Australia has always been a target of entrepreneurs and business holders. The country has a strong economy, political stability, and its multicultural population, which creates multiple opportunities of conducting business and innovation.
Nonetheless, this is the question those foreign entrepreneurs working in Australia usually ask themselves:
Are business owners deportable?
The immediate retort to this would be: yes, even the owner of a business can be deported, in a specific condition. The important legal points to note, risks, and protection as an entrepreneur are highlighted below when conducting business in Australia.
1. Understanding Visa Status and Its Implications
In Australia, deportation is usually done to non-citizens or in other words, to anyone who is not a citizen of the Australian nation. This includes:
- Certain visas are only held temporarily
- Permanent residents
- Business innovator and investors visa holder
The Australian business owners tend to fit under any of the following visas:
- Business Innovation and Investment (Subclass 188 888)
- Temporary Skill Shortage Visa (subclass 482)
- Temporary Graduate Visa (subclass 485)
- Other temporary visas inclusive of partner visas
In the event when the owner of the business violates the terms of the visa he/she is on, or fails to pass the character requirements, the Department of Home Affairs may cancel the visa and that may result in deportation.
2. Grounds of Deportation
a. Section 501 of the Migration Act 1958 Character Grounds
Section 501 provides that a person may face the cancellation of a visa or a visa can be declined in case he or she fails to clear the character test. A reason may be:
- A large criminal history
- Management of people potentially involved in criminal behaviour
- Pose threat to Australian community
- Participating in such unaccepted behaviour as domestic violence
This was the section that has been employed more and more in the recent years, even on the people who have long time been living in the country or on the people who have been running their own businesses.
b. Visa Violation
The business owner should observe keenly the terms of a visa. Ordinary violations are:
Unauthorised work Engaging in an unauthorised work act
Lack of performance to meet business standards (e.g. minimum turnover or job creation standards of business visas)
False reporting in granting visas
The inability to run the business as per the expected manner or under the specified period of time
Section 116 of the Migration Act may result in visa cancellation due to such breach.
c. National security or the Public Interest
In an unlikely case, suppose the owner of the business has become a threat to the national security, or is engaged in the practices which work against the common good, then he/she could be deported regardless of the type of visa the person carries or the success of the business activity.
3. Deportation threats and Permanent Residents
Other entrepreneurs are on permanent residency on Business Innovation and Investment (Permanent) visa (Subclass 888). Though this is more stable it is not immune to deportation.
Deportation can be applied on permanent residents in the following conditions:
They are a failure of the character test ( particularly in case of Section 501)
They undertake heavy crime activity
Fraudulent information is identified to have been used in granting them visa
It is important to add that permanent residents do not enjoy the same kind of protection as the Australian citizens are against deportation.
4. Business Visa Entrepreneurial Responsibilities
Business innovation (Subclass 188, then later on changed to 888) Entrepreneurs entitled to receive visas must meet certain conditions in order to be granted unrestricted stay in the country these are:
Enrolling in a profitable Australian business
Being active and continuous in running of the business
Passing minimum turnover and employment requirements
Meeting requirements of state or territory nomination
Inability to comply with such requirements can put the visa route into jeopardy and result in cancellation.
5. Is Deportation Challenging?
Yes. In the event your visa is cancelled and you are deported: Although this is a legal process there are ways to have the matter reviewed and appealed and these are:
Appeals to Administrative Appeals Tribunal (AAT)
Federal Circuit and Family Court or Federal Court administrative law review
Intervention of Ministers (with few, special exceptions)
Appeals have specific time limits within which they can be filed and in some instances a decision can be made with a stipulated rule on mandatory cancellation of a visa
(Principally section 501- Cancellation rules) where choice is minimal.
6. Best Practices to Avoid Deportation Risk
There are few proactive measures that entrepreneurs can undertake to make sure that they do not encounter the problem of visas or even being deported:
Don’t break visa regulations strictly
Assess company performance in relation to visa requirements on a regular basis
Stay away by doing no criminal or suspicious association
Use a migration agent or registered immigration lawyer with help in passing the compliance and reporting aspect
Maintain written records of business, turnover, staffing and finances
Immediately respond to Department of Home Affairs mails or inspections
7. Citizenship: The Greatest Safety
Australian citizenship is one of the soundest means of avoiding deportation. After you are naturalised, you cannot get deported (unless of course, in severe circumstances such as the substantiated terrorism related offence where the citizenship may be revoked – which is very seldom the case).
Conclusion
When you are an owner of a business in Australia, this cannot save you against deportation. Entrepreneurs and investors with a visa should be highly alert when it concerns visa conditions, compliance with the law, and character requirements.
When you have an immigration issue, and you are worried about the status, or visa arrangements, or you have received a cancellation notice, you should get immediately legal help. A qualified Perth Migration Lawyer Expert can help you through the possibilities and defend your interest yet, find a way to ensure that your business prospects in Australia are not put in jeopardy.
