Frequently Asked Questions (F.A.Q.) from immigrants
The questions asked here are mostly concerning individual, family, business or investor as an immigrant or foreign investor in Australia
***The short-answers here are not intended to be legal advice.
Visa and Citizenship FAQs
How long it takes me to get my visa approved?
The followings aspects will affect a visa processing time:
- the type of visa you apply for;
- the way you lodge your visa application, by paper or online;
- the qualities of your documents you provided with your visa application.
- Whether the visa you applied is subject to yearly limits.
About 75% of visa applications are processed in the prescribed time by the Department of Home Affairs, about 10% of visa application will be processed much faster the prescribed time, but some visa application seems takes twice longer to process. Your lawyer should be able to advise you on how to get your visa faster.
Which occupations should be nominated if I am working as an accountant now?
It depends on your qualification and work experience, you may eligible for a financial manager, accountant, internal editor, external editor, business manager, project manager… You have an accountant job does not mean you can only be nominated as an accountant for visa purpose.
This principle applies to other occupations or qualifications as well. Generally, you can nominate more than one occupations and would be able to choose which occupation is more favorable for visa application.
Can I apply for a visa if I have a medical condition (Hepatitis B)?
There are no diseases or health conditions that automatically mean you won’t meet the health requirement for a visa. However, significant medical conditions will likely fail the grant of PR, if you have the followings medical problem:
- intellectual impairment
- HIV infection
- Functional impairment
- Renal disease or failure
- Out of control type 2 diabetes
- having a transplanted organ
If your active Hepatitis B is treatable and will not cost more than 40,000 in the next 5 year, your lawyers can argue that you will meet the health requirement for PR or get a health waiver.
I adopted a child from China, can I get her an Australian visa?
To apply for adoped child a visa, you must meet one of the conditions:
- The child was adopted through an Australian state or territory authority, or
- The child was adopted between 2 countries that recognised by the Hague Adoption convention, or
- you have been living with the child for more than 12 months overseas before lodging visa application.
Of course, if you are not applying for the PR visa for this child, you might bring the child on a temporary visa (TR) such as visitor or student visa… In order to do so, you must have the child’s custody right from the country where the child was born. Your lawyer should work out the best visa option for your adopted child.
I want to invest in Australia, can I get a visa with my investment?
Investing in Australia would not necessarily help you to get an Australian visa, however, there are some visas are specifically designed for overseas investors, such as:
- business owners with innovations
- Investor invests in designated field
- business visitors
Depends on the amount of your investment and your intention with your investment, you might be eligible for a certain visa such as 188, 888, 482, 600 subclasses of visas.
When operating a business or investment in Australia,
please bear in mind that a foreign person is subject to approval by FIRB before making any investment in Australia. There are more complexed issues need to be addressed such as tax, license, permits e.g. you should not spare a proper legal consultation before investing in Australia.
Will my visa application be affected if I am on a good behaviour bond?
Generally, anyone applies for an Australian visa must pass the character test.
A good behavior bond is not among serious criminal offenses which are subjected to mandatory cancellation, but it might not pass the character test under s501 of Migration Act 1958.
Whether your past behavior will fail the character test for your visa application, the nature and circumstances of your offense will be considered, including:
- The seriousness of your offensive conduct
- The risk to the Australia community should you commit further offence
- whether the refusal of your visa is in the best interests of any minor children
- General expectation of Australian community about your behavior.
There is no automatic assumption in term of the character test. Your lawyer should be worked out your chance of passing the character test.
I am a student visa secondary holder but separated from my partner, can I stay on my student visa in Australia?
You need to check your current student visa condition to see whether you have condition 8516.
Condition 8616 requires that you must continue to satisfy the criteria for grant of your visa. In your circumstances, 8516 means you must maintain your relationship with the primary student visa holder.
If your visa does have 8516 condition, then you can not continue to stay on your current visa if your family relationship is completely over, but your lawyer should be able to tell you what visa you are eligible in order to stay in Australia.
