Podcast
Visa and Migration
| Business Migration | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Cancellation of Study Visa | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Working while Studying | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Migrating to Australia using the Business Skills Visa |
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Australia’s Business Skills Program constantly changes. However it has its focus on encouraging successful business people to settle in Australia. These migrants are expected to use their proven business attributes to develop business activity in Australia. Australia’s has an increasingly global economy and the government knows that to compete, they need to attract good business migrants. These migrants bring into Australia their knowledge of business networks, their cultural practices, business experience and contacts. They usually speak languages other than English and enhance the cosmopolitan feel of Australia. Business migrants benefit Australia by:
What is the Business Skills program as current in September 2011 If you have a business background, the easiest way to migrate to Australia currently is to enter Australia initially on a provisional (temporary) visa for four years. After satisfactory evidence of a specified level of business or investment activity the migrant may apply for permanent residence. These arrangements provide for the entry of business owners, senior executives and investors. State Sponsorship The qualifications to apply on a personal basis may sometimes not be achievable for the business migrant. There are still opportunities to enter Australia through the State Sponsorship program. Business migrants can also find an easier route to migrate through the decision to set up businesses in regional, rural or low growth areas of Australia.
The Business Skills visa categories The Business skills categories can be divided into applications through individual abilities or applications through state sponsorship. Below are information obtained from the website of the Department of Immigration and Citizenship website.
Business Skills (Provisional) visas. This is the visa to use if you have a business background.
PROVISIONAL BUSINESS OWNER VISA (subclass 160 Individual or 163 Sponsored) Business Owner (Provisional)(subclass 160 Individual or 163 Sponsored) is for people with a successful business career, including senior management or ownership, who have significant business assets and have a genuine and realistic commitment to participate as a principal in the management of a new or existing business. Applicants in this category may be sponsored by a state or territory government. The following requirements need to be fulfilled by the applicant: Age You must be less than 45 years old. If sponsored you can be 55 years of age. State/Territory notification You have notified the appropriate regional authority of a state or territory of your intention to develop a business in that State or Territory. You must have a vocational level of English. To show this you must you have one the following:
Business assets You (and your partner combined) had net assets in a qualifying business of AUD200 000 for at least two of the four fiscal years immediately before you apply. Business turnover and ownership The annual turnover of your main business (or two main businesses combined) must have been at least AUD500 000 (AUD300,000 if sponsored) in at least two of the four fiscal years immediately before you apply. In addition, you (and your partner combined) must have owned at least:
Total assets Your (and your partner’s) total assets have a net value of at least AUD800 000 (AUD 500,000 if sponsored), and were legally acquired and are capable of being transferred to Australia within two years of being granted this visa. You have sufficient assets (additional to those above) of at least AUD100 000 to settle in Australia. Business career You have an overall successful business career. You have not been engaged in a business where the provision of professional, technical, or trade services took up more than half your time. You and your partner have never been involved in unacceptable business activities. If you able to fulfil the above requirements, you should see a migration agent to file an application before the government changes the rules again. Even if you do not have a business background, you can still apply if you hold an executive position on certain companies. For those who do not have a business background but can show they have been employed in the top tier of management, they may consider:
PROVISIONAL SENIOR EXECUTIVE VISA (subclass 161 Individual or 164 if sponsored) Senior Executive (Provisional) (subclass 161 Individual or 164 if sponsored) is for senior executive employees of major overseas businesses who have been responsible for strategic policy development affecting a major component or a wide range of operations of that business, who have significant net assets and a genuine and realistic commitment to participate as a principal in the management of a new or existing business. Applicants in this category may be sponsored by a state or territory government. You must meet the following requirements to be eligible for this visa. You must provide evidence of each of the requirements with your application. Age You must be less than 45 years old. You can be 55 years of age if sponsored. English level You must have a vocational level of English. To show this you must you have one the following:
