(a) at the time of application, the applicant held the visa mentioned in item 3 or 4 of the relevant table; and
(b) if the applicant held the visa mentioned in item 3 of the relevant table—the visa was granted before 1 July 2021.
(2) For the purposes of subclause (1), an applicant is taken to have been in Australia during a period if:
(a) the applicant was outside Australia during a concession period; and
(b) during the concession period the applicant was the holder of one or more visas mentioned in item 1AA, 1 or 2 of the table in subitem 1104BA(4) of Schedule 1; and
(c) the first such visa was granted to the applicant before 1 July 2019.
888.222
(1) The applicant (the current applicant):
(a) had an ownership interest in at least one actively operating main business in Australia during the 2 years immediately before the application was made; and
(b) continues to have the ownership interest in the actively operating main business.
(2) If the current applicant acquired the ownership interest from another person who was an applicant for, or held, a Business Skills (Permanent) (Class EC) visa or a Business Skills (Residence) (Class DF) visa at the time of the acquisition, the current applicant must have held the ownership interest with that person as a joint interest for at least one year before the current applicant’s application was made.
888.223
An Australian Business Number has been obtained for each business mentioned in subclause 888.222(1).
888.224
Each Business Activity Statement required by the Commissioner of Taxation during the 2 years immediately before the application was made has been submitted to the Commissioner and has been included in the application.
888.225
(1) If the nominating State or Territory government agency has not determined that there are exceptional circumstances:
(a) the requirements in at least 2 of subclauses (2) to (4) are met; and
(b) the requirement in subclause (5) is met.
(2) The assets owned by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:
(a) had a net value of at least AUD200 000 throughout the period of 12 months immediately before the application was made; and
(b) continue to have a net value of at least AUD200 000; and
(c) were lawfully acquired.
(3) In the period of 12 months immediately before the application was made:
(a) the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together provided employment in Australia to 2 or more employees for a total number of hours that was at least the total number of hours that would have been worked by 2 full‑time employees; and
(b) each employee whose employment is used to work out that total number of hours:
(i) was not the applicant or a member of the family unit of the applicant during that period; and
(ii) was an Australian citizen, an Australian permanent resident or the holder of a valid New Zealand passport during that period.
(4) The business and personal assets in Australia 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) had a net value of at least AUD600 000 in the period of 12 months ending immediately before the application was made; and
(b) continue to have a net value of at least AUD600 000; and
(c) were lawfully acquired.
(5) The main business in Australia, or main businesses in Australia, 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 an annual turnover of at least AUD300 000 in the 12 months immediately before the application was made.
888.226
(1) Subclause (2) or (3) applies.
(2) All of the following apply:
(a) the nominating State or Territory government agency has determined that there are exceptional circumstances;
(b) the requirements set out in at least 2 of subclauses 888.225(2) to (4) have been met;
(c) the applicant:
(i) resides in an area specified by the Minister in an instrument in writing for this subparagraph; and
(ii) operates the applicant’s main business or businesses in Australia in the area.
(3) Both of the following apply:
(a) the nominating State or Territory government agency has determined that there are exceptional circumstances;
(b) the requirement set out in subclause 888.225(5) has been met.
888.23—Criteria for Investor stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 888 visa in the Investor stream.
888.231
(1) The applicant has been in Australia, as the holder of a visa mentioned in the table in subitem 1104BA(5) of Schedule 1 (the relevant table):
(a) if the applicant is covered by any of subclauses (1A) to (1C)—for a total period of at least 2 years in the 4 years immediately before the application was made; or
(b) otherwise—for a total period of at least 2 years in the 3 years immediately before the application was made.
(1A) The applicant is covered by this subclause if:
(a) at the time of application, the applicant held the visa mentioned in item 1 of the relevant table; and
(b) the applicant was invited to apply for that visa before 1 July 2021.
(1B) The applicant is covered by this subclause if:
(a) at the time of application, the applicant held the secondary visa mentioned in item 2 of the relevant table; and
(b) the primary visa holder mentioned in that item was invited to apply for the primary visa mentioned in that item before 1 July 2021.
(1C) The applicant is covered by this subclause if, at the time of application, the applicant met the requirements in item 3 or 4 of the relevant table.
