas are great options for the business owners and investors who have had a proven history in successful business ownership and management over an extended period of time.
While you are excited to expand your business and lodge a business visa application you need to avoid making the mistakes that can cause your visa application being refused.
We know a visa refusal can affect your planned visa pathway. Therefore, to assist our clients in having a successful Business Visa application we have done some
research and studied 26 reviewable decisions from The Australian Federal Circuit Court, AAT, and Federal Court. We have Identified 5 Common Mistakes in the visa applications, and how you can avoid them
because we are here to save your Business visa Application.

 


 

The top reasons are:
1. PIC 4020 and “Bogus Documents” or “Misleading information”
2. Lack of Ownership in the Nominated Business
3. Insufficient Required Investment Funds
4. Funds Used to Make Investment are Unencumbered and Lawfully Acquired
5. Insufficient Points

five reasons for 132 and 188 Visa being refused


1. PIC 4020 and “Bogus Documents” or “misleading information”

PIC 4020 and bogus documents and misleading information

This is the Number One mistake that applicants made and as a result their visa application refused.PIC 4020 enables refusal of a visa if an applicant provides a bogus document or information that is false or misleading in relation to their application. 

PIC 4020 requires visa applicants to not give, or cause to give, false or misleading information of a material particular to not just Home Affairs in relation to a visa application, but also to: the Administrative Appeals Tribunal, a Medical Officer of the Commonwealth or a skill assessment authority.

It applies to not only the visa application, but to a visa that an applicant held in the 12 months before the application was made. Should an applicant be refused for failing this PIC for bogus documents or misleading information, they are subject to a 3-year bar (from being granted another visa) for any visa which has this PIC as a criterion.

In most of these cases the question of bogus documents arose about their financial documents such as tax return and the business assets.
On the other hand, there are few cases where the applicant mistakenly provided bogus document or information that is false or misleading.

We agree that the process is one of the most complicated visas, it involves numerous financial reports, evaluation reports, and auditing reports.

The best way to prevent a refusal is to lodge a complete and correct application, and to respond to all requests for further information within timeframes as notified by the Department. Any gaps or inconsistences in information and/or documents provided can result in further scrutiny being applied to your application, and therefore a greater delay and likelihood of your application being refused.

 

2. Lack of Ownership in the Nominated Business

 

Lack of Ownership in the nominated business 

To demonstrate business experience, the application requires you have experience in owning and actively managing a business in your home country.
Insufficient ownership in the main business is the second reasons for the Department of Home Affair to refuse the business visa application.
In some cases, the applicant did not have the minimum of 30% ownership requirement in the main business.
Even if they had the minimum ownership requirement, it may not have been at least 2 of the 4 fiscal years immediately before the date of invitation to apply for the visa.
To avoid making this mistake in your application make sure you know the requirements and criterial to be eligible for a business visa.

For both the Business Innovation and Investment 188 visa and the 132 Significant Business History Visa, in two of the four fiscal years prior to applying
you must have had an ownership interest in one or more main businesses, which means:

  • have maintained direct and continuous management in the business
  • have an ownership interest to the total value of at least:
  • 51% if the turnover is less than AUD 400 000 or
  • 30% if the turnover is AUD 400 000 or more or
  • 10% if the business is a publicly listed company

For the132 Significant Business History Visa there is the additional requirement that: The total net assets of you, your partner, or you and your partner combined, 
must be at least AUD400,000 from the ownership interest in one or more qualifying businesses, gained over at least 2 of the 4 fiscal years immediately before you were invited to apply for this visa.

 

3. Insufficient Required Investment Funds

Insufficient required investment funds

You probably think that the applicants in this case did not have required funds and as a result their visa application refused. Well, it’s not as simple as that.
Our research shows the applicants might have enough funds but some could not prove it due to different system of property valuation undertaken in their countries.
For example, in one of the cases the applicant told the Tribunal that in Iran the law provides that only 2% of the total value of the property is required to be recorded on the Title Deeds.
If you live in a country where the system of property valuation is different and as result you cannot prove correct value of your property or assets,
you need to get a legal advice from your lawyer before you lodge an application.

