Business Innovation and Investment (Provisional) – Subclass 188 

There are three stages involved in the application process.

STAGE 1: EXPRESSION OF INTEREST  

The first stage of the visa application is to submit an Expression of Interest (“EOI”) Application on SkillSelect. An applicant will need to obtain a minimum pass mark of 65 points as assessed against a range of factors such as age, English language ability, education qualifications, investor experience qualifications, net financial assets, business turnover qualifications etc. The number of points awarded for each attribute is found in Schedule 7A of the Migration Regulations. 

Applications are ranked by the points and the State or Territory nominates applications based on the points obtained. Thus, although the required minimum pass mark is 65 points. The higher the number of points obtained, the higher the chances of being nominated. 

STAGE 2: STATE NOMINATION  

There are further requirements depending on states/territories which an Applicant must meet in addition to the Department of Home Affairs’ requirements.  

STAGE 3: VISA APPLICATION 

188A – Business Innovation Stream

• State Nomination to be active 

The Applicant is, amongst all other requirements, contingent on being nominated by the relevant State or Territory government agency and this nomination has not been withdrawn. 

• Successful Business Career  

The Applicant must have had an overall successful business career.  

• A need to be resident in Australia 

The Applicant must show a need to be resident in Australia to establish or conduct the proposed business activity.  

• Age requirement  

The Applicant must be under 55 at the time of invitation to apply for the visa. This requirement may only be waived if the State or Territory Government Agency determines the proposed business or investment activity to be of exceptional economic benefit to the State or Territory. 

• EOI Points 

The Visa Applicant must demonstrate a score of at least 65 points.  

• Ownership Interest  

For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant must have had an ownership interest in one or more established main businesses with an annual turnover of at least $500,000 AUD in each of those years.  

• Main Business  

To qualify as an ownership interest in a ‘main business’, the ownership interest must be: 

1. At least 51% for a business with turnover less than $400,000; or 

1. At least 30% for a business with turnover more than $400,000; or 

1. At least 10% of a publicly listed company. 

A beneficial interest in an asset may also qualify as an ownership interest. This must be shown through a stamped or registered trust instrument, contract or any other such document. Evidence of beneficial ownership is not requirement if the person has legal ownership.  

If the main business relates to providing professional, technical or trade services, the Applicant must not be engaged in more than half their time in directly providing these services as distinct from time spent on the general direction of the operation of the business. 

• Genuine and realistic commitment 

The Visa Applicant must demonstrate a genuine and realistic commitment to establish or participate in an existing qualifying business in Australia. The Visa Applicant must also have a genuine and realistic commitment to maintain a substantial ownership in this business and to maintain a direct and continuous involvement in the management of the qualifying business from day to day. For example, it makes decisions that affect the overall direction and performance of the qualifying business. 

A qualifying business is one operated for the purpose of making profit through the provision of goods, services, or goods and services, as distinct from the provision of rental property. It must not be operated primarily or substantially for the purpose of speculative or passive investment. 

188B – Business Innovation Extension stream

• Applicant to be resident in Australia 

The Applicant is required to demonstrate that there is a need for the Applicant to be resident in Australia to operate the main business.  

• Ownership Interest  

For at least the 2 years immediately before the application was made, the Applicant had an ownership interest in one more business that were actively operating in Australia. The Applicant continues to have the ownership interest.  

• Genuine and realistic commitment  

The Visa Applicant must demonstrate a genuine and realistic commitment to establish or participate in an existing qualifying business in Australia. The Visa Applicant must also have a genuine and realistic commitment to maintain a substantial ownership in this business and to maintain a direct and continuous involvement in the management of the qualifying business from day to day. For example, it makes decisions that affect the overall direction and performance of the qualifying business. 

A qualifying business is one operated for the purpose of making profit through the provision of goods, services, or goods and services, as distinct from the provision of rental property. It must not be operated primarily or substantially for the purpose of speculative or passive investment. 

188C – Investor Stream

• Age requirement  

The Applicant needs to be invited in order to apply for the visa. The Applicant should not turn 55 at the time of the invitation to apply for the visa  

• EOI Points  

The Visa Applicant must demonstrate a score of at least 65 points.  

• Successful record of investment activity  

The Applicant needs to show he or she has overall successful record of eligible investment activity or qualifying business activity. Furthermore, the Applicant needs to show direct involvement in managing one or more qualifying business or eligible investment for a total of at least 3 years. The applicant also needs to demonstrate a high level of management skill in relation to the eligible investment or qualifying business activity.  

