(g) member of the family unit has the meaning set out in regulation 1.12.
Note 3: For the beneficial ownership of an asset, eligible investment or ownership interest, see regulation 1.11A.
188.2—Primary criteria
Note: The primary criteria for the grant of a Subclass 188 visa include criteria set out in streams.
If an applicant applies for a Subclass 188 visa in the Business Innovation stream, the criteria in Subdivisions 188.21 and 188.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 188 visa in the Business Innovation Extension stream, the criteria in Subdivisions 188.21 and 188.23 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Investor stream, the criteria in Subdivisions 188.21 and 188.24 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Significant Investor stream, the criteria in Subdivisions 188.21 and 188.25 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Significant Investor Extension stream, the criteria in Subdivisions 188.21 and 188.26 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Entrepreneur stream, the criteria in Subdivisions 188.21 and 188.28 are the primary criteria.
The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
188.21—Common criteria
Note: These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 188 visa.
188.211
The applicant, and the applicant’s spouse or de facto partner, do not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
188.212
The nominating State or Territory government agency or the CEO of Austrade has not withdrawn the nomination.
188.212A
(1) If, at the time of application:
(a) the applicant held a Subclass 491 (Skilled Work Regional (Provisional)) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; or
(b) the last substantive visa held by the applicant was a Subclass 491 (Skilled Work Regional (Provisional)) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;
the applicant must have held that visa for at least 3 years at the time of application unless circumstances specified in an instrument under subclause (2) exist.
(2) The Minister may, by legislative instrument, specify circumstances for the purposes of subclause (1).
188.213
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.
(4) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 188 visa; and
(b) had turned 18 at the time of application;
satisfies public interest criterion 4019.
(5) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 188 visa; and
(b) has not turned 18;
satisfies public interest criteria 4015 and 4016.
(6) Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.
188.214
(1) The applicant satisfies special return criteria 5001, 5002 and 5010.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies special return criteria 5001, 5002 and 5010.
188.22—Criteria for Business Innovation stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation stream.
188.221
(1) The applicant was invited, in writing, by the Minister to apply for the visa.
(2) The applicant:
(a) had not turned 55 at the time of the invitation to apply for the visa; or
(b) is proposing to establish or participate in business or investment activity that the nominating State or Territory government agency has determined is of exceptional economic benefit to the State or Territory in which the agency is located.
188.222
(1) The applicant’s score on the business innovation and investment points test is not less than the number of points specified by the Minister in an instrument in writing for this subclause.
(2) For subclause (1):
(a) an applicant’s score on the business innovation and investment points test is the sum of the applicant’s scores under Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8, 7A.9 and 7A.10 of Schedule 7A; and
(b) the Minister must not give the applicant the prescribed number of points for more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and 7A.10 of Schedule 7A; and
(c) if the applicant’s circumstances satisfy more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and 7A.10 of Schedule 7A, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.
188.223
The applicant demonstrates that there is a need for the applicant to be resident in Australia to establish or conduct the proposed business activity.
188.224
The applicant has overall had a successful business career.
188.225
(1) For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant had an ownership interest in one or more established main businesses that had an annual turnover, in each of those years, of:
(a) if the time of invitation was before 1 July 2021—at least AUD500,000; or
(b) if the time of invitation was on or after 1 July 2021—at least AUD750,000.
(2) If the applicant was engaged in one or more businesses providing professional, technical or trade services for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant was directly engaged in the provision of the services, as distinct from the general direction of the operation of the business, for no more than half the time spent by the applicant from day to day in the conduct of the business.
188.226
At the time of invitation, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, that can be applied to the establishment or conduct of a business in Australia have a net value of:
(a) if the time of invitation was before 1 July 2021—at least AUD800,000; or
(b) if the time of invitation was on or after 1 July 2021—at least AUD1,250,000.
188.227
The nominating State or Territory government agency is satisfied that the net value of the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, other than the business and personal assets mentioned in clause 188.226, is sufficient to allow the applicant and the spouse or de facto partner to settle in Australia.
188.228
The business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:
(a) are lawfully acquired; and
(b) are available for transfer to Australia within 2 years after the grant of a Subclass 188 visa.
188.229
(1) The applicant genuinely has a realistic commitment to:
(a) establish a qualifying business in Australia; or
(b) participate in an existing qualifying business in Australia.
(2) The applicant genuinely has a realistic commitment to:
(a) maintain a substantial ownership interest in the qualifying business mentioned in subclause (1); and
(b) maintain a direct and continuous involvement in the management of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business, in a manner that benefits the Australian economy.
188.229A
(1) The applicant satisfies public interest criterion 4005.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criterion 4005.
(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
188.23—Criteria for Business Innovation Extension stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation Extension stream.
188.231
The applicant demonstrates that there is a need for the applicant to be resident in Australia to operate the main business.
188.232
(1) Either:
(a) for at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia; or
(b) if the applicant holds or held a Subclass 188 visa in the Business Innovation stream (the innovation stream visa) or a Subclass 188 visa in the Business Innovation Extension stream (the extension stream visa) during a concession period and the innovation stream visa that the applicant holds or held was granted before 1 July 2019—the applicant had an ownership interest in one or more main businesses that were actively operating in Australia for a cumulative period of at least 2 years while the applicant was the holder of the innovation stream visa or the extension stream visa.
(2) The applicant continues to have the ownership interest mentioned in subclause (1).
