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19 Aug, 2014

NSW says no to rich Chinese restaurateurs

Immigrants moving to Sydney under a popular business visa are not able to qualify by starting a restaurant, grocery store or news agency.

The Business Innovation and Investment program, otherwise known as visa class 188 and 888, allows people to migrate to Australia if they agree to run a business or invest money in Australia.

The business innovation stream of the visa is one of three that is popular with mainland Chinese migrants. The controversial significant investor visa is for people willing to invest $5 million into investments such as bonds, man-aged funds or private companies.

Under the business innovation stream, people can move to Sydney with their families if they run a business with annual revenue of at least $1 million and assets of at least $1.3 million.

The visa is dominated by state governments. Since 2011 the NSW government has excluded certain businesses. It will not sponsor visa applications for migrants wanting to run restaurants, cafes, supermarkets, takeaway food stores, news agencies, retail businesses in fruits, vegetables, clothing, footwear, personal accessories, housewares, textiles, or electrical or electronic goods in metropolitan areas.

The exclusions do not apply to regional NSW.

The NSW Department of Trade and Investment said the changes were to keep up with the state’s changing economic priorities.

“The NSW government is focused on attracting business migrants in higher value sectors and to be regional areas”, a spokesman said. “Migrants in higher-value sectors play a critical role in helping to improve the state’s economy and in providing the vital skills required to support economic growth in metropolitan and regional areas of the state”.

Migration agent John Findley said the NSW government sent a circular in 2011 to all migration agents saying “there is already a large number of business migrant operating in Sydney in these sectors”.

He said while the government has not stated what kind of business migrants it wants, he is aware it is looking for “high tech and medical science-type businesses”. “There is a list of undesirables. They happen to be businesses that are popular with Chinese and Indian migrants but are also very popular with Australians,” Mr Findley said.

Grocery stores, restaurants and newsagencies will not qualify for Business Innovation visas if the destination is Sydney.

“The government believes they can influence the development and dispersion of businesses by migration regulation. This has been proven to be a pie in the sky in Canada and Australia.” Sydney businessman Sunny Cheng believes this is a problem for NSW. “NSW wants to be top state but if we stop businesses coming to NSW, how can this happen?” he said. “The government told migration agents they want $5 million investments. How can NSW have big businesses if it does not have small ones?” Mr cheng said he has friends from china who have money to run small businesses in Sydney and have been turned away. They have instead settled in South Australia and Victoria under the same business visa class.

There are no specific business exclusions in the other states. In Queensland, preference is given to businesses in agribusiness, tourism infrastructure, resources or infrastructure sectors particularly in regional areas.

13 Feb, 2014

#188(C) Significant Investor (Provisional) visa

The Significant Investor Visa is a new class of business or investment to migrate to Australia. There is no age limit and applicants are not required to meet the Department of Immigration and Citizenship points test. High net worth individuals must invest at least AUD 5 million into one or more ‘complying investments’ of benefit to Victoria or a state/territory of choice in order to qualify for a positive grant of a state nomination as part of the Significant Investor Stream of the Business Innovation and Investment (provisional) visa. .

1. Complying Investments

‘Complying investments’ includes a wide range of investment products. They can include the Commonwealth or Victorian government bonds Alternatively visa applicants can make direct company investments subject to a number of requirements, which, among others, provide that the companies are registered with ASIC, not listed on the stock exchange, and the visa applicant has acquired an ownership interest totalling AUD 5 million in one or many of these eligible companies. Visa applicants are also able to invest through certain managed funds, defined as managed investment scheme in consistency with S9 of the Corporations Act 2001. The current legislative instrument includes, among others, infrastructure projects or real property in Australia, Australian agricultural businesses, bonds, equities, hybrids or other corporate debt in companies or trusts listed or expected to be listed within 12 months on an Australian stock exchange.

