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INVEST IN April 2002 Brett Slater and Victoria
Pomfret Brett Slater Solicitors |
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Visas are either temporary or
permanent. The temporary visas can be for business
or pleasure, and they can be short term or long term, up to 4 years. Permanent visas allow a person
to stay permanently inside However, if the person leaves Each time the person comes back
into But if the person wants to leave
v renew the permanent visa, and get a fresh “5
year re-entry permit”; or v obtain citizenship. Once a person becomes an
Australian citizen, he/she no longer needs any Australian visas. In order
to become an Australian citizen, it is generally necessary for the person to
live in |
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These rules have now been
changed. Under Australian law now, it
does not matter which nationality is obtained first (nationality means the
same as citizenship). Many people obtain permanent
visas without first visiting However, many people also visit Therefore, for these people
there are three stages: 1.
first obtaining a temporary visa; 2.
then later obtaining
a permanent visa; 3.
then later obtaining citizenship and an Australian passport. There are thousands of pages of
rules and regulations about getting Australian visas. The rules change, on average, every month
or second month. The main rules
generally remain the same, but the smaller rules are often changing. Because the rules are complicated
and frequently change, it is best to use professional, expert consultants,
such as our firm Brett Slater Solicitors, to simplify the process and to make
sure that the application is made in the correct way. There are many different visa
categories. For some types of visa,
the rules are quite simple; for other
types, the rules are complicated. What I would like to do today is
to briefly describe some of the main categories, and explain some of the main
rules about those visa categories. |
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676 “Tourist Short Stay”; 686 “Tourist Long Stay”; 456 “Business Short Stay”; and 457 “Business Long Stay”. The 676 and 686 visas do not
allow a person to do any kind of work in |
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To make an application for a 456
visa, it is desirable to attach: v A formal letter of invitation from an Australian business or
organisation; v A detailed itinerary describing contact details of Australian companies
or organisations that will be visited; v A letter from your business organisation giving authority for the
visit. This letter should describe
the reasons for the visit and provide other details; v
Information about your business. |
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There are two main kinds of 457
visa: v where you intend to be employed on a full-time basis by
an Australian company, and that company is your “sponsor”; and v where you intend to run your own business and you are an “independent executive”. The main requirements for the
sponsored 457 visa include: v your occupation must be on a published list of occupations; v you must have the training and skill for that occupation; v your salary must be more than (approximately) AUD 35,000 [that is,
about US 18,000]; v the company must train its Australian employees and have a good
record. The main requirements for the
independent executive 457 visa include: v you must (usually) have at least AUD 250,000; v you must have a business background; v you must have a plan for a business in The $250,000 does not all have to
be in a single bank account. It can
be made up of different things. For
example, it can be made up of cash, your home, investments, your business and
a whole range of different kinds of property. The important thing is that the overall value must add up to at
least $250,000. The ownership of these assets
does not only have to be in your own name.
If you are married, you can add together the assets owned by you and
your husband or wife. If you have any kind of debts -
for example, business or personal debts, mortgage, etc – these must be
subtracted from your overall assets to create a “net asset” figure. If you do not have $250,000 in
bank deposits, it may be necessary to provide acceptable valuations about
your other property. You must be in a position to
transfer the $250,000 to If you get this kind of visa,
you will usually be given around 4 years to live in You can usually apply for the
sponsored 457 visa from inside or outside Generally, you can only apply
for the independent executive visa from outside There are also other kinds of
457 visas with different rules. For
example, there is a category for overseas businesses (such as a business in |
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For example, there is a
“marriage visa” (also called a spouse visa) where the main requirement is
that the applicant is married to an Australian citizen or permanent resident. Today I will focus on the main
categories for people with employment skills, business skills and investment
skills. These categories are: 121 -- employer nomination; 124 -- distinguished talent; 127 -- business owner; 128 -- senior executive; 131 -- investment-linked; 136 -- skilled independent; 138 -- skilled
Australian-sponsored; and 845 -- established business. Some visa applications require
the person to be inside Some applications require the
person to be inside All of the above applications, except for the 845, can be made outside Also, for many of these
categories there is a corresponding category (with a different number, eg
844) where the person can be inside But today, we will mainly focus
on the applications where you can be outside |
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For this one, you must have an
employer in In most cases, the employer must
advertise the position in Once again, the employer must
prove that it has a good training record. Usually, you will have to prove
that you are highly skilled, which means a total of at least 6 years training
and experience. You must be under 45 and you
must have good English; although in some limited circumstances, exceptions
can be made. |
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You must prove that you have an
exceptional record of achievement in an occupation, profession or
activity. You must also prove that
you would have no problems in obtaining employment in It is also necessary to submit a
“nomination”, which is like a reference, from an Australian person, business
or organisation. Although not many applications
are made in this category, it can be useful sometimes when a person does not
easily fit in the other categories; and has strong skills. |
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The main requirements include: (i)
You have business assets of at least $200,000 (please
note, all figures are in Australian dollars) and you have had that for at
least 2 years. (ii)
It must be the right kind of business; for example, a business which only rents out properties may not
qualify. Also, a business which is
only operated for “speculative or passive investment” may not qualify. Generally, any building company, or manufacturing
company, or other company providing services to the public, will qualify as
the right kind of business. (iii)
You must be able to show that you have been running at
least one business. This means that
you must have been directly and continuously involved in managing the
business on a day-to-day basis and making decisions that affect the overall
direction and performance of the business.