State/Territory notification You have notified the appropriate regional authority of a state or territory; and your intention to develop a business in that State or Territory. Business success You have an overall successful business career. Management experience You have occupied a position in the three highest levels of the management structure of a major business. In that position you were responsible for the strategic policy development affecting a major component or a wide range of operations of that major business, and have done so for at least two of the four fiscal years immediately before you apply. Significant assets Your (or you and your partner’s) total assets have a net value of at least AUD800 000 (AUD500,000 if sponsored), and were legally acquired and are capable of being transferred to Australia within two years of being granted this visa. Assets to settle You have sufficient assets (additional to those above) of at least AUD100 000 to settle in Australia. Business record You or your partner (if any) have never been involved in unacceptable business or investment activities Committed to business in Australia You have a commitment to maintain an ownership interest in a business in Australia and direct a continuous involvement in management of that business. Need to live in Australia You demonstrate there is a need for you to live in Australia for business reasons on a temporary basis. Now if despite trying your best, you do not meet the requirements for a Business Owner or Senior Executive visa, then consider the following if you have assets. If you do not fulfil the above requirements, then perhaps you can consider:
PROVISIONAL INVESTOR VISA Investor (Provisional) (subclass 162 Individual or 165 if sponsored) is for investors/business people who have an overall successful record of business or investment activities, have significant net assets, are willing to invest funds in a designated investment in Australia for four years and have a genuine commitment to maintain business and investment activity in Australia. Applicants in this category may be sponsored by a state or territory government. These are the requirements: Age You must be less than 45 years old. You can be 55 years of age if sponsored. State/Territory notification You have notified the appropriate regional authority of a state or territory; and your intention to develop a business in that State or Territory. Designated Investment At the time of the decision you have made a government approved Designated Investment of AUD1,500,000 (AUD 750,000 if sponsored) in a state or territory of Australia. This amount must be available for transfer to Australia within a reasonable period when requested. English level You must have a vocational level of English. To show this you must you have one the following:
Business career If unsponsored For at least one of the five fiscal years immediately before you apply:
or
Business experience You have an overall successful record of eligible investment of qualifying business activity. You have a total of at least three years experience of direct involvement in managing one or more main businesses or eligible investments. You have demonstrated a high level of management skill in relation to an eligible investment or qualifying business activity. Business record You (or your partner) have never been involved in unacceptable business or investment activities. Committed to business in Australia You have a commitment to develop and maintain an ownership interest in a business in Australia and you must maintain direct and continuous involvement in the management of that business. Net assets The net value of your (or you and your partner’s combined) assets was at least AUD2,250,000 (AUD 1,125,000 if sponsored) for the two fiscal years immediately before you apply. So after you have obtained your provisional 4 years visa and have settled down in Australia, what next? Well, after a suitable time, you may consider changing your visa to a permanent residence visa. The rules are as follows: PERMANENT RESIDENCE VISAS
Business Skills (Residence) visas Business Owner (Residence) (subclass 890 if Individual or 892 if sponsored) is for people who hold a Business Skills (Provisional) visa and have had an ownership interest in a business in Australia for at least two years with significant personal and business assets turnover, as well as a minimum number of employees. Applicants need to be in Australia for at least one year in the two years immediately before applying. Applicants in this category may be sponsored by a state or territory government. To be eligible for this visa you must have met the obligations of the provisional visa you held, as well as meeting the following requirements. Provisional visa holder You must be the holder of one of the following visas:
You must have been in Australia as the holder of one of the qualifying visas for a total of at least one year in the two years immediately before you apply Ownership interest In your main business (or two main businesses) in Australia, you have had and continue to have direct and continuous management for at least two years immediately before you apply. In addition you must own at least:
