BUSINESS, INVESTOR AND SIGNIFICANT INVESTOR VISAS

The Business, Investor and Significant Investor visa streams are designed for business owners or managers, investors looking to invest into an Australian business or make an investment into Australia. See below for more information on Business, Investor and Significant Investor visas.

BUSINESS INNOVATION AND INVESTOR (PROVISIONAL) VISA – SUBCLASS 188

The visa is a provisional visa for people you want to own, manage or invest in a business or alternatively want to make an investment in Australia. It is the first step getting a permanent visa.

To get the is visa you must firs submit an expression of interest and then be nominated by a State or Territory Government in Australia ant invited to apply for the Visa by the Minister for Immigration and Border Protection.

The visa is valid for a period of 4 years and 3 months. Under certain circumstances you can extend the visa in the Business Innovation stream and the Significant Investor Stream. Once you are granted the visa you can:

• travel in and out of Australia for the life of your visa
• bring family members with you to Australia
• seek permanent residence by applying for a Business Innovation and Investment (Permanent) visa (subclass 888).

You can include the following people in your visa application at the time of lodgement:

• your partner (married or de facto)
• your or your partner’s dependent children
• other dependent relatives.

All applicants must meet health and character requirements. You will generally have to be under 55 years of age, but a State or Territory can waive the requirement.

The visa has four different streams and it will depend on which one you wish to apply for or can qualify for:

• 1 – BUSINESS INNOVATION STREAM – For people with business skills who want to establish, develop and manage a new or existing business in Australia. Applicants must be nominated by a state or territory government. You have to also satisfy a points test based on a number of criteria such as age, English language ability, qualifications, assets and business history.
• 2 – INVESTOR STREAM – For people who want to make a designated investment of at least AUD1.5million in an Australian state or territory and maintain business and investment activity in Australia. Applicants must be nominated by a state or territory government.
• 3 – SIGNIFICANT INVESTOR STREAM – For people who are willing to invest at least AUD $5Million into complying significant investments in Australia and want to maintain business and investment activity in Australia. Applicants can be nominated by a state or territory government or Austrade on behalf of the Australian government.
• 4 – PREMIUM INVESTOR STREAM – For people who are willing to invest at least AUD $15Million into complying premium investments in Australia and want to maintain business and investment activity in Australia. Applicants must be nominated by Austrade on behalf of the Australian government.

BUSINESS INNOVATION AND INVESTOR (PERMANENT) VISA – SUBCLASS 888

This is a permanent visa which allows you to continue to manage a business or invest in Australia.

You must be nominated by a State or Territory Government in Australia and have met the requirements under your provisional visa or have held a special category visa.

The visa allows you to:

• stay in Australia indefinitely
• work and study in Australia
• enrol in Medicare, Australia’s scheme for health-related care and expenses
• apply for Australian citizenship (if you are eligible)
• sponsor eligible relatives for permanent residence
• travel to and from Australia for five years from the date the visa is granted (after that time, you will need a resident return visa or another visa to return to Australia).

You can include the following members of your family unit in your visa application:

• your partner (married or de facto)
• your or your partner’s dependent children
• your or your partner’s children who were granted the provisional visa (subclass 188) on the basis that they were dependent children
• dependent relatives who are single, dependent on you or your partner and usually reside in your or your partner’s household.

All applicants must meet health and character requirements.

BUSINESS INNOVATION STREAM

If you are applying for the Business Innovation stream, you must have been in Australia and held:

• a Business Innovation and Investment (Provisional) visa (subclass 188) in the Business Innovation stream or the Business Innovation Extension stream
• a Special Category visa (subclass 444)
• a Business (Long Stay) visa (subclass 457IE)

for at least one year in the two years immediately before you apply.

In addition, you must be able to show ongoing business involvement, meet certain financial requirements, and have a history of employing Australian workers.

You must be able to show that you (or you and your partner together) have:

• had an ownership interest (and continue to have an ownership interest) and a direct and continuous management role in an actively operating main business (or main businesses) in Australia for the two years immediately before you apply.
• had an annual turnover of at least AUD $300,000 from the main business (or businesses) in the 12 months before you apply. (A nominating state or territory might agree to waive the requirement to show an annual turnover of AUD $300,000 if you live and operate business in a specified regional area of Australia)
• owned at least one of the following percentages of the main business (or main businesses) in Australia in the year immediately before you apply
• A. 51 per cent of a business with a turnover of less than AUD $400,000 per year
• B. 30 per cent of a business with a turnover of AUD $400,000 or more per year
• C. 10 per cent of a publicly listed company
• D. obtained an Australian Business Number for each of your main businesses
• E. submitted Business Activity Statements to the Australian Taxation Office for the two years immediately before you apply
• F. not acquired the ownership in your main business (or two main businesses) from a person who was an applicant for, or a holder of, a permanent Business Innovation and Investment visa (subclass 888) or a permanent business skills visa (in subclasses 890, 891, 892 or 893), unless you and that person had a joint interest in the main business for at least one year before you lodge your application for this visa.

You (or your partner, or you and your partner together) must also demonstrate that you have achieved at least two of the following requirements:

• a net value of business assets of at least AUD $200,000 in your nominated main business (or two main businesses) in Australia throughout the year immediately before you apply
• a net value of personal and business assets of at least AUD $600,000 in Australia throughout the year immediately before you apply
• employed at least the equivalent of two full-time employees in your main business (or main businesses), throughout the year immediately before you apply.

