Cancellation of business visas
134 Cancellation of business visas
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:
has not obtained a substantial ownership interest in an eligible business in Australia; or
is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or
does not intend to continue to:
hold a substantial ownership interest in; and
utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
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
intends to continue to make such genuine efforts.
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:
business proposals that the person has developed;
the existence of partners or joint venturers for the business proposals;
research that the person has undertaken into the conduct of an eligible business in Australia;
the period or periods during which the person has been present in Australia;
the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
business activity that is, or has been, undertaken by the person;
whether the person has failed to comply with a notice under section 137;
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:
the length of time that the person held the ownership interest or participated in the management (as the case requires); and
the reasons why the person no longer holds the interest or participates in the management (as the case requires).
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.
Subject to subsection (5) and to section 135, if:
the Minister cancels a person’s business visa under subsection (1) or (3A); and
a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa.
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.
The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the ART has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
If the Minister cancels a business visa under this section, the Minister must give written notice of the cancellation decision to its holder, including:
the Minister’s reason for the cancellation; and
a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the ART for review of the cancellation.
The notice under subsection (7) must be given in the prescribed way.
Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under subsection (7).
A cancellation under this section has effect on and from:
if the person applies to the ART for a review of the decision to cancel the visa—the 28th day after the day on which the ART gives its decision on that review; or
if:
the person’s visa was cancelled under subsection (4); and
the relevant person to whom paragraph (4)(a) applied has applied to the ART for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the ART gives its decision on that review; or
the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.
The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
In this section:
business visa means:
a visa included in a class of visas, being a class that:
has the words “Business Skills” in its title; and
is prescribed for the purposes of this paragraph; or
a visa:
to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
that is of a kind prescribed for the purposes of this paragraph; or
a return visa that is granted to a person who is or was the holder of a business permit or business visa;
that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
the development of business links with the international market;
the creation or maintenance of employment in Australia;
the export of Australian goods or services;
the production of goods or the provision of services that would otherwise be imported into Australia;
the introduction of new or improved technology to Australia;
an increase in commercial activity and competitiveness within sectors of the Australian economy.
established business in Australia visa means a business visa a criterion for whose grant:
relates to the applicant having an established business in Australia; or
is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member’s visa means a business visa held by a person:
who is or was a member of the family unit of another person who held a business visa; and
who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment‑linked visa means a business visa a criterion for whose grant:
relates to the holding of a designated investment; or
is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
ownership interest, in relation to a business, means an interest in the business as:
a shareholder in a company that carries on the business; or
a partner in a partnership that carries on the business; or
the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
relevant designated investment, in relation to an investment‑linked visa (other than a family member’s visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment‑linked visa.
return visa has the same meaning as in the regulations.
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