Net business assets The net value of your (or you and your partner’s combined) assets in the main business (or two main businesses) in Australia is at least AUD100 000 throughout the 12 months immediately before you apply. If you are sponsored under visa class 892, then the net value of your assets needs to be at least AUD75,000. Net personal and business assets The net value of your (or you and your partner’s combined) personal and business assets in Australia has been at least AUD250 000 throughout the 12 months immediately before you apply. If sponsored under visa class 892, the net personal and business assets also needs to be at least AUD250,000. Provided employment Throughout the 12 months immediately before you apply, your (or your and your partner’s) business (or two main businesses) employed at least the equivalent of two (one full time employee only if sponsored under visa class 892) full-time employees who are:
Annual turnover Your main business (or two main businesses together), had a turnover of at least AUD300 000 (AUD200,000 if sponsored under visa class 892) in the 12 months immediately before you apply. In addition if you are sponsored under visa class 892 The turnover provision may not apply if you meet all of the following conditions:
Acceptable business record You or your partner (if any) have never been involved in illegal business activities. Time in Australia You have been in Australia for at least one year cumulatively in the two years before you apply. We shall now consider your options to change from a provisional investor visa to a permanent residence visa under the Investor visa class. INVESTOR (RESIDENCE) SUBCLASS 891 OR 893 IF SPONSORED Investor (Residence) (subclass 891/893 SPONSORED) is for people who have held an Investor (Provisional) visa and a designated investment for the minimum four years, and who have lived in Australia for at least two years in the four years immediately before the application is made. Applicants in this category may be sponsored by a state or territory government. To be eligible for this visa you must have met the obligations of the Investor (Provisional) visa, as well as meeting the following requirements. You must provide evidence of each of the requirements with your application. Provisional visa holder
If you are applying under visa class 893, you need to be sponsored by the appropriate regional authority of a state or territory government.
If you have a significant business history, then you may want to consider applying as a Business Talent and go direct into a permanent residence visa. What is a Business Talent? Business Talent (Migrant) visa (Subclass 132) Below are the requirements you must meet to be eligible for this visa. Age You must be less than 55 years old (except where the regional authority considers that the proposed business will be of exceptional economic benefit to the region). Business success You have an overall successful business career. Sponsorship You must be sponsored by an appropriate regional authority of a State or Territory Government. Significant business assets You (and your partner combined) had net assets in a qualifying business of AUD400 000 for at least two of the four fiscal years immediately before you apply. Significant annual turnover The annual turnover of your main business (or two main businesses combined) was at least AUD3 000 000 in at least two of the four fiscal years immediately before you apply. Business ownership You (and your partner combined) must have owned at least:
Significant assets Your (or you and your partner’s) total assets have a net value of at least AUD1 500 000 and were legally acquired and are capable of being transferred to Australia within two years of being granted this visa. Acceptable business record You (or your partner) have never been involved in unacceptable business activities. Committed to business in Australia You have a commitment to maintain an ownership interest in a business in Australia and direct and continuous involvement in the management of that business. After arrival – obligations of Business Skills visa holders Apart from the requirements that Provisional visa holders must meet to secure permanent residence, there are specific monitoring provisions and obligations imposed on Business Talent visa holders. Business Skills (Provisional) visa holders are required to obtain an ownership interest in a business in Australia or maintain their investment in Australia for four years. If this requirement is not met, they may not be eligible to apply for a Business Skills (Residence) visa and may have to leave Australia. ESTABLISHED BUSINESS, PERMANENT VISA Sometimes my clients are unable to fulfil the requirements for a provisional business skills visa whether sponsored or otherwise. It may still be possible to migrate to Australia. I sometimes encourage them to see if they can buy a business first while remaining in Australia on a valid visitor or other substantive visa. The requirements are as follows: Appropriate visa holder You are the holder of a temporary resident visa, which is not a special purpose visa (Border visa, Diplomatic visa, Domestic Worker visa, Transit visa, Maritime Crew visa or Superyatcht Crew visa) and you do not hold a bridging visa. Business success You have an overall successful business career. Time in Australia You have been in Australia for at least 272 days (approximately nine months) in the 12 months before you apply. Ownership interest You have had and continue to have, an ownership interest and direct and continuous management, in up to two actively operating main business in Australia for at least 18 months immediately before you apply. You must own at least:
