On 22 January 2023, an Australian newspaper, The Australian, published an article entitled, “Quiet chop for ‘golden visa’ scheme”.

The Australian article by Stephen Rice contains inaccuracies. This is article aims to set out the facts and correct the misinformation contained in The Australian article.

Has the Labor Government axed the Business Innovation and Investment Program (BIIP) visa?

 No, the Australian Government has not axed the BIIP visas.

Migration Review and Migration Strategy

A review of the Australian migration system was conducted in 2022-2023, and the Migration Report (the ‘Report’) was released on 21 March 2023.

One of the possible reform directions arrived at by the reviewers is “Better target permanent skilled visas to maximise economic outcomes and remain internationally competitive”.  One of the measures identified to support the possible reform directions is to:

Revisit the allocation of places across the permanent skilled program. In particular, reconsider the size and role of the Business Innovation and Investment Program (BIIP), noting more positive outcomes from the Significant Investor Visa. Consider how to manage the allocation of places to state and territory nominated and regional visas, including possible consolidation of these programs.  ^[1]

During her address to the National Press Club on 27 April 2023, the Minister for Home Affairs, The Hon Clare O’Neil MP, was asked whether the business investment visa subclass 188 A, B, C be removed in the future.  The Hon Minister replied that, “We haven’t said that we will abolish those programs. What we have said is that they need a radical restructure as part of the work that we’re doing and I think this needs to be folded into the broader conversation about highly skilled people who we see as creating the future jobs for Australians and now how we manage them in. It’s not just about what’s called BIV and SIV. This is just the world of acronyms that I live in! It is not just about BIV and SIV. It is about the whole question of that, really quite – drivers of economic growth and how we should think about bringing those people into our country.” ^[2]

Australia’s Migration Strategy was released to the public in December 2023. This Migration Strategy is based on the findings of the Migration Review. The Strategy notes that:

The Migration Review flagged the opportunity to draw on the relative strength of the Significant Investor stream to design a visa product more sharply targeted to select migrants who can drive innovative investments in sectors of national importance or play a valuable role in the venture capital industry.

The Migration Strategy further mentions as an area for future reform:

A new Talent and Innovation visa could create a single, streamlined pathway to attract relatively small numbers of highly talented migrants to Australia, such as high performing entrepreneurs, major investors and global researchers.

As a result of the review, or the current financial year (2023-2024), the Australian government has reduced the allocations for the BIIP program (see Figure 1) and has not allocated these places to any Australian state or territory in order to process the applications on hand.

There has been no ‘axing’ just a pause while the review of the program is being conducted. All indicators point to the fact that the Government will be continue offering visa to highly talented migrants to Australia, such as high performing entrepreneurs, major investors.

Does the business visa program make up a quarter of Australia’s migration allocations?

The first sentence of the article states that “[a] business visa program which makes up a quarter of all the nation’s migration allocations has been quietly axed by Labor ….”   The truth is that in 2022-2023, the Business Innovation and Investment Program (BIIP) was allocated 5,000 places out of 195,000, or 2.56% and for this financial year, 1,900 places out of 190,000 places or 1%. Hardly “a quarter”. 

If the allocations for the Global Talent Visa and the Distinguished Talent visas are to be added to the BIIP allocation, the total would be 10,000 places out of 195,000 or 5.1% or 7,300 places out of 190,000 places or 3.8% of the total Migration Planning Levels for 2022-2023 and 2023-2024.

Figure 1. Migration Planning levels 2022-2023 and 2023-2024

Source: Department of Home Affairs, What we do, Migration Program planning levels < https://immi.homeaffairs.gov.au/what-we-do/migration-program-planning-levels >, accessed 1 February 2024.

The BIIP is part of the Skilled Migration visa stream which has range of visa products or categories, namely the General Skilled Migration (GSM), the Permanent Employer Sponsored Entry Program (PESE) and the BIIP. GSM has always accounted for more than half of all the allocations for skilled migration.  Pre-COVID 19, for the financial year 2019-2020 GSM accounted for 53% of the Skilled Migration Program, with only 11% allocated for the BIIP. The total places for 2019-2020 was 160,000 with 108,682 places allocated to the Skilled Migration Program. 

