EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration (Points for Business Innovation Stream and Investor Stream of Subclass 188 Visa) Instrument (LIN 22/083) 2022
1 The instrument, Departmental reference LIN 22/083, is made under subclauses 188.222(1) and 188.242(1) of the Migration Regulations 1994 (the Regulations).
2 The instrument repeals Points for Business Innovation Stream and Investor Stream of Business Innovation and Investment (Provisional) Visa (IMMI 12/041) in accordance with subsection 33(3) of the Acts Interpretation Act 1901. That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.
3 The instrument commences the day after it is registered on the Federal Register of Legislation, and is a legislative instrument within the meaning of section 8 of Legislation Act 2003 (the Legislation Act).
Purpose
4 The instrument specifies the minimum number of points that an applicant for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Business Innovation stream or the Investor stream must score on the business innovation and investment points test. Regulation 1.03 of the Regulations provides that the business innovation and investment points test means the test set out in Schedule 7A to the Regulations.
- For subclause 188.222(1) of Schedule 2 to the Regulations, an applicant for a Subclass 188 visa in the Business Innovation stream must not score less than the number of points specified in the instrument.
- For subclause 188.242(1) of Schedule 2 to the Regulations, an applicant for a Subclass 188 visa in the Investor stream must not score less than the number of points specified in the instrument.
5 The instrument also repeals IMMI 12/041.
Consultation
6 No consultation was done for this instrument. This is because the instrument does not substantially alter IMMI 12/041.
7 The Office of Best Practice Regulation (OBPR) was also consulted and considered that the instrument dealt with matters of a minor nature and no regulatory impact statement was required. The OBPR reference number is OBPR22-03327.
Details of the instrument
8 Paragraph (a) specifies the minimum points required for the business innovation and investment points test for a Subclass 188 visa application in the Business Innovation stream or the Investor stream, being 65 points.
9 Paragraph (b) repeals IMMI 12/041.
Parliamentary scrutiny etc.
10 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because the instrument is made under Schedule 2 to the Regulations, which is prescribed in paragraph (b) of item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
11 The instrument was made by the Minister in accordance with subclauses 188.222(1) and 188.242(1) of the Regulations.
Overview
The Migration Regulations 1994 (Regulations) were enacted to provide a framework for the administration of the Migration Act 1958, and this legislative instrument, made in 2022, amends the Regulations to address the specific points criteria for the Business Innovation Stream and Investor Stream of the Subclass 188 visa. The instrument, referred to as Migration (Points for Business Innovation Stream and Investor Stream of Subclass 188 Visa) Instrument 2022, was introduced to update the minimum points required for applicants in these streams, ensuring that the criteria align with current policy objectives. The instrument was developed under the authority of the Minister for Immigration, Citizenship and Multicultural Affairs and aims to maintain the integrity and relevance of the points system for business innovation and investment provisional visas. The instrument was not subject to parliamentary scrutiny as it is exempt from disallowance under section 42 of the Legislation Act 2003.
Scope and Application
The instrument F2022L01332, made under subclauses 188.222(1) and 188.242(1) of the Migration Regulations 1994, applies to applicants seeking a Subclass 188 (Business Innovation and Investment (Provisional)) visa in either the Business Innovation stream or the Investor stream. This legislative instrument specifies the minimum number of points that applicants must score on the business innovation and investment points test, which is set out in Schedule 7A of the Regulations. The instrument, which repeals the previous instrument IMMI 12/041, sets the minimum points at 65 for both streams. This legislative measure applies nationwide, within the jurisdiction of the Commonwealth of Australia, and is integral to the visa application process under the Migration Act 1958. The instrument does not exempt any specific persons, entities, or industries from its application, and its provisions are enforced through subordinate regulations under the Migration Regulations 1994.
Key Provisions
The main operative sections of the Migration (Points for Business Innovation Stream and Investor Stream of Subclass 188 Visa) Instrument (LIN 22/083) 2022 are those that specify the minimum points required for applicants under the Business Innovation and Investor streams of the Subclass 188 visa. According to paragraph (a) of the instrument, applicants must score at least 65 points on the business innovation and investment points test, which is set out in Schedule 7A of the Migration Regulations 1994 (paragraph 4). This instrument repeals the previous regulation, IMMI 12/041, ensuring that the latest requirements are in effect.
The obligations and requirements imposed by this Act on the parties it governs are primarily focused on the minimum points needed for visa applicants. For applicants in the Business Innovation stream or the Investor stream of the Subclass 188 visa, they must achieve a score of at least 65 points on the specified points test. This is a critical requirement that must be met to qualify for the visa under the new regulation. The instrument also ensures that applicants are fully aware of the points needed to be eligible for the visa, providing a clear and updated set of criteria.
The Act does not explicitly outline specific offences or penalties for breaches. However, failing to meet the minimum points requirement could result in the application for a Subclass 188 visa being rejected. This could have significant consequences for applicants, including the potential loss of opportunities for migration and investment in Australia. Additionally, if an applicant knowingly provides false information to meet the points criteria, they could face legal consequences under other sections of the Migration Act 1958, such as providing false documents or information. While the instrument itself does not specify maximum penalties, breaches of related provisions in the Migration Act could lead to fines and imprisonment, depending on the severity of the offence.