ATTACHMENT A

 

 

Subsection 504(1) of the Migration Act 1958 (the Migration Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

In addition, the following provisions of the Migration Act may apply:

 

*         subsection 31(1), which provides that there are to be prescribed classes of visas.

 

*         subsection 31(3), which provides that the Migration Regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 35A, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

 

*         subsection 31(4), which provides that the Migration Regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

 

*         subsection 31(5), which provides that a visa is a visa of a particular class if the Migration Act or the Migration Regulations specify that it is a visa of that class.

 

*         subsection 40(1), which provide that the Migration Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

 

*         subsection 41(1), which provides that the Migration Regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

 

*         subsection 41(2), which provides that without limiting subsection 41(1), the Migration Regulations may provide that a visa, or visas of a specified class, are subject to:

o   a condition that, despite anything else in the Migration Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or

o   a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing any work, work other than specified work or work of a specified kind.

 

*         subsection 41(2A), which provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph 41(2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection 41(3).

 

*         subsection 41(3), which provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the Migration Regulations for the purposes of subsection 41(3).

 

*         subsection 45B(1), which provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.

 

*         subsection 45C(1), which provides that the Migration Regulations may provide that visa application charge may be payable in instalments, specify how those instalments are to be calculated and specify when instalments are payable.

 

*         paragraph 46(2)(a), which provides that, subject to subsection 46(2A), an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of subsection 46(2).

 

*         paragraph 46(2)(b), which provides that, subject to subsection 46(2A), an application for a visa is valid if under the Migration Regulations, the application is taken to have been validly made.

 

*         subparagraph 134(10)(a)(ii), which provides that in section 134, "business visa" means a visa included in a class of visas, being a class that is prescribed for the purposes of paragraph 134(10(a).

 

*         subparagraph 134(10)(b)(ii), which provides that in section 134, "business visa" means a visa that is of a kind prescribed for the purposes of paragraph 134(10)(b).

 

*         paragraph 504(1)(a), which provides that the Migration Regulations may provide for the charging of and recovery of fees in respect of any matter under the Migration Act or the Migration Regulations.

 

*         paragraph 504(1)(d), which provides that the Migration Regulations may provide for the use that may be made by persons or bodies other than officers of the Department of information collected pursuant to regulations made under paragraph 504(1)(c).

 

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Investor Visas) Regulation 2015

 

Amendments of Migration Regulations 1994 relating to the Business Innovation and Investment programme

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Regulation Amendment

 

The amendments will extend the role of the Business Innovation and Investment programme (Subclass 188 (Business Innovation and Investment (Provisional)) visa and Subclass 888 (Business Innovation and Investment (Permanent)) visa, in supporting the national economy by strengthening and improving the existing streams and creating a new Premium Investor stream. These amendments are designed to enhance the programme and attract appropriate investors who wish to invest in and migrate to Australia.

 

Currently, the Business Innovation and Investment programme has five streams: the Business Innovation stream, the Business Innovation Extension stream, the Investor stream, the Significant Investor stream and the Significant Investor extension stream.

 

The proposed amendments to the Migration Regulations 1994 include:

 

1. Creating a new Premium Investor stream within the Subclass 188 (Business Innovation and Investment (Provisional)) visa and the Subclass 888 (Business Innovation and Investment (Permanent)) visa:

*         Austrade will be the only nominator for this visa;

*         An investment of $15 million will be required;

*         No residency requirement for eligibility for permanent residence;

*         Visa holders will be eligible to apply for permanent residence after twelve months.

 

2. Amending the requirements for the Subclass 888 (Business Innovation and Investment (Permanent)) visa to allow a secondary applicant to fulfil the role of the primary applicant for the Business Innovation stream and the Investor stream.

 

3. Changing the residency requirements for the Significant Investor stream of the Subclass 888 (Business Innovation and Investment (Permanent)) visa so that either the primary applicant meets 40 days residency per year on the qualifying subclass 188 visa or the secondary applicant (only a spouse, not a dependent child) meets 180 days residency per year.

 

4. Extend the duration of the Business Innovation, the Investor and the Significant Investor streams under the Subclass 188 (Business Innovation and Investment (Provisional)) visa so that they are valid for 4 years and 3 months.

 

5. The CEO of Austrade will be added as a nominator for the Significant Investor stream, along with the States and Territories who are already able to nominate.

 

6. Prevent complying investments from forming the basis for security or collateral for a loan for the duration of the provisional visa. This will also be a requirement of any visa extensions granted to a Significant Investor visa applicant under the Significant Investor extension stream.

 

7. Require complying investments for the Significant Investor and Premium Investor streams to be new and fresh investments, not existing investments in Australia.

 

Human Rights Implications

 

Australia's human rights obligations apply to persons subject to Australia's jurisdiction. It is clear that potential Business Innovation and Investment programme visa applicants who are not in Australia are not subject to Australia's jurisdiction. The proposed amendments will impact future Business Innovation and Investment programme visa holders currently in Australia in a positive manner as detailed below.

 

Addition of the CEO of Austrade as nominator for the Significant Investor Stream

 

Freedom of Movement

 

The addition of Austrade as a nominator positively engages the right to freedom of movement and freedom within a State enunciated in Article 12 of the International Covenant on Civil and Political Rights. Previously, nomination was accepted from a specific State or Territory only, which required a visa holder to have a genuine intention to reside in that particular State or Territory. Once Austrade is added as a nominator, visa holders nominated by Austrade will have greater flexibility to move more freely around Australia, enhancing their rights to freedom of movement. This has been replicated in the new Premium Investor stream where the CEO of Austrade will be the nominator for this visa and visa holders will not be restricted on where they decide to reside.

 

 

Changing the residency requirements for the Significant Investor stream of the Subclass 888 (Business Innovation and Investment (Permanent)) visa

 

Best Interests of the Child

 

A legislative body is required to consider the best interests of the child as a primary consideration.  The Australian Government is also required to determine if these interests are outweighed by other primary considerations such as the integrity of the migration programme and the effective and efficient use of government resources.

 

When making the change to the residency requirements for the Significant Investor stream so that either the primary applicant meets 40 days residency per year on the qualifying subclass 188 visa or the secondary applicant meets 180 days residency per year, the best interests of the children were considered. Only a secondary applicant who is a spouse, not a dependent child, will be able to meet the residency requirement. The effect of this is that dependent children will not be able to fulfil the residency requirement alone in Australia or be separated from their families in order to meet this criterion.  This provides the flexibility for children to continue their school attendance overseas without disruption. Alternatively, children may join the parent residing in Australia.

 

Conclusion

 

These regulation amendments are compatible with human rights.

 

Senator the Honourable Michaelia Cash, Assistant Minister for Immigration and Border Protection

ATTACHMENT C

 

 

Regulation Impact Statement

 

Enhancing significant investor visas

 

Background

 

The Significant Investor visa (SIV) was introduced on 24 November 2012 as a stream within the Business Innovation and Investment Programme (BIIP).  The purpose of the SIV stream was to provide a boost to the Australian economy through an increased inflow of investment, and to enable Australia to compete effectively for migrants seeking to invest overseas.

 

Following an internal review into the SIV, in May 2014 the Assistant Minister for Immigration and Border Protection has endorsed a number of new measures to increase the effectiveness and competitiveness of the SIV programme:

 

*         Aligning complying investment policy settings with the Government's national investment policy by encouraging investment which makes a material difference.  This will enhance the benefits to Australia obtained through complying investments.

*         The design of eligible complying investments under the SIV programme was undertaken by an Interdepartmental Committee co-chaired by Austrade and the Department of Immigration and Border Protection (DIBP), and comprised of the Australian Federal Police, Attorney General's Department, Australian Taxation Office, AUSTRAC, Australian Securities and Investments Commission, Department of Foreign Affairs and Trade, Department of Industry and Science, Department of Finance, the Treasury, the Department of Infrastructure and Regional Development and the Department of the Prime Minister and Cabinet.  Austrade then advised DIBP on the types of investments which should be open to applicants under the SIV programme.

*         Austrade will also become a nominating entity for Significant Investor visas (State and Territory Governments are currently the only entities able to nominate) and the sole nominating entity for the Premium Investor visa.

*         Implementing measures to streamline visa processing.

