Commonwealth Numbered Regulations

HOME AFFAIRS LEGISLATION AMENDMENT (2021 MEASURES NO. 1) REGULATIONS 2021 (F2021L00852) - SCHEDULE 1

Migration Regulations 1994

1  Subregulation 1.11A(1)

Omit "132,".

2  Paragraph 2.05(4AA)(b)

Repeal the paragraph.

3  Subparagraph 2.05(5A)(b)(ii)

Repeal the subparagraph.

4  Subregulation 2.06AAB(1) (table item 1)

Repeal the item.

5  Paragraphs 2.07AG(1)(b) and (2)(b)

Repeal the paragraphs.

6  Subregulations 5.19C(8A) and (8B)

Repeal the subregulations.

7  Subregulation 5.19E(3)

Omit "All", substitute "If the applicant is invited to apply for the visa before 1 July 2021, all".

8  At the end of subregulation 5.19E(3)

Add:

                   ; (g)  all of the funding provided or to be provided to the entrepreneurial entity under the agreement or agreements is unencumbered and lawfully acquired.

9  Subregulation 5.19E(4)

Repeal the subregulation.

10  Item 1104AA of Schedule 1

Repeal the item.

11  Subitem 1104BA(4) of Schedule 1 (before table item 1)

Insert:

12  Subitem 1104BA(4) of Schedule 1 (table item 1)

Omit "the Business Innovation stream or".

13  Subitem 1104BA(4) of Schedule 1 (table item 2)

Repeal the item, substitute:

14  Subitem 1104BA(4) of Schedule 1 (table item 3)

Repeal the item, substitute:

15  Subitem 1104BA(5) of Schedule 1 (table items 1 and 2)

Repeal the items, substitute:

16  Subitem 1104BA(5A) of Schedule 1 (before table item 1)

Insert:

17  Subitem 1104BA(5A) of Schedule 1 (table item 1)

Omit "the Significant Investor stream or".

18  Subitem 1104BA(5A) of Schedule 1 (table item 2)

Repeal the item, substitute:

19  Paragraph 1104BA(5C)(a) of Schedule 1

Repeal the paragraph, substitute:

                     (a)  the applicant:

                              (i)  must hold a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Entrepreneur stream; and

                             (ii)  unless the applicant was invited to apply for that visa before 1 July 2021--must have held that visa for at least 3 years;

20  Subparagraph 1202B(2)(a)(ib) of Schedule 1

Repeal the subparagraph.

21  Subitem 1202B(6C) of Schedule 1

Repeal the subitem.

22  Part 132 of Schedule 2

Repeal the Part.

23  Clause 188.113 of Schedule 2 (paragraph (e) of note 2)

Repeal the paragraph.

24  Division 188.2 of Schedule 2 (note)

Omit "If an applicant applies for a Subclass 188 visa in the Premium Investor stream, the criteria in Subdivisions 188.21 and 188.27 are the primary criteria.".

25  Subclause 188.225(1) of Schedule 2

Omit "of at least AUD500 000 in each of those years.", substitute:

, 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.

26  Clause 188.226 of Schedule 2

Omit "net value of at least AUD800 000.", substitute:

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.

27  Clause 188.244 of Schedule 2

Before "For", insert "(1)".

28  Paragraph 188.244(b) of Schedule 2

Repeal the paragraph, substitute:

                     (b)  subclause (2) applies.

29  At the end of clause 188.244 of Schedule 2

Add:

             (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.

30  Clause 188.245 of Schedule 2

Omit "net value of at least AUD2 250 000.", substitute:

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.

31  Before subclause 188.246(1) of Schedule 2

Insert:

          (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.

32  After clause 188.246 of Schedule 2

Insert:

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.

33  Subclause 188.248(1) of Schedule 2

Omit "after the designated investment made by the applicant, or by the applicant and his or her spouse or de facto partner, matures.", substitute:

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.

