Navigating the complexities of legal disputes involving MALICIOUS PROSECUTION, UNLAWFUL ARREST, and FALSE IMPRISONMENT requires expertise, experience, and a deep understanding of the law.
Our team is adept at navigating the intricacies of the administrative law aspects of the criminal justice system in Australia. We specialise in representing clients who have been wronged by law enforcement or other authorities. Our dedicated lawyers are committed to providing strategic and personalised legal advice to ensure that your rights are protected, and justice is served – the way it should be.
MALICIOUS PROSECUTION occurs when legal action is initiated against an individual without reasonable grounds and with a malicious intent, resulting in harm to the person’s reputation, livelihood, or freedom.
Malicious prosecution can sometimes involve charges related to actual bodily harm, which further complicates the legal process. In such cases, it is crucial to demonstrate that the defendant restrained the alleged victim against their will, which can involve physical restraint or threats.
This type of abuse of the legal process can have devastating consequences, not just in terms of financial loss but also emotional distress and damage to one’s reputation.
MALICIOUS PROSECUTION occurs when legal action is initiated against an individual without reasonable grounds and with a malicious intent, resulting in harm to the person’s reputation, livelihood, or freedom.
Malicious prosecution can sometimes involve charges related to actual bodily harm, which further complicates the legal process. In such cases, it is crucial to demonstrate that the defendant restrained the alleged victim against their will, which can involve physical restraint or threats.
This type of abuse of the legal process can have devastating consequences, not just in terms of financial loss but also emotional distress and damage to one’s reputation.
RACIAL PROFILING is a form of discrimination that occurs when law enforcement officials (such as Police Officers) target individuals for suspicion of crime based on their race, ethnicity, or nationality.
If you have been racially profiled, or if you have experienced police misconduct in any other form, you may be entitled to compensation – or other remedies. It is important to discuss your circumstances with a legal professional who is well-versed in malicious prosecution, to ensure that you obtain the justice you deserve.
At Sambi Legal, we are committed to fighting against racial profiling and other forms of police misconduct. Our lawyers have extensive experience in handling cases involving wrongful prosecution, unlawful arrest, and police profiling. We understand the challenges faced by victims of racial profiling and are dedicated to holding those responsible accountable; while ensuring that you are well-positioned to move on, no longer burdened by the weight of your experience.
Put simply, COMPENSATION can be explained as the money you are entitled to when you have been wronged, usually from the person or party who has wronged you.
Victims of unlawful arrest, false imprisonment, and malicious prosecution may be entitled to compensation for the harm they have suffered.
Being wrongfully charged with a criminal offence can lead to significant personal and professional harm, making it essential to seek compensation for the damages suffered. This compensation can cover various damages, including loss of income, emotional distress, and damage to reputation.
Ideally, anybody seeking compensation for malicious prosecution, false imprisonment, and/or unlawful arrests should find a lawyer that they can trust will thoroughly evaluate the circumstances in full; to determine the extent of your damages and pursue the maximum compensation available, under the law.
At Sambi Legal, our approach is client-focused, ensuring that your case is handled with the utmost care and professionalism. We are here to provide the legal support you need to navigate the complexities of the justice system and secure the outcome you deserve.
Police Officers and law enforcement as a whole, have a duty to uphold the law – but sometimes, they overstep. When this overstepping of boundaries occurs, it can result in serious violations of YOUR RIGHTS.
In cases of police misconduct, it is crucial to establish that the defendant acted with intent and malice, which can significantly impact the outcome of the case.
If you believe you have been a victim of police misconduct, it is essential to seek legal advice as soon as possible. At Sambi Legal, you are entitled to a free Initial Consult with one of our experienced lawyers – so you know what to expect, before you pay. Contact us today to arrange a discussion, and move on from your suffering with support you can trust.
Our office is connected with a variety of Personal Injury and Criminal Law firms who we often work alongside in the interests of simplifying our client’s legal journeys; and ensuring they receive top-quality representation and advice no matter what. By working with Sambi Legal and one of our partnered firms, you can be confident that both of your legal teams have a comprehensive understanding of your matter; and you can avoid the exhaustion of repeating your stories endlessly, to various professionals.
When you’re faced with a situation involving police misconduct, or MALICIOUS PROSECUTION, it can sometimes feel as if you are pushing a boulder up a mountain. Being overwhelmed by your experience is normal, and not knowing where you stand can compound those feelings quickly and intensely.
Below, you will find a list of FREQUENTLY ASKED QUESTIONS that our team at Sambi Legal has prepared based on our experiences with clients seeking assistance in the area of Malicious Prosecution.
Contact us today to arrange a free Initial Consultation with one of our lawyers experienced in Malicious Prosecution – and see how we can help you move forward with your life.
Yes, you can sue for wrongful arrest in Australia.
If you have been arrested without lawful justification, you may be entitled to seek compensation for the harm you have suffered. This can include damages for false imprisonment, emotional distress, loss of income, and damage to your reputation. Decisions made by the local court can significantly impact the outcome of claims for wrongful arrest, particularly in cases where evidence is lacking
The best way to know if an arrest was carried out unlawfully, is to contact a legal professional for their opinion.
An arrest may be deemed unlawful if it is carried out without lawful authority, such as a warrant, or if the arresting officer does not have reasonable grounds to believe that the individual has committed an offence.