*         Introducing a new Premium Investor visa stream with a minimum complying investment threshold of $15 million and expedited permanent residency.

*         Implementing an engagement strategy that enhances the promotion of the SIV programme globally.

*         Ensuring that measures to increase the attractiveness of the investor visa programme are supported by enhanced integrity measures.

*         Introducing a residency requirement of 180 days per year for secondary applicants of SIV holders. 

 

Options and changes to regulatory burden

 

*         Amend regulations to create a new Premium Investor Visa (PIV) stream under subclass 188. The introduction of the PIV will add another investment migration option to our suite of investment visas. The PIV requires a minimum investment threshold of $15 million and offers an expedited pathway to permanent residence. There will be no residency requirement for this visa, reducing the end users burden for providing evidence of residence.

*         The design of eligible complying investments under the SIV programme will be undertaken by Austrade in consultation with Treasury, Industry, Innovation, PM&C and DFAT.  This measure will enhance the benefits to Australia obtained through complying investments, by aligning complying investment policy settings with Australia's broader national investment policy which encourages investment which makes a material difference.

*         Changes aimed at reducing processing times will increase the attractiveness of the programme by making it more internationally competitive. As a result it seeks to encourage foreign investment by SIV applicants into the Australian economy where it promotes innovation and the commercialisation of Australian ideas, research and development.

*         Implement an engagement strategy that enhances the promotion of the investor visa programme globally. Currently 91 % of SIV applicants are Chinese nationals. Diversification in the nationalities applying under the programme is desirable to expand sources of foreign investment into Australia.

*         Ensuring that measures to increase the effectiveness and targeted economic benefit of the investor visa programme are supported by enhanced integrity measures.

*         The introduction of a residency requirement of 180 days per year for secondary applicants of SIV holders.  Although this will increase the regulatory burden for end users by requiring to provide evidence of secondary applicants residence in Australia where before there was no such requirement, the government has decided on this measure to ensure that those investors with families make a genuine commitment to Australia, while allowing flexibility for the primary applicant to operate globally.

 

As the SIV is a relatively new visa stream there is inadequate historical data to reliably forecast future uptake of the programme.  We have used data for nominations and grants for the past 12 months and anecdotal evidence from stakeholders which suggests that many SIV applicants' wealth may extend well beyond the $5 million they are required to document to the department.  Therefore we predict some potential applicants for the SIV would choose the PIV (once introduced) as their preferred visa option where they have the available funds to invest.

 

 

The regulatory burden costs and offsets associated with the above proposals are set out in the following table.

 

Regulatory Burden and Cost Offset (RBCO) Estimate Table

Average Annual Compliance Costs (from Business as usual)
Costs ($m)	Business	Community Organisations	Individuals	Total Cost
Total by Sector	0	0	0.0028	0.0028
Cost offset ($m)	Business	Community Organisations	Individuals	Total by Source
Agency	0	0	0	0
Within portfolio	0	0	0.273	0.273
Outside portfolio	0	0	0	0
Total by Sector	0	0	0.273	0.273
Proposal is cost neutral?             R no
Proposal is deregulatory             R no
Balance of cost offset           $0.2272

 

ATTACHMENT D

 

 

Details of the Migration Amendment (Investor Visas) Regulation 2015

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment (Investor Visas) Regulation 2015 (the Amendment Regulation).

 

Section 2 - Commencement

 

This section provides that the Regulation commences on 1 July 2015.

 

Section 3 - Authority

 

This section provides that this regulation is made under the Migration Act 1958 (the Migration Act).

 

The purpose of this section is to set out the Act under which the Amendment Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The purpose of this section is to provide for how the amendments in this Regulation operate.

 

Schedule 1 - Amendments

 

Migration Regulations 1994

 

Item 1 - Regulation 1.03

 

This item inserts the definition of "CEO of Austrade" into Regulation 1.03.

 

The effect of this amendment is to define "CEO of Austrade" as the Chief Executive Officer of the Australian Trade Commission referred to in section 7B of the Australian Trade Commission Act 1985.

 

The purpose of this amendment is to set out to whom "CEO of Austrade" refers.

 

Item 2 - Regulation 1.03

 

This item inserts the definition of "complying premium investment" into Regulation 1.03.

 

The effect of this amendment is to direct the reader to regulation 5.19D, where "complying premium investment" is defined.

 

The purpose of this amendment is to make clear where in the Migration Regulations "complying premium investment" is defined.

 

Item 3 - Regulation 1.03

 

This item inserts the definition of "complying significant investment" into Regulation 1.03.

 

The effect of this amendment is to direct the reader to regulation 5.19C, where "complying significant investment" is defined.

 

The purpose of this amendment is to set out where in the Migration Regulations "complying significant investment" is defined.

 

Item 4 - Regulation 5.19B (note)

 

This repeals the note at the end of regulation 5.19B.

 

The note clarified that for future amendments that Regulations 5.19C to 5.19F were reserved for future use.

 

This amendment is consequential to item [5], which inserts a new note at the end of new regulation 5.19D.

 

Item 5 - At the end of Division 5.3

 

This item inserts regulations 5.19C and 5.19D into Division 5.3 of Part 5 of the Migration Regulations.

 

Regulation 5.19C - complying significant investment

 

Regulation 5.19C outlines what constitutes a "complying significant investment".  The purpose of regulation 5.19C is to set out the requirement that must be met for an investment or investments to be a complying significant investment.  It is a criterion for the grant of the Subclass 188 (Business Innovation and Investment (Provisional)) visa (Subclass 188 visa) in either the Significant Investor stream or the Significant Investor Extension stream and for the Subclass 888 (Business Innovation and Investment (Permanent)) visa (Subclass 888 visa) in the Significant Investor stream that the visa applicant must have made and hold a complying significant investment.

 

Subregulation 5.19C(1) provides that an investment by a person (the investor) is a complying significant investment if all of the requirements of this regulation are met.

 

Subregulation 5.19C(2) provides that if a reference to an investment (the overall investment) is based on one or more other investments, this regulation (and any instrument under subregulation 5.19C(6)) applies equally to the overall investment and each investment on which the overall investment is based.

 

Subregulation 5.19C(3) provides that all funds used to make the investment must be unencumbered and lawfully acquired.

 

Subregulation 5.19C(4) provides that the investment must be lawful and must not form the basis for security or collateral for a loan.  All investments must be compliant with the Foreign Investment Review Board (FIRB) rules to be lawful, among other relevant legal requirements.

 

Subregulation 5.19C(5) provides that an investment, and the means by which the investment is made must be of a kind permitted by the requirements specified in an instrument under subregulation 5.19C(6) and must comply with any requirements specified in an instrument under subregulation 5.19C(6).

 

Subregulation 5.19C(6) provides that the Minister may, by legislative instrument, specify requirements for the purposes of subregulation 5.19C(5).  Without limiting what this instrument may do, the instrument made under subregulation 5.19C(6) may set out what is and is not a relevant investment and may also list what percentage of the investment must be invested in certain products or assets.

 

Subregulation 5.19C(7) provides that subregulation 5.19C(8) applies in relation to a period of time (the switching period):

(a)        beginning when the investor withdraws funds from the investment, or cancels the investment; and

(b)        ending when the investor reinvests the withdrawn funds, or the funds used to make the cancelled investment.

 

Subregulation 5.19C(8) provides that if the switching period is no more than 30 days duration, the investment is taken not to have ceased to be a complying significant investment during the switching period only because of the event mentioned in paragraph 5.19C(7)(a).  The purpose of subregulation 5.19C(8) is to allow the investor to capitalise on different financial opportunities within the different categories of investment permitted by a legislative instrument made under subregulation 5.19C(6).  The operation of subregulation 5.19C(8) is complemented by condition 8557, which requires a visa holder to hold the investment for the whole of the visa period.

 

Subregulation 5.19C(9) provides that the investor must be an individual.

 

Subregulation 5.19C(10) provides that the investor must make the investment:

(a)        personally; or

(b)        with the investor's spouse or de facto partner; or

(c)        by means of a company that has issued shares and in which:

(i)        the investor holds all of the issued shares; or

(ii)       the investor and the investor's spouse or de facto partner hold all of the issued shares; or

(d)       by means of a trust to which the following applies:

(i)        the trust is lawfully established;

(ii)       the investor is the sole trustee or the investor and the investor's spouse or de facto partner are the sole trustees;

(iii)      the investor is the sole beneficiary or the investor and the investor's spouse or de facto partner are the sole beneficiaries.

