In the ever-shifting landscape of migration, policies and requirements are constantly evolving, shaped by the political, economic, and social factors. Australia is no exception to this reality with a national government that is seeking re-election in 2025, while facing significant challenges related to immigration - housing affordability, and employment.
The government commenced a review of the migration program with the recommendations forming a new migration strategy that was announced in December 2023. The government has confirmed the implementation of the proposed changes in the Australian national budget announced May 15th, including significant changes to the Business Innovation and Investment Program (BIIP) visa category and introduced a new National Innovation visa, set to be implemented in late 2024. These changes have implications for both current and prospective applicants, and reflect the government's attempts to address national issues while attracting highly-skilled individuals who can contribute to Australia.
Prospective business and investor applicants - The Closure of the BIIP
As stated in the budget papers, "The BIIP will be closed permanently from July 2024 and new applications for the Business Innovation and Investment (Provisional) (subclass 188) visa will no longer be able to be lodged." This decision is based on the Migration Review's conclusion that the BIIP is delivering poor economic outcomes for Australia. While this is a formal closure announcement, the program has been effectively closed since July 2023 when the government announced no new places would be made available for nominations (the entry pathway to lodging the first stage of the BIIP).
The migration review suggested that if aspects of the BIIP were to be retained, the Significant Investor Visa stream, requiring a A$5m investment in Australian funds, could be considered as it demonstrated the most favourable outcomes. In the migration strategy the government indicated they would consider including a pathway for "major investors".
Existing business and investor applicants - Limiting the outcomes of the BIIP
The migration strategy confirmed the government's lack of interest in the current BIIP and included references to the migration review which stated that much of the program, most prominently the Business Innovation stream (commonly referred to as 188A, for business owners) had net negative financial outcomes.
The budget announcement stated, "Subclass 188 BIIP visa applications that have been lodged will continue to be processed in line with Government priorities and the Migration Program planning levels. BIIP policy guidance will be tightened to ensure that all business migrants coming to Australia through this program have overall had a successful business career and will bring an economic benefit to Australia." While the government will process applications based upon the legislative criteria at the time the application was made, the policy that determines how the legislative is interpreted and applied will be "tightened" leading to a higher number of applications refused that do not meet the "tightened" policy requirements.
The government's intention to tighten BIIP policy guidance is likely to impact several key criteria, such as:
- Demonstrating an overall successful business career (Clause 188.224)
- Genuine and realistic commitment to establish or participate in a qualifying business in Australia (Clause 188.229)
- The need for the applicant to be resident in Australia to establish or conduct the proposed business activity (Clause 188.223)
The assessment of these criteria considers factors such as the applicant's plans to establish and maintain substantial ownership in an Australian business, their commitment to direct and continuous involvement in the management of the business, and the potential economic benefit to Australia.
Further reducing the number of applications reaching a successful outcome, the government has reduced the planning level for the BIIP which sets the number of visas to be granted each year, to 1,000 places for 2024-25 (down from 1,900 in 2023-24). At the end of 2023 there were an estimated 18,500 applications in the queue waiting for processing. This reduction delays the processing of the applications further, and up to 18 years for those applications most recently lodged.
The government has also announced an option for applicants to cease processing of a BIIP application with a refund of the visa application charges. This will be available from September 2024. However, it is worth noting that the refund process for ceased applications can be challenging. Applicants must provide a copy of the bank statement showing the payment of the original fee, and if this is not available the refund cannot be claimed, despite being able to provide identity and other documentation.
These changes demonstrated a concerted effort by the government to reduce the BIIP queue numbers, through increased refusals by tightening assessments, slowing the processing to a snail's pace, and encouraging the withdrawal of applications. It is likely that if these measures do not sufficiently reduce the BIIP queue to manageable levels, other measures such as involuntary cessation of processing might be considered.
It may be prudent for applicants to consider other alternative application pathways to Australia, particularly if applying under the Business Innovation stream, or where an application has been made in recent years.
The new National Innovation visa
The government has announced the introduction of the National Innovation visa, which will be available late 2024. This new visa aims to provide a permanent pathway for the "most exceptional(ly) talented migrants", and will include three streams covering high-performing entrepreneurs, major investors, and global researchers. The specific criteria and requirements for this visa are yet to be determined.
The new visa differs significantly from the BIIP which involved a two stage pathway - initially a temporary visa later leading to a permanent visa after meeting criteria including residence periods and operating business or investments in Australia.
As a direct permanent visa, it would likely require a more stringent assessment of the applicant and their ability to contribute to Australia than the previous BIIP.. We may also see the introduction of monitoring and cancellation provisions introduced - as these is feature of the previous direct permanent visa for high level business applicants (Subclass 132), requiring a a monitoring period of 3 years and where the visa is subject to cancellation if the main applicant is not holding substantial ownership in an eligible business in Australia. The applicant must demonstrate that they have been, and are also intending to continue, actively managing an eligible business, which must be of a specific type such as creating or maintaining employment in Australia or exporting from Australia.
Previous internal discussions between the government and stakeholders in the BIIP have suggested requirements are not expected to be entirely monetary based, and may include criteria such as proven investment track record, business links to Australia and referrals or recommendations from previous innovation activities.
Prospective Global Talent visa applicants
The National Innovation visa is also intended to replace the current Global Talent visa program. The government stated they " will manage the transition to the new National Innovation visa to ensure applicants, including existing applicants of the Global Talent visa, are supported in the application process. Existing Global Talent visa applicants will not be adversely affected by the transition. Visa applicants will be assessed against the eligibility criteria at the time of their application."
The statement that this visa is intended for the "most exceptional" applicants suggests the bar will be lifted higher for prospective global talent visa applicants who are considering the new pathway. The Global Talent Independent pathway, which is a prioritised version of the Global Talent visa, has two stages - an Expression of Interest (EOI), which if successful would be followed by a Global Talent visa application. While the government has stated applicants would be assessed against the criteria at the time of their application, it is likely that new applicants submitting an EOI now, would only receive an outcome indicating whether to apply for the visa application, at the end of 2024, and thus would need to meet the requirements for the new National Innovation visa.
Prospective applications who wish to be considered under the current Global Talent criteria could lodge a visa application even before the EOI outcome. A successful EOI outcome would then allow the Global Talent visa application to be considered under the priority (Global Talent Independent) consideration, and the application would be assessed against the current not future eligibility criteria. However this approach presents a risk because the EOI outcome is unknown when the visa application is lodged. The outcome serves as an indication as to whether the criteria for the visa and prioritisation is likely to be met.
When the new specific requirements are announced, we may see a mass application under the current system for this reason.
Conclusion
The changes to the BIIP visa category and the introduction of the National Innovation visa represent a significant shift in Australia's approach to attracting business migrants and exceptional talent. While the specific details of the new visa are yet to be revealed, it is clear that the government is focusing on lifting the bar on entry requirements.
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