Is Your Company at Risk of Adverse Information for a Nomination Application?
If your company is looking to nominate a worker on an Employer Sponsored visa, such as a Temporary Skills Shortage (Subclass 482) visa or an Employer Nomination Scheme (Subclass 186) visa, the company must not have any adverse information against them or anyone associated with the company.
What Constitutes Adverse Information?
The term ‘adverse information’ includes information that the business or a person associated with the business:
has contravened a law
is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law
has been the subject of administrative action for a possible contravention of a law
has become insolvent (within the meaning of s95A of the Corporations Act 2001)
has previously provided to the Department of Home Affairs or another assessing authority a bogus document or information that is false or misleading
has credible allegations against the business in relation to migration fraud, such as payment for visa activities
has adverse information in the public domain, including in the media, which brings into question the business’ suitability as an approved sponsor or nominator
has concerns about the financial viability, such as outstanding debts to the Australian Taxation Office that they are unable to pay
has information that a restructuring plan has been proposed to creditors
If any of the above items apply to your company or have applied to your company in the past, then your business may have adverse information against it. If this is the case, the business must disclose this information to the Department of Home Affairs when lodging a nomination application.
What is the Meaning of ‘Associated with’?
Notably, the existence of adverse information extends to persons who are ‘associated with’ the company. This includes:
Consultants, advisers, partners, representatives on the retainer of the company
Related body corporates (within the meaning of the Corporations Act)
For company directors and/or executives, this extends to their:
Family members, spouses or de facto partners
Members of the same social group
Common friends or acquaintances
If the person in question is or was able to exercise influence or control over the company
We recommend that you conduct thorough checks on all associated persons of your business if you are seeking to nominate a worker, as adverse information against these associated persons may, in turn, be applied against your company.
My Company may be Affected by Adverse Information – What are our Options?
If your company is affected by adverse information, then the nomination application (which is the company side of the application) will be refused unless it is considered reasonable to disregard the adverse information.
There is no set of strict criteria in assessing whether it would be reasonable to disregard information, so each case is dealt with on its own merits.
Nonetheless, Departmental case officers will consider the following guidelines when assessing the reasonableness to disregard:
the nature and seriousness of the adverse information
whether the adverse information arose recently or a long time ago
how the adverse information arose, including the credibility of the source of the adverse information
whether the adverse information has been substantiated, for example, by a formal action or finding by a court, department or regulatory authority, or whether there are investigations or proceedings that are not yet finalised
where the adverse information is an unsubstantiated allegation, the credibility of the information and its source
whether the conduct or circumstance of concern is likely to reoccur (including whether there have been steps taken to guard against this)
whether there are any compelling circumstances affecting the interests of Australia.
Please note that the Department is particularly wary of disregarding serious breaches of legislative protections for employees, such as worker underpayment.
For instance, if your company has repeatedly been found to have underpaid its workers, the Department of Home Affairs is less likely to disregard the adverse information.
By contrast, if your company was found to be in breach of work health and safety legislation 4 years ago, for instance, but has provided evidence to show it has since complied with all relevant requirements and has not breached any further legislative criteria, then it would likely be reasonable to disregard in this case.
One of our client's success stories: Subclass 186 Visa Granted Despite Adverse Information Claim
How Can Agape Henry Crux Help
If your company is looking to nominate a worker on an Employer-sponsored visa but you have concerns about whether you have adverse information, Agape Henry Crux's Accredited Specialist Immigration Lawyers and the team of immigration lawyers and migration agents specialise in handling highly complex matters. You can book one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin, and Malay. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.