Migration (Securities in which an investment is a designated investment) Instrument (LIN 23/018) 2023

Administered by Department of Home Affairs

Legislation au F2023L00379 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 (Securities in which an investment is a designated investment) Instrument (LIN 23/018) 2023

1         The instrument, Departmental reference LIN 23/018, is made under subregulation 5.19A(1) of the Migration Regulations 1994 (the Migration Regulations). 

2         The instrument repeals Migration Regulations 1994 – Securities in which an investment is a designated investment for the purposes of Subclasses 162, 165, 188, 405, 888, 891 & 893 –IMMI 12/106 (F2012L02220)in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act).  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 registration, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act). 

Purpose

4         Subregulation 5.19A(1) of the Migration Regulations provides that, subject to subregulation 5.19(2), the Minister may, by legislative instrument, specify a security issued by an Australian Government State or Territory government authority as a security in which an investment is a designated investment for the purposes of a Part of Schedule 2 to the Migration Regulations.

5         Subregulation 5.19(2) of the Migration Regulations provides that the Minister may specify a security if and only if:

  • an investment in the security matures in not less than 4 years from its date of issue;
  • repayment of principal is guaranteed by the issuing authority;
  • an investment in the security cannot be transferred or redeemed before maturity except by operation of law or under other conditions acceptable to the Minister;
  • investment in the security is open to the general public at commercially competitive rates of return; and
  • the Minister is satisfied that the Commonwealth will not be exposed to any liability as a result of an investment in the security by a person.

6                The instrument specifies matters relating to an application for a Subclass 188 (Business Innovation and Investment (Provisional)) visa, Subclass 405 (Investor Retirement) visa, Subclass 888 (Business Innovation and Investment (Permanent)) visa, Subclass 891 (Investor) visa, and Subclass 893 (State or Territory Sponsored Investor) visa.

  • The Subclass 405 visa is closed to new applications, however there are still applications in progress.
  • From 1 July 2021, as a result of amendments made by the Home Affairs Legislation Amendment (2021 Measures No. 1) Regulations 2021, applicants for the Subclass 188 visa in the Investor stream are no longer required to make a designated investment. However, there are still applications in progress which were made before 1 July 2021; those applicants are required to make a designated investment.

7         While IMMI 12/106 also specified the Subclass 162 (Investor (Provisional)) visa and the Subclass 165 (State/Territory Sponsored Investor (Provisional)) visa, the instrument does not specify these subclasses as these subclasses are closed to new applicants and there are no applications in progress.

8         Securities issued by State or Territory government authorities are specified in this instrument as securities in which an investment is a designated investment for the purposes of applications for Subclass 188, 405, 888, 891 and 893 visas.

Consultation

9         No consultation was done for this instrument.  This is because the instrument substantially replicates previously existing arrangements.

10     The Office of Impact Analysis (OIA) (formerly the Office of Best Practice Regulation) was consulted and considered that the instrument dealt with matters of a machinery nature and no regulatory impact statement was required.  The OIA reference number is OIA23-04554.

Details of the instrument

11     Paragraph (a) of the instrument repeals Migration Regulations 1994 – Securities in which an investment is a designated investment for the purposes of Subclasses 162, 165, 188, 405, 888, 891 & 893 –IMMI 12/106 (F2012L02220).

12     Paragraph (b) of the instrument specifies each security issued by a State or Territory government authority referred to in the Schedule to the instrument as a security in which an investment is a designated investment for the purposes of Parts 188, 405, 888, 891 and 893 of Schedule 2 to the Regulations.

13     Schedule 1 to the instrument lists 8 types of securities and each of the relevant State or Territory government security issuing authorities.

Parliamentary scrutiny etc.

14     The instrument is exempt from disallowance under section 42 of the Legislation Act.  This is because an instrument made under Part 5 of the Migration Regulations is prescribed by subitem 20(b) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. 

15     As the instrument is exempt from disallowance, no Statement of Compatibility with Human Rights is required.

16     The instrument was made by the Minister for Immigration, Citizenship and Multicultural Affairs in accordance with subregulation 5.19A(1) of the Migration Regulations. In specifying the securities mentioned in Schedule 1 to the instrument, the Minister was satisfied of each of the matters set out by subregulation 5.19A(2).

Overview

The Migration (Securities in which an investment is a designated investment) Instrument (LIN 23/018) 2023, enacted under the Migration Regulations 1994, addresses the need to specify securities issued by Australian state or territory government authorities as eligible investments for certain subclasses of visas. The instrument was issued by the Minister for Immigration, Citizenship and Multicultural Affairs to ensure clarity and compliance with existing legislative requirements. This instrument repeals a previous instrument (IMMI 12/106) and specifies securities for applications of Subclass 188 (Business Innovation and Investment (Provisional)) visa, Subclass 405 (Investor Retirement) visa, Subclass 888 (Business Innovation and Investment (Permanent)) visa, Subclass 891 (Investor) visa, and Subclass 893 (State or Territory Sponsored Investor) visa. The policy objective is to facilitate investment in government securities for the purposes of obtaining these specified visas, ensuring that the investments meet certain criteria such as maturity periods, guarantee of principal repayment, and accessibility to the general public.

Scope and Application

The Migration (Securities in which an investment is a designated investment) Instrument (LIN 23/018) 2023, made under subregulation 5.19A(1) of the Migration Regulations 1994, repeals the previous instrument, IMMI 12/106, and specifies securities issued by Australian State or Territory government authorities as designated investments for certain visa subclasses. This instrument applies to applicants seeking a Subclass 188 (Business Innovation and Investment (Provisional)), Subclass 405 (Investor Retirement), Subclass 888 (Business Innovation and Investment (Permanent)), Subclass 891 (Investor), and Subclass 893 (State or Territory Sponsored Investor) visa. Notably, the Subclass 405 visa is currently closed to new applications, although existing applications are still in progress. Similarly, applicants for the Subclass 188 visa in the Investor stream are no longer required to make a designated investment as of 1 July 2021, except for those who lodged applications before this date. The instrument does not apply to the now-closed Subclass 162 (Investor (Provisional)) and Subclass 165 (State/Territory Sponsored Investor (Provisional)) visas as no new applications or ongoing applications exist for these subclasses. This legislative instrument has a national reach, impacting all applicants for the specified visas across Australia. The instrument specifies securities meeting certain criteria, such as maturity of at least four years, guaranteed principal repayment, and availability to the general public at competitive rates. The instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights, as it is made under the Migration Regulations, which are prescribed by the Legislation (Exemptions and Other Matters) Regulation 2015.

Key Provisions

The main operative sections of the instrument, LIN 23/018, concern the designation of securities issued by Australian State or Territory government authorities as eligible for designated investment under specific visa subclasses. This instrument, made under subregulation 5.19A(1) of the Migration Regulations 1994, repeals the previous instrument IMMI 12/106 and specifies securities for the purposes of Subclasses 188 (Business Innovation and Investment (Permanent)), 405 (Investor Retirement), 888 (Business Innovation and Investment (Permanent)), 891 (Investor) and 893 (State or Territory Sponsored Investor) visas (paragraphs 2 and 12). It comes into effect the day after registration and is subject to the Legislation Act 2003 (paragraph 3). The Act imposes specific obligations on applicants for the mentioned visa subclasses, mandating them to invest in the designated securities as per the instrument. These applicants must ensure that their investment in the specified securities complies with the criteria outlined in subregulation 5.19A(2) of the Migration Regulations, including that the investment matures in not less than 4 years, has guaranteed repayment of principal, cannot be transferred or redeemed before maturity except under specific conditions, is available to the general public at competitive rates, and does not expose the Commonwealth to any liability (paragraphs 4 and 5). The instrument does not explicitly mention any offences, penalties, or consequences for non-compliance within its text. However, given the regulatory nature of the Migration Regulations and the potential impact on visa eligibility, non-compliance with the requirements outlined in the instrument could potentially lead to visa application rejections or other administrative actions under the Migration Act 1958. For specific penalties related to breaches of visa conditions, one would need to refer to the Migration Act itself.

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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.