 

Where the trustee and the beneficiary are the same individual, the trust would not be lawfully established:

*                  If the investor is the sole trustee then the investor and the investor's spouse or de facto partner must be the sole beneficiaries;

*                  If the investor is the sole beneficiary then the investor and the investor's spouse or de facto partner must be the sole trustees;

*                  The investor and the investor's spouse or de facto partner may be the sole trustees and the sole beneficiaries;

*                  However, the investor cannot be the only trustee and the only beneficiary.

 

Regulation 5.19D - complying premium investment

 

Regulation 5.19D outlines what constitutes a 'complying premium investment'.  This amendment is consequential to the amendments at items [27] and [41], which insert a Premium Investor stream in Part 188 of Schedule 2, and a Premium Investor stream in Part 888 of Schedule 2 to the Migration Regulations.  The purpose of regulation 5.19D is to set out the requirement that must be met for an investment or investments to be a complying premium investment.  It is a criterion for the grant of the Subclass 188 visa in the Premium Investor stream and for the Subclass 888 visa in the Premium Investor stream that the visa applicant must have made and hold a complying premium investment.

 

Subregulation 5.19D(1) provides that an investment or a philanthropic contribution or a combined investment and philanthropic contribution by a person (the investor) is a complying premium investment if all of the requirements of this regulation are met.

 

Subregulation 5.19D(2) provides that if an investment (the overall investment) is based on one or more other investments, regulation 5.19D (and any instrument under subregulation 5.19D(9)) applies equally to the overall investment and each investment on which the overall investment is based.

 

Subregulation 5.19D(3) provides that if a philanthropic contribution (the overall contribution) is based on one or more other philanthropic contributions, regulation 5.19D applies equally to the overall contribution and each philanthropic contribution on which the overall contribution is based.

 

Subregulation 5.19D(4) provides that all funds used to make an investment or philanthropic contribution (or both) must be unencumbered and lawfully acquired.

 

Subregulation 5.19D(5) provides that an investment or philanthropic contribution (or both) must be lawful and must not form the basis for security or collateral for a loan.  All investments must be compliant with the Foreign Investment Review Board (FIRB) rules to be lawful and any other applicable Australian laws.

 

Subregulation 5.19D(6) provides that a philanthropic contribution must be approved for this regulation, in writing, by a State or Territory government agency.  The term 'philanthropic contribution' is not defined and the ordinary meaning of the term 'philanthropic' is broad.  This gives the State and Territory government agency approving the philanthropic contribution the flexibility to determine what may constitute a 'philanthropic contribution' for the purposes of the Migration Regulations.

 

Subregulation 5.19D(7) provides that an investment, and the means by which the investment is made, must be of a kind permitted by the requirements specified in an instrument under subregulation 5.19D(8) and must comply with any requirements specified in an instrument under subregulation 5.19D(8).

 

Subregulation 5.19D(8) provides that the Minister may, by legislative instrument, specify requirements for the purposes of subregulation 5.19D(7).  Without limiting what this instrument may do, the instrument made under subregulation 5.19D(8) may set out what is and is not a relevant investment and may also list what percentage of the investment must be invested in certain products or assets.

 

Subregulation 5.19D(9) provides that subregulation 5.19D(10) applies in relation to a period (the switching period):

(a)        beginning when the investor withdraws funds from an investment, or cancels an investment; and

(b)        ending when the investor reinvests the withdrawn funds, or the funds used to make the cancelled investment.

Subregulation 5.19D(10) provides that if the switching period is of no more than 30 days duration, the investment (whether or not combined with a philanthropic contribution) is taken not to have ceased to be a complying premium investment during the switching period only because of the event mentioned in paragraph 5.19D(9)(a) The purpose of subregulation 5.19D(10) is to allow the investor to capitalise on different financial opportunities within the different categories of investment permitted by a legislative instrument made under subregulation 5.19D(8) or a philanthropic contribution made under subregulation 5.19D(6).  The operation of subregulation 5.19D(10) complements condition 8557, which requires a visa holder to hold the investment for the whole of the visa period.

 

Subregulation 5.19D(11) provides that the investor must be an individual.

 

Subregulation 5.19D(12) provides that the investor must make an investment or philanthropic contribution (or both):

(a)        personally; or

(b)        with the investor's spouse or de facto partner; or

(c)        by means of a company that has issued shares and in which:

(i)        the investor holds all of the issued shares; or

(ii)       the investor and the investor's spouse or de facto partner hold all of the issued shares; or

(d)       by means of a trust to which the following applies:

(i)        the trust is lawfully established;

(ii)       the investor is the sole trustee or the investor and the investor's spouse or de facto partner are the sole trustees;

(iii)      the investor is the sole beneficiary or the investor and the investor's spouse or de facto partner are the sole beneficiaries.

 

Where the trustee and the beneficiary are the same individual, the trust would not be lawfully established:

*                  If the investor is the sole trustee then the investor and the investor's spouse or de facto partner must be the sole beneficiaries;

*                  If the investor is the sole beneficiary then the investor and the investor's spouse or de facto partner must be the sole trustees;

*                  The investor and the investor's spouse or de facto partner may be the sole trustees and the sole beneficiaries;

*                  However, the investor cannot be the only trustee and the only beneficiary.

 

A note clarifies that regulations 5.19E and 5.19F are reserved for future use.

 

Item 6 - Paragraph 1104BA(3)(c) of Schedule 1

 

This item repeals and substitutes paragraph 1104BA(3)(c).

 

Previously paragraph 1104BA(3)(c) provided that, at the time of making their application for a Subclass 888 visa, an applicant seeking to satisfy the primary criteria must be nominated by a State or Territory government agency.

 

New paragraph 1104BA(3)(c) provides that an applicant seeking to satisfy the primary criteria must be nominated by:

(i)        if the applicant is seeking to satisfy the primary criteria for the grant of a Subclass 888 visa in the Business Innovation stream or the Investor stream--a State or Territory government agency; or

(ii)       if the applicant is seeking to satisfy the primary criteria for the grant of a Subclass 888 visa in the Significant Investor stream--a State or Territory government agency or the CEO of Austrade; or

(iii)      if the applicant is seeking to satisfy the primary criteria for the grant of a Subclass 888  visa in the Premium Investor stream--the CEO  of Austrade.

 

The effect of this amendment is to require that an applicant for a Subclass 888 visa be nominated by either a State or Territory government agency or the CEO of Austrade, depending on the stream for which the applicant has applied.

 

The purpose of this amendment is to set out that an applicant must be nominated as specified in order to make a valid application for a    for a Subclass 888 visa.

Item 7 - Subitem 1104BA(4) of Schedule 1 (table item 2)

 

This item repeals and substitutes table item 2 of subitem 1104BA(4). An applicant seeking to satisfy the primary criteria for the grant of a Subclass 888 visa in the Business Innovation stream must meet the requirements of at least one item in the table in order to make a valid application.

 

Old table item 2 provided that both of the following apply:

(a)        the applicant holds a Subclass 188 visa granted on the basis that the applicant was the spouse or de facto partner of a person who held a Subclass 188 visa in the Business Innovation stream or the Business Innovation Extension stream; and

(b)        either:

(i)        the applicant has ceased to be the spouse or de facto partner of that person; or

(ii)       that person has since died

 

New table item 2 provides that the applicant holds a Subclass 188 visa granted on the basis that the applicant was the spouse or de facto partner of a person who held a Subclass 188 visa in the Business Innovation stream or the Business Innovation Extension stream.

 

The effect of this amendment is that the primary and secondary applicants (spouses and defacto parnters only) can switch who will meet the primary criteria at the time of applying for the Subclass 888 visa in the Business Innovation stream or the Business Innovation Extension stream.  This allows the primary applicant for the provisional visa to become the secondary applicant for the permanent visa while the secondary applicant for the provisional visa becomes the primary applicant for the permanent visa

 

The amendment will enable primary visa holders with well-established businesses in their home country to maintain their businesses offshore and have their spouse or de facto run their Australian business, thereby increasing the flexibility and attractiveness of the Business Innovation and Investment Programme (BIIP).