188.233
The applicant genuinely has a realistic commitment to:
(a) maintain the ownership interest mentioned in subclause 188.232(1); and
(b) maintain a direct and continuous involvement in the management of the main business from day to day, and in the making of decisions that affect the overall direction and performance of the main business, in a manner that benefits the Australian economy.
188.234
(1) The applicant satisfies public interest criterion 4007.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criterion 4007.
(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
188.24—Criteria for Investor stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Investor stream.
188.241
(1) The applicant was invited, in writing, by the Minister to apply for the visa.
(2) The applicant:
(a) had not turned 55 at the time of the invitation to apply for the visa; or
(b) is proposing to establish or participate in business or investment activity that the nominating State or Territory government agency has determined is of exceptional economic benefit to the State or Territory in which the agency is located.
188.242
(1) The applicant’s score on the business innovation and investment points test is not less than the number of points specified by the Minister in an instrument in writing for this subclause.
(2) For subclause (1):
(a) an applicant’s score on the business innovation and investment points test is the sum of the applicant’s scores under Parts 7A.2, 7A.3, 7A.4, 7A.6, 7A.7, 7A.8, 7A.9 and 7A.10 of Schedule 7A; and
(b) the Minister must not give the applicant the prescribed number of points for more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.6, 7A.7, 7A.8 and 7A.10 of Schedule 7A; and
(c) if the applicant’s circumstances satisfy more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.6, 7A.7, 7A.8 and 7A.10 of Schedule 7A, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.
188.243
(1) The applicant has overall had a successful record of eligible investment activity or qualifying business activity.
(2) The applicant has had a total of at least 3 years experience of direct involvement in managing one or more qualifying businesses or eligible investments.
(3) The applicant has demonstrated a high level of management skill in relation to the eligible investment or qualifying business activity.
188.244
(1) For at least one of the 5 fiscal years immediately before the time of invitation to apply for the visa:
(a) both of the following apply:
(i) the applicant maintained direct involvement in managing a qualifying business;
(ii) the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, had an ownership interest of at least 10% of the total value of the business; or
(b) subclause (2) applies.
(2) This subclause applies if:
(a) the applicant maintained direct involvement in managing eligible investments of the applicant, the applicant’s spouse or de facto partner, or the applicant and the applicant’s spouse or de facto partner together; and
(b) the total net value of the eligible investments was:
(i) if the time of invitation to apply for the visa was before 1 July 2021—at least AUD1,500,000; or
(ii) if the time of invitation to apply for the visa was on or after 1 July 2021—at least AUD2,500,000.
188.245
For the 2 fiscal years immediately before the time of invitation to apply for the visa, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, had a net value of:
(a) if the time of invitation was before 1 July 2021—at least AUD2,250,000; or
(b) if the time of invitation was on or after 1 July 2021—at least AUD2,500,000.
188.246
(1A) If the time of invitation to apply for the visa was before 1 July 2021, the requirements in subclauses (1) and (2) are met.
(1) The applicant has made a designated investment of at least AUD1 500 000 in the State or Territory in which the nominating State or Territory government agency is located, and has made the investment:
(a) in the name of the applicant; or
(b) in the names of the applicant and his or her spouse or de facto partner.
(2) The funds used to make the designated investment mentioned in subclause (1) were:
(a) unencumbered; and
(b) accumulated from either or both of:
(i) one or more qualifying businesses conducted by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together; and
(ii) eligible investment activities of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.
188.246A
(1) If the time of invitation to apply for the visa was on or after 1 July 2021, the requirements in subclauses (2), (3) and (4) are met.
(2) The applicant:
(a) has made a complying significant investment of at least AUD2,500,000; and
(b) has a genuine intention to hold the complying significant investment for the whole of the visa period.
(3) The funds used to make the complying significant investment mentioned in subclause (2) were accumulated from either or both of the following:
(a) one or more qualifying businesses conducted by the applicant, the applicant’s spouse or de facto partner, or the applicant and the applicant’s spouse or de facto partner together;
(b) eligible investment activities of the applicant, the applicant’s spouse or de facto partner, or the applicant and the applicant’s spouse or de facto partner together.
(4) The applicant has given the Minister:
(a) evidence that the complying significant investment mentioned in subclause (2) complies with the requirements set out in regulation 5.19C as in force at the time of application; and
(b) a completed copy of approved form 1412, signed by the applicant and each other applicant aged at least 18.
Note: Approved form 1412 is a deed of acknowledgement, undertaking and release, signed by each person mentioned in paragraph (b), under which they:
(a) acknowledge that they are responsible for their financial and legal affairs; and
(b) undertake not to bring an action against the Commonwealth in relation to any loss relating to the complying significant investment; and
(c) release the Commonwealth from any liabilities in relation to any loss relating to the complying significant investment.
188.247
The business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:
(a) are lawfully acquired; and
(b) are available for transfer to Australia within 2 years after the grant of a Subclass 188 visa.
188.248
(1) The applicant genuinely has a realistic commitment to continue to maintain business or investment activity in Australia after:
(a) if subclause 188.246(1) applies to the applicant—the designated investment mentioned in that subclause matures; or
(b) if subclause 188.246A(2) applies to the applicant—the complying significant investment mentioned in that subclause matures.
(2) The applicant has a genuine intention to reside for at least 2 years in the State or Territory in which the nominating State or Territory government agency is located.
188.249
(1) The applicant satisfies public interest criterion 4005.