Case-study – 188A Business Innovation Stream Visa

In this column, we will talk about 188A visa requirements with real-life cases on the visa.

The most frequently asked questions about the 188A visa are the proof of assets, business experience and dependent children.

Proof of Assets

First, let’s take a look at two real-life cases based on the content from the most received inquiries about the proof of assets.

• A corporate business owner A transferred 20% of the company’s share to researcher B as a scouting offer for a crucial technical advice during the business expansion. In this case, from the time the share is transferred, 20% of the company’s net assets are also considered to be transferred. In other words, calculation of the applicant (A)’s business assets would be (net assets of the entire business x shareholding ratio of the applicant and spouse).
• For C, who inherited a large building with three siblings as an estate, only the equal percentage (25%) of ownership is recognised based on the certified copy of the register, unless there is a specific definition of the distribution,  C can’t claim the whole building for the proof of assets even though there is an oral agreement of permission of use. Furthermore, the applicant must meet the condition of transparency of the inheritance process.

Among the questions about assets, there are a lot of questions about whether a virtual currency such as bitcoin is included in the asset. Currently, under Australian immigration laws, all cryptocurrencies (Bitcoin, etc..) are not considered as assets.

Business Experience 

The second topic to look at is the business experience and management involvement. The two real-life cases below may seem similar but have completely different results. The success of business is important, but how well the applicant has performed, and managed business is crucial to the visa approval.

• Mr. A ran a restaurant business with two friends, and they owned 33% of the shares each. A has been in charge of the overall responsibility for the business operation on behalf of the two friends who had other work and businesses commitment. Mr. A was able to get the 188A visa successfully by submitting the proof of business experience and management involvement.
• Mr. B, who owned the larger size of the business, received a visa rejection even though the conditions for assets and business turnover meet the requirements. The reason is that Mr. B was in the form of partnership with siblings, and there was no proof of Mr. B has contributed to the overall business operation and day-to-day management.

Under the Australian immigration law, if an annual turnover is over AUD 400,000, there is a condition that the applicant must own at least 30% share in the business, and if an annual turnover is less than AUD 400,000, the applicant must own at least 51% share in the business to prove the applicant’s business management experience.

But, as seen in the above two cases, the critical requirement of business experience and management is the proof that the applicant have been involved in business operations continuously and directly and making important decisions for the business.

There are many inquiries from professionals such as doctors, accountants and lawyers. In the case of professionals, it may be difficult to meet the above conditions depending on the size of business and/or method of operation, management of business. The below two cases are related with doctors.

• Doctor C, a famous plastic surgeon in Korea, achieved great success in a private hospital with his outstanding medical practice. However, according to the Australian Immigration Law, it was considered that director C succeeded in his business based on his own professional medical practice than the ability to operate and manage the business, so it is difficult to prove that Doctor C has a management skills from his previous business. Finally, his visa was refused.
• Doctor D, who operated an ophthalmic clinic, hired 4 other doctors in the same hospital. He committed most of his working hours in operating and managing the hospital instead of seeing patients. In the case of Doctor D, the Australian Department of Immigration recognized his successful hospital operation and management, therefore his visa was granted.

Dependent Children

In fact, there are many people applying for the 188A visa to open up a better future for their children. However, most of the applicants misunderstand the timeline for the age limit of dependent child.

Under the Australian immigration law, the age limit of the applicant is under 55 at the time of submission of an EOI, whereas the dependent child is under 18 (under 23 for full-time students) at the time of visa approval.

• Mr. A, who was preparing for the 188A visa, had three children with his spouse. At the time of submission of an EOI, his three children were 13, 17 and 18, but at the time of visa approval, they turned 15, 19, and 20. Under the Australian immigration law, a dependent child who reached the age of 15 meet the conditions of the dependent child, but the other two children, who turned over 18, needed to show the dependency through full-time student requirements or whether they were financially independent. Eventually, the other two children were considered to meet the full-time student requirements, so they were able to obtain the visas.

The visa processing time may be infinitely long, as the Department of Australian immigration may continue to request additional information or documents depending on how well you have prepared and submitted the visa application.

Looking at the past cases for writing this column, I noticed there were many cases that could have been in trouble if the visa were approved even one day late.

If you apply for the Business Innovation and Investment Visa, you should prepare all the documents required thoroughly with a professional registered migration agent who is particularly has many experience in this Business Innovation and Investment Visa.

In the next column, we will take a closer look at the requirements for the 188B Investor Stream Visa.