July 19th, 2009 at 01:24pm
Under Tax and Taxation Law
The Commissioner of Taxation does have the power to change a Private Ruling in four situations as follows:
1 Where the taxpayer gives consent to the Ruling being changed;
2 Without the taxpayer’s consent, if the Private Ruling is about an arrangement which has not yet been carried out. This means that if the Private Ruling covered an arrangement which the taxpayer repeatedly carried out over time (for example buying and selling a particular item), the Private Ruling could be changed for any of the arrangements which occurred after the date of the change;
3 Without the taxpayer’s consent where the arrangement had commenced. This is limited, however, to those circumstances where the Private Ruling was causing another taxpayer to be disadvantaged and his or her disadvantage was greater than the disadvantage that the Rulee would suffer if the Ruling were to be changed; and
4 By issuing a Public Ruling which is inconsistent with the Private Ruling. However, this could only occur if the taxpayer’s arrangement has not begun to be carried out or if it has commenced and another taxpayer would be disadvantaged to a much greater extent than the Rulee.
If the taxpayer received the Private Ruling before he or she lodged the return for the year in which the arrangement took place, and then the taxpayer did not follow that Ruling, then the taxpayer may be liable for the extra tax that he or she would have paid under the Ruling. If the taxpayer had received the Private Ruling after he or she lodged the relevant return, then the Commissioner has the power to amend the assessment to take the Private Ruling into account. This may decrease the taxation liability but may also increase that liability.
The way in which a taxpayer can have a Private Ruling reviewed is determined by whether or not an assessment in respect of an income tax return has issued which deals with the arrangement covered by the Private Ruling.
If the assessment has already issued, then the taxpayer should have the assessment reviewed. If no assessment is issued, then the taxpayer should have the Ruling reviewed.
To have an assessment reviewed, the taxpayer needs to lodge an objection. That objection must be in writing in which the taxpayer informs the Commissioner which assessment is to be reviewed and provides details of the years and the relevant tax file number. The objection must also state which matter dealt with within the assessment is disputed and why the taxpayer believes that the assessment should be amended. For most short period of return taxpayers, the objection must be lodged within two years of the date upon which the taxpayer received the original assessment. There are no fees for lodging objections.
To have a Private Ruling reviewed, the taxpayer must also need to lodge an objection. Again, the objection must be in writing. The taxpayer must provide the Authorisation number of the Private Ruling. The taxpayer must also inform the Commissioner which part of the Private Ruling is disputed and why the taxpayer believes the Ruling should be changed.
This objection to the Ruling must be lodged within 60 days of the date of service of the Private Ruling upon the taxpayer or, for short period of return taxpayers, within two years of the last day allowed for lodging the tax return for the particular year that the Private Ruling is about, whichever is the latest. Again, there are no fees for lodging objections to Private Rulings.
By Law Article
July 19th, 2009 at 10:38am
Under Family Law
The following Q&A’s have been provided to help you better understand Family Law.
Q. I recently divorced my husband who has left me with the four children and he has suggested that as we have no assets he will give me half of his superannuation. What should I do as I am unemployed and on a single mother’s supporting pension and he does not pay child support?
A. Unfortunately you are being very badly treated as your entitlements would include spousal maintenance, child support (see the child support agency) and access to at least 50% of his superannuation. You need to seek urgent legal assistance and perhaps legal aid is where you should look first.
Q. I have been divorced from my former husband for over seven years and although I am in employment he has been on the dole throughout and has a history of violence. Recently he approached me and suggested that as he was now in a stable relationship he would like to have contact with our son. What should I do?
A. In all cases involving children it always gets back to what is in the best interests of the child. Should your ex-husband have a history of violence involving both yourself and the child, custody would not be an issue and supervised contact is probably what would be allowed. This always gets back to working out a program which will be acceptable to both parties provided that the child will not suffer as a result.
Q. I am currently involved in a de-facto relationship and my partner has excluded me from the home by locking me out. What can I do as she has become personally violent towards me and we need to sell the house so we can go our separate ways?
A. In regard to the property you should ask your solicitor to write to your ex-partner indicating that you wish to have the property sold and if they do not comply then you can always approach the Equity Division of the Supreme Court for relief.