Additionally, if the arresting officer uses excessive force or violates the individual’s rights during the arrest, it may also be considered unlawful.
Australian Citizens have the right to be treated fairly and with respect by police officers.
This includes the right to be informed of the reason for an arrest, the right to remain silent, and the right to legal representation. If a police officer violates these rights, you may have grounds to file a complaint or take legal action against them.
Yes, you can sue the Police in Australia, if you believe they have acted unlawfully and/or violated your rights – but it can get complicated.
Police acting unlawfully and/or violating your rights may include cases of false imprisonment, unlawful arrest, racial profiling, or malicious prosecution.
If you do sue the Police, the Trial Judge will assess the evidence and legal arguments presented to determine whether the police acted unlawfully. Successful legal action against the police can result in compensation for the damages you have suffered.
Our lawyers at Sambi Legal are experienced in handling cases against law enforcement and can guide you through the process of seeking justice.
False imprisonment occurs when an individual is unlawfully detained or confined against their will without legal justification.
False imprisonment can occur in a variety of ways, such as being detained by the police without proper authority or being held by another individual or entity without consent. False imprisonment is a very serious offence, with significant legal consequences for those found guilty. It is a serious violation of personal freedom, and victims may be entitled to compensation – therefore it is very important to seek the advice of a legal
We understand the emotional and financial toll that these situations can take, and we are committed to standing by your side every step of the way. Our expertise in handling cases of police misconduct, wrongful arrest, and malicious prosecution has earned us a reputation for excellence in the legal community. We are dedicated to providing our clients with the highest level of legal representation and support, ensuring that your case is handled with care, precision, and a focus on achieving the best possible outcome.
If you or a loved one has been a victim of malicious prosecution, false imprisonment, or any other form of police misconduct, don’t hesitate to contact our team at Sambi Legal to discuss your matter and explore your legal options in a free Initial Consult.
Please note that contacting our office will not establish a lawyer-client relationship.
Any information you provide when you contact us will be treated as confidential, but it does not create an attorney-client relationship and should not be considered legal advice unless you choose to engage our ongoing services at the end of your Initial Consult..
If you are unhappy with a Decision you’ve received from the National Disability Insurance Scheme (‘NDIS’), you may be considering engaging in an NDIS APPEAL. It’s important to know that if you do decide to proceed with an NDIS Appeal, you may need to prepare for a difficult journey. With so much going on, it can be easy to get lost in your matter – especially, if you aren’t supported by the right legal team for you.
To ease some of these concerns, Sambi Legal’s experienced NDIS lawyers have prepared the following insights to highlight and clarify the KEY ELEMENTS OF NDIS APPEALS.
EVIDENCE plays a crucial role in NDIS appeals. It is important to gather comprehensive and relevant evidence to support your case. This may include medical reports, assessments, and other documentation that demonstrates your need for the requested supports or services.
A good legal team will help you identify and gather the necessary evidence, ensuring that your case is well-supported.
TIMELINESS is crucial in NDIS appeals. There are strict deadlines for requesting reviews and filing appeals, so it is important to act quickly.
Your lawyers should ensure that all deadlines are met, helping you navigate the process efficiently and effectively. If you don’t feel confident that your lawyers have done this, you should contact alternative legal representatives for their opinion and advice.
Preparing for the your HEARING at the Administrative Reviews Tribunal (the ‘ART’) is a critical step in the Appeals process.
Our lawyers agree that it is vital for your legal representation to work hand-in-hand with you to develop a strategy, prepare your testimony, and ensure that all necessary documentation is submitted. A strong legal team will also make sure you are confident and comfortable in your lawyer’s ability to represent you at the Hearing, presenting your case effectively and advocating for your rights so that you don’t have to.
Returning to normalcy AFTER THE HEARING can be an intense emotional experience, no matter the circumstances.
Our team at Sambi Legal have curated an approach to NDIS matters that focuses on our client’s ongoing best interests – meaning the support doesn’t end just because the Hearing does.
After the hearing, we will continue to support you, following up on the outcome and assisting with any necessary steps to implement the decision. Whether you receive a favourable outcome or need to pursue further action, our team is here to provide ongoing support and guidance personalised to your goals and desires.
Dealing with the NDIS (shorthand for the NATIONAL DISABILITY INSURANCE SCHEME) can get complicated, fast. When it comes to NDIS DECISIONS, fairness and justice are paramount.
At Sambi Legal, our dedicated team of NDIS lawyers is committed to providing comprehensive legal services to help individuals and families navigate the complex process of addressing NDIS refusals. We offer expert legal advice, strategic advice, and unwavering support to ensure your rights are protected and upheld.
Dealing with the NDIS (shorthand for the NATIONAL DISABILITY INSURANCE SCHEME) can get complicated, fast. When it comes to NDIS DECISIONS, fairness and justice are paramount.
At Sambi Legal, our dedicated team of NDIS lawyers is committed to providing comprehensive legal services to help individuals and families navigate the complex process of addressing NDIS refusals. We offer expert legal advice, strategic advice, and unwavering support to ensure your rights are protected and upheld.