Figure 2. Skilled Migration Program by program 2019-2020

Source:  Department of Home Affairs, Freedom of Information Reference Number FA 23/04/00444, Reports into the operation of the Business Innovation and Investment Program, 2019, Disclosure Date 5/10/2023.

Has the entire Business Innovation and Investment Program been chopped or axed?

The use of the word ‘chopped’ implies that the program is permanently closed or gone forever. But no, the Business and Investment Visas has not been chopped or axed or closed forever.

There are however some elements of truth mentioned in Mr Rice’s article.

As mentioned above, the states and territories did not get any allocations for the BIIP program and as a result the states and territories are not nominating any new applicants for the BIIP program.

However, holders of Business Innovation and Investment (Provisional) visa subclass-188 are still able to apply for the permanent visa, subclass 888 once they become eligible. The states and territories are still granting nominations for this permanent visa stage.

It is therefore not accurate to state that the ‘entire’ BIIP is closed to new applications.

Holders of sc-188 can still apply for the sc-888 once eligible.

The Department of Home Affairs confirms that “continues to process all valid subclass 188 visa applications currently on hand, in line with annual allocations made under the Migration Program planning levels and in line with processing priorities.”

Does the Significant Investor visa confer an automatic right of permanent residence? And do investors only need to spend 40 days a year in Australia to gain Australian citizenship?

Mr Rice also claims in his article that the “visa required a minimum investment in Australia of $5m and conferred an automatic right of permanent residence. Investors could gain citizenship even if they spent only 40 days a year in Australia…”

Again, this is incorrect.

The Significant Investor Visa (SIV) program currently does not have direct pathway to permanent residency. Applicants must first apply for the sc-188 visa wherein they must invest and maintain $5million in an Australian government complying investments for 4 years before they are eligible for the permanent residency visa, the sc-888.

Once they get the sc-888 visa, like any other Australian permanent resident, they must hold this permanent residency visa for at least 12 months. They must also meet the general residence requirement which includes living in Australia for at least 4 years before applying for the visa and have not been absent from Australia for more than 12 months in total in the past 4 years, including no more than 90 days in total in the 12 months immediately before applying.

Therefore, it will take 5 years or so before SIV holders will be eligible for Australian citizenship.

Has the Business Innovation and Investment visas been an easy path for relatives of despotic regimes and organised crimes and ‘foreign criminals and corrupt regime officials’?

The Business Innovation and Investment visa is not quite the ‘red-carpet schemes’ for ‘foreign criminals and corrupt regime officials’ to get their permanent residence and subsequently acquire Australian citizenship. Checks are required for Business Innovation and Investment visa applicants before the visa can be granted.

Source of asset test

The applicants for the business visas are subject to scrutiny as to the sources of their assets.

Migration Regulations, for example clause 188.246, requires that the fund used to make the designated investments are unencumbered and accumulated from either or both from applicant’s and/or their spouse or de facto partner’s qualifying business or eligible investment activities. Applicants need to show the history of how they accumulated their wealth and provide evidence of its source.

Must have an overall successful business career

Another thing that business visa applicants have to show is that they have an overall successful business career.

They must also show that they genuinely plan to continuously own and manager their business in Australia.

No adverse information and Character requirement

Another requirement is that the applicant and their partner must not have a history of involvement in unacceptable activities.

Business and Investment visa applicants like all the other visa applicants are required to meet the character requirement. They must not have been subject to a deportation order or not have had their Australian visa cancelled under section 501 of the Migration Act 1958 (generally referred to as ‘character test’). Note that the primary applicant and their family included in the application must pass this character requirement. It is a ‘one fails, all fail’ requirement.

Australian State/Territory nomination

Except Extension streams for Business Innovation and Investment and Significant Investor, applicants are required to be nominated by an Australian State or Territory. Those applying for the Premium Investor Stream must be nominated by Austrade.

Each State or Territory has their own criteria for the BIIP nomination. South Australia, for example, requires Business Innovation stream applicants to show that they have undertaken an investment and/or business activity that meets the relevant ‘benefit to state’ requirement.

