Investor Stream: Business Innovation and Investment (Provisional) Visa (Subclass 188)

Points tested 188 visa geared for investors

Perhaps the business innovation stream didn’t quite suit you. We’re here today to discuss the next stream on the list, the investor stream under the Business Innovation and Investment visa (subclass 188). This stream has no requirement for the applicant to establish a business in Australia.

Read about the Business Innovation Stream 188 Visa

Read aboutGaining permanent residency after your Business Innovation stream 188 visa

There are 5 different streams on the Business Innovation and Investment (Provisional) visa (subclass 188):

  • Business innovation
  • Investor
  • Significant investor (no points test)
  • Premium investor (no points test)
  • Entrepreneur (no points test)

Read about the Entrepreneur stream 188 visa

This is a temporary visa which leads to the Business Innovation and Investment (Permanent) visa (subclass 888). It has a four year and three month term.

  • State or territory nomination
  • Under 55 years of age
  • Score a minimum of 65 points on the points test
  • High level of management skill in relation to eligible investment of qualifying business activity
  • In one of the last five fiscal years before invitation:
    • Have direct involvement in managing a qualifying business where you, your partner, or combined, have held at least 10% ownership interest OR
    • Have direct involvement in managing an eligible investment owned by you, your partner, or combined, of at least AUD$1.5 million
  • 3 years experience of direct involvement managing one or more qualifying business
  • In the two fiscal years before invitation, have legally acquired net business, investment and personal assets amounting to at least AUD$2.25 million that can be legally transferred to Australia within two years of the visa grant
  • Make a designated investment of at least AUD$1.5 million in a state or territory government security using unencumbered funds accumulated from qualifying businesses or eligible investments that can be held for at least four years from the date of your visa grant
  • Have an overall successful business/investment career
  • Have a realistic commitment to continue business/investment activity in Australia after the designated investment has matured
  • Genuine intent to reside for at least two years in the nominating state or territory
  • No involvement in unacceptable business or investment activities
  • Satisfy health and character requirements

 

Points test

This is a points tested visa but be careful! This points test is specific to business innovation and investment visas, and is not the test that applies to general skilled migration (GSM) visas.

Find our business and innovation visa points test sheet here

In each category the applicant can only claim points from one item. For example, if the applicant held both an Australian trade certificate as well a bachelor degree in business, he should claim the bachelor degree which holds a higher points value. However for the category of business innovations qualifications, the applicant may claim on multiple items for a cumulative score.  an applicant may obtain, for example, 15 points for holding a patent, 10 points for having a trademark and 15 points for export trade (to obtain a total of 40 points).

 

Qualifying businesses and eligible investments

What are they? The Department of Immigration and Border Protection (DIBP) defines these as follows:

 

Eligible investment

Each of the following is an eligible investment if a person owns it for the purpose of producing a return in the form of income or capital gain, and not for personal use:

  1. an ownership interest in a business;
  2. cash on deposit;
  3. stocks or bonds;
  4. real estate; *
  5. gold or silver bullion.

*As personal assets are not counted as eligible investments, bear in mind that residential homes cannot be included.

An investment asset may be owned or partly owned. Should the investment by partly owned, only the value of the portion owner by the applicant, partner, or combined, but be included to fulfil regulatory requirements. Eligible investments are also limited to its net value – loans that may have been acquired for the purchase of an investment asset must be deducted from its value.

 

Qualifying business

An enterprise that:

  1. is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
  2. is not operated primarily or substantially for the purpose of speculative or passive investment.

 

Ownership and value

Whether in evidencing ownership interest in qualifying businesses or eligible investments:

  • Ownership interest in a business – shareholder, partnership or sole proprietor type documents, including interest held indirectly through partnerships and trusts
  • Loans to business – Balance sheet and loan documents that show the value and name of lender
  • Cash on deposit – Bank accounts and statements at the end of the fiscal year. Accounts, such as cheque accounts, that accumulate little interest, should not be included. Hedge funds will require transfer documentation
  • Stocks and bonds – Share scripts, bond certificates, debentures and transfer documentation. The market value is taken using published financial information at the end of the fiscal year. Warrants and securities will require transfer documentation
  • Managed funds – demonstration that the decision was an informed decision and was not reliant on the advice of a broker or financial advisor
  • Real estate – Legally recognised title deeds. Value is ascertained through property valuations by a registered valuer at the end of the fiscal year. Personal residence is not eligible (see above)
  • Gold and silver bullion – Receipt of purchase. Value should be presented on a current certificate of valuation at the end of the fiscal year. Market value rates cannot be used as these rates neglect to account for the quality of the bullion
  • Superannuation – Cannot be included as an eligible investment as it is personal, unless it is a directly and self-managed fund. Contracts and evidence of direct management of the fund as well as the setup of the fund will count as evidence