Q. Do you think it advisable for me to enter into a financial agreement with my intended defacto partner as I have all the assets and she has very little?
A. Yes. There are a number of reasons for doing this but principally you need to ensure you are fully protected given your age and if the relationship breaks down then you have a level of protection which would not otherwise be available to you.
Q. I have been involved in a same-sex relationship with another person for over 20 years and I have retained a firm of solicitors who seem reluctant to push my case as strongly as I would like. The other side is making mincemeat out of my representative who does not seem to know what to do to counter their attacks. What do I do in the circumstances?
A. If you are unhappy with the type of representation you are receiving and the service is falling well short of your expectations then you need to consider whether or not it is in your best interests to move to another lawyer. Same-sex defacto relationships and marriages which fail all require representatives who possess skills appropriate to best represent their client’s interests. If counselling, mediation and conciliation has not worked for you such that you find you are under constant attack and need to take a more forceful approach then perhaps it is time for you to consider changing lawyers to one who can better represent your interests as a 5-10% swing in entitlements from one party to another may mean that legal fees become irrelevant in this context as you will need to fully protect your interests in these circumstances.
Q. I have just broken up with my defacto partner and everything was in her name, although I did a lot of building work to improve the property and paid the mortgage instalments whilst we were together. Am I entitled to be recompensed for my contribution to the relationship?
A. Yes. Effectively where two people are in a defacto relationship and one makes all the financial contributions to it whilst the other takes the benefits even though they may own the principal asset the court will look to the nature and extent of the financial contributions you have made and the assets will split based on this after accounts have been taken.
Q. My boyfriend has a couple of children to an ex-girlfriend who has packed up, moved on and not told anyone where she has gone. Is there anything my boyfriend can do?
A. Yes. He can approach the court for orders which means that anybody who has any knowledge of those children’s whereabouts has to deliver up information so that their current location can be discovered so the court can make orders for their return.
Q. I am a grandmother – do I have any rights to see my grandchildren?
A. Yes. You fit within a particular class of important individuals which the court considers important to the development of your children and therefore you would be entitled to see them after you have approached the court for orders.
Q. What effect with the new changes in the family law system have on children?
A. All children will have a right to know both their parents and to be protected from harm.
Q. What impact will the new changes have on parents?
A. Parenting is regarded as a responsibility which should be shared equally. This may not mean equal time; it could mean substantial or significant time spent by both parents with the child.
Q. Is it true that these new family law changes mainly focus on children?
A. Yes. These changes in the law are all about putting the needs and best interests of children first.
Q. What are the responsibilities of parents in this regard?
A. Parents bear the responsibility for their children’s physical and emotional wellbeing which should be share equally between parents provided they are not subjected to abuse or violence. Co-operation between separating or separated parents is an essential part of these reforms.
Q. Do these reforms mean that children will spent equal amounts of time with each parent?
A. No. The focus is both parents will have an equal role in making decisions about important issues such as schooling and health care.
Q. How do parenting plans and parenting orders sit with each other?
A. Basically it means that both the parents and the court need to have the best interests of the child in mind at all times when making decisions affecting the child’s wellbeing.
Q. How will the courts determine how much time the child spends with each parent?
A. Courts will determine this by reference to what is in the best interests of the child and other practical considerations. Time can mean equal time or substantial or significant time with both parents which may include day to day routine time not just weekends and holidays.
Q. When will these changes which focus on cooperatively resolving disputes come into operation?
A. It is expected they will start on 1st July 2007 when parents will be required to attend family disputes resolution sessions and be expected to make a genuine effort to resolve issues and disputes before taking a parenting matter to court.
Q. How does the court system accommodate these changes?
A. In parenting cases there will be change to a case-management approach with the focus being on the early detection and dealing with of violence and abuse.
Q. What will happen where there has been a breach of parenting orders?
A. The court will have wider powers to deal with people who breach parenting orders.
Q. What will happen where parents fail to fulfil their responsibilities?
A. Where parents fail to fulfil their major parenting responsibilities the courts will be able to take these matters into account.
Q. At what stage will this disputes resolution mechanism come into play?
A. Separating parents will be required to undertake some form of disputes resolution for parenting disagreements before proceeding to court. Parents will have access to the new family relationship centres or may attend another accredited service or practitioner in this regard.
