Australian Business Visas

As the world emerges from the pandemic the demand for visas to Australia for business owners, investors and entrepreneurs is seeing unprecedented demand.

As the border open Australia’s State and Territory governments will be actively seeking high quality applicants.

Outlined in this article is the current pathways for business owners, investors and entrepreneurs.

The information below also covers the basic information relating to the Business Innovation and Investment (Provisional) visa.

Business Innovation and Investment (Provisional) visa (subclass 188)

The Business Innovation and Investment (Provisional) visa (subclass 188) is part of the Business Innovation and Investment Programme. It is the first step to a permanent visa and is granted for four years with the ability in certain circumstances to extend it.

The various streams applicable to this this visa are:

• Business Innovation stream – for people with business skills who want to establish, develop and manage a new or existing business in Australia.
• Investor stream – for people who want to make a designated investment of at least AUD $2,500,000.00 in an Australian state or territory and maintain business and investment activity in Australia.
• Entrepreneur stream – for people who have a funding agreement from a third party for at least AUD $200,000.00 to undertake a complying entrepreneur activity that is proposed to lead to either the commercialisation of a product or service in Australia or the development of a business in Australia.
• Significant Investor stream – for people who invest at least AUD $5,000,000.00 in Australian investments that meet certain requirements and maintain investment activity in Australia.

You might be able to get these visas if:

• you are nominated by a state or territory government or Austrade on behalf of the Australian government
• you are invited to apply
• you (and all your family members) meet certain health and character requirements
• you meet the additional requirements for the stream in which you apply.

Nomination by a State or Territory Government

You must submit an Expression of Interest (EOI)  and be nominated by the state or territory government before being invited to apply for any of these visas.

The State or Territory government agency that nominates you must not withdraw their nomination after you apply, or will be unable to be granted visa.

Health requirements

You must meet certain health requirements. The results are usually valid for 12 months.

This also applies to all dependent family members included in your application, whether they are migrating or not.

Character requirements

You must meet certain character requirements. You must be prepared to provide a police certificate from each country you have lived in for 12 months or more during the past 10 years after you turned 16 years of age.

This applies to you and all the dependent family members listed in your application, whether they are migrating or not.

Business Innovation stream

You must:

• be under 55 years of age, although a state or territory can waive this requirement if your proposed business will be of exceptional economic benefit to the nominating state or territory.
• score at least 65 on the points test
• for two out of the four fiscal years immediately before you are invited to apply, have had an ownership interest in an established business or businesses that had at least AUD $750,000.00 turnover in each of those years
• own at least one of the following percentages of your nominated main business:
  • 51%, if the business has a turnover of less than AUD $400,000.00 per year
  • 30%, if the business has a turnover of AUD $400,000.00 or more per year
  • 10%, if the business is a publicly listed company
• have an overall successful business career
• have a genuine desire to continuously own and maintain a management role in a business in Australia
• have functional English

If your nominated main business provides professional, technical or trade services, you must have spent no more than half your time providing those services, as opposed to general management of the business.

At the time of invitation, you, your partner, or you and your partner combined must have total net business and personal assets of at least AUD $1,250,000.00 that are lawfully acquired and available for legal transfer to Australia within two years of the visa being granted.

You and your partner must have had no involvement in unacceptable business or investment activities.

Investor stream

You must:

• be under 55 years of age, although a state or territory can waive this requirement if your proposed investment will be of exceptional economic benefit to the nominating state or territory
• score at least 65 on the points test.
• have a high level of management skill for at least 1 of the 5 fiscal years prior to application in relation to the eligible investment to the value of at least AUD $1,500,000.00 or qualifying business activity where you own at least 10% of the business
• have at least three years’ experience of direct involvement in managing one or more qualifying businesses or eligible investments
• invest in Australia at least AUD $2,500,000.00 in the following proportions:
  • at least AUD $500,000.00 in venture capital and growth private equity funds which invest in start-ups and small private companies
  • at least AUD $750,000.00 in approved managed funds. The managed funds must invest in emerging companies listed on the Australian Stock Exchange
  • a ‘balancing investment’ of at least AUD $1,250,000.00 million in managed funds
• have an overall successful record of eligible investment or qualifying business activity
• you must have a genuine intention to live for at least 2 years in the State or Territory in which you have made the investment application
• have a genuine intention to live for at least two years in the state or territory in which you have made a designated investment
• have had no involvement in unacceptable activities
• Not have had a visa cancelled or a previous application refused
• have functional English

Income that you earn from your designated investment in Australia is subject to tax under Australian taxation law.

