Self-sponsor yourself for a permanent visa
A Pathway for Purchasers of a Queensland-based Small Business
Business and Skilled Migration Queensland (BSMQ) (a division of Trade and Investment Queensland) has opened a new pathway to a Permanent Residency visa: the “491 SBO (Small Business Owner) Pathway” visa.
This visa is designed to reward visa holders that invest in local business communities in regional Queensland. It helps to provide employment continuity and job creation in rural communities. By encouraging small business owners to stay in regional Queensland, there will be less pressure on city infrastructure. The idea is to encourage migrants to integrate into regional communities while promoting opportunities for local residents and contribute to regional economic development.
This article explains the main features of the visa; the eligibility criteria; and the application process. Risks and cautions are mentioned at the end.
What are the main features of this visa?
The visa targets highly skilled business operators in regional Queensland. It begins with a points-tested provisional visa. Successful applicants are granted a five-year visa. The visa holder will need to live and work in a regional area for at least three years. The business owner “employs” themselves by operating their business.
The potential visa applicant must invest at least $100,000 and employ at least one Australian resident. Higher investment, and more than employing more than one Australian resident, is also possible. The business must be a pre-existing business – this is not a visa for start-ups.
An Expression of Interest (often shortened to “EOI”) must be submitted prior to being invited to apply for the visa. The business must have been purchased and have been trading for at least six months prior to lodging the EOI.
Instead of being employed by a regional employer, the visa applicant invests and operates the existing business.
Those that successfully gain nomination by the Queensland government will earn an extra 15 points for a Skilled Work Regional (Provisional) visa (subclass 491) towards the Department of Home Affairs (“Home Affairs”) points test.
Who might be eligible for this visa?
In addition to buying and operating the regional business, the potential applicant must meet the eligibility requirements of both Home Affairs and also BSMQ. The Department of Home Affairs requires a minimum score of 65 points (including the extra 15 points mentioned above). An occupation must be nominated, and a positive Skills Assessment from the appropriate authority for that occupation must be uploaded with the visa application. The occupation must be identified in a list of occupations that are specified in a legislative instrument. The occupation list changes over time, so contact Potts Lawyers Immigration team to confirm whether an occupation is on the current list.
Applicants that have reached their 45th birthday are considered too old for program. The applicant will need to demonstrate that they have at least “Competent English”. If their assessing authority for the nominated occupation requires a higher standard of English, then the applicant must achieve the higher standard.
BSMQ requires candidates to have had prior business experience (or qualifications) to successfully run the business. This can also be met by people that have previously been involved in a family-run business. There is a residency requirement. To be nominated, the person would need to demonstrate that they have lived in Queensland for at least six months. The potential applicant will need to show that they’ve invested at least $100,000 to purchase the business. Home-based and start-up businesses won’t meet this requirement. All the details such as business registration; purchase documentation; and evidence of day-to-day operation must be in the name of the main applicant. As mentioned above, the business must have been operating for at least six months before lodging the EOI and the small business owner must spend at least 35 hours per week operating the business. The employee must work at least 20 hours per week, and they cannot be a family member of the business owner or be a subcontractor. The person would need to show that they also have sufficient funds for the business and to settle the family. The main applicant must hold 100% ownership in the business.
The person applying must hold a valid Australian visa that has work rights that permits the holder to work at least 35 hours per week.
As this provisional visa is only for applicants that work and live in regional Queensland, only specified postcodes are suitable.
The first step is to carefully assess eligibility for both Home Affairs visa grant, and also approval from the Queensland government for their nomination. Potts Lawyers can assist with this assessment. When certain that eligibility can be met, the Expression of Interest can be prepared. Applicants will select “Queensland” when nominating their preferred State.
The second step is to lodge the EOI. It is crucial to undertake this process accurately. Even a small error can lead to a subsequent visa application refusal.
After lodging the EOI, potential applicants will need to complete and lodge the 491-SBO assessment form. This is an online application. If successful, BSMQ will make contact and request various documentation. They will ask for business ownership and registration documentation; bank statements; the business purchase contract; evidence of employing an Australian resident; BAS; lease agreements; and various other evidence that eligibility criteria can be met. These documents are to be uploaded only to a special online portal within 14 days. The link to the portal is found in the BSMQ email.
A non-refundable $400 payment must also be made to finalise the application. Currently applications are said to be processed in about 10 business days. If the BSMQ application is refused, five days to provide information to address the reasons for the refusal will be provided.
When BSMQ approves the application, they will contact the Department of Home Affairs. An invitation to apply for the visa will be generated. The visa applicant is given 60 days to complete and lodge the visa application. If the application is not lodged within 60 days, then the process can be repeated after six months has lapsed.
Home Affairs provides an invitation to apply for a subclass 491 visa application. Once granted, the visa holder can become eligible to apply for a permanent visa after they have met further eligibility criteria. They will need to make at least $53,900 per year for at least three income tax years, though this minimum income threshold could increase. The applicant will need to live in a regional area for at least three years and meet other eligibility criteria.
Before starting or investing in a business, professional legal and financial advice should be sought. There is considerable risk when engaging in business and professional advisors can help identify risk factors and suggest mechanisms to mitigate adverse consequences.
Temporary visa holders in particular need to be aware of the additional risks that this process involves. An Australian citizen or permanent resident has the lawful right to remain in Australia so they can weather the ups and downs, and potentially outwait unexpected economic or business shocks. Temporary visa holders generally don’t have this luxury. Their visa can expire, or their visa application refused, losing the right to remain in Australia. They may be forced to sell their business at fire-sale prices.
The visa application process including the expression of interest is a highly technical process. The laws are complex. Decision makers are not guided by information found on the Department of Home Affairs website. They are guided by internal Department policy documents. These instructions are not made available to the general public. Potts Lawyers Immigration Law team have access to these Procedural Instructions and are able to advise clients about their operation. We prepare professional applications that maximise the chance of having a successful outcome.
For more information about the opportunity to self-sponsor through business acquisition and operation in regional Queensland, contact Craig DoRozario or Tom Foran. Both are registered migration agents and experienced Immigration Lawyers.
To obtain a free 20 minute consultation in relation to your immigration matter, please contact our office on (07) 5532 3133. Your immigration matter will be conducted by Craig DoRozario (MARN 1910298) and/or Tom Foran (MARN 1172414).
Code of Conduct: https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf