CONCREST DEVELOPMENT PTY LTD (Migration)

[2017] AATA 857

CONCREST DEVELOPMENT PTY LTD (Migration) [2017] AATA 857 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CONCREST DEVELOPMENT PTY LTD

CASE NUMBER:  1605466

DIBP REFERENCE(S):  BCC2015/4005515

MEMBER:Alan McMurran

DATE: 7 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.

Statement made on 07 June 2017 at 10:08am

CATCHWORDS

Migration – Standard Business Sponsor – Training benchmark B – Payroll inconsistency – No expenditure of at least 1% of payroll on training

LEGISLATION

Migration Act 1958, s 140E

Migration Regulations 1994, r 2.59(d), r 2.61

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 March 2016 not to approve the applicant as a standard business sponsor.

2. The applicant applied for approval as a standard business sponsor under s.140E of the Migration Act 1958 (the Act) and r.2.61 of the Regulations on 22 December 2015.

3. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59 (d) of the Migration Regulations 1994 (the Regulations) because the applicant has not provided sufficient evidence to demonstrate recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to Australian citizens and Australian permanent residents who are employees of the business.

4. The applicant appeared before the tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal received oral evidence from Mr Stephen Lam and Mr Jing Xi. The applicant was represented by Mr Stephen Lam, the Managing Director and authorised to appear on behalf of the applicant.

5. The applicant was not represented in relation to the review by its registered migration agent, who did not appear at the hearing. The witnesses did not require the assistance of an interpreter, although there was one present throughout the hearing.

6. For the following reasons, the tribunal has decided to affirm the decision under review not to approve the applicant as a standard business sponsor.

7. For the hearing, the applicant relied upon a number of documents supplied in support of the calculation of the payroll as well as on expenditure by the applicant on training. During the hearing, reference was made to these documents, which are referred to below in these reasons.

8. At the end of the hearing the applicant asked for some additional time to make any further submissions or provide any further documents and was requested to do so on or before 4 May 2017. The purpose of making further submissions was to allow the applicant an opportunity to address any concerns raised during the hearing as to the amount of the payroll and the amount of expenditure on training as claimed by the applicant. The applicant asked for an extension of time to provide further information, and was granted an extension until 11 May 2017.

   POST-HEARING SUBMISSIONS

9. On 11 May 2017, the tribunal received from the applicant’s representative an email with seven attachments, which included a Westpac bank statement showing a number of withdrawals, a tax invoice from BJ computer services for IT support and training issued 17 October 2016, BAS summaries for the period April 2016 to March 2017, and a personal statement from Stephen Lam. The tribunal had regard to these and the earlier documents as referred to below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue is whether the applicant meets the requirements for approval as a standard business sponsor in accordance with the criteria in r.2.59. For the application to be approved, all the requirements in r.2.59 must be met: s.140E (1).

11. If any one of the requirements in r.2.59 is not met, it is not necessary to consider all the remaining requirements of that Regulation, and for the reasons set out below, in this instance the applicant is unable to meet the criteria in r.2.59 (d). The remaining requirements in r.2.59 are therefore not considered.

12. Where the applicant is lawfully operating a business in Australia and has traded in Australia for 12 months or more, regulation 2.59(d) requires that the applicant meets the Benchmarks for the training of Australian citizens and Australian permanent residents specified in an Instrument in writing made for the paragraph. That Instrument is referred to below.

13. The 12 month period under review by the Department was from 1 January 2015 to 31 December 2015, the application having been lodged by the applicant on 22 December 2015.Details of more recent figures provided by the applicant post-hearing for its payroll, included the period to 31 March 2017. The more recent figures show a smaller payroll, the most recent in 2017 to date in the sum of $117,082, whereas the comparative 2015 figure according to the 2015 BAS statements was $268,697. The reliance upon BAS figures, which were not audited or receipted by the Australian Tax Office against other figures provided by the applicant, is dealt with below in these reasons. This review has had regard to both the 2015 payroll figures as evidenced by BAS statements provided by the applicant before the hearing, and the 2016/17 updated BAS figures provided after the hearing..

14. In this review the tribunal has also had regard to the file from the Department, the Tribunal’s file, and the oral evidence presented.