Q. Will it be compulsory for separating couples to attend a family relationship centre?
A. No, but the law will require separating parents to attempt disputes resolution before taking a parenting dispute to court.
Q. What does the court bear in mind when considering what is in the best interests of the child?
A. That the children know both their parents and to be protected from harm each being given equal weight.
Q. Are there any other considerations which are taken into account?
A. Yes. Additional consideration is given to views expressed by the child, the nature of the child’s relationship with his/her parents and other important persons such as grandparents, relatives and extended family members as well as the practical difficulties of a child having contact with a parent(s).
Q. Are children entitled to independent legal advice where a matter proceeds to court?
A. Yes. The court may order an independent lawyer be engaged to represent the best interests of the child and to inform the court of their independent view in this connection.
Q. What is a parenting plan?
A. A parenting plan is an agreement worked out between a child’s separating parents which can take any form provided it sets out the parenting arrangements for children. It must be produced in writing and dated and signed by both parents.
Q. Can a parenting plan be changed at any time?
A. Yes, as it is voluntary it needs to have the agreement of both parents. It should be borne in mind that parenting plans are not legally enforceable.
Q. Will the court have any regard to parenting plans if they are not legally enforceable?
A. When the court is making a parenting order in relation to a child they are required to consider the terms of the most recent parenting plan and to consider the extent to which both parents have complied with their obligations in relation to the child.
Q. Where a court has made a parenting order with respect to parenting arrangements can the parents change it without having to go back to court?
A. Yes provided the court order does not prohibit this.
Q. Although it is expected that family disputes resolution to new parenting cases will apply from mid-2007 when will it apply to all parenting cases?
A. The final date is expected to be mid-2008 but it will not apply in cases of family violence or child abuse.
Q. Will family disputes resolution apply in all cases?
A. No. It will only apply to parents who want to go to court over a parenting issue where it is compulsory unless they fit within the listed exceptions or where they have already agreed on parenting arrangements.
Q. How does the court know that compulsory family disputes resolution has already taken place?
A. This is because a certificate is required from an accredited family disputes resolution practitioner before the court can hear an application for a parenting order. Basically the certificate states that family disputes resolution did not work for a number of reasons.
Q. How will family violence and child abuse be dealt with under the current changes?
A. Family violence and child abuse will not be tolerated. This is the fundamental principle of the new reforms. Family violence includes actions or threats by a person against any family member or their property including witnessing such actions or threats. Fear and the apprehension of violence are addressed. A person must reasonably fear for or be apprehensive about their personal wellbeing or safety. The courts are required to act promptly in cases of violence or abuse. State and territory agencies are expected to investigate allegations of violence and abuse without delay.
Q. My de-facto partner and I recently separated and it is proposed that we split the assets 50:50. What should I do?
A. If there are no children then it is purely and simply a question of splitting the assets but it should be remembered that de-facto couples are not treated as generously as married couples. It really gets down to taking accounts and the extent of financial contribution made by each partner.
By Law Article
July 19th, 2009 at 07:24am
Under Tax and Taxation Law
This article sets out the procedures to be followed by taxpayers who wish to challenge Private Rulings for taxation assessments made by the Commissioner of Taxation.
Private Rulings are issued by the Commissioner of Taxation under the Taxation Administration Act (Cth.) 1953. A Private Ruling states the Commissioner’s opinion on the way that the tax law applies to a taxpayer’s arrangement for the particular years that are described in the application for the Private Ruling. Private Rulings are an effective way of determining whether a taxpayer’s arrangements will be successful in legitimately minimising liability to income taxation, capital gains taxation, or goods and services taxation. The taxpayer can assess in advance what the potential taxation liability may be if the arrangement were to proceed. If the Ruling is unfavourable to the taxpayer, then the taxpayer has an opportunity of adopting alternative taxation arrangements without necessarily attracting taxation liabilities.
A Private Ruling should be distinguished from an assessment made by the Commissioner of Taxation pursuant to an income tax return. An assessment of a taxpayer’s taxation liability is made by the Commissioner of Taxation after a review of the information provided by the taxpayer in the taxation return for the particular financial year together with any additional information obtained by the Australian Taxation Office pursuant to an audit or investigation of the taxpayer’s affairs pursuant to the Income Tax Assessment Act (Cth.) 1936.