Generally, the best thing to do is to contact a legal professional as soon as possible after you receive a Refusal. We at Sambi Legal understand the importance of having a strong advocate for your rights and well-being throughout each stage of the NDIS appeals process.
We have represented clients in NDIS reviews and appeals proceedings, working collaboratively with them to ensure their views are heard, their rights are upheld, and they receive the supports and services they deserve. Our team is well-versed in the review process, emphasising the accessibility, non-adversarial nature, and support services available during the review of NDIA decisions.
When it comes to better understanding what pathways you may follow if you proceed with an Appeal, there may be several options available to you, including:
Appealing the Decision by requesting an independent review from the Administrative Review Tribunal (‘ART’). Before accessing the NDIS Appeals Program, individuals need to have already applied to the NDIA for an internal review and received an outcome.
Seeking a judicial review through court proceedings.
Lodging a complaint with the NDIA.
Engaging in informal negotiation to resolve the dispute.
The second element of a binding contract is INTENTION. Essentially, intention refers to the requirement that the parties intended to be legally bound to the terms of the agreement; and that the nature of the agreement is not merely social.
In determining whether the parties had this intention, our office tends to start by considering the following factors comprehensively (although it’s important to remember that many other factors are often at play; and therefore may influence whether an agreement can be considered a Contract):
What the agreement is and whether it is of high value.
Whether the agreement was made socially or commercially.
The relationship between the parties.
The nature of the relationship, whether the parties are independent and have capacity.
Specifically, the conduct of the parties after the agreement has been made. This factor basically considers whether the parties, after forming an agreement, proceed to act in a way that suggests they considered that agreement to be legally binding after its formation.
The type of language used to form the contract.
If your friend offers to help you do some housework in exchange for lunch and you both agree, there is unlikely to be any intention for it to be legally binding – even though an offer has clearly been made and accepted, and therefore satisfies the definition of an agreement.
The process of appealing an NDIS decision can be daunting, but understanding each step can help you feel more confident and prepared. Our team at Sambi Legal has worked to break down the process into manageable steps and provide you with clear guidance at each stage.
Before escalating to an external appeal, you must request an internal review from the NDIA.
This step involves asking the NDIA to reconsider their initial decision. Our lawyers can help you prepare a compelling case for this internal review, increasing the chances of a favourable outcome.
If the internal review does not result in a satisfactory outcome, the next step is to file an appeal with the Administrative Review Tribunal (‘ART’). This appeal will result in a MERITS REVIEW.
The ART will conduct the Merits Review, which means they will re-evaluate the decision based on the evidence and arguments presented.
If you engage Sambi Legal, our lawyers will help you prepare and submit the necessary documentation, represent you at the hearing, and advocate for your rights throughout the entire Merits Review process.
In some cases, a JUDICIAL REVIEW may be necessary. This involves seeking a review of the Decision through Court proceedings.
Judicial Reviews are generally more complex than Merits Reviews, and require a thorough understanding of legal principles and procedures.
Our experienced lawyers are equipped to handle these cases and provide you with the legal support you need – and our Legal Practice Director specialises in Judicial Review, so you know you’re in the right hands.
Appealing through the review process outlined above can be daunting, and expensive… and often, unnecessary. There are alternative pathways to resolving your NDIS Decision, which experienced lawyers can also assist you with.
Lodging a complaint with the NDIA can be an effective way to address issues without formal appeals. Our team can assist you in drafting and submitting a complaint, ensuring that your concerns are clearly articulated and supported by evidence.
Engaging in informal negotiations to resolve disputes can often lead to quicker and less adversarial outcomes. Our lawyers can facilitate these negotiations, helping you reach a resolution that meets your needs without the need for a formal hearing.
Ultimately, your legal journey must be your legal journey. We recommend reflecting on your goals and motivations in appealing the Decision, to assist you in identifying the best approach for you.
Speak with a member of our team for free, and get a better understanding of your situation, by contacting us today.
A CONTRACT is a legally enforceable agreement, or promise, made between two or more ‘parties’. It does not matter whether a Contract is made in writing, or verbally.
While Contracts can take many forms, including Employment Contracts and Lease Agreements, all forms of a Contract require three elements in order to be legally binding on the parties:
Additionally, many assessments of Contracts include consideration of another, unofficial ‘Fourth Element’ of a Contract: Capacity & Formality.
The second element of a binding contract is INTENTION. Essentially, intention refers to the requirement that the parties intended to be legally bound to the terms of the agreement; and that the nature of the agreement is not merely social.
In determining whether the parties had this intention, our office tends to start by considering the following factors comprehensively (although it’s important to remember that many other factors are often at play; and therefore may influence whether an agreement can be considered a Contract):
What the agreement is and whether it is of high value.
Whether the agreement was made socially or commercially.
The relationship between the parties.
The nature of the relationship, whether the parties are independent and have capacity.
Specifically, the conduct of the parties after the agreement has been made. This factor basically considers whether the parties, after forming an agreement, proceed to act in a way that suggests they considered that agreement to be legally binding after its formation.
The type of language used to form the contract.
If your friend offers to help you do some housework in exchange for lunch and you both agree, there is unlikely to be any intention for it to be legally binding – even though an offer has clearly been made and accepted, and therefore satisfies the definition of an agreement.