Entrepreneur stream

You must:

• ​be under 55 years of age, although a state or territory can waive this requirement if your proposed complying entrepreneur activity will be of exceptional economic benefit to the nominating state or territory
• have competent English and be able to provide evidence of this at the time you are invited to apply for the visa
• have had no involvement in unacceptable activities
• not have had a visa cancelled or a previous application refused
• be undertaking or proposing to undertake a complying entrepreneur activity in Australia and have a genuine intention to continue this activity

A Complying Entrepreneur Activity is an activity that relates to an innovative idea that will lead to the commercialisation of a product or service in Australia, or the development of an enterprise or business in Australia.

This activity must not relate to any of the following excluded categories:

• residential real estate
• labour hire
• purchase of an existing enterprise or a franchise in Australia.

Significant Investor Stream

You must:

• make on or after the time of application for this visa a complying significant investment of at least AUD $5,000,000.00 when invited, and have a genuine intention to hold that investment for the life of your provisional visa. It must be invested in the following proportions:
  • at least AUD $1,000,000.00 million in venture capital and growth private equity funds which invest in start-ups and small private companies
  • at least AUD $1,500,000.00 in approved managed funds. The managed funds must invest in emerging companies listed on the Australian Stock Exchange
  • a ‘balancing investment’ of at least AUD $2,500,000.00 in managed funds
• direct investment in residential real estate in not allowed and investment in residential property through a managed fund is very limited

• have had no involvement in unacceptable activities
• not have had a visa cancelled or a previous application refused
• have functional English

Business Innovation and Investment (Permanent) visa (subclass 888)

The Business Innovation and Investment (Permanent) visa (subclass 888) is the second stage of the Business Innovation and Investment (Provisional) visa (subclass 188).

You can apply for it after you have fulfilled the requirements of your provisional visa.

You do not need to submit a new Expression of Interest or be invited to apply for this visa. You need to be nominated by the state government if you are seeking to satisfy the primary criteria.

You must continue to meet the health, character and English language requirements.

You must also not have had a visa cancelled or been involved in unacceptable business practices.

If you are the holder​r of a provisional Business Innovation and Investment visa (subclass 188) you should provide evidence that the government entity which nominated you for that visa has not withdrawn the nomination.

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 and held it for at least 3 years
• a Special Category visa (subclass 444) and held it for at least 3 years
• in some cases, a subclass 457 visa

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

Ongoing business involvement

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 $300,000.00 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 $300,000.00) Australia)
• owned at least one of the following percentages of the main business (or main businesses) in Australia in the two years immediately before you apply:
  • 51 % of a business with a turnover of less than AUD $400,000.00 per year
  • 30 % of a business with a turnover of AUD $400,000.00 or more per year
  • 10 % of a publicly listed company
• obtained an Australian Business Number for each of your main businesses
• submitted Business Activity Statements to the Australian Taxation Office for the two years immediately before you apply
• 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
• been physically present in Australia for at least one of the three yers immediately before you apply

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 $200,000.00 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 $600,000.00 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 who are:
  • Australian citizens, Australian permanent residents, or holders of valid New Zealand passports
  • not your family members.

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 three of the four years immediately before you apply.

You invested AUD $2,500,000.00 in a ‘complying significant investment’ for the whole period during which you held your Business Innovation and Investment (Provisional) visa (subclass 188).

If you were invited to apply for a Business Innovation and Investment (Provisional) visa (subclass 188) in the Investor stream before 1 July 2021, when your visa was granted, you invested AUD $1,500,000.00 in an Australian state or territory. This is referred to as a ‘designated investment’.  In that case you must have held your designated investment for at least:

• 4 years if the provisional visa was granted on the basis of an application made on or after 1 July 2015; or
• 3 years and 11 months if the provisional visa was granted on the basis of an application made before 1 July 2015.