 

Item 8 - Subitem 1104BA(5) of Schedule 1 (table item 2)

 

This item repeals and substitutes table item 2 of subitem 1104BA(5).  An applicant seeking to satisfy the primary criteria for the grant of a Subclass 888 visa in the Investor stream must meet the requirements of at least one item in the table in order to make a valid application.

 

Old table item 2 provided that both of the following apply:

(a)        the applicant holds a Subclass 188 visa granted on the basis that the applicant was the spouse or de facto partner of a person who held a Subclass 188 visa in the Investor stream;

(b)        either:

(i)        the applicant has ceased to be the spouse or de facto partner of that person; or

(ii)       that person has since died

 

New table item 2 provides that the applicant holds a Subclass 188 visa granted on the basis that the applicant was the spouse or de facto partner of a person who held a Subclass 188 visa in the Investor stream.

 

The effect of this amendment is that the primary and secondary applicants (spouses and de facto partners only) can switch who will meet the primary criteria at the time of applying for the Subclass 888 visa in the Investor stream.   This allows the primary applicant for the provisional visa to become the secondary applicant for the permanent visa while the secondary applicant for the provisional visa becomes the primary applicant for the permanent visa.

 

The amendment will enable primary visa holders with well-established businesses in their home country to maintain their businesses offshore and have their spouse or de facto run their Australian business, thereby increasing the flexibility and attractiveness of the Business Innovation and Investment Programme (BIIP).

 

Item 9 - After subitem 1104BA(5A) of Schedule 1

 

This item inserts a new subitem 1104BA(5B) into Schedule 1 to the Migration Regulations.

 

New subitem 1104BA (5B) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 888 visa in the Premium Investor stream must meet at least one of the following requirements in order to make a valid application:

*                  The applicant holds a Subclass 188 visa in the Premium Investor stream; or

*                  Both of the following apply:

(a)        the applicant holds a Subclass 188 visa granted on the basis that the applicant was the spouse or de facto partner of the primary visa holder who held a Subclass 188 visa in the Premium Investor stream;

(b)        either:

(i)        the applicant has ceased to be the spouse or de facto partner of the primary visa holder; or

(ii)       that primary visa holder has since died.

 

The effect of this amendment is that an applicant who holds a Subclass 188 visa in the Premium Investor stream may apply for a Subclass 888 visa in the Premium Investor stream. Further, an applicant who is a holder of a Subclass 188 visa granted on the basis that the applicant was the spouse or de facto partner of the primary visa holder who held a Subclass 188 visa in the Premium Investor stream can still apply for a Subclass 888 visa in the Premium Investor stream where the primary visa holder and the applicant are no longer in a relationship or the primary visa holder has died. The applicant who is a holder of a Subclass 188 visa granted on the basis that the applicant was the spouse or de facto partner of the primary visa holder will have to meet the primary criteria for the grant of the Subclass 888 visa in the Premium Investor stream, which will include the visa holder holding a complying premium investment.

 

The purpose of this amendment is to allow the holders of Subclass 188 visas in the Premium Investor stream to make a valid application for a Subclass 888 visa in the Premium Investor stream.  Unlike the Business Innovation and Investor streams, the primary and secondary applicants cannot switch who will meet the primary criteria at the permanent stage unless the primary applicant has died or they have ended their relationship, for example through divorce.

 

Item 10 - Before subparagraph 1202B(2)(a)(ii) of Schedule 1

 

This item inserts a new subparagraph 1202B(2)(a)(ib) into Schedule 1 to the Migration Regulations.

 

New subparagraph 1202B(2)(a)(ib) provide that for an applicant seeking to satisfy the primary criteria for the grant of a Subclass 188 visa in the Premium Investor stream or for an applicant whose application is combined, or sought to be combined, with an application made by such a person, then the visa application charge will be worked out as follows:

*                  Base application charge is $8,410;

*                  Additional applicant charge for an applicant who is at least 18 is $4,205; and

*                  Additional applicant charge for an applicant who is less than 18 is $2,105.

 

The purpose of this amendment is to provide for the visa application charge and allow an applicant for a Subclass 188 visa in the Premium Investor stream to make a valid application.

 

This amendment is consequential to the amendments at items [27] and [41], which introduce the Premium Investor stream in Part 188 of Schedule 2 to the Migration Regulations.

 

Item 11 - Subitem 1202B(6A) of Schedule 1 (at the end of the cell at table item 3, column headed "requirements")

 

This item inserts after "State or Territory government agency" the words "or the CEO of Austrade" into table item 3 of subitem 1202B(6A).  An applicant seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor stream must meet the requirements in the table in order to make a valid application.

 

Table item 3 now requires that the applicant be nominated by a State or Territory government agency or the CEO of Austrade.

 

The effect of this amendment is that an applicant for a Subclass 188 visa in the Significant Investor stream must be nominated by either a State or Territory government agency or Austrade.

 

The purpose of this amendment is to enable Austrade to nominate applicants for a Subclass 188 visa in the Significant Investor stream.

 

 

Item 12 - Subitem 1202B(6B) of Schedule 1 (at the end of the cell at table item 1, column headed "requirements")

 

This item inserts after "State or Territory government agency" the words "or the CEO of Austrade" into table item 1 of Subitem 1202B(6B).  An applicant seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor Extension stream must meet the requirements in the table in order to make a valid application.

 

Table item 1 now requires that the applicant be nominated by a State or Territory government agency or the CEO of Austrade.

 

The effect of this amendment is that an applicant for a Subclass 188 visa in the Significant Investor Extension stream must be nominated by either a State or Territory government agency or Austrade.

 

The purpose of this amendment is to enable Austrade to nominate applicant for a Subclass 188 visa in the Significant Investor Extension stream.

 

 

Item 13 - After subitem 1202B(6B) of Schedule 1

 

This item inserts a new subitem 1202B(6C) into Schedule 1 to the Migration Regulations.

 

New subitem 1202B(6C) provides that an applicant seeking to satisfy the primary criteria for a Subclass 188 visa in the Premium Investor stream must meet all of the following requirements in order to make a valid application:

*                  The applicant must have been invited, in writing, by the Minister to apply for a Subclass 188 visa in the Premium Investor stream;

*                  The applicant must apply for that visa within the period stated in the invitation; and

*                  The applicant must be nominated by the CEO of Austrade.

A note clarifies that the invitation to apply for the visa will identify the stream to which the invitation relates.

 

The effect of this amendment is that an applicant can only make a valid application for a Subclass 188 visa in the Premium Investor stream if they are invited to apply, they apply within the specified time and they are nominated by Austrade.

 

The purpose of the amendment is to set out some additionalrequirements that an applicant must meet to make a valid application for a Subclass 188 visa in the Premium Investor  stream.

 

This amendment is consequential to the amendments at items [27] and [41], which introduce the Premium Investor stream in Part 188 of Schedule 2 to the Migration Regulations.

 

Item 14 - Part 188 of Schedule 2 (heading)

 

This item repeals and substitutes the heading of Part 188 of Schedule 2.

 

Old heading was "Part 188--Business Innovation and Investment (Provisional)".

 

New heading is "Subclass 188--Business Innovation and Investment (Provisional)".

 

This is a technical amendment only. This amendment does not make substantive changes to the Migration Regulations.

 

The purpose of this amendment is to ensure that the Part heading is consistent with subregulation 2.02(1).

 

Item 15 - Clause 188.113 of Schedule 2 (Note 5)

 

This item repeals and substitutes Note 5 and inserts Notes 6 and 7.

 

Note 5 is unchanged and provides that "complying investment" is defined in regulation 5.19B.

 

New Note 6 provides that "complying significant investment" is defined in regulation 5.19C.

 

New Note 7 provides that "complying premium investment" is defined in regulation 5.19D.

 

The purpose and effect of this amendment is to insert references to the new terms "complying premium investment" and "complying significant investment".

 

This amendment is consequential to the amendments at items [2], [3] and [5], which introduce the terms "complying premium investment" and "complying significant investment".

 

Item 16 - Division 188.2 of Schedule 2 (note)

 

This item inserts after "If an applicant applies for a Subclass 188 visa in the Significant Investor Extension stream, the criteria in Subdivisions 188.21 and 188.26 are the primary criteria." the words "If an applicant applies for a Subclass 188 visa in the Premium Investor stream, the criteria in Subdivisions 188.21 and 188.27 are the primary criteria for the grant of the visa." into the note under the heading of Division 188.2.

