obiter | ByLawyers News and Updates

Immigration status – Divorce – FED

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A new section ‘Immigration status’ has been added to the Divorce section of the By Lawyers reference manual 101 Family Law Answers.

This new section provides guidance on establishing whether a party is ‘habitually resident’ in Australia when both the applicant and the respondent hold a temporary visa.

Section 39(3) of the Family Law Act 1975 provides that for the court to have jurisdiction to grant a divorce order, either the applicant or the respondent must be:

  1. an Australian citizen;
  2. a person domiciled in Australia; or
  3. ordinarily resident in Australia for one year immediately preceding the filing date.

Section 4(1) of the Family Law Act 1975 provides that ‘ordinarily resident’ includes ‘habitually resident’.

If both the applicant and the respondent hold a temporary visa, and either has been living in Australia for 12 months, the next step is to establish whether they are habitually resident. The applicant or respondent will need to establish they have settled, or intend to settle, in Australia by providing evidence of accommodation, employment and other community connections. The type of visa currently held and an intention to apply for permanent residency will also be relevant.

The claim to habitual residence is best addressed in an affidavit in support of the divorce application. This will avoid the application being adjourned or listed for submissions on the residency issue.

101 Family Law Answers provides practitioners with valuable information on the more unusual and detailed aspects of family law and includes many helpful links to cases and legislation. It can be found in the Reference Materials folder on all of the matter plans in the Family Law publication.

For more information on temporary visas, see the By Lawyers Immigration publication.

 

Visa changes – FED

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Recent amendments to immigration legislation have resulted in visa changes from 1 July 2021.

Visa changes

The Home Affairs Legislation Amendment (2021 Measures No. 1) Regulations 2021 repealed the Subclass 132 (Business Talent) visa. The  criteria and conditions for the Subclass 188 (Business Innovation and Investment (Provisional)) and Subclass 888 (Business Innovation and Investment (Permanent)) visas have also been amended.

The repeal of the Subclass 132 visa includes both its streams; the Significant Business History and Venture Capital Entrepreneur streams. This removes the direct-to-permanent pathway and instead focuses on the provisional-to-permanent pathway provided by the Subclass 188 visa pathway to a Subclass 888 visa.

The amending regulations also repeal the Premium Investor stream of the Subclass 188 visa. This visa stream was assessed by the government as unsuccessful.

Current applicants and holders for these three streams of visa are not affected by these changes.

Summary of changes

The amendments to the criteria and conditions for the Subclass 188 (Business Innovation and Investment (Provisional)) and Subclass 888 (Business Innovation and Investment (Permanent)) visas entail:

  • The assets and turnover requirements for the Business Innovation stream of the Subclass 188 visa have been increased to attract business migrants with more financial capital to invest in Australia.
  • The designated investment requirement, based on passive investment in government securities, has been changed. The requirement is now to make a complying significant investment. This change is made through various amendments to the Subclass 188 visa and by increasing the minimum investment required from $1,500,000 to $2,500,000.
  • The requirements for the Entrepreneur stream have been adjusted to make this stream more attractive for start-up and early-stage entrepreneurs. These amendments to the Subclass 188 and 888 visas include:
    • Removal of the requirement for applicants to secure significant investment by way of a $200,000 funding threshold and limits on eligible sources of funding; and
    • A new requirement for applicants to be endorsed by a State or Territory government and innovation industry partners.
  • The extension of the Subclass 188 provisional visa validity period to five years and amending the period of provisional residence required for grant of the Subclass 888 permanent visa. For most streams this represents a reduction of the period required from four to three years, meaning holders can seek to progress to permanent residence more quickly.

The By Lawyers Immigration publication has been updated to reflect these amendments.

Immigration work – FED

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Immigration publication substantially enhanced

Practitioners doing immigration work will find the By Lawyers Immigration publication has been substantially reviewed and expanded. The new content includes significant new commentary on reviews, appeals and ministerial intervention.

Lawyers doing immigration work

Practitioners will be aware that barriers to lawyers doing immigration work were lifted from 22 March 2021. Amendments to the Migration Act 1958 (Cth) removed the requirement for lawyers with an unrestricted practising certificate to also be registered as migration agents before doing immigration work for their clients. See the previous By Lawyers Obiter post Lawyers doing immigration work for more information.

The resultant opportunity has seen By Lawyers Immigration publication expanded to assist practitioners acting for clients in immigration matters.

Review, appeals and ministerial intervention

The existing section of the By Lawyers Immigration publication has had new commentary and precedents added. This new content will assist practitioners acting for an applicant who seeks to review a decision concerning an existing visa or a visa application. The publication now covers all possible review options up to and including High Court appeals.

New commentary and precedents

Enhancements include the addition of the following precedents and the expansion of the related commentary to provide highly practical resources on the review and appeals process:

Administrative Appeals Tribunal

  • Letter to client with costs agreement explaining the tribunal process
  • Letter to client re invitation to provide information from tribunal
  • Letter instructing expert witness to prepare report and attend tribunal hearing
  • Statement of Issues, facts and contentions
  • Draft minutes for consent order – Administrative Appeals Tribunal
  • Letter to client – Application for review of tribunal decision successful
  • Letter to client advising of tribunal refusal and attaching decision

Immigration Assessment Authority

  • Letter to client – Application for review of authority decision successful
  • Letter to client advising of authority refusal and attaching decision
  • Example content – Statutory declaration by applicant – Submission accurately and completely presents claim

Judicial review

  • Letter to client with costs agreement explaining the court process
  • Brief to Counsel
  • Example content – Grounds for application for judicial review
  • Example content – Affidavit to accompany application for judicial review
  • Example content – Final orders sought by the applicant
  • Example content – Affidavit for filing or tendering evidence
  • Example content – Affidavit in support of application for extension of time to lodge application for judicial review
  • Letter to client after decision – Application granted
  • Letter to client after decision – Application refused

The enhancement of this publication assists practitioners to do immigration work for clients in all type of Migration Act matters.