I received a visa refusal letter but dispute the ground of this refusal, what should I do?
It is very unfortunate that you can not argue with the case officer after you have already received the decision to your visa application. Some visa application would allow the internal review to the manager of the case officer, such as student visa, but most of visa decision can only be reviewed by AAT (Adminstrative Appeals Tribunal).
Alternatively, you might seek the Ministerial Intervention about your visa application if your situation is unique or exceptional.
Whenever you are taking a review, you must lodge the review within the limitatin of a time. The limitation of a time is normally stated in the refusal letter. If it is not, you should check with your lawer.
My 186 visa sponsor wants to reduce payment which is far less than my employment contract, can I reject it?
Of course you can if the less payment is not justified according to our employment contract.
You must be mindful that you can not volunterly leave your work because of the less payment as you are under the obligation to work for your sponsor for at lease 2 years.
Criminal conduct to immigrant FAQs
Can I get an Australia visa if I have a criminal record?
Generally, anyone applies for an Australian visa must pass the character test. Some visa requires a higher threshold for charactor test, for example, a worker visa 482 for child care manager.
If your criminal record is from outside of Australia, the nature of your crime might be assessed under Australian criminal law standard. If your criminal record is from Australia, your visa application will be scrutinised according to the character test.
Not every criminal conduct will automatically take away your visa rights, but you should refer to s501 of Migration Act 1958 in order to know what type of conducts will affect your visa application.
Can CCTV footage be the evidence? I am charged for shoplifting without CCTV footage and eye witness.
CCTV footage often used as the evidence admissible in Court, but police don’t have to rely solely on CCTV footage to charge you. Same with the evidence of eye witness statement.
If you are thinking to contest the charge in Court, don’t bank entirely on the evidence you mentioned. There is often some other evidence can support the police charges.
I am summoned to testify in Court for my husband’s assault charges towards me, but I don’t want to go, can I?
Unfortunately with these kind of family situation, you probably have to testify in Court when you are summoned. Once the court hearing day has been set out the “juttice wheels” has begun, it is often impossible for you to stop. In your case, the police or the prosecutor has made up their independent judgment to pursue this charge against your husband.
Even you are forced to testify in Court, your are still under oath to tell the truth, and all of them, and only the truth. You can’t hold back some of truth for committing perjury for any family reasons.
If you want to help your husband, the best thing to do is find a good lawyer rather than incriminating yourself.
Will my AVO order for 2 years appear on my national police check certificate? I need to apply for a job which cannot accept anyone with criminal records.
AVO ( Apprehended Violence Order) is not a criminal charge nor a conviction, it is a restraining order to protect another who might under the threat from you.
If you have not breached your AVO during its enforcement period, then AVO order will not appear on your national police check certificate.
Giving the fact that you are applying a job, you must be mindful that your AVO order might affect your prospective employment in at least two ways.:
- If you apply for child-related job, your AVO order will appear on “working with children” check.
- If you apply for a firearms license, your license cannot be granted while your AVO is in force and for 10 years after the AVO is expired.
Also, as a new migrant, your AVO order might also affect your future visa or Australian citizenship application if you have breached it.
Will I be deported while waiting for criminal proceedings against me?
Deportation could happen to an immigrant who has other citizenship than Australian citizenship.
If your criminal matter has not been finalised before the relevant court, generally an immigrant would not be considered for deportation under s501 of Migration Act 1958.
Further, you might be required to surrender your passport to preventing your leaving Australia before the trial is completed. For example, a person may not be allowed to leave until the fine is paid. Another example, a person might be required to serve the term in Australia if a person is imprisoned.
Generally, your Australian visa will be canceled under s116 or s501 of Migration Act 1958 before you are deported. A criminal conviction will not automatically result in deportation, different law applies to deportation from criminal conviction.
I write the blog on how to buy drugs online with a disclaimer saying that my blog is not advice. Can I still apply for an Australian visa?
Your disclaimer is not worth a piece of paper if you rely on it for protection.
You might being charged with aiding and abetting under the Drug misuse and Trafficking Act 1985.
