Visas for Innovation – Our recommendations for the 2020/21 Migration Program Year

Global Talent Independent (GTI) program

Formally announced in November 2019, the GTI program was designed to offer a streamlined pathway to permanent residency for 5,000 highly skilled individuals in 7 target sectors (largely related to Tech). These individuals also either had to be able to attract significant salaries, and/or be recent highly graded Honours/Masters or PhD graduates. Hannan Tew has been at the forefront of this program here with extensive community engagement.

Although the program struggled initially due to a lack of awareness (with only 227 visas granted as at 30 January 2020), the program had a strong finish with a total of 4,109 outcomes by the end of 30 June 2020. Processing has stagnated in September with the Department likely awaiting the allocation for the new migration program year.

The program allows a holistic assessment of an individual’s merits which has resulted in a very high calibre of applicants being offered a fast-tracked pathway to permanent residency. This has allowed Australia to target highly skilled individuals by offering permanent residency, unshackled from the rigidity of other skilled programs such as:

• General Skilled Migration (GSM) where points are allocated on a tiered basis, based on age, English language ability, years of work experience, qualifications held etc.; or
• employer-sponsored pathways which only exist in circumstances where an applicant undertakes the onerous process of obtaining a skills assessment and/or has worked for their sponsoring employer for 3 years on a TSS (work) visa.

Hannan Tew recommendation

Hannan Tew anticipates and would welcome a significant increase in allocation for this program, but with greater resources to improve EOI processing times, which have blown out from a matter of weeks earlier in the year to 2-3 months. Notwithstanding that it is a pilot program, it is also worth investing in the EOI infrastructure to issue acknowledgement emails to applicants who have no evidence of a lodged application in the current setting.

Further, we urge greater transparency in terms of the eligibility criteria and process, as well as improved communication to applicants in terms of their EOI status. The EOI process remains a largely subjective assessment, which on one hand affords the program the required flexibility, but also has the potential to suffer from a huge lack of transparency resulting in frustration or disillusionment in the program.

Given the technical nature of the work many applicants are involved in, it may also be helpful to have a technical team assist in the assessment of candidates.

SISA

The SISA is pilot three-year programme running from November 2018 – 2021, aimed at seed-stage entrepreneurs seeking to take an innovative idea forward in South Australia.  As a pilot programme, the government were looking at issuing about 100 visas per year.

This pilot programme utilised the Temporary Activity Subclass 408 visa, permitting the holder to stay in Australia from the date of approval until November 2021.  Accordingly, from November 2020, this program will cease as new applicants would only be able to receive visas for 1 year.

The SISA is targeted towards anyone who has an innovative, entrepreneurial idea or concept, or is working on an innovative early-stage business ideally with a Minimum Viable Product (MVP) or some demonstrable traction.

The individual had to be suitably endorsed by one of four South Australia innovation eco-system services providers or the Office of Chief Entrepreneur (OCE) in South Australia. Priority was afforded to individuals with proposals in certain industries (largely related to emerging technologies).

Hannan Tew Recommendation

The SISA is an attractive prospect in that it offers:

• a significantly cheaper visa alternative for individuals to set-up their business in Adelaide ($200 nomination fee, and $285 visa application charge);
• verification of the business idea by reputable industry players (such as the selected innovation eco-system providers or the OCE) which means that the program is less liable to exploitation; and
• no funding requirements – meaning a more accessible pathway for overseas entrepreneurs to enter Australia compared to the existing Entrepreneur stream of the Subclass 188 visa.

In May 2019, Hannan Tew Lawyers made the same recommendations that this program should:

• be extended beyond November 2021 (though this should be with a greater allocation);
• be expanded to other Australian States/Territories; and
• offer a pathway for visa holders under this program to permanent residency.

Most importantly, a pathway to PR needs to exist or the visa becomes redundant and less attractive to prospective applicants other than a means of temporarily remaining in Australia. A potential avenue could include a pathway of the GTI program (tab to the left) or a pathway under the Subclass 188 visa (tab to the right).

Entrepreneur Stream – 188 visa

The Subclass 188 visa is targeted at business owners and investors. In September 2016, the Department introduced the “Entrepreneur” stream of this visa subclass.

An applicant must first submit an expression of interest, obtain nomination from an Australian State/Territory government, and then be invited to apply for the 188 visa.

Applicants could obtain a 4-year temporary visa with pathways to permanent residency (after a minimum of 4 years on the Subclass 888 visa), if they:

• had an innovative idea that would lead to the commercialisation of a product/service, or the development of an enterprise or business, in Australia;
• had received eligible funding (Commonwealth, State/Territory governments, publicly funded research organisation, education institution, and/or certain Australia registered VC partnerships) of at least AUD 200,000;
• were nominated by an Australian State/Territory;
• owned at least 30% of the entrepreneurial entity.

In February 2019, Hannan Tew Lawyers submitted a Freedom of Information (FOI) requested that indicated that as at 31 January 2019 (nearly 2.5 years of operation), only 8 visa grants had been made under this stream (including family members). Indications are that visa grants under this stream have remained low.

The Entrepreneur Stream of the Subclass 188 visa suffers from overly onerous criteria, including:

• funding requirements – being only being able to come from Australian VC/institutions (leaving offshore applicant facing significant difficulties);
• ownership requirements (with a 30% minimum requirement, an individual would lose eligibility if they were one of 4 or more co-founders);
• a drawn-out process – requiring the individual to submit an EOI, obtain nomination from an Australian State/Territory body (a bureaucrat rather than an industry body), and finally apply for the visa
• a long pathway to PR – attainable after a minimum of 4 years, which is also contingent on an assessment as to the applicant’s success by reference to number of Australians employed, level and nature of ongoing funding, and annual turnover of the business; and
• a $4,045 lodgement fee (for a single applicant) not including the government nomination fee (usually $500).

Hannan Tew Recommendation

The visa stream has many issues as outlined above and needs to be removed and/or completely overhauled and simplified like the SISA program.

One appropriate option would be for the SISA to continue and be expanded as outlined above, with the pathway to permanent residency remaining under the 888 visa (with minimum eligibility dropped from 4 years to at least 3 years – in line with employer sponsored requirements).