It is critical to remember to support your business visa application you must provide the certificate of title, title deed,
valuation certificate by an accredited property valuer and/or mortgage certificate.
If these certificates cannot show the correct value of your property and assets you cannot have a successful visa application.

 

4. Funds Used to Make Investment are Unencumbered and Lawfully Acquired

Funds used to make investment are unencombered and Lawfully Acquired

Coming to the fourth reason for Subclass 132 and 188 visa refusal where the Applicants failed to consider the funds being used to make the investment must be unencumbered and lawfully acquired.
Our research shows that the Federal Court and the Tribunal affirmed the decision to refuse the visa application where the source of investment fund is from use of;

  • gambling proceeds,
  • gifts from unrelated parties, and
  • invalid trust

To avoid making this mistake as a business visa applicant you need to make sure that the funds used to finance your designated investment are personally owned and unencumbered and legally accumulated
as a result of your business and/or investment activities. You also need to provide a signed declaration listing the sources of funds for your asset portfolio, and that these funds were lawfully acquired.
Evidence to support your source of funds declaration:

  • For business income, provide evidence of business ownership, performance and profit distribution. For example, company registration and shareholder records, financial statements or taxation records
  • For investment income, provide evidence of investment activities and performance. For example, statements issued by stocks trading company, property purchase and sale contracts,
    leases or investment product contracts.
  • For gifted or inherited assets, provide duly witnessed gift deeds or wills. Also provide other evidence demonstrating how the original owner accumulated the assets
  • For a historical accumulation of wealth where official verifiable evidence is no longer available, provide bank records demonstrating continuous ownership of funds over a substantial period.
  • For assets held in Australia, provide evidence which links the assets to the declared sources.

 

Through these investment structures, the investor may hold complying investments in any proportion.
“Eligible investments” for the purposes of the Investor Stream include:

  • Ownership interests in a business
  • Cash on deposit
  • Stocks or bonds
  • Real estate
  • Gold or bullion
  • Loan to a business

5. Insufficient Points

 Insufficient points

No matter which visa you wish to apply, points are always important for having a successful application.
The fifth and last common reason for Business Innovation Visa and 188 refusals is not having the required 65 points.

Our research shows that most visa applications were refused because the applicant did not have sufficient points, or did not provide evidence to prove he or she is entitled to more points.

The AAT usually remitted the business visa applications where the applicants provided further documents such as university qualifications or English language ability to receive the required points.

To avoid such an issue with your application, you need to know what the required points are for subclass 132 and 188. As an applicant you need to make sure that you have all the necessary documents to prove your points at the time you make a business visa application.


Well what are the minimum required points for subclass 132 and 188 are 65 points? The factors that can affect your points are:

  • Age
  • English language ability
  • Educational qualifications
  • Financial assets
  • Business turnover
  • Investor experience
  • Special endorsement 


The link below will show you how much points you can have for the above factors.
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/business-innovation-and-investment-188/points-table


We hope you have found our research of case decisions over the past four years helpful.
And when it comes to considering a Business Visa Application, you keep in mind that bogus documents, lack of ownership in the nominated business,
insufficient required investment funds, funds used to make investment are unencumbered and lawfully acquired and insufficient points
are the most common reasons for Business Visa application refusals. Remembering these pitfalls when preparing your application will put you in the best position for Visa success.

Do you need help with an Australian visa application? At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:
(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

Other Useful Blogs and Videos on 132 Visa and 188 Visas

 Introducing Business Visa Compare
8 Things you need to know about Business Migration for Australia (132, 188 & 888 visa)
Video – Your Guide to the Australian Business Talent 132 visa. Straight to Permanent Residency – PR Visa!

