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22.12.17 - migration blog

Unlocking the Law - Working Holiday Visa's and Seeking an Extension

On a working holiday Visa, you are able to do any kind of work during your twelve month stay; however the condition on your Visa limits you to a period of six months with any one employer, unless you are employed to work in different locations.  For example, you may be employed by a restaurant, hotel or resort within the same chain, but after your six month period has ended you relocate to a different location, still working for the same chain.

If your circumstances don't fall within the exception outlined in the example above, the only way around it is to seek permission by the Department of Immigration and Border Protection (DIBP) to extend your working period.

The DIBP do recognise that in certain circumstances it is necessary for holders of a working holiday Visa to remain with their employer beyond the six month period however, granting an extension only happens in limited circumstances.

Positions where extensions will be considered are:

Au pairs

If you have worked as an au pair for a family for a period of six months and your main responsibility was the care of children younger than twelve years of age, you may be given approval to work for an additional six months.

Work in certain industries in Northern Australia

If you are employed in disability and aged care, agriculture, forestry and fishing, construction, mining, tourism and hospitality in the Northern Territory and those areas of Queensland and Western Australia (above the Tropic of Capricorn), you may be given approval to work for an additional six months.

In all other circumstances

Your request to work beyond six months with the same employer may be considered if you have exceptional grounds for applying, such as you are required to assist complete a specialised project at work, perform disaster recovery work or need to remain in your current position while a decision is being made on a current Visa application, such as a Partner Visa or Skilled Visa.

If you are considering making an application for an employment extension but are unsure whether you would qualify, please make contact with me to discuss.

Article by Hayley Toombs

Solicitor and Migration Agent (MARN) 1797340

 

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Rainbow photo

The Importance of Finalising Your Divorce

Applying for a divorce is one of those things that people tend to put off - a bit like going to the dentist.

However, in the same way that there are consequences of not going to the dentist, not finalising a divorce can result in some unforeseen issues down the track.

Some think that a divorce is simply a piece of paper that you need if you want to remarry.  Certainly, it is a good idea to apply for a divorce well before you start planning wedding dates, as you don't want your wedding to be delayed by a hiccup in the divorce process.  However, probably the most pressing reason to get a divorce promptly is to start the clock ticking for the finalisation of a property settlement.

A former spouse can apply to the Family Law Courts for a propery settlement any time up until one year after a divorce is granted, unless a formal property settlement has been finalised earlier.  If and when a court application is filed, the court looks at the assets and liablities that exist at the date the matter is decided by the Court.  That means that if you have inherited money, done well in business, or even won the Lotto, then the door is open for your former spouse to make a claim against those post-separation assets.

For that reason, getting a divorce should be a priority, particularly if a formal property settlement (by way of a Financial Agreement or Consent Orders) has not been done.  After the expiry of the one year time limit, a spouse must seek the leave of the Court in order to bring an "out of time" application for property settlement.

Claims against the Estate of a deceased spouse are another unforeseen issue that can arise as a results of not getting a divorce.  If the parties are still legally married when one of them dies, then the other is a person who is eligible to make a claim against the Estate.

So when can you apply for a divorce?  In short, as soon as one year has elapsed since separation.  It is a myth that a property settlement needs to be finalised first, or that there needs to be orders in place about the care of the children.

Briese Lawyers can make the divorce process easy and painless.  Contact us to obtain a quote for our fixed fee service.

 

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

NZ citizen

I am a NZ Citizen, currently on a SCV, what are the requirements for me to become an Australian Citizen?

New Zealand citizens are granted a Special Category Visa (SCV) upon arrival to Australia.  A SCV is a temporary Visa and does not provide the Visa holder with the same benefits and rights that an Australian Citizen or permanent resident has, but it does allow a New Zealand Citizen to live, work or study lawfully in Australia for the duration of their stay.

Your eligibility as a New Zealand Citizen for Australian Citizenship depends upon your date of arrival to Australia:

  1. If you arrived before 26 February 2001 you may already be considered a permanent resident for the purpose of applying for Australian Citizenship.
  2. If you arrived after 26 February 2001 you may be required to become a permanent resident first in order to meet the eligibility requirements for Australian Citizenship.  If this is the case, there are a number of permanent residency Visa options available that you may be eligible for.

