Immigration Laws a Minefield for a Migration Sponsor

There have been many wildly inaccurate and often hysterical claims made in the media regarding immigration laws and practices in Australia. The divisive nature of the national debate does not take into account the complexity of the immigration laws, and many a migration sponsor must be caused a great deal of anxiety while a migration application is being processed, especially if the person in question is a minor. The facts are that only an Australian or New Zealand citizen or permanent resident can bring a child into Australia, and success is dependent on ensuring that the correct visa subclass is applied for at the outset.

These matters are very complex, and the consequences of making a mistake too dire to be left to inexperienced people to arrange. When a minor is involved, the adults taking control of the situation must first be looking after the wellbeing of the minor, so anyone considering being a migration sponsor should consult specialist lawyers Sydney before taking action.

As an example, one issue that a migration sponsor may not be aware of in respect of a child under 18 is that another party who is not the sponsor, but who has the right to determine where the child resides must give permission for the child to migrate to Australia. However, there are certain circumstances where a Court can issue an order to allow migration. There are no exceptions, however, to the child meeting the health and character requirements, and if they are over 18, they must read the book 'Life in Australia' and sign a statement confirming that they will obey and respect Australian laws and values.

There are several visa subclasses and care must be taken to apply for the applicable one. In the case of visa subclass 802 and 101, the child referenced in the application must be under 25 years of age. If the child is 18 years or over, they must be a full-time student and be financially dependent on the sponsoring parent. Where the child has a medically proven disability that would prevent them from working, those provisions may not apply.

An Orphan Relative visa subclass 837 or 117 can be made where the parents have passed away, are incapacitated or missing and no-one can care for the child. However for this visa the child must be under 18. The child must also have relatives in Australia willing to sponsor the child such as aunts, uncles, siblings, grandparents, nieces or nephews. A spouse of one of these relatives can also apply to be a migration sponsor. Lawyers Sydney will assist them to arrange an Orphan Relative visa application.

There are two other requirements that must be met. All documentation must be provided and fees paid to the Department of Immigration and Citizenship as required. A child 18 years of age or older must not have been engaged, married or part of a de facto coupling.

Many Immigration Lawyer Advantages as Specialisation in Immigration Law Becomes the Norm

Immigration law is one of the most difficult and complicated professions within our legal system, and one that is little understood by the average Australian who has not needed its services or intervention. Exposure to immigration law for people outside the legal profession can happen as a result of being an advocate for someone wanting to emigrate, a care worker looking after refugees, or someone who needs access to an immigration lawyer through some unexpected life event. For anyone in these circumstances, the advantages of seeking the advice of a specialist in this complex area should be obvious.

The sheer volume of legislation and accompanying processes surrounding immigration law is cause for this to be a specialist area within the law generally. However within immigration law itself, there are areas of further specialisation that require more expertise than standard Lawyers Brisbane can provide.

Typical areas of specialisation are skilled migration, family migration, business migration and refugee law, and as these are all equally complex, with caseloads increasing each year, it is impossible for a single lawyer to be fully versed professionally in all areas. General lawyers are also using immigration law specialists as consultants in cases where they have an existing client with an immigration problem. By accessing assistance, they are still providing a service to their client, but also creating networking opportunities with immigration specialists that benefit all parties.

This continual move towards specialisation is being assisted by the strengthening of professional standards, and the requirement for lawyers wanting to practice in this area to attend continuing legal education classes. The Law Society of NSW and the Law Institute of Victoria have also established specialist accreditation programs and raised the level of professionalism. A group of immigration lawyers have established a professional body called The Immigration Lawyers Association of Australia (ILAA).

Along with the already existing State regulations which regulate legal practice throughout the country, these initiatives will provide more opportunities for professional development in immigration law, and attract young lawyers to the profession. Compulsory registration with state authorities and the requirement to have professional indemnity insurance is providing confidence that there are avenues of redress for clients in any dispute. While these registrations also apply to general Solicitors Brisbane, they lack the specialist knowledge to practice in immigration law.

The Immigration Lawyer Advantages of this additional professional development is better management of the skilled and business migration programs. The community will also benefit through understanding humanitarian programs and family reunification schemes. Immigration law is an area that has been little understood for a long time, and with these initiatives, ordinary Australians may gain some unbiased insights into how these laws work to protect all of us.

