Migration Law

Enduring Power of Attorney (EPA)

An Enduring Power of Attorney (EPA) is a legal document that appoints someone to manage your affairs if you are unable to do so yourself. You can decide when your attorney’s power to make decision for financial matters begins, including; when you no longer have the capacity to make those decisions; immediately; from a specific date; in particular circumstances or occasions.

It is extremely common and often comes without warning, that individuals lose their mental capacity to make important decisions as a result of injury or illness. Thus, it is extremely important that you have appointed an attorney to facilitate any situation which may occur in the future.

It is of great importance that you appoint someone that you trust and that you know will respect your wishes’. To make an enduring power of attorney, you must be 18 or older and have capacity to understand the document you are signing and the powers it gives.

Therefore, you need to understand:

that you may specify or limit the power to be given to your attorney, and instruct your attorney about the exercise of the power in the enduring power of attorney
when the power begins
that once the power begins, your attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney)
that the power continues even if you lose capacity
that you may revoke the enduring power of attorney at any time while you have capacity to do so
that if you lose capacity (and are unable to revoke the enduring power of attorney) you are effectively unable to oversee the use of the power.

Difference between an enduring power of attorney and advance health directive?

An enduring power of attorney authorises a person to do anything in relation to financial matter or personal matter on another person’s behalf. With this document the attorney makes the health decisions.

An advance health directive allows a person to give directions about their future health care when they become incapable of making those decisions. The document allows the individual to plan for the future and make their own health decisions.

Please contact us if you would like assistance in preparing the necessary documentation to appoint your Attorney.

Mediation

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Mediation is the process where a mediator, usually an experienced family lawyer, barrister or former Judge, assists people in dispute to negotiate a mutually satisfactory resolution to avoid Court. It is highly encouraged that parties to a dispute, resolve their case outside of Courts. Not only is going to Court extremely expensive, it also is a very long and stressful process.

Family Dispute Resolution (FDR)

It is now compulsory for parties to make a genuine attempt to resolved issues at family dispute resolution (FDR) before can application can be filed to the Court. FDR is a special type of mediation for helping separating families to come to their own agreements. During FDR families will discuss the issues in dispute and consider different options, while being encouraged to focus on the needs of their children. FDR uses a neutral and accredited Family Dispute Resolution Practitioner.

The Courts understand that for some, FDR is not possible, therefore if you are in one of the following circumstances are exempt:

If you matter is urgent;
If the court is satisfied that there are reasonable grounds to believe that:
- There has been child abuse/or family violence by a party;
- There is a rick of family violence by a party;
- There is a risk of child abuse if there were to be a delay in applying to the Court
Where a party us unable to participate effectively
If your application relates to an alleged contravention of an existing order and that was made within at least 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order, has behaved in a way that shows serious disregard for his or her obligation under that order.

Once FDR has been attempted, a section 601 Certificate will be issued to advise that a genuine attempt was made by both parties to resolve the matter, or that you are ‘exempt’ from attending because of the nature of your circumstances.

Please contact us if you have any questions or if you would like to discuss you family matter further.

Parenting Matters

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Going through a separation or a relationship breakdown can be a difficult time for all involved. It is important to ensure that the best interest of the child/ren are kept paramount during the process. The law in this area is based on the best interests of the children, particularly their right to a meaningful relationship with each parent as long as it does not put them in harms way.

It is important for the parties to agree on arrangements, including:

The person with whom the child is to live;
The time the child is to spend with the other person;
The communication the child is to have with the other person;
The form of consultation about decisions relating to the child; and
Any other aspect of care, welfare or development of the child.

More often than not, parents are able to agree on their parenting arrangements without the need to engage the Family Courts. If you are able to come to an agreement, we can assist you to formalise that agreement by way of Consent Orders or a Parenting Plan. Additionally, there are various dispute resolution systems which may be of assistance.

What if we still cannot agree?

While the Family Courts do require parties to make a genuine attempt to come to an agreement outside of court. We acknowledge that this may not always be possible in all circumstance. If you cannot come to an agreement, we can represent and guide you through the Court process.

Please contact us for more information or if you would like to discuss your family law matter further.

Advance Health Directives

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An Advance Health Directive is a formal way of giving instructions for your future health. It comes into effect when and only if you are unable to make your own decisions. It is not uncommon for people who are seriously ill to fall unconscious or become incapable of communicating their wishes. Therefore, it is important that when these critical decisions need to be made, there is a record how you wish the relevant situations be dealt with.

What is the process?