 

Direct involvement in management

You’ll see this spread across a few of the criterion. What is the DIBP actually looking for what they use ‘managing’? In qualifying businesses, they want to see that the applicant has exercised ongoing responsibilities that are on the skill and responsibility level of (including but not limited to):

  • Decision making authority
  • Responsibility for employees
  • Responsibility for expenditure
  • Role has direct influence on operations

For investments, the applicant must show that they have ongoing and active contribution to (including but not limited to) decisions regarding the evaluation, selection, purchase, returns, dispersion and sale of investments. However there are a variety of investments out there. Here are some examples of relevant documentation for some common investment types:

  • Ownership interest in a business – evidence that the applicant has measured the performance of the business or has been involved in the management of that business
  • Loans to businesses – terms and conditions, interest rate, record of repayments
  • Cash on deposit – knowledge of current interest rates and evidence of having monitored returns on this investment against other potential eligible investments
  • Stocks and bonds – evidence that the applicant has measured the performance of these assets against other potential investments
  • Real estate – yield statements in terms of income from investment properties, cash flow statements and disbursements, records of property maintenance/improvements and
  • Gold and silver bullion – evidence of regular (at least twice yearly) valuations of bullion.

Now that we have established the ‘what’ and the ‘how’, let’s move on to meeting the eligibility criterion. Most of the eligibility criterion have their own individual parameters within which the applicant(s) will  need to prove both ownership and value, and in some cases that they have direct involvement in management. Always refer back to this section for any criteria that involves your ownership interest or management skills.

 

Management of business/investment in the last one in five fiscal years

High level of management skill – Statement of Management Activity

You will need to provide a ‘statement of managing activity’ in demonstration of your skill level in the active management qualifying businesses or eligible investments in one fiscal year out of the five fiscal years before the time of application. The year must be a continuous year. Have a few years to choose from? Pick the year that you are able to produce the most convincing documentation surrounding your management of the qualifying business(es) or eligible investment(s).

Boost your application. Have your statement be part of your resume of your business and investment career. Your resume should be detailed in a chronological manner.

 

Qualifying businesses and/or eligible investments

The applicant must have maintained continuous and direct involvement in managing either:

  • A qualifying business that the applicant, partner, or combined, have at least 10% in ownership interest, OR
  • Eligible investment(s) that the applicant, partner, or combined, that are at net value AUD$1.5 million or more

In fulfilling this criteria, where a business does not meet the definition of a qualifying business, it may be considered as an eligible investment. Residential property and superannuation (unless self-managed) cannot be used to meet this criteria.

 

3 years experience in business/investor activity

To further demonstrate your experience, the applicant must evidence having been directly involved in the management of qualifying businesses or eligible investments for an accumulated 3 years in their lifetime. Ownership interest must be no less than 10%.

It sounds like a lot, but the terms are not quite that rigid – there is no need for the years to be consecutive, nor does it have to be for an entire stretch of a year. One or more qualifying businesses or eligible investments may be included. You would also have already achieved one year of experience that you will have demonstrated for your statement of management activity. The one year can be counted towards these 3 years.

These qualifying businesses and eligible investments do not need to be successful either! Of course putting forth evidence of a full three years of failed investments will result in your failing the ‘overall successful business career’ criteria, so be discerning.

It might be a good idea to organise yourself by figuring out first if you fulfil the criteria of a full and continuous fiscal year within the last five years of ownership and management of a qualifying business or eligible investment (from here you will be able to create your statement of management activity), moving on to padding that with your best and longest business or investment activity to make up the next criteria of three years of experience.

 

Net personal and business assets

The applicant, partner, or combined, must hold personal and business assets that come in at net value above AUD$2.25 million. Do not forget that it is important that the amount is met at net value. Loans and outstanding tax must be deducted. These assets must have been lawfully acquired and must be available to be legally transferred to Australia within two years of a visa grant. Assets tied up in pension schemes, trusts, bonds and long term fixed deposits that cannot be touched in 2 years cannot be considered as part of the AUD$2.25 million

The applicant will also need to complete a ‘statement of assets and liabilities position (SALP) form to provide the DIBP with a ? of the applicant’s financial situation in the preceding two fiscal years before application.

