After Subclass 188 (Entrepreneur Stream)

We know the Business Innovation and Investment (Provisional) 188 Visa (Entrepreneur Stream) is barely hatched but we think its always good to scout ahead, especially if you’ve got a business to nurture. So what does the path to a Business Innovation and Investment (Permanent) 888 Visa via an entrepreneur stream 188 visa look like?

• The applicant must have held the entrepreneur stream 188 visa for a continuous period of at least 4 years
• The applicant must have resided in Australia for at least 2 years of the 4 years
• The applicant must have a realistic and genuine commitment to continue to maintain business or investment activity in Australia (sign a declaration form)
• The applicant must demonstrate an overall successful record of undertaking, whether alone or by participating in a business, activities of an entrepreneurial nature in Australia
• The applicant (and spouse/partner whereapplicable) cannot have a history of involvement in business or investment activities that would not be deemed acceptable in Australia

Overall successful record?

The Department of Immigration and Border Protection will be looking at the number of Australian citizens and permanent residents employed in Australia in relation to the business activity, the level and nature of ongoing funding and the annual turnover of the business.

You can demonstrate a successful record through a combination of a minimum of two key success factors, or one key success factor and three supporting success factors.

Key success factors:

• Employing two or more Australians, permanent residents or other eligible persons
• Generating an annual turnover of at least AUD 300 000
• Filing a provisional patent or acquiring a standard or innovation patent
• Receiving ongoing funding or investment in your entrepreneurial activity
• Entering into a partnership with a University
• Selling an entrepreneurial venture for AUD 2,000,000

Supporting success factors:

• Diversifying entrepreneurial activities into other business areas
• Receiving a statement of success from a state or territory government nominator
• Receiving sponsorship from the corporate sector
• Starting at least one other business or contributing to at least two other businesses
• Receiving formal awards or recognition
• Raising or contributing to social capital

You’ll notice that the DIBP has defined success beyond profit and in a manner that keeps Australia’s interests in mind, so planning ahead for the DIBP-defined success factors would be good thinking.

Unacceptable business / investment activities

It is the minimum that the applicant is cleared for complying with taxation obligations. Business activity statements (BAS) are part of the required documents, and income tax returns and notices of assessments are likely to be requested as a means of checking that there has been no illegal activity.

Examples of non-compliance:

• Lodging taxation documents that are incorrect to the best knowledge of the primary applicant
• Failing to lodge relevant taxation documents in accordance with prescribed requirements made by the collecting authority
• not paying government taxes and levies in full and on time (or in accordance with alternative payment arrangements made with the collecting authority)
• not complying with, resulting in breach of, laws of the Australian Border Force (ABF)
• failing to pay in full and on time (or in accordance with relevant alternative arrangements) all superannuation, Superannuation Guarantee and workers’ compensation obligations in respect of the employees of the Australian businesses of the primary applicant or their spouse/de facto partner
• not complying with conditions under relevant industrial awards that apply to the employees of the Australian businesses of the primary applicant or their spouse/de facto partner (such as rates of pay, hours of work, overtime, and leave entitlements)
• employing a visa holder in breach of the work conditions of that visa
• not complying with other relevant workplace laws (such as Workplace Health and Safety requirements, anti-discrimination laws, and industrial relations practices)
• not complying with food hygiene or liquor licensing regulations
• for any company of which the primary applicant or their spouse/de facto partner is a director, not complying with corporation law requirements.

Demonstrating that your business activity is successful would be a huge determining factor in this application, so don’t limit yourself to the listed items.

As the entrepreneur stream 188 visa is a 4 year 3 month visa, you have 3 months to submit your application should you wish you remain onshore.

As information is still being released about the entrepreneur stream 188 visa, we know that this is a little enthusiastic on our part. However, with the permanent 888 visa criteria in mind, your ‘innovative idea’ for the entrepreneur stream 188 visa may change.