EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (Industry Associations and Membership Levels) Instrument (LIN 20/061) 2020
(Paragraphs 132.232(3)(a) and (b) of Schedule 2)
- The instrument, LIN 20/061, is made under paragraphs 132.232(3)(a) and (b) to Schedule 2 of the Migration Regulations 1994 (the Regulations).
- This instrument repeals IMMI 12/052 (F2012L01309) made under paragraphs 132.232(3)(a) and (b) of Schedule 2 to the Regulations in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- Under subregulation 132.232(1) of Schedule 2 to the Regulations, a visa applicant seeking to satisfy the primary criteria for the grant of a Subclass 132 (Business Talent) visa in the Venture Capital Entrepreneur stream, must have entered into a legally enforceable agreement with an Australian company to receive venture capital funding.
- Paragraphs 132.232(3)(a) and (b) of Schedule 2 to the Regulations provides that an Australian company is a member of an industry association or similar body specified by the Minister, and in a category of membership specified by the Minister.
- The instrument operates to specify the Australian Investment Council Limited as an industry association and the Corporate Venture Capital Membership and Venture Capital Fund Manager Membership as categories of membership of that industry association.
- The purpose of the instrument is to change the name of the industry association from The Australian Private Equity and Venture Capital Association Limited to the Australian Investment Council Limited. The instrument also changes the specified category of membership of the industry association as Corporate Venture Capital Membership and Venture Capital Fund Manager Membership.
- In 2018, the Australian Investment Council Limited made changes to its membership categories. The Venture Capital Membership was replaced with the Venture Capital Fund Manager Membership and the Corporate Venture Capital Membership. Both memberships fulfil the same role as the previous Venture Capital Membership, and facilitate venture capital funding to Australian businesses. This continues to support the intent of the Subclass 132 (Business Talent) visa in the Venture Capital Entrepreneur stream.
- Consultation was undertaken with Australian Investment Council Limited, who advised of their change of name and the newly created Corporate Venture Capital Membership and Venture Capital Fund Manager Membership. As these changes are of a minor or machinery nature and do not substantially alter existing arrangements, no further consultation was undertaken in accordance with paragraph 15J(e) of the Legislation Act 2003.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 25274).
- Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- The instrument commences on the day after registration on the Federal Register of Legislation.
Overview
The Migration (Industry Associations and Membership Levels) Instrument (LIN 20/061) 2020, made under the Migration Regulations 1994, serves to amend the requirements for visa applicants in the Venture Capital Entrepreneur stream of the Subclass 132 (Business Talent) visa. This instrument repeals the previous instrument, IMMI 12/052, to update the industry associations and membership categories that are acceptable for meeting the primary criteria of the visa. Specifically, the instrument updates the name of the industry association from The Australian Private Equity and Venture Capital Association Limited to the Australian Investment Council Limited and revises the membership categories to Corporate Venture Capital Membership and Venture Capital Fund Manager Membership. These changes reflect the Australian Investment Council Limited's restructuring and maintain the integrity of the visa stream by ensuring continued facilitation of venture capital funding to Australian businesses. The instrument was enacted to address the need for updated industry association and membership category specifications in line with the Australian Investment Council Limited's organisational changes, as confirmed by consultation with the association.
Scope and Application
The Migration (Industry Associations and Membership Levels) Instrument 2020, identified as LIN 20/061, is a legislative instrument made under the Migration Regulations 1994. It applies to visa applicants seeking to meet the primary criteria for the grant of a Subclass 132 (Business Talent) visa within the Venture Capital Entrepreneur stream. Specifically, it mandates that these applicants must have entered into a legally enforceable agreement with an Australian company that is a member of a specified industry association in a defined category of membership. The instrument specifies the Australian Investment Council Limited as the relevant industry association and identifies the Corporate Venture Capital Membership and Venture Capital Fund Manager Membership as the requisite categories of membership. This legislative change effectively updates the name of the association from The Australian Private Equity and Venture Capital Association Limited to the Australian Investment Council Limited and replaces the Venture Capital Membership with the Venture Capital Fund Manager Membership and Corporate Venture Capital Membership, thereby maintaining alignment with the purpose of supporting venture capital funding to Australian businesses. The instrument operates on a Commonwealth level and is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
Key Provisions
The main operative sections of this instrument, LIN 20/061, are found under paragraphs 132.232(3)(a) and (b) of Schedule 2 to the Migration Regulations 1994. This instrument repeals the previous instrument, IMMI 12/052, and replaces it with updated specifications for industry associations and membership categories relevant to Subclass 132 (Business Talent) visas in the Venture Capital Entrepreneur stream. Subregulation 132.232(1) continues to require that applicants for this visa must have a legally enforceable agreement with an Australian company to receive venture capital funding. However, subregulations 132.232(3)(a) and (b) now specify that the Australian company must be a member of the Australian Investment Council Limited, in either the Corporate Venture Capital Membership or the Venture Capital Fund Manager Membership. This change reflects the Australian Investment Council Limited's rebranding from The Australian Private Equity and Venture Capital Association Limited, as well as the restructuring of its membership categories.
This Act imposes specific obligations on visa applicants and the Australian Investment Council Limited. Visa applicants must ensure that their legally enforceable agreement with an Australian company aligns with the new specifications regarding industry association membership. Specifically, they must verify that the company is a member of the Australian Investment Council Limited in one of the specified categories. The Australian Investment Council Limited must maintain its membership categories and ensure compliance with the updated requirements set out by the Act. It is also responsible for communicating these changes to its members and prospective applicants to ensure that the intent of the visa program is met.
Failure to comply with the provisions of this Act can result in various civil and criminal consequences. While the Act itself does not specify maximum penalties, breaches of the Migration Regulations 1994, under which this instrument operates, can lead to penalties for both individuals and organisations. For instance, individuals found guilty of providing false or misleading information in their visa application could face fines, imprisonment, or both. Organisations, such as the Australian Investment Council Limited, might face financial penalties or other administrative actions if they fail to comply with the Act's requirements or if their members do not meet the specified criteria. Additionally, the misrepresentation or facilitation of false information could lead to the revocation of visas already granted and potential bans on future applications.