Your also might be charged under s19,20 of Crime Act NSW for aid, abet, counsel, precure, solicit or incite the commission of an offence in NSW.
you should be alerted that you will be subjected to the character test when you apply for a visa. Criminal conduct certainly does not favor your visa application.
If I leave my husband because of his violence towards me, will my current 457 visa be canceled?
This is the issue you need to touch three areas of law to get a proper answer: criminal, family and migration.
You should always seek protection such as calling police on 000 or calling 13 11 14 LifeLine, because your safety is the priority and violence is a crime.
With your visa concern, please check whether your visa has an 8516 conditIon attached. If you have, you must be the secondary 457 visa holder of your husband which means you do have to leave Australia if your relationship has broken down. If you do not have, you must be the primary 457 visa holder, you can leave your husband without affecting your current visa.
If you have lodged a partner visa application while been holding a 457 visa, you are also protected by family violence against visa holder , which means you don’t have to leave Australia once you leave your husband because of you are the victim of family violence.
I have served a three-years jail term and is about to be released, will my Australian citizen will be revoked?
Only dual citizens could be stripped of their Australian citizenship.
If you are dual citizen, you will not automatically be revoked your citizen once you are convicted for crime. Your circumstance will be assessed such as family tie, serious of crime, nature of crime and our allegiance to Astralia.
Since the inception of The Australian Citizenship Act 1948 there is total of 44 cancellations of citizenship.
Operate business in Australia FAQs
Can I do business in Australia without a visa?
If you are not required to be physically in Australian in order to operate your Australian business, then you don’t need a visa to begin your Australian business.
However, without a visa does not mean you will not need to register your business with Australia authority, such as ASIC, ATO…depend on the nature of your business. A foreign person operating business might need to be assessed by FIRB.
Would foreign investor be treated equally to Australian if I expand my business into Australia market?
Foreign business is treated differently according to the owner’s visa status and the nature of business. Permanent visa holder can enjoy the same treatment as Australian citizen, but the temparary visa holder will have more restriction or hurdles to deal with in terms of tax, permits or registration.
If I operate an electronic distribution platform (EDP) outside of Australia and sale to Australian through my website, do I need to report on GST?
If Australian customer purchases your digital services from the merchants in Australia, you will need to charge GST and responsible for GST report.
But if you are providing carriage services, such as internet service subscription, you are not an EDP operator and will not be required to register or report on GST.
I am newly migrating to Australia and excited to buy an idea business. What aspects should be considered before buying it?
Nearly 1/3 of first-generation immigrants in Australia are operating small business reported by CGU Report 2017.
But as you are new to Australia and unfamilar with Australian business environment, cultures, market or rules, it is always a good idea to work in the business before your buy it.
Generally, immigrants tend to buy or sell an existing business with careful negotiation and special terms in the contract of sale as listed here.
I was invited by my friend in Australia to joint invest in Australian business, but now I want to withdraw my funds, can I do it?
You can do it but be aware of the consequences:
If you lent funds to your friends for investment as a loan and your name is not on the property title certificate, you could ask your money back according to the term of the loan.
If you had a joint investment venture with your friend and your name is on the property title certificate, then you could sell your share in the property if your friend agrees. However, if your friend does not agree or the current business is not doing well, you are not guaranteed to get all your money back.
If you do not any agreement before you invest in the business, then your friend can argue that your funds were a gift which means you do not have any cause of action to get your money back unless you can successfully challenge your friend in Court.
I received an infringement notice requesting fine from The Australian Border force for employing illegal worker. How do I prevent it from happening again?
You can prevent it by checking the worker rights before employment through VEVO under The Migration Amendment (Reform of Employer Sanctions) Act 2013.
Employers may face penalties, even criminal charged for taking on an illegal worker. The penalties or fine could up to $315,000.00 for each offence, the criminal conviction could be up to 5 years imprisonment for an aggravated offence.
I know some bosses pay their workers by the way as the contractor. If I do the same, do I need to pay superannuation to these contractors?
