Australian Significant Investment Visa Reforms: Capitalising on Opportunity

July, 2015

By Warwick Painter, Partner and Jacqueline McStay, Senior Associate

Today marks the introduction of the Federal Government’s highly anticipated changes to the laws regulating the Significant Investor Visa (SIV) programme and the launch of the Premium Investor Visa (PIV) programme.  Initiated as part of its broader agenda to increase Australia’s competitiveness and annual productivity growth rate, the changes introduce dramatic reforms to Australia’s Business Innovation and Investment programme, aimed at boosting the Australian economy by targeting investment in areas which support innovation and providing new sources of capital growth for emerging business ventures.

(a)  securities quoted on ASX;
(b)  securities quoted on an Australian securities exchange other than ASX (up to a 20% limit of the value of the fund at any time);
(c)  unquoted Australian securities issued by an Australian company or trustee/responsible entity of an Australian managed investment scheme that invests in Australian real property or Australian infrastructure assets (up to a 20% limit of the value of the fund immediately after the time of investment and up to 10% limit for investments in Australian residential real estate);
(d)  securities quoted on a securities exchange operated in a foreign country (up to a 10% limit of the value of the fund at any time);
(e)  cash held by Australian ADIs, including certificates of deposit, bank bills and other cash-like instruments (up to a 10% limit of the value of the fund immediately after the time of investment invested in any one issuer); and
(f)  derivatives (up to a 10% limit of the value of the fund immediately after the time of investment invested in any one issuer).

To the extent that not all funds are invested in the above two categories, a “balancing investment” of any remaining portion of the investment must be made through one or more managed funds that invest in a combination of eligible assets. These include:

One significant change is that no investment under the SIV regime can be made directly in government securities or corporate debentures, thereby removing the passive investment option which was previously chosen by many applicants for an SIV.

In addition to the above, from 1 July 2015:

In addition, the Premium Investor Visa (PIV) is now available for certain applicants investing a minimum of $15 million.  The scope of eligible investments under the PIV regime is broadly as follows, with certain conditions attached to each category:

The PIV offers a 12 month pathway to permanent residency (3 years faster than the SIV).  It is an exclusive visa and will be offered at the invitation of the Australian Government only, with potential recipients to be nominated by Austrade.

Austrade is now the key government entity responsible for the SIV and PIV programmes.  It has been tasked with the following 3 key duties:

As with any policy change of this nature, there is good news and bad news for operators of managed investment schemes designed to meet the requirements of the substantial investment capital flows associated with the SIV and PIV programmes.

The good news is a substantial affirmation of the role of collective managed investment schemes as a conduit for approved investments in most of the categories of complying investment (other than the venture capital/ growth private equity component which is a specialised subset of investment management).  In fact the removal of direct investment into government bonds and corporate debentures should provide an increased pool of investment capital to be directed into these funds. So existing operators of complying managed investment schemes are still open for business.

The bad news is that ensuring that your fund can continue to be a complying investment (and hence able to access the substantial capital inflows which could be anticipated) has just become a whole lot more difficult, both administratively and in ensuring your existing investment objectives meet the relevant criteria.

There has been widespread concern that these changes could reduce the effectiveness of the Visa programme.  This is because the requirement to direct money into high risk venture capital investments, along with the much more restrictive criteria for investment in real estate (and especially residential real estate), could see many potential Visa applicants looking towards other jurisdictions or investment opportunities which offer more flexibility.

Another concern is that the amendments could overheat the small-cap and venture capital market.  Such businesses could see substantial inflows of new foreign investment under the amended legislation, which could lead to excessive valuations.

What now?

Fund managers and trustees administering funds through which SIV investments are currently channelled will need to re-examine their funds to ensure that they remain compliant under the amended regime. In some cases this may require structural reform to existing investment platforms and new governance and administration measures being put in place by the trustees for those funds.  Fund managers and trustees should also consider establishing new funds or redesigning existing funds to take advantage of the new PIV programme.

Operators of these managed investment funds should also prepare for more direct engagement with Austrade and the Federal Government in order to ensure that they continue to offer complying investments under the SIV and PIV programmes.

Going forward

The Corporate Advisory team at Mills Oakley Lawyers act for a number of local and international fund managers, trustees and custodians and have extensive experience in the structuring, implementation and maintenance of managed funds that are compliant with the Significant Investor Visa programme.

Contact Mills Oakley

Should you have any questions or wish to discuss how the proposed changes to Australia’s investment visa regime could affect you, please contact:

warwick-painter

Warwick Painter | Partner
Sydney
T: +61 2 8289 5808
E: wpainter@millsoakley.com.au

mark-bland

Mark Bland | Partner
Melbourne
T: +61 3 9605 0832
E: mbland@millsoakley.com.au

venn-king

Venn King | Special Counsel
Melbourne
T: +61 3 9605 0977
E: vking@millsoakley.com.au

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