In layman’s terms, a Private Ruling enables a “dry-run” without necessarily attracting a taxation liability in the form of an assessment.
A taxpayer may, however, apply for a Private Ruling either before or after the taxpayer lodges the return for the year in which the taxpayer’s arrangement took place. It is preferable to apply for the Private Ruling prior to the lodgment of the return for the year in which the arrangement is to take place in order to obtain the full benefit of the process. However, Private Ruling applications are still possible after a return is lodged, provided they are issued before the Commissioner determines an assessment based on the relevant return. A Private Ruling cannot be obtained after this time. The relevant arrangements disclosed in the return are binding on the taxpayer as and from the date of the assessment.
A Private Ruling is binding on the Commissioner of Taxation so that even if the tax law is ultimately found to apply to the arrangement in a different way to that set out in the Ruling, the taxpayer will not be liable for any more tax than that which would have been payable under the Private Ruling. However, Private Rulings are not binding on the Commissioner of Taxation if the law is changed or if the arrangement actually carried out by the taxpayer was materially different from that which was described in the application. Furthermore, the Private Ruling is only binding on the Commissioner in respect of the particular taxpayer (the Rulee) as named in the Private Ruling.
By Law Article
July 19th, 2009 at 01:24am
Under Tax and Taxation Law
Where a taxpayer is dissatisfied with the decision made on objection to the original assessment or the Private Ruling, then the taxpayer may:
- Request the Administrative Appeals Tribunal (AAT), which incorporates the Small Taxation Claims Tribunal (STCT), to review the decision; or
- Appeal to the Federal Court of Australia.
If a taxpayer does decide to seek review or to appeal, the request for review to the AAT or appeal to the Federal Court has to be lodged directly with the AAT or Federal Court respectively. The review or appeal should not be forwarded to the Australian Taxation Office.
The taxpayers’ objections and appeal rights are found in Part IV C of the Taxation Administration Act (Cth.) 1953.
Review by the AAT of the Commissioner’s decision is a less formal and generally less expensive option than a formal appeal to the Federal Court. The Federal Court is a superior court of record and usually operates with formal pleadings and pre-hearing procedures like discovery of documents. It conducts proceedings in accordance with the strict rules of evidence. The AAT, on the other hand, conducts more informal hearings with a minimum of formal documents. The AAT places emphasis upon informal conferences and mediation at which the issues in dispute are discussed and clarified in private. The STCT is less formal again than other AAT proceedings. There is an emphasis on mediation and resolving disputes without the need for a formal hearing. However, a taxpayer may only request that a decision be reviewed by the STCT if:
- The amount of tax in dispute is less than $5,000.00; or
- The disputed decision is one that refuses an extension of time within which to make an objection.
An application to the STCT must be accompanied by the prescribed fee of $61.00 for each assessment under review. This amount is not refundable. Other applications to the AAT must be accompanied by the prescribed fee of $606.00 for each decision under review. This fee will be refunded if the AAT certifies that proceedings have terminated in a manner favourable to the taxpayer whether by mediation or by formal hearing.
Whether proceeding either to the STCT or the AAT, the taxpayer’s application must be in writing and must set out the reasons for the taxpayer’s application.
Once the AAT sends to the Australian Taxation Office a copy of the taxpayer’s application to the AAT (or STCT), the Commissioner of Taxation will provide the taxpayer and the AAT with a copy of the relevant documents which the Commissioner considers are necessary for the review, together with a statement of the reasons for the Commissioner’s decision.
It is advisable for the taxpayer to also make an application under the Freedom of Information Act (Cth.) 1982 in order to access all documents relating to the relevant decision held by the Australian Taxation Office. This may well provide additional helpful documents beyond those which the Commissioner is obliged to discover to the AAT.
The AAT then calls a compulsory conference. At this conference, the issues in dispute are discussed. The conference may result in a resolution of the issues or a clarification of the issues for a hearing. The AAT also has provision for mediation of the dispute with the consent of the parties.
The AAT is independent of the Australian Taxation Office and is able to reconsider the matter in dispute and make a fresh decision, including the exercise of any discretion the Commissioner of Taxation may exercise.