The final formally recognised element off Contract formation comes in the form of CONSIDERATION. Consideration, an often overlooked yet crucial element of binding Contract, is essentially the word used to describe the ‘something’ given in return for an offer.
Put simply, according to Contract Law, a person who seeks to get something must also give something in exchange.
For an Employment Contract, the Consideration is usually the work being completed by the employee; in exchange for payment/renumeration… Whereas in a Lease Agreement, the Consideration is the rent paid to the lessor by the lessee, in exchange for the lessee’s ongoing access to a property or part of a property.
The consideration must be in the form of what has been agreed upon between the parties and, whilst the benefit of the Consideration does not have to be directly received by the Promisor (person who made the offer), it must pass from the Promisee (person who accepted the offer).
In other words, a Promisee must provide Consideration either to the Promisor (or, if other arrangements have been agreed upon in advance, to a third party). Regardless of who receives the benefit of Consideration, it is crucial that the Promisee is the one to provide that Consideration or the Contract is at significant risk of not being legally binding.
It is also important to note that past actions which may have met the definition of Consideration cannot be relied upon in a legally binding Contract. Consideration cannot occur in the past.
While Consideration may be accepted as legitimate for an act that is being performed, or is to be performed in the future, it will not be valid if the Consideration occurred before the ‘act’ which it is providing Consideration towards.
An example of past consideration may arise if John buys a car from Lucy, but attempts to claim that partial payment for the car was already made when, months ago, John paid for Lucy’s holiday to Bali.
Additionally, Consideration must be of some value. This is not to say that the Consideration must be highly valuable – rather, outlines that Consideration must be in a form that can have a value of some kind prescribed to it.
Money, tangible assets and/or provision of a service can each have some value prescribed to them – therefore money, tangible assets, and the provision of a service are all valid forms of Consideration. Alternatively, something intangible such as ‘love’ or a promise ‘to stop being annoying’ cannot be afforded any value – therefore, cannot be relied upon as Consideration.
Whilst it is true that Consideration must have some value, it is important to remember that value does not need to be of equal weight to the broader picture of the overall agreement. This, referred to as ‘adequacy’, means that Consideration does not have to equal the value of any promise entailed within a Contract so long as all parties agree. Basically, there is no test of ‘fairness’ – however, there is a test of suitability: meaning that Consideration cannot involve the Promisee agreeing to do something that they previously agreed to do already; or already has some form of pre-existing obligation to do irrespective of the Contract.
When developing an understanding of Consideration, it is important to also recognise that the Promisee’s performance of an existing Contractual duty to a third party may be accepted as valid.
Occasionally considered the fourth element to the formation of a binding contract, Capacity assesses whether the parties entering into a Contract have the ability and cognisance to do so.
People who do not have full capacity to enter into a legally binding contract may include minors or those with mental impairments (including those who are intoxicated) – although the list is broad. Remember, Capacity is not universally recognised as a precondition to a Contract being legally binding – unlike the first three elements – and Contracts with minors and/or people experiencing mental impairment may still be formed (however, there are particular rules and requirements to protect these vulnerable parties; and ensure Capacity may still be reached where appropriate).
With regards to Formality, it has already been discussed that binding contracts can be formed verbally. However, there are certain types of Contracts that are will not be recognised as legally binding unless they have been made in writing – and these ‘certain types of Contracts’ vary throughout Australia, depending on where you live. Often, Contracts involving use of property have ‘Formality’ element(s) to satisfy in order to be legally binding – although you should always speak to a legal expert, before concluding whether your Contract is binding or not.
DEFAMATION LAW aims to protect the reputation of people and companies from falsehoods made by others.
Defamation Law is designed to protect you and offer some satisfaction in circumstances where your reputation has been damaged by tall tales or false allegations. You should consider your options for addressing defamation by contacting a legal professional regardless of the details of your circumstances – whether your reputation has suffered serious harm by way of someone making and/or sharing untrue statements about you (which is referred to in the legal profession as ‘Slander’); or a group of people have published false stories about you, perhaps online (which referred to as ‘Libel’); or something else entirely. In many cases, you may actually be able to take action against the person or people who are causing harm to your reputation and image, including potential for the Other Party to pay you money in the form of damages.
Although Defamation Law and matters involving Defamation often end up in the Courtroom, there is a mandatory first step which must occur before any person can bring about Court Proceedings for Defamation. This first step is the issuance of something called a Concerns Notice; and failing to adhere to is generally not an option for any person or party who wishes to bring Defamation Proceedings to Court. Accordingly, it’s important to ensure that you understand what a Concerns Notice is; and how you can protect your Defamation Proceedings from procedural interruptions or interference.
All states and territories of Australia have their own legislation regarding Defamation – in Queensland, for example, there is the Defamation Act 2005 (Qld). However, the principles used to define Defamation are universal throughout the country.
These principles provide the following elements comprising Defamation, which should be relied upon when establishing whether something is (or is not) defamatory:
Essentially, if you are able to demonstrate that an item is actually defamatory towards a specifically referenced party and has been published (or otherwise made available) to people other than the originator of the item and the specifically referenced party, then you may be able to rely upon Defamation Law in obtaining justice.
There is no specific guideline as to what is and is not considered defamatory matter; however, there is a universally accepted understanding that it does not matter if the item was not intended to be defamatory; as long as it is.
