Rani (Migration)

This matter concerned an appeal by an applicant for a Subclass 186 (Employer Nomination Scheme) visa, who had been refused by the delegate. The applicant had entered Australia in 2009 and completed various hospitality and cookery courses before working for several employers, ultimately being sponsored by Broad Creations Pty Ltd. The delegate's refusal was based on adverse information, including the applicant's absence from work on two occasions when departmental officers conducted site visits, and allegations that the applicant and her nominator were soliciting supporting testimonials from customers and staff, with the implication that these would be drafted by others for signature. The applicant had also taken maternity leave from October 2016 to November 2018, with her child born in November 2016.

The primary legal issues before the Tribunal were whether the information gathered by the Department constituted "adverse information" for the purposes of regulation 186.223(3A) of the Migration Regulations 1994, and if so, whether it was reasonable to disregard such information. The Tribunal was required to consider the nature of the absences from work and the allegations concerning the solicitation of testimonials in light of the relevant regulatory provisions.

The Tribunal reasoned that the absences from work, explained by sickness and maternity leave, did not necessarily constitute adverse information that could not be disregarded. Crucially, the Tribunal found that the allegations regarding the solicitation of testimonials, which suggested a potential for fabricated evidence, did constitute adverse information. However, the Tribunal also considered the applicant's explanation for her maternity leave, which involved caring for her newborn child and the lack of alternative support. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant's meet the criteria for the visa, including clause 186.223(3A) and clause 186.311 of Schedule 2. The Tribunal also noted that it would not make a decision in respect of the applicant's child born in November 2016.