Migration Amendment (Investor Visas) Regulation 2015
Select Legislative Instrument No. 102, 2015
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.
Dated 25 June 2015
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Michaelia Cash
Assistant Minister for Immigration and Border Protection
Contents
1............ Name................................................................................................... 1
2............ Commencement................................................................................... 1
3............ Authority............................................................................................. 1
4............ Schedules............................................................................................ 1
Schedule 1—Amendments 2
Migration Regulations 1994 2
1 Name
This is the Migration Amendment (Investor Visas) Regulation 2015.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of this instrument
1 July 2015.
1 July 2015
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under the Migration Act 1958.
4 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Amendments
Migration Regulations 1994
1 Regulation 1.03
Insert:
CEO of Austrade means the Chief Executive Officer of the Australian Trade Commission referred to in section 7B of the Australian Trade Commission Act 1985.
2 Regulation 1.03
Insert:
complying premium investment: see regulation 5.19D.
3 Regulation 1.03
Insert:
complying significant investment: see regulation 5.19C.
4 Regulation 5.19B (note)
Repeal the note.
5 At the end of Division 5.3
Add:
5.19C Complying significant investment
Definition
(1) An investment by a person (the investor) is a complying significant investment if all of the requirements of this regulation are met.
(2) If an investment (the overall investment) is based on one or more other investments, this regulation (and any instrument under subregulation (6)) applies equally to the overall investment and each investment on which the overall investment is based.
Investment requirements
(3) All funds used to make the investment must be unencumbered and lawfully acquired.
(4) The investment:
(a) must be lawful; and
(b) must not form the basis for security or collateral for a loan.
(5) The investment, and the means by which the investment is made:
(a) must be of a kind permitted by the requirements specified in an instrument under subregulation (6); and
(b) must comply with any requirements specified in an instrument under subregulation (6).
(6) The Minister may, by legislative instrument, specify requirements for the purposes of subregulation (5).
Investment switching periods
(7) Subregulation (8) applies in relation to a period (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.
(8) If the switching period is of 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 (7)(a).
Investor requirements
(9) The investor must be an individual.
(10) 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.
5.19D Complying premium investment
Definition
(1) 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.
(2) If an investment (the overall investment) is based on one or more other investments, this regulation (and any instrument under subregulation (8)) applies equally to the overall investment and each investment on which the overall investment is based.
(3) If a philanthropic contribution (the overall contribution) is based on one or more other philanthropic contributions, this regulation applies equally to the overall contribution and each philanthropic contribution on which the overall contribution is based.
Investment and philanthropic contribution requirements
(4) All funds used to make an investment or philanthropic contribution (or both) must be unencumbered and lawfully acquired.
(5) An investment or philanthropic contribution (or both):
(a) must be lawful; and
(b) must not form the basis for security or collateral for a loan.
Philanthropic contribution requirement
(6) A philanthropic contribution must be approved for this regulation, in writing, by a State or Territory government agency.
Investment requirements
(7) An investment, and the means by which an investment is made:
(a) must be of a kind permitted by the requirements specified in an instrument under subregulation (8); and
(b) must comply with any requirements specified in an instrument under subregulation (8).
(8) The Minister may, by legislative instrument, specify requirements for the purposes of subregulation (7).
Investment switching periods
(9) Subregulation (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.
(10) 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 (9)(a).
Investor requirements
(11) The investor must be an individual.
(12) 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.
Note: Regulations 5.19E and 5.19F are reserved for future use.
6 Paragraph 1104BA(3)(c) of Schedule 1
Repeal the paragraph, substitute:
(c) 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 (Business Innovation and Investment (Permanent)) 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 (Business Innovation and Investment (Permanent)) 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 (Business Innovation and Investment (Permanent)) visa in the Premium Investor stream—the CEO of Austrade.
7 Subitem 1104BA(4) of Schedule 1 (table item 2)
Repeal the item, substitute:
2
The applicant holds a Subclass 188 (Business Innovation and Investment (Provisional)) visa granted on the basis that the applicant was the spouse or de facto partner of a person who held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Business Innovation stream or the Business Innovation Extension stream
8 Subitem 1104BA(5) of Schedule 1 (table item 2)
Repeal the item, substitute:
2
The applicant holds a Subclass 188 (Business Innovation and Investment (Provisional)) visa granted on the basis that the applicant was the spouse or de facto partner of a person who held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Investor stream
9 After subitem 1104BA(5A) of Schedule 1
Insert:
(5B) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 888 (Business Innovation and Investment (Permanent)) visa in the Premium Investor stream must meet the requirements in at least one item in the table.
