Overview

The Migration Regulations 1994 (the Regulations) were enacted to manage and govern the movement of people into, within, and out of Australia, addressing the need for a comprehensive framework to control migration. The specific regulation, IMMI 16/074, made under the authority of the Migration Act 1958, was introduced to provide clarity on the types of entities that can be involved in legally enforceable agreements for funding related to entrepreneurial activities under the Subclass 188 and Subclass 888 visas. This regulation aims to ensure that the entities specified are suitable for the purposes of these visas, thereby facilitating a structured approach to supporting business innovation and investment in Australia. The enacting body, the Department of Immigration and Border Protection, engaged in extensive consultation with various governmental and industry stakeholders to ensure the regulation is both practical and aligned with broader policy objectives.

Scope and Application

The Migration Regulations 1994 Specification of Entities 2016/074 applies to applicants seeking to satisfy the primary criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa or a Subclass 888 (Business Innovation and Investment (Permanent)) visa in the Entrepreneur stream. It specifies the entities with which applicants can enter into legally enforceable agreements for the purposes of a "complying entrepreneurial activity". These entities include all agencies of the Commonwealth, a State or a Territory; bodies that undertake publicly funded research or innovation initiatives and are established under a law of the Commonwealth, a State or a Territory; venture capital limited partnerships and early stage venture capital limited partnerships registered or conditionally registered under Part 2 of the Venture Capital Act 2002; and higher education providers listed under Part 2-1 of the Higher Education Support Act 2003 as Table A or Table B providers. The Department of Immigration and Border Protection has consulted with various government departments and industry groups in developing this Instrument, and the Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required. The Instrument is not subject to disallowance and therefore a Statement of Compatibility with Human Rights has not been provided. The Instrument commences immediately after the commencement of the Migration Amendment (Entrepreneur Visas and Other Measures) Regulation 2016.

Key Provisions

The primary sections of the Migration Regulations 1994 Specification of Entities 2016/074 (F2016L01415) clarify which entities applicants for a Subclass 188 or Subclass 888 visa can enter into legally enforceable agreements with, as specified under subregulation 5.19E(5) (paragraph 5.19E(6)(b)). This regulation is crucial for the Entrepreneur stream of these visas, where funding from a complying entrepreneurial activity is required. Specifically, subregulation 5.19E(3) mandates that funding must be provided under legally enforceable agreements with specified entities, as outlined in the new instrument. The specified entities include all agencies of the Commonwealth, a state or territory; bodies that undertake publicly funded research or innovation initiatives established under a law of the Commonwealth, a state or territory; venture capital limited partnerships and early stage venture capital limited partnerships registered or conditionally registered under Part 2 of the Venture Capital Act 2002; and higher education providers listed under Part 2-1 of the Higher Education Support Act 2003 as Table A or Table B providers. Applicants for the Subclass 188 or Subclass 888 visa must ensure their funding agreements comply with the stipulations of subregulation 5.19E(5). This involves entering into agreements with one or more of the entities specified in the instrument. The entities listed are intended to provide a reliable and structured framework for the funding necessary to support entrepreneurial activities under the visa scheme. The Department of Immigration and Border Protection consulted with various government departments and industry groups in developing these specifications, and public submissions were also considered to ensure a broad-based approach to the regulation. The obligations imposed on applicants by this regulation include ensuring that any funding agreements they enter into are legally enforceable and involve one or more of the specified entities. This not only provides a clear pathway for funding but also helps in verifying the legitimacy and structure of the entrepreneurial activity being pursued. The specified entities provide a reliable source of funding that meets the regulatory requirements, ensuring that the applicants can satisfy the primary criteria for their visa applications. There are no specific offences, penalties, or consequences outlined in the explanatory statement for breaches of these provisions. However, failure to comply with the funding requirements could result in the application for the visa being refused. The regulation is designed to provide clarity and ensure that applicants meet the necessary criteria for funding their entrepreneurial activities, which is critical for their visa applications. The instrument is not subject to disallowance, and thus no Statement of Compatibility with Human Rights has been provided, as per the Legislation Act 2003.