Subclass 186 Visa Granted Despite Adverse Information Claim
The following case study is about Mamak Chatswood Pty Ltd who sponsored by one of their employees, Shernice (full name redacted for confidentiality reasons) under the Subclass 186 visa Direct Entry Stream.
Background of Mamak’s Subclass 186 Nomination for Direct Entry Case
The issue with this case is due to the adverse information known to immigration about the nominator or a person associated with the nominator.
Mamak Chatswood Pty Ltd was incorporated on 14 Nov 2016. According to the doctrine of corporate personality, Mamak Chatswood Pty Ltd is a separate legal entity from its individual shareholder(s) and from Mamak Pty Ltd to whom the potential adverse info is attributed. Nevertheless, the director of Mamak Chatswood Pty Ltd is also the shareholder of Mamak Pty Ltd hence, although there is no adverse info in relation to Mamak Chatswood Pty Ltd as an entity, the Director of Mamak Chatswood Pty Ltd is the associated person of Mamak Pty Ltd which has adverse information.
Nomination application was lodged to the Department of Home Affairs on 09 March 2018. Hence, we need to look at the law as of current on 09 March 2018.
The Law As of 09 March 2018 In Relation to Subclass 186 Direct Entry and Adverse Information
Reg 5.19 outlines the nomination requirement for 186 DE stream. Subregulation 5.19(4)(f) states that the requirement for nomination application is considered to be met if there is no adverse information known to immigration about the nominator or associated person with the nominator or if there is indeed adverse information, it is reasonable to disregard such info.
The definition of adverse information can be found in Reg 1.13A and Reg 1.13B.
Requirements for approval—general
(4)
(f) either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
Reg 1.13A Meaning of adverse information
(1) Adverse information is any adverse information relevant to a person’s suitability as:
(a) an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19); or
(c) a maker of a nomination in accordance with a labour agreement;
and includes information that the person, or a person associated with the person:
(d) has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or
(e) has, to the satisfaction of a competent authority, acted in contravention of such a law; or
(f) has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or
(g) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
(h) has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
(2) The matters are the following:
(a) discrimination;
(b) immigration;
(c) industrial relations;
(d) occupational health and safety;
(e) people smuggling and related offences;
(f) slavery, sexual servitude and deceptive recruiting;
(g) taxation;
(h) terrorism;
(i) trafficking in persons and debt bondage.
(3) The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs
(1)(d) to (h) must have occurred within the previous 3 years.
(4) In this regulation:
competent authority has the meaning given by subregulation 2.57(1).
Reg 1.13B Meaning of associated with
(1) A person (the associated person) is associated with another person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity.
(2) A person (the associated person) is associated with another person that is a partnership if the associated person is a partner of the partnership.
(3) A person (the associated person) is associated with another person that is an unincorporated association if the associated person is a member of the association’s committee of management.
(4) A person (the associated person) is associated with another person that is an entity not mentioned in subregulations (1) to (3) if the associated person is an officer of the entity.
(5) In this regulation:
entity, in relation to an associated entity, includes:
(a) an entity within the meaning of section 9 of the Corporations Act 2001; and
(b) a body of the Commonwealth, a State or a Territory.
officer:
(a) for a corporation—has the same meaning as in section 9 of the Corporations Act 2001; and
(b) for an entity that is neither an individual nor a corporation—has the same meaning as in section 9 of the Corporations Act 2001.
related body corporate has the same meaning as in section 50 of the Corporations Act 2001.
Agape Henry Crux’s Argument on Adverse Information Claimed by the Department
Unlike 186 Temporary Transition Stream, Direct Entry involves a little more steps – i.e. obtaining positive skill assessment under the nominated occupation, 3 year full time experience and competent English
In terms of arguments we put forward to the case officer in relation to the adverse information being reasonable to disregard is that the relevant member (i.e. director of Mamak Chatswood Pty Ltd) has no influence over the conduct of the association’s business (Mamak Pty Ltd); Mamak Chatswood Pty Ltd has taken steps to negate the implications of relevant conduct or practices; and Mamak Chatswood Pty Ltd has developed practices and procedures to ensure the relevant conduct was not repeated.