(2) For the purposes of subclause (1), an applicant is taken to have been in Australia during a period if:
(a) the applicant was outside Australia during a concession period; and
(b) during the concession period the applicant was the holder of a visa mentioned in the table in subitem 1104BA(5) of Schedule 1; and
(c) the visa was granted to the applicant before 1 July 2019.
888.232
If the applicant is covered by any of subclauses 888.231(1A) to (1C), either of the following paragraphs apply:
(a) the designated investment made by the applicant for the purpose of satisfying a criterion for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa has been held continuously in the name of the applicant, or in the names of the applicant and the applicant’s spouse or de facto partner together, for:
(i) if the Subclass 188 (Business Innovation and Investment (Provisional)) visa was granted on the basis of an application made before 1 July 2015—at least 3 years and 11 months; or
(ii) if the Subclass 188 (Business Innovation and Investment (Provisional)) visa was granted on the basis of an application made on or after 1 July 2015—at least 4 years; or
(b) the applicant withdrew funds from, or cancelled, the designated investment during a concession period and the following requirements are satisfied:
(i) the applicant holds or held a Subclass 188 (Business Innovation and Investment (Provisional)) visa that was granted before 1 July 2019;
(ii) the applicant was resident in Australia for a period of at least 2 years immediately before the applicant first withdrew funds from, or cancelled, the designated investment;
(iii) the designated investment was held continuously in the name of the applicant, or in the names of the applicant and the applicant’s spouse or de facto partner together, during that period;
(iv) the applicant did not withdraw funds from, or cancel any part of, the designated investment outside of the concession period.
888.233
Unless the applicant is covered by any of subclauses 888.231(1A) to (1C), the applicant has held a complying significant investment for the whole of the period during which the applicant held a Subclass 188 visa.
888.24—Criteria for Significant Investor stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 888 visa in the Significant Investor stream.
888.241
(1) If the applicant is covered by any of subclauses (1A) to (1D), at the time of application:
(a) the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream for a continuous period of 4 years; or
(b) the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream and one or more Subclass 188 (Business Innovation and Investment (Provisional)) visas in the Significant Investor Extension stream for a continuous period of 4 years; or
(c) the applicant:
(i) has held, for a continuous period of 3 years and 11 months, a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream applied for before 1 July 2015; and
(ii) has not held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream granted on the basis of the visa mentioned in subparagraph (i); or
(d) the applicant:
(i) has held a Subclass 188 visa in the Significant Investor stream that was granted before 1 July 2019; but
(ii) no longer holds the visa because the visa expired during a concession period.
(1AA) If, at the time of application, the applicant met the requirements in item 2 or 4 of the table in subitem 1104BA(5A) of Schedule 1 (the relevant table), a reference in subclause (1), (2A) or (2B) to a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream or the Significant Investor Extension stream is taken to be a reference to a Subclass 188 (Business Innovation and Investment (Provisional)) visa granted on the basis that the applicant was the spouse or de facto partner of a person who held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream or the Significant Investor Extension stream.
(1A) The applicant is covered by this subclause if:
(a) at the time of application, the applicant held the visa mentioned in item 1A of the relevant table; and
(b) the applicant was invited to apply for that visa before 1 July 2021.
(1B) The applicant is covered by this subclause if:
(a) at the time of application, the applicant held the visa mentioned in item 1 of the relevant table; and
(b) the applicant was invited, before 1 July 2021, to apply for the Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream held by the applicant.
(1C) The applicant is covered by this subclause if:
(a) at the time of application, the applicant held the secondary visa mentioned in item 2 of the relevant table; and
(b) the primary visa holder mentioned in that item was invited, before 1 July 2021, to apply for the Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream held by the primary visa holder.
(1D) The applicant is covered by this subclause if, at the time of application, the applicant met the requirements in item 3 or 4 of the relevant table.
(2) The applicant meets the requirements of subclause (2A) or (2B).
(2A) Both of the following apply:
(a) the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made before 1 July 2015;
(b) the applicant has held, for the whole of the period during which the applicant has held the visas or visa mentioned in subclause (1), a complying investment within the meaning of regulation 5.19B as in force at the time the application mentioned in paragraph (a) was made.
