In our increasingly globalised world, people are better able to live, work or start a business in another country. For its part, the Australian government is actively welcoming and encouraging experienced business people to settle in Australia and use their skills to develop the Australian economy.  This article details the most important issues that a foreign citizen who would like to start a business in Australia needs to consider such as appropriate visas and the legal and regulatory realities of starting a business.

Visas

The Australian government is committed to diversifying business expertise and encouraging entrepreneurial talent. The Business Innovation and Investment Programme aims to provide visas to eligible foreign citizens to achieve these aims. These visas are:

There are also specific visas for those foreign citizens wishing to set up a business in a regional, rural or low growth area of Australia. These visas operate in tandem with various state and territory based economic initiatives.

Business Talent (Permanent) Visa (Subclass 132) (‘132 visa’)

To apply for this visa, you must be a foreign citizen wanting to establish a new, or develop an existing business, in Australia.
There are two different application streams:

  • Significant Business History Stream: Intended for high-calibre business owners or part-owners wishing to do business in Australia; and
  • Venture Capital Entrepreneur Stream: for those who can demonstrate that they have sourced a threshold level of venture capital funding from a member of the Australian Capital Association Limited (AVCAL).

To apply for this visa, a person first must supply an Expression of Interest through SkillSelect. The Minister of Immigration and Border Protection may then invite them to apply.

To qualify, applicants must demonstrate that they meet certain financial thresholds. For example, applicants in the significant business history stream need to meet financial benchmarks about personal assets, business assets and turnover. Similarly, applicants in the venture capital entrepreneur stream require (among other things) at least $1 million AUD in venture capital funding for a promising high-value business idea.

If an individual obtains this visa, they can stay, work and study in Australia indefinitely. They will have access to Medicare and can apply for citizenship once they have remained in the country for the appropriate length of time. They can include their partner and any dependent family on their application and sponsor other eligible relatives to come to Australia.

Applicants and their family members must meet all relevant health and character checks

Business Innovation and Investment (Provisional) Visa (Subclass 188) (‘188 visa’ ) and Business Innovation and Investment (Permanent) Visa (Subclass 888)

As with the subclass 132 visa, applicants must submit an Expression of Interest through SkillSelect. The Minister may then invite them to apply.
A person can apply in one of four streams:

  1. Business Innovation Stream;
  2. Investor Stream;
  3. Significant Investor Stream;
  4. Premium Investor Stream.

Each investor stream requires applicants to meet different financial thresholds for investment. State and territory governments must nominate applicants in the Investor stream. Conversely, both a state or territory government and Austrade (on behalf of the Australian government) can nominate a Significant Investor. However, only Austrade, for the Australian government, can nominate an applicant for the Premium Investor stream.
An applicant for the Business Innovation Stream needs to demonstrate business skills and want to establish, develop and manage a new or existing business in Australia. State and territory governments must nominate applicants in this stream.

Applicants must also meet other financial criteria. These vary between the different streams. Applicants can bring their immediate family and must meet all health and character checks.

Once a holder of the 188 visa has fulfilled the requirements of their provisional visa, they are eligible to apply for the Business Innovation and Investment (Permanent) Visa (Subclass 888) (‘888 visa’).

The 888 visa requires an applicant to meet other financial thresholds. They must also meet health and character tests. The 888 visa gives the visa holder and their family Australian permanent residency and the opportunity to apply later for citizenship.

Starting a Business in Australia

If a foreign national successfully obtains an Australian visa, they also need to consider the legal and regulatory issues regarding starting and operating a business in Australia.
To start a business in Australia, a foreign citizen will need to think about:

  • An appropriate business structure;
  • Australian business premises;
  • Protecting all intellectual property associated with their enterprise; and
  • Obtaining any necessary licences.

Each of these considerations requires the completion of different legal tasks. For example, if a foreign citizen chooses the company structure, they can either establish a new company or acquire an existing one. The legal process for each differs. Similarly, securing premises requires a foreign citizen to enter into either a commercial contract for purchase or lease. They would also need local development approval.
To operate their business, a foreign national also needs to be aware of other legal obligations concerning:

  • Taxation;
  • Employment;
  • Occupational Health and Safety;
  • Ongoing regulation – for example, meeting any and all reporting and disclosure requirements of the Australian Securities and Investment Commission;
  • Meeting any other relevant regulations – for example, Food Safety Standards;
  • Privacy; and
  • Consumer Law.

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LegalVision has provided many businesses with tailored online legal advice regarding immigration and visas. Call LegalVision today on 1300 544 755 or contact us with the form on this page.

Carole Hemingway

Next Steps

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