15. If the applicant has traded in Australia for 12 months or more, the applicant must meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in a written instrument: r.2.59 (d). The relevant instrument is IMMI 13/030. If the applicant has traded for less than 12 months, the applicant must have an auditable plan to meet the benchmarks specified in that relevant instrument: r.2.59 (e).

16. The tribunal finds that the evidence discloses the applicant company was first registered in 1997 and has traded continuously since that time in Australia. The tribunal has had regard to the certificate of the registration of a company provided by ASIC, which states the company registration commenced on 24 March 1997. The Tribunal put to the director at hearing questions about the trading history which were confirmed by the director and which the Tribunal accepted. The Tribunal finds that the company has been operating a business in Australia for more than 12 months.

17. The regulation requires that a business lawfully operating in Australia for 12 months or more must meet the benchmarks for the training of Australian citizens and Australian permanent residents. Those benchmarks are set out in schedule A to the instrument, IMM I 13/030.

18. Schedule A contains two benchmarks.

    1.Benchmark A referring to payments allocated to an industry training fund that operates in the same industry as the applicant, and

    2.Benchmark B referring to recent expenditure by the applicant to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business.

19. In this instance, the applicant states that it makes no payments to an industry training fund that operates in the construction industry, being the industry in which the applicant operates. No evidence was presented of payments to an industry training fund and the Tribunal finds that no such payments are made.

20. The only relevant Benchmark to apply in this instance is Training Benchmark B. That Benchmark requires recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, and such expenditure may include payment as follows:

    1.paying for a formal course of study for the business employees who are Australian citizens and Australian permanent residents or for TAFE or university students as part of the organisational training strategy;

    2.funding a scholarship in a formal course of study approved under the Australian qualifications framework for the business employees who are Australian citizens and Australian permanent residents or for TAFE or university students as part of the organisational training strategy;

    3.employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business:

    4.employment of a person who trains the businesses Australian employees who are Australian citizens and Australian permanent residents is a key part of their job;

    5.evidence of payment of external providers to deliver training for Australian employees:

    6.on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:

    i.the learning outcomes

    ii.how the progress of the employee will be monitored and assessed

    iii.how the program will provide additional and enhanced skills

    iv.the use of qualified trainers to develop the program and set assessments

    v.the number of people participating and their occupation

21. Training Benchmark B further provides that the following cannot count as expenditure related to such training and is excluded:

    1.Delivered on-the-job but other than training which meets the requirements outlined above;

    2.Confined to only one or a few aspects of the businesses’ broader operations:

    3.Only undertaken by persons who are not Australian citizens or permanent residents

    4.Only undertaken by the persons who are principals in the business or their family members

    5.Only relating to a very low skill level having regard to the characteristic and size of the business

    MR STEPHEN LAM

22. The managing director, Mr Lam, was asked about the current employees of the business. He stated that those employees comprise the following: –

    1.Mr Lam as Managing Director and who is both a licensed builder and qualified architect, and the following family members.

    2.Mr Herbert Lam, an engineer;

    3.Mr Leslie Lam, an architect;

    4.Mrs Jesse Lam, bookkeeper;

    Other employees include

    5.Mr Ben Lim, Cadet engineer;

    6.Mr Stephen Choong, Carpenter;

    7.Mr Chris Shipway, site foreman;

    8.Mr Ji, who is a part-time assistant to the Managing Director and who as the nominee, the applicant seeks to employ full-time as a Project Builder on a salary of $60,000 per annum.

    9.In addition, there are a number of sub-contractors independently engaged for different projects from time to time. Mr Lam thought the subcontractors were not engaged as employees.

    PAYROLL FOR THE PURPOSES OF TRAINING BENCHMARK B

23. The tribunal asked Mr Lam about the payroll of the business. The tribunal pointed to the summary of the BAS amounts for wages for 2015 in a total sum of $268,697. By comparison the BAS declarations produced post-hearing show a total for salary wages and other payments from 1 April 2016 to 31 March 2017 of $117,082. The post hearing submission says the payroll is now less because some projects are nearing completion. The information provided does not show the amounts paid to family members or to other employees on an individual basis and has not been confirmed by the ATO, and there is no evidence those statements were as presented to the ATO. No PAYG records have been produced and there are no current contracts of employment against which payroll records might be checked.

