Business Visa Cancellations

 
 

Here is the general power to cancel business visas:

Section 134. Cancellation of business visas

[(1) amended by Act No. 30 of 2014 with effect on and from 28/05/2014 – LEGEND note]

 

[134]      (1)      Subject to subsection (2) and to section 135, the Minister may cancel a business visa(other than an established business in Australia visa, an investment-linked visa or a family member’s visa) if the Minister is satisfied that its holder:

(a)      has not obtained a substantial ownership interest in an eligible business in Australia; or

(b)      is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or

(c)      does not intend to continue to:

(i)      hold a substantial ownership interest in; and

(ii)      utilise his or her skills in actively participating at a senior level in the day-to-day management of;

an eligible business in Australia.

(2)      The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

(a)      has made a genuine effort to obtain a substantial ownership interest in an eligible businessin Australia; and

(b)      has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and

(c)      intends to continue to make such genuine efforts.

(3)      Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:

(a)      business proposals that the person has developed;

(b)      the existence of partners or joint venturers for the business proposals;

(c)      research that the person has undertaken into the conduct of an eligible business in Australia;

(d)      the period or periods during which the person has been present in Australia;

(e)      the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;

(f)      the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;

(g)      business activity that is, or has been, undertaken by the person;

(h)      whether the person has failed to comply with a notice under section 137;

(i)      if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:

(i)      the length of time that the person held the ownership interest or participated in the management (as the case requires); and

(ii)      the reasons why the person no longer holds the interest or participates in the management (as the case requires).

(3A)       Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member’s visa) if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.

(4)      Subject to subsection (5) and to section 135, if:

(a)      the Minister cancels a person’s business visa under subsection (1) or (3A); and

(b)      a business visa is held by another person who is or was a member of the family unit of theholder of the cancelled visa; and

(c)      the other person would not have held that business visa if he or she had never been amember of the family unit of the holder of the cancelled visa;

the Minister must cancel the other person’s business permit or business visa.

(5)      The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.

(6)      The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.

The business visas that can be cancelled are setup in Reg 2.50 which states:

(2)       For the purposes of paragraph (a) of the definition of business visa in s… 134 (10) of the Act, the following classes of visas are prescribed:

(a) [omitted]

(b)      Business Skills — Business Talent (Migrant) (Class EA[6]);

(c)      Business Skills — Established Business (Residence) (Class BH);

(d)      Business Skills (Provisional) (Class EB)[7];

(e)      Business Skills (Provisional) (Class UR)[8].

(f)      Business Skills (Permanent) (Class EC) [9].

The writer is not aware of any of the 160 series visas having ever been cancelled as ordinarily Immigraiton would simply wait for the visa to expire.

Various subclass 132 business talent visas have been cancelled.

Paragraph 132.217 of the schedule 2 criteria states:

132.217

The applicant genuinely has a realistic commitment, after entry to Australia as the holder of a Subclass 132 visa:

(a)      either:

(i)      to establish a qualifying business in Australia; or

(ii)      to participate in an existing qualifying business in Australia; and

(b)      to maintain a substantial ownership interest in that business; and

(c)      to maintain direct and continuous involvement in management of that business from day to day and in making decisions that affect the overall direction and performance of the business in a manner that benefits the Australian economy.

If the applicant does not set up a business the visa may be liable to cancellation under s. 134 of the Migration Act.

Barbara DavidsonBusiness Visa Cancellations