The Business Innovation and Investment (Provisional) visa (subclass 188) forms part of the Business Innovation and Investment Program which was introduced to attract entrepreneurs and investors to Australia.

If you have business skills, sufficient assets, and wish to establish and operate a business in Australia, or are willing to invest in complying investments, you may be eligible for the grant of a visa allowing you to live in Australia for up to four years. Extensions and permanent residency may also be available in some circumstances.

The Business Innovation and Investment subclass visa has five streams. Unlike many other visas allowing for direct applications, applicants under this subclass must first submit an expression of interest and be nominated by a state or territory government to apply for the relevant visa type.

This article provides an overview of the criteria common to all streams under this subclass, and a summary of each visa.

The Business Innovation and Investment visa subclass presents challenges to potential applicants and it is wise to obtain professional advice before attempting to navigate this complex pathway.

Expressions of interest and common criteria

All streams under the Business Innovation and Investment subclass require the submission of an expression of interest through SkillSelect.

At the time of lodging the expression of interest, an applicant must be under 55 years, unless submitting under the Significant Investor or Premium Investor streams, or the proposed business or investment is considered to be of exceptional economic benefit by the nominating state or territory.

Generally, applicants must have had a successful business career or investment history, hold substantial business and personal assets to meet the financial thresholds applicable for each stream, and have sufficient financial resources to establish themselves in Australia. All assets must have been lawfully acquired.

Applicants are assessed under the innovation points test with scores awarded, as relevant, for age, English skills, qualifications, business experience, investment experience, net business and personal assets and innovation. A score of at least 65 points is required for the Business Innovation and Investor streams.

Applicants must also meet certain health and character requirements.

Overview of visa streams

The Business Innovation stream may permit the grant of a visa for up to four years to persons who wish to own and operate a new or existing business in Australia. Applicants must demonstrate a successful business career and an ownership interest in one or two qualifying businesses with an annual turnover of at least AUD500,000 in two of four financial years immediately prior to receiving an invitation to apply.

The business and personal assets of the applicant, the applicant’s partner or both must total at least AUD800,000 and be available to transfer into Australia within two years of the visa grant.

Visa holders may be eligible to extend their stay for a further two years (up to a total of six years) through the Business Innovation Extension stream. Applicants must demonstrate a genuine interest and commitment to the business enterprise and an intention to maintain substantial ownership and involvement in the business.

The Investor stream requires applicants to have lawfully acquired net business and personal assets of at least AUD2.25 million which must be available to transfer to Australia within two years of the grant of visa.

Applicants are required to invest at least AUD1.5 million in a designated state or territory investment before the visa is granted.

A high level of management skill with respect to eligible investments and / or qualifying business activity must be demonstrated. For at least one of the five financial years immediately before being invited to apply for the visa, an applicant must have had an ownership interest in, and actively managed a qualifying business, or directly managed an eligible investment of at least AUD1.5 million owned by the applicant, his or her partner, or jointly with the partner.

Visa holders must maintain business or investment activity in Australia for the duration of the visa which may be granted for up to four years.

The Significant Investor stream encourages investment in Australian innovation and emerging companies and requires applicants to invest at least AUD5 million in complying Australian investments and show a genuine intention to retain the investment for at least four years.

Applicants may be nominated by an Australian State or Territory government agency or the Chief Executive Officer of Austrade and must be prepared to live in the nominating state or territory.

Visa holders may be eligible to extend their visa for a further four years (up to a total of eight years) through the Significant Investor Extension stream.

The Premium Investor stream requires an applicant to be nominated by the Chief Executive Officer of Austrade, and an investment of at least AUD15 million in Australian investments and / or philanthropic contributions that meet specific requirements. Apart from any philanthropic contributions, investments must be held for the duration of the visa which may be granted for up to four years. A genuine commitment to continue the investment activity after the visa ends must also be demonstrated.

Applicants under the Entrepreneur stream must have a genuine intention to operate and continue to operate a complying entrepreneur activity. The activity must relate to the commercialisation of a product or service or the development of an enterprise or business in Australia stemming from an innovative idea. The innovation must not concern the purchase of an existing business or franchise, residential real estate or labour hire.

A funding agreement must also be in place with respect to the entrepreneurial activity with a specified third party for at least $200,000.

Permanent residency

Following the grant of a visa in any one of the Business Innovation and Investment streams, visa holders who meet the relevant criteria for each type, may apply for a Business Innovation and Investment (Permanent) visa (subclass 888) allowing them to stay permanently in Australia.

A permanent grant is not available if the applicant or his or her partner have been involved in unacceptable activities in Australia, or the applicant does not have a genuine commitment to maintain the business or investment or has not satisfactorily complied with Australian laws.

Conclusion

The various streams under the Business Innovation and Investment (Provisional) visa present discrete pathways for quality business professionals and premium investors to secure temporary (and potential permanent) residency in Australia.

This is a complex and specialised area of immigration law with very specific criteria applicable to each stream, and involving the interplay of other laws such as corporation, administration and taxation law. Applicants or their representatives will also need to liaise extensively with relevant Government departments and authorities. Significant financial commitment is required, and potential applicants should obtain an initial assessment for eligibility and appropriate pathways before proceeding.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9212 2422 or email info@tklegal.com.