You fill out a form stating what type of treatment you want. This may be a general statement of your wishes or may give specific instructions for certain medical conditions and types of treatments;
We provide a copy to your general practitioner;
Medical staff will be able to refer to your Advance Health Directive, if you can no longer make decisions for yourself.

Difference between an enduring power of attorney and advance health directive?

An enduring power of attorney authorises a person to do anything in relation to financial matter or personal matter on another person’s behalf. With this document the attorney makes the health decisions.

An advance health directive allows a person to give directions about their future health care when they become incapable of making those decisions. The document allows the individual to plan for the future and make their own health decisions.

Please contact us for more information or if you would like to discuss further.

Wills

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Making a Will

A will is a legal document that says what you would like to happen with your money, belongings and other assets (your estate) when you pass away. Your will names who you want to give your estate to (your beneficiaries) and who you would like to administer your estate when you pass away (your executor).

It is important to keep your will up to date with your current situation. If a significant event has occurred in your life, it may be necessary that you update your will accordingly. For instance, if you have recently experienced:

Marriage or Divorce
The birth of children or grandchildren
The death of a beneficiary or executor
A substantial change to your financial situation

Wills exist to ensure that your wishes are respected and upheld upon your passing. If you would like assistance in preparing a legally valid Will that reflects your wishes, please don’t hesitate to contact us today.

Contesting a Will

You may have legal grounds to contest a will if:

You believe the Will doesn’t make an adequate provision for you
You can show the deceased was not of in a clear mental state when they made the Will
You believe the deceased signed the will under duress
You were made a promise by the deceased that if you did something for them, they would compensate you in their Will.

We encourage you to contact us to discuss any possible grounds you may have for contesting a will.

Property Settlement

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Upon relationship breakdowns, separated couples are required to agree on how their property is to be divided. Property includes all assets and debts owned by both people, whether it is in both names or just one person’s name.

What if we can’t agree?

Separated couples are encouraged to agree on arrangements for their property without going to court. Not only is going to Court time consuming and expensive, it also limits both parties' say in the outcome. Family Law Courts require that separating couples make a guanine effort to resolve their property settlement dispute before filling their applications to Court. There are various alternate dispute resolution services which may help you and your ex-partner reach an agreement. However, it is important that you do seek legal advice, so you know your rights and get all that you are entitled to.

If you can agree on how to divide your property you can make an informal agreement, make a financial agreement or get a consent order from the court.

How should property be divided?

If your property settlement is determined by the family law courts, the judicial officer will decide whether it is appropriate to make an order for property based on the facts of your case. If the court decides to make an order, it will decide what is just and equitable in your circumstances.

The Courts 4-Step Process

The Court follows a 4-step process, as set out in the Family Law Act, when it comes to deciding property division. These steps are as follows:

Step 1 – Valuation of the Parties’ assets, liabilities and financial resources

The initial step in applying for a court property settlement is the identification and valuing of all the assets, liabilities, and financial resources of both parties, it matters not when or how such assets / liabilities were acquired.

Step 2 – Assessment of the Parties’ Contribution

Next, the court will take into account both financial and non-financial contributed made to the relationship by each party, including; earnings, savings, gifts, inheritances, property owned before the relationship, improvements to property and contribution as a homemaker and parent.

Step 3 – Assessment of the Parties Future Needs

Step three involves an assessment of any possible future needs that you and your partner may have. The factors which the Court are to consider are set out in Section 75(2) of the Family Law Act, they include:

Income and future earning capacity;
Age and state of health;
Property and financial resources;
Parental responsibility of children;
Caretake responsibilities;
Duration of the relationship or marriage.

Step 4 – Assessment of the Proposed Property Division’s Fairness

At this stage, the court will assess whether the proposed percentage distribution and allocation of assets and liabilities is fair for both parties.

Please contact us for more information or if you would like to discuss your family law matter further.

Divorce in Australia

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The Family Law Act 1975 established the principle of no-fault divorce in Australian Law. This means that when granting a divorce, the Court need not consider why the marriage ended, but rather the only grounds for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together in the future.

To apply for a divorce at the Federal Circuit Court, you or your ex-partner must:

be an Australian citizen; or
live in Australia and consider it your permanent home; or
normally live in Australia and have lived here for at least 12 months before applying for a divorce; and
have been separated for 12 months.

It is important to note that you can still apply for a divorce if you were married overseas, or if you don’t know where your partner is. The only requirement is that you live in Australia.

The Federal Circuit Court of Australia has the jurisdiction to deal with divorce. The granting of a divorce does not determine issues of financial support, property settlement or parenting arrangements, it solely acknowledges that the marriage has come to an end.

