1.You are a registered migration agent. You provided a letter of opinion to a client suggesting that the client could apply for a Class UC sub class 457 visa in Australia when the client did not hold a substantive visa and had a previous visa refused. You charged the client $1,000 plus GST for this opinion.
Subsequently, you notified the client that this was an error and you also notified your insurance company that there was a potential claim. The client seeks a refund of the professional fees paid but does not wish to pursue this matter further. Your insurance company advises you that as this was only a request for refund of fees it is not covered under your policy. You are also concerned that this client may make disparaging remarks about you and you wish to ensure that the client desists from this practice under the terms of the Deed of Settlement and Release.
You are required to prepare a Deed of Settlement and Release in plain English based on the circumstances of the case where you agree to refund the fees to the client. This Deed will subsequently be presented to your lawyer to ascertain whether you have drafted the Deed of Settlement and Release adequately.
2.A client comes to see you in relation to a refusal of a Resident Return visa. The submission prepared by the client is provided below. The client wishes to reapply for a Resident Return visa and you are required to redraft the submission below in plain English to accompany the new application for the Resident Return visa.
You should also refer to relevant policies (PAM) to support the application. The policies should be incorporated in the submission in plain English. You may assume any relevant facts as part of your submission.
What is a Deed of Settlement and Release?
1.Before immigrating to Australia, immigrants need to possess legal documents that will allow them to work and stay in the country for a given period. The Class UC sub- class 457 visa is a temporary in visa is a temporary work visa which allows skilled non-citizens to move to and work in Australia for a given period usually from one day to four years. Subclass 457 is usually used to sponsor foreign workers in Australia on a temporary basis. The visa also allows family members of the applicant to enter and work or study during their stay in Australia. The role of migration agent is to assist the immigrants who want to move to Australia obtain visas to enter and remain in Australia. Immigrants consult migration officer who helps them fill visa application forms. They also advise them of alternative ways which they can use to immigrate to Australia. Migration officers also provide all documents that the client’s needs to apply for a visa and also make lodging applications on behalf of their clients. Migration agents also advise clients on the steps they should make in a case where a visa has been refused.
In this case as I migration agent advised a client to apply for the Class UC Sub-class 457 and charged $1000 and GST for the service. Later I informed the client that the advice was wrong and therefore decided to seek a refund. The refund of fees was not covered by my insurance company. Therefore, they could compensate for the claim. The only option was to settle the issue with the client. I prepared a deed of settlement and release which have to be approved by my lawyer before settling for the agreement.
Deed of settlement and release is a formal document that contains terms and agreements of solving a dispute or disagreement. A deed of release is also used in preventing disputes between two parties. For instance, in this case, there is a potential for dispute in this in case the client does not get compensated. This would lead to many legal issues that may affect my business. A deed of release will be important in making an agreement that will help in solving the current issue. Through the deed of release, we will be able to outline terms and conditions on the repayment of the service fee. Before drafting the deed of release, it is essential to seek legal advice from a lawyer. This is because the deed of release may contain certain obligations that may bind you and your business and whether all the essential information is included in the agreement. Seeking legal advice will also provide basic knowledge on the issues that the deed of settlement can solve or not solve. It is also important to know whether the deed drafted is relevant to the case and whether it can be used for my defense in the future.
A deed of settlement should be short and confidential it can be used in the court of law to settle disagreements which remain unresolved as per the agreement. A deed of settlement should include the following information
- The parties to the settlement.
- The reason why the parties decided to enter the Deed (recitals)
- A statement on whether the settlement will involve money payments and the terms of payment and whether it will be paid in installments or at once.
- Steps that can be taken if the party is making payments defaults to pay all installments. The deed should provide a procedure that should be followed to ensure that the payee can recover the full amount of money as agreed without starting to solve the issue from the beginning.
- Parties entering into a deed need not admit their liability.
- The Deed should state whether one party will be releasing the other party from liability either in the present or in the future. Or whether the involved parties have both agreed to release each other from any claims, demands or actions in the future and what the party is releasing.
- The Deed should also clearly outline the extent to which the third parties should be released.
- If there are any court proceedings, the Deed should address the finalization of the proceedings. The Deed should notify on the willingness of the parties to terminate the court proceedings.
- Clauses barring future legal proceedings apart from those that would be aimed at enforcing the terms of the deed should also be included in the deed.
- The deed should include a confidentiality clause but only in cases where there are not court proceeding or any public involvement.
- A deed should also contain a warranty that shows that the parties made consultations for legal advice on issues relating to the terms of the settlement and the deed.
- It should give information about where notices should be sent in case the parties need to issue notices.
- It should also state the jurisdictions covering the settlement.
- A deed should also have the signatures of the involved parties.