(2B) Both of the following apply:
(a) the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made on or after 1 July 2015;
(b) the applicant has held a complying significant investment (within the meaning of regulation 5.19C as in force at the time the application mentioned in paragraph (a) was made) for:
(i) if the applicant is covered by any of subclauses (1A) to (1D)—the whole of the period during which the applicant has held the visas or visa mentioned in subclause (1); or
(ii) otherwise—the whole of the period during which the applicant has held the visa on the basis of which the applicant met the requirements in an item of the relevant table.
(3) For any part of the investment mentioned in subclause (2A) or (2B) for the applicant that is, or was, a direct investment in an Australian proprietary company:
(a) if the period of the direct investment was less than 2 years, the company was a qualifying business for the whole period; or
(b) if the period of the direct investment was 2 years or more, the company was a qualifying business for at least 2 years; or
(c) if the company has been unable to operate as a qualifying business, the Minister is satisfied that the applicant made a genuine attempt to operate the business as a qualifying business.
(4) The applicant has given the Minister:
(a) if subclause (2A) applies to the applicant—a completed copy of approved form 1413 for each investment in a managed fund on which the investment mentioned in that subclause is based; or
(b) if subclause (2B) applies to the applicant—evidence that the applicant holds an investment as required for that subclause.
Note: Approved form 1413 includes a declaration that the investments made by a managed fund for the benefit of clients are limited to one or more of the purposes specified by the Minister for paragraph 5.19B(2)(c).
888.242
(1) The applicant meets the requirements of subclause (2) or (3).
(2) The applicant has been in Australia for at least the number of days worked out by adding the results of paragraphs (a) and (b):
(a) 40 multiplied by the number of complete years in the period in which the applicant has held a Subclass 188 visa in the Significant Investor stream; and
(b) 40 multiplied by the number of years (if any) (treating a part of a year as 1 year) in the period in which the applicant has held a Subclass 188 visa in the Significant Investor Extension stream.
(2A) For the purposes of working out, under subclause (2), the number of days the applicant has been in Australia, the applicant is taken to have been in Australia during a period if:
(a) the applicant was outside Australia during a concession period; and
(b) during the concession period the applicant held a Subclass 188 visa in the Significant Investor stream or a Subclass 188 visa in the Significant Investor Extension stream; and
(c) the Subclass 188 visa in the Significant Investor stream was granted to the applicant before 1 July 2019.
(3) The applicant’s spouse or de facto partner has been in Australia on a Subclass 188 visa, granted on the basis that the applicant held a Subclass 188 visa in the Significant Investor stream or the Significant Investor Extension stream, for at least the number of days worked out by adding the results of paragraphs (a) and (b):
(a) 180 multiplied by the number of complete years in the period in which the applicant held a Subclass 188 visa in the Significant Investor stream; and
(b) 180 multiplied by the number of years (if any) (treating a part of a year as 1 year) in which the applicant held a Subclass 188 visa in the Significant Investor Extension stream.
(4) For the purposes of working out, under subclause (3), the number of days the applicant’s spouse or de facto partner has been in Australia, the spouse or partner is taken to have been in Australia during a period if:
(a) the spouse or partner was outside Australia during a concession period; and
(b) during the concession period the spouse or partner held a Subclass 188 visa, granted on the basis that the applicant held a Subclass 188 visa in the Significant Investor stream or a Subclass 188 visa in the Significant Investor Extension stream; and
(c) the Subclass 188 visa in the Significant Investor stream was granted to the applicant before 1 July 2019.
Note: It is not necessary for the applicant to have been in Australia for 40 days in each year in the period or the applicant’s spouse or de facto partner to have been in Australia for 180 days in each year in the period.
888.25—Criteria for Premium Investor stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 888 visa in the Premium Investor stream.
888.251
(1) At the time of application the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Premium Investor stream for a continuous period of at least 12 months.
(2) For the whole of the period during which the applicant has held the visa mentioned in subclause (1), the applicant has held a complying premium investment (within the meaning of regulation 5.19D as in force at the time the application for that visa was made) except any part of the investment that is a philanthropic contribution.
(3) For any part of the complying premium investment (except any part of the investment that is a philanthropic contribution) that is, or was, a direct investment in an Australian proprietary company:
(a) the company was a qualifying business for the whole period; or
(b) if the company has been unable to operate as a qualifying business, the Minister is satisfied that the applicant made a genuine attempt to operate the business as a qualifying business.