Considering a move to Australia and looking to move your business, start a new business or buy an existing business?
You might be eligible for an Australian business visa.
If you’re a foreign business owner that wants to migrate to Australia so you can own and operate a business, here’s your roadmap to a successful visa application!
Upending your existence from one part of the world to the next is a daunting undertaking.
It’s generally not only yourself you need to consider, but your family as well.
There’s a lot to think about and the amount of information you need to digest before making your final choice can be overwhelming.
We at Aejis understand this more than anyone, which is why we put together the most comprehensive article to give you the most up-to-date information out there, all in one place.
The purpose of this article is to lay out the procedures, documents and timelines to provide you with an understanding of the requirements and the procedures involved for an Australian business visa.
What is an Australian Business Visa?
A business visa allows you to own and operate a new or existing business in Australia. This can be done in a variety of ways including:
- Starting up a new business;
- Expanding your existing overseas business into Australia; or
- Purchasing outright, or obtaining a substantial ownership interest in, an existing Australian business.
What Business Visa Should I Apply For So That I Can Commence My Proposed Business Activity?
There are two types of business visas in Australia available that will allow you to commence your business activity.
The first is the subclass 188 (Business Innovation Stream) visa, which is often referred to as a 188a visa, and the second is the subclass 132 (Significant Business History Stream) visa, known as a 132a visa.
Whether you should apply for a 188a or 132a visa will depend on what your circumstances are.
One of our immigration lawyers can help conduct a visa assessment for you and advise you which visa best suits your circumstances.
188a (Business Innovation Stream) Visa
The 188a visa is a provisional visa that allows you to own and operate a new or existing business in Australia.
You can hold a 188a visa for a maximum period of 4 years and 3 months.
However, there is an option to extend your 188a visa by an extra 2 years by applying for a 188 (Business Innovation Extension Stream) visa.
You can include members of your family in your 188a visa application (i.e spouse or dependant children).
If you decide to do this, there will be an additional visa application charge for each family member you include in your application.
If you apply for a 188a visa, the current visa application charge is $5,375AUD.
For any family member over 18 that is included in your application, they will be charged $2,685AUD.
Family members under 18 are charged $1,345AUD.
Should yourself or any of your family members over 18 not have functional English, then you may have to pay an additional visa application fee.
This additional fee must be paid before you can be granted your 188a visa.
If you cannot prove that you have functional English, then the additional fee that you will have to pay is currently $9,795AUD.
The additional fee for any of your family members who are over 18 and do not have functional English is currently $4,890AUD.
At present, there is no publicly available standard processing times for 188a visa applications.
However, based on previous experience, it is not unusual for a 188a visa application to take up to 24 months to be processed.
This is due to a combination of the large volume of applications received, and the enormity of supporting documentation that needs to be provided by a 188a visa applicant to prove that they meet the relevant criteria.
If possible, you should always provide all of the relevant supporting documentation at the time of your application, as this can sometimes lead to your application being processed more quickly.
132a (Significant Business History Stream) Visa
The 132a visa is a permanent business visa that also allows you to own and operate a business in Australia. You can also include your family members in your 132a visa application.
When you apply for a 132a visa, you will be charged an application fee of $7,855AUD.
If you include a family member who is over 18 in your 132a visa application, their application fee will be $3,930AUD.
However, a family member who is under 18 will be charged $1,960AUD.
An additional application fee will also apply if you, or a family member who is over 18, cannot demonstrate that you have functional English.
Again, this fee must be paid before the 132a visa can be granted.
The additional fee is currently $9,795AUD for the main applicant and $4,890 for any family members of the main applicant who are over 18.
According to the Department of Home Affairs (DHA) website, 75% of all 132a visa applications are processed in 23 months and 90% are processed in 25 months.
At present, it appears that the processing time for a 132a visa application is between 24-25 months, based on the most recent 132a visa application lodged by us.
What Types of Businesses Qualify For a Business Visa?
There are a number of different corporate structures that you can use to qualify for a business visa. This includes:
- An incorporated company;
- A publicly listed company;
- An applicable trustee company;
- A partnership; or
- A sole trader.
What is The Process For Obtaining an Australian Business Visa?
There are a number of steps that must be completed to be able to apply for a business visa.
1. Lodge an EOI
The first step is to lodge an Expression of Interest (EOI) via Skillselect.
Skillselect is essentially a database that stores information from migrants seeking to obtain skilled or business visas.