Guidelines for Drafting a Deed of Settlement and Release
This Deed of settlement and release was made on 21 April 2017
Between The Migration agent
And The client
- On 15 April 2017, the migration agent advised the client to apply for Class UC subclass 457 visa in Australia since the client did not have a substantive visa and the previous visa had been refused.
- The Migration agent charged the client$ 1000 and also charged the goods and service tax (GST).
- The Migration agent notified the client that there was an error and informed his insurance company about a potential claim.
- The client requested the Migration agent to refund the professional fees and had no intention of taking the case further.
- The insurance company declined from compensating the claim since it was a refund request and it was not covered by The Migration agent insurance cover.
- The Migration agent was worried that the client might give disapproving information about me and therefore would with to prevent the client from disapproving me.
- The client requested for the refund of the professional fee and would not take any further steps.
- I agreed to repay the professional fund without depending on the insurance company.
- The client agreed not to alter any disapproving remarks towards me if I refunded the professional fee.
- I will refund the professional fee to the client and also any other amount of money that the client paid for the service.
- Specification of the amount payable to the client in 3.1 above.
A Professional fee of $1000 that the client paid for consultancy service.
Goods and service tax (GST) which is levied at 10% to the consumer. That amounts to $100.
- The specified amount of money will be paid to the client within five days once the client and I agree to sign the terms and conditions of the settlement.
- The specified amount of money to be refunded to the client will be paid through electronic fund transfer to the clients registered an account of the client.
- The migration agent will refund the client the agreed amount of money within seven days after signing the terms of the settlement. The amount will be paid through electronic money transfer to the client.
- If the migrant agent complies with clause 3.1 to 3.5 above the client will release the migrant agent from any liability past, present or future from all claims, demands, and case proceeding that may arise from the concern of the client.
- The migration agent releases forever the client from any liability past, present or future from all claims, demands, and case proceeding that may arise from the concern of the Migration agent.
- The migration agent and the client agreed that each person would pay for his own legal costs which may arise.
3.9 The migration and the client agreed that the provisions provide herein will be kept confidential. Any disclosure of the terms of the settlement either for legal or financial provision should be done with the informed consent of the other party.
- Neither the migration nor the client will talk negatively about the other.
- The terms of a settlement become effective once the two parties involved are provided with a copy of the agreement, and each of them signs the agreement.
- The agreement was made in Australia, and therefore it’s governed by this law. The two parties mutually agreed to abide by the law of Australia.
2. In Australia, only Australian citizens have the right to enter the country automatically. Permanent residents have the right to stay in the country indefinitely. Once they decide to travel to another country, they are required to apply for a Resident return visa which gives them the residents to return. Persons holding permanent visa are allowed to travel to Australia for unlimited times during the five years which the visa remains effective.
- The applicant must be a permanent resident in Australia.
- Should have been a permanent resident in Australia and the most recent visa have been canceled.
- A former citizen of Australia who wants to regain his or her citizenship.
The following are the requirement when applying for a residential return visa depending on the length of time that the visa remains viable.
- Visa taking five years to expire the applicant must have spent at least two years in Australia as a permanent resident or an Australian citizen.
- For an applicant residing in Australia, the applicant strong evidence of economic and social ties which benefit Australia. If the applicant has been residing in another country for over five consecutive years, he or she should provide last permanent visa from the time his or her Australian citizenship expired and must give a substantial reason why he or she was absent from Australia.
- One year for applicants in another country. They are required to have possessed a permanent visa, or they were permanent residents or a citizen. They should also provide evidence of important ties that benefit Australia that is, personal, cultural, employment and business ties. They should also provide a substantial reason for their absence from Australia.
- For a three months visa the applicant must have lawfully spent at least a day in Australia in the last five years, have spent less than two years in Australia within the last five years or they are permanent residents or Australian citizens.
The following is a redraft of submission of client and whose Resident Return visa had been refused. The redrafted submission includes relevant policies (PAM) that guide the eligibility of a person to acquire Resident return visa. In Australia non-citizen permanent resident who wants to travel out of the country temporarily required to apply for a Resident Return Visa which is usually done once in every five years after the expiry of their resident visas.
Name: Ms. Amy CHU Date of Birth: 25th November 1952 Date of Birth: 25th November 1952
Place of Birth: Singapore Nationality: Singaporean
Marital Status: Separated Expiry Date: 08/05/2017
Passport No.: 71234567
Address: Centre Road, Bentleigh
Ms. Amy Chu is an Australian Permanent Resident. She was granted an Employer Nomination visa on 30 July 1992 with her family. She arrived in Australia in March 1990 her visa had been sponsored by a restaurant which was later sold after which her husband Mr. Lee moved back to Singapore and started his own business there. Ms .Amy has spent her last five years in Australia and Singapore. Having spent more than 150 days in Australia in the last five years. A person may acquire a Subclass 157 Resident Return visa if she has;
- Been in Australia and lawfully spent a day in Australia within a minimum of five years.
