Migration (Purposes of Managed Fund Investments) Instrument (LIN 23/056) 2023

Administered by Department of Home Affairs

Legislation au F2023L01267 In force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs

 

Migration Regulations 1994

 

Migration (Purposes of Managed Fund Investments) Instrument (LIN 23/056) 2023

 

1        The instrument, Departmental reference LIN 23/056, is made by the Minister for Immigration, Citizenship and Multicultural Affairs under paragraph 5.19B(2)(c) of the Migration Regulations 1994 (the Regulations). 

2        The instrument repeals Migration Regulations 1994 – Specification of Eligible Managed Fund Investments - IMMI 13/092 (F2013L01571, IMMI 13/092). Subsection 33(3) of the Acts Interpretation Act 1901 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 IMMI 23/056 commences on the day after it is registered on the Federal Register of Legislation. It is a legislative instrument for the purpose of the Legislation Act 2003 (the Legislation Act).

Purpose

4        The primary criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa (Subclass 188 visa) in the Significant Investor Extension stream and a Subclass 888 (Business Innovation and Investment (Permanent)) visa (Subclass 888 visa) in the Significant Investor stream are set out in Divisions 188.2 and 888.2 of Schedule 2 to the Regulations, respectively.

5        Subclauses 188.261(1A) and 888.241(2A) of Schedule 2 to the Regulations provide that if an applicant’s most recently held Subclass 188 visa in the Significant Investor stream was applied for before 1 July 2015, then the applicant’s subsequent Significant Investor Extension stream (for the provisional visa) and Significant Investor stream (for the permanent visa) applications will be assessed by reference to whether the applicant held a complying investment (within the meaning of regulation 5.19B of the Regulations as in force at the time of the initial Subclass 188 visa application) throughout the period in which the Subclass 188 visa was held.

6        Regulation 5.19B of the Regulations sets out the requirements that an investment by a person (the investor) must meet to be a ‘complying investment’. Paragraph 5.19B(2)(c) of the Regulations requires that the investment must be one that is in a managed fund (directly or through an investor directed portfolio service) for a purpose specified by the Minister in an instrument in writing.

7        The purpose of the instrument is to specify the purpose of an investment in a managed fund for paragraph 5.19B(2)(c) of the Regulations.

8        The previous instrument listing managed fund investments under paragraph 5.19B(2)(c) of the Regulations was IMMI 13/092, which commenced on 23 November 2013.

9        The instrument operates to repeal IMMI 13/092 and enable visa holders who held a valid Subclass 188 visa in the Significant Investor stream that was granted on the basis of an application made between 23 November 2013 and 30 June 2015 to meet the criteria for the Significant Investor Extension stream of the Subclass 188 visa or the Significant Investor stream of the Subclass 888 visa. The instrument does not make changes to the purposes of investments in managed funds specified in IMMI 13/092.

Consultation

10    The Office of Impact Analysis (OIA) was consulted and considered that the instrument dealt with matters of a minor nature and no regulatory impact statement was required. The OIA reference number is OIA23-05340.

11    No further consultation was undertaken as the instrument does not substantially alter existing arrangements and the current requirements are still necessary and appropriate.

Details of the instrument

12    Section 1 sets out the name of the instrument.

13    Section 2 provides for the commencement of the instrument on the day after it is registered on the Federal Register of Legislation.

14    Section 3 provides that Migration Regulations 1994 – Specification of Eligible Managed Fund Investments - IMMI 13/092 (F2013L01571) is repealed.

15    Section 4 specifies the purposes of an investment in a managed fund under paragraph 5.19B(2)(c) of the Regulations.

16     Section 5 provides that the instrument applies in relation to an application made by a person on or after the commencement date whose most recently held Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream was granted on the basis of an application made between 23 November 2013 and 30 June 2015.

Parliamentary scrutiny etc. 

17    The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because a legislative instrument made under Part 5 of the Regulations is prescribed under section 10, item 20(b), of the Legislation (Exemptions and Other Matters) Regulation 2015 as an instrument not subject to disallowance.