Lawyers doing immigration work – FED

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Removal of dual registration requirement

Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.

Amendments to the Migration Act

Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.

Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.

Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.

The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.

Regulation

‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.

To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.

A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.

Forms

From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.

Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Immigration – FED

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Two important changes to Australian immigration law commence on 16 November 2019.

  • The Skilled Employer Sponsored Regional (Provisional) visa 494 is replacing the Regional Sponsored Migration Scheme visa 187.
  • The Skilled Work Regional (Provisional) visa 491 is replacing the Skilled Regional (Provisional) visa 489.

The new visas allow skilled workers to work in regional Australia. They can be a pathway to permanent residency, via the Permanent Residence (Skilled Regional) visa 191, which commences in November 2022.

Applicants for the Skilled Employer Sponsored (Regional) visa 494 must be under the age of 45 at the time of application, have competent English and at least three years full-time relevant work experience in the nominated occupation, or a related field, at the same level of skill. The visa is for a five-year period.

Applicants for the Skilled Work Regional (Provisional) visa 491 must be under the age of 45 at the time of application, complete a positive skills assessment, be nominated by an Australian state or territory government agency, or be sponsored by an eligible family member residing in the regional area and be invited to apply for the visa after the submission of an expression of interest through SkillSelect. The visa is also for a five-year period.

The By Lawyers Immigration publication will be updated accordingly.

New sponsored parent visa – Immigration – FED

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A new Sponsored Parent (Temporary) visa (subclass 870)has been created.

Applications for the new visa will open on 1 July 2019.

This visa allows biological parents, adoptive parents, step-parents or parents-in-law of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to visit Australia for periods of 3 or 5 years at a time, but with a maximum combined period of 10 years.

Applications for the new visa can only be made outside Australia and online through ImmiAccount.

An applicant must be sponsored by an ‘approved parent sponsor’.

The application must be lodged within 6 months of approval of the applicant’s sponsor as an approved parent sponsor. The criteria for an approved parent sponsor is set out in Division 2.13A – Criteria for approval of family sponsor, of the Migration Regulations 1994.

The sponsored parent visa will only be granted to maximum of 15,000 applicants each year.

Because of the advance warning regarding the commencement date for the new visa, practitioners might expect to commence receiving enquiries about it now, so the commentary in the By Lawyers Immigration guide has been updated accordingly. The expected average processing times for the new sponsored parent visa are currently unknown.

Costs disclosure – Increase of legal rates during a matter

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Increase of legal rates during a matter

All By Lawyers Costs Agreements and Client Service Agreements have been updated to include a clause notifying a client that legal rates may increase during the course of a matter requiring a revision of the costs estimate provided. This clause provides for 30 days written notice of any proposed changes to legal rates. While such a clause is not required by Legal Profession legislation concerning costs disclosure requirements, providing such notice on initial costs disclosure is considered best practice.

All of our Guides contain Costs Agreements (Client Service Agreements for QLD Guides) within the folder ‘A. Getting the mater underway’. All of our agreements are compliant with the relevant Legal Profession legislation and are reviewed and updated regularly to ensure compliance.

Immigration – amendments delayed – FED

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Amendments under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2018 (Cth), currently before the senate, lawyers will be able to conduct immigration matters as part of their usual practice, will no longer have to register as migration agents and will not be subject to regulation by the Migration Agents Registration Authority (MARA). An implementation date of 19 November was originally set for this change.

Unfortunately the senate has not been able to find the time to consider or pass the amending legislation and the intended implementation date of 19 November 2018 will therefore no longer be possible. A new proposed implementation date will need to be determined when and if the legislation passes.

In the meantime double regulation continues and Australian Legal Practitioners must continue to register as Migration Agents with OMARA before they can conduct immigration work.

By Lawyers will keep you updated on the progress of this Bill. The By Lawyers Immigration Guide is available to assist lawyers who conduct immigration matters.

FED – Immigration – Labour Market Testing

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The recent changes to Labour Market Testing requirements for Temporary Skill Shortage visa nominations have been incorporated into the commentary in the By Lawyers Immigration Guide.

The testing time before a nomination is lodged has changed from 6 months to 4 months. At least two advertisements are still required for the nominated position, however the information that needs to be included has become:

  1. the title, or a description, of the position;
  2. the skills or experience required for the position;
  3. the name of the approved sponsor or the recruitment agency being used by the sponsor; and
  4. the annual earnings for the position unless the annual earnings will be lower than AUD96,400. It is acceptable to publish a salary range, e.g. AUD80,000 to AUD90,000.

Advertised positions must remain open for application for at least 4 weeks from first publication, regardless of the medium used. General classified sites and social media platforms are still not suitable media for Labour Market Testing purposes, however LinkedIn’s online recruitment platform is acceptable.

Alternative requirements apply for ‘select occupations’ and ‘select positions’ such as for outstanding and internationally recognised talent in sport, academia or as a top chef. Also included are changes due to business restructures, or where the annual earnings are not less than AUD250,000, or for particular medical personnel.

It is still mandatory under the Migration Act to provide evidence with the nomination application of the sponsor’s efforts to find suitably qualified and experienced Australian citizens or permanent residents to fill the position/similar positions. This entails copies of advertisements and a receipt for any advertising fees being provided and/or a written submission for ‘select’ nomination applications.

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