For further information and to determine your eligibility, please feel free to call us today and schedule an appointment.

 

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Off the plan contracts

An Introduction to Off the Plan Contracts for Sellers of Vacant Land

 

What are they?

An Off the Plan Contract is a type of Contract relating to the sale of Property, which is entered into before legal title to the lot has been created.

In the case of vacant land, off the plan contracts are most frequently used where a developer is subdividing land, and wants to sell the lots before the subdivision is finalised.

Where can they be used?

An Off the Plan Contract can be used at any time before legal title is created, provided the relevant disclosure requirements have been met.

The disclosure requirements are set out in Sections 9-11 of the Land Sales Act 1984 (Qld).  In short, a Seller must give to a prospective Buyer certain information about the property that is being purchased.  That disclosure must be given to the Buyer before the Buyer is given the proposed Contract.  One of the key documents that must be given to a Buyer is a Disclosure Plan, which sets out the particulars of the Lot that is being purchased.

Benefits

There are a number of benefits to selling property via Off the Plan Contracts.  The following examples are the major benefits:

  • Lock in Buyers early:  The process of subdividing land can take months from start to finish.  It would be preferable to a Seller to have Buyers signed up to Contracts while that process is happening, rather than taking the lots to market after registration has occurred and the lots have been subdivided.  For larger subdivisions, if a Seller requires finance, the financier will usually require a certain number of lots to be sold before they will provide funding.  For Buyers, in most cases banks will approve finance for Off the Plan Contracts, so there won't be any Buyer delays in obtaining finance after registration.
  • Quick Settlements following registration:  Settlement can be completed 14 days after registration of the new lots and creation of their legal title.  If Buyers are locked in early (as suggested above) this potentially means a Seller could have all of the lots in the subdivision settled 2 weeks after the lots are created.  This is beneficial for a number of reasons, but particularly, the financial side of things because subdivisions are expensive, and where a Seller has obtained finance to complete the subdivision, it will be important to pay back the bank as soon as possible. Where the subdivision is being done in a number of stages, this means the Seller can move onto the next stage quickly.
  • Increased Deposit:  Generally, Sellers can only require that a Buyer pay a maximum deposit of 10% of the purchase price, without the Contract becoming an "Instalment Contract" (which is unfavourable to the Seller).  However, Section 71 of the Property Law Act 1974 allows Sellers to take up to 20% deposits in Off the Plan Contracts.  This is beneficial to a Seller because:
    • they can claim the deposit from a Buyer if the Buyer defaults under the Contract in certain circumstances; and
    • if a Seller requires finance for their subdivision, the increased deposits will prove to be more favourable security to their financier.

What are the risks/disadvantages?

Although there are some great benefits to Off the Plan Contracts, it can also be a risky activity.  Here are some examples of risks a Seller might face if using Off the Plan Contracts:

  • Disclosure is critical:  If the disclosure requirements (as noted earlier) are not strictly followed for any Contract, the Buyer will have termination rights at any point until the settlement date.
  • Changes to Disclosure:  If the information disclosed to the Buyer as disclosed pre-contract is required to be changed (for example, the Lot size) the Seller must notify the Buyer of that change (known as a Further Disclosure).  If a Further Disclosure is required to be given to a Buyer, the Buyer may have termination rights, if the change materially prejudices the Buyer.  Settlement may not occur any earlier than 21 days after a Further Disclosure is given to a Buyer, so this can also delay settlement.
  • Time Limit on Registration:  For vacant land sales, there is a statutory requirement on Sellers to ensure that registration is completed within 18 months of the Contract Date.  If registration is not completed within that timeframe, the Buyer may terminate the Contract.

In Conclusion

If done right, selling property Off the Plan is a great way to progress a development while the subdivision process is being carried out.  However, Sellers should ensure that they understand the risks involved and obtain relevant legal advice to minimise those risks, and also to ensure that an informed decision can be made as to whether the subject property should be sold Off the Plan at all.

 

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Business Deal

Leasing Premises For A Business

A Lease is a legally binding Contract which gives you particular rights to a property for a designed term.