Ultimately, to be granted a divorce you need to satisfy the Court that you and your spouse have lived separately and apart for 12 months and there is no reasonable likelihood of resuming married life. It is important to note that it is possible to live together in the same home and still be separated.

Please contact us for more information or if you would like to discuss your family law matter further.

Spousal Maintenance

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What is Spousal Maintenance?

Spousal maintenance is financial support paid by a spouse or de facto spouse after a divorce or separation. Generally, a party will only be required to pay spousal maintenance in circumstances where one party has a higher income earning capacity in comparison to an ex-partner who is unable to adequately support themselves financially due to having a lower income earning capacity. In addition to this, spousal maintenance may be available if one party holds a significant value of assets and where the other party does not have the capacity to financially support themselves. Ultimately, one will only be required to pay spousal maintenance if they have the financial capacity to do so.

What if we can’t agree?

If you cannot reach an agreement in relation to spousal maintenance, then you can make an application to the court for a maintenance order. However, it is highly encouraged that you attempt to resolve your dispute before you go to Court. Not only is solving disputes outside of Court more financially beneficial. It also allows parties to have a greater say in the outcome. There are various alternate dispute resolution services which may be able to help you and your ex-partner reach an agreement on maintenance arrangements.

In saying this, we understand that resolving your matter outside of Court may not be possible for your situation. Therefore, going to Court may be the only option. The Family Court and the Federal Circuit Court both have jurisdiction to hear matters of spousal maintenance.

You will need to show that you need maintenance and your ex-partner is able to pay maintenance. The court will make financial orders based on what is fair to you both. If an order for maintenance is made, each person listed in the order must follow it.

How and when is spousal maintenance payable?

Spousal maintenance is payable in one lump sum payment, or in regular payments. If it is paid in regular payments, the right to these payments of maintenance end when the receiving party is re-married, unless stated otherwise. Additionally, it may also end if;

your financial situation improves
your responsibility for caring for children changes
your earning capacity improves

Please contact us to discuss your eligibility or if you would like to discuss your matter further.

New Zealand

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Visa Subclass 444

This visa is for New Zealand citizens who want to work in Australia. It allows you to remain in Australia as long as you are New Zealand citizens. There is no specific duration of the visa however it ceases when the holder departs Australia. It is important to note that the holders of this visa are not considered Australian permanent residents. To be eligible you must be a New Zealand citizen and must meet the health and character criteria.

Visa Subclass 461 - New Zealand Citizen Family Relationship (Temporary) Visa

This visa is designed for non-New Zealand citizens who are family members of a New Zealand citizen who has applied for or is a holder of a subclass 444 visa.

Applicants for this visa must be the New Zealand citizens:

partner
child/stepchild or the partner’s child/stepchild
dependent child or partner’s dependent child.

The holders of this visa can remain in Australia as long as their New Zealand relative continues to hold the subclass 444 visa.

Please contact us for more information regarding the character test and to discuss your migration matter further.

Character

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Applications for visas are always subject to the good character requirements set out in s 501 of the Migration Act 1958. A visa may be refused or subsequently cancelled if a person does not satisfy the decision-maker that they pass the character test.

You may not pass the character requirements in some circumstances. These include if:

you have a substantial criminal record (see below)
you have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
- while you were in immigration detention
- during an escape from immigration detention
- after an escape, but before you were taken into immigration detention again
you are or have been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct
the Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not you have been convicted of such an offence
your past and present criminal or general conduct shows that you are not of good character
there is a risk that while you are in Australia you would:
- engage in criminal conduct
- harass, molest, intimidate or stalk another person
- vilify a segment of the Australian community
- incite discord in the Australian community or in a part of it
- be a danger to the Australian community or a part of it
you have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child
you are subject to an adverse security assessment by the Australian Security Intelligence Organisation
you are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community
you are or have been convicted of a domestic violence offence or have ever been subject to a domestic violence order

What is a substantial criminal record?

condemned to death or life imprisonment; or
condemned to imprisonment of 12 months or more; or
sentenced to two or more terms of imprisonment, totalling to 12 months or more (even if served together); or
found by a court to not be qualified to plead regarding an offence committed which resulted in detention in an institution or facility.

After you apply, you might be asked to:

provide a police certificate
complete Form 80 Personal particulars for character assessment
complete a character statutory declaration
provide a military certificate
provide a letter of good conduct from an employer

Please contact us for more information regarding the character test and to discuss your migration matter further.

