Venture Capital and Growth Private Equity
Premium Investor Visa (PIV)
Integrity and Promotion
What changes have been made to the Significant Investor Visa (SIV) programme?
The Department of Immigration and Border Protection (DIBP) have amended the Migration Regulations and Instruments governing the Significant Investor Visa (SIV) programme to introduce a new complying investment framework for the SIV and a new Premium Investor Visa (PIV). The amended legislation came into effect on 1 July 2015 and also provides Austrade with the authority to nominate applicants for the SIV, alongside State and Territory governments, and act as the sole nominator for the PIV.
The Migration Regulations can be accessed at https://www.comlaw.gov.au/Details/F2015L00963
The Migration Instrument can be accessed at https://www.comlaw.gov.au/Details/F2015L01012
What is Austrade's role in the SIV and PIV programmes?
Austrade has three primary responsibilities under the enhanced SIV and new PIV programmes:
- Nominate potential SIV applicants (along with the State and Territory governments);
- Develop the new PIV programme and be the sole nominator; and,
- Assess the complying investment framework design on an ongoing basis to ensure the programme achieves its objectives over time
It is important to note that while Austrade was tasked with developing the complying investment framework for the enhanced SIV and new PIV, it is the Department of Immigration and Border Protection (DIBP) that is responsible for the management of the migration programme, including regulatory changes, implementation and ongoing administration.
What are the changes to what counts as a “complying” investment for the SIV?
From 1 July 2015, new SIV applicants will be required to invest at least $5 million in complying investments, which must now include:
- At least $500,000 in eligible Australian venture capital or growth private equity (VCPE) fund(s) investing in start-up and small private companies. The Government expects to increase this to $1 million for new applications within two years as the market responds;
- At least $1.5 million in an eligible managed fund(s) or Listed Investment Companies (LICs) that invest in emerging companies; and
- A ‘balancing investment’ of up to $3 million in managed fund(s) or LICs that invest in a combination of eligible assets that include Australian listed securities, eligible corporate bonds or notes, annuities and real property (subject to the 10 per cent limit on residential real estate).
A one page outline of the complying investment framework is available on the Austrade website. Any enquiries should be directed to email@example.com
Why has the Government made these changes?
The Government announced a review of the SIV programme on 7 March 2014 to improve the effectiveness and competitiveness of the programme. The review was conducted by DIBP in consultation with the financial services industry and other stakeholders, including State and Territory governments.
In October 2014, the Government endorsed the key recommendations of the review, announcing them as part of the Industry Innovation and Competitiveness Agenda. They included:
- That Austrade determine complying investment policy for the SIV and a new PIV in consultation with other agencies and stakeholders.
- That Austrade, along with the State and Territory governments, have a role in the nomination of SIV applicants.
- Creating a new PIV with Austrade as the sole nominator.
The Government decided the bar was set too low in the previous programme – SIV investment was mostly going into passive investments like government bonds and into residential real estate schemes – areas that already attract large capital flows. While there may be an initial reduction in the number of applications, the Government wants to see a programme which delivers a better result in terms of investment into the commercialisation of Australian ideas, research and development which is critical to future economic growth.
The Government believes Australian permanent residency warrants more dynamic investment in areas of the economy where it can make a real difference. The enhanced SIV arrangements will help Australia’s long-term economic future by boosting investment in emerging enterprises, creating new jobs and promoting local commercialisation of innovative research and development.
Legislative amendments to implement the new complying investment policy for SIV and to introduce the new Premium Investor Visa (PIV) came into effect from 1 July 2015.
Did the Government consult before introducing these changes?
Since the policy announcement was made in October 2014, Austrade has consulted openly and extensively with any interested stakeholder on the design of a new complying investment framework for the SIV and the design of a new PIV.
In addition to consultation with relevant Federal and State and Territory government agencies in partnership with the DIBP, Austrade consulted with interested industry stakeholders, peak bodies, financial service providers, migration agents and interested members of the public.
Austrade conducted two rounds of formal consultation, inviting any interested parties to comment on possible investment requirements. The consultation process was announced in Ministerial media releases, advertised in major newspapers and accessible through the Austrade website. Any interested party was able to email a dedicated email address for further information (firstname.lastname@example.org) or to be added to the stakeholder consultation list.
The second round of consultation invited stakeholder comment on a detailed ‘one-pager’ of design options that reflected the first round of stakeholder consultations. Around 170 written submissions were received in these two rounds.
The Minister issued four media releases and made a number of public comments to outline the government’s thinking and advice of consultation processes. He has updated State and Territory colleagues at two Trade Investment Ministers Meetings.
Do changes in visa rules impact on numbers of applications?
Changes to visa programmes often result in an initial decline in applicant numbers while the clients adjust to new policy settings, and the Government recognises that restricting investment in residential real estate and requiring some investment in areas like VCPE funds may impact the demand for the programme to some of those attracted to the previous framework’s openness to residential real estate schemes and no-risk assets such as Government bonds. However, the new requirements will deliver on the Government’s objectives to attract migrants who genuinely want to settle in Australia and to invest in areas where it can make a material difference in promoting innovation and commercialisation.
