COVID Impact on 188 Visa holders – Request for further COVID Concessions

For 188 Business Innovation stream visa holders, they are unable to apply for the 188 Business Innovation Extension stream if they have not been able to commence and/or complete 2 years of actively operating a business in Australia. Reg 188.232 requires the 188 visa holder to have an ownership interest and operate the business for at least 2 years immediately before application.

We note the COVID-19 concessions introduced on 19 September 2020 - allows for cumulative periods of at least 2 years however this is still very difficult to achieve if the visa holder to unable to enter the State/Territory that nominated them, or they are unable to commence their business or continue with their business due to Directions issued by the State mandating lockdowns and other restrictions.

These visa holders will have limited time left on their visas, and may find themselves becoming unlawful if they cannot make a valid application for a 188 Extension stream or 888 permanent visa. If these 188 Business Innovation stream visa holders had to apply for a subclass 408 (AGEE Pandemic stream) visa or other visa, this would jeopardise their pathway to the permanent residency, as a subclass 408 visa or other visa are not a prescribed visa for a subclass 888, and the time spent operating their business whilst holding another visa does not count towards the subclass 888 business requirement.

We are requesting the State Government and Department of Home Affairs to consider relaxing the 2-year requirement under Reg 188.232 to allow 188 Business Innovation stream visa holders to apply for the 188 Business Innovation Extension stream without having satisfied the 2 years operation requirements.

We are also requesting concessions to turnover and other business requirements for subclass 888 Business Innovation stream for businesses operating outside of regional areas (such as Melbourne and Sydney) impacted by State lockdowns.

To preserve family unity during these difficult times, it is also requested to allow dependents over 23 to still be included in the extension streams under the subclass 188, as a member of family unit.

The common scenarios faced by clients include the following:

1- 188 visa holders cannot enter the State/Territory which nominated them, due to flight cancellations or State-wide lockdowns

Flight cancellations are outside of their control and this delays the time the visa holder is able to enter the State/Territory that nominated them to start or resume their business. These visa holders will lose precious time on their visas, and may not be able to meet the requirements for the 188 Extension stream before their current 188 visa expires.

 2- People in the State are stuck in lockdowns and have not started their business yet. 

It is not possible to buy or run a business during the lockdown if the business is forced to close as directed by the State. These visa holders will lose time on their visas, and will not be able to apply for the 188 Extension stream before their current 188 visa expires.

In these circumstances, the Department should consider waiving the 2 years requirement under reg 188.232 to allow additional time for the 188 visa holder to commence a business.

3- People who have commenced running their business but they are forced to temporarily close due to State requirements.

Some 188 visa holders are unable to maintain their turnover because of the lockdowns. These visas holders would have difficulties satisfying the turnover requirement of $300,000 under reg 888.225(5). It is noted that a turnover concession only applies to businesses operating in an area specified as a Designated Regional Area (which do not include Melbourne, Sydney and Brisbane) under reg 888.226(2), and where the State/Territory government determines that there are exceptional circumstances.

Furthermore, these businesses may also face difficulties if they had to stand-down staff during the period, which then impacts on the calculation of the 2 full-time employees to satisfy reg 888.225(3).

Currently Melbourne, Sydney and ACT are the main cities facing extended lockdowns with uncertainty as to when the lockdowns will end and when restrictions will ease.

It is requested that the turnover concession be extended to include businesses located outside of the regional areas, and remove the requirement for State/Territory governments to pre -determine that there are exceptional circumstances.

It is also requested that there be concessions for the 2 out or 3 requirements under reg 888.225(1)(a) in relation to Net assets of the applicant in business and number of employed Australian staff, and business and personal assets of the applicant, especially for businesses also facing difficulties satisfying the turnover requirements.

Recommended Concessions:

1. Remove the 2 years operations requirement under reg 188.232
2. Amending reg 888.225 and 888.226 to allow additional concessions to apply across the 2 out of 3 requirements and for turnover, and expanding concessions to businesses located outside of the regional areas.
3. Allowing time spend on a different visa, such as a subclass 408 (AGEE- COVID) to count towards meeting the business and residency requirements for the subclass 888 visa.
4. Expanding the Member of family unit definition (under reg 1.12(5) to include dependents (over 23 year old) who last held a subclass 188 to still be recognised as a Member of Family unit for the 188 Extension streams.
   
   

Apart for the added stress of not being able to operate their business due to COVID lockdowns, many subclass 188 visa holders feel disenfranchised due to uncertainty with their visa pathway and they fear losing their investments and livelihood if they are ineligible for the permanent visa.

We request the State and Department of Home Affairs to make it very clear for these visa holders to ensure there is confidence in being able to continue with their business innovation and investments in Australia, and there is certainty that there will be concessions for extended stay or permanent residency. Business people will not continue with their investments, if there is little or no confidence in the business migration program, and it is likely that some business people will cease their business in Australia and will look abroad for other business opportunities.

Mostafa homapour
MARN 1796314
VISAPICK.COM

Mostafa Homapour - MARN 1796314 - VISAPICK    Contact the author of the petition