Cancellation of business visas occurs when the holder no longer undertakes certain business activities. Generally, the Department of Home Affairs (DHA) cancels a business visa if they think the visa holder has not obtained a substantial interest in a business in Australia or is not using their skills to actively manage such a business at a senior level.
Subdivision G under Division 3, Part 2 of the Migration Act 1958 deals with the cancellation of business visas. It consists of 4 Sections, Section 134 - Section 137. This article discusses the cancellation of business visas under the Migration Act.
Section 134: Cancellation of Business Visas
Under Section 134 of the Migration Act, the Minister may cancel a business visa if the Minister thinks its holder:
- has not obtained a substantial ownership interest in an eligible business in Australia,
- 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 an eligible business in Australia, 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.
An "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, or
- an increase in commercial activity and competitiveness within sectors of the Australian economy.
An "ownership interest" in relation to a business, means an interest in the business as:
- a shareholder in a company that carries on the business,
- a partner in a partnership that carries on the business, or
- the sole proprietor of the business.
This includes an interest held indirectly through one or more interposed companies, partnerships or trusts. Additionally, this Section states that the Minister must not cancel a business visa if the Minister thinks its holder:
- has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia,
- 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.
When determining whether a person has made a "genuine effort", the Minister takes into account 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, or
- 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, and
- the reasons why the person no longer holds the interest or participates in the management.
Investment-linked Visas and Other Persons
Section 134 also provides that the Minister may cancel an investment-linked visa if the Minister thinks that the person, or any of the persons, who held the relevant designated investment when the visa was granted has/have ceased, for any reason, to hold that investment within 3 years of that investment being made.
If the Minister cancels a person's business visa 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
- 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.
However, the Section also provides that Minister must not cancel the other person's business visa if the cancellation of that visa would result in extreme hardship to the person.
Notice of Cancellation of Business Visas
If the Minister cancels a business visa, 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 Administrative Appeals Tribunal (AAT) for review of the cancellation.
The Minister must not cancel a business visa unless its holder receives a notice under Section 135 within the period of 3 years commencing:
- if its holder was in Australia when he or she was first had 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.
Section 135: Representations Concerning Cancellation of Business Visas
Under Section 135, before cancelling a visa under Section 134, the Minister must give its holder a written notice:
- stating that the Minister proposes to cancel the visa, and
- inviting its holder to make representations to the Minister
concerning the proposed cancellation within:
- if the notice is given in Australia - 28 days after the notice is given, or
- if the notice is given outside Australia - 70 days after the notice is given.
The holder may make such representations to the Minister within the time specified in the notice, to which the Minister must give due consideration to any representations. If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.
Section 136: Review of Decisions
Under Section 136, a party may make an application to the Administrative Appeals Tribunal for review of a decision of the Minister to cancel the business visa.
Section 137: Provision of Information By Holders of Business Visas
Under Section 137, the Secretary or Australian Border Force Commissioner may, by written notice, require the holder of a business visa to give them such information as is specified in the notice. Additionally, the holder may need to advise in writing regarding any change in the address of the holder during a period specified in the notice.
A notice under this Section must state that the information must be provided within a period of 28 days commencing on a day specified in the notice.
A person who fails to comply with a notice commits an offence at the end of every successive 28-day period that is contained in the period commencing on the day specified in the notice and ending when the person complies with the notice. However, this does not apply if the person has a reasonable excuse.
Seeking Legal Advice from Expert Immigration Lawyers
Cancellation of business visas often occurs when the holder no longer complies with business activities required of the visa. However, a cancellation of business visas is not the end of the road.
JB Solicitors has a team of experienced lawyers in Immigration Law that can help with your case. We provide legal services and ensure that we resolve our clients' legal matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
