Cases


hk-new-visa-pathway

[UPDATED] Pathway to Permanent Residence by Hong Kong residents

 

On 28 October 2021, the Governor-General of Australia signed off the Migration Legislation Amendment (Hong Kong) Regulations 2021. This amending regulation complement and formalise the Australian Government’s announcement made on 9 July 2020 of offering students from Hong Kong 5 years temporary visa with pathway to permanent residency.

Key features of the Migration Legislation Amendment (Hong Kong) Regulations 2021 are:

  • The previous temporary visa extension of up to 5 years for Hong Kong residents (Migration Amendment (Hong Kong Passport Holders) Regulations 2020) that applies to holders of Hong Kong SAR passport is now also offered to Hong Kong resident with British National (Overseas) passport.
  • British National (Overseas) passport holders who held or hold a Subclass 457 visa, Subclass 482 visa, or a Subclass 485 visa will the validity period of their visa:
    • extended to 8 July 2025 if they held the visa on 9 July 2020, or
    • extended to the of 5 years from the date of visa grant if the visa they hold was granted after 9 July 2020 and before 3 November 2021.
  • Introduction of new visa stream specific to Hong Kong residents in Australia in both the subclass 189 Skilled-Independent and Subclass 191 Skilled Regional (Permeant) visas. Similar to the current New Zealand stream under the subclass 189 visa but even better as there is no taxable income threshold requirement.
  • Dependent (secondary) visa holders of Subclasses 457, 482 and 485 visa can continue to be included as secondary visa applicant when applying for subclass 189 or 191 visas under the Hong Kong stream. This means, for example, there is 23 years upper age limit or financial dependency requirement for adult children when it comes applying for the permanent residence visa.
  • This special permanent residency pathway is available to all current and prospective Hong Kong international students in Australia if they hold a Subclass 485 or 482 visa in the future (subject to any future legislative changes).

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Skilled Nominated Visa Cancellation – Contrary Information Received

 

In this case, Mr M. K. engaged our assistance in responding to a Notice of Intention to Consider Cancellation (“NOICC”) of his subclass 189 Skilled – Nominated Visa. The Department of Immigration and Border Protection (“the Department”) alleged that Mr K had not complied with ss 101 and 103 of the Migration Act 1958 (Cth) (“the Act”) by providing incorrect answers and bogus documents in support of his application for a subclass 189 visa.

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Yao & Ors v Minister for Immigration & Anor [2016] – Subclass 890 Business Skills (Residence) Visa – Proper Interpretation of “Net Assets”

 

In this case before the Federal Circuit Court (FCC), we successfully challenged a decision of the Administrative Appeals Tribunal (AAT) to refuse to grant our clients a subclass 890 Business Skills (Residence) visa. Notably, this case discussed the proper interpretation of a “net asset” within cl.890.212 in sch.2 to the Migration Regulations 1994 (Cth), which forms one of the main requirements that applicants must satisfy in order to obtain a subclass 890 Business Skills (Residence) visa.

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Visitor Visa – Genuine Temporary Entrant (GTE)

 

In this case, we successfully assisted our client (H. Leung) in overturning a decision made by the Department of Immigration and Border Protection (“DIBP”) to refuse to grant the visa applicant (J. Wu) a subclass 600 Visitor visa. Ms Wu originally applied for the visa for the purposes of attending her mother in law’s funeral and supporting her husband, Mr Leung. However, the DIBP was not satisfied that Ms Wu genuinely intended to stay in Australia on a temporary basis pursuant to cl.600.211 of Schedule 2 to the Migration Regulations 1994, which is an essential criteria for the grant of the visa. Due to the refusal, Ms Wu could not attend the funeral, however still wished to visit Australia to celebrate Chinese New Year with Mr Leung.

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Permanent Residence Visa – Successful Ministerial Intervention Request

 

MIN intervention

We successfully assisted our client S. Ong in this case in obtaining a permanent residence visa through an application for ministerial intervention. We were initially contacted by a community organisation that referred Ms Ong’s matter to us. Ms Ong, 76 years of age, had remained unlawfully in Australia without a valid visa for almost 30 years since arriving from Malaysia on a tourist visa that expired in 1985. Since her arrival in Australia, Ms Ong has held various domestic work roles and has also participated in volunteer work for many years.

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Student Visa – Genuine Temporary Entrant (“GTE”) and Condition 8516 (“SVP”)

 

visa_grant_GTEIn this case, our client (S. Huang) sought our assistance in responding to a letter of adverse information from the Department of Immigration and Border Protection (“DIBP”) regarding his application for a further subclass 573 Student visa.

In the letter, DIBP stated that Mr Huang had breached condition 8516 of his previous Student visa by not studying an eligible course at an eligible education provider under the streamlined visa processing (“SVP”) arrangement. The DIBP had also received adverse information from Mr Huang’s previous education provider that he had breached visa condition 8202 by not achieving satisfactory course progress. Additionally, the fact that Mr Huang had not completed a course for nearly 3 years further fuelled the DIBP’s belief that Mr Huang did not intend to genuinely stay in Australia on a temporary basis.

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Student Visa – Unsatisfactory Course Attendance

 

In this case, our client B. Gurung engaged our assistance to challenge a decision made by the Migration Review Tribunal (MRT) regarding his further subclass 572 Vocational Education Student visa application. The MRT affirmed the Department’s decision to refuse the application on the basis that our client had not complied with the conditions of his previous Student visa. In particular, it was held that our client had not satisfied compulsory visa condition 8202(3) of satisfactory course attendance.

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Student Visa – Genuine Temporary Entrant (GTE)

 

We successfully assisted our client D. Jin in overturning a decision made by the Department of Immigration and Border Protection to refuse his application for a further subclass 572 Vocational Education Student visa. The Department was not satisfied that our client intended to genuinely stay in Australia on a temporary basis due to the large number of unrelated courses that he had taken over a period of seven years and his failure to complete any courses.

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Partner Visa – Separation and Incompatible Occupation to Marriage

 

Our client L. Yin and her partner sought our assistance in this case to overcome a Partner visa refusal from the Department of Immigration and Border Protection. Our client’s partner had participated in a drug rehabilitation program and the couple was unable to live together for a period of time as a result. Due to this, the Department was not satisfied that the couple possessed a genuine and mutual commitment to a shared life as husband and wife. To further complicate the matter, our client was located by the Department working in an occupation that would ordinarily be incompatible with marriage.

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DEBT OWED BY BENEFICIARY

 

One question which executors (or estate administrators) find quite challenging is: What action can be taken concerning a debt owed to the estate by a beneficiary of the estate? We have provided advice to executors and administrator on the procedure to be taken in such cases. This is a difficult problem where the beneficiary does not have the funds to pay the debt before the assets of the estate may be distributed.

A recent case concerned a loan which had been obtained by the deceased and his de facto spouse (“W”). The bank was given a mortgage of the residence solely owned by the deceased to secure the loan. It had been agreed that the bank could, if necessary, proceed to recover the loan from either the deceased or W or both of them. (more…)

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