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Capital gains tax rules for foreign investors

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Legislative provisions which impose foreign resident capital gains withholding payments in regard to property acquisitions came into effect in July 2016. An updated rate and threshold now applies to contracts entered into after 1 July 2017. From 1 July 2017 the threshold to withhold has been reduced from $2 million to $750,000 and the withholding rate has been increased from 10% to 12.5%. Although these provisions are designed to impose withholding payments liability on foreign residents, they effectively impose important obligations on all purchasers and vendors where the transaction is over the threshold amount. The ATO has said that voluntary compliance with Australia's...

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Long-term residency no bar to deportation

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The Minister for Immigration has the power under s.501 of the Migration Act 1958 to cancel a person’s visa (including a permanent resident visa) if that person fails to satisfy the Minister that they pass the “character test”. In certain circumstances, a person’s visa will be automatically cancelled. Between the 2013-2014 and 2014-2015 financial years, the number of visa cancellations on character grounds increased fivefold. Visa cancellations can have enormously serious consequences. The person affected may be separated from loved ones and friends for a long period of time. They may be held involuntarily at an immigration detention center, removed and effectively excluded...

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Important things to consider when buying a business

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If you are considering buying a business there are many things you need to do from a legal, financial and general business perspective. Getting the right advice from the start is important. The structure of and issues involved in the sale are quite different if you are buying the business assets only, compared with the shares in the company that owns the business. This article highlights some of the key issues to consider. Making sure you follow the right process before signing any documents is a key component of a successful business purchase. The main things to do before signing a contract are: •...

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Significant Investor Visa – Strict compliance with SIV investment framework crucial

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The Significant Investor Visa (SIV) programme is offered to high net worth investors wishing to migrate to Australia. The SIV is a stream within the Business Innovation and Investment (Provisional) (Subclass 188) visa and the Business Innovation and Investment (Permanent) (Subclass 888) visa. SIV holders are required to invest $5 million into complying significant investments for a minimum of four years before being eligible to apply for the permanent visa. They must have a genuine intention to maintain/hold the complying significant investments for at least 4 years from the date the temporary (subclass 188) visa was granted. Investors must prove to...

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Business Visas – The meaning of “main business” in a Visa application

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The meaning of “main business” in a Visa application The Federal Court in the case of Synman & Anor v Minister for Immigration & Anor (2015) considered the meaning of “main business” in migration law in the context of several businesses being operated. The visa applicant in this case was one of two shareholders, and he owned 50% of the shares in a company (“Cutman”) incorporated by him and his son. Since its incorporation, Cutman had operated five businesses in Australia: a hair and beauty business, a meat business, a “fusion” business; an engine monitoring system business and a cafe. All...

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“Compelling reasons” in partner visa policy broadened

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“Compelling reasons” in partner visa policy broadened In March 2016, the Full Federal Court made a very important decision about Departmental policy in regard to compelling reasons in partner visa applications. This decision significantly broadened the circumstances which can be taken into account by the Department or the Tribunal in considering whether there are “compelling reasons” for waiving “Schedule 3” requirements. (These terms are discussed in more detail below.) Which visa applicants are affected by this decision? This decision affects some applicants for onshore partner visas (Subclass 820/801 visas). What is the Schedule 3 requirements for Subclass 820/801 visa applicants? Schedule 3 requirements are complex...

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Family Law – Things to consider when partners separate

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Do you have a friend or relative who has just separated? If so, the information below should help. What is meant by separation? Separation in Family Law is defined as the bringing to an end of a marriage or de facto relationship (which also includes same sex couples). There is no need or ability to register a separation under Australian Family Law. Separation is a fact which must be proven if it is disputed by the other party at a later time. In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn...

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“Militant” refugee

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Background Our client, an Indian citizen, was discriminated against because he was a prominent Sikh. Police in India viewed our client as a prominent militant, and he was repeatedly tortured and detained on numerous occasions. Even when he was on release, he was kept under surveillance and as a result had difficulty finding work. He escaped to Australia on a temporary resident visa, with his wife and children remaining in India. Immigration, while acknowledging there was a real chance our client would be persecuted if he returned to Punjab, found that he could safely relocate to other parts of India. It therefore...

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Spouse visa: remarriage to first wife

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Background Our client left his home country of India (leaving his family behind) due to religious persecution. After remarrying an Australian and gaining permanent residency, he divorced. He then wanted his first wife in India and their four children to come to Australia under a spouse visa. Immigration took the view that our client was not a credible witness, and rejected the application. Our involvement We appealed against this decision to refuse the visa. Carefully preparing our client’s case, we effectively provided the “vital missing evidence” that was critical to the success of our client (arguing a strong public interest criteria). Because of...

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