24. The tribunal asked Mr Lam if the draft BAS statements produced with the documents have been reviewed by the ATO. Mr Lam responded that he was not aware, as the lodgement of the BAS was completed by the accountants for the business in company with information provided by his wife Jesse. He did not have the ATO review documents or confirmed assessments.

25. Mr Lam was asked whether he thought that figure was accurate. Mr Lam responded that he thought it was, and his attention was drawn to another document, being the Certificate of Currency from the workers compensation insurer, Employers Mutual. This document required the employer to estimate the size of its payroll for the purposes of estimating an insurance premium.

26. The Certificate of Currency states that the wages statement includes 5 employees and is for a sum of $321,873. This figure is significantly different to the BAS figures provided for the same period as set out above, although it purports to represent the payroll of the applicant in the 2015 year.

27. Mr Lam was asked questions about how much was paid to each of the family members as employees. Mr Lam stated that the accountant works that out, depending upon whether it has been a good year or not for the business.

28. Mr Lam was then asked how it was determined what information would be provided to the ATO and to complete the BAS for each quarter for the business, and statements as to the payroll. Mr Lam again responded that it was for the accountant to work that out.

29. Mr Lam was asked to confirm what was being paid to Mr Ben Lin. Mr Lam agreed that the amount being paid was the sum of $39,400 as stated by Mr Lin in a PAYG summary produced with the business records of the applicant.

30. Mr Lam was asked where the tribunal might find evidence of the contract for Mr Lin and the other employees and Mr Lam responded that there were no formal written contracts of employment with the family members, or the other employees including Mr Lin. There were no written agreements as to salary or payments made to employees.

31. Mr Lam confirmed that each of the family members were Australian citizens. Mr Lin is also an Australian citizen. Mr Lam was asked whether salaries or amounts paid to the family members and Mr Lin were included in the wages determined for workers compensation premium assessment, or for the BAS assessment. Mr Lam said that he did not know for certain, although he assumed that they were. Mr Lam however was unable to identify what amounts were paid to each of the individuals, other than to Mr Lin which he confirmed was $39,400. The tribunal notes that following the hearing, the particulars in relation to the payment of individual wages have not been clarified by the provision of the more recent BAS statements, and it is not possible to determine who has been included in the payroll for BAS purposes.

32. Mr Lam was asked about how he came to employ Mr Lin whom he had recruited after placing an advertisement at the University of New South Wales for a cadet engineer. This was in approximately 2012 when Mr Lin was completing his final year of studies. Mr Lam thought that in 2012 he had agreed to pay Mr Lin an annual salary of $25,000. Mr Lam thought that salary had now increased since 2012 in the period to 2017, to an annual salary of approximately $50,000 for Mr Lin.

33. In answer to questions from the tribunal, Mr Lam was unable to reconcile the difference between the payroll totals provided in the BAS draft statements ($268,697) and the Certificate of Currency($321,873), together with the statement made by the accountant for the business in a letter dated 15 December 2015, which states the gross payroll for the period ending 30 June 2015 was a sum of $78,295, and Mr Lam’s own assessment in his application to the Tribunal in November 2015 stating the payroll was $88,500.The tribunal explained to Mr Lam that it was having difficulties understanding these discrepancies, which were significant and that it was an important matter in order to determine what the correct figure was for the payroll and the calculation of training expenditure at 1%.

34. Mr Lam was unable to confirm who was actually included in the payroll assessment although he thought it must include amounts paid to sub-contractors, as he could not confirm what amounts if any were paid to family members. He was also unable to explain the contradiction in the figures provided other than to say words to the effect that it was the accountant’s job to work out the figures. No figure was provided for any more recent payroll estimate given to the Workers’ Compensation insurer, other than the one referred to above ($321,873).

35. In calculating the percentage of payroll spent on training, using 1%, and applying it to the above figures, the amount of 1% could range from $782.95 up to $3,218.73, depending upon which figure might be correct for the payroll. Taking into account the most recent BAS figures provided by the applicant on 11 May 2017, which was a total sum of $117,082, if the tribunal accepted that as a figure, 1% would be $1,171 (rounded) of the most recent figures provided to March 2017.

36. Considering all of the above and the discrepancy in the figures provided by the applicant as to what the correct payroll figure might be, the tribunal is not satisfied that the applicant has demonstrated an amount for payroll which the tribunal could rely upon as the figure against which calculation for training expenditure might be assessed.

