投资移民相关疑难问题
在递交投资移民签证时候发现股份比例在ASIC 搞错了，不足30% 不能满足892申请的最低条件。有挽回的希望么？
- AAT能不能go behind 的certificate 做一个独立的判断？
Federal Circuit Court in Rahbarinejad v MIBP [2018] FCCA 2293 at [27], where the Court, whilst discussing a different aspect of cl.892.211, stated that the Tribunal’s duty is to conduct an inquisitorial investigation into the applicant’s claims and is “required to investigate the totality of the factual scenario [presenting] itself to the tribunal.”
- backdate 的ASIC 股份注册信息能否被移民局接受？
This last request was never actioned by the accountant, who lodged the documents implementing the second structure (which is reflected in the ASIC records). In September 2015 (approximately three months prior to the visa application being lodged), it was realised that the third structure had not been implemented and immediate action was undertaken to rectify this situation by lodging the ASIC documents, which were registered on 18 September 2015. The Tribunal is also concerned about the readiness with which applicants are prepared to accuse their accountant or other professional adviser as the basis for their failure to ensure that regulatory requirements are met. In many cases, it would seem that this explanation represents a convenient excuse for what has been a deficiency in the preparation of an application by the applicant and/or their migration agent. Such accusations carry serious reputational and possibly legal consequences for these professionals and should not be made lightly. In this case, the accountant has admitted to the oversight, indicating that the submission is not without foundation, leading the Tribunal to accept it in this matter. Consequently, these comments are not to be seen as criticism of the applicant or her authorised representative in this case but, rather, a critique of submissions observed to have been made in similar cases. In light of the foregoing, the Tribunal accepts the version of events that the applicant has submitted. The Tribunal accepts that the applicant held a 50% shareholding in Triten Group as of 13 April 2012.
- 客户回答AAT的问题如果出现某些地方不一致是否是致命伤？
The Tribunal accepts that the inconsistencies are reflective of the time that has elapsed since the events in question (over seven years) rather than any dishonesty on the part of any witness. Indeed, it would be more remarkable should the evidence received from all three witnesses been completely consistent given this passage of time. Consequently, the Tribunal does not place any weight on these inconsistencies to disregard the oral evidence received and has assessed this evidence in light of submissions received since the hearing as well as the other evidence received in respect of this matter.
学生签证转换投资移民需要的注意事项
结合我们过去做过845签证的经验，志杰移民估计学生签证持有人要想转换188签证很可能会遇到面试环节。 以下就是我们预计可能在面试中碰到的问题。
- what is your role in the business?
- where did you get the fund for starting your business ?
- How long have you been in running this business ?
- have you run any other business before?
- what do you think is the most difficult part of this business?
- What is your future plan ?
另外学生签证转商业移民也比较难取得州政府支持，WA 和 QLD州政府明确表示一般不支持学生签证申请商业移民。其他州的态度不明朗，基本表示每个case 都会根据其merits 来审理。
投资移民中的日常管理要求
188a和132签证都有日常管理要求。这个管理要求很多人误解为居住要求，比如在澳洲2年内至少住1年。
实际上这个是不同的要求。
是否申请人maintained direct and continuous involvement in management of the main business or business from day to day and in the making of decisions affecting the overall direction and performance of the business during the two years immediately prior to the date of application.(reg1.11 b)
这句话是正确的解读是：
申请人 have maintained, during the relevant period, direct and continuous involvement (a) in management of the business from day to day, (b）in making decision affecting the overall direction and performance of the main business.
如何理解 direct and continuous involvement?
字面意义：
direct : without intervening agency, immediate, personal
continuous: uninterrupted in time, without cessation.
这个direct and continuous involvement隐含的意思是
an unmediated, personal and uninterrupted involvement. 如果有长时间的不在澳洲，就无法满足这个要求。
具体来说包括
- decision-making.
- responsiblity for employees
- responsiblity for expenditure and others
如何理解main business？
定义是 business with ownership interest 10% at least (stamped and registered). reg 1.11(1)(a)(c)
Sun & Anor v Minister for Immigration & Anor [2015] FCCA 1266 (18 May 2015)
在以上的案例中，一个申请人离开澳大利亚只有不到半年，移民局还是认为他不满足日常管理的要求，没有发给他签证。MRT也做出了同样的决定。
The Tribunal accepted that the Applicant maintained a level of involvement in the business while she was in China and that the Applicant discussed with her husband aspects of the business through telephone calls and email correspondence. However, the Tribunal was not satisfied that this amounted to direct and continuous involvement in the management of the business from day-to-day (para 17). In particular, it found that the business was managed directly and continuously by the Applicant’s husband for the three month period in 2011 when the Applicant was in China.
Judge Simpson 的看法
In my opinion, on a plain reading of reg.1.11(1)(b) it cannot be said that the Applicant, whilst she was overseas, maintained a direct and continuous involvement in the management of the business from day-to-day, including making decisions, affected the overall direction and performance of the business. Whilst the Applicant may have attempted to continue such an involvement it is practically impossible for her to “directly and continuously” be involved in the management of the business from day-to-day. To suggest otherwise does not accord with common sense. Day-to-day management requires continuity and regular activity by the Applicant. It was not present in this case.
They say that, given the nature of the business and that it required hands-on management, the Tribunal’s conclusion was reasonable, logical and open on the material before it. The Respondent submits that the Court should reject this ground.
以后所有想通过海外管理澳洲普通业务公司的方案基本无法实施，但是进出口公司我认为还是可以考虑given the nature of business。
以上这个判例和现行的规则是不大一致的，因为根据decision of Re Lau & MIMIA [5]的精神 where the AAT noted:
While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business … the use of the term day-to-day management does not require that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible
PAM3 [6] does state examples of how the requirement in r.1.11(1)(b) can be met. It states that, to meet the requirement for direct and continuous involvement in management the applicant must demonstrate that they have been actively managing and operating the business, which requires that the business be ongoing and for the applicant to consistently spend a significant portion of their time managing the business on an ongoing basis. Management involves planning, organising, directing and controlling the resources of the business. PAM3 provides further details as to what is meant by the terms “planning”, “organising”, “directing” and “controlling” and also provides various examples of the types of decisions that may affect the overall direction and performance of the business.[7]
志杰移民认为如果想要保险还是要对日常管理这个要素，严格要求就像Sun & Anor v Minister for Immigration & Anor [2015] FCCA 1266 (18 May 2015）这个判例中要求的一样。
turnover 如何区分agents turnover和 merchant turnover？
the key difference between merchant and agent is whether at some stage business takes legal title to the goods.
to have legal title, the business must
- acquire them for payment
- take possession
- have right to consume
证据需要 contrat, invoice, sales receipts, consignment notice, insurance record.
如果 no evidence that the applicant’s business has take delivery (很多出口公司是这样），货物 而仅仅在2个公司之间传递。
或者只给某一公司提供货物(有被拒绝签定合同的情况发生除外，基本上一旦有这种情况，公司就不是另一个公司的agent），这样做出来的turnover都不满足投资移民关于turnover的要求。
州政府负责审核的项目
1. sufficient additional assets,
Officers should without further enquiry accept that, by sponsoring/nominating the applicant, the sponsoring/nominating State/Territory is satisfied that the applicant has sufficient additional assets for settlement. 132.233, 188.227
除了各个签证类别规定的最低资金类别意外，如果得到州政府的邀请，就意味着申请人自动满足有额外资金在澳洲定居的要求。
2.Officers should without further enquiry accept the State/Territory government’s assessment that exceptional economic benefit will result from the applicant’s business activity.132.222: 188.221(2).