The current test applied in Australian Courts is whether a reasonable person would objectively believe the item was defamatory, by considering whether the item has:
Secondly, the defamatory matter needs to refer to the person claiming defamation (the aggrieved party). This does not mean that the statement or publication needs to specifically identify the aggrieved party (referred to as ‘express identification’), rather, it just needs to be demonstrated that the publication is about them (‘indirect identification’).
If a reasonable third party, who knows the relevant circumstances of the matter, understands the statement or publication to be making reference to the aggrieved party, then this element would be satisfied.
Publication is the third and final element of defamation as it needs to be demonstrated that the defamatory material was actually expressed or communicated to others.
A publication can mean many things such as an email, poster, website, news article, television broadcast, online material, etc. Verbally expressing defamatory statements to others also constitutes a publication.
Publications do not need to be made to many people in order to satisfy this element of Defamation – in fact, an item being shared with a single person is sufficient.
An important thing to note about publication is that every republication of the defamatory material counts as a new publication.
If the same person or someone else reposted a defamatory statement about you on social media, that repost could constitute an act of publication of defamatory material.
A CONCERNS NOTICE is essentially a letter, sent to a party who has defamed another party in order to demand the immediate cessation of that defamation. Concerns Notices often include other demands and/or requests as well, depending on the circumstances of the party sending the Concerns Notice, such as:
It is crucial to remember that Concerns Notices, and the way they operate, vary between states and territories in Australia. While the remainder of this article will consider Concerns Notices in Queensland, our office is experienced in the realm of Defamation Law across the entire nation – and you should contact our team at Sambi Legal, or another legal professional, for further state-specific advice and insight..
In Queensland, Concerns Notices are governed by Part 3, Division 1 of the Defamation Act 2005 (Qld).
There are a number of requirements relating to how to prepare a Concerns Notice including but not limited to that it must be made in writing, specify the details of the defamation and specify the details the harm caused as a result of the defamation.
A Concerns Notice must be sent before you can go to court.
After a Concerns Notice has been sent, the recipient has 28 days provide an offer to make amends or otherwise respond. If the recipient does not respond within this time, the aggrieved party may commence court proceedings.
If you receive or want to issue a Concerns Notice, it is important to pay close attention to where the defamation took place and what state or territory you are in, because the specific rules and requirements regarding how a Concerns Notice should be prepared or responded to (including your important time limits) may differ to the above.
In determining whether to issue a Concerns Notice or in deciding how to respond to one, it is important to always consider the possible defences to defamation.
Though this article will only discuss the possible defences of Truth and Honest Opinion respectively, the list of available defences is substantial and subject to rapid change; so it is important to seek legal counsel when trying to understand what defences may apply in your circumstances – to either party.
The primary and arguably most relevant defence to defamation is whether the defamatory material is in fact true. This is called THE TRUTH DEFENCE to defamation.
To succeed in this defence, it must be proven that not only is the literal meaning of the defamatory statement factually true, but any conclusion a reasonable person may make from the statement almost must be true.
While bearing similarities to the Truth Defence, THE HONEST OPINION DEFENCE actually varies substantively from the earlier-described Truth Defence. Differentiating these defences is key to establishing a strong cause of action for yourself, particularly if proceedings continue.
Essentially, the Honest Opinion defence provides a shield to defamation proceedings for a party who claims the defamation made was in fact a fair comment or an honest opinion.
For this defence to succeed, the defamatory imputation must be a comment and not represented as fact, relate to a matter of public interest, be based on true facts, and be made fairly. Where an opinion is made alongside statements of facts, those factual statements must be proven.
If a defamation matter proceeds to court and is successful, the aggrieved party may be entitled to seek an injunction and/or damages.
If necessary, an INJUNCTION is utilised to prevent a person from publishing further defamatory material. It is important to note that a court cannot force someone to retract their statements and apologise.
In addition to an injunction, an aggrieved party may also seek DAMAGES. Damages may be awarded on the basis of non-economic loss and economic loss suffered by a defamed party, as a result from the defamation.
Simply put, a claim for damages concerning non-economic loss may seek to address any harm caused to the aggrieved party’s reputation, the fear experienced, the injured feelings, and/or the psychological effects of the defamation. Alternatively, a claim for economic loss is generally a specific dollar figure that the defamed party is able to demonstrate was lost as a result of the defamation that they suffered.
Sambi Legal has multitudes of experience dealing with defamatory matters throughout Australia. If you are interested in seeking legal advice, or learning more about how the contents of this article relate to your circumstances, we encourage you to contact us for a free Initial Consult with one of our experienced solicitors.
A PROTECTION VISA is a classification of Australian visa that allows people to stay in Australia when they are seeking asylum and are owed the Australian protection obligations. In Australia, there are two different types of Protection Visas available for those in need:
Every person’s circumstances are different, and there are innumerable factors for consideration when determining your best Visa pathway. Ultimately, it will always be the decision of the Visa Applicant to determine what Visa they wish to apply for – however, advice from specialised and experienced Migration Lawyers (such as those at Sambi Legal)) can help you ensure that you are making an educated, informed, and cost-effective decision that offers you the best prospects of a positive outcome.