In some cases this can be hard to prove, if you were, for example,
living in a different country. You
must show that you were running the business for a period of at least 2
years. (iv)
If your business only provides professional, technical or
trade services and you also personally provide those services (for example,
as an electrician), then you must show that you are personally providing
those services for no more than half your
working time. To take an example, if your
company did nothing else except provide electrical insulation services and
you had 20 electricians working for you, and you yourself were also doing
“hands-on” electrical installation work, then you would have to prove that
you were doing the “hands-on” work no more than 50% of your time. (v)
You must show that you have a genuine plan to run a
business in (vi)
You must be intending to run the business in such a way
that it will benefit the Australian economy.
However, you would normally be getting the visa before you started
running the business. It is the intention which you must have. (vii)
Your business in (viii)
You must pass a points test. This test is called the “business skills points test”. A copy
of the test is attached. Generally, you need to get a total of 105
points. Generally, you can get points
for: -- the turnover (total annual
sales) of your business; -- the size of your payroll
(total annual salaries); -- the value of your business; -- your age; -- your English language
abilities, (or other language abilities if you speak more than one language); -- the total value of the assets
of you and your husband/wife; -- sponsorship by an Australian
Government organisation. For example: 1.
If you had 50 employees in your business and you had
annual sales of $3,000,000, you would get 55 points for the business. 2.
If the total payroll was $300,000, you would get 5 points
for that. 3.
If the value of your business was $800,000, you could get
5 points for that. 4.
If you were 42 years old, you could get 30 points for age. 5.
If you had some limited ability in English, you could get
10 points for that. 6.
If the total value of your business and all of your
property and investments was $1,000,000, you could get 5 points for that. This would make a total of 110
points, which is more than the 105 points you need to succeed. This means that you might not necessarily
have to prove that the value of your business was $800,000, if, (for
example), you and your wife/husband could show that you had other property
worth more than $500,000. It can be seen that the more you
have in total assets, the more points you get for assets and the less you
need the other points. For example,
if you have total assets worth more than $2,500,000, you will get 15 points
for assets. This could mean that, in
some cases, you might not need to show any ability in the English language at
all. For 127 visas, you cannot get
points for any of Items 7151, 7160-7163, 7170 or 7306-7310. This points test also applies to other
visa categories such as the 131 and 845.
In each case it is necessary to look at the rules for the individual
category and then combine those rules with the points test to work out how
many points you can obtain. The maximum score for a person
who has no ability in English, and
cannot speak two languages, is still 125 points. This in a way means that you can afford to “lose” 20 points
from the maximum score (if, for example, you do not have assets of
$2,500,000) and yet can still succeed. If any of you are interested in
migrating to Australia, I would be very happy to see you separately and to
consider whether there may be a possibility of making a successful
application in this category. |
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You must be a senior executive
in a company which has a turnover of at least $50,000,000. This means that you must be in the top
three levels of management. Apart from that, you must also have a plan to set up a
business in Australia and you must pass the points test, which is very
similar to the 127 visa.