Proficient English

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To satisfy the requirements of a majority of visas, you may need to show that you have Proficient English. The Australian immigration system accepts a number of different internationally accepted English testing systems to measure and rank applicants' overall English ability. To prove you have Proficient English, you must show evidence that in the 3 years before submitting your application for the visa, you scored one of the following:

International English Language Testing System (IELTS)

The International English Language Testing System (IELTS) is one of the most commonly taken English proficiency tests for higher education and global migration. IELTS evaluates all of your English skills — reading, writing, listening and speaking. You must score at least 7 for each of these for components.

Test of English as a Foreign Language internet-based Test (TOEFL iBT)

Test of English as a Foreign Language is another widely used test among international students wishing to apply to English speaking universities. Additionally, it is recognised by the Australian immigration department. You must score at least 24 for listening, 24 for reading, 27 for writing and 23 for speaking.

Pearson Test of English Academic (PTE Academic)

The Person Test of English (PTE) is a computer-based test. The test is multi levelled and grades students on reading, writing, listening and speaking. You must score at least 65 for each of the 4 test components.

Occupational English Test (OET)

Occupational English Test (OET) is an international English test that focuses on the language and communication ability of predominantly healthcare workers. The Australian immigration department also accepts this test for migration purposes. The test assesses all four language skills including, listening, reading, writing and speaking, while focusing on communication in the health profession. You must score at least a B for each of the 4 test components.

Cambridge C1 Advanced Test

The Cambridge C1 Advanced Test assesses reading, writing, listening and speaking ability. You must score at least 185 in each of the 4 test components.

Please contact us to discuss any questions regarding your migration matter.

Health Waiver

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Most applicants who have applied for a temporary or permanent visa are required to undertake health examinations.

To meet the health requirement to be granted a visa an applicant must undergo a health examination and be granted a health clearance. If a Medical Officer of the Commonwealth assesses you as unable to meet the health requirement, your visa application will be refused unless a “Health Waiver” is available and exercised.

Ultimately, a health waiver may be considered where you satisfy the Department of Immigration and Border Protection that the granting of the visa would be unlikely to result in undue cost or prejudice to access of an Australian citizen or permanent resident to health care or community services.

It is important to note that you do not need to apply for a Health Waiver. If you are eligible to be considered for a Health Waiver, the Department will send you can “Invitation to Comment” advising that you have failed to meet the health requirement and that a Health Waiver is going to be considered. The Invitation to Comment will invite you to put forward claims and information in support of a Health Waiver being exercised.

If you have been issued an Invitation to Comment in relation to a Health Waiver, or have been refused a visa on health ground, contact us immediately so we can assist you in formulating your response to the Invitation to Comment or prepare you application for review to the AAT.

AAT Appeal - Visa Refusal

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Often it is thought that the only option after a visa refusal is to leave Australia. However, unsuccessful applicants may have a right to appeal this decision. You may be able to appeal your visa refusal, visa cancellation, business sponsorship or nomination application refusal to the Administrative Appeals Tribunal (AAT).

The function of the AAT is to review the Department’s decision for refusing your application or cancelling your visa and determine if the Department’s decision was correct. The Tribunal will assess and decide if your application satisfies the relevant legal requirements for approval. The AAT can make a decision in your favour and rule that the Department's decision is incorrect. If that is the case, the matter will be sent back to the department for reconsideration. At this stage, generally speaking, the Department will grant the visa or revoke the visa cancellation. However, it is important to note, the AAT may up-hold the original decision made by the Department. If this is the case, your appeal is unsuccessful.

Time limits related to appealing.

It is important to note that different time limits apply according to the decision which has been challenged. Additionally, the tribunal has no power to extend the time limit relevant to lodge an application for review, so it is crucial that you file an application for review within the relevant time. Generally, the time limit within which you need to apply for AAT review is very short.

Who can apply?

You may be able to apply for AAT review in the following situations:

You are in Australia, applied for a visa and this application was refused by the Department
You are in Australia and you visa was cancelled by the Department
You are in Australia and you visa was cancelled and your application to have the cancellation revoked was refused by the Department
You are sponsored or nominated by an employer or another person for a visa, and you lodged this visa application outside of Australia. Approval of the sponsorship or nomination must be a requirement for visa approval. Your sponsor or nominator may apply to the AAT for review of the decision to refuse your visa application. Individuals who may be able to apply for review on this basis include applicants who are sponsored by their employer, sponsor or partner, family members etc.
You are an employer that applied for Standard Business Sponsorship and this application was refused.

Please contact us to discuss the next steps of this process and to discuss your eligibility.

Citizenship

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General eligibility requirements to apply for Citizenship

Generally, those over the age of 18 who apply for Australian citizenship must:

have passed a citizenship test (unless over the age of 60);
be a permanent resident at the time of application, and, at the time of decision;
satisfy the residence requirement (see below);
be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing link with Australia;
be of good moral character.