• Direct involvement  

5 years immediately before the time of invitation to apply for visa, the Applicant needs to show that he or she maintain direct involvement in managing a qualifying business and the Applicant and the partner (if any) have an ownership interest of at least 10% of the total value of the business.  

5 years immediately before the time of invitation to apply for visa, the Applicant needs to show that he or she maintains direct involvement in managing eligible investments of the applicant, the applicant’s partner, or the applicant and his partner together.  

• Net and Personal Assets  

2 years before the time of invitation to apply for the visa, the business and personal assets of the applicant, the applicant’s partner, or together needs to have a net value of at least AUD 2,250,000. 

• Designated Investment  

The Applicant has made a designated investment of at least AUD 1,500,000 in the State or Territory in which the nominating State or Territory government agency is located. 

• The Applicant’s business history  

Neither the applicant nor their partner must have a history of involvement in business activities generally not acceptable in Australia. 

• Genuine and realistic commitment  

The Visa Applicant must demonstrate a genuine and realistic commitment to maintain business or investment activity in Australia after the designated investment made by the applicant, or by the applicant and his or her partner. The applicant needs to show genuine intention to reside for at least 2 years in the State or Territory in which he or she made the designated investment application.  

188D – Premium Investor Stream

• Stage 1: Austrade Nomination  

The Australian Government has determined that Austrade is the only appropriate agency to manage the process of identifying, targeting and attracting potential nominees. It is up to the discretion of Austrade to consider referrals from States and Territory Governments.  

Please note: Austrade will not accept unsolicited expressions of interest from the general public. 

For more information on Austrade, you may wish to visit: https://www.austrade.gov.au/  

• Stage 2: Visa Application  

Similar to other streams under the Business Innovation and Investment Visa, applicants under the PIV stream also need to satisfy the following requirements:  

• Obtain a positive Austrade Nomination  

• Ensure that all funds or assets to be used in support of your application are lawfully acquired and all sources of funds can be proven  

• No adverse business history for the visa applicants or their spouses (or de facto partner) 

• All public interest criteria are met, particularly the health and character requirement 

• Health requirements:  

• All persons included in the application will be required to undertake a medical examination prior to their visa being issued. 

• When applying, all persons included in the application must: 

• declare whether they have a medical condition that is likely to require ongoing support from community or government services 

• declare whether they have been diagnosed with Tuberculosis or any other serious diseases that might be a threat to Australian Community 

• Character requirements:  

• All persons included in the application will be required to obtain a police clearance certificate for all countries they have lived in for greater than twelve months in the last ten years. 

• When applying, all persons included in the application must provide all requested information, declare all criminal offences, truthfully answer all questions 

• Additional Criteria for Premium Investor Stream  

• The visa applicant must make a complying Premium Investor  

• The visa applicant must also have a genuine intention to hold the complying investment for the duration of their visa grant period  

• Except in the case of a philanthropic contribution, as this will no longer be the applicant’s own funds  

• Stage 4: Making a complying Investment   

• The department is satisfied the applicant satisfied both the common criteria and the stream specific criteria  

• The letter of invitation should request the applicant to provide within a specified date of letter invitation the following evidence:  

  • That 15 million funds is ready to be transferred to relevant complying premium investments  

  • Evidence of assets to have been liquidated to make up part of the 15 million dollars 

188E – Entrepreneur Stream

Stage 1: Expression of Interest  

Summary  

All applicants must be invited in order to apply for a Business Skills Subclass 188 Visa regardless of the streams they choose.  

Prior to the lodgement of an application, the visa applicant must first lodge an expression of interest (EOI) through the Department prescribed facility SkillSelect.

Within the SkillSelect EOI form, the applicant will need to complete identify and passport details for themselves and anyone whom they wish to include in their application.  

Validity of the EOI and changing Points on the EOI  

EOI will remain to be valid for two years (unless the applicant has been invited to apply for a visa within 2 years). Prior to invitation, the applications can always update their relevant details on the website in order to claim more points and increase their opportunities to be invited.  

Visa applicant would not be able to change their scores once they have been invited to apply for a Subclass 132 Visa. 

Please note:   

• Applications made through SkillSelect are not visa applications and therefore applicants would have no review right for EOIs that does not receive any nominations from the State/Territory.  

• Once the EOI has been lodged, the applicant will then need to apply for a State/Territory Nomination application in order to be invited.  