Significant assets Your (or you and your partner’s) total assets in Australia for the 12 months prior to applying were greater than AUD250 000. Business assets Your (or you and your partner’s) total net assets in your main business (or two main businesses) in Australia for the 12 months prior to application were greater than AUD100 000. Business involvement You have been actively involved in, and directly responsible for, the day to day management and overall performance of your main business (or two main businesses). Acceptable business record You (or your partner) have never been involved in unacceptable business activities in Australia. Points test You must score at least 105 points in the established business in Australia points tests. Age
Language ability
Business attributes
Net assets
Check if you are able to fulfil the points test and the requirements regarding the operation of the business. If you can then, despite holding for eg. a visitor’s visa, you can still qualify for permanent residency. However, you need to ensure that the visitor’s visa requirements are not breached. The rules on a visitor’s visa include not “WORKING”. The applicant needs to ensure they are managing the business as an owner and not working in the business. The requirements regarding a 3 mths maximum stay for each visitor’s stay also applies. ESTABLISHED BUSINESS (REGIONAL AREA) SUBCLASS 846 Likewise, there are less stringent requirements if your established business is in a regional area. You must score at least 105 points to be eligible for this visa (except in exceptional circumstances). You can use these tables to give yourself an indication of what score you may get. The department works out your points score from the information you give in your application. Age
Language ability
Business attributes
Net assets
Sponsorship
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Prior Cancellation of Visa When Course of Study Has Not Been Completed (by A.J. Aristei, independent Barrister)
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| Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed and Another [2005] FCAFC 58 Breach of Condition – Migration Regulations 1994, Schedule 8 Condition 8202(c) Can a student visa be cancelled under condition 8202(c) when the course the student is participating in hasn’t finished? Key points:
Can the Minister act when a breach is likely or probable? Any university student can tell you that a grade is not given out before you finish a semester-long unit! There are many circumstances where one can find themselves doing very well in an assignment, but then fail the end of semester exam, hence failing a unit. The point that I am trying to make is that it is hard to determine whether a student is going to satisfactorily complete a course until their course is finished. This now leads me to the question of whether a student’s visa can be cancelled when a student has not completed their course. For instance, what if it looks like the student cannot satisfy the attendance requirement or academic satisfaction required under Condition 8202(c) of the E.S.O.S. Act? The case that deals with this point of law (which seems more like a puzzle) is M.I.M.I.A. v Ahmed. In this case, the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs cancelled Ahmed’s student visa prior to the scheduled completion of the course in which he was enrolled. The argument from the academic institution was that the cancellation was on the grounds that the Respondent could not satisfy the attendance requirement in the Migration Regulations 1994 Cth, Sch 8, item 8202(b) and would therefore be unable to obtain a certificate from the education-provider as required by Sch 8, item 8202(c). Just to refresh your memory on the above items, Condition 8202(b) stipulates that a student on a visa must attend their course AT LEAST 80% of the time. Condition 8202(c) stipulates that if there is no evidence that a student has attended their course at least 80% of the time, then they cannot complete their course at a satisfactory level. When this matter was taken to the Migration Review Tribunal, The tribunal found that by the time of cancellation, it was clear that the Respondent would be unable to satisfy Sch 8, item 8202(c). The Tribunal proceeded on the basis that the position was to be judged at the date of cancellation of the visa, but took into account facts occurring thereafter in assessing the position. The decision made by the Courts was that the phrase “for the course” meant that the course had to be completed. Therefore, condition 8202(b) could only be breached where it is impossible for the condition to be achieved