 

The purpose and effect of this amendment is to clarify which Subdivisions contain the primary criteria for the Subclass 188 visa in the Premium Investor stream.

 

This amendment is consequential to the amendments at items [27] and [41], which introduce the Premium Investor stream in Part 188 of Schedule 2 to the Migration Regulations.

 

Item 17 - Clause 188.212 of Schedule 2

 

This item inserts after "State or Territory government agency" the words "or the CEO of Austrade" into clause 188.212.  An applicant seeking to satisfy the primary criteria for a Subclass 188 visa must meet the criteria set out in subdivision 188.21.

 

Old clause 188.212 required that the nominating State or Territory government agency has not withdrawn the nomination.

 

The effect of this amendment is that, at the time of decision, whichever agency (including Austrade) nominated the applicant, they have  not withdrawn the nomination.

 

 

This amendment is consequential to the amendments at item [13], which allows Austrade to nominate applicant for a Subclass 188 visa.

 

Item 18 - Clause 188.252 of Schedule 2

 

This item repeals and substitutes clause 188.252.

 

Old clause 188.252 provided that the applicant has made a complying investment based on one or more investments of at least AUD5,000,000 and the applicant has a genuine intention to hold the complying investment for at least 4 years.

 

New subclause 188.252(1) provides that the applicant has made a complying significant investment, within the meaning of regulation 5.19C as in force at the time of application, of at least AUD5,000,000 and that the investment was made on or after the time of application.

 

New subclause 188.252(2) provides that the applicant has a genuine intention to hold the complying significant investment for at least 4 years.  A note clarifies that the complying significant investment may be based on one or more investments.

 

The purpose and effect of new subclause (1) is to ensure that, from 1 July, applicants for a Subclass 188 SIV stream visa must make an investment that complies with the new requirements set out in new regulation 5.19C, termed a "complying significant investment".  The investment must comply with regulation 5.19C (and the instrument made under that regulation) as in force at the time of application. The applicant must make a new investment on or after the time of application and cannot rely on a pre-existing investment.  

 

The purpose and effect of new subclause (2) is to retain the requirement that the applicant must have a genuine intention to hold the investment for at least 4 years.

 

 

 

This amendment is consequential to the amendments at items [3] and [5], which introduce the term "complying significant investment".

 

Item 19 - Subclause 188.253(1) of Schedule 2

 

This item repeals and substitutes subclause 188.253(1).

 

Old subclause 188.253(1) provided that the applicant has given the Minister a completed copy of approved form 1413 for each investment in a managed fund on which the complying investment is based. A note clarified that approved form 1413 includes a declaration that the investments made by a managed fund for the benefit of clients are limited to one or more of the purposes specified by the Minister for paragraph 5.19C(2)(c).

 

New subclause 188.253(1) provides that the applicant has given the Minister evidence that the investment complies with the requirements set out in regulation 5.19C as in force at the time of application.

 

The purpose and effect of this amendment is that the applicant must provide the Minister evidence to satisfy the Minister that each investment complies with the requirements that existed at the time the application was made. Evidence may be provided through completed approved forms or other mechanisms specified in policy. The purpose of this amendment is to enable the relevant forms to be updated and changed without amending the regulations.   

 

Item 20 - Subclause 188.253(2) of Schedule 2 (paragraphs (b) and (c) of the note)

 

This item omits the words "complying investment" and substitutes the words "complying significant investment" where they occur.

 

The note now provides that form 1412 is a deed of acknowledgment, undertaking and release, signed by each person mentioned in subclause 188.253(2), under which they:

*                  acknowledge that they are responsible for their financial and legal affairs; and

*                  undertake not to bring an action against the Commonwealth in relation to any loss relating to the complying significant investment; and

*                  release the Commonwealth from any liabilities in relation to any loss relating to the complying significant investment.

 

The term "complying investment" is only applicable where the application for the most recent Subclass 188 visa in the Significant Investor stream was made before 1 July 2015.

 

This amendment is consequential to the new requirement that an applicant must make a complying significant investment, rather than a complying investment. .

 

Item 21 - Clause 188.254 of Schedule 2

 

This item repeals and substitutes clause 188.254.

 

Old clause 188.254 provided that the applicant has a genuine intention to reside in the State or Territory whose government agency nominated the applicant.

 

New clause 188.254 provides that if the applicant was nominated by a State or Territory government agency, one or more of the applicant, or the applicant's spouse or de facto partner, has a genuine intention to reside in the State or Territory whose government agency nominated the applicant.

 

The effect of this amendment is that where an applicant is nominated by a State or Territory government agency, the applicant, or the applicant's spouse or de facto partner, is required to reside in that State or Territory.  Where an applicant is nominated by Austrade, neither the applicant nor the applicant's spouse or de facto partner are required to reside in a particular State or Territory.

 

The purpose of this amendment is to clarify that only applicants nominated by a State or Territory government agency must reside in a particular State or Territory. This amendment is consequential to the amendments at item [13], which allows Austrade to nominate an applicant for a Subclass 188 visa in the Significant Investor stream.

 

Item 22 - Subclause 188.261(1) of Schedule 2

 

This item repeals and substitutes subclause 188.261(1) and inserts subclauses 188.261(1A) and (1B).

 

Old subclause 188.261(1) required that the applicant continues to hold the complying investment on the basis of which the Subclass 188 visa held by the applicant in the Significant Investor stream or the Significant Investor Extension stream was granted.

 

New subclause 188.261(1) provides that the applicant meets the requirements of subclause 188.261(1A) or (1B).

 

New subclause 188.261(1A) requires that both the following apply:

*                  the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made before 1 July 2015; and

*                  the applicant continues to hold a complying investment within the meaning of regulation 5.19B as in force at the time the application mentioned in paragraph 188.261(1A)(a) was made.

 

New subclause 188.261(1B) requires that both the following apply:

*                  the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made on or after 1 July 2015; and

*                  the applicant continues to hold a complying significant investment within the meaning of regulation 5.19C as in force at the time the application mentioned in paragraph 188.261(2)(a) was made.

 

This amendment is consequential to the new requirement that, from 1 July, an applicant for a Subclass 188 SIV stream visa must make a complying significant investment in accordance with regulation 5.19C, rather than a complying investment in accordance with regulation 5.19B.  

 

The effect of the amendment is that:

*         if the initial Subclass 188 SIV stream visa was applied for before 1 July 2015, then the subsequent extension and permanent visa applications will be assessed against the investment requirements in regulation 5.19B as it was in force at the time of the initial Subclass 188 application; and

*         if the initial Subclass 188 SIV stream visa was applied for after 1 July 2015, then the subsequent extension and permanent visa applications will be assessed against the investment requirements in regulation 5.19C as it was in force at the time of the initial Subclass 188 application.

 

The purpose is to ensure that where a person applies for a Subclass 188 SIV Extension stream or a Subclass 888 (Permanent) visa, they remain subject to the same complying investment framework that was in force at the time they applied for the initial Subclass 188 SIV stream visa.  This provides the applicant with certainty about what the investment requirements will be throughout the period of the provisional and permanent visa stages.

 

Item 23 - Subclause 188.261(2) of Schedule 2

 

This item omits the words "complying investment" and substitutes the words "investment mentioned in subclause (1A) or (1B) for the applicant".

 

New subclause 188.261(2) provides that for any part of the investment mentioned in subclause 188.261(1A) or (1B) for the applicant that is, or was, a direct investment in an Australian proprietary company:

*                  if the period of the direct investment was less than 2 years, the company was 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, the Minister is satisfied that the applicant made a genuine attempt to operate the business as a qualifying business.

 

This amendment is consequential to the amendment at item [22], which ensures that the visa holder is subject to the complying investment or complying significant investment framework in force when the visa holder applied for their most recent Subclass 188 visa.

 

Item 24 - Subclause 188.261(3) of Schedule 2

 

This item repeals and substitutes subclause 188.261(3).

 

Old subclause 188.261(3) provided that the applicant has given the Minister a completed copy of approved form 1413 for each investment in a managed fund on which the complying investment is based.

 

New subclause 188.261(3) provides that the applicant has given the Minister:

*                  if subclause 188.261(1A) applies to the applicant--a completed copy of approved form 1413 for each investment in a managed fund on which the investment mentioned in that subclause is based; or

*                  if subclause 188.261(2) applies to the applicant--evidence that the investment has been made as required for that subclause.

 

The effect of this amendment is that the applicant must provide the Minister a completed copy of approved form 1413 for each investment in a managed fund on which the complying investment is based, where the applicant most recently applied for a Subclass 188 visa in the Significant Investor stream before 1 July 2015.

 

For applicants whose most recent Subclass 188 visa was granted on the basis of an application made on or after 1 July 2015, the purpose and effect of this amendment is that the applicant must provide the Minister evidence to satisfy the Minister that each investment complies with the requirements that existed at the time the application was made. Evidence may be provided through completed approved forms specified in policy.The purpose of this amendment is to enable the relevant forms to be updated and changed without amending the regulations.   ,

 

Item 25 - Subclause 188.261(4) of Schedule 2 (paragraphs (b) and (c) of the note)

 

This item omits the words "complying investment" and substitutes the words "relevant investment".

 

The note at subclause 188.261(4) now provides that approved form 1412 is a deed of acknowledgment, undertaking and release, signed by each person mentioned in subclause 188.261(4), under which they:

*                  acknowledge that they are responsible for their financial and legal affairs; and

*                  undertake not to bring an action against the Commonwealth in relation to any loss relating to the relevant investment; and

*                  release the Commonwealth from any liabilities in relation to any loss relating to the relevant investment.

 

This amendment is consequential to the introduction of the 'complying significant investment' and the 'complying premium investment'.

Item 26 - At the end of Division 188.2 of Schedule 2

 

This item adds subdivision 188.27, which relates to the criteria for the Premium Investor stream, into Division 188.2 of Schedule 2 to the Migration Regulations.

 

New subdivision 188.27 provides for the primary criteria that the applicant must satisfy in order to be granted a Subclass 188 visa in the Premium Investor stream.  The note under Subdivision 188.27 clarifies that the criteria in that subdivision are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Premium Investor stream.  The purpose of the new subdivision is to provide the basis upon which visa applicants may be granted a Subclass 188 visa in the Premium Investor stream.

 

New clause 188.271 requires that the applicant was invited, in writing, by the Minister to apply for the Subclass 188 visa in the Premium Investor stream.

 

New clause 188.272 requires that:

*                  the applicant has made, on or after the time of application, a complying premium investment (within the meaning of regulation 5.19D as in force at the time of application) of at least AUD 15,000,000; and

*                  the applicant has a genuine intention to hold the complying premium investment for the whole of the visa period (except any part of the investment that is a philanthropic contribution).

A note clarifies that a complying premium investment may be based on one or more investments or one or more philanthropic contributions, or a combination of both.

 

New clause 188.273 requires that:

*                  the applicant has given the Minister evidence that the investment complies with the requirements set out in regulation 5.19D as in force at the time of application; and

*                  the applicant has given the Minister a completed copy of approved form 1412, signed by the applicant and each other applicant aged at least 18.

A note clarifies that approved form 1412 is a deed of acknowledgement, undertaking and release, signed by each person mentioned in subclause 188.273(2), under which they acknowledge that they are responsible for their financial and legal affairs, undertake not to bring an action against the Commonwealth in relation to any loss relating to the complying premium investment, and release the Commonwealth from any liabilities in relation to any loss relating to the complying premium investment.  The effect and purpose of the amendment is to describe what is included in the deed of acknowledgement.

 

New clause 188.274 requires that the applicant satisfies public interest criterion (PIC) 4005, each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies PIC 4005 and each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies PIC 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.  PIC 4005 is one of the 'health' criteria applicable to almost every visa subclass.  The health criteria are designed to minimise risks to public health in the Australian community, contain public expenditure on health and community services and ensure that Australian residents have access to health and other community services.  Under the health criteria, visa applicants' health is assessed with these factors in mind.  The purpose of clause 188.274 is to ensure that the all applicants (and family members) are required to satisfy PIC 4005, which is consistent with clauses 188.229A, 188.249 and 188.255 of Schedule 2 to the Migration Regulations.  It is intended that PIC 4005 be applicable to each stream in the Subclass 188 visa that is not an Extension stream.

 

Item 27 - Paragraph 188.311A(b) of Schedule 2

 

This item omits the words "or the Significant Investor Extension stream" and substitutes the words ", the Significant Investor Extension stream or the Premium Investor stream".

 

Clause 188.311A now provides that if the applicant has turned 18 and the primary applicant holds a Subclass 188 visa in the Significant Investor stream, the Significant Investor Extension stream or the Premium Investor stream, then the applicant must give the Minister a completed copy of approved form 1412.

 

Approved form 1412 is a deed of acknowledgment, undertaking and release, signed by the primary applicant and each applicant aged 18 years and over, whereby each applicant acknowledges that they are responsible for their financial and legal affairs, that they undertake not to bring an action against the Commonwealth and that they release the Commonwealth from any liabilities in relation to any loss relating to the complying investment.

 

This amendment is consequential to the amendments at item [26], which introduces the Premium Investor stream in Part 188 of Schedule 2 to the Migration Regulations.

 

Item 28 - Clause 188.311A of Schedule 2 (paragraphs (b) and (c) of the note)

 

This item omits the words "complying investment" and substitutes the words "relevant investment".

 

The note at clause 188.311A now provides that approved form 1412 is a deed of acknowledgment, undertaking and release, signed by the primary applicant, and each other applicant aged at least 18 years, under which they acknowledge that they are responsible for their financial and legal affairs, undertake not to bring an action against the Commonwealth in relation to any loss relating to the relevant investment, and release the Commonwealth from any liabilities in relation to any loss relating to the relevant investment.

 

This amendment is consequential to the introduction of a "complying significant investment" and "complying premium investment" in addition to the "complying investment".

Item 29 - Subclause 188.312(4) of Schedule 2

 

This item omits the words "or the Significant Investor stream" and substitutes the words ", the Significant Investor stream or the Premium Investor stream".

 

Subclause 188.312(4) now provides that if the primary applicant holds a Subclass 188 visa in the Business Innovation stream, the Investor stream, the Significant Investor stream or the Premium Investor stream, the secondary applicant must satisfy PIC 4005.

 

PIC 4005 is one of the 'health' criteria applicable to almost every visa subclass.  The health criteria are designed to minimise risks to public health in the Australian community, contain public expenditure on health and community services and ensure that Australian residents have access to health and other community services.  Under the health criteria, visa applicants' health is assessed with these factors in mind.

 

The effect of this amendment is to ensure that the all secondary applicants (except in the Extension streams) are required to satisfy PIC 4005. 

 

Item 30 - Clause 188.511 of Schedule 2

 

This item repeals and substitutes clause 188.511, which deals with when a visa is in effect.

 

Old clause 188.511 provided that if the applicant satisfied the primary criteria for the grant of a Subclass 188 visa in the Business Innovation stream, the Investor stream or the Significant Investor stream, temporary visa permitting the holder to travel to, enter and remain in Australia for 4 years from the date of grant.

 

New clause 188.511 provides that if the applicant satisfied the primary criteria for the grant of a Subclass 188 visa in the Business Innovation stream, the Investor stream, the Significant Investor stream, or the Premium Investor stream, temporary visa permitting the holder to travel to, enter and remain in Australia for 4 years and 3 months from the date of grant.

 

The effect of this amendment is to extend the period of stay permitted for all BIIP streams within the subclass 188 visa, excluding the two extension streams, from 4 years to 4 years and 3 months.

 

The purpose of this amendment is to allow the applicant sufficient time to fulfil the requirements for a Subclass 888 visa.

 

Item 31 - Clause 188.512A of Schedule 2

 

This item omits "Australia" and substitutes "Australia:".

 

This is a technical amendment only. This amendment does not make substantive changes to the Migration Regulations.

 

The purpose of this amendment is to insert a colon missing at the end of the chapeau of clause 188.512A that was missed in the Migration Amendment Regulation 2012 (No.7), which inserted the clause.

 

Item 32 - Clause 188.612 of Schedule 2

 

This item omits the words "or the Significant Investor Extension stream" and substitutes the words ", the Significant Investor Extension stream or the Premium Investor stream".