One advantage of the AAT is that the taxpayer will bear his own costs. In the Federal Court, for instance, a taxpayer may well face the prospect of having to pay a proportion of the Commissioner of Taxation’s costs if the appeal is unsuccessful.
The STCT conducts its hearings in public unless the taxpayer can satisfy the tribunal that the hearing should be in private. The AAT conducts hearings in private only if the taxpayer requests it. Otherwise, the hearing would be in public.
By Law Article
July 18th, 2009 at 10:38pm
Under Family Law
When issues arise within the family unit or domestic relationships get out of hand, family law is the branch of judicial problem solving that deals with a wide range of family-related issues. Throughout the United States, it is the family courts that often handle the heaviest caseload, as many jurisdictions tackle concerns that deal with gaining custody of a child to dealing with the proper procedure of finalizing a divorce.
Within the system, family law cases extend to the wealthiest of local residents to the poorest of single-parent families. No social or economic class has been spared the family court system when any area of family law is involved. Below are some of the many different areas of regulation attached to family law:
When two people wish to get married, they have to go through family law to get the proper approval needed to continue their wedding plans. The same goes for civil unions and domestic partnerships. A civil union provides same-sex couples the rights, benefits, and responsibilities much like the parameters associated with married opposite-sex couples. Domestic partnerships recognizes relationships between two people who live together in a domestic setting that have chosen not to enter traditional marriage, common-law marriage, or a civil union.
Family law then deals with the legal issues that arise during marriage. They will step in when married couples inflict harm upon one another. They will oversee adoption processes and settle surrogacy issues. When a parent abducts his or her own child, family law will be called upon to hear out the case. Child abuse is also an important branch of the law that falls under the most pressing family-related concerns.
When the relationship between two people has soured and the termination of their union has arrived, family law will deal with the matters concerning divorce and annulments. They will see that property settlements and alimony payments are arranged. In the United States, the responsibilities of the parents are dealt with under family law, such as custody hearings, visitation rights, and child support awards.
By Law Article
July 18th, 2009 at 01:25pm
Under Tax and Taxation Law
Appeals to the Federal Court require a written application which sets out brief details of the objection decision and must be filed with the relevant Federal Court Registry.
The application must also be accompanied by the prescribed fee applicable to all applications to the Federal Court. This is currently $606.00 for individuals and $1,453.00 for corporations for each objection decision.
The taxpayer must also serve a sealed copy of the application on the Commissioner, as Respondent, at the Office of the Australian Government Solicitor in the state or territory in which the application was filed.
Within 28 days of serving a sealed copy of the application on the Commissioner, the Australian Taxation Office will provide the taxpayer with a Notice of Appearance, a copy of the documents filed with the Federal Court, and a statement of the facts, issues and contentions regarded by the Commissioner as relevant to the appeal.
The Federal Court will then call a Directions Hearing which must be called at least five weeks after the taxpayer’s application was filed.
Once the Federal Court is satisfied that the Commissioner has provided all relevant documents, appeals are then set down for hearing. The taxpayer must pay a setting down fee of $1,211.00 for individuals and $2,422.00 for corporations when a date is fixed for the hearing of the appeal. There is also a daily hearing fee of $483.00 for individuals and $969.00 for corporations.
The Federal Court is able to overturn a decision of the Commissioner of Taxation. However, the Federal Court cannot interfere with any discretion exercised by the Commissioner. It can only refer the matter back to the Commissioner for further assessment.
The Federal Court is able to award costs either against the Commissioner of Taxation if the taxpayer is successful, or against the taxpayer if the Commissioner is successful. In either case, the proportion of costs awarded will generally be between 50% and 60% of the actual costs incurred by the successful party. However, if the Federal Court were to conclude that the behaviour of either the taxpayer or the Commissioner warranted sanction because of the way in which the case had been brought or conducted, a higher proportion of costs (known as solicitor/client costs) may be awarded.