- Spent at most two years in Australia in the past five years.
- A permanent resident status and has spent the five years in Australia.
- A satisfactory reason for leaving Australia
If the applicant has been out of Australia for more than three continuous months, she must provide a substantial reason why she has been absent for that time. There the applicant has not been away from Australia for more than five years which should not prevent her from getting the resident return visa.
In the last five years, Amy has spent most of her time in Singapore with her husband, but her visa was not canceled by the time she was leaving for Singapore, and she is still an Australian permanent resident since. Therefore, she qualifies to get a resident return visa on this basis. She has been traveling from time to time when visiting her children. The reason why she has been away from Australia being substantial because her husband had relocated to Singapore where he established business. Thus after the restaurant that had sponsored Amy was closed. Therefore she had no job in Australia.
Redrafted Submission for Resident Return Visa Application
The Applicant has strong family ties in Australia, and she has two sons who have grown up in Australia and have gained Australian citizenship. Her Daughter Ms. Elisa Lee (DB: 14/02/1981) lives and works in Sydney while her son Peter Lee (DOB: 25/08/1977) lives and works in Victoria, Australia. Her two brothers are Australian citizens and live with their families there. Much of her extended family also lives in Australia. The applicant does not have significant family ties in another. She is currently in a divorce process with her husband Mr. Lee who lives in Singapore. She believes that Australia is her home. Parents with Australian origin and permanent residents can migrate to Australia and gain residency status if they have children who have gained Australian citizenship. Having other family members in Australia who are citizens or permanent residents may allow an individual to access residency visas in Australia. For instance, if one have aged dependent relatives, remaining relatives among others.
For one to qualify for Subclass 157 Resident Return Visa, the applicant should prove that she holds substantial and beneficial personal ties to Australia. Applicants must show evidence that they are and have been an active member of the Australian community and economy. If the applicant has been leaving in another country with an Australian partner, they are also considered. Possession of personal assets in Australia is also put into account since they show a substantial personal relationship that benefits Australia. The applicant has a significant financial tie to Australia, and she has assets in Australia AUD $55,000 in a National Australia Bank Account. She also wants to transfer all her assets in both her name and her husband’s name from Singapore once their divorce is finalized and also plans to purchase a house in Victoria where she plans to stay. This show that the applicant has a genuine commitment to residing in Australia and will help in promoting the well-being of Australia.
Ms. Amy also holds a substantial business tie with Australia she and her brother Ken Chu have become business partners. They both hold 50% equity in the Australian company, Singapore Food Pty Ltd and operates as a specialty Chinese gourmet takeaway store in Huntingdale, Victoria. The applicant wants to participate in the daily activities of the business. She will be performing general responsibilities of a director such as attending director’s meetings, making decisions regarding the business including expansion of the business operations. She also plans to be involved in the store management to help her brother who is her business partner in the business. Her brother purchased the business as a sole proprietor of the business in March 2005 while Amy was in Singapore and he was performing all the management duties in the business. After Amy had joined him, they got into a position where they can establish a company with equal equity will be responsible for the financial and administrative management of the business, which will entail all duties such as banking, keeping daily records, wages among others. Before Amu joined the business, Ken was working for long hours at the shop while also trying to manage the business. The applicant and his brother decided to jointly own the business, and this made it easy to manage the business and also helped reduce the workload that Ken had. Any plays an important role in the development of Singapore Food Ply Ltd. The growth of the company will not only benefit Amy and her brother but will provide employment opportunities to the citizens of Australia. Thus Amy has a strong business tie to Australia. Thus she is eligible to access the Residential return visa.
The requirements for a substantial benefit ties to Australia states that the applicant proves that the business tie benefits Australia. The Applicant must have a substantial ownership interest in the business holding senior management position in the. The business should be operational with a significant income and has a good record keeping system. The business should also have an objective to make profits and should show the business activity claimed. The Business is fully operational in Victoria. They have plans to expand the business further and run a chain of similar takeaway food outlets in future. The Singapore Foods Pty Ltd has an annual income of approximately $ 150, 000.00 and has two employees. The business can be considered to have direct benefits to Australia as it provides employment.
The information given by the applicant shows enough evidence that the applicant is eligible to acquire the residential return visa. The applicant meets most of the requirements provide by the PAM policies. First, she has sent more than ten years in Australia as a permanent resident. She also has substantial business and personal relationships Australia which are beneficial. She also has substantial family ties in Australia since her children are Australian citizens. Her brothers also live in Australia with their families. Amy does not have solid family ties in another country since most of her extended family member also live in Australia. The applicant also possesses her permanent visa which she had before she left Australia for Singapore.
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