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TSS 482 visa – Adverse Information

TSS 482 visa – No adverse information

Under TSS visa requirements, the nominator must not have adverse information against them.

Definition of adverse information

The definitions section of the Regulations (reg 1.03) provides that adverse information as any adverse information relevant to a person’s suitability as:

an approved sponsor; or
a nominator.

The regulation provides a non-exhaustive list of types of information about a person that would be adverse. Adverse information about a person includes information that the person:

has contravened a law of the Commonwealth, a State or a Territory
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 (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law*
has become insolvent (within the meaning of s95A of the Corporations Act 2001)
has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.

The sections below provide advice on each of these types of information, as well as other information under policy that the Department would consider ‘adverse’.

Contravention of Australian Law

Adverse information includes information that a person has contravened a law of the Commonwealth, State or Territory.

Information indicating that a person has not complied with Australian law may be declared by the person (for example, in the relevant application form) or be available on Departmental systems or via open source searches.

While not an exhaustive list, this could include a record of offences or a contravention of a Commonwealth, State or Territory law related to:

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.

Note: The regulations separately provide for situations where the person has:

been subject to ‘administrative action’ (for example, been barred, cancelled or warned by the Australian Border Force (ABF))
become insolvent

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

Adverse information also includes information that the person is under investigation, subject to disciplinary action, or subject to legal proceedings, in relation to a contravention of a law of the Commonwealth, a State or a Territory.

Any information declared in the relevant application form, or available on Departmental systems or open source information, which indicates that the person is currently under investigation or going through a legal process in relation to such matters will be considered.

Subject of administrative action

Adverse information includes information that a person has been the subject of administrative action for a possible contravention of a law of the Commonwealth, a State or a Territory by a Department or regulatory authority that administers or enforces the law.

Without limiting the scope of this provision, this includes information on Departmental systems indicating that the ABF has, in relation to a current or former approved sponsor:

barred and/or cancelled the sponsor due to breaches of their sponsorship obligations
issued the sponsor with a formal warning* for breaching their sponsorship obligations (or because some other prescribed circumstance exists or existed for taking action against the sponsor)
issued the sponsor with an infringement notice for breaching sponsorship obligations.

It also includes information that the person has been issued with:

an Illegal Worker Warning Notice (IWWN) for employing illegal workers or individuals in breach of their visa conditions
an infringement notice for committing importation offences
an infringement notice by the Fair Work Ombudsman (FWO) for possible contraventions of the Fair Work Act 2009.

Has become insolvent

The Australian Securities and Investments Commission (ASIC) publishes notices that are required to be published under the Corporations Act, including insolvency and external administration-related notices. These are available at: publishednotices.asic.gov.au.

Bogus documentation or information that is false or misleading in a material particular

Adverse information includes information that a person has given, or caused to be given to the Minister, an officer, the Tribunal or an assessing body:

a bogus document; or
information that is false or misleading in a material particular.

This provision is similar to Public Interest Criterion (PIC) 4020, which is a criterion for the grant of many visas, enabling refusal of a visa if the applicant provides a bogus document, or information that is false or misleading in a material particular.

Unlike PIC 4020, paragraph 1.13A(2)(e) is not restricted to visa applications. Further, it is not limited to false or misleading information or bogus documents provided with the current application, or in relation to a visa that was held in the previous 12 months.

Other adverse information

DHA may identify other information that they consider to be adverse that is relevant to the person’s suitability as an approved sponsor or nominator.

Such information could include:

allegations against the person in relation to migration fraud, for example payment for visa activities, which appear to be credible
adverse information in the public domain, including in the media, which brings into question the person’s suitability as an approved sponsor or nominator
concerns about the financial viability of the person, including outstanding debts (for example, to the Australian Taxation Office) that they are unable to pay
information that a restructuring plan has been proposed to creditors under s95A of the Corporations Act.

‘Associated with’

Two persons are associated with each other if:

they are or were spouses or de facto partners
they 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 (within the meaning of the Corporations Act)
one is or was able to exercise influence or control over the other
a third person is or was able to exercise influence or control over both of them.