A taxpayer should seek legal advice as to the choice of whether to seek review in the AAT or appeal in the Federal Court may involve taxpayers seeking legal advice. Whilst the Federal Court is the more appropriate forum for objections which are highly technical or which involve complex propositions of taxation law, the court costs are high. Taxpayers generally retain barristers and solicitors to conduct their appeals. The AAT, on the other hand, is cheaper to commence and pursue reviews and places an emphasis upon consensual resolution of disputes. However, AAT members may be less experienced than Federal Court judges in hearing highly complex disputes which involve difficult propositions of taxation law or in managing pre-trial processes to ensure a speedy hearing.
Taxpayers do have further appeals both from the AAT or from the Federal Court.
Whether disputing Private Rulings or taxation assessments, taxpayers maximise their chance of success by utilizing the services of lawyers who are familiar with taxation law and the arguing of objections.
Finally, taxpayers should remember that the Australian Taxation Office will impose a General Interest Charge (GIC) which is currently 13.19% on all outstanding taxation assessments from the date that the assessment was made. The lodging of a review at the AAT or appeal to the Federal Court does not stop this GIC from accumulating. Taxpayers should seek legal advice as to whether to pay either the whole or a part of the disputed taxation notwithstanding commencing the review or appeal. While this will have financial consequences on the taxpayer, the payment will prevent further GIC from accruing. The cost of funding the payment will be less than the GIC. If the taxpayer is successful in the review or appeal, and the amount of the assessment has already been paid, the Commissioner of Taxation is not obliged to refund interest on the refunded taxation payments.
By Law Article
July 17th, 2009 at 09:01am
Under Divorce Law
If you are filing for a divorce in the state on Minnesota, there are a few things you should know. If you know the basics of the process before you start, you’ll be prepared and will probably find the process smoother. Here are some of the basic facts that you should know.
The initial document that needs to be filed with the Minnesota court when requesting for a divorce is called the Petition for Dissolution of Marriage. The filing spouse will have to use this document to request the court to terminate the marriage under certain specific grounds. If both parties submit the petition jointly as Co-Petitioners it eliminates the necessity for the use of summons or for service of process.
Dissolution of marriage is governed by state law and it is essential that anyone filing for a dissolution of marriage in the state of Minnesota should meet specific residency requirements.
Minnesota Property Division Factors
Minnesota is an ‘equitable distribution’ state. While most debt and property issues are typically settled between parties by a signed Marital Termination Agreement, in the event that the parties are unable to reach an agreeable settlement, the District Court will first determine which debt and property is to be considered as marital. After assigning a monetary value to this marital property and debt, the court will distribute the marital assets between the spouses in an equitable fashion. Equitable in this case does not necessarily mean the assets will be equally distributed between the parties but rather it will be allocated according to what is deemed fair by the District Court.
The court bases its decision on several factors including the length of the marriage, age, health, occupation, employability, needs, liabilities, amount and sources of income of each party, opportunity for future acquisition of capital assets and any prior marriage of a party. The court also takes into the consideration the contribution of a spouse as a homemaker or the contribution of each in any acquisition. It is presumed that both spouses contributed substantially to the acquisition of property and income while they were married.
Minnesota Child Custody Factors
When deciding child custody issues pertaining to a divorce, the children’s best interest is the primary concern of the court. The court prefers if the parents can decide on the custody issues amicably, failing which the court bases its custody decision taking into consideration several factors including the reasonable preference of the child if the child is deemed to be old enough to express a preference. Other factors include the intimacy and interaction between each parent and the child; the child’s adjustment to school, home and community and the physical and mental health of all the individuals involved.
Minnesota Child Support Factors
Factors for determining child support include the financial resources, income, earnings and assets of the parents; the standard of living the child would have enjoyed if the marriage was still intact and the educational needs of the child as well as the child’s emotional and physical condition.
By Law Article
July 16th, 2009 at 04:39pm
Under Immigration Law
Classes of Parent Visas
There are 4 subclasses of current visas that can be applied for by parents outside Australia namely subclass 103(Parent), subclass 118(Designated Parent), subclass 143(Contributory Parent) and subclass 173(Contributory Parent (Temporary)).
There are also 4 subclasses of visas that can be applied for in Australia namely subclass 804(Aged Parent), subclass 859(Designed Parent) and subclass 864(Contributory Aged Parent) and subclass 884(Contributory Aged Parent(Temporary)).
Subclasses 173 and 884 are temporary visas and the visa applicant when he or she arrives in Australia is required to lodge another application for a permanent resident visa within 2 years.