2. Assessment of valid making of and management of complying investments

The making of investments into one or more streams of complying investments is carefully scrutinized and taken into consideration the following factors:

(a) The complying investments must be made by the primary applicant and their spouse/de facto partner, a company wholly owned by them, or a trust structure where the primary applicant or the primary applicant and their spouse/de facto is the trustee and beneficiaries

(b) The funds used to make the complying investments must be unencumbered

(c) The funds were lawfully acquired with supporting documentation

(d) The complying investments can be switched in a period of 30 calendar days; however all gains and losses must be reinvested into new complying investments for the visa applicants to maintain compliance with condition 8557. The subsequent value of the complying investments is irrelevant.

(e) The visa applicants must hold the complying investments for at least 4 years from the date of grant of the visa.

(f) The visa applicants are not required to maintain direct management over the complying investments.

(g) The visa applicants are given 70 calendar days from the date of the standard letter inviting them to make a complying investment.

3. Qualifications to apply for permanent residency
Holders of the Significant Investor Stream of the Business Innovation and Investment (provisional) visa can apply for permanent residency in 4 years provided they spend no less than 160 days in Australia over this time and maintain their AUD 5 million investment for the same period. It is the Victorian Government’s expectation that the applicant will establish a residence in Australia.

04 Apr, 2013

The Aviary/Sanctuary Townhomes, Thornbury

We have been advising Prime M Property, an experienced Indonesian property developer, in their very first residential development project in Australia. The Aviary/Sanctuary is a 62-townhouse development in the culturally vibrant suburb of Thornbury. Spread into 9 blocks of 2 and 3 bedroom units, the development boasts a village style living woven into nature’s haven, with extensive landscaped spaces and private courtyards and terraces, and light drenched, spacious and modern interiors and finishes.

Our Partner Xin Katsu has been actively assisting the developer with all its legal requirements from the sale documentation to construction negotiations.

Construction for Stage 1 has just commenced. For more information on the development, visit:

29 Jan, 2013

Inc apartment, Brunswick

Currently under construction, INC is a 4 level apartment project comprising of 37 one and two bedroom apartments developed by K7 Property Group Pty Ltd – a boutique residential developer active in inner Melbourne. The development is located in the vibrant and culturally rich suburb of Brunswick West, which is only 5.5 KM from the Melbourne city center and is well serviced by public transport. Construction is expected to be completed by the end of 2013. This development was tastefully designed by Award winning CHT Architect with attractive communal central landscape garden.

Our Partner Ms Xin Katsu has been actively assisting the developer with all its legal requirements from the initial land purchase including planning, sale documentation and construction agreement.

Team APL completed Melbourne Run 2012

Our Asia Pacific Lawyers (APL) team recently participated in the The Age Run Melbourne 2012 fun run in the 10km event staged at Federation Square in July. This worthwhile event is staged yearly by the city of Melbourne and attended by runners (and walkers!) of all fitness levels and ages. The funds raised go to various Australian charities and as it stands, this event is the most successful running event in Australia per head for raising funds.

This year, 2012 also marked the 10th anniversary of our law firm APL which was established in 2002. As a challenge for the APL team, 5 of our brave staff trained for the event with weekly runs throughout winter. This was a particularly commendable exercise as some team members had never run before! Come hail or shine, the weekly training run has been a bonding experience and team building exercise and has been enthusiastically attended by the APL team. It has been a great way to celebrate 10 years of solid and quality work! Go TEAM!
Click to check our photo gallery

24 May, 2011

Sovereign Point Court, Doncaster

Asia Pacific Lawyers have been advising the developer on all legal matters relating to its development of an apartment tower situated at 3 Sovereign Point Court, Doncaster. This is a high-rise development once complete will comprise of 85 luxury apartments perched on the highest point in Doncaster Hill. The site is located at the prime location of Doncaster, directly across Williamsons Road from Westfield Shopping Centre. The development will feature a tastefully designed façade with style and quality. It is expected to be completed in 2013.

