Migration Amendment Regulation 2012 (No. 7)

Link to law: https://www.comlaw.gov.au/Details/F2012L02233

Migration Amendment Regulation 2012 (No. 7)1
Select Legislative Instrument 2012 No. 255
I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Migration Act 1958.
Dated 22 November 2012
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
CHRIS BOWEN
Minister for Immigration and Citizenship
1              Name of regulation
                This regulation is the Migration Amendment Regulation 2012 (No. 7).
2              Commencement
                This regulation commences on 24 November 2012.
3              Amendment of Migration Regulations 1994
                Schedule 1 amends the Migration Regulations 1994.
Schedule 1        Amendments of Migration Regulations 1994
(section 3)
 
[1]           Regulation 1.03
insert
complying investment—see regulation 5.19B.
[2]           Regulation 1.03
insert
managed fund means an investment to which all of the following apply:
                (a)    the investment is a managed investment scheme (within the meaning of the Corporations Act 2001) in which members acquire interests in the scheme;
               (b)    the interests are not able to be traded on a financial market (within the meaning of section 767A of the Corporations Act 2001);
                (c)    no representation has been made to any member of the managed investment scheme that the interests will be able to be traded on a financial market;
               (d)    the issue of the interest is covered by an Australian financial services licence issued under section 913B of the Corporations Act 2001.
[3]           After regulation 5.19A
insert
5.19B     Complying investment
         (1)   An investment by a person (the investor) is a complying investment if all of the requirements in this regulation are met.
Description
         (2)   The investment must consist of one or more of the following:
                (a)    an investment in a government bond (however described) of the Commonwealth, a State or Territory; or
               (b)    a direct investment in an Australian proprietary company that meets the following requirements:
                          (i)    the company is not listed on an Australian stock exchange;
                         (ii)    the company has not been established wholly or substantially for the purpose of creating compliance with this paragraph;
                        (iii)    the investment is an ownership interest in the company;
                (c)    an investment in a managed fund (directly or through an investor directed portfolio service) for a purpose specified by the Minister in an instrument, in writing, for this paragraph.
         (3)   The funds used to make the investment are:
                (a)    unencumbered; and
               (b)    lawfully acquired.
Investor
         (4)   The investor must be an individual.
         (5)   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:
                          (i)    that is lawfully established; and
                         (ii)    of which:
                                   (A)     the investor is the sole trustee; or
                                   (B)     the investor and the investor’s spouse or de facto partner are the sole trustees; and
                        (iii)    of which:
                                   (A)     the investor is the sole beneficiary; or
                                   (B)     the investor and the investor’s spouse or de facto partner are the sole beneficiaries.
         (6)   If:
                (a)    an investor withdraws money from a complying investment, or cancels the investment; and
               (b)    the investor makes an investment of at least the value of the withdrawn money or cancelled investment in one or more other investments mentioned in subregulation (2); and
                (c)    no more than 30 days passes between the events mentioned in paragraphs (a) and (b);
the investment is taken not to have ceased to be a complying investment during the period between the events mentioned in paragraphs (a) and (b).
[4]           Schedule 1, subitem 1104BA (4), table, item 1
omit
Extension stream
insert
Business Innovation Extension stream
[5]           Schedule 1, subitem 1104BA (4), table, item 2, paragraph (a)
omit
Extension stream
insert
Business Innovation Extension stream
[6]           Schedule 1, after subitem 1104BA (5)
insert
      (5A)   An applicant seeking to satisfy the primary criteria for the grant of a Subclass 888 (Business Innovation and Investment (Permanent)) visa in the Significant 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 Significant Investor stream or the Significant Investor Extension 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 who held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream or the Significant Investor Extension 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

[7]           Schedule 1, paragraph 1202B (2) (a), table, item 1
omit
Extension stream
insert
Business Innovation Extension stream or the Significant Investor Extension stream
[8]           Schedule 1, subitem 1202B (5)
omit
Extension stream
insert
Business Innovation Extension stream
[9]           Schedule 1, after subitem 1202B (6)
insert
      (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.
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 Significant Investor stream