Item
Requirements
1
The applicant holds a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Premium Investor stream
2
Both of the following apply:
(a) the applicant holds a Subclass 188 (Business Innovation and Investment (Provisional)) visa granted on the basis that the applicant was the spouse or de facto partner of a person (the primary visa holder) who held a Subclass 188 (Business Innovation and Investment (Provisional)) 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
10 Before subparagraph 1202B(2)(a)(ii) of Schedule 1
Insert:
(ib) for an applicant:
(A) seeking to satisfy the primary criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Premium Investor stream; or
(B) whose application is combined, or sought to be combined, with an application made by that person:
First instalment
Item
Component
Amount
1
Base application charge
$8 410
2
Additional applicant charge for an applicant who is at least 18
$4 205
3
Additional applicant charge for an applicant who is less than 18
$2 105
11 Subitem 1202B(6A) of Schedule 1 (at the end of the cell at table item 3, column headed “Requirements”)
Add “or the CEO of Austrade”.
12 Subitem 1202B(6B) of Schedule 1 (at the end of the cell at table item 1, column headed “Requirements”)
Add “or the CEO of Austrade”.
13 After subitem 1202B(6B) of Schedule 1
Insert:
(6C) An applicant seeking to satisfy the primary criteria for a Subclass 188 visa in the Premium Investor stream must meet the requirements in the table.
Item
Requirements
1
The applicant must have been invited, in writing, by the Minister to apply for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Premium Investor stream
2
The applicant must apply for that visa within the period stated in the invitation
3
The applicant must be nominated by the CEO of Austrade
Note: The invitation to apply for the visa will identify the stream to which the invitation relates.
14 Part 188 of Schedule 2 (heading)
Repeal the heading, substitute:
Subclass 188—Business Innovation and Investment (Provisional)
15 Clause 188.113 of Schedule 2 (Note 5)
Repeal the note, substitute:
Note 5: Complying investment is defined in regulation 5.19B.
Note 6: Complying significant investment is defined in regulation 5.19C.
Note 7: Complying premium investment is defined in regulation 5.19D.
16 Division 188.2 of Schedule 2 (note)
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.
insert:
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.
17 Clause 188.212 of Schedule 2
After “State or Territory government agency”, insert “or the CEO of Austrade”.
18 Clause 188.252 of Schedule 2
Repeal the clause, substitute:
188.252
(1) The applicant has made, on or after the time of application, a complying significant investment (within the meaning of regulation 5.19C as in force at the time of application) of at least AUD 5 000 000.
(2) The applicant has a genuine intention to hold the complying significant investment for at least 4 years.
Note: A complying significant investment may be based on one or more investments.
19 Subclause 188.253(1) of Schedule 2
Repeal the subclause, substitute:
(1) 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.
20 Subclause 188.253(2) of Schedule 2 (paragraphs (b) and (c) of the note)
Omit “complying investment”, substitute “complying significant investment”.
21 Clause 188.254 of Schedule 2
Repeal the clause, substitute:
188.254
If the applicant was nominated by a State or Territory government agency, one or more of the following have a genuine intention to reside in the State or Territory whose government agency nominated the applicant:
(a) the applicant;
(b) the applicant’s spouse or de facto partner.
22 Subclause 188.261(1) of Schedule 2
Repeal the subclause, substitute:
(1) The applicant meets the requirements of subclause (1A) or (1B).
(1A) Both of the following apply:
(a) 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;
(b) 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 (a) was made.
(1B) Both of the following apply:
(a) 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;
(b) 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 (a) was made.
23 Subclause 188.261(2) of Schedule 2
Omit “complying investment”, substitute “investment mentioned in subclause (1A) or (1B) for the applicant”.
24 Subclause 188.261(3) of Schedule 2
Repeal the subclause, substitute:
(3) The applicant has given the Minister:
(a) if subclause (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
(b) if subclause (1B) applies to the applicant—evidence that the applicant holds an investment as required for that subclause.
Note: 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 5.19B(2)(c).
25 Subclause 188.261(4) of Schedule 2 (paragraphs (b) and (c) of the note)
Omit “complying investment”, substitute “relevant investment”.
26 At the end of Division 188.2 of Schedule 2
Add:
188.27—Criteria for Premium Investor stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Premium Investor stream.
188.271
The applicant was invited, in writing, by the Minister to apply for the visa.
188.272
(1) 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.
(2) 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).
Note: A complying premium investment may be based on one or more investments or one or more philanthropic contributions, or a combination of both.
188.273
(1) 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.
(2) 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.
Note: Approved form 1412 is a deed of acknowledgement, undertaking and release, signed by each person mentioned in subclause (2), under which they:
(a) acknowledge that they are responsible for their financial and legal affairs; and
(b) undertake not to bring an action against the Commonwealth in relation to any loss relating to the complying premium investment; and
(c) release the Commonwealth from any liabilities in relation to any loss relating to the complying premium investment.
188.274
(1) The applicant satisfies public interest criterion 4005.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criterion 4005.
(3) Each member of the family unit of the applicant 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.
27 Paragraph 188.311A(b) of Schedule 2
Omit “or the Significant Investor Extension stream”, substitute “, the Significant Investor Extension stream or the Premium Investor stream”.
28 Clause 188.311A of Schedule 2 (paragraphs (b) and (c) of the note)
Omit “complying investment”, substitute “relevant investment”.