Your designated investment must have been held continuously in your name, or in the names of yourself and your spouse or de facto partner together.

You must have been physically present in Australia for at least:

• 2 years in the 3 years immediately before you apply if you are holder of a Business Innovation and Investment (Provisional) visa (subclass 188) Investor stream and you were invited to apply on or after 1 July 2021 or
• 2 years in the 4 years immediately before you apply if your spouse or de facto partner who is the primary visa holder was invited to apply for their original Business Innovation and Investment (Provisional) visa (subclass 188) before 1 July 2021

Entrepreneur stream

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

You must also show you have held the visa for at least three years.

In addition, you must be able to demonstrate a successful record of entrepreneurial activities in Australia.

A successful record of entrepreneurial activity will be measured by a combination of key success factors and supporting success factors. You will need to demonstrate the completion of at least two key success factors or a combination of one key success factor and three supporting success factors.

Key success factors include:

• employing two or more Australians, permanent residents or other eligible persons
• generating an annual turnover of at least AUD $300,000.00
• filing a provisional patent or acquiring a standard or innovation patent
• receiving ongoing funding or investment in your entrepreneur activity
• entering into a partnership with a University
• selling an entrepreneurial venture for AUD $2,000,000.00.

Supporting success factors include:

• adapting your entrepreneurial activities into other business areas

• receiving a statement of success from a state or territory government nominator
• receiving sponsorship from the corporate sector
• starting at least one other business or contributing to at least two other businesses
• receiving formal awards or recognition
• raising or contributing to social capital.

Entrepreneurial activities in Australia must not be in one of the following categories:

• residential real estate
• labour hire
• purchase of an existing enterprise or a franchise in Australia.

Significant Investor Stream

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

You must be resident in Australia for a period of four years and you intend to have na ongoing commitment to continue your business and investment activities in Australia.

The residence requirements are worked as follows:

• you must have been in Australia for at least the number of days worked out by adding the results of paragraphs (a) and (b):
  • (a) 40 multiplied by the number of complete years in the period in which you held a subclass 188 visa in the Significant Investor stream, and
  • (b) 40 multiplied by the number of years (if any) (treating a part of a year as one year) in the period in which you held a subclass 188 visa in the Significant Investor Extension stream

or

• your spouse or de facto partner who is the primary visa holder must have been in Australia on a subclass 188 visa, granted on the basis that you held a subclass 188 visa in the Significant Investor stream or the Significant Investor Extension stream, for at least the number of days worked out by adding the results of paragraphs (a) and (b):
  • (a) 180 multiplied by the number of complete years in the period in which you held a subclass 188 visa in the Significant Investor stream, and
  • (b) 180 multiplied by the number of years (if any) (treating a part of a year as one year) in which you held a subclass 188 visa in the Significant Investor Extension stream.

When granted your Business Innovation and Investment (Provisional) visa, you invested $AUD 5,000,000.00 in a ‘complying investment’ or a ‘complying significant investment’.

To be granted a Business Innovation and Investment (Permanent) (subclass 888) visa, you (or you and your spouse or de facto partner combined) must:

• for the whole period during which you held your Business Innovation and Investment (Provisional) (subclass 188) visa, have held a ‘complying investment’ (if your subclass 188 visa was granted on the basis of an application made before 1 July 2015) or a ‘complying significant investment’ (if your subclass 188 visa was granted on the basis of an application made on or after 1 July 2015),
• tell us of any times you transferred funds from one investment to another.

If any part of your investment is or was a direct investment in an Australian proprietary company, then:

• if the period of the direct investment was less than 2 years, the company must have been a qualifying business for the whole period, or
• if the period of the direct investment was 2 years or more, the company was a ‘qualifying business’ for at least 2 years, or
• if the company has been unable to operate as a ‘qualifying business’, you must have made a genuine attempt to operate the business as a ‘qualifying business’

How can FC Lawyers help?

Our expert team including accredited specialists in immigration law have assisted clients for over 20 years in obtaining their visas whether a business owner, investor or entrepreneur.

We have the experience and knowledge to assist in your decision making to select the best state or territory that will fit your needs.

The competition for these visa places will be significant and waiting periods will continue to grow so contact us today to discuss your needs.