Where does the Law Stand on Family Law Parentage

There are many issues within the legal system that can cause anxiety and anguish, and one of the most emotionally difficult to become involved in is the question of a child’s parentage. This issue often arises in child support cases when establishing beyond doubt a family law parentage has substantial long-term financial consequences for both parties. The legal background to the question of parentage is less emotional, but none the less, very interesting. Under common law, parentage was presumed if the parents were married at the time of conception or of birth, thus establishing legitimacy.

There was a presumption that a married couple would only be engaging in sexual activity with each other, and that the wife would not be engaging similarly with another man. The presumption wasn’t always applicable if the couple were separated, nor if there was evidence of an affair. Obviously, with the passage of time, we can look now at these presumptions and wonder how they could have been considered as evidence of parentage, but now we have hindsight and access to Family Law Sydney legal minds.

To bring the whole issue into a modern context, the introduction of the Marriage Act changed the concept of legitimacy with two major changes – that the legitimacy of a child is established from birth upon the marriage of the child’s parents, and that a child of a void marriage is to be considered as legitimate. This was such a fundamental change, not only in legal terms, but in the way that society viewed the birth of children “out of wedlock”, that the term “illegitimate child”, which was very common pre-1970, is now rarely heard.

These days, there are two ways that family law parentage enquiries are dealt with. The first is a presumption of parentage, and the second is evidence of actual parentage both covered by The Family Law Act. There are five presumptions of parentage – arising from a marriage, from cohabitation, from registration of birth, a court finding and finally from an acknowledgement of paternity. In addition, extra presumptions are used by the Child Support Register to establish parentage and identify the person responsible for child support.

In family law matters, if the question of parentage of a child arises, the courts can order certain tests to be applied to settle the matter. An order can be issued in relation to a child, the mother of the child, or any person who the court believes can assist in determining the parentage of the child. However, there are restrictions if the child is under the age of 18 years. These are complex matters and Family Lawyers Sydney should be consulted for expert advice.

Unfortunately, the nature of many custody disputes are such that the laws mentioned above are necessary to provide a framework for issues to be resolved by independent parties. Family law parentage issues would not need to be aired in court if the adults considered the needs of the children first.

Seek Advice Before Becoming Involved in Trusts to Avoid Tax

If most taxpayers were asked to give an honest opinion on the payment of taxes, it is likely they would prefer it if the payment of tax was not required. However, we live in a system where we pay taxes in exchange for the provision by governments of infrastructure, services and security, and most law abiding Australian citizens appreciate this. For the average taxpayer who does not have access to the more complex tax reduction options, the creation of trusts to avoid tax is considered unfair. Generally, people will pay their taxes willingly if they think the system is equitable.

There is no reason why careful tax planning cannot be part of a system that is equitable. However, care should be taken to ensure that tax planning does not become tax evasion, especially when legitimate vehicles exist. The difference between the two can become complex, and the advice of specialist tax lawyers Brisbane is essential to ensure that any action taken is permissible.

Generally speaking, trusts to avoid tax that have no other redeeming features will be void and the Commissioner of Taxation can cancel the benefit if it’s established that a person entered the scheme to obtain that benefit. There are several definitions of just what constitutes a tax benefit, and it’s important to understand these.

One definition is an amount not included in the assessable income of the taxpayer that would reasonably be expected to be included had not the scheme existed. Another is a deduction that may not have been allowable in other circumstances ie. if the scheme had not existed. A third is a capital loss that may not reasonably have occurred had the scheme not existed and a fourth is a foreign income tax offset that would not reasonably have been allowable had the scheme not existed.

The other important term that needs to be defined in this context is that of a “scheme”. Taxation legislation defines a scheme as an agreement, arrangement, understanding, promise or undertaking, express or implied, enforceable or not by legal proceedings; and a plan, scheme, proposal, action, course of action or course of conduct.

The concept of reasonable expectation lies at the heart of the matter. This involves making an assessment as to what would have happened if the scheme was not entered into and has to be sufficiently reliable for it to be regarded as reasonable. These kinds of decisions are best made by experts in taxation law and advice should be sought from experienced Solicitors Brisbane.

Because trusts to avoid tax are void, any tax planning scheme should be based on the use of legitimate vehicles which can be very effective in arranging tax matters to their best advantage, and still complying with the law. Expert opinion and assistance is essential for taxpayers who are concerned that they stay within the bounds of the legislation.