Australian State/Territory monitoring

For subclass 132 visa holders, they are subject to monitoring by the Department of Home Affairs for 2 years. The Department after 2 years will be asking the sc-132 visa holders to provide more information and documents about their business interest in Australia. They will be asked to provide information about their assets in Australia (fund/cash at bank, investments, personal effects, business and capital equipment), value of asset in each state or territory, details about their business/es, i.e.., the business actitivity/ies, number of people employed, value of assets invested by the visa holder, sales, etc.

If the sc-132 visa holders are not able to satisfy the requirements, their visa is subject to cancellation.

There are already mechanisms, laws and regulation in place to stop the ‘undesirables’ from securing the visa. Just like other visa applicants, Business and Investment visa applicants are obliged to provide to provide accurate information to the Department of Home Affairs and not provide false, inaccurate and/or misleading information. If it is found out that the applicant provided such information, then their application will be refused under Public Interest Criterion 4020.  If this false, misleading or inaccurate information is later detected the government has the power to cancel the visa.

That there is ‘not a single applicant in the past 10 year has been rejected under the character test’ is not necessarily proof that foreign criminal and corrupt regime officials had taken advantage of the business visa program.  Mr Rice’s statement is a circular argument and can be flipped. The same could be said that ‘not a single applicant in the past 10 year has been rejected under the character test’ because not a single applicant had character issues. Such a statement is a negative slur without foundation and unfair to legitimate business visa applicants.

JUST THE FACTS:

• The Australian Government has not made any announcement that they are ‘axing’ the BIIP.
• The Australian Government is reviewing and will be restructuring the whole Australian migration system including the business visa program.
• The current allocation for the Significant Investor Visa represents only 1% of the overall visa allocations.
• Holders of sc-188 visas can still apply for their permanent resident visa, the sc-888.
• Business visa applicants need to be granted their provisional (temporary) visa first before they can apply for permanent residency.
• Holders of the permanent business visa still needs to meet the residency requirements like the other permanent visa holders to be eligible for Australian citizenship.
• There are mechanisms and checks, including character checks are in place to ensure integrity of the program.

Author:

Rosa Torrefranca

Chris Johnston

For questions or comments on this article please contact:

Mr Chris Johnston

Principal Lawyer

Work Visa Lawyers

Email: This email address is being protected from spambots. You need JavaScript enabled to view it. or call +61 8 8351 9956

Sources:

• Department of Home Affairs, Migration Strategy
• Department of Home Affairs, A Review of the Migration System
• Department of Home Affairs website- https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/business-innovation-and-investment-188
• Department of Home Affairs, What we do, Migration Program planning levels
• Department of Home Affairs, Freedom of Information Reference Number FA 23/04/00444, Reports into the operation of the Business Innovation and Investment Program, 2019, Disclosure Date 5/10/2023.
• Department of Home Affairs website, Department of Home Affairs Ministers, The Hon Clare O'Neil MP, Media hub https://minister.homeaffairs.gov.au/ClareONeil/Pages/national-press-club-address-australias-migration-system-27042023.aspx
• Migration Act 1958
• Migration Regulations 1994, Schedule 2 - Provisions with respect to the grant of Subclasses of visas
• Abul Rizvi, 28 January 2024, Murdoch article drums up hysteria with factual errors, Independent Australia
• Stephen Rice, 22 January 2024, Quiet chop for ‘golden visa’ scheme, The Australian

^[1] Department of Home Affairs, Review of the Migration System, Final Report 2023, March 2023. Online versoin of the Review are available on the Department’s website: https://www.homeaffairs.gov.au/reports-and-publications/reviews-and-inquiries/departmental-reviews/migration-system-for-australias-future

^[2] Transcripts of the Honorable Minister’s Address can be found in the  Department of Home Affairs website, Minsters for the Department of Home Affairs, The Hon Clare O'Neil MP, Media hub <https://minister.homeaffairs.gov.au/ClareONeil/Pages/national-press-club-address-australias-migration-system-27042023.aspx >