Legal Notes

Solicitor NSW & WA
Migration Agent





• Introduction

There have been some innovations in processing of migration visas.
There are also some new visas that were introduced as of July 2012.
Some are already in process; there is however some anticipated delay in processing especially of new types of visas.

• 457 visas

Until recently this year, there was no limit to the number of nominees an approved business sponsor can nominate for positions required within the company. This has now been innovated; there is a new limit to employees one can nominate under an approved business sponsorship. There is also a new and more strict emphasis on the ‘genuineness’ criterion for nominating overseas workers under the 457 visas. Whether these changes are good or bad, remain to be seen. But a good number of migration agents (experienced), had indicated that their 457 visas are being rejected on “genuineness” issue.

Other changes were canvassed and discussed already in previous issue of this paper.

•Business innovation and investment (provisional) (subclass 188) visa
Under this scheme, the visa applicant should lodge an Expression of Interest with SKILLSELECT.
The visa has three streams;

•The Business Innovation stream which is for people who want to own and manage a new or existing business in Australia

•The Investor Stream – which is for people who want to make a designated investment in an Australian territory or state, and want to maintain business and investment activity in Australia after the original investment has matured.

•The Significant Investment stream is for people who are willing to invest at least AUD$5million dollars into complying investments in Australia, and want to maintain business and investment activity in Australia after the original investment has matured.


The Significant Investor’s visa (Provisional – 188 visa), and Permanent (888 visa)

How to apply?

•Must lodge an expression of interest with SKILLSELECT (This is the same procedure with the other two streams referred to above).

•Must be nominated by a State or Territory government

•Must make investment of at least AUD$5million dollars into complying investments.

Advantages of this visa is that there is no need to comply with the innovation points test (this is not the case with the other provisional business innovation streams above), and there is upper age limit, and no English language requirement.
The visa is aimed at investors who have a good business history, have adequate personal and business assets, etc.
These lists are not exhaustive.

•Personal lodgement of Onshore Partner visas prohibited.
As of July l 2013, the new rule about submission of onshore partner’s visa has taken effect.
As this was not published on time, a number of migration agents were shocked to get their application rejected, and were notified of the new regulations, i.e.
“An application must be made:
•By posting the application (with the correct pre-paid postage) to the post office box or address or other address specified by the Minister in an instrument in writing for this subparagraph,

•By having the application delivered by courier service to the address specified by the Minister

•If no address is provided, by lodging the application at an office of immigration…”

It means that any application lodged by hand with the Department of Immigration will be rendered an invalid application. This is very important as it may involve a deadline to be met.

• Conclusion

The Business Innovation and investment visas are attractive to experienced business people who have proven record of success in business, who have sufficient assets to invest in Australia, and who would otherwise fail the tests for permanent (skilled) migration visas for reasons of age and English proficiency requirements.

The changes in processing with regards to other visas are significant, and must be noted by the visa applicants.

It is always helpful to see a migration professional BEFORE YOU FILE YOUR APPLICATION.

Some oversights may mean success or failure of your visa;

For example, if you have a deadline, you must file your reply or new application within that date. For visa applicants on student visas, the requirement is that a valid application must be filed within 6 months from completion of referred course or degree. One day late is one day too late, and can mean rejection of your visa application. There are strict timing rules for visa applications; e.g. when do you submit your IELTS test result, your skills assessment result, etc. These may appear minor issues with visa applicants, but a consultation with a migration professional may have made a difference between success and failure.


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