If you have found the perfect premises for your business, you may be provided a Letter of Offer, Intention to Lease or Lease from the letting agent.  You should never sign a Letter of Offer, Intention to Lease or Lease without understanding all of the Terms and Conditions.

We recommend that you have a solicitor go over the documents in order to protect and secure our interests and minimise any potential litigation or disputes that could arise should you not understand what you are agreeing to.

Retail Shop Leases Act 1994

Particular types of Leases are governed by the Retail Shop Leases Act 1994 (Qld).  Broadly, a Retail Shop Lease is a Lease of premises by a business that is classified as a Retail Shop, or those which are within a Retail Shopping Centre.  If you intend to Lease a Retail Shop, it is important that you are aware of the provisions of this Act as it specifically deals with issues such as disclosure requirements, timing requirements, turnover rent, rent reviews and promotional levies.

Terms of the lease

Your Lease should contain all essential terms of the Agreement, including the property location, Landlord and Tenant, Lease Period (Term), Options to Renew, mechanics of Payment, obligation to pay Outgoings and much more.

The terms of a Lease are negotiable, so it is important that you have your solicitor check the Lease before you sign to ensure that the terms included are suitable to your needs.

At Briese Lawyers we can offer legal advice regarding Commercial, Residential and Retail Shop Leases, assist you with your disclosure requirements under the Retail Shop Leases Act (including provision of the Legal Advice Certificate) and assist you with the requirements for registration of your lease with the Titles Office.

 

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Unlocking the law photo

Unlocking the Law - Child Support debt and international travel

Earlier this year it was reported in the Courier Mail that an unemployed Queensland dad lost his appeal to be able to travel overseas to look for mining work.

At that time, the father owed approximately $129,000 (including penalties) in unpaid child support and was the subject of a Departure Prohibition Order (DPO), which had been in place since 2011.  He had made an application to the Child Support Agency for a Departure Authorisation Certificate (DAC) but was refused and on that basis, he sought a review from the Administrative Appeals Tribunal.

The Tribunal, in making their decision, considered that the father had not paid child support since 2009.  They further took into account the father's own admissions that he had deliberately chosen not to work once the DPO was made because he thought "why should he".

The Tribunal opined that it would be inappropriate for the father, who had made no offer to pay child support, to leave Australia.

So what is a DPO and how does it work?

In 2001, the Commonwealth Parliament gave the Child Support Agency (CSA) the power to make an administrative DPO against parents whose child support was registered with CSA for collection and who were behind in payments.

Part VA of the Child Support (Registration and Collection) Act 1988 provides the scope around this application.

In order to make a DPO, the CSA Registrar or their delegate must be satisfied:

  1. That a child support liability exists;
  2. That the liable parent has not made satisfactory arrangements to the CSA to discharge their debt;
  3. That the liable parent has failed to pay their child support persistently and without any reasonable grounds; and
  4. That it would be desirable to make the order to ensure that the liable parent does not leave Australia without either paying the debt in full or making satisfactory arrangements with the CSA to pay the debt in full.

In determining whether the liable parent has persistently failed without any reasonable grounds to pay their child support, the CSA Registrar or their delegate must take into account the following considerations:

  1. The liable parent's capacity to pay the debt;
  2. The number of occasions the CSA has taken recovery action and the outcome of same;
  3. The number of occasions the liable parent has failed to make regular child support payments when they fell due; and
  4. Any other facts the CSA determine as being appropriate.

The CSA's power to make a DPO against a liable parent is discretionary, which means that they are not obligated to make the order.  However, the discretion still must be applied in accordance with legislative requirements.

A DPO comes into force as soon as it is made and it remains in force until the CSA Registrar revokes it or a court sets it aside.  The CSA is obligated to revoke a DPO if the parent no longer has a child support liability or if the liable parent has made satisfactory arrangements with the CSA to discharge their debt in full or if the CSA is satisfied that the debt is irrecoverable.  The CSA is further able to revoke a DPO in circumstances where they consider it desirable to do so.

In the event a liable parent is subject to a DPO and needs to travel out of the country, they can apply to the CSA for a Departure Authorisation Certificate (DAC).  However, these will usually only be issued in circumstances where a substantial amount is paid by the liable parent as security for their return.