Visa Application Charges
The current visa application charges for parent visas comprise of a first instalment and a second instalment. For onshore applications, the first instalment is currently $1,935.00. For offshore applicants the first instalment is currently $1,305.00. The second instalment of the visa application charges is $1,135.00 for each applicant for a non-contributory visa and for contributory visas is $16,710.00 for temporary visa applicants and $27,850.00 for permanent visa applicants and $1,205.00 for applicants under 18 years. These charges generally are adjusted every 6 months and need to be checked before any planning or commitment is made.
Assurances of Support
The assurance of support for contributory parent visas is $10,000.00 for the main applicant and $4,000.00 for secondary applicants whereas in the non-contributory parent visa applications, the assurance of support is $3,500.00 for the main applicant and $1,500.00 for every adult secondary applicant.
Other Conditions
Other conditions that the applicants have to satisfy are set out in Schedules 1 and 2 of the Migration Regulations and advice needs to be obtained in relation to the circumstances of each separate parent.
Quotas
In the non-contributory category parent visas, in 2003/2004, the quota was 1,500 places and in subsequent years the quota is 1,000 places per year.
In the contributory parent visa category the quota for 2003/2004 was 5,500 places and in subsequent years quota is 3,500.
The Department of Immigration and Multicultural and Indigenous Affairs informs all applicants for parent visas in writing when they have been placed in a queue. Further the Department of Immigration and Multicultural and Indigenous Affairs provides a link on its website -
www.immi.gov.aumigrationfamilyparentsparents.htm
so that queued parents can calculate their approximate position in the queue.
Place of Processing of Parent Visa Applications
All parent visa applications are to be lodged with the Perth Offshore Parent Centre of the Department of Immigration and Multicultural and Indigenous Affairs by mail at Locked Bag 7, Northbridge, WA 6865 Australia or by courier at 411 Wellington Street, Perth WA 6000, Australia.
Priority of Processing of Visas
Generally applications for visas for parents of Australian citizens have a processing priority over applications for visas for parents of Australian permanent residents and eligible New Zealand citizens. Further parents who have a majority of their children living permanently in Australia have a processing priority over parents who do not. However, each case is treated on its own set of facts and the case officers can exercise a great deal of discretion.
Visa Processing Times
For the non contributory parent visas there is a queue of over 10,000 people and therefore any visa applications lodged now may take an extended period of time to process depending on your particular case. For contributory parent visas, the processing time if all documents are in order is about 11 months.
Conclusion
Thus there exists a dilemma for parents wishing to migrate to Australia do they wish to pay the higher second instalment visa application charges and assurances of support for contributory parent visas as opposed to the non-contributory parent visas. Another complicating factor is that the quality of an application can depend on how much effort applicants are willing to put into preparing or having prepared a valid application for parent visas bearing in mind the lengthy, complicated and multi-documented visa application process.
By Law Article
July 15th, 2009 at 10:39pm
Under Immigration Law
Commonly there is an expectation amongst parents of children in close knit families, particularly when a family is of humble means, that the children will grow up, gain a good education and be successful. Taking this one step further those parents of Australian citizens or Australian permanent residents expect to be able to join their children in Australia as permanent residence and eventually as Australian citizens.
Australian Migration Laws however do not allow parents of every Australian permanent resident or every foreign born Australian citizen to migrate to Australia as a permanent resident. There are a number of conditions that the parents have to fulfil or gateways that they successfully have to negotiate to migrate to Australia. Some of the more important ones are discussed below.
Balance of Family Test
The “balance of family” test is defined in Regulation 1.05 of the Australian Migration Regulations. Briefly, to pass this test a parent must have at least half of his or her children permanently residing in Australia (including eligible New Zealand citizens i.e. children with subclass 444 visas) OR they must have the greatest number of children permanently residing in Australia than in any other single overseas country. By way of an example, a parent who has 5 children and 3 of them live in country A and 2 of them live in Australia, that parent would not satisfy the balance of family test. However if the same parent has 1 child in country A, another child in country B and third child in country C and 2 children in Australia, that parent would satisfy the balance of family test. Further if the parent had 3 children in Australia and 2 in other countries then the balance of family test will be satisfied. If the parent had 4 children and 2 were permanently resident in Australia, the balance of family test would be satisfied.