Residence requirements

A person satisfies residence requirements if:

The person has been lawfully resident in Australia for at least 4 years before applying; and
The person has been an Australian permanent resident for at least 1 year and lived in Australia for at least 9 out of 12 months before applying; and
The person has NOT been absent from Australia for more than 12 months in the last 4 years before making their application.

Citizenship test

In addition to the general eligibly criteria, a person must pass the Australian Citizen test. Those aged under 18 or over 60, or people who suffer from a substantial impairment or loss of hearing, speech or sight are not required to take this test.

The Australian citizenship test is designed to help future Australian citizens gain an understanding of Australia’s values, traditions, history and national symbols.

To sit the test a person must:

Be an Australia permanent resident;
Satisfy the department of their identity during the process of registering for the test;
Allow the department to take a photograph of the person to or provide one themselves.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Working Holiday Visas

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417 – Working Holiday

This visa is for young people who want to holiday and work in Australia for up to a year. With this visa you can do short-term work to help pay for your holiday. Additionally, you can study for up to 4 months, travel to and from Australia as many times as you want within the granted year.

To be eligible for this visa, you must:

- hold a passport from an eligible country or jurisdiction (see below)
- be 18 to 30 years old (inclusive) - except for Canadian, French and Irish citizens who can be 18 to 35 (inclusive)
- apply online from outside Australia
- not be accompanied by dependent children
- not have previously entered Australia on a subclass 417 or 462 visa.

Once the 600 Visa (Visitor Visa) has been granted, you can stay for the period or dates specified on the visa grant letter. This time period is determined on a case by case basis. It can be granted for up to three, six or twelve months depending on the circumstance.

Subclass 601 (Electronic Travel Authority Visa)

This visa allows you to visit Australia as a tourist, to see family and friends, or for business visitor purposes as many times as you want, for either 12 months from the date the visa is granted, or how long your passport is valid for, whichever is shorter.

To be eligible for this visa, you must:

- intend to come to Australia to visit, see family and friends, or for business visitor purposes
- have enough money for your stay in Australia
- not work in Australia
- must be outside Australia when submitting the application
- stay for no more than three months each visit

The 601 (Electronic Travel Authority Visa) begins on the date it is granted, unless you hold another substantive visa that is in effect.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

602 – Medical Treatment

This visa allows people to travel to Australia for medical treatment or consultations, or to support someone needing medical treatment who holds or has applied for this visa, or to donate an organ.

To be eligible for this visa, you must be in one of the following situations:

- Intend to have medical treatment or consultations in Australia
- Intend to donate an organ to someone in Australia
- Intend to support a patient or organ donor who holds or is applying for this visa
- Intend to receive an organ from someone who travels to Australia with you
- Intend to come to Australia under the arrangements between the Western Province of Papua New Guinea and the Queensland Department of Health
- Be in Australia, aged 50 years or older, been refused an Australian permanent visa on health grounds only and are unfit to depart Australia

Additionally, you must

- not have a medical condition which could be a threat to public health
- not hold a Temporary Work (International Relations) visa (subclass 403) that was granted in the Domestic Worker (Diplomatic or Consular) stream.
- be able to support yourself
- pre-arrange payment of your medical costs and demonstrate that it will not cost an Australian government money (in most circumstances).

The 602 (Medical Treatment Visa) allows you to stay in Australia until the treatment plan or consultations are finished. Additionally, you may be granted either a single entry or multiple entries depending on your situation.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Visitor Visa

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Subclass 600 (Visitor Visa)

This visa allows you to visit Australia as a tourist, to see family and friends or for purposes other than business or medical treatment.

To be eligible for this visa, you must:

- intend to come to Australia to visit only
- have enough money for your stay in Australia
- not work in Australia

Once the 600 Visa (Visitor Visa) has been granted, you can stay for the period or dates specified on the visa grant letter. This time period is determined on a case by case basis. It can be granted for up to three, six or twelve months depending on the circumstance.

Subclass 601 (Electronic Travel Authority Visa)

This visa allows you to visit Australia as a tourist, to see family and friends, or for business visitor purposes as many times as you want, for either 12 months from the date the visa is granted, or how long your passport is valid for, whichever is shorter.

To be eligible for this visa, you must:

- intend to come to Australia to visit, see family and friends, or for business visitor purposes
- have enough money for your stay in Australia
- not work in Australia
- must be outside Australia when submitting the application
- stay for no more than three months each visit

The 601 (Electronic Travel Authority Visa) begins on the date it is granted, unless you hold another substantive visa that is in effect.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

602 – Medical Treatment

This visa allows people to travel to Australia for medical treatment or consultations, or to support someone needing medical treatment who holds or has applied for this visa, or to donate an organ.