There are some misconceptions about paying workers as contractors instead of paying as employees. To avoid to pay superannuation you need to make sure that your workers are not Sham Contractors,or seeking legal advice.
If you are sure that the people do your work are contractors, then you are not responsible for their superannuation payment. However, the amount of superannuation you try to save might have already reflected in the payment to contractors.
Global living family matter FAQs
which country’s law applies when I need to divorce as an immigrant?
Different countries will have different law in relation to the jurisdiction of a divorce. You might have more than one country chosen for divorce, especially when you divorce with cross-border assets.
The financial outcome of the divorce will hugely impact on you and our children in the long term. cross-border divorce does not only involve in family law, but also tax law and some other area of law.
Your lawyer should do thorough research in order to ensure the best possible outcome financially and otherwise when choosing the forum for your divorce.
I am not an Australian permenant resident, can I divorce in Australia?
If you the followings situation apply to you, then you will be eligible to divorce in Australia:
- you are lawfully living in Australia and intend to continue living in Australia.
- you have been living in Australia for at least 12 months.
- your marriage has been broken down and you are separated from your spouse for 12 months and 1 day.
- you have the evidence to show that you have married your spouse.
What are the grounds for divorce in Australia?
In Australia, the broken down of your relationship must be not reconcilable and you need to have been married for at least two years before applying for a divorce.
If you married for less than two years, you need to attend counseling with family counseller or seek the permission of Court to apply for divorce.
I have moved out of my home for a while and now cannot find my spouse for a divorce.
Your need to try reasonable steps to find your spouse’s address for serving court documents when divorcing. if you still could not locate your spouse, you still can divoce by seeking order to dispense with service from the Count.
How can I find out about my husband’s true financial position?
Your husband has a duty to provide full and frank disclosure of all the financial information to the Count.
If your husband failed to provide such financial information and you can apply through the Court for a search order with the evidence that certain assets did not disclose. Please note that your general suspicion is not enough to apply for search order.
As an immigrant, am I allowed to take my child back to my home country during my divorce?
Unfortunately, you can not do this unless you got permission from the other parent of your children while you are in the middle of divorcing.
If you take the children out of Australia without permission from the other parents, you could be committing a criminal offense (Child abduction) regardless whether any court orders are in place.
Please bear in mind, both parents of children have natural custody until an agreement has been reached or endorsed by Court.
Can I get a divorce while waiting for my partner visa to be approved?
You can get divorce as long as you could satisfy the requirment for divorce. Such as you have been legally married for at least two years and your relationship has broken down irrecoucilable. Your visa status would not prevent you from divorce as long as you are holding an Australia visa.
However, if you have lodged a partner visa based on your existing marriage, you will have a hard time to meet the grant visa criteria. Seek your lawyers’ advice before proceeding for divorce.
Can I get a divorce without a fight in the Court for the seek of children?
If both parties engage through the divorce process, and honestly negotiating a financial settlment, then there is a possibility to have a divorce without a fight.
The parties in divorcing should know that no-engagement does not prevent a divorce been granted nor a final financial order being reached. It only increase hostility beween parties and make ban impact on children.
Australian Tax on immigrant FAQs
Do I need to pay tax when I visit Australia?
Taxation in Australia is quite complex, we need to know more to be able to give you a correct answer. To help you understand your situation, we like to point out some potential issues with tax on visitors:
- Since your foreign income may also be taxed in its source country, you are potentially subject to double taxation. To overcome this, Australia has a system of credits and exemptions and has signed tax treaties with more than 40 countries, including India.
- If you’re not an Australian resident for tax purposes, you are only taxed on your Australian-sourced income, so you generally don’t need to declare income you receive from outside Australia in your Australian tax return.
It is always a good idea to get a professional tax advice if you want to plan your tax ahead.
We split our overseas investment after a divorce, do I need to pay tax in Australia?
I am sure you are aware of the CRS
(Common Reporting Standard) is applying to any asset and income from Listed countries for CRS. If you happen to be one of the Listed countries, you are obliged to consider your tax obligation of both countries where you are currently living and where your assets been disposed of.