2
The applicant must apply for that visa within the period stated in the invitation

3
The applicant must be nominated by a State or Territory government agency

Note   The invitation to apply for the visa will identify the stream to which the invitation relates.
      (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.
Item
Requirements

1
The applicant must be nominated by a State or Territory government agency

2
Either:
   (a)  the applicant

 
         (i)   holds a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream; and

 
        (ii)   has held that visa for at least 3 years; or

 
  (b)  at the time of application, the applicant:

 
         (i)   holds a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream; and

 
        (ii)   has not held more than one Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream


[10]         Schedule 1, subitem 1301 (1)
substitute
         (1)   Form:   47SP, 47SP (Internet), 47CH, 47PA, 47PT, 47OF, 47SK, 47SK (Internet), 47ES, 47BT, 47BU, 47SV, 147, 157A, 157A (Internet), 852, 866, 918, 1001, 1002, 1003, 1005, 1066, 1066 (Internet), 1066S (Internet), 1096, 1182, 1150, 1150E (Internet), 1208, 1276, 1276 (Internet), 1365, 1365 (Internet), 1383, 1393 (Internet), 1396 (Internet), 1397 (Internet), 1398 (Internet), 1401, 1402, 1403, 1408 (Internet), 1416 or 1420.
[11]         Schedule 1, subitem 1303 (1)
substitute
         (1)   Form:   47PT, 47SP, 47SP (Internet), 47CH, 47PA, 47OF, 47SK, 47ES, 47BU, 47SV, 147, 157A, 852, 866, 918, 1002, 1003, 1005, 1066, 1096, 1150, 1150E (Internet), 1276, 1276 (Internet), 1383, 1393 (Internet), 1396 (Internet), 1397 (Internet), 1398 (Internet), 1401, 1402, 1403, 1408 (Internet), 1416 or 1420.
[12]         Schedule 2, clause 188.113, after note 4
insert
Note 5   complying investment is defined in regulation 5.19B.
[13]         Schedule 2, Division 188.2, first note
substitute
Note   The primary criteria for the grant of a Subclass 188 visa include criteria set out in streams.
If an applicant applies for a Subclass 188 visa in the Business Innovation stream, the criteria in Subdivisions 188.21 and 188.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 188 visa in the Business Innovation Extension stream, the criteria in Subdivisions 188.21 and 188.23 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Investor stream, the criteria in Subdivisions 188.21 and 188.24 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Significant Investor stream, the criteria in Subdivisions 188.21 and 188.25 are the primary criteria.
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 primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
[14]         Schedule 2, Subdivision 188.23, heading, including the note
substitute
188.23       Criteria for Business Innovation Extension stream
Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation Extension stream.
[15]         Schedule 2, after Subdivision 188.24
insert
188.25       Criteria for Significant Investor stream
Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor stream.
188.251      The applicant was invited, in writing, by the Minister to apply for the visa.
188.252      (1)   The applicant has made a complying investment of at least AUD5,000,000.
Note   A complying investment may be based on one or more investments.
                   (2)   The applicant has a genuine intention to hold the complying investment for at least 4 years.
188.253      (1)   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.
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).
                   (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 acknowledgment, 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 investment; and
(c)     release the Commonwealth from any liabilities in relation to any loss relating to the complying investment.
188.254      The applicant has a genuine intention to reside in the State or Territory whose government agency nominated the applicant.
188.255      (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.
188.26       Criteria for Significant Investor Extension stream
Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor Extension stream.
188.261      (1)   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.
                   (2)   For any part of the complying investment that is, or was, a direct investment in an Australian proprietary company:
                   (a)     if the period of the direct investment was less than 2 years, the company was a qualifying business for the whole period; or
                  (b)     if the period of the direct investment was 2 years or more, the company was a qualifying business for at least 2 years; or
                   (c)     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.
                   (3)   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.
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).
                   (4)   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 acknowledgment, undertaking and release, signed by each person mentioned in subclause (4), 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 investment; and
(c)     release the Commonwealth from any liabilities in relation to any loss relating to the complying investment.
188.262      (1)   The applicant satisfies public interest criterion 4007.