18    As the instrument is exempt from disallowance, a Statement of Compatibility with Human Rights is not required.

19    The instrument is made by the Minister for Immigration, Citizenship and Multicultural Affairs, in accordance with paragraph 5.19B(2)(c) of the Regulations.

Overview

The Migration (Purposes of Managed Fund Investments) Instrument (LIN 23/056) 2023, made under the authority of the Minister for Immigration, Citizenship and Multicultural Affairs, serves to specify the purposes of investments in managed funds for the purposes of the Migration Regulations 1994. This legislative instrument repeals the previous specification of eligible managed fund investments, IMMI 13/092, which had been in effect since 23 November 2013. The primary objective of this instrument is to ensure that visa holders who held a valid Subclass 188 visa in the Significant Investor stream, applied for between 23 November 2013 and 30 June 2015, can continue to meet the criteria for the Significant Investor Extension stream of the Subclass 188 visa or the Significant Investor stream of the Subclass 888 visa. This revision maintains the existing requirements for managed fund investments, ensuring clarity and continuity in the visa application process for affected individuals.

Scope and Application

The Migration (Purposes of Managed Fund Investments) Instrument (LIN 23/056) 2023, made under the Migration Regulations 1994, pertains to applicants for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream and a Subclass 888 (Business Innovation and Investment (Permanent)) visa in the Significant Investor stream. Specifically, the instrument applies to individuals whose most recently held Subclass 188 visa in the Significant Investor stream was applied for before 1 July 2015. This legislative instrument repeals the previous instrument IMMI 13/092 and specifies the purposes for which investments in managed funds can be made to meet the criteria for the Significant Investor Extension stream of the Subclass 188 visa or the Significant Investor stream of the Subclass 888 visa. The instrument is not subject to disallowance and does not require a Statement of Compatibility with Human Rights, as it is exempt under the Legislation (Exemptions and Other Matters) Regulation 2015. The instrument applies nationally in Australia, aligning with the jurisdictional reach of the Migration Regulations 1994.

Key Provisions

The key provisions of the instrument, Departmental reference LIN 23/056, are set out in sections 1 to 5 of the explanatory statement. Section 1 identifies the instrument by name, while section 2 specifies its commencement date as the day after registration on the Federal Register of Legislation. Section 3 repeals the previous instrument, IMMI 13/092, which was made under the Migration Regulations 1994. Section 4 specifies the purposes of an investment in a managed fund under paragraph 5.19B(2)(c) of the Regulations, which remains unchanged from the previous instrument. Section 5 outlines the application of the instrument to those whose most recently held Subclass 188 visa in the Significant Investor stream was applied for between 23 November 2013 and 30 June 2015. The instrument imposes several obligations and requirements on the parties it governs. First, it specifies the purposes for which an investment in a managed fund must be held to be considered a complying investment under the Migration Regulations 1994. Second, it applies to applicants who hold or have held a Subclass 188 visa in the Significant Investor stream and who applied for the visa between 23 November 2013 and 30 June 2015. Third, it repeals the previous instrument, IMMI 13/092, but does not alter the specified purposes of investments in managed funds. The instrument does not specify any offences or penalties for breach. However, it is important to note that failure to comply with the requirements of the Migration Regulations 1994, including the criteria for a complying investment, could result in the refusal or cancellation of a visa application, or the revocation of an existing visa. The Migration Act 1958 provides for various penalties, including fines and imprisonment, for breaches of the Act and Regulations. In summary, the instrument sets out the purposes for which an investment in a managed fund must be held to be considered a complying investment under the Migration Regulations 1994. It applies to applicants who hold or have held a Subclass 188 visa in the Significant Investor stream and who applied for the visa between 23 November 2013 and 30 June 2015. While the instrument itself does not specify any offences or penalties, failure to comply with the requirements of the Migration Regulations 1994 could result in the refusal or cancellation of a visa application, or the revocation of an existing visa. The Migration Act 1958 provides for various penalties, including fines and imprisonment, for breaches of the Act and Regulations.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.