In the eyes of Australian law, any matrimonial assets transaction might be exempted from income or capital gain tax, but it is not always the case in the other countries where your overseas assets were located. You need to engage a legal advise on your specific issues.
I purchased our main home in Sydney 2007 but left Australian in 2015. Do I need to pay tax on the proceeds from this home in Australia?
If you have eight years (2007-2015) living in your Australian home purchased and 4 years (2015-2019) living overseas, you will have to pay capital gain tax (CGT) and income tax for 4 years (2015-2019) if you sold your Australian home in 2019.
Also, bear in mind that you might have main resident exemption applied to your eight years (2007-2015) for CGT, but you need to seek profession advice to minimise your tax liability.
I purchased an investment property in Australia but am not an Australian permanent residence. Can my son inherit my Australian property after my death?
Yes, your son can inherit your Australian property after your death. Currently, Australia does not have an inheritance tax or death duty.
However, special CGT (capital gain tax) rules apply if your son is not an Australian tax resident. The executor of your estate is liable to such a tax and you might reduce or eliminate this CGT in some circumstance.
I am a Chinese investor and looking for an investment opportunity in Australia. What should I be aware in term of Australian tax?
Tax is an unavoidable issue if you are thinking about investing in Australia. Australia has very complicated rules when a foreign person come to invest in Australia, we have summarised some of the rules in Tax & CRS on immigrants.
It is always a good idea to work out your potential tax liability before committing any investment actions.
Any benefit or refund can I claim if I leave Australia before my 457 visa expired?
When immigrants move in or out of Australia, there are always some tax issues need to be deal with. Please make sure that you have fulfilled your tax duty before claim some of the refunds.
There some many benefits or tax refunds you might claim. Tax refund tips for immigrant is an unexhausted list you can refer to.
I am running a business as a new migrant and employed 4 people who are Australian and overseas workers, can I claim tax benefit for being a good employer?
Australian government generally doesn’t offer funding to start a business, but there are more than 50 types of business subsidies available to your business operation.
These business subsidies are delivered to immigrants or employers through the Australian tax system. The most common benefits or grants are summarised in 10 business subsidies for your reference.
I received a mobile message from the Australian tax office advising me to pay the tax debt, what should I do?
If you receive this debt recovery message, it should be your interests to know why you receive it and how to deal with it. Ignoring it will certainly not make it goes away. It will stay until you take action on it.
You can easily find out where this debt come from by contacting the Australian Taxation Office (ATO) and seek legal advice if you can not see the debt is justified. You can also engage ATO to negotiate a payment plan for your debt.
If you do not act on the debt recovery message, 6 months later you might find yourself being taken to the Court or receiving a Garnishee Order ( a court order to recover money). Even in some circumstance, you might be received a bankruptcy notice.
Civil disputes by immigrants FAQs
I delayed rental but eventually paid, the landlord took me to Court!
If you have paid the rent in full, then the landlord has no cause of action. Also, keep in mind, you might need to pay interests on the days of delay, the interests normally is 6% by Court standards.
Could a landlord kick me out if my lease has expired?
This sounds like contract disputes.
In most cases, the landlord/agent must give you a termination notice before taking any action. Your tenancy agreement ends once you give vacant possession of the premises to the landlord/agent (that is, you move out and return the keys in person).
If you do not vacate by the day specified in the notice, the landlord can then apply to the NSW Civil and Administrative Tribunal (NCAT) for a termination order.
A termination order ends the tenancy and specifies the day by which you must give vacant possession.
I am sued by my formal employer for moving to my current employment, can I deal with this case without court hearing involved?
You certainly can ask the Court for the ADR (Alternative dispute resolution). Some Court will ask ADR taken place before scheduling a formal hearing.
When you do the ADR, it is a process of negotiation between you and your formal employer. You must know your legal position and the goal you want to achieve before attending ADR. Therefore an experienced lawyer could put you in a better place when taking ADR.