    AMOUNTS CLAIMED AS SPENT BY THE BUSINESS ON TRAINING 

37. As the tribunal is unable to determine what the correct figure is for the payroll, it follows that the tribunal cannot determine a correct amount for training expenses calculated at the rate of 1%. Some considerable time was taken up at hearing over the claimed training expenses and for the reasons set out below those expenses are not accepted by the tribunal as training expenses within the meaning of Benchmark B.

38. Mr Lam was asked questions about what constituted the training amounts spent by the business for Australian employees or Australian permanent residents. He stated that those amounts did not include family members and the amounts were paid solely in respect of one Australian employee, Mr Ben Lin.

39. Mr Lam confirmed those amounts were for the following 4 payments:

    1.A computer training course in the sum of $2000, which was in fact attended by Mr Lin and by all family members;

    2.A cash sum of $1000 paid to Mr Lin to reimburse him for expenses he incurred in a trip to Korea, where he purchased documents and photographs;

    3.Reimbursing Mr Lin for payments for airfares and accommodation for a trip to Korea in October 2015; those payments totalled $417 for accommodation for 10 days in Seoul and Busan, and $1329.14 for return airfares;

    4.Reimbursement to Mr Lin for attendance by him at an IELTS training course conducted in July 2015, in a sum of $1100.

40. The tribunal accepts that the only Australian employee for whom training was provided is Mr Lin. Mr Lam was asked questions about the purpose of Mr Lin’s trip to Korea. Mr Lam said that Mr Lin approached him and said he wanted to have a holiday and travel to Seoul. Mr Lam suggested to him that he should make it a working holiday and spend a couple of days studying and suggested that he consider looking at some projects doing medium to high density construction and other issues such as the environment.

41. Mr Lin made his own enquiries about working on his holiday. Mr Lam said that he left it up to Mr Lin to make the necessary arrangements. He said that Mr Lin contacted a company in Seoul. That company was Inchang Engineering and Construction Co Limited. Mr Lam said that he left it up to Mr Lin to make whatever arrangements he could. There were no goals set or learning outcomes identified by either Mr Lin or Mr Lam. Mr Lam understands that there was no payment made to that company for any training undertaken by Mr Lin. Mr Lam understood that Mr Lin had spent one day on a construction site in Seoul and another day on a construction site in Busan as a guest of that company. Mr Lam confirmed that the company did not make any direct payments for any training from Inchang. On his return to Australia, Mr Lin told Mr Lam about the trip and the 2 work visits and subsequently prepared a report which has been provided with the documents produced for this application. The report is titled Korea Study Tour Report for 12 October 2015 and 14 October 2015.

42. Mr Lam confirmed that the trip was primarily a holiday for Mr Lin and that the site visits were not part of any work being completed or performed by the business or for the business. Mr Lam also confirmed that the information acquired by Mr Lin in visiting two sites was information readily available to Mr Lin in Australia. The purpose of the visits and the information obtained by Mr Lin had not been discussed with Mr Lam beforehand.

1. Mr Lam confirmed that he reimbursed Mr Lin a sum of $1000 in cash from the company’s bank account as confirmed by a CBA bank statement produced. Mr Lam thought there would have been receipts or invoices produced for that sum, but none were available to the tribunal in this review. Mr Lam submitted that the reimbursement in cash to Mr Lin should be regarded as money spent on training by the company.

2. The tribunal notes it is now claimed in the post-hearing submissions that a Westpac bank statement (not the CBA records produced earlier) provides the “training payment record” for a period from 09 Sep 2016 to 8 Dec 2016. The amounts summarised in the Westpac statement are not detailed and are not explained as specifically for “training” and do not cover the 4 training expenses claimed by Mr Lam, and the tribunal places very little weight on that document as evidence of amounts spent on training by way of reimbursement to the Australian employee, Mr Lin.

3. The tribunal does not accept the sum of $2,000 spent on “computer training” in the invoice from BJ Computer Services, which included family members as well as Mr Lin, was training as an expense within Benchmark B. The Tribunal put questions to Mr Lam at the hearing as to the nature of the computer training. The invoice does not specify what the training involved, where it was held, or for what purpose. The invoice provides no information at all other than the cost. Mr Lam was unable to recollect the details of the training although he said that all members of the family were present, as well as Mr Lin. No training goals or outcomes were identified.