To be eligible for this visa, you must be in one of the following situations:

- Intend to have medical treatment or consultations in Australia
- Intend to donate an organ to someone in Australia
- Intend to support a patient or organ donor who holds or is applying for this visa
- Intend to receive an organ from someone who travels to Australia with you
- Intend to come to Australia under the arrangements between the Western Province of Papua New Guinea and the Queensland Department of Health
- Be in Australia, aged 50 years or older, been refused an Australian permanent visa on health grounds only and are unfit to depart Australia

Additionally, you must

- not have a medical condition which could be a threat to public health
- not hold a Temporary Work (International Relations) visa (subclass 403) that was granted in the Domestic Worker (Diplomatic or Consular) stream.
- be able to support yourself
- pre-arrange payment of your medical costs and demonstrate that it will not cost an Australian government money (in most circumstances).

The 602 (Medical Treatment Visa) allows you to stay in Australia until the treatment plan or consultations are finished. Additionally, you may be granted either a single entry or multiple entries depending on your situation.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Skilled Visas

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189 – Skilled Independent

This is a permanent visa for points-tested skilled workers who are not sponsored by an employer or family member or nominated by a state or territory government. It allows you to live, work and study in Australia as a permanent resident.

To be eligible, you must:

- submit an expression of interest and be invited to apply for this visa
- upon receiving an invitation to apply, submit your application within 60 days.
- have an occupation on the relevant skilled occupation list
- have a suitable skills assessment for the occupation
- meet the test pass mark of 65 points
- be under the age of 45 years at the time of application
- have proficient English
- have at least three years’ work experience relevant to the particular occupation

Once the 189 Visa (Skilled Independent) Visa has been granted, you and your accompanying family members will be able to live, work and study in Australia as permanent residents. Additionally, if eligible, you can become an Australian Citizen.

189 – Skilled Visa - New Zealand Stream

This is a permanent residency visa for New Zealand citizens who have lived and worked in Australia for five years.

To be eligible, you must:

- hold a New Zealand Special Category (subclass 444) visa
- have usually resided in Australia for at least the last 5 years
- have started living here on or before 19 February 2016
- satisfy the income requirement have a taxable income at or above an income threshold for each income year in the five years prior to lodging an application (unless claiming an exemption).
- Meet the character and health requirements

Income requirement

The income threshold for the Independent Skilled 189 (New Zealand) stream is set at the same level as the Temporary Skilled Migration Income Threshold (TSMIT). A summary of the Income threshold for the past five years can be found in the following table.

Financial year	Income threshold for Skilled Independent 189 (New Zealand) Stream
2016-17	53 900.00
2017-18	53 900.00
2018-19	53 900.00
2019-20	53 900.00
2020-21	53 900.00

Once the 189 Visa (Skilled Independent) Visa (New Zealand Stream) has been granted, you and your accompanying family members will be able to live, work and study in Australia as permanent residents. New Zealand citizens who are granted this permanent visa will be eligible to apply for Australian citizenship after 12 months.

190 – Skilled Nominated

This visa allows skilled workers who are nominated by an Australian state or territory government, to live, work and study in Australia as a permanent resident.

- submit an expression of interest and be invited to apply for this visa
- be nominated by a state or territory government agency to apply
- upon receiving an invitation to apply, submit your application within 60 days
- have an occupation on the relevant skilled occupation list
- have a suitable skills assessment for the occupation
- meet the test pass mark of 65 points
- be under the age of 45 years at the time of application
- have proficient English
- have at least three years’ work experience relevant to the particular occupation

Once the 190 Visa (Skilled Nominated) Visa has been granted, you and your accompanying family members will be able to live, work and study in Australia as permanent residents. Additionally, if eligible, you can become an Australian Citizen.

491 – Skilled Work Regional (Provisional)

This is a provisional visa. It is for skilled workers who want to live, work and/or study in designated regional Australia, stay in Australia for five years. This visa serves as a pathway to the subclass 191 Permanent Residence (Skilled Regional) visa. Visa holders will be eligible to apply for a permanent residence visa after three years.