Stage 2: State/Territory Nomination  

State/Territory nominations are required for either stream under the Subclass 132 Visa. The applicants will need to apply through the appropriate State or Territory agency and following the relevant instructions and requirements of each State or Territory.  

You may wish to visit the following links to each State/Territory Department for more information:  

• New South Wales

• Victoria

• Queensland

• Australian Capital Territory

• South Australia

• Western Australia

• Northern Territory

• Tasmania

Each State or Territory has its own criteria to determining whether or not to nominate particular visa applicant, therefore the applicants should always consult the relevant State or Territory government in relation to their respective criteria.  

Stage 3: Visa Application  

Similar to other streams under the Business Innovation and Investment Visa, applicants under the Entrepreneur stream need to satisfy the following requirements:  

• All applicants need to be invited by the Department to lodge an Expression of interest (EOI) through Skill Select 

• Obtain a positive State/Territory Nomination depending on the stream 

• Ensure that all funds or assets to be used in support of your application are lawfully acquired and all sources of funds can be proven  

• No adverse business history for the visa applicants or their spouses (or de facto partner) 

• All public interest criteria are met, particularly the health and character requirement 

• Health requirements:  

• All persons included in the application will be required to undertake a medical examination prior to their visa being issued. 

• When applying, all persons included in the application must: 

• declare whether they have a medical condition that is likely to require ongoing support from community or government services 

• declare whether they have been diagnosed with Tuberculosis or any other serious diseases that might be a threat to Australian Community 

• Character requirements:  

• All persons included in the application will be required to obtain a police clearance certificate for all countries they have lived in for greater than twelve months in the last ten years. 

• When applying, all persons included in the application must provide all requested information, declare all criminal offences, truthfully answer all questions 

Additional Criteria for Entrepreneur stream 

• The visa applicant must not turn 55 years old unless the nominating state or territory government certifies that the proposed business activity is of exceptional economic benefit; 

• The visa applicant must also have competent English at the time of invitation;  

• The Visa Applicant must also have satisfactory net personal and business assets according to the requirements of each nominating state or territory government;  

• The visa applicant must satisfy that he or she is undertaking, or proposing to undertake, a complying entrepreneur activity, and  

• Has a genuine intention to undertake, and continue to undertake, the complying entrepreneur activity in Australia in accordance with the following requirements: 

• The activity relates to an innovative idea proposed to lead to commercialisation of a product or service in Australia or development of an enterprise in Australia  

• He or she must have received a funding of at least $ 200,00 under a legally enforceable agreement is to be provided to an entrepreneurial entity in Australia  

• Who can provide the funding?  

• Any agency of the commonwealth, state or territory;  

• Bodies that undertake publicly funded research or innovation initiatives; 

• Investors registered as Venture Capital Limited Partnerships;  

• Higher Education Providers.  

• The funding provided or to be provided must be lawfully acquired or unencumbered; 

• A business plan must be set out in the proposals for the complying entrepreneur activity that meets the regulatory criteria, either for: 

• Commercialisation of a product or service in Australia, or  

• Development of an enterprise or business in Australia  

This Visa provides direct Permanent Residency pathway to successful business owners or businesses owners who have innovative ideas that can bring substantial economic benefits to Australia.

• There are also no statutory English language requirements.

• Age waiver is also available under certain circumstances.

From our past experience, we noted that poorly prepared applications usually fail because of the following reasons:

• Unable to show that the Visa Applicant genuinely has a realistic commitment to either establish a qualifying business in Australia or to participate in an existing qualifying business in Australia;

• Unable to show that there is a direct and continuous involvement in the management of the qualifying business from day to day;

• Unable to demonstrate the legitimacy of the sources of funds or assets ready to be transferred to Australia, etc.

What Questions Do Migration Agents Ask Our Accredited Specialists

1. Under what business structure, can a job placement company, apply to be a sponsor with the sole purpose of charging a fee to visa applicants? And is there a method which would allow the sponsor to place the visa applicant with another unrelated business?

2. How can employers charge a payment to the visa applicants in exchange to sponsor, without being caught under the immigration offence ‘cash for visa’?

3. How many types of visas (including streams), can a Temporary Activities Sponsor benefit from, in sponsoring more candidates? And are there any difference in the sponsorship obligation?

4. Can a visa applicant pay for costs related to the visa applicant? or must the Sponsor pay for all costs? How do I explain & educate my client, a large company who does not wish to pay for any costs for the sponsorship because the Director feels that the visa applicant has more to benefit than the company.

5. In what circumstances will a visa applicant lose their right to appeal a refusal?