Options for challenging a DPO:

  1. Make a complaint through CSA's internal complaint process;
  2. If you no longer have a child support liability or have entered into a satisfactory arrangement with CSA, as previously indicated, you can apply to the CSA to have it revoked;
  3. Apply to the Administrative Appeals Tribunal (AAT).  However, in these circumstances, you can only apply to the AAT for a review of the CSA's decision to refuse to revoke a DPO or CSA's decision to not issue a DAC or a dispute in relation to the 'security' surrounding a liable parent's return to Australia; or
  4. Apply to the Federal Court of Australia or the Federal Circuit Court of Australia to set the order aside.

 If you are a FIFO worker or otherwise affected by a DPO we would be happy to assist you.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

WILL

Who do you trust to carry out your wishes?

When making your Will, one of the most important decisions you will make is who to appoint as your Executor.  Who do you trust to carry out your wishes?

One of the first things loved ones should do is determine who the deceased appointed to be Executor of their Estate.  If the deceased person has left a Will, an Executor will be appointed to be the deceased's personal representative in administering their Estate.  An Executor will ensure that the wishes set out in the deceased person's Will are carried out upon their death.

The first duty of the Executor is to arrange the funeral.  It is important that the arrangements for the funeral are appropriate bearing in mind the wishes of the deceased, as expressed in the Will or in the absence of a Will, as expressed personally to family or friends.  Whoever arranges the funeral is entitled to reimbursement of the expenses out of the Estate in priority to all other claims against the Estate.

The duties of an Executor may include:

  • Immediately:
    • Attending to funeral arrangements;
    • Locating and examining the Will.  The deceased's Will may be with their personal papers at home, or held in the safe custody of their Solicitor, or left with a friend or relative;
    • If the deceased has appointed guardians for orphaned children, arrangements will ned to be made for their care and welfare;
    • Arrangements may also need to be made for pets of the deceased;
    • Securing the assets of the Estate.
  • Administration of the Estate cannot commence until a Death Certificate has been issued, of which the funeral home will make the necessary arrangements.  It generally taks approximately 4 to 6 weeks for the Certificate to be issued, at which time the Executor can commence the process to finalise the Estate, which may include:
    • Obtaining a Grant of Probate from the Supreme Court of Queensland if required.  Specific legal advice should be sought in relation to the appropriate application that should be made and as to whether a Grant of Probate or Grant of Representation is required;
    • Verifying, valuing and collecting assets of the deceased.  There may need to be consultation with the deceased's accountant, legal representatives and financial advisors to fully ascertain the extent of the deceased's Estate;
    • Identifying and verifying the deceased's debts;
    • Locating and advising beneficiaries of their entitlements as set out in the Will;
    • Paying debts and tax liabilities of teh deceased person from funds in their Estate;
    • Investing surplus funds for the benefit of benficiaries;
    • Seeking instructions from beneficiaries;
    • Dealing with disputes over the provisions of the Will;
    • Obtaining income and land tax clearances;
    • Transferring real property;
    • Preparing final income tax returns for the deceased and the Estate;
    • Making a final distribution of assets in the Estate to beneficiaries.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 JPEG - Considering applying for a Partner Visa

 

What is an Advanced Health Directive and should I have one?

Advanced Health Directive

An Advanced Health Directive (AHD) clearly states what sort of medical treatment you do and do not want to receive if you are seriously ill and comes into effect when you are unable to make your own decisions.  You may also set out preferences about organ donation and life sustaining medical treatment.

How an AHD works:

  1. You will out a form with general or specific wishes for treatment; and
  2. Your General Practitioner certifies that you understand the choices you have made; and
  3. Treating medical staff will subsequently refer to your AHD if you can no longer make decisions for yourself.

When entering into an AHD, you should consider:

1.  That you may express wishes in a general way:

  • Any particular type of medical treatment you do or do not want to receive;
  • Specifics regarding medical conditions that medical staff should know, for example an allergy to certain medications, or Diabetes; and
  • any religious beliefs that may affect your treatment, such as blood transfusions.

2.  That you may also give specific instructions about what treatment you do or do not want to receive if:

  • you have a terminal illness;
  • you have an incurable illness;
  • you have an irreversible condition;
  • you are permanently unconscious; or
  • you are so seriously ill or injured that you cannot survive without a life support system.