To be eligible, you must:

- submit an expression of interest and be invited to apply for this visa
- be nominated by a state or territory government agency to apply
- upon receiving an invitation to apply, submit your application within 60 days
- have an occupation on the relevant skilled occupation list
- have a suitable skills assessment for the occupation
- meet the test pass mark of 65 points
- be under the age of 45 years at the time of application
- have proficient English
- have at least three years’ work experience relevant to the particular occupation

To be eligible, you must:

- submit an expression of interest and be invited to apply for this visa
- be nominated by a state or territory government agency, or an eligible relative must sponsor you
- upon receiving an invitation to apply, submit your application
- have an occupation on the relevant skilled occupation list
- have a suitable skills assessment for the occupation
- meet the test pass mark of 65 points
- be under the age of 45 years at the time of application
- have proficient English skill

Once the 491 Visa (Skilled Work Regional (Provisional) Visa) has been granted, you will be able to live, work and study in Australia for five years. It is important to note that you can work in any occupation and for any employer in line with the work and residence conditions attached to your visa.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Employer Sponsor Visa

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482 – Temporary Skill Shortage Visa

This visa enables employers to access a temporary skilled overseas worker if an appropriately skilled Australian worker is unavailable. You must be nominated by a sponsoring business and obtain a subclass 482 visa before you can commence work in Australia.

In order to be nominated for this visa, you must meet the following criteria:

- You must have qualifications and skills as well as the experience of 2 years in the occupation you are going to nominate.
- The relevant occupation must appear on the list of eligible occupations.
- You must complete assessments relating to health, skills and English proficiency.

494 – Skilled Employer Sponsored Regional (Provisional)

This visa allows skilled workers, under the age of 45 at the time of application, to be sponsored by an employer in regional Australia to work for a maximum period of five years whilst on the path to permanent residency.

Basic eligibility:

- be nominated by an approved work sponsor
- have an occupation on a relevant skilled occupation list
- have a suitable skills assessment for the occupation
- be under 45 years of age
- meet minimum standard of English language proficiency

Holders of subclass 494 visas can apply for a permanent resident visa, the Permanent Residence (Skilled Regional) (subclass 191) visa, after holding a 494 visa for at least three years, having complied with the conditions of that visa, and having met minimum taxable income requirements being at least $53,900 per annum for three years.

186 – Employer Nomination Scheme

This is a permanent visa for skilled workers allowing them to work under the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

To be eligible

To be eligible for this visa you must be nominated by an approved Australian employer, be under 50 years of age if you are applying under the Temporary Residence stream, or under 45 years of age if applying under the Direct Entry stream, meet the skills, qualifications, and English language requirements of the position, have at least three years’ work experience relevant to the particular occupation, and meet the other requirements of one of the streams of this visa.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Student Visa – Subclass 500

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The student visa (subclass 500) allows you (international students) to undertake full-time education and training in Australia. This visa enables you to stay in Australia for the duration of your relevant course. If your application is successful, you have the opportunity to work for 20 hours a week in the course of your studies.

In order to qualify for the student visa subclass 500, you must:

- be at least 6 years of age;
- have proof of enrolment or application to a full time eligible educational program in Australia;
- have proficient English skills;
- take out Overseas Student Health Cover (OSHC) from an Australian health insurance provider;
- satisfy the health requirements for entry in Australia; and
- have enough money to fund school fees and daily life in Australia.

Requirement for those under the age of 18 years

If the applicant is under the age of 18 the application process is to be completed by a guardian that is over the age of 21 years. Additionally, they must have a parent or legal guardian with them in Australia.

Additional Information

You can lodge your application within or outside of Australia. If you are inside Australia, you must begin the application process before your current visa expires. If you are overseas, you must lodge your application at least 6 weeks before the enrolment date.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Child Visa

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Child visa, 101 & 802, allows a child to live in Australia with a parent who is an Australian citizen, permanent resident or eligible New Zealand citizen living in Australia.

To meet the criteria for subclass 101/802 Child Visa (offshore/onshore), the child must be sponsored by an Australian parent or their partner.

Further, the child must:

- Not have a spouse, de-facto partner or be engaged;
- Be dependent on their sponsor;
- Be under the age 18 or under 25 years and studying full time or over 18 years with a disability.

The subclass 101/802 is a permanent residency visa and once granted, the applicant can live, study and work in Australia permanently. If you are an Australian citizen, Permanent Resident, or eligible NZ citizen you may be able to sponsor your biological or adopted child to live, work and study in Australia.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Partner Visa

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A partner visa is for the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen to live in Australia.

Applying outside of Australia – Offshore

If you’re an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen, and you have a partner who lives overseas, you’ll need to consider a subclass 309/100 Offshore Partner Visa.

Subclass 309/100 – Two Stage Process

When applying for this visa you will apply for two separate visas at the same time: a provisional visa (subclass 309) and permanent visa (subclass 100). If you are granted a subclass 309 visa two years from date of lodging the application, you will be invited to provide further information for the granting of a subclass 100 visa.

