Business Innovation and Investment (Permanent) Visa (Subclass 888)

It’s always good to be a little forward thinking. Often applicants are not fully aware of the obligations for their second stage visas and find themselves fumbling when it comes time to apply for permanent residency. But you can count on immiNews to bring the information to you!

Last week we explored the business innovation stream business innovation and investment (provisional) visa (subclass 188).

Read: Business Innovation and Investment (Provisional) Visa (Subclass 188)

This week, we’ll talk about part two of your journey; the permanent business innovation stream business innovation and investment (permanent) visa (subclass 888):

• Resident in Australia at least 1 year in the 2 years before application
• Hold ownership interest in 1 or more main businesses in Australia in the 2 years before application
• Main businesses were not acquired from another 888/891/892/893 visa holder
• Has played in active role in the management of the main business(es)
• Have an Australian Business Number (ABN) for each main business
• Submitted Business Activity Statements (BAS) to the Australian Taxation Office (ATO) in the 2 years before application
• Had an annual turnover at at least AUD$300,000 from main business(es) in the year before application
• Meet 2 out of 3 of the following business criteria:
  • Net value of at least AUD$200,000 in up to 2 business in the year before application
  • Net value of personal and business assets of at least AUD$600,000 in Australia in the year before application
  • Employed at least 2 full time employee in the main business(es) through the year before application who are Australian citizens, permanent residents or eligible New Zealand citizens and are not family
• No involvement in unacceptable business or investment activities
• Have a genuine desire to continue to own and maintain a management role in a business in Australia

Applicant

The applicant may be either the main 188 visa holder or a secondary holder. When a secondary 188 holder applies as the main applicant for the 888 visa, it is called role swapping, and is only permitted for business innovation and investor streams. The applicant that is chosen to be the main applicant for the business innovation 888 visa must fulfil all the conditions.

Residence

The applicant must have been resident in Australia for at least a year in the immediate 2 years before application. This time can be collected cumulatively through the 2 years and does not have to be an unbroken stay. Time spent must be as a 188 visa holder to be counted.

Main business(es)

For a business to be considered a main business, the application must hold ownership interest which is:

• At least 51% if the business with a turnover of less than AUD$400,000 a year
• At least 30% if the business with turnover of more than AUD$400,000 a year
• At least 10% if it is a publicly listed company

The business(es) may be newly established or an existing one where the applicant has become an owner or part owner.

Ownership interest

The applicant must have held ownership interest in 1 or 2 actively operating main businesses through the 2 years before the time of application. What this means is that ownership interest in any main business is not required to span the entire 2 years, but ownership interest in up to of 2 main businesses over 2 calendar years will fulfil the requirement. It is not possible for the owner to have held ownership interest in 2 main businesses in the last year and have it counted as 2 years.

Ownership interest must not have ceased before the time of application.

Role

The applicant must also have maintained a consistent role in the main businesses that is managerial in nature and impacts the business operations and performance

Acquisition

The main businesses cannot be acquired from another 888/891/892/893 visa holder. The passing of businesses between business visa holders for the sake of migration purposes is tantamount to abusing the visa as the intent of this visa programme is to encourage business owners to develop business activity in Australia.

Should the business have ties with another 888/891/892/893 holder, it must be a part-owner situation. The joint interest must have held for at least a year before application. The share the applicant has in the business must be at least 30%.

Australian Business Numbers (ABN) & Business Activity Statements (BAS)

All main businesses must have ABNs. Certified copies of original BAS or copies from the ATO portal must be provided and must cover a period of at least 2 years before application for up to 2 main businesses.

Turnover

The main business(es) under the applicant, applicant’s partner or applicant and partner, must meet at least AUD$300,000 in annual turnover in the year before the application is made.

If condition may be waived by the state or territory government if the applicant can meet the at least 2 of the business criteria (next section), the applicant resides in and operates business in a specified area. The list of area codes can be found on this list.  The state or territory may also choose to waive the turnover condition should there be exceptional circumstances.

2 of 3 business criteria

The applicant is required to meet 2 out of the following 3 criteria:

• Net value of business assets AUD$200,000 and above throughout the preceding year before the application
• Employed in Australia, the equivalent of at least 2 full time Australian citizens, permanent residents or eligible New Zealand citizens full time in the year before application
• Net value of business and personal assets in Australia of at least AUD$600,00 in the year before application

Business assets

Business assets of the applicant, applicant’s partner or applicant and partner collectively is net AUD$200,000 and above throughout the preceding year before the application and is maintained above said minimum through the application. Assets must have been lawfully acquired.

Employees

In the year before the application is made, the main business(es) of the applicant, applicant’s partner or applicant and partner has employed in Australia, no less than 2 Australian citizens, permanent residents or eligible New Zealand citizens for the equivalent of 2 years work, full time. These employees include permanent, casual and contract employees.

Where employees are not full time, hours are pro rated. For example, 4 full time employees that were employed for 6 months over the last 1 year may be considered to meet the requirement. Full time is considered to be no less than 38 hours a week.

Employees must not include the applicant or member of the family unit.

Business and personal assets

Business and personal assets of the applicant, applicant’s partner or both the applicant and partner amount to a net value of at least AUD$600,00 in the year before application and must continue to have the minimum AUD$600,000. Assets must be in Australia to be counted and must of course, have been lawfully acquired.

Compliance with Australian business laws

It is generally taken that unless there is suspicious documentation or other information, the applicant has complied with Australian laws (local, state and federal). Examples of non-compliant activities as provided by the DIBP that are in breach of Australian laws include:

• lodging taxation documents (such as Income tax returns and Business Activity Statements) that are not true and correct to the best knowledge of the primary applicant (or their spouse/de facto partner)
• failing to lodge relevant taxation documents in accordance with prescribed requirements made with 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