29 Subclause 188.312(4) of Schedule 2
Omit “or the Significant Investor stream”, substitute“, the Significant Investor stream or the Premium Investor stream”.
30 Clause 188.511 of Schedule 2
Repeal the clause, substitute:
188.511
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.
31 Clause 188.512A of Schedule 2
Omit “Australia”, substitute “Australia:”.
32 Clause 188.612 of Schedule 2
Omit “or the Significant Investor Extension stream”, substitute “, the Significant Investor Extension stream or the Premium Investor stream”.
33 Clause 888.111 of Schedule 2 (Note 5)
Repeal the note, substitute:
Note 5: Complying investment is defined in regulation 5.19B.
Note 6: Complying significant investment is defined in regulation 5.19C.
Note 7: Complying premium investment is defined in regulation 5.19D.
34 Division 888.2 of Schedule 2 (note)
After:
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.
insert:
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.
35 Clause 888.212 of Schedule 2
After “State or Territory government agency”, insert “or the CEO of Austrade”.
36 Clause 888.232 of Schedule 2
Repeal the clause, substitute:
888.232
The designated investment made by the applicant for the purpose of satisfying a criterion for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) 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:
(a) if the Subclass 188 (Business Innovation and Investment (Provisional)) visa was granted on the basis of an application made before 1 July 2015—at least 3 years and 11 months; or
(b) if the Subclass 188 (Business Innovation and Investment (Provisional)) visa was granted on the basis of an application made on or after 1 July 2015—at least 4 years.
37 At the end of Subclause 888.241(1) of Schedule 2
Add:
; or (c) the applicant:
(i) has held, for a continuous period of 3 years and 11 months, a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream applied for before 1 July 2015; and
(ii) has not held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream granted on the basis of the visa mentioned in subparagraph (i).
38 Subclause 888.241(2) of Schedule 2
Repeal the subclause, substitute:
(2) The applicant meets the requirements of subclause (2A) or (2B).
(2A) Both of the following apply:
(a) 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;
(b) the applicant has held, for the whole of the period during which the applicant has held the visas or visa mentioned in subclause (1), a complying investment within the meaning of regulation 5.19B as in force at the time the application mentioned in paragraph (a) was made.
(2B) Both of the following apply:
(a) 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;
(b) the applicant has held, for the whole of the period during which the applicant has held the visas or visa mentioned in subclause (1), a complying significant investment within the meaning of regulation 5.19C as in force at the time the application mentioned in paragraph (a) was made.
39 Subclause 888.241(3) of Schedule 2
Omit “the complying investment”, substitute “the investment mentioned in subclause (2A) or (2B) for the applicant”.
40 Subclause 888.241(4) of Schedule 2
Repeal the subclause, substitute:
(4) The applicant has given the Minister:
(a) if subclause (2A) 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
(b) if subclause (2B) applies to the applicant—evidence that the applicant holds an investment as required for that subclause.
Note: 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 5.19B(2)(c).
41 Clause 888.242 of Schedule 2
Repeal the clause, substitute:
888.242
(1) The applicant meets the requirements of subclause (2) or (3).
(2) The applicant has been in Australia for at least the number of days worked out by adding the results of paragraphs (a) and (b):
(a) 40 multiplied by the number of complete years in the period in which the applicant has held a Subclass 188 visa in the Significant Investor stream; and
(b) 40 multiplied by the number of years (if any) (treating a part of a year as 1 year) in the period in which the applicant has held a Subclass 188 visa in the Significant Investor Extension stream.
(3) 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 the Significant Investor Extension stream, for at least the number of days worked out by adding the results of paragraphs (a) and (b):
(a) 180 multiplied by the number of complete years in the period in which the applicant held a Subclass 188 visa in the Significant Investor stream; and
(b) 180 multiplied by the number of years (if any) (treating a part of a year as 1 year) in which the applicant held a Subclass 188 visa in the Significant Investor Extension stream.
Note: 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.
42 At the end of Division 888.2
Add:
888.25—Criteria for Premium Investor stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 888 visa in the Premium Investor stream.
888.251
(1) At the time of application the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Premium Investor stream for a continuous period of at least 12 months.
(2) For the whole of the period during which the applicant has held the visa mentioned in subclause (1), the applicant has held a complying premium investment (within the meaning of regulation 5.19D as in force at the time the application for that visa was made) except any part of the investment that is a philanthropic contribution.
(3) 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:
(a) the company was a qualifying business for the whole period; or
(b) 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.
(4) 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.
43 Clause 8557 of Schedule 8
Repeal the clause, substitute:
8557 The holder must hold for the whole of the visa period:
(a) 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
(b) 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
(c) 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.
44 Schedule 13
Insert in its appropriate numerical position:
Part 44—Amendments made by the Migration Amendment (Investor Visas) Regulation 2015
4401 Operation of Schedule 1
The amendments of these Regulations made by Schedule 1 to the Migration Amendment (Investor Visas) Regulation 2015 apply in relation to an application for a visa made on or after 1 July 2015.