Each Australian State or Territory can view the information a migrant has entered into Skillselect to determine whether they wish to invite them to make an application to be nominated by that State or Territory.
When you lodge your 188a visa EOI, you will need to declare how many points you have.
This is known as the points test. Points are calculated according to things such as your age, education qualifications, assets, turnover and ownership of intellectual property.
2. Nomination Application
To be eligible for a 188a visa, you must receive a nomination from an applicable Australian State or Territory government agency.
If, as a result of lodging your EOI, you are invited by an Australian State or Territory government agency to make a nomination application, you will need to demonstrate that you meet the nomination criteria pertaining to that State or Territory to receive a nomination from them.
3. Apply for Visa
If you obtain a nomination from an Australian State or Territory this will be recorded in Skillselect.
You should then receive an invitation to apply for a 188a visa.
You have 60 calendar days from the date that you receive your invitation to make your 188a visa application.
It is not possible to get an extension for this deadline, which is why it is always prudent to have your application and supporting documentation ready prior to receiving your invitation.
What Are The Criteria For Obtaining a Business Visa?
Although both the 188a and 132a visas are known as business visas, the criteria that must be met to obtain these visas are not the same.
Criteria for 188a visas
In addition to receiving a nomination from an Australian State or Territory government agency and applying for your 188a visa within 60 calendar days of receiving an invitation to apply for a 188a visa, you will also need to meet the criteria below to be eligible for a 188a visa.
Involvement in Unacceptable Business or Investment Activities
You must not have a history of involvement in business activities or practices that are not generally acceptable in Australia.
Examples of conduct that would constitute a breach of this requirement includes breaching taxation laws, employment laws or being involved with organised crime.
Nomination
The nomination you received from an Australian State or Territory must still be in force at the time that your 188a visa is granted.
This means that if the Australian State or Territory that nominated you withdraws the nomination before your application is processed, you will be ineligible to receive a 188a visa.
Public Interest Criteria
There are a number of public interest criteria that you will need to meet to be eligible for a 188a visa.
This includes things such as meeting the character test, not having any outstanding debts owed to the Australian government and not having any record of providing the DHA with bogus documents or false/misleading information.
Special Return Criteria
To be eligible for a 188a visa, you will need to satisfy the special return criteria.
This criteria includes things such as not previously receiving a deportation order or previously having an Australian visa cancelled.
Age Requirement
Generally speaking, you must be under 55 at the time that you receive your invitation to apply for a 188a visa.
If you are older than 55, then you must prove to the State or Territory that you are seeking a nomination from that your proposed business activity is of exceptional economic benefit to that State or Territory.
Total Points
The number of points that you claimed as part of your EOI must be the same, or less, than the number of points you are claiming when you lodge your 188a visa application.
If it is found that you have less points than the amount that you entered when submitting your EOI, you will not be eligible for a 188a visa.
Need to Reside in Australia
To receive a 188a visa, you must be able to demonstrate that maintaining a residency within Australia is required for you to be able to conduct your proposed business activity.
This means that you will need to prove that your proposed business activity requires you to be in Australia to manage the day-to-day affairs of the business.
If, for example, your proposed business is an online business that does not require a physical presence in Australia, then you would likely not meet this requirement.
Overall Successful Business Career
You must be able to demonstrate that you have had a successful business career.
When determining whether you meet this requirement, the DHA will only assess the performance of businesses for which you held a management role (i.e Director).
Some of the factors that are assessed as part of this requirement includes the profits, turnover, share value, assets and number of employees that were associated with the business that you held a management role for.
Turnover
In the last 4 fiscal years prior to you lodging your 188a visa application, you must be able to demonstrate that for at least 2 of these years you had an ownership interest in one or more businesses that had an annual turnover of at least $750,000AUD.
Providing Professional, Technical or Trade Service
If your business involves the provision of professional, technical or trade services, then for at least 2 of the 4 fiscal years prior to you lodging your 188a visa application, you must not have spent more than 50% of your time providing these services.
The reasoning behind this requirement is that the 188a visa is designed for those that have a proven record of managing the day to day operations of a business.
If the majority of your time is spent providing services and not running your business then you likely do not fit within the category of business owners that the Australian government is seeking to attract to migrate to Australia.
Business and Personal Assets
At the time that you receive your invitation to apply for a 188a visa, the net value of your business and personal assets must be at least $1,250,000AUD.
You can meet this requirement if either yourself or your spouse/de facto partner own this amount of assets.
You can also meet this requirement if you and your spouse/de facto partner collectively own this amount of assets.