For the purpose of this eligibility criteria, net eligible assets are not restricted to qualifying businesses and eligible assessments. Some examples of such assets include residence, superannuation products (what is accessible), cars and jewellery.

 

Designated investment

The applicant must be ready to make a designated investment into Australia amounted to at least AUD$1.5 million into the state or territory in which they are nominated. This is an investment into a government security. The designated investment must be made in the applicant’s, partner’s or applicant and partner’s name.

Assets used to make the designated investment must have been legally acquired and generated through qualifying businesses and eligible investments. Personal assets that were funded through profit from qualifying businesses and eligible investments will be considered. As such, ineligible assets include assets acquired directly or indirectly through windfall. Loans cannot be taken for this.

The AUD$1.5 million can come out of meeting the net business and personal assets of AUD$2.25 million. Should the applicant wish to use other assets that have not been evidenced for in the rest of the application, they will need to provide additional documentation.

A request letter for the designated investment will be sent to the applicant when the application is near finalisation. Within 70 days of the date of the letter request, the applicant must be able to evidence the transfer of funds to the nominating state or territory, which assets have been liquidated and used, and if the source of the funds came from those evidenced in the application. Funds deposited will not be available for access for 4 years. Upon making the designated investment, priority is given to the applicant for finalisation of the visa.

The applicant is responsible for having sufficient funds outside the designated investment amount to cover settlement costs and living expenses.

 

Overall successful business/investment career

DIBP will assess this through your application, so be sure to keep unsuccessful qualifying businesses or eligible investments to the bare minimum when trying to meet the criteria for three years of experience. The DIBP may decide consult third parties to verify the success of business and investment activities on a local/international scale.

There should be no bankruptcy in the applicant’s history, or active involvement in businesses that have been dissolved or liquidated, or has recently suffered severe trading losses. Should there be extenuating external factors will be taken into account in the applicant’s favour. Some external factors that will be considered include recessions and inflations, a fall in stock market prices, property values and changes in taxation regimes.

The DIBP will assess if the applicant meets the above by taking into account the following factors:

  • the type of business concerned
  • the size of the business concerned
  • the specific role of the applicant in the business
  • how many other professional, technical or trade-qualified staff are employed in the business
  • the applicant’s affiliations (if any) with professional, business/management or other relevant organisations and
  • evidence from the applicant’s time sheets/diary entries, which are used by many service providers as a record of billable hours

 

Realistic commitment to maintain business/investment activity in Australia

The applicant will need to declare that they understand and have a realistic commitment to continue business and investor activities in Australia after their designated investment has matured. The DIBP may ask for the applicant for proposed business or investment plans and intentions. No detailed proposals will be required.

 

Genuine intent to reside for at least 2 years in nominating state/territory

The applicant is obliged to state in the nominating state or territory for at least two years from the grant of the visa. Some factors that may be taken into consideration when assessing this requirement are:

  • The applicant’s proposed timeline for establishing a residence, including research into purchasing or renting residential properties
  • pre-existing businesses, investment or personal links with Australia
  • whether the applicant has made any exploratory visits to the nominating state/territory

 

Application

This a points tested visa as well as a state or territory nominated visa. This means that the applicant will need to make two separate applications, one fulfilling the criteria set by that state or territory, and the other to the Department of Immigration and Border Protection (DIBP). Both applications are required to be successful for the grant of the 188 visa.

It is very important to understand that each state or territory will have their own set of criterion. You must not neglect to fully research and understand what is required for your application to the nominating state or territory. For example, whilst the DIBP requirements ask for a designated investment of AUD$2.25 million, the New South Wales (NSW) nomination criteria is for those who wish to live in the metropolitan areas to have net value assets (applicant, partner, or combined) of at least AUD$3 million. It is AUD$2.25 million only for regional NSW.

Visit the state’s official websites for more information on their respective requirements:

Australian Capital Territory
New South Wales
Victoria
Western Australia
Northern Territory
Queensland
South Australia
Tasmania

Learn more Entrepreneur Stream Business Innovation and Investment Visa (Subclass 188)

Learn more Business Talent Visa (Subclass 132)

30517-AILS

 

Karl Konrad
Managing Director, Australian Immigration Law Services
MARN 9904238 

2 thoughts on “Investor Stream: Business Innovation and Investment (Provisional) Visa (Subclass 188)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s