34  Subclause 188.248(2) of Schedule 2

Omit "he or she made the designated investment application", substitute "the nominating State or Territory government agency is located".

35  Subclause 188.252(2) of Schedule 2

Omit "The", substitute "If the time of invitation to apply for the visa was before 1 July 2021, the".

36  After subclause 188.252(2) of Schedule 2 (before the note)

Insert:

                     (3)  If the time of invitation to apply for the visa was on or after 1 July 2021, the applicant has a genuine intention to hold the complying significant investment for the whole of the visa period.

37  Paragraph 188.261(1B)(b) of Schedule 2

Repeal the paragraph, substitute:

                     (b)  the applicant continues to hold 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.

38  Subdivision 188.27 of Schedule 2

Repeal the Subdivision.

39  After paragraph 188.282(a) of Schedule 2

Insert:

                   (ab)  has a genuine intention to undertake, and continue to undertake, the complying entrepreneur activity in Australia; and

40  Paragraph 188.282(b) of Schedule 2

Before "has", insert "if the time of invitation to apply for the visa was before 1 July 2021,".

41  Paragraph 188.282(b) of Schedule 2

Omit "in Australia".

42  Clause 188.311A of Schedule 2

Before "If", insert "(1)".

43  Paragraph 188.311A(b) of Schedule 2

After "visa in", insert "the Investor stream,".

44  At the end of clause 188.311A of Schedule 2

Add:

             (2)  Subclause (1) does not apply if the primary applicant:

                     (a)  holds a Subclass 188 visa in the Investor stream; and

                     (b)  was invited to apply for that visa before 1 July 2021.

45  Clause 188.511 of Schedule 2

Omit ", the Premium Investor stream".

46  Clause 188.511 of Schedule 2

Omit "in Australia for 4 years and 3 months from the date of grant.", substitute:

                   in Australia:

                     (a)  if the time of invitation to apply for the visa was before 1 July 2021--for 4 years and 3 months from the date of grant; or

                     (b)  if the time of invitation to apply for the visa was on or after 1 July 2021--for 5 years from the date of grant.

47  Paragraph 188.512(a) of Schedule 2

Repeal the paragraph, substitute:

                     (a)  if:

                              (i)  the last Subclass 188 visa held by the applicant was a Subclass 188 visa in the Business Innovation stream; and

                             (ii)  the time of the invitation to apply for that visa was before 1 July 2021;

                            for 6 years after the date of the grant of that visa; or

                   (ab)  if:

                              (i)  the last Subclass 188 visa held by the applicant was a Subclass 188 visa in the Business Innovation stream; and

                             (ii)  the time of the invitation to apply for that visa was on or after 1 July 2021;

                            for 7 years after the date of the grant of that visa; or

48  Paragraphs 188.512A(a) and (b) of Schedule 2

Repeal the paragraphs, substitute:

                     (a)  if:

                              (i)  the applicant held a Subclass 188 visa in the Significant Investor stream at the time of application; and

                             (ii)  the time of the invitation to apply for that visa was before 1 July 2021;

                            for 6 years after the date of the grant of that visa; or

                     (b)  if:

                              (i)  the applicant held a Subclass 188 visa in the Significant Investor stream at the time of application; and

                             (ii)  the time of the invitation to apply for that visa was on or after 1 July 2021;

                            for 7 years after the date of the grant of that visa; or

                     (c)  if:

                              (i)  the applicant held a Subclass 188 visa in the Significant Investor Extension stream at the time of application; and

                             (ii)  the time of the invitation to apply for the Subclass 188 visa in the Significant Investor stream held by the applicant was before 1 July 2021;

                            for 8 years after the date of the grant of the visa mentioned in subparagraph (ii); or

                     (d)  if:

                              (i)  the applicant held a Subclass 188 visa in the Significant Investor Extension stream at the time of application; and

                             (ii)  the time of the invitation to apply for the Subclass 188 visa in the Significant Investor stream held by the applicant was on or after 1 July 2021;

                            for 9 years after the date of the grant of the visa mentioned in subparagraph (ii).

