Subclass 491: Small Business Owners Pathway

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Table of Contents

• DOHA Eligibility Criteria
• Queensland (BSMQ) Eligibility Criteria
• Tasmania Eligibility Criteria
• ACT Eligibility Criteria
• Application Process
• Length of Visa and Permanent Residency (PR) Pathway
• Key Takeaways

There are not many visa options for small business owners in Australia. The subclass 491 visa offers small business owners an alternative option when nominated by Tasmania, Queensland or the Australian Capital Territory (ACT). This skilled independent provisional visa requires the applicant to satisfy specific criteria relating to their skills and business experience. The visa came into effect on 16 November 2019. Subclass 491 visa holders will be eligible for permanent residency via subclass 191, which came into effect on 16 November 2022. This article explores the small business owners’ pathway in Queensland, Tasmania and the ACT (as of October 2023). To be eligible for this visa, you must meet the Australian Department of Home Affairs (DOHA) criteria and the relevant state or territory nomination criteria. 

DOHA Eligibility Criteria

To be eligible for this visa, you must meet the following DOHA criteria:

• receive an invitation to apply for this visa;
• be nominated by a State or Territory Government agency without any withdrawal of the nomination;
• a positive skills assessment in a nominated occupation;
• achieve a minimum points score of 65 points or higher (this includes any points you receive from being nominated by the relevant Government agency);
• apply before you are 45 years of age;
• satisfy ‘Competent English’ language skills, meaning the equivalent of at least IELTS 6.0 in each band level (the DOHA website specifies the other equivalent test scores); and
• satisfy health and character requirements.

A skills assessment is issued by the relevant skills assessing authorities. This independent and external (unaffiliated with DOHA) organisation analyses your skills against the minimum standards for the relevant occupation.

Queensland (BSMQ) Eligibility Criteria

Queensland opened its subclass 491 SBO program on 5 September 2023. Suppose you currently live and operate a small business in regional Queensland. In that case, to obtain a QLD state nomination for the subclass 491, you will need to satisfy the following criteria: 

• live and work within one of the following postcodes 4019–4022, 4025, 4037, 4074, 4076–4078, 4124–4125, 4133, 4183–4184, 4207–4275, 4280–4287, 4300–4301, 4303–4498, 4500–4512, 4514–4519, 4521, 4550–4575, 4580–4895;
• have a positive skills assessment in a nominated occupation;
• hold a valid visa that allows full-time work rights (you cannot be studying) and the ability to operate the business for a minimum of 30 hours per week;
• hold 100% ownership in the business (partnerships and joint ventures are not permitted); and
• have sufficient funds to settle in QLD.

In addition, you must satisfy one of the following pathways:

• Pathway 1 (Purchase of business):
  • purchase an existing business in regional QLD for at least $100,000, and be operational for two years;
  • operate the business for at least six months (post-purchase); and 
  • employ at least one Australian resident (minimum of 20 hours per week or job sharing arrangement permitted). Employees cannot be family members or subcontractors.
• Pathway 2 (Start-ups):
  • start and operate a new profitable business in QLD for at least two years with a turnover of $200,000 in the last 12 months.

QLD will not consider: 

• vendor financing;
• company share transfer (must have a contract of business sale);
• applicants who purchase a business from a family member;
• applicants who relocate or sell a business before receiving approval from QLD;
• applicants who purchase a business previously owned by a 491-SBO applicant;
• commission agents or leasing agents of franchises (such as petrol stations); and home-based businesses (including those with virtual offices).

Upon being granted their visa, applicants must operate their business for at least three years in a regional area. This may be subject to monitoring.

Tasmania Eligibility Criteria

Tasmania nominates eligible applicants through its Business Operator Pathway. To secure state nomination, at a minimum, Tasmania will consider whether you:

• establish and operate a business in Tasmania for at least 12 months. Businesses that are solely or jointly (with a spouse) owned are accepted; 
• earn an income from the business of at least 85% of the TSMIT (currently $70,000); and
• understand your responsibilities concerning the fair treatment of your employees and have undertaken units on the Fair Work Ombudsman online learning centre. 

However, there are some priority attributes that Tasmania will give preference to in the assessment process, such as:

• the ANZSCO occupation you have achieved a skills assessment in is a skill level 1-3;
• if you have invested more than $200,000 into your business, it must generate an annual turnover in excess of $500,000, and you must employ more than 10 Australians;
• you earn at least $94,000 from your business; 
• the business has been in operation for more than 18 months; and 
• you have resided in Tasmania for more than two years. 

Note that the above is not an exhaustive list.

An additional consideration is the nature of the business and its long-term benefit to Tasmania. However, this visa stream is not available for: 

• franchises; 
• passive business investments;
• service stations and convenience stores; 
• massage therapy where you do not have a related skills assessment or verifiable health fund number; 
• taxi/Uber and food delivery-related businesses; and 
• subcontracting businesses.

ACT Eligibility Criteria

To secure ACT state nomination for the 491 Small Business Owner category, you must:

• be the majority owner (51%) of an eligible registered business located in the ACT; 
• live in Canberra for the last three months; 
• work in Canberra as a small business owner in the last three months; and
• commit to living in Canberra. 

The following businesses are ineligible businesses for ACT state nomination:

• sub-tenancy;
• ride-share, taxi, delivery and courier services; and 
• an on-sold business previously used to qualify for ACT nomination.

To claim Matrix points in the Small Business Owner category, you must satisfy the following criteria:

• the business is operating in the ACT for at least 12 months with a minimum turnover of $200,000 OR the business is operating for at least 6 months with a minimum turnover of $100,000 (interstate and overseas businesses will not be considered); 
• the business is profitable;
• you earn at least $13,000 taxable income in the last three months; and
• you employ at least one Australian citizen, permanent resident or New Zealand citizen for at least 13 weeks (minimum 20 hours per week). 

Application Process

To apply, you will first need to: 

• submit an expression of interest (EOI) with SkillSelect; and 
• select either ACT, Queensland or Tasmania as the nominating state of choice. 

You must then apply for either ACT, Queensland or Tasmania State nomination. DOHA will assess your EOI to see if you meet all criteria. If you are successful, you will receive an invitation to apply for subclass 491. Importantly, you must lodge the 491 visa within 60 days of receiving an invitation from DOHA. 

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Length of Visa and Permanent Residency (PR) Pathway

This provisional visa allows you to work and live in regional Queensland, ACT or Tasmania for five years. It is also a pathway to permanent residency. After meeting certain criteria, you will become eligible for the subclass 191 Permanent Residence (Skilled Regional) visa.

These criteria require you to:

• have lived in the ACT, Queensland or Tasmania for at least three years; and
• earn a minimum taxable income of $53,900 for at least three fiscal years.

The subclass 191 visa commenced on 16 November 2022, whereas the subclass 491 visa only commenced on 16 November 2019.

Key Takeaways

There are limited options available for small business owners based in regional locations. The subclass 491 small business owners pathway may be appropriate for your business. Fortunately, it also has a permanent residency pathway through the subclass 191 visa. To apply for this visa, you must:

• ensure that you satisfy the DOHA and state-based requirements;
• submit an EOI with DOHA; and
• if you receive an invitation to apply, submit your application within 60 days.

For more information, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.