 

Clause 188.612 now provides that if the applicant is granted a Subclass 188 visa in the Significant Investor stream, the Significant Investor Extension stream or the Premium Investor stream, condition 8557 must be imposed.

 

The purpose and effect of this amendment is to impose condition 8557 on Subclass 188 visas granted in the Premium Investor stream in addition to the other streams.  Condition 8557 provides that the visa holder must hold the relevant investment for the whole of the visa period.  The term 'visa period' is relevantly defined in subsection 5(1) of the Migration Act 1958 ('the Migration Act') to mean a period beginning when the visa is granted and ending when it ceases to be in effect.

 

Item 33 - Clause 888.111 of Schedule 2 (Note 5)

 

This item repeals and substitutes Note 5 and inserts Notes 6 and 7.

 

Note 5 is unchanged and provides that "complying investment" is defined in regulation 5.19B.

 

New Note 6 provides that "complying significant investment" is defined in regulation 5.19C.

 

New Note 7 provides that "complying premium investment" is defined in regulation 5.19D.

 

The purpose and effect of this amendment is to insert references to the new terms "complying premium investment" and "complying significant investment".

 

This amendment is consequential to the amendments at items [2], [3] and [5], which introduce the terms "complying premium investment" and "complying significant investment".

 

Item 34 - Division 888.2 of Schedule 2 (note)

 

This item inserts after the words "If an applicant applies for a Subclass 888 visa in the Significant Investor stream, the criteria in Subdivisions 888.21 and 888.24 are the primary criteria for the grant of the visa." the words "If an applicant applies for a Subclass 888 visa in the Premium Investor stream, the criteria in Subdivisions 888.21 and 888.25 are the primary criteria for the grant of the visa." in the note under the heading of Division 888.2.

 

This amendment is consequential to the amendments at item [41], which inserts the Premium Investor stream into Part 888 of Schedule 2 to the Migration Regulations.

 

Item 35 - Clause 888.212 of Schedule 2

 

After "State or Territory government agency", insert "or the CEO of Austrade".  An applicant seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor Extension stream must meet the requirements in the table.

 

Clause 888.212 now requires that the nominating State or Territory government agency or the CEO of Austrade has not withdrawn the nomination.

 

The effect of this amendment is that a holder of a Subclass 188 visa seeking to satisfy the criteria for a Subclass 888 visa must be nominated by either a State or Territory government agency or Austrade, and this nomination has not been withdrawn.

 

The purpose of this amendment is to ensure that a holder of a Subclass 188 visa nominated by Austrade who has subsequently had this nomination withdrawn cannot be granted a Subclass 888 visa.

 

This amendment is consequential to the amendments at items [7] and [13], which allows Austrade to nominate an applicant for a Subclass 888 visa in the Significant Investor and Premium Investor stream.

 

Item 36 - Clause 888.232 of Schedule 2

 

This item repeals and substitutes clause 888.232.

 

Old clause 888.232 provided that the designated investment made by the applicant for the purpose of satisfying a criterion for the grant of a Subclass 188 visa has been held continuously in the name of the applicant, or in the names of the applicant and his or her spouse or de facto partner together, for at least 4 years.

 

New clause 888.232 provides that the designated investment made by the applicant for the purpose of satisfying a criterion for the grant of a Subclass 188 visa has been held continuously in the name of the applicant, or in the names of the applicant and his or her spouse or de facto partner together, for:

*                  if the Subclass 188 visa was granted on the basis of an application made before 1 July 2015--at least 3 years and 11 months; and

*                  if the Subclass 188 visa was granted on the basis of an application made on or after 1 July 2015--at least 4 years.

 

This amendment must be read in conjunction with the transitional at item [44], which provides that the amendments made by the Amendment Regulation apply in relation to an application for a visa made on or after 1 July 2015.  The effect of this amendment is that:

*                  a holder of a Subclass 188 visa in the Investment stream where the applicant most recently applied for a Subclass 188 visa before 1 July 2015 must continuously hold their designated investment for at least 3 years and 11 months; and

*                  a holder of a Subclass 188 visa in the Investment stream where the applicant most recently applied for a Subclass 188 visa on or after 1 July 2015 must continuously hold their designated investment for at least 4 years.

 

The purpose of this amendment is to ensure that an applicant can be eligible for the grant of the Subclass 888 visa before the ceasing of their Subclass 188 visa.  All Subclass 188 visas, excluding extension stream visas, applied for on or after the commencement of the Amending Regulation on 1 July 2015, will not cease until 4 years and 3 months after grant, and therefore the person can meet the 4 year requirement of the Subclass 888 visa before their Subclass 188 visa ceases.  However, for those Subclass 188 visas applied for before 1 July 2015, the visa will still cease 4 years after grant and hence the visa holder would not meet the Subclass 888 visa requirement until after their Subclass 188 visa ceases.  In that situation, the applicant must continuously hold their designated investment for only 3 years and 11 months so that the applicant can still meet the Subclass 888 visa requirements before their Subclass 188 visa ceases.

 

Item 37 - At the end of Subclause 888.241(1) of Schedule 2

 

This item inserts paragraph 888.241(1)(c).

 

New paragraph 888.241(1)(c) requires that the applicant:

*                  has held, for a continuous period of 3 years and 11 months, a Subclass 188 visa in the Significant Investor stream applied for before 1 July 2015; and

*                  has not held a Subclass 188 visa in the Significant Investor Extension stream granted on the basis of the visa mentioned in subparagraph 888.241(1)(c)(i).

 

The effect of this amendment is that:

*                  a holder of a Subclass 188 visa in the Significant Investment stream where the applicant most recently applied for a Subclass 188 visa before 1 July 2015 must continuously hold the relevant investment for at least 3 years and 11 months; and

*                  a holder of a Subclass 188 visa in the Significant Investment stream where the applicant most recently applied for a Subclass 188 visa on or after 1 July 2015 must continuously hold the relevant investment for at least 4 years.

 

The purpose of this amendment is to ensure that an applicant can be eligible for the grant of the Subclass 888 visa before the ceasing of their Subclass 188 visa.  All Subclass 188 visas, excluding extension stream visas, applied for after the commencement of the Amending Regulation on 1 July 2015, will not cease until 4 years and 3 months after grant, and therefore the person can meet the 4 year requirement of the Subclass 888 visa before their Subclass 188 visa ceases.  However, for those Subclass 188 visas applied for before 1 July 2015, the visa will still cease 4 years after grant and hence the visa holder would not meet the Subclass 888 visa requirement until after their Subclass 188 visa ceases.  In that situation, the applicant must continuously hold the relevant investment for only 3 years and 11 months so that the applicant can still meet the Subclass 888 visa requirements before their Subclass 188 visa ceases.

 

Item 38 - Subclause 888.241(2) of Schedule 2

 

This item repeals and substitutes subclause 888.241(2) and inserts subclauses 888.241(2A) and (2B).

 

Old subclause 888.241(2) provided that the applicant has held a complying investment for the whole of the period during which the applicant has held the visa or visas mentioned in subclause 888.241(1).

 

New subclause 888.241(2) provides that the applicant meets the requirements of subclause 888.241(2A) or (2B).

 

New subclause 188.261(2A) requires that both the following apply:

*                  the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made before 1 July 2015; and

*                  the applicant has held, for the whole of the period during which the applicant has held the visas or visa mentioned in subclause 188.261(1), a complying investment within the meaning of regulation 5.19B as in force at the time the application mentioned in paragraph 188.261(2A)(a) was made.

 

New subclause 188.261(2B) requires that both the following apply:

*                  the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made on or after 1 July 2015; and

*                  the applicant has held, for the whole of the period during which the applicant has held the visas or visa mentioned in subclause 188.261(1), a complying significant investment within the meaning of regulation 5.19C as in force at the time the application mentioned in paragraph 188.261(2A)(a) was made.

 

This amendment is consequential to the new requirement that, from 1 July, an applicant for a Subclass 188 SIV stream visa must make a complying significant investment in accordance with regulation 5.19C, rather than a complying investment in accordance with regulation 5.19B. 