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To succeed with this kind of
visa application, you must be ready to invest at least $750,000 of your own
money in an Australian Government investment for at least 3 years. The amount of money that is needed to be
invested depends on the application of the points test. For example, a person who is 44
years of age might need to invest less than a person who is 54 years of
age; or a person who has strong
English language abilities might need to invest less than a person who has no
English language abilities. In each
case, it will depend on all the circumstances about the person. If you are intending to invest
$750,000, you must have at least 50% more than that amount available. This means that you must own at least
$1,125,000 in total assets, even though you would only be investing $750,000. A person who is 48 years of age
and has a total of $1,200,000 of assets and “functional ability” in English
would only need to invest $750,000. While the money is invested, you
receive interest from the Australian Government. At the end of the 3 years, the money is returned to you. This is a good category for
people who are not currently running a business, but who have substantial
assets and can afford to invest the necessary amount of money for 3 years. |
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To succeed with this
application, you must have strong English skills. You must obtain a score of at least 5 in each of reading,
writing, listening and speaking in the “IELTS” English language test. You must be under 45 years of
age and you must have an occupation which is on a list which is published for
this category. For example, the list
includes finance managers, general managers, production managers and
accountants, but does not include waiters or clerks. There are many occupations on the list. It is necessary to have been
working in a listed skilled occupations for a particular period. The length of the period will depend on
all the circumstances. For some
people it will be 12 months out of the last 18 months; for others it will be 3 years out of the
last 4 years. It is necessary to get your
skills in the nominated occupation recognised as adequate for the Australian
employment market. Once again, if anyone thinks they might be eligible in this category, we would be happy to undertake an assessment. |
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This visa is called the “skilled
Australian-sponsored” visa; it is very similar to the 136 visa, but has the
advantage that because you have an Australian relative a smaller number of
points need to be obtained in the rest of the points test. That is a different kind of points test
than the one for the 127 visa; this
particular points test is only designed for the 136 and 138 visas. This points test has not been
attached to this paper however, if anyone thinks they might be eligible in
this category, we would be happy to provide a copy of the test. |
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People who come to Australia on
the 457 independent executive visa often later obtain the 845 visa. The main requirements include: (i)
you have been in Australia for at least 9 months out of
the last 12 months; (ii)
you own part or all of an Australian business; (iii)
for at least 12 months, you have had more than $250,000 in
Australia; (iv)
for at least 12 months, you have had at least $100,000 in
your Australian business; (v)
for at least 12 months, you have been directly running the
business, making decisions that affect the overall direction and performance
of the business; (vi)
you must also pass a points test. Once again, the points test is a
little complicated. You can get
points for your business, your age, your English language or other language
abilities and for your overall assets. You can only get points for
items 7170, 7201-7205, 7301-7305 and 7401-7404, in the test. An example of a person who would
succeed in this category is “Mr Yang” as follows: Mr Yang came to After arriving in Mr Yang’s English language
abilities have improved in the 3 years that he has been in Once Mr Yang has obtained his
permanent 845 visa, he is free to sell the business if he wants to. |
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In some cases there are
restrictions on foreign investment, and in some cases it is necessary to
obtain permission in advance from the government through the Foreign
Investment Review Board (“FIRB”). In some cases, permission to
purchase residential real estate, such as existing houses or home units, may
not be given. It is not necessary for
Australian citizens to seek permission.
It is also not necessary for permanent residents who have been
resident in Australia for at least 200 days out of the previous year to seek
permission. If you do not fall into
one of those two categories, it may still be possible for you to purchase
residential real estate if, for example: a)
you are a senior executive intending to live in Australia
for more than 12 months, and your company wishes to buy the home for your
accommodation; b)
you will be staying in Australia for more than 12 months
and wish to live in the property; c)
you wish to rebuild, and a substantial amount of money
will be spent on the rebuilding; d)
you are purchasing “off-the-plan” and less than 50% of the
dwellings in that particular development are being sold to foreign buyers. It will usually be possible to
obtain permission for the purchase of commercial real estate if the value is
over $5,000,000 or if you are intending to rebuild; this includes shops, offices, warehouses and factories. It is usually possible to obtain approval
for the purchase of hotels and motels. Applications for permission must
be made in writing and must include details about the property, the vendors
and the purchasers. Brett Slater Solicitors have
previously obtained permission for Chinese Nationals to purchase real estate
in Australia and, if you are intending to make an investment of the kind
mentioned above, we would be happy to carry out the necessary legal work. |
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For these reasons, it is highly
desirable that you are represented by a skilled professional migration agent. In our firm, we take
considerable care to ensure that all of the necessary documentation is
prepared for attachment to the visa application. We prepare detailed written statements about the business
background of the visa applicant and about their business intentions. When we do this, we take into account not
only the requirements of the regulations but also Australian Immigration
policy (which does not appear in the regulations themselves). We know about Immigration policy partly
because much of it is published, and partly from our many years experience in
dealing with migration applications.
Published policy alone is many thousands of pages in length. We prepare detailed written
arguments, called “submissions”, which are contained in a letter from our
firm and attached to the application.
These submissions explain to Immigration in detail why the application
should be approved, by reference to the regulations and policy which apply at
the time of lodgement of the application.
It has been our experience that carefully drafted submissions can
substantially improve the prospects of success in applications. We can also help our clients in
many different ways after they arrive in Australia. We have a great deal of experience in carrying out legal
transactions for business clients, such as the purchase or sale of an
Australian business, or the purchase or leasing of houses, home units, shops,
warehouses, factories and many different kinds of property. If you decide to migrate to Australia, we
would be very happy to assist you with these transactions, and with general
business advice. In some cases we may be able to travel to China to assist
in the preparation of visa applications.
In our office we have a fully qualified solicitor, Victoria Pomfret,
who is also a registered migration agent and who speaks Mandarin. We also have an administrative assistant,
Ms Jenny Xu, who was born in China and who spent the first 10 years of her
life in China. She speaks fluent
Mandarin.
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Brett Slater
Solicitors Phone: +612 9299 5815
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