Understanding the differences to the Protection Visas is crucial when figuring out which Visa to apply for. As the names suggest, the Temporary Protection Visa enables you to stay in Australia temporarily (for a period up to three years), whereas the Permanent Protection Visa allows you to permanently stay in Australia as a Permanent Resident.
The primary difference in the eligibility requirements for these visas are that the Temporary Protection Visa is for immigrants who arrive in Australia without a visa and are seeking asylum, unlike the Permanent Protection Visa – which is for immigrants who arrived in Australia on a different, valid Visa; but now wish to seek asylum.
Whilst the protection obligations owed by Australia and the eligibility requirements for these visas are very similar, this article will focus on the Permanent Protection Visa (Subclass 866).
In order to engage Australia’s PROTECTION OBLIGATIONS, the applicant needs to be a refugee according to the Migration Act 1958 (Cth) (‘the Act’).
In short, a refugee is someone who is outside their home country and because of a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or seek protection from that country. In addition to the existence of a ‘well-founded fear of persecution’, there needs to be a real chance of present persecution and as such, past persecution may be used to establish the existence of a well-founded fear, but alone is not enough to make someone a refugee.
The Act specifies five particular reasons someone may have a well-founded fear of persecution, namely they must fear serious harm because of their: race; religion; nationality; membership of a particular social group; or political opinion. As examples, our office have assisted people obtain Protection Visas because they were political dissidents of their home country, were homosexual and feared persecution because of the home country’s societal expectations, etc. It is important to note that the ‘real chance of persecution’ must relate to everywhere in the country and not only a specific area.
A further criterion of having a ‘well-founded fear of persecution’ is that the persecution feared must involve both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. The definition of ‘serious harm’ includes many things such as a threat to liberty, physical harm, significant economic hardship, denial of basic needs, etc. Additionally, for the persecution to be systematic and discriminatory, it needs to be specifically targeted against the person (or a member of their family) and affects the person (or their family member) in such a way that singles that person out from the broader community.
Through our extensive experience in assisting in both applications and appeals for clients seeking to obtain and/or keep their Protection Visa, our office has repeatedly seen and can confirm that difficulties of whether someone engages Australia’s protection obligations tend to arise when they have not taken all possible steps to help avoid or remedy the threats to their protection.
If you have a right to enter and reside in a different country where you would not face persecution or significant harm, and you have not tried to exercise that right, you may not be taken to be a refugee.
There are a long list of other requirements relating to the grant of a Permanent Protection Visa, such as those that relate to health and character.
This article will not identify every requirement, however, provides the following list of hurdles often faced by our clients before they come to us for assistance; and which may jeopardise your Protection Visa application:
It is important to note that the Department Of Home Affairs (being the relevant Department of the Australian Government) will consider all of your circumstances, even if you appear to fall short of any requirements discussed here. In fact, even if you do not meet the health and Character Requirements, your Permanent Protection Visa may still be granted – so it is paramount to always seek advice from experienced professionals, who know the ins-and-outs of Immigration Law in Australia, and can help you obtain the best possible outcome for you and your loved ones.
A PARTNER VISA is a classification of Australian visa that allows people to stay in Australia when they are in a romantic relationship with an Australian Citizen, Australian Permanent Resident, or an eligible New Zealand Citizen. Applying for an Australian Partner Visa can often be time-consuming and complicated due to the significant amount of material and information that must be provided to the Department of Home Affairs (Australian Government) (‘the Department’) for your application to be properly progressed.
In Australia, there are many different types of Partner Visas available, including:
The differences between Australian Partner Visas depend mainly on whether the applicant is applying from overseas and whether they already hold a different partner visa.
The Prospective Marriage visa, whilst technically not a Partner Visa, allows an applicant to travel to Australia for 9–15 months so that they may marry their partner who holds Australian citizenship, permanent residency, or eligible New Zealand citizen.
Irrespective of which partner visa you or your partner needs to apply for, there are similar requirements that need to be met in order to have a successful application.
In short, an applicant and their Sponsor (the Australian partner) needs to satisfy various character requirements, health requirements, relationship requirements and more.
To be eligible for a Partner Visa, the applicant will first need to satisfy the HEALTH REQUIREMENTS provided by the Department; and both the applicant and Sponsor will need to satisfy the CHARACTER REQUIREMENTS.
This article will not list all relevant Health & Character Requirements. However, we encourage you to contact our office for a free Initial Consult if any of the following risk-factors apply to your circumstances; as it is possible that you will fail to meet the necessary Health & Character Requirements:
When applying, it is important to disclose all criminal conduct you and your partner have engaged in and answer all questions truthfully. Please also note that the applicant may also be required to undertake a health examination.
You should note that the Department Of Home Affairs will consider all of your circumstances. This means that, even if you and your partner do not meet the health and character requirements, a Partner Visa may still be granted.
The Department will consider the totality of your relationship, whether onshore or offshore. Being married is not a guarantee for obtaining an Australian Partner Visa; and not being married does not mean you cannot obtain one.
For applications regarding onshore Partner Visas, you and your partner will need to either be married or in a de facto relationship.
For offshore partner visas, you and your partner need to either demonstrate an intention to enter into a de facto or spousal relationship; or be married already.
In determining a de facto relationship, you and your partner will have needed to be in a relationship of 12 months (not including the “period of dating”); and either live together, or at least live not permanently apart.