Is information available in Chinese?
An outline of the new complying investment framework and an information sheet is available in simplified and traditional Chinese on Austrade’s website.
In addition, information on the process of applying for the SIV is available on the website of the Australian Consulate-General in Hong Kong.
What is the impact on residential real estate investment?
Direct investment in residential real estate has never been a complying investment for SIV and this will not change with the new complying investment framework. Last year Minister Robb also indicated that indirect investment in residential real estate through managed funds should be limited. This does not limit indirect investment in other forms of real estate such as commercial or industrial property development.
Importantly, this does not prevent SIV applicants from independently investing in residential real estate so long as they follow foreign investment rules. It just means that investment would not be part of their complying investment to qualify for permanent residency in Australia. The Government does not accept that the future of the residential property development sector in Australia is dependent on the SIV complying investment framework.
Do I have to make all of my SIV complying investments through AFS licensed managers?
Yes. All SIV investments must be provided by an Australian Financial Services (AFS) licensed manager(s) domiciled in Australia. Fund managers must be independent of the applicant, the applicant’s spouse or de facto partner, and any associate (within the meaning of the Corporations Act 2001) of the applicant.
Can I invest in a Fund of Funds (FoF) or Investor Directed Portfolio Service?
Note: This is when a managed investment fund is used as the FoF.
A ‘fund of funds’ (FoF) is generally a managed investment fund that invests in other funds. An ‘investor directed portfolio service’ (IDPS) is generally a custody and reporting service that allows an investor to invest in managed investment funds and other financial products.
An investor can invest separately into each component of the significant investor visa complying investment framework, or alternatively can invest through a FoF or IDPS.
Under the new significant investor visa and premium investor visa complying investment framework, an investor is permitted to invest in managed investment funds through a FoF or IDPS, provided the managed investment fund(s) in which the FoF or IDPS invests comply with the other requirements of the complying investment framework.
It is also the intention to allow an investment in venture capital funds through a FoF or IDPS provided the venture capital fund(s) in which the FoF or IDPS invests comply with the other requirements of the complying investment framework. A venture capital fund includes an Australian venture capital fund of funds (AFOF) conditionally registered, or unconditionally registered, under the Venture Capital Act 2002 (Cth). An AFOF can in turn invest in other Early Stage Venture Capital Limited Partnerships (ESVCLP) and Venture Capital Limited Partnerships (VCLP) and their investees.
What is an Investor Directed Portfolio Service?
Investor Directed Portfolio Services are unregistered managed investment schemes for holding and dealing with one or more investments selected by investors. In broad terms, they provide custodial, transactional and reporting services, while the investor retains management and control of the investment decisions. For more information, please refer to the Australian Securities and Investments Commission.
What does ‘central management and control' mean in Migration (IMMI 15/100: Complying Investments) Instrument 2015, sections 9(4) and 11(4)?
When determining whether:
- a company or managed investment scheme referred to in section 9(3)(c) of the Instrument; or
- a person (other than an individual) referred to in section 11(3)(a) of the Instrument.
(together a 'body') is taken to have its 'central management and control' (CM&C) in Australia, regard should be had to the meaning given to this expression in relevant case law and in ATO Taxation Ruling TR 2004/15.
Broadly, determining CM&C involves an analysis of who is responsible for the strategic decision making of the body and where and when this occurs. By way of an example, coming to Australia for the purpose of holding a board meeting but conducting regular management decisions offshore would not be considered to be in compliance as this would indicate an artificial or contrived CM&C outcome. If the CM&C occurs in a place outside of Australia, then the body cannot be regarded as satisfying the requirements of the Instrument.
Venture Capital and Growth Private Equity
What is Venture Capital and growth Private Equity (VCPE)?
The new SIV complying investment framework requires applicants to make a mandatory investment of $500,000 (10% of their SIV investment) into VCPE funds. VCPE is a form of investment that provides capital to typically new, innovative or fast-growing unlisted companies.
What VCPE funds can I invest in?
In order to be eligible to take SIV investment, a VCPE fund must be registered under the Early Stage Venture Capital Limited Partnership (ESVCLP) or Venture Capital Limited Partnership (VCLP) programmes, operated by the Department of Industry and Science.
The Department of Industry and Science is responsible for the administration of the Early Stage Venture Capital Limited Partnership (ESVCLP) and Venture Capital Limited Partnership (VCLP) programmes. Please follow this link to access the Department of Industry and Science’s webpage on the ESVCLP and VCLP programmes. It contains information on the process for registering funds, eligibility criteria and lists of funds registered under the ESVCLP and VCLP programmes.
Are venture capital fund investments for terms longer than the four-year SIV visa
VCPE funds mostly require longer investment terms than the four-year provisional visa period. It is the responsibility of SIV applicants to decide whether they are willing to invest for periods longer than the provisional visa period.
Where can I find lists of SIV-eligible funds investing in VCPE and emerging companies?
Individual fund managers are responsible for certifying their compliance under the SIV programme to DIBP. The Department of Industry and Science publishes lists of the funds registered under the ESVCLP and VCLP programmes on their website, but does not specify SIV eligibility. If you have any further questions on the programmes, they can be addressed to the Department of Industry and Science via phone (13 28 46) or email (email@example.com).