by the end of the course. In addition, the Court held that there cannot be an anticipatory breach of condition 8202(c). Rather there has to be evidence that attendance was not evident before looking at the satisfactory completion of the course studied. There can be no such failure prior to the completion of the course. Conclusion To answer the question posed at the start: the answer is no. Unless there has been completion of the course studied, there cannot be any anticipation that the requirements of condition 8202 of the Migration Regulations will be breached. [Please note that this case-summary does not take account of any actual or pending appeals against the case analysed. Nor is any assessment (actual or pending) made of possible changes to legislation that may counter the effect of this case] |
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Working while Studying – An Opportunity Fraught with Danger for International Students
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| Minister for Immigration and Multicultural and Indigenous Affairs v Alam [2005] FCAFC 132 Breach of Condition – Migration Regulations 1994, Schedule 8 C ondition 8105 – exceeding 20 hours work in a week Definition: “week” Studying in Australia can be a tough bargain for international students; there are a myriad of conditions and restriction that they must comply with to avoid breaching their visa and ‘shattering their dreams’. One of the most treacherous is the requirement not to work for more than 20 hours a week whilst the selected study course is in session. However, many students do not know what this means and can either unknowingly breach this condition or, even worse, be accused of breaching it when they are entirely innocent. The following case defines what condition 8105 of the Migration Regulations 1994, Schedule 8, actually means and is essential reading. In this case, Mahabub Alam was a young man from Bangladesh who held a student visa from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). He arrived in Australia on 17 April 2001. Mr Alam was a very enterprising student, who not only undertook an intensive English language course, but also (in just seven months) completed a high distinction average in a Diploma of Information Technology (Network Engineering). (This course usually takes two full years!!!). Mr Alam then embarked upon a degree at Central Queensland University in Information Technology. This highly successful student had no problems with either attendance or marks, and it was not until September 2002 that things began to go wrong! Mr Alam had renewed his visa from time to time as it was required by law. At the time, he had been issued with a Higher Education Sector visa (subclass 573) – valid until 15 March 2004. Mr Alam’s study in Australia was financed by his father (back in Bangladesh), but he also supplemented his income by undertaking casual work. Condition 8105 of Mr Alam’s visa stipulated that he was prohibited from working more than 20 hours “during any week when the holder’s course of study or training is in session”. Mr Alam had dutifully complied with this condition throughout his stay in Australia. On a Friday night in October 2002, Mr Alam was working in a Sydney hotel when the duty manager, having realized that another staff member could not attend work, asked him to work overtime until the hotel closed that night. Dutifully and diligently, Mr Alam complied. The hotel, also in good faith, noted Mr Alam’s extra work on his pay slips and timesheet – he had worked 22.5 hours from Tuesday to Monday. Thinking nothing more of the incident, Mr Alam continued to study hard and achieve well. Ten weeks later, DIMIA officers came to speak with one of his flatmates. The officers were seemingly abrasive and, without warrant or reason, undertook a search of Mr Alam’s room and belongings. The officers saw the payslips from October and interpreted them to mean that Mr Alam had worked more than 20 hours in a single week. Mr Alam appealed against this interpretation. DIMIA claimed that a ‘week’ for the purposes of condition 8105 was any consecutive seven day period and therefore the payslips were indicative of Mr Alam’s breach. Mr Alam believed that a “week” for the purposes of the Migration Regulations 1994 meant a university calendar week, beginning from either Sunday or Monday. Upon this interpretation, Mr. Alam had not exceeded his visa conditions and was entitled to remain the holder of a valid student visa. The Migration Review Tribunal agreed with Mr. Alam and, upon appeal, the Federal Court of Australia (Full Court) confirmed this view. Conclusion A ‘week’ for the purposes of condition 8105 of the Migration Regulations 1994, Schedule 8, runs from either Sunday or, more likely, Monday depending on the context. This means that a student holding a visa subject to this condition can work up to 20 hours at any time in this period, regardless of the pay period given by the employer, and without concern that these hours will adversely affect their availability early in the following week. Any student who feels that they have suffered under similar circumstances would do well to consider obtaining legal advice as soon as practicable. |
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