INVESTOR STREAM

If you are applying for this visa in the Investor stream, you must have been in Australia and held your provisional visa in the Investor stream for at least two of the four years immediately before you apply.

In addition, you (or you and your partner combined) must have held a designated investment with an Australian state or territory for at least four years.

If you applied for your provisional visa (subclass 188) in the Investor stream prior to 1 July 2015, you are eligible to apply for a subclass 888 visa after holding your provisional visa for 3 years and 11 months. If you applied for your provisional visa after 1 July 2015, you are required to hold your provisional visa for at least 4 years prior to applying for a subclass 888 visa.

SIGNIFICANT INVESTOR STREAM

If you are applying for a permanent visa (subclass 888) in the Significant Investor stream, you must have held at the time of application:

• a provisional visa (subclass 188) in the Significant Investor stream or in the Significant Investor Extension stream.
• You must have been in Australia as the holder of a provisional visa (subclass 188) in the Significant Investor stream or the Significant Investor extension stream for at least 40 days per year (calculated cumulatively) for the period of time you have held your provisional visa(s), or your spouse has been in Australia for at least 180 days per year (calculated cumulatively) on the basis of the period of time the primary applicant has held their provisional visa(s).

In addition, you (or you and your partner combined) must have:

• held complying investments continuously for at least 4 years while holding your Business Innovation and Investment (Provisional) visa (subclass 188).
• operated a qualifying business under the private Australian company in which you have made a direct complying investment if applicable.

Note that the rules in force at the time you applied for you original subclass 188 visa in the Significant Investor stream will apply to you when your application for a subclass 888 visa is assessed.

If you applied for your provisional visa (subclass 188) in the Significant Investor stream prior to 1 July 2015, you are eligible to apply for a subclass 888 visa after holding your provisional visa for 3 years and 11 months. If you applied for your provisional visa after 1 July 2015, you are required to hold your provisional visa for at least 4 years prior to applying for a subclass 888 visa.

PREMIUM INVESTOR STREAM

If you are applying for a permanent visa (subclass 888) in the Premium Investor stream, you must have held a provisional visa (subclass 188) in the Premium Investor stream at the time of application and be nominated by the Commonwealth government.

• You must have held your provisional visa for a minimum of 1 year.
• You (or you and your partner combined) must have held complying premium investments continuously for at least 1 year, and for the entire time you have held your Business Innovation and Investment (Provisional) visa (subclass 188).

Australia’s business innovation and investor program allows for visa grants to individuals on the basis of business activity or investment activity – these visas are commonly known as “subclass 188 visas”. The “Premium Investor Visa” is a stream in this program defined by an AUD 15 million investment or contribution requirement. A person who has held this visa for at least 12 months may be eligible to apply for the 888 permanent resident visa.

Without limitation, the applicant must:

• be invited to apply;
• invest AUD 15 million in “a complying premium investment”; and
• other than with respect to investment that is a philanthropic contribution, genuinely intend to hold the complying premium investment for the period of the visa.

There are other criteria relevant to the Premium Investor Visa which must be met for a successful application, including public interest criteria. Most importantly, neither the applicant nor any spouse or de facto partner of the applicant is permitted to have any “history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia” (Subregulation 188.211, Migration Regulations 1994).

At the same time, there are rules that must be observed for the purposes of the complying premium investment. For example, the AUD 15 million which is being used for the complying premium investment must be unencumbered and the applicant will need to show that the funds were lawfully acquired. This obligation applies regardless of whether the AUD 15 million is to be applied for the making of an investment or for a philanthropic contribution or both. It is essential that any applicant for this visa is able to give a credible and complete “paper trail” for the funds that are intended for investment in Australia.

Austrade is the sole nominating authority for the Premium Investor Visa, and is presently advising that any expression of interest which is unsolicited will not be accepted. Austrade is also presently advising that it “will draw on its international network and work closely with federal government agencies and State and Territory Governments to identify and engage with potential candidates” for the Premium Investor Visa.

As the law presently stands, an investment may be made in any one or more of:

• securities, subject to certain conditions;
• bonds or notes, subject to certain conditions;
• a proprietary company, as that term is defined in the Corporations Act 2001, where the company is incorporated in Australia and is a limited company within the meaning of the Corporations Act 2001;
• annuities, subject to certain conditions;
• Australian real property, subject to certain conditions;
• for investments made through a managed investment fund, cash held by Australian ADIs, including cash-like instruments, subject to certain conditions;
• derivatives, subject to certain conditions.

Any philanthropic contribution will need to be approved by a State or Territory government agency.

The law presently provides that the investor must be an individual, but that the investor can make the investment and/or contribution:

• personally; or
• with the investor’s spouse or de facto partner; or
• by means of a company that has issued shares; or
• by means of a trust where the investor is the sole trustee or the investor and the investor’s spouse or de facto partner are the sole trustees and the investor is the sole beneficiary or the investor and the investor’s spouse or de facto partner are the sole beneficiaries. (Subregulation 5.19D(12), Migration Regulations 1994)

The attractive features of the visa that individuals may see as attractive include:

• no upper age limit;
• no points test;
• no English language requirement;
• no skill requirement;
• opportunity to apply for permanent residency after holding the visa for 12 months only;
• ability to include family on the application.