4. On a fair reading of the instrument, IMMI 13/030 provides examples of expenditure which might be included for the purposes of counting expenditure as training, such as paying for a formal course of study, funding a scholarship in a formal course of study, employing apprentices, trainees or recent Australian graduates, employing persons who might train the businesses’ Australian employees and on-the-job training for Australian employees, which involves training which is structured with learning outcomes identified, progress monitored and assessed and where the program provides additional and enhanced skills for those Australian employees.

5. It is reasonable to assume that an employer would maintain and keep accurate records of expenditure on any training for its employees, which records might identify the nature of the training and goals and objectives outlined and achieved, and especially so where such expenditure might be intended to be relied upon to support a sponsorship application. In discussing the issue at hearing, Mr Lam was unable to identify such training records and he relied upon his explanation that it was up to the trainee who was to benefit from the training to make records accordingly, as in the case of Mr Lin’s trip to Korea and the ensuing report prepared by him.

   MR XIANG JI

6. Mr Ji was asked about his relationship with the business and his employment and confirmed he had been introduced to the company in about mid-2015. He was a graduate looking for work and Mr Lam stated that although he was very busy, he thought he would help him out and give him a hand to find a job.

7. Mr Lam offered him temporary employment for approximately 2 months working in the office of the business at Rosebery. At the end of that period towards the end of 2015, Mr Lam had formed a favourable view about the nominee and suggested to him that if he wanted to stay on permanently he would seek to become a sponsor for him to be employed full-time. Mr Lam discussed with Mr Ji a salary of $50-$55,000 per annum, indicating he thought this was a starting salary for a graduate as Mr Ji had knowledge, but not much experience. Mr Lam indicated he would be unable to pay him more than that amount. Mr Lam indicated that employment would be contingent upon a successful sponsorship application.

8. In his own evidence, Mr Ji confirmed that he was on a part-time salary at the time in July 2015 of approximately $400 per month and intending to take up full-time employment with the applicant in the business on a salary of approximately $55,000 per annum.

9. In discussion with Mr Ji, he agreed with the comments made by the managing director about his trip to Korea and his evidence was consistent with what had been said by Mr Lam. He confirmed that he had made no payments for training himself, and that the trip was primarily a holiday and that he had himself arranged to visit a construction company in Korea during his time there.

   FINDINGS

10. The applicant is required to demonstrate that it has a payroll against which the tribunal can assess the figure of 1% as required under the regulation 2.59 (d).

11. In this review the tribunal has paid careful attention to the matters discussed at the hearing with Mr Lam and the documents produced by the applicant both before and after the hearing. The tribunal has regard to all the facts and circumstances including those documents and the oral evidence of both Mr Lam and Mr Ji.

12. The tribunal is not satisfied the correct figure for the applicant’s payroll for the relevant period is an amount of $88,500 as claimed by Mr Lam for at least 5 people. Nor is the tribunal satisfied that the correct figure is the sum of $78,295 as provided by the accountant. It appears to the tribunal that these figures have been kept as low as possible in order to bring the applicant within a possible threshold for a training expense of 1% based on those amounts.

13. Taking into account the figures provided to the Workers’ Compensation insurer and the figures prepared in the BAS statements for the ATO as recently as March 2017, the amount in the tribunal’s view is more likely to be in the range of $117,082-$321,873. 1% of these amounts would range from $1,171-$3,218.Inconsistency between the figures produced both for the tribunal in the application, and the statements made variously by the accountant and to the workers compensation insurer and in the BAS statements and on the oral evidence of Mr Lam, have not been explained. The recent statement that the payroll inconsistency might be explained by projects “nearing completion” is unsupported by any evidence of those projects, or how and when they commenced or are to be completed, what was involved in terms of employees and /or contractors and by whom or when work by employees was done. No evidence is provided of the contractors or sub-contractors employed or engaged from time to time on those projects and the tribunal is unable to determine a reliable figure which might form the basis for the training expenditure calculation.

