Business Innovation and Investment (Provisional) subclass 188 visa

 
 

The first instalment visa application charge for a 188 visa under the Entrepreneur stream is as follows:

  1. Base application charge$3 600
  2. Additional applicant charge for an applicant who is at least 18$1 800
  3. Additional applicant charge for an applicant who is less than 18$900

The Schedule 2 criteria for a 188 visa under the Entrepreneur stream is outlined below:

188.28—Criteria for Entrepreneur stream

Note:   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Entrepreneur stream.

188.281

            (1)  The applicant was invited, in writing, by the Minister to apply for the visa.

            (2)  Either:

                        (a)  the applicant had not turned 55 at the time of the invitation to apply for the visa; or

                        (b)  the nominating State or Territory government agency has determined that the complying entrepreneur activity the applicant is undertaking or proposing to undertake is, or will be, of exceptional economic benefit to the State or Territory in which the agency is located.

 

188.282

            (3)  At the time of invitation to apply for the visa, the applicant had competent English.

                        The applicant:

                        (a)  is undertaking, or proposing to undertake, a complying entrepreneur activity; and

                        (b)  has a genuine intention to undertake, and continue to undertake, the complying entrepreneur activity in Australia in accordance with the agreement or agreements mentioned in paragraph 5.19E(3)(b) in relation to the activity.

188.283

                        The nominating State or Territory government agency is satisfied that the net value of the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, is sufficient to allow them to settle in Australia.

188.284

            (1)  The applicant satisfies public interest criterion 4005.

            (2)  Each member of the applicant’s family unit who is an applicant for a Subclass 188 visa satisfies public interest criterion 4005.

            (3)  Each member of the applicant’s family unit who is not an applicant for a Subclass 188 visa satisfies public interest criterion 4005, unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

To be granted a 188 visa under the Entrepreneur stream, applicants must propose to undertake a ‘complying entrepreneur activity’ as set out in reg 5.19E:

5.19E  Complying entrepreneur activity

            (1)  An activity that an applicant for a visa is undertaking, or proposing to undertake, is a complying entrepreneur activity if all the requirements set out in this regulation are met.

Note:   For the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Entrepreneur stream, the applicant must be undertaking, or proposing to undertake, a complying entrepreneurial activity (see Subdivision 188.28 of Schedule 2).

            (2)  The activity:

                        (a)  relates to an innovative idea that is proposed to lead to:

                                    (i)  the commercialisation of a product or service in Australia; or

                        (ii)  the development of an enterprise or business in Australia; and

                        (b)  does not relate to an activity specified, whether individually or by class, in an instrument under subregulation (6).

            (3)  All of the following apply:

                        (a)  funding in relation to the activity is to be provided to any of the following (the entrepreneurial entity):

                                    (i)  the applicant;

                        (ii)  a body corporate;

                        (iii)  a partnership;

                        (b)  the funding is to be provided under one or more legally enforceable agreements in effect between the entrepreneurial entity and one or more entities covered by subregulation (5);

                        (c)  if the applicant is not the entrepreneurial entity—the applicant personally held, at the time the agreement or each agreement was entered into, at least a 30% share in the ownership of the entrepreneurial entity;

                        (d)  the total amount of the funding provided or to be provided under the agreement or agreements is at least $200,000;

                        (e)  under the agreement or each agreement, at least 10% of the funding is to be paid to the entrepreneurial entity within 12 months of the day the activity starts to be undertaken in Australia;

                        (f)  there is in place a business plan for the entrepreneurial entity that the Minister considers to be appropriately formulated to lead to a result mentioned in subparagraph (2)(a)(i) or (ii).

            (4)  All of the funding provided or to be provided to the entrepreneurial entity under the agreement or agreements is unencumbered and lawfully acquired.

            (5)  An entity is covered by this subregulation if the entity is both:

                        (a)  any of the following:

                                    (i)  an agency of the Commonwealth, a State or a Territory, or a body established under a law of the Commonwealth, a State or a Territory;

                        (ii)  a body corporate;

                        (iii)  a partnership;

                        (iv)  an unincorporated body;

                                    (v)  an individual;

                        (vi)  the trustee of a trust that has only 1 trustee;

                        (vii)  the trustees together of a trust that has more than 1 trustee; and

                        (b)  specified, whether by name or by class, in an instrument made under subregulation (6).

            (6)  The Minister may, by legislative instrument, specify:

                        (a)  activities for the purposes of paragraph (2)(b); and

                        (b)  entities for the purposes of paragraph (5)(b).

The federal legislative instrument IMMI 16/075, F2016L01417 specifies that the following activities will not be a complying entrepreneur activity under reg 5.19E(6)(a):

  1. a)      establishing, purchasing, investing or acquiring an interest in:
  2.      a labour hire entity; or
  3.      residential real property;
  4. b)      purchasing, investing or acquiring an interest in an existing entity (including a franchise).

The federal legislative instrument IMMI 16/074, F2016L01415 specifies that the following entities is an entity covered by reg 5.19E (pursuant to reg 5.19E(6)(b)):

  1. a)         all agencies of the Commonwealth, a State or a Territory;
  2. b)         bodies that undertake publicly funded research or innovation initiatives and are established under a law of the Commonwealth, a State or a Territory;
  3. c)          investors registered or conditionally registered as venture capital limited partnerships or early stage venture capital limited partnerships under Part 2 of the Venture Capital Act 2002 as in force from time to time; and
  4. d)         higher education providers listed from time to time under Part 2-1 of the Higher Education Support Act 2003 as:

(i)      Table A providers; and

(ii)      Table B providers;

unless the body ceases to be a higher education provider because of

subsection 16-5(3) of the Higher Education Support Act 2003 as in force from time to time.

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