                   (2)   Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criterion 4007.
                   (3)   Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
[16]         Schedule 2, after clause 188.311
insert
188.311A   If:
                   (a)     the applicant has turned 18; and
                  (b)     the primary applicant holds a Subclass 188 visa in the Significant Investor stream or the Significant Investor Extension stream;
                   the applicant has given the Minister a completed copy of approved form 1412.
Note   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:
(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 investment; and
(c)     release the Commonwealth from any liabilities in relation to any loss relating to the complying investment.
[17]         Schedule 2, subclauses 188.312 (4) and (5)
substitute
                   (4)   If the primary applicant holds a Subclass 188 visa in the Business Innovation stream, the Investor stream or the Significant Investor stream, the applicant satisfies public interest criterion 4005.
                   (5)   If the primary applicant holds a Subclass 188 visa in the Business Innovation Extension stream or the Significant Investor Extension stream, the applicant satisfies public interest criterion 4007.
[18]         Schedule 2, clause 188.511
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 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.
[19]         Schedule 2, clause 188.512
omit
Extension stream
insert
Business Innovation Extension stream
[20]         Schedule 2, after clause 188.512
insert
188.512A   If the applicant satisfied the primary criteria for the grant of a Subclass 188 visa in the Significant Investor Extension stream, temporary visa permitting the holder to travel to, enter and remain in Australia
                   (a)     if the applicant held a Subclass 188 visa in the Significant Investor stream at the time of application—6 years after the date of the grant of the Subclass 188 visa in the Significant Investor stream; or
                  (b)     if the applicant held a Subclass 188 visa in the Significant Investor Extension stream at the time of application—8 years after the date of the grant of the Subclass 188 visa in the Significant Investor stream.
[21]         Schedule 2, after clause 188.611
insert
188.612      If the applicant is granted a Subclass 188 visa in the Significant Investor stream or the Significant Investor Extension stream, condition 8557 must be imposed.
[22]         Schedule 2, clause 888.111, after note 4
insert
Note 5   complying investment is defined in regulation 5.19B.
[23]         Schedule 2, Division 888.2, note
after
If an applicant applies for a Subclass 888 visa in the Investor stream, the criteria in Subdivisions 888.21 and 888.23 are the primary criteria for the grant of the visa.
insert
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.
[24]         Schedule 2, after Subdivision 888.23
insert
888.24       Criteria for Significant Investor stream
Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 888 visa in the Significant Investor stream.
888.241      (1)   At the time of application:
                   (a)     the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream for a continuous period of 4 years; or
                  (b)     the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream and one or more Subclass 188 (Business Innovation and Investment (Provisional)) visas in the Significant Investor Extension stream for a continuous period of 4 years.
                   (2)   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 (1).
                   (3)   For any part of the complying investment that is, or was, a direct investment in an Australian proprietary company:
                   (a)     if the period of the direct investment was less than 2 years, the company was a qualifying business for the whole period; or
                  (b)     if the period of the direct investment was 2 years or more, the company was a qualifying business for at least 2 years; or
                   (c)     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 a completed copy of approved form 1413 for each investment in a managed fund on which the complying investment is based.
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).
888.242      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).
Note   It is not necessary for the applicant to have been in Australia for 40 days in each year in the period.
[25]         Schedule 8, after clause 8549
insert
8557        The holder must hold the complying investment for the whole of the visa period.
[26]         Schedule 13, Part 6 (second occurring)
renumber as Part 7
[27]         Schedule 13, item 601 (second occurring)
renumber as item 701
[28]         Schedule 13, after Part 7
insert
Part 8          Amendments made by Migration Amendment Regulation 2012 (No. 7)
801         Operation of Schedule 1
                The amendments of these Regulations made by Schedule 1 to the Migration Amendment Regulation 2012 (No. 7) apply in relation to an application for a visa made on or after 24 November 2012.
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.comlaw.gov.au.
 
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