Many Visas Are Subject To A ‘No Adverse Information’ Clause. What Is Adverse Information?

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Many Visas Are Subject To A ‘No Adverse Information’ Clause. What Is Adverse Information?

‘No adverse information’. It may seem like a little requirement next to all the other complicated requirements in applying for a visa, but it is no less significant. Adverse information is assessed at every stage of the application – sponsorship approval, nomination and visa application. Adverse information affects the following applications:

  • Standard Business Sponsorship application
  • Temporary Activities Sponsor application
  • Temporary Skill Shortage (TSS) visa (subclass 482) nomination application
  • Temporary Skill Shortage (TSS) visa (subclass 482) visa application
  • Employer Nomination Scheme (ENS) visa (subclass 186) nomination application
  • Employer Nomination Scheme (ENS) visa (subclass 186) visa application
  • Regional Sponsored Migration Scheme (RSMS) visa (subclass 187) nomination application
  • Regional Sponsored Migration Scheme (RSMS) visa (subclass 187) visa application

The Department of Home Affairs (DOHA) must be satisfied that there is no adverse information known about the proposed sponsor or nominator, or a person associated with them, unless it is reasonable to disregard any such information. We discuss the definition of associated with later in the article, as well as when it is reasonable to disregard adverse information.

Be careful! The DOHA can discover adverse information from a vast number of sources, from your application, through other agencies and organisations, any historical profile on you and more.

Adverse information

  • A person has contravened a law of the Commonwealth, State or Territory
  • A person is under investigation, subject to disciplinary action or subject to legal proceedings
  • A person has been a subject of administrative action
  • A person has become insolvent
  • A person has provided bogus documentation or information that is false or misleading in a material particular
  • Other adverse information

Contravened a law of the Commonwealth, State or Territory

This refers to a record of offences or a contravention of a Commonwealth, State or Territory law related to one or more of the matters referred to below:

  • Immigration
  • Discrimination
  • Industrial relations
  • Occupational health and safety
  • People smuggling and related offences
  • Slavery, sexual servitude and deceptive recruiting
  • Child abuse
  • Taxation
  • Terrorism
  • Trafficking in persons and debt bondage

Under investigation, subject to disciplinary action or subject to legal proceedings

If the applicant is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such law, this is would be considered as adverse information, even if they have not been charged. In such a case the DOHA will either send a natural justice letter, inviting the applicant to comment on the adverse information, or will delay processing the visa .

Subject of administrative action

A person has been the subject of administrative action if the Australian Border Force (ABF) has:

  • Barred or cancelled the sponsor due to breaches of their sponsorship obligations in the past,
  • Issued the sponsor with a formal warning for breaching their sponsorship obligations, and/or
  • Issued the sponsors with an infringement notice for breaching sponsorship obligations, or in relation to migration and/or customs offences such as employing illegal workers or individuals in breach of their visa conditions and/or importation offences

It would also include information that the sponsor has:

  • Been issued with an Illegal Worker Warning Notice (IWWN),
  • Failed to comply with their obligations under the Australian Trusted Trader program, or
  • Been issued with an infringement notice by the Fair Work Ombudsman (FWO) for possible contraventions of the Fair Work Act 2009

Bogus documentation or information that is false or misleading

This is covered under PIC 4020 and may result in your being banned from further visa applications for 3 or 10 years.

Read: PIC 4020

Other adverse information

Such information could include but is not limited to:

  • The DOHA has received numerous, similar allegations against the employer in relation to migration fraud, including allegations regarding payment for visa activities which appear to be credible
  • There is adverse information in the public domain, including in the media, that brings into question the person’s suitability as an approved sponsor or nominator
  • The applicant is an employer and there is evidence suggesting that the organisation is in substantial financial difficulty and has outstanding debts that they are unable to pay

Associated with

Adverse information doesn’t only involve the applicant. Any association of the applicant with another person who is discovered to not meet the adverse information criteria will also affect the applicant. Two persons are associated with each other if:

  • They are or were spouses or de facto partners;
  • Are or were members of the same immediate, blended or extended family;
  • They have or had a family-like relationship;
  • They belong or belonged to the same social group, unincorporated association or other body of persons;
  • They have or had common friends or acquaintances;
  • One is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other, or any corporation or other body in which the other is or was involved (including as a director, an officer, employee or member);
  • A third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them;
  • They are or were related bodies corporate ;
  • One is or was able to exercise influence or control over the other; or
  • A third person is or was able to exercise influence or control over both of them

The definition of associated with, as you can see, is rather broad, being that a person or other entity having or being related, linked or connected to each other in some way equates to being associated. This relationship, link or connection may have been a past or current association. It could even include two organisations operating out of the same location.

Reasonable to disregard

As situations are not always cut and dry, the DOHA will provide some leeway in adverse information when it is not serious. What are some examples of when the DOHA may choose to disregard adverse information?

  • The applicant only received a ‘warning’ in relation to their conduct and there is no evidence that they have since been non-compliant
  • The applicant has been barred for a shorter period by the ABF (less than two years) and there is no evidence that they have since been non-compliant since the expiry of the bar
  • The applicant received a more serious penalty for previous action but has:
    • Taken steps to negate the implications of relevant conduct or practices
    • Developed practices and procedures to ensure the relevant conduct is not repeated
  • The applicant has an overall record of ‘good behaviour’ but is being investigated for less serious issues, following receipt of an unsubstantiated allegation
  • The persons to whom the adverse information relates have no influence over the conduct of the applicant’s partnership or association (for example, silent partner)

It is impossible to cover every situation and so as a guideline, the DOHA will consider the following factors when deciding if it is reasonable to disregard any adverse information:

  • The nature and seriousness of the adverse information
  • Whether the adverse information was recent or a long time ago
  • How the adverse information arose, including the credibility of the source of the adverse information
  • Whether the allegations have been substantiated or not, such as whether the person is undergoing investigations or has been convicted
  • Whether the applicant has acknowledged the issues with their previous behaviour and can improve
  • Whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repaying monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not recur
  • Whether the applicant has demonstrated subsequent compliance
  • Whether the conduct of concern is likely to recur
  • Information about relevant findings made by a competent authority on the adverse information
  • Whether there are any compelling circumstances affecting the interests of Australia

Do not make the mistake of thinking that the DOHA will not find out. With the amount of fraud that has occurred over the years and the tightening of visa requirements, it is best to stay on the safe side. Do you think you might be in trouble with this requirement? Book a consultation to speak one of our highly experienced migration specialists. Call +61 2 8054 2537, 0434 890 199 or book online.