Subclass 309/100 – Offshore Partner Visa Eligibilit

To be eligible for an offshore partner visa you must apply for this visa outside of Australia. You must be legally married or in a de facto relationship with an Australian citizen, and Australian permanent resident, or an eligible New Zealand citizen. Please note that if you are in a de facto relationship, you must be able to provide evidence of bring in this relationship for at least 12 months, or your relationship is registered in a relevant state or territory of Australia.

Applying in Australia – Onshore

Subclasses 820/801 operate similarly to the abovementioned subclasses. However, this option is for applicants who are applying onshore. Otherwise, the process is the same, with subclass 820 being a provisional visa and subclass 801 being a permanent residency visa.

Subclass 820/801 -- Onshore Partner Visa Eligibility

To be eligible for a partner visa you must be sponsored by an Australian citizen, permanent resident or eligible New Zealand citizen and must demonstrate that you are in a genuine and continuing relationship, that you have been living together on a permanent basis since you committed to a shared life together to the mutual exclusion of all others. You can either be legally married or in a de facto relationship for at least twelve months.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

Hogan Orders

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What is a Hogan Order?

It is well known that the affordability of legal fees is a common concern for those going through family law litigation. Under section 117 of the Family Law Act 1975 (Cth), the general rule is that separating couples pay for their own legal fees. However, the law offers alternate avenues for those who do not have the capacity to do so. One of these avenues is through a Hogan Order. This is an order from the court instructing one party to pay the other party’s legal fees in certain circumstances. In short, a Hogan Order is an order that funds be paid from one party, the one with the greater financial capacity, into the other party’s solicitor’s trust account. It is important to note that the payment is a partial advance on the property settlement. Therefore, at property settlement, the amount advanced is taken out of the sum ordered for the recipient of the funds. Hogan Orders play a fundamental role in ensuring that a balance of power exists between the parties when seeking to settle their affairs after separation or divorce.

The requirements for a Hogan Order are as follows;

One party must be financially dominant over the other;
The party applying for the Hogan Order must not have the capacity to pay for their costs unless they obtain a Hogan Order;
The financially dominant party must be able to pay their own legal fees;
The party who is applying for the order must have as case which has reasonably strong prospects of success;
The application must be for an amount that is lesser than the amount a property settlement is likely to award the applicant;
The application will also need to include evidence about what legal costs have already been incurred. Additional evidence will also need to be provided to show that the legal representatives for the applicant are not willing to wait until a settlement has been finalised to be paid.

An example:

Interestingly, the case of Hogan [1986] FamCA 34 was the initial and leading case in which a Hogan Order was ordered. Since then, various Hogan Orders have been ordered to ensure both parties, when seeking to settle their affairs, are on a level playing field. A In the case of Strahan v Strahan (Interim property orders) [2009] FamCAFC 166 a $5 million payment was ordered via a Hogan Order. The twelve-year long dispute amounted to thirty-three hearings and a total of $35 million in legal costs between the two parties. Keep in mind, however, that the total asset pool was more than $80 million.

In need of further information?

For any further information regarding a Hogan Order or if you would like to discuss your family law matter, please contact us today.

Parent Visas

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Parent visas may be accessible to parents wishing to migrate to Australia on the basis that the individual is the parent of a child who is a settled Australian citizen, Australian permanent resident, or an eligible New Zealand citizen.

Parent Visa Categories

Parent visas are currently split into two categories and six visa subclasses. These are the ’Parent category’ and ‘Contributory Parent category’ visas. Further, they can be classified based on an applicant’s age or whether the applicant is seeking temporary or permanent residency.

The main differences

Contributory parent category visas are usually processed faster than non-contributory parent visas as they are afforded a higher processing priority and there are more visa places available. Due to this faster processing rate and more allocated visa places available, they involve a significantly higher application fee.

In comparison, non-contributory parent visas have a significantly lower cost. However, they are less feasible due to the limited amount of visa places allocated and thus the longer processing times. For many people, a permanent contributory visa may be out of reach, financially, and the non-contributory parent visa not practical due to the lengthy processing times. Instead, the applicant may consider first applying for the temporary options before transitioning to the permanent options at a later date.

Eligibility Criteria

In order to be eligible for a parent visa, you must Satisfy the Balance of Family Test.

The Balance of Family Test requires that at least half of the parent’s children live permanently in Australia, or that more of their children live permanently in Australia than in any other country. Please note that for all parent visas, the Balance of Family test must be passed. Due to the large number of possible combinations, the test can be very complex to navigate.

Please contact us to discuss your eligibility or if you would like to discuss your migration matter further.

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