A Pearl in Preston

Currently being developed by the AXF Group, this lifestyle development is an inner city suburb coloured with rich social history and a diverse culture. The development is strategically situated at 390 Murray Road, Preston some 9km from the Melbourne City, with extensive network of roads and established public transport. Asia Pacific Lawyers was involved in advising the AXF Group on initial acquisition of the land, including reviewing the contract of sale, and rendering advice on planning permit conditions. It also advised the AXF Group on legal requirements in respect of sales campaign launch.

A Landmark Development in Box Hill

Asia Pacific lawyers have recently advised our client on the terms of the joint venture with the owner of the vacant land situated at the heart of the Box Hill Business Activity Centre, in respect of the development of the said land. The joint venture partners have proposed to develop a 38-storey apartments and commercial tower on this landmark site.

8 April, 2010

Are you ready for the Australian Consumer Law (ACL) expected to commence 1 July 2010?

Get ready for the ACL’s impact on property transactions, which will void a term in a consumer contract if (1) the term is in a standard form contract and (2) the term is unfair.  Business-to-consumer (not business-to-business) agreements will be caught including multi-lot contracts of sales and shopping centre leases.

Some example of unfair terms may include:
  1. a term that permits a party to vary a contract unilateral (i.e. vendor’s right to extend date for completion of construction)
  2. a term that permits a party to vary the upfront price without the right of another party to terminate (i.e. landlord’s right in Agreement for Lease to determine costs for variation)
  3. a term permitting a party to unilaterally vary the characteristics of goods or services to be supplied (i.e. vendor’s right to unilaterally substitute materials or chattels – but if requirement to substitute for similar quality materials, likely not be a unfair term)
  4. a term that permits a party to terminate a contract (i.e. vendor’s or landlord’s right to terminate if planning approval not obtained); and
  5. a term that permits a party to unilaterally determine whether a contract has been breached or to interpret the contract (or have that effect).
If the term is unfair and void, the parties cannot enforce it BUT the contract binds both parties IF it is capable of operating without the unfair term.

There is a presumption that a contract is standard form unless a party proves otherwise.  Relevant considerations for proof include (1) if contract was prepared by one party before any discussions commenced, (2) one party had most of the bargaining power, (3) the contract was take-it-or-leave-it (4) was the other party given an opportunity to negotiate and (5) did the contract terms take in specific characteristics of the other party

In determining whether a term is unfair, three matters must be satisfied: (1) would the term lead to a significant imbalance in party’s rights (3) is the term not reasonably necessary to protect a party’s legitimate interests and (3) would the term cause detriment to the other party.


AT this stage, the ACL will commence to operate on contracts entered into, renewed or varied from 1 July 2010.

31 March, 2010

Highton Views, Maribyrnong

Asia Pacific Lawyers has been recently involved in this large 34 apartment development just behind Highpoint shopping centre.  We have negotiated the Section 173 Agreement with council’s lawyers and advised on site remedial works and the proposed plan of subdivision.  We are currently preparing the master contract of sale.

23 February, 2010

AXF Group sells 116 Doncaster apartment complex

Asia Pacific Lawyers recently completed for the AXF Group the Contract of Sale documentation for the 116 apartment “The Berkeley” development in Doncaster just behind Westfield Doncaster shoppingtown.  This involved advising the AXF Group on the initial purchase of the land, planning issues relating to the planning permit application and subdivision of the land into 116 apartments and associated car parks and common areas.

Designed by Carabott Holt architects, The Berkeley is a contemporary residential apartment tower within the heart of Doncaster

2 February, 2010

The Dorking, Box Hill

Another contemporary 10 town house development currently selling is “The Dorking”, townhouses priced from $569,900 to $749,900.  Asia Pacific Lawyers negotiated the land purchase and prepared individual contracts of sale.

1 November 2009

The Kinnears Site just behind Victoria University, Footscray

This superb 3 ha site is currently being developed by the AXF Group.  It is a massive undertaking and will take some years to develop in stages.  Asia Pacific Lawyers has been involved in this project from the ground up – assisting AXF with the land purchase and now involved in the preliminary planning work.

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