EXPLANATORY STATEMENT
Migration Regulations 1994
AREAS FOR STATE AND TERRITORY SPONSORED BUSINESS OWNER VISA (REGULATION 892.213(3)(b))
- This Instrument is made under paragraph 892.213(3)(b) of Schedule 2 to the Migration Regulations 1994.
- Paragraph 892.213(3)(b) of Schedule 2 to the Regulations provides that an applicant must reside in, and operate the applicant’s main business or businesses in Australia in, an area specified by the Minister in an instrument in writing.
- Prior to 1 July 2006 an applicant for a subclass 892 visa needed, in the 12 months immediately before the application was made, a main business(es) in Australia had an annual turnover of at least AUD200,000. Clause 892.213 of Schedule 2 to the Regulations was amended on 1 July 2006 to provide that the turnover criteria may be waived if:
a) the applicant meets at least 2 of the requirements set out in paragraphs 892.212(a), (b) and (c); and
b) the applicant resides in, and operates the applicant’s main business or businesses in Australia in, an area specified in an instrument in writing made by the Minister for paragraph 892.213(3)(b); and
c) the appropriate regional authority has determined that there are exceptional circumstances for subclause 892.213(3).
4. To be eligible for a waiver of the turnover criteria, an applicant must meet at least 2 of the following clause 892.212 requirements:
a) Throughout the 12 months immediately before the application is made, the main business in Australia or main businesses in Australia, of the applicant, the applicant’s spouse, or the applicant and his or her spouse together, employed at least 1 full-time employee (or a number of part-time employers working an equivalent number of hours) who:
(i) Is not the applicant or a member of the family unit of the applicant; and
(ii) Is an Australian citizen, and Australian permanent resident or a New Zealand passport holder;
b) The net value of the business and personal assets in Australia of the applicant, the applicant’s spouse, or the applicant and his or her spouse together, is, and has been throughout the 12 months immediately before the application is made, at least AUD250 000;
c) The total value of the net assets owned by the applicant, the applicant’s spouse, or the applicant and his or her spouse together, in the main business or main businesses in Australia is, and has been throughout the 12 months immediately before the application is made, at least ASU75 000.
5. The Instrument specifies areas in which an applicant must reside and operate a business or businesses, in order to qualify for a waiver of the turnover requirement for the grant of a subclass 892 visa. These areas are all regional or low population growth metropolitan areas.
6. Consultation was undertaken before the Instrument was made as follows:
- the Regulation change under which the Instrument is made reflects the agreement reached at the May 2005 Ministerial Council of Immigration and Multicultural Affairs (MCIMA) meeting to assist States/Territories to attract and retain more business people, including in regional/low population growth areas. The specific details regarding what would constitute a regional or low population growth metropolitan area were developed in consultation with States/Territories and have been agreed by all parties.
7. The Instrument, IMMI 06/026, commences on the day of registration on the Federal Register of Legislative Instruments.
Overview
The Migration Regulations 1994, as amended by the instrument IMMI 06/026, address the issue of attracting and retaining business owners in regional or low population growth metropolitan areas in Australia. Enacted by the Australian Government, this regulation allows for a waiver of the annual turnover criteria for applicants seeking a subclass 892 visa if they meet specific conditions and reside in designated areas. The policy objective is to assist states and territories in attracting and retaining business people in regional or low population growth areas, as agreed upon at the May 2005 Ministerial Council of Immigration and Multicultural Affairs meeting. The instrument specifies the areas in which applicants must reside and operate their businesses to qualify for the waiver, ensuring alignment with the broader strategy of regional development and economic growth.
Scope and Application
The Migration Regulations 1994, as amended and specified in Instrument IMMI 06/026, pertains to applicants for the subclass 892 visa, which is a State and Territory Sponsored Business Owner Visa. The regulation applies to individuals who wish to reside in and operate their main business in Australia, particularly in areas designated by the Minister for the purpose of qualifying for a waiver of the turnover criteria. To be eligible for a waiver, applicants must meet at least two of the specified requirements, such as employing a non-family member Australian citizen, permanent resident, or New Zealand passport holder, possessing a minimum net value of assets, or having a certain value of net assets in their business. The regulation specifies that the applicant must reside and operate their business in a regional or low population growth metropolitan area as determined by the Minister. The geographic scope of this regulation is nationwide, with the specific areas of applicability being detailed in the subordinate instrument. The regulation was developed through consultation with relevant state and territory authorities and was made in accordance with the agreement reached at the May 2005 Ministerial Council on Immigration and Multicultural Affairs meeting. The regulation commenced on the day of its registration on the Federal Register of Legislative Instruments.
Key Provisions
The Migration Regulations 1994, as amended, specify that to be eligible for a waiver of the turnover criteria for a subclass 892 visa, an applicant must meet certain conditions (regulation 892.213(3)(b)). These include operating their main business in Australia within areas specified by the Minister and meeting at least two out of three possible requirements (regulation 892.212). The requirements are: employing at least one full-time employee who is an Australian citizen, Australian permanent resident, or New Zealand passport holder; having a net value of business and personal assets in Australia of at least AUD250,000; and having a total value of net assets owned in the main business in Australia of at least AUD75,000.
The Act imposes several obligations on applicants seeking a waiver of the turnover criteria. They must demonstrate that they meet at least two of the specified requirements and must operate their main business in one of the designated regional or low population growth metropolitan areas. These areas were specified by the Minister and agreed upon by all relevant parties, ensuring that the criteria are met in a manner that supports regional development and population growth.
Failure to comply with the requirements of the Act can lead to civil or criminal consequences. While the specific penalties for breach are not detailed in the text, it is reasonable to infer that non-compliance with migration regulations can result in penalties as outlined in the Migration Act 1958 (Cth), which includes fines and potential imprisonment. The exact penalties depend on the nature and severity of the breach, but they are significant enough to enforce adherence to the specified conditions.
The Act also requires consultation with states and territories to ensure that the criteria and designated areas are consistent with broader regional development goals. This consultation process ensures that the regulations are practical and beneficial for regional areas, as agreed upon at the May 2005 Ministerial Council of Immigration and Multicultural Affairs (MCIMA) meeting. This collaborative approach helps maintain the integrity and effectiveness of the visa program.