There are some exceptions to the 12 months of relationship requirement – such as if there are compelling and/or compassionate circumstances for the applicant to be granted the Visa; or if you have both registered your relationship with the appropriate Australian authority.
To demonstrate the status of your relationship to the Department, your application for a Partner Visa will need to address several Relationship Requirements as further elaborated upon below. You must provide evidence towards the Relationship Requirements even if you are married, or have been in a de-facto relationship for a substantial amount of time.
In assessing whether you and your partner meet the required relationship status for a Partner Visa, the Department will look at what evidence you have provided in support of the the following RELATIONSHIP REQUIREMENTS:
The nature of your household and living arrangements may include whether you both have children or share support for children/family members, if you share the responsibility for household duties and chores, and/or if you live together, etc.
The financial aspect of your relationship will encompass whether you jointly have any assets or liabilities, if you share joint bank accounts and how you both use them, your alternative financial arrangements if you do not have a joint bank account, and/or whether and how you both contribute to expenses, etc.
When assessing the social aspect of the relationship the Department will consider whether you both undertake social activities together, present as partners to friends and family, and/or have been recognised as a couple by third parties. It is important to note that at least two Australians (citizens or permanent residents) who know you both as a couple must provide Statutory Declarations about the genuineness of your relationship.
The nature of your commitment to each other may entail the history of your relationship, how you communicate with each other, how do you each provide emotional and physical support, the current status of your relationship, and/or any future plans you have for your relationship.
We confirm that the above provided examples are not exhaustive of all types evidence which you may attach to your application in support of same; and it is important to remember that each relationship is unique and requires special attention. Accordingly, Sambi Legal advises reaching out to our office for a free Initial Consult if you or a loved one is planning to migrate to Australia for tailored, personalised assistance in navigating the world of Australian immigration law.
A DISPUTE is broadly defined as a disagreement of some kind. DISPUTE RESOLUTION therefore describes the process undertaken to address this disagreement, and arrive at an outcome that ideally addresses the dispute fairly and effectively.
In many cases, it is not in the best interest of some or all of the parties to a dispute to bring the matter before a Court. In Australia, this does not limit our ability to reach Dispute Resolution – in fact, it broadens the possibilities available for getting the best possible outcome, without the added stress (or often, costs) associated with the Courtroom.
The process of reaching a resolution without litigating (or ‘going to Court’) is widely popular in Australia, and we call it ALTERNATIVE DISPUTE RESOLUTION.
While many view the commencement of legal action against someone as ‘taking them to Court’ (and this is not always untrue), there is actually an array of pathways to Alternative Dispute Resolution available to those who find themselves entangled in the law. Some of the more fundamental processes of alternative dispute resolution are demonstrated in the following linear spectrum, which also provides a map to understanding the layout of this article:
Broadly speaking, there are three PROCESSES to select from when considering which Alternative Dispute Resolution pathway is best for you: Facilitative Processes; Advisory Processes; and Determinative Processes.
The Facilitative Processes of Alternative Dispute Resolution include 1. Conflict Avoidance; 2. Negotiation; and 3. Mediation.
The Advisory Processes of Alternative Dispute Resolution include 4. Conciliation; and 5. Case Appraisal.
The Determinative Processes of Alternative Dispute Resolution include 6. Arbitration; and 7. Litigation.
It is often the case that, while involved in a legal dispute, your sole focus is on being successful. However, there are many other factors that are often just as important to consider: such as the costs of the process, how long it will take, the stress it may cause on you, how much control you have of the outcome, and/or how adversarial the process is.
These other factors are often the things that change depending on which alternative dispute resolution process you are involved in. The above-described spectrum can be viewed so that as you move down from 1. Conflict Avoidance towards 7. Litigation, these factors become more strenuous. The closer you move towards litigation; the more costly, time consuming, formal, rigorous, stressful, uncontrollable, and adversarial the processes become.
As such, if you have the opportunity to choose the platform in which your dispute is resolved, it is essential you consider all aspects of the matter and what you ultimately wish to achieve from the process.
It may be more commercial for you to attempt negotiations with an opposing party before resorting to the involvement of a third party such as a mediator or arbitrator. However, in some circumstances it is important to strike hard and quick by commencing litigation.
Even if you are set on resolving your matter through litigation, you may find that you have no choice but to engage in Alternative Dispute Resolution.
In some cases, alternative dispute resolution is mandatory and is not chosen by the parties.
Sometimes, a Court specifically will specifically order the parties to participate in alternative dispute resolution prior to continuing litigation.
Furthermore, alternative dispute resolution is often legislatively required before the matter can be heard before the court, such is the case in family law matters in which the parties are required to first participate in mediation. In these circumstances, it is still important to have an understanding of the alternative dispute resolution spectrum and what each of the three Processes entails.
The act of CONFLICT AVOIDANCE, or ‘walking away’, sometimes is the best course of action; and is often advisable in matters involving small amounts of money or large amounts of hassle.
Conflict Avoidance involves one or both of the parties simply resolving the matter at hand by leaving it be or facilitating its immediate resolution (such as perhaps paying an amount to a claimant).
NEGOTIATION is the process in which the parties to a dispute communicate and attempt to resolve the matter by reaching an agreed outcome.