Is the investor required to sign an individual commitment agreement with the general partner of the venture capital fund? If so, how does this work for a manager offering a fund of funds (FoFs) solution?
Note: This is when a managed investment fund is used as the FoF.
Yes. For a venture capital fund investment, the investor (that is, the visa applicant) is required to enter into an agreement with the general partner of the venture capital fund(s). This is the case even where the visa applicant intends to invest in the venture capital fund(s) through a ‘fund of funds’ or ‘investor directed portfolio service’. The visa applicant can enter into this agreement directly or the ‘fund of funds’ operator or ‘investor directed portfolio service’ operator can enter into the agreement as agent for the investor. Further, the investor (that is, the visa applicant) is required to commit a minimum of $500,000 to a venture capital fund(s). This amount is to be net of any fees or costs associated with a FoF or IDPS.
How do you apply for a SIV?
From 1 July, Austrade will be able to nominate SIV applicants to DIBP along with the State and Territory governments.
Individual State and Territories may continue to apply additional criteria as part of their individual nomination processes prior to nominating a candidate to DIBP for the SIV. For further information on individual State and Territory government nominations requirements please contact the relevant jurisdiction.
More information on how to apply for the SIV, including links to State and Territory government websites, is available on the Department of Immigration and Border Security Business Innovation and Investment (Provisional) Visa webpage.
What do the new requirements mean for nominations that have already been submitted?
The Department of Immigration and Border Protection (DIBP) have indicated the changes that came into effect on 1 July 2015 do not apply to applicants nominated prior to 24 April 2015 and invited by DIBP to apply under the SIV programme as long as they do so within the time period specified in their invitation. These applications will continue to be processed under the previous legislation (in force before 1 July 2015) and will be subject to that legislation for the duration of their visa.
Premium Investor Visa (PIV)
What is the PIV?
The PIV programme has been introduced to attract a very small number of highly talented innovators with proven entrepreneurial skills and the ability to pass on these skills to emerging Australian entrepreneurs. The focus of the PIV is not on an individual’s ‘wealth accumulation’ so much as their proven talents and the long-term economic benefit they can deliver to Australia. The PIV will be available at the invitation of the Australian Government only, with potential recipients to be nominated by Austrade. Please note, the Government will be highly selective in determining who is offered the opportunity to apply for a PIV, and unsolicited expressions of interest will not be accepted.
What criteria will Austrade use to assess and nominate applicants for the PIV?
The criteria for assessing and nominating applicants for a PIV will include entrepreneurial skill or talent; ability to pass on these skills and talents to emerging Australian entrepreneurs and translate them into areas which deliver a long-term economic benefit to Australia; and, character/integrity checks.
How will Austrade identify potential nominees for the PIV?
The Government intends to be highly selective in determining who is offered the opportunity to apply for a Premium Investor Visa. Austrade will draw on its international network and work closely with federal government agencies and State and Territory Governments to identify and engage with potential candidates.
Are there mandatory investments for the PIV?
Yes. In addition to their entrepreneurial skill or talent and ability to translate those skills and talents into areas which deliver a long-term economic benefit to Australia, PIV investors must invest a minimum $15 million in complying investments or philanthropic donations. For further information, please refer to the Complying Investment Framework.
What constitutes an eligible ‘philanthropic donation’ for the PIV?
Details of philanthropic donations must be determined in consultation with the relevant Australian State or Territory government in which the donation is to be made.
Integrity and Promotion
What integrity measures will the SIV and PIV programmes have?
DIBP is responsible for maintaining the integrity of the visa process, and applies robust integrity and compliance measures in its management and delivery of the Investor Visa programme. Applicants will undergo rigorous assessment, prior to the grant of a provisional visa and any subsequent grant of permanent residency, using information available to the DIBP from various external sources. Applicants also undergo mandatory character and security checks. Integrity measures also provide for referrals to law enforcement authorities in source countries for background checks on applicants that have been identified as suspicious.
Can Austrade recommend a migration agent?
Only registered migration agents can legally give immigration assistance in Australia. Neither Austrade nor DIBP can recommend the use of a specific migration agent. However, details of registered migration agents can be found on the Office of the Migration Agents Registration Authority website at: www.mara.gov.au. The website allows you to search for an agent by name or your location, including overseas.
Do I need to seek professional advice before applying for the SIV or PIV, or before making a complying investment for the SIV or PIV?
Yes. Austrade urges all applicants to seek professional legal and financial advice before making any decision.
How will the Government promote the SIV programme?
DIBP will continue to be responsible for communicating and promoting the migration programme in Australia and overseas, including the SIV programme. Some State and Territory governments also have offices overseas where they are available to provide further support to potential SIV applicants looking to invest. Austrade’s onshore team will be solely responsible for assessing those applicants who approach Austrade onshore or overseas for SIV or PIV nomination. Austrade will work cooperatively with State and Territory Governments on nominations for SIV, and State and Territories have an ability to refer potential applicants for PIV to Austrade for consideration.