3.  That you may state whether you would want any particular type of medical intervention to keep you alive, if you had any of the above conditions.  Such interventions may include:

  • emergency measures such as CPR;
  • artificial feeding; and
  • a machine to keep you breathing.

You may authorise your Attorney/s to make decisions about health matters should your directions in your AHD be inadequate.

If you wish to donate your organs only for transplantation and not for scientific purposes, you should register your name on the Australian Organ Donor Register.  You may use your AHD to authorise tissue and organ donations for the purpose of transplantation or for other medical or scientific purposes.

Further details with respect to Powers of Attorney or Advanced Health Directives may be obtained by contacting one of our lawyers, who can offer practical legal advice and guidance, ensuring that your wishes are looked after.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

Family Law with Client Testimonial

thank-you-2573104 1280

I recently did an initial consultation with a Family Law client.  Hers was not an unfamiliar story.  She had been reluctant to go to a lawyer (for a variety of reasons) but expressed feeling a great sense of relief and empowerment once she had actually done so.  When she shared that with me I told her that I would love to be able to reach out to more people in her situation that could benefit from the peace of mind of just knowing what their rights, entitlements and options are.  In response, she provided the following testimonial:

"Divorce is emotional and unchartered territory.  I was hoping to settle assets with little drama and in the best interest of both my Ex and I.  It's tricky, even with the best of intentions and relationships.

Friends suggested I sought legal advice and recommended Kym Briese.  Kym had previously done all the legal work for our home purchase, so I knew I would be in good hands.

In just 1.5 hours I felt empowered.  Knowledge is power!

Now I have a good idea of what I should expect as an outcome from the divorce proceedings and the confidence to ask for what I'm entitled.

Although hesitant to seek legal advice at first, I'm so thankful I did.  I have a clear road map to move forward and the confidence to take the next step.

Thank you so much Kym."

KP

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

Abolition and Replacement of the 457 Visa

immigration picture 2

What we currently know about 457 Visas:

  1. The occupation list was significantly condensed, with 651 occupations turning into 435.  From those 435 occupations, access to 24 of those were restricted to regional Australia.
  2. A name change was made to the Consolidated Sponsored Occupation List (CSOL) which is now referred to as the Short-term Skilled Occupations List (STSOL).  The Department of Employment will be providing advice surrounding the update of the Occupation list every 6 months.
  3. The Skilled Occupations List (SOL) was also renamed and is now termed, the new Medium and Long-term Strategic Skills List (MLTSSL).  This list holds occupations that are in line with the Government's longer-term training and workforce strategies and are regarded as being of high value to the Australian economy.
  4. 457 Visas issues from this date for occupations under the STSOL, hold a maximum duration of 2 years.

We know that from 1 July 2017, the following changes came into effect:

  1. The Department of Employment will provide advice in relation to the review of the occupation list under STSOL.
  2. The Department of Education and Training's 2017-2018 SOL outcomes will determine the revision of the MLTSSL occupation list.
  3. The Englist language salary exemption threshold will no longer be available.
  4. Police clearance certificates will be mandatory.

We know that before 31 December 2017, the following changes will occur:

  1. The Department of Immigration and Border Protection will require Tax File Numbers for all 457 Visa holders and other employer sponsored migrants, in order to match data with the Australian Tax Office's records.
  2. Sponsors, who fail to meet their obligations under the Migration Regulation 1994 and other related legislation will have those details published by the Department of Immigration and Border Protection.

We know that from March 2018, the following changes will take place:

  1. The 457 Visa will be abolished and replaced with the Temporary Skills Shortage (TSS) Visa.
  2. The TSS Visa will have 2 streams, a short-term stream and a medium term stream.  Both streams hold different criteria for renewal, occupation and English language requirements.
  3. Eligibility for both streams will be dependent on work experience, labour market testing, salary rate, character check, workforce test and training requirements.

You are affected by these changes if:

If you are currently a 457 Visa applicant, are a prospective applicant or a business sponsoring a skilled migrant and industry, then you are affected by these changes.

Existing 457 Visas will continue to remain in effect.

Need some advice navigating these changes?

Make an appointment to meet with our Migration Agent today.


*This article is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own.

 

 

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