A person is considered the child of a parent if the person is a child, adopted child or stepchild of the parent or of the spouse of the parent. A child can also be the child of a parent if the child is the child of a former spouse of the parent if that child was adopted by the parent before the parent became the former spouse i.e. while the parent was the spouse of the former spouse.
In assessing children for the balance of family test the following children are not to be considered the children of the parent:
- children who have been adopted by another person;
- a child who has been ordered by a Court to be removed from the exclusive custody of the parent;
- children who have been recognised by UNHCR as refugees and are in a refugee camp;
- children who are not able to be reunited in another country with their parents and who are resident in a country where they are subject of persecution and abuse of human rights;
- step children of a person if those children were born after their parent and a step parent separated;
- step children of a person if the children were over 18 years of age and their parent entered into a relationship with the step parent and relationship between the parent and the step parent has ended by death, separation or divorce.
Unless the “balance of family” test is satisfied, there is no flexibility in succeeding in an application for an Australian permanent resident visa on the basis of being a parent of an Australian citizen, permanent resident or eligible New Zealand citizen.
By Law Article
July 15th, 2009 at 04:38am
Under Immigration Law
Throughout the historic 2008 presidential campaign, Barack Obama and John McCain have disagreed and debated over issues such as the war in Iraq, the economy, and faith and values, rarely agreeing on a problem or solution. However, when it comes to the need to reform United States immigration laws, both candidates seem to be on the same wavelength and both are determined to secure U.S. borders and provide a path to citizenship for law-abiding undocumented immigrants and their families.
According to barackobama.com, the problems with immigration laws include a forty percent explosion in undocumented immigrants since 2000, broken immigration bureaucracy and unsuccessful immigration raids, which produced only 3,600 arrests in 2006.
Obama said, “The time to fix our broken immigration system is now … We need stronger enforcement on the border and at the workplace … But for reform to work, we also must respond to what pulls people to America … Where we can reunite families, we should. Where we can bring in more foreign-born workers with the skills our economy needs, we should.”
The Democratic nominee wants to secure the borders by adding needed personnel, infrastructure and technology at U.S. borders and ports. Obama and running mate Joe Biden want to improve the immigration system by keeping immigrant families together and providing business owners with the workers they need to contribute to the economy. In addition, “Obama and Biden will remove incentives to enter the country illegally by cracking down on employers who hire undocumented immigrants,” according to his website.
The Democratic ticket would also change immigration laws by requiring that undocumented immigrants pay a fine, learn English and go to the back of the line if they want to become United States citizens. Furthermore, Obama and Biden want to work with Mexico to promote economic development so that immigrants will not feel the need to enter the U.S. illegally to earn suitable wages to support their families.
McCain and running mate Sarah Palin also favor reforming immigration laws to promote a secure border, a path to citizenship and punishment for companies that hire undocumented workers.
“As you know, I and many other colleagues twice attempted to pass comprehensive immigration legislation to fix our broken borders; ensure respect for the laws of this country; recognize the important economic contribution of immigration laborers; apprehend those who came here illegally to commit crimes; and deal practically and humanely with those who came here, as my distant ancestors did, to build a better, safer life for their families, without excusing the fact they came here illegally or granting them privileges before those who have been waiting their turn outside the country,” McCain said.
To secure U.S. borders McCain will set guidelines to secure the border through physical and virtual barriers, deploy unmanned aerial vehicles in border states, and continue the utilization of the US-VISIT visitor security program.
McCain and Palin would prosecute “bad-actor” employers who hire undocumented workers by creating a database that would quickly verify a job applicant’s work eligibility status. The Republican would also reform immigration laws by creating a temporary worker program that meets the labor needs in this country by ensuring that students who are educated in America have the opportunity to work in this country upon graduation and reforming caps for the H-1B visa program to rise and fall with the demand for workers and market conditions.
And like their Democratic counterparts, the Republican ticket would change immigration laws by requiring all undocumented workers to enroll in a program to resolve their citizenship status, which will require them to pay fines, learn English, pass a citizenship course and guarantee that no one who enters this country illegally will get a green card before those applying legally.
By Law Article
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