14. The variation in the figures provided is substantial. Between the amount provided by the accountant in the sum of $78,295 and the various BAS figures and the figure provided in the Certificate of Currency to the insurer in a sum of $321,873, the tribunal is unable to determine what is the correct figure for the payroll. The latter figure is reportedly for only 5 employees, which is clearly not correct as the evidence of Mr Lam demonstrates when he concludes that it must incorporate a number of subcontractors (who are not identified), family members whose annual payments are not specified and other employees such as Mr Lin, Mr Choong and Mr Shipway, all of whom add up to considerably more than 5 employees. The fact that the applicant was unable to identify at the hearing the documents which might accurately reflect the figure for payroll and that reliance was placed instead on the accountant “to work that out” is not a satisfactory explanation for the inconsistency in the figures provided

15. In considering the evidence claimed by the business for expenditure on training for the one Australian employee, Mr Lin, the tribunal could not be satisfied that the expenditure was in fact for on-the-job training, that was structured within a defined time frame and which identified an increase in skills acquired by the employee. No learning outcomes have been identified, monitored or assessed and there is no clear evidence of what additional or enhanced skills were acquired by Mr Lin. This is true for each of the 4 claimed expenses being the computer training, the cash reimbursement after the holiday, the payment towards the holiday airfares and accommodation, and attending an IELTS course.

16. The tribunal finds it is not satisfied that the applicant has spent 1% of the payroll of the business in the provision of training to an Australian employee, namely, Mr Lin.

17. The requirements set out in IMMI13/030, Benchmark B, include examples of expenditure which are not exhaustive but which can count towards training. The Tribunal has considered those examples as referred to above. No other examples have been provided by the applicant nor demonstrated as being relevant in the evidence presented to the tribunal and which it might consider in terms of expenditure on training. None of the examples illustrated in the instrument itself applies in this instance.

18. Even if the tribunal was to accept the claim that the most recent business payroll to March 2017 was in a sum of $117,082, the tribunal is not satisfied on the evidence that the applicant can demonstrate recent expenditure to the equivalent of at least 1% ($1,171) on training it’s Australian employee (Mr Lin), who is the only employee on whose behalf it is claimed the training amount was expended.

19. For these reasons the tribunal is not persuaded that the applicant has expended at least 1% of its payroll of the business in the provision of training to an Australian citizen or permanent resident as an employee of the business.

20. As the applicant is required to meet r.2.59 (d) and given the above findings, the requirements in r.2.59 (d) are not met.

    CONCLUSION

21. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

22. The tribunal affirms the decision not to approve the applicant as a standard business sponsor.

    Alan McMurran
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    2.59    Criteria for approval as a standard business sponsor

    For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:

    (a)the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and

    (b)the applicant is not a standard business sponsor; and

    (c)the applicant is lawfully operating a business (whether in or outside Australia); and

    (d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and

    (e)if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument, in writing, made for paragraph (d); and

    (f)if the applicant is lawfully operating a business in Australia:

    (i)  the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated chaser the during will you hopefully will will be very patient so stronger sorted as quickly as possible is what we would all you you will say so you are you will you or the union last you will for the you are 97 so you are that will a is a commitment to, employing local labour; and

    (ii)  the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment practices; and

    (g)either:

    (i)     there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and.

    (h)if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia – the applicant is seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or proposed applicant (the visa applicant) for a [Subclass 457 visa], and the applicant intends for the visa holder or visa applicant to:

    (i)     establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or

    (ii)    fulfil, or assist in fulfilling, a contractual obligation of the applicant.

    (i)the applicant has provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor, and:

    (i)     the proposed number is reasonable, having regard to the information provided to the Minister; or

    (ii)    if the Minister proposes another number of persons as part of considering the application — the applicant has agreed, in writing, to nominate no more than the other number of persons during the period of the applicant’s approval as a standard business sponsor; and

    (j)if the applicant has previously been a standard business sponsor:

    (i)     the applicant:

    (A)fulfilled any commitments the applicant made relating to meeting the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; or

    (ii)    it is reasonable to disregard subparagraph (i).

    [Note …]

    2.60S Additional criteria for all classes of sponsor — transfer, recovery and payment of costs

    (1)For subsection 140E(1) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.59 to 2.60M.

    (2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:

    (a)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and

    (b)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and

    (c)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (d)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (e)…

    (f)....

    (3)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:

    (a)the applicant has not recovered from another person some or all of the costs, including migration agent costs:

    (i)     associated with the person becoming an approved sponsor; or

    (ii)    that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (b)the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:

    (i)     associated with the person becoming an approved sponsor; or

    (ii)    that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (c)…

    (d)…

    (4)However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.