 

The effect of the amendment is that:

*         if the initial Subclass 188 SIV stream visa was applied for before 1 July 2015, then this permanent visa application will be assessed against the investment requirements in regulation 5.19B as it was in force at the time of the initial Subclass 188 application; and

*         if the initial Subclass 188 SIV stream visa was applied for after 1 July 2015, then this permanent visa application will be assessed against the investment requirements in regulation 5.19C as it was in force at the time of the initial Subclass 188 application.

 

The purpose is to ensure that where a person applies for a Subclass 188 SIV Extension stream or a Subclass 888 (Permanent) visa, they remain subject to the same complying investment framework that was in force at the time they applied for the initial Subclass 188 SIV stream visa.  This provides the applicant with certainty about what the investment requirements will be throughout the period of the provisional and permanent visa stages.

 

Item 39 - Subclause 888.241(3) of Schedule 2

 

This item omits the words "the complying investment" and substitutes the words "the investment mentioned in subclause (2A) or (2B) for the applicant"

 

Subclause 888.241(3) now provides that for any part of the investment mentioned in paragraph 888.241(2A) or (2B) for the applicant that is, or was, a direct investment in an Australian proprietary company:

*                  if the period of the direct investment was less than 2 years, the company was 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, the Minister is satisfied that the applicant made a genuine attempt to operate the business as a qualifying business.

 

The purpose and effect of this amendment is to insert references to the new terms "complying premium investment" and "complying significant investment".

 

This amendment is consequential to the amendments at items [2], [3] and [5], which introduce the terms "complying premium investment" and "complying significant investment".

 

Item 40 - Subclause 888.241(4) of Schedule 2

 

This item repeals and substitutes subclause 888.241(4).

 

Old subclause 888.241(4) provided that the applicant has given the Minister a completed copy of approved form 1413 for each investment in a managed fund on which the complying investment is based.

 

New subclause 888.241(4) provides that the applicant has given the Minister:

*                  if subclause 888.241(2A) applies to the applicant--a completed copy of approved form 1413 for each investment in a managed fund on which the investment mentioned that subclause is based; or

*                  if paragraph 888.241(2B) applies to the applicant--evidence that the applicant holds an investment as required for that subclause.

 

The purpose and effect of this amendment is that the applicant must provide the Minister evidence to satisfy the Minister that each investment complies with the requirements that existed at the time the application was made. Evidence may be provided through completed approved forms or other mechanisms specified in policy. The purpose of this amendment is to enable the relevant forms to be updated and changed without amending the regulations. ,

 

Item 41 - Clause 888.242 of Schedule 2

 

This item repeals and substitutes clause 888.242.

 

Old clause 888.242  provided that for the period during which the applicant has held the visa or visas mentioned in subclause 888.241(1), the applicant has been in Australia for at least a number of days worked out by multiplying the number of years in the period by 40 (treating a part of a year as one year).  A note clarified that it is not necessary for the applicant to have been in Australia for 40 days in each year in the period.

 

New subclause 888.242(1) provides that the applicant meets the requirements of subclause 888.242(2) or (3).

 

New subclause 888.242(2) provides that the applicant has been in Australia for at least the number of days worked out by adding the result of paragraphs 888.242(2)(a) and (b):

*                  40 multiplied by the number of complete years in the period in which the applicant has held a Subclass 188 visa in the Significant Investor stream; and

*                  40 multiplied by the number of years (if any) (treating a part of a year as one year) in the period in which the applicant has held a Subclass 188 visa in the Significant Investor Extension stream.

 

New subclause 888.242(3) provides that the applicant's spouse or de facto partner has been in Australia on a Subclass 188 visa, granted on the basis that the applicant held a Subclass 188 visa in the Significant Investor stream or Significant Investor Extension stream, for at least the number of days worked out by adding the result of paragraphs 888.242(3)(a) and (b):

*                  180 multiplied by the number of complete years in the period in which the applicant held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream; and

*                  180 multiplied by the number of years (if any) (treating a part of a year as one year) in which the applicant held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream.

 

A note clarifies that it is not necessary for the applicant to have been in Australia for 40 days in each year in the period or the applicant's spouse or de facto partner to have been in Australia for 180 days in each year in the period.

 

The effect of this amendment is that the primary applicant must be in Australia at least 40 days for each complete year the applicant held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream, in addition to each complete and part year the applicant held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream. Alternatively, where a secondary applicant is the primary applicant's spouse or de facto partner, that secondary applicant must be in Australia at least 180 days for each complete year the primary applicant held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream, in addition to each complete and part year the primary applicant held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream. 

 

The spouse or defacto partner must hold a Subclass 188 visa (granted based on the primary applicant's grant) in order for the period in Australia to count.  The spouse or defacto partner must be in Australia for 180 multiplied by the years the primary applicant has held their visa.  This is to ensure the requirement cannot be circumvented by the spouse applying for their visa at a later date.

 

The purpose of clause 888.242 is to ensure that either the primary or secondary applicant spends a minimum amount of  time in Australia during the primary applicant's visa period.  The intent of this clause is to encourage SIV applicants and their families to anchor themselves in Australia. It will not be necessary for the visa holder to be in Australia for 40 or 180 days each year.  The total is calculated cumulatively. Part years are not considered when calculating the period for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream but are relevant when calculating the period for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream.

 

Item 42 - At the end of Division 888.2

 

This item inserts a new subdivision 888.25, which sets out the  criteria for the Premium Investor stream.  A note clarifies that these criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 888 visa in the Premium Investor stream.

 

Subclause 888.251(1) requires that at the time of application the applicant has held a Subclass 188 visa in the Premium Investor stream for a continuous period of at least 12 months.

 

Subclause 888.251(2) requires that the applicant has held a complying premium investment on the basis of which the Subclass 188 visa in the Premium Investor stream was granted (except any part of the investment that is a philanthropic contribution) for the whole of the period during which the applicant has held the visa.  The period in subclause 188.241(2) is the period that the visa mentioned in subclause 888.251(1) was held.

 

Subclause 888.251(3) requires that for any part of the complying premium investment (except any part of the investment that is a philanthropic contribution) that is, or was, a direct investment in an Australian proprietary company:

*                  the company was a qualifying business for the whole period; or

*                  if the company has been unable to operate as a qualifying business, the Minister is satisfied that the applicant made a genuine attempt to operate the business as a qualifying business.

 

Subclause 888.251(4) requires that the applicant has given the Minister evidence that the investment complies with the requirements set out in regulation 5.19D as in force at the time of application.

The purpose and effect of subclause (4) is that the applicant must provide the Minister evidence for each investment that it complies with the requirements that existed at the time the application was made. Evidence may be provided through a completed copy of approved forms specified in policy.  The purpose of this amendment is to enable the relevant forms to be updated and changed without amending the regulations.

 

Item 43 - Clause 8557 of Schedule 8

 

This item repeals and substitutes clause 8557.

 

Old clause 8557 provided that the holder must hold the complying investment for the whole of the visa period.

 

New clause 8557 provides that the holder must hold for the whole of the visa period:

*                  if the visa was granted on the basis of a complying investment within the meaning of regulation 5.19B as in force at a particular time--a complying investment within the meaning of regulation 5.19B as in force at that time; or

*                  if the visa was granted on the basis of a complying significant investment within the meaning of regulation 5.19C as in force at a particular time--a complying significant investment within the meaning of regulation 5.19C as in force at that time; or

*                  if the visa was granted on the basis of a complying premium investment within the meaning of regulation 5.19D as in force at a particular time--a complying premium investment within the meaning of regulation 5.19D as in force at that time.

 

The purpose of this amendment is to ensure that that a complying investment, complying significant investment or complying premium investment, whichever is relevant to the visa holder, is maintained for the whole period of the visa.  The visa holder cannot cease to hold the investment, or change the investment outside what is permitted by the requirements that were in place at the time of application for their initial Subclass 188 visa.

 

Item 44 - Schedule 13

 

This item amends Schedule 13 to the Migration Regulations to insert after Part 43 new Part 44, entitled "Amendments made by the Migration Amendment (Investor Visas) Regulation 2015", which contains clause 4401, entitled "Operation of Schedule 1".

 

Clause 4401 provides that the amendments of the Migration Regulations made by Schedule 1 to the Amendment Regulation apply in relation to an application for a visa made on or after 1 July 2015.

 

The purpose and effect of these amendments is to clarify to whom the amendments in the Amendment Regulation applies.