Sufficient Funds
You must be able to demonstrate that you have sufficient funds to settle in Australia.
This is to ensure that you will be able to afford suitable accommodation and the cost of living in Australia, upon receiving your 188a visa.
Acquisition and Transferability of Assets
To be granted a 188a visa you must be able to prove that your assets were lawfully acquired and can be transferred to Australia within 2 years of being granted a 188a visa.
You do not need to transfer these assets to Australia before you can be granted a 188a visa, rather, you must be able to prove that once you are granted a 188a visa there are no restrictions on you transferring these assets to Australia.
Commit to Establishing or Participating in an Australian Business
You must show that you have a genuine and realistic commitment to either establishing a new business, or participating in an existing business, as part of your 188a visa application.
If you proposed business is purely for speculative or passive income purposes, then it is likely that you will not meet this criteria.
Commitment to Maintain Ownership and Manage Business
A 188a visa will only be granted if you can demonstrate that you have a genuine and realistic commitment to maintain ownership of your Australian business, and manage the day to day activities of this business.
Furthermore, your decisions must affect the overall direction and performance of the business in a way that benefits the Australian economy.
Criteria for 132a Visas
Because the 132a visa is a permanent visa, the thresholds associated with the criteria for 132a visas are higher than those for 188a visas.
In addition to receiving a nomination from a State or Territory government agency, and an invitation to apply for 132a visa from the Minister, you will also need to meet the criteria below to be eligible for a 132a visa.
Involvement in Unacceptable Business or Investment Activities
You or your spouse/de facto partner must not have a history of being involved with business activities that are of a nature that is not generally acceptable in Australia.
This requirement is the same for a 132a visa as it is for a 188a visa.
Nomination
You must have a valid nomination from a State or Territory government agency that is in force at the time of your 132a application.
Public Interest and Special Return Criteria
As with a 188a visa application, you need to demonstrate that you meet all of the public interest and special return criteria to be eligible for a 132a visa.
Age Requirement
The under 55 age requirement that applies to a 188a visa application also applies for a 132a visa application.
If you are over 55 and wish to apply for a 132a visa, you will need to obtain what is known as an age waiver from the State or Territory government agency that you are seeking a nomination from.
Some State or Territory government agencies will not use their discretion to provide an age waiver, so you should always check each agencies criteria before seeking a nomination from them.
Overall Successful Business Career
The overall successful business career requirement that applies to a 188a visa also applies to 132a visas.
Business Assets
For at least 2 of the last 4 fiscal years prior to you lodging your 132a visa application, you must own business assets (i.e cash deposits, shares, property) that have a net value of at least $400,000AUD.
Ownership of Publicly Listed Company
If you are claiming that you have an ownership interest in a publicly listed company, you must own at least 10% of the company’s shares.
Turnover
The turnover requirement mentioned above for a 188a visa also applies to 132a visas.
However, the amount of turnover that your businesses must generate must be at least $3,000,000AUD for at least 2 of the last 4 fiscal years prior to you applying for your 132a visa.
Business and Personal Assets
In addition to the business asset requirement mentioned above, you, your spouse/de facto partner, or both you and your spouse/de facto partner must own business and personal assets that have a net value of $1,500,000AUD to be eligible to receive a 132a visa.
You will also need to demonstrate that these assets have been lawfully acquired and that they can be transferred to Australia within 2 years of you being granted a 132a visa.
Establishing or Participating in an Australian Business
Similar to a 188a visa application, to be eligible for a 132a visa you will need to demonstrate that you have a genuine and realistic commitment to establishing a new, or participating in an existing, Australian business.
Maintain Substantial Ownership Interest
To be eligible to receive a 132a visa you will need to show that you will maintain a substantial ownership interest in the Australian business that you are seeking to either establish or participate in.
Whether you have a substantial ownership interest in your Australian business will depend on the corporate structure of the business.
You should talk to a migration agent or immigration lawyer before obtaining your ownership interest in your Australian business to ensure that you meet this requirement.
Maintain Direct and Continuous Involvement
This requirement also applies to both 188a and 132a visas.
It involves you demonstrating that you have a genuine and realistic commitment to the management of your Australian business from day to day, and that your decision making will affect the overall direction and performance of your Australian business in a manner that benefits the Australian economy.
Conclusion
If you’ve made it this far you can see there’s a lot to consider.
However, you don’t need to go through this process alone.
Take the time to speak to an expert at Aejis.