 

List of Cases Reviewed between 2019 – 2015

Akhavannejad (Migration) [2019] AATA 2223 (14 February 2019)
Zhang (Migration) [2019] AATA 1009 (10 January 2019)
Surya (Migration) [2017] AATA 976 (16 June 2017)
SADEGHIAN (Migration) [2019] AATA 3012
Kukadia (Migration) [2019] AATA 4527 (14 August 2019)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511 (17 June 2019)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511 (17 June 2019)
WU (Migration) [2018] AATA 1092 (9 March 2018)
Guo (Migration) [2019] AATA 487 (14 March 2019)
Lovely (Migration) [2019] AATA 5318 (28 November 2019)
Wong & Ors v Minister for Immigration & Anor [2018] FCCA 3490 (29 November 2018)
Chen & Ors v Minister for Immigration [2015] FCCA 1018 (22 April 2015)
Momtaz v Minister for Immigration [2019] FCCA 520 (7 March 2019)
Xie & Anor v Minister for Home Affairs [2019] FCCA 266 (7 February 2019)
Han v Minister for Immigration [2019] FCCA 3558 (11 December 2019)
Zhang v Minister for Immigration & Anor [2017] FCCA 134 (30 January 2017)
Smith (Migration) [2019] AATA 4939
Cai (Migration) [2017] AATA 416 (9 March 2017)
Ding & Ors v Minister for Immigration [2019] FCCA 160
Zhang (Migration) [2017] AATA 1662 (5 September 2017)
1404069 [2015] MRTA 781 (19 May 2015)
1408380 [2015] MRTA 459 (24 March 2015)
1413159 [2015] MRTA 537 (8 April 2015)
W0600780 [2007] MRTA 480 (7 September 2007)
1508766 (Migration) [2016] AATA 3715 (11 April 2016)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511
Kukadia (Migration) [2019] AATA 4527 (14 August 2019)
Momtaz v Minister for Immigration [2019] FCCA 520 (7 March 2019)
Zhang v Minister for Immigration & Anor [2017] FCCA 134 (30 January 2017)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511
HOSSEINIANJEDANI (Migration) [2019] AATA 3511
Zhang (Migration) [2019] AATA 1009 (10 January 2019)
Zhang v Buljan [2016] FCCA 2426 (15 September 2016)
Cai (Migration) [2017] AATA 416 (9 March 2017)

Click here to view the full table of case decisions.
This information is accurate on 9th January 2020.

 

 

 

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Australian Immigration News Video December 2019 - New 491 & 494 visas, end of year rush & more!

Australian Immigration News Video December 2019 - New 491 & 494 visas, end of year rush & more!

Catch up on the latest Australian immigration news, including the new 491 & 494 skilled regional visas and much more!

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South Australia open for new subclass 491 visa nomination applications

South Australia open for new subclass 491 visa nomination applications

On 4 December 2019, Immigration SA opened nomination applications for the new subclass 491 visa and re-opened nomination applications for the subclass 190 visa. At the same time some new selection requirements have been introduced.

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Rosa's Story: From Hong Kong to Adelaide's beautiful beaches

Rosa's Story: From Hong Kong to Adelaide's beautiful beaches

Hear about Rosa's journey to Australia and how Work Visa Lawyers helped her to make it happen. 

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Our South Australia Immigration Lawyers

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Student Visas, Skilled Migration visas, Business visas, Employer-Sponsored visas, Partner, and other Family Migration visas, as well as Migration Review Tribunal, Judicial Review, and Ministerial Intervention. Based in Adelaide South Australia, our Immigration Lawyers and Migration Agents provide migration advice to people and businesses from all over the world.

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Contact us on (+61 8) 8351 9956

Office: 230 Henley Beach Road, Torrensville, SA 5031, Australia

Post: PO Box 3057, Hilton Plaza, South Australia, 5033, Australia

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