49  After clause 188.611 of Schedule 2

Insert:

188.611A  

                   If a Subclass 188 visa in the Investor stream is granted to an applicant who was invited to apply for the visa on or after 1 July 2021, condition 8557 must be imposed.

50  Clause 188.612 of Schedule 2

Omit ", the Significant Investor Extension stream or the Premium Investor stream", substitute "or the Significant Investor Extension stream".

51  Subclause 888.221(1) of Schedule 2

Repeal the subclause, substitute:

             (1)  The applicant has been in Australia, as the holder of one or more visas mentioned in the table in subitem 1104BA(4) of Schedule 1 (the relevant table ):

                     (a)  if the applicant is covered by any of subclauses (1A) to (1F)--for a total period of at least one year in the 2 years immediately before the application was made; or

                     (b)  otherwise--for a total period of at least one year 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 1AA 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 Business Innovation stream held by the applicant.

          (1C)  The applicant is covered by this subclause if, at the time of application, the applicant met the requirements in item 1A of the relevant table.

          (1D)  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 Business Innovation stream held by the primary visa holder.

          (1E)  The applicant is covered by this subclause if, at the time of application, the applicant met the requirements in item 2A of the relevant table.

           (1F)  The applicant is covered by this subclause if:

                     (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.

52  Paragraph 888.221(2)(b) of Schedule 2

Omit "item 1 or 2", substitute "item 1AA, 1 or 2".

53  Subclause 888.231(1) of Schedule 2

Repeal the subclause, substitute:

             (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.

54  Clause 888.232 of Schedule 2

Omit "Either", substitute "If the applicant is covered by any of subclauses 888.231(1A) to (1C), either".

55  At the end of Division 888.23 of Schedule 2

Add:

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.

56  Subclause 888.241(1) of Schedule 2

Omit "At", substitute "If the applicant is covered by any of subclauses (1A) to (1D), at".

57  After subclause 888.241(1) of Schedule 2

Insert:

       (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.

58  Subclause 888.241(2) of Schedule 2

Omit ", (2B) or (2C)", substitute "or (2B)".

59  Paragraph 888.241(2B)(b) of Schedule 2

Repeal the paragraph, substitute:

                     (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.

60  Subclause 888.241(2C) of Schedule 2

Repeal the subclause.

61  Paragraph 888.241(4)(b) of Schedule 2

Omit "or (2C)".

62  Paragraphs 888.261(1)(a) and (b) of Schedule 2

Repeal the paragraphs, substitute:

                     (a)  holds a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Entrepreneur stream and has done so for a continuous period of at least:

                              (i)  if the applicant was invited to apply for that visa before 1 July 2021--4 years; or

                             (ii)  otherwise--3 years; and

                     (b)  either:

                              (i)  if the applicant was invited to apply for that visa before 1 July 2021--has resided in Australia for at least 2 years of the 4 years mentioned in subparagraph (a)(i); or

                             (ii)  otherwise--has resided in Australia for at least 2 years while holding a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Entrepreneur stream.

63  At the end of subclause 888.261(3) of Schedule 2

Add:

                   ; (d)  any endorsement of the applicant's record by a body recognised by the nominating State or Territory government agency as a start-up incubator, start-up accelerator or other body that assists start-up businesses.

64  Parts 7A.6 to 7A.8 of Schedule 7A

Repeal the Parts, substitute:

Part 7A.6 -- Investor experience qualifications--Investor stream only

Note:       Points are accumulated under item 7A61 or 7A62, not both.

Part 7A.7 -- Financial asset qualifications

Note:       Points are accumulated under one item in Part 7A.7, not more than one.

Part 7A.8 -- Business turnover qualifications

Note:       Points are accumulated under one item in Part 7A.8, not more than one.