Negotiations can be held directly in a single sitting or indirectly in which the parties correspond usually over email/letter communications and often with the help of a lawyer. In Negotiations, the parties often must compromise aspects of what they originally sought at the beginning of the process.
Apart from Conflict Avoidance, Negotiation is almost always the cheapest option of alternative dispute resolution as it does not require the intervention of a third party.
MEDIATION is very similar to direct Negotiation (held often in single sittings) except for the involvement of a Mediator.
A Mediator ordinarily does not assess or evaluate the matter or provide advice on the merits, rather they will act as a guide to facilitate a cooperative and effective agreement between the parties. A Mediator is chosen by the parties and does not favour a particular side of the dispute. Mediation is often a very good process to quickly and cheaply resolve matters that are complex, that involve more than two parties, and those in which the parties are particularly adversarial.
Parties will have to pay the Mediator’s fees to prepare for and attend the Mediation (though this is ordinarily shared amongst the parties).
CONCILIATION and Mediation are very comparable at first glance, except that the third party Conciliator will often be more forceful than a Mediator in their assistance in a dispute.
A Conciliator will also, in addition to encouraging the parties to reach an agreement, provide their advice about the prospects of the matter and make suggestions for potential settlement terms.
During a CASE APPRAISAL, a Case Appraiser will assess the merits of the matter and provide advice the possible outcomes of the matter. Additionally, a Case Appraiser will conclude how they believe the dispute would likely be resolved (and should be resolved) if it were to proceed to Arbitration or Litigation.
After the Case Appraiser’s conclusion, the parties elect whether they either agree with the conclusion; or whether they wish to continue to the Determinative Processes instead.
Much like in a Case Appraisal, in an ARBITRATION the parties will prepare and present their arguments and evidence to an Arbitrator who will ultimately make a conclusion.
However, the key difference between Arbitration and Case Appraisal is that any decision of the arbitrator is legally enforceable and the parties must abide by it, or formally appeal it.
LITIGATION is the process that actually involves getting the matter heard in a Court.
The litigation process is significantly more rigorous than the Alternative Dispute Resolution pathways available, as parties are required to adhere to Orders and/or Directions which often stipulate strict time limits on preparing and filing materials. The procedure followed in any case is also subject to the Court’s procedures, the rules of evidence, and much more. Ultimately, litigation will involve the matter being determined by a Judge(s) who will provide their legally binding Decision(s).
At Sambi Legal, we specialise in providing high-quality corporate and commercial legal services to businesses across Australia.
Whether you are launching a start-up or managing an established company, our experienced Brisbane-based team is here to support your success with tailored legal guidance from Bundaberg, to Sydney, and even to Tasmania.
Corporate law can be complex, but legal professionals – namely, Corporate Lawyers – are here to simplify it for you.
Corporate Lawyers offer assistance to businesses and individuals navigating business problems or complicated and confusing circumstances, including (but not limited to) the subject matters outlined in the below list.
Whether you are a Private Company, Startup, or Public Entity, a good-quality Corporate Lawyer can help to ensure that your operations are compliant, protected, and positioned for long-term success.
At Sambi Legal, we are proud to boast a selection of highly qualified Corporate Lawyers with experience in all of the above-listed subject matters, and regularly advise on same – in addition to many others.
Simply put, Commercial Lawyers (including the team at Sambi Legal) may be able to assist your business in matters involving drafting, negotiating, and reviewing complicated and important COMMERCIAL CONTRACTS.
Some examples of Commercial Contracts include those listed below, however, it is important to reach out to a legal professional even if you do not see your Contract in this list – as it is not exhaustive, and you may still be positioned to receive valuable advice from a Corporate Lawyer.
A good, high-quality Corporate Lawyer should aim to ensure that their clients Commercial Contracts are clear, enforceable, well-protected, and aligned with the commercial objectives set by the client. This is the foundation of our approach to Corporate Law and Commercial Law at Sambi Legal, and to demonstrate this, we invite you to Contact Us for a free fifteen-minute consult with one of our Corporate Lawyers.
Disputes are a reality in business, but we can well-prepare you to navigate these commercial litigation challenges.
Each team is different, with different areas of expertise. At Sambi Legal, we pride ourselves on maintaining diversity of skillsets throughout our entire office; and as a result, our team of experienced Commercial Litigation Lawyers can help you handle:
It is crucial that Commercial Litigation Lawyers represent their clients’ best interests throughout Negotiation, Mediation, and Litigation; always working toward practical resolutions that protect those interests effectively, and minimise disruption.
If your business is facing financial distress, a Corporate Lawyer may be able to help you explore the right options for you – and your business.
From restructuring and voluntary administration, to generally providing insolvency advice, Corporate Lawyers have a wealth of experience and education in how to approach the sensitive matters of both BANKRUPTCY and INSOLVENCY.
It is important to ensure that you choose the right lawyer for you and your goals – and even more important to make sure that whoever you choose, is protecting your business’s viability while ensuring compliance with relevant laws and obligations.
At Sambi Legal, we don’t want you to make a decision that you regret. We encourage you to meet a member of our team in a free Initial Consult, and discuss your specific circumstances and goals with one of our Corporate Lawyers to find out if we are the right representation for you.
