UNITED PHYSIOTHERAPY GROUP PTY LTD (Migration)

[2017] AATA 204

UNITED PHYSIOTHERAPY GROUP PTY LTD (Migration) [2017] AATA 204 (9 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  UNITED PHYSIOTHERAPY GROUP PTY LTD

CASE NUMBER:  1509117

DIBP REFERENCE(S):  BCC2015/1097343

MEMBER:Danica Buljan

DATE:9 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2017 at 4:00pm

CATCHWORDS

Migration – Standard business sponsor – Training benchmarks – No response to hearing invitation – No payments to industry training fund – No evidence of employee training

LEGISLATION

Migration Act 1958, ss 140E, 353, 359, 360, 363, 379A
Migration Regulations 1994, rr 2.61, 2.59, 2.60, IMMI 13/030

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429

Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Moller v Minister for Immigration and Citizenship [2007] FMCA 168

Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

Visnumolakala v Minister for Immigration [2006] FMCA 1209

Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596

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 7 July 2015 not to approve the applicant as a standard business sponsor.

2. The applicant applied for approval as a standard business sponsor under section 140E of the Migration Act 1958 (‘the Act’) and regulation 2.61 of the Migration Regulations 1994 (‘the Regulations’) on 13 April 2015. The delegate decided not to approve the application on the basis that the applicant did not satisfy the relevant training benchmarks for the purposes of subregulation 2.59(d) of the Regulations. This was on the basis that the applicant had not sufficiently demonstrated recent expenditure of at least 1% of its payroll on the provision of training to its employees who are Australian citizens and Australian permanent residents.

3. On 7 July 2015 the applicant applied to the Tribunal for review of the delegate’s decision, and included a copy of the primary decision record with the review application.[1]

   [1]     MRT case file 1509117 (T1), f.1-5

4. The matter was constituted to the Presiding Member on 11 January 2017. The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]

   [2]     D1 - Departmental file BCC2015/1097343, folio numbered 1-113   

   [3]     T1 - MRT case file 1509117, folio numbered 1-33

   The Tribunal Invitation to Provide Information

5. On 23 January 2017[4] the Tribunal invited the applicant under subsection 359(2) of the Act to provide information that confirmed that its business met all the criteria in regulations 2.59 and 2.60S of the Regulations. This included information relevant to subregulation 2.59(d), which was the basis upon which the delegate had decided not to approve the application.

   [4]     T1, f.40-45

6. In addition, copies of regulations 2.59 and 2.60S and Legislative Instrument IMMI 13/030 were included with the Tribunal letter for the applicant’s information. The Tribunal letter also stated that the requested information should be received by 6 February 2017.

7. However, the applicant did not provide the requested information within the prescribed period. Nor did it otherwise provide any response to this Tribunal letter, or request additional time in which to provide the requested information to the Tribunal.  

   The Loss of the Right to a Hearing before the Tribunal

8. The Tribunal notes that the invitation to provide information under subsection 359(2) of the Act was sent to the last address for service provided by the applicant in connection with the application for review. The Tribunal also has evidence indicating the date of dispatch in accordance with section 379A of the Act.[5]

   [5]     T1, f.24-29

9. As the applicant has failed to provide the requested information before the time for giving it has passed, subsection 359C(1) applies and the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, as subsection 359C(1) applies to the applicant, subsection 360(3) states that the applicant is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something it is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

10. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[6]

    [6]     See Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498; Yang v Minister for Immigration and Citizenship [2010] FMCA 890

11. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost its right to appear before the Tribunal to give evidence and present arguments relating to the review application.

12. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its review application.

13. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[7] and Manna v Minister for Immigration and Citizenship[8] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[9] regarding the reasonableness of any request for an adjournment, as well as the recent Full Federal Court decision in Minister for Immigration and Border Protection v Singh[10] which also considered this issue.

    [7] [2002] FCA 617

    [8] [2012] FMCA 28

    [9] [2013] HCA 18 (8 May 2013)

    [10] [2014] FCAFC 1 (4 February 2014)

14. In this case, the applicant provided a copy of the primary decision record with the application for review it lodged on 7 July 2015. The applicant also provided a submission dated 8 July 2015[11] stating the reasons it believed that the applicant met the relevant training benchmarks in subregulation 2.59(d). Accordingly, the Tribunal observes that the applicant has been aware of the reasons for the refusal of its application for approximately 19 months at the time of the Tribunal decision.    

    [11]    T1, f.12-17

15. In addition, the Tribunal notes that as at 23 January 2017 the applicant had not contacted the Tribunal since 8 July 2015. As a result, the Tribunal wrote to the applicant on 23 January 2017 under subsection 359(2) inviting it to provide further information to demonstrate that it meets the requirements of subregulation 2.59(d). This invitation clearly stated that the Tribunal should receive the requested information by 6 February 2017. However, there was no response to this invitation.

16. In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the requirements of regulation 2.59.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the applicant meets the requirements for approval as a standard business sponsor in accordance with the criteria in regulation 2.59 and the additional criteria in regulation 2.60S, which must be satisfied regardless of when the application for approval was made. For the application to be approved, all the requirements must be met: subsection 140E(1).

    Training benchmarks

19. Subregulations 2.59(d) and (e) contain alternative criteria relating to training requirements that an applicant must satisfy if the applicant is lawfully operating a business in Australia, depending on how long the applicant has been trading. Specifically:

    ·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: subregulation 2.59(d). The relevant instrument is IMMI 13/030;  

    • If the applicant has traded in Australia for less than 12 months, the applicant must have an auditable plan to meet the benchmarks specified in that relevant instrument (IMMI 13/030): subregulation 2.59(e). 

20. In its application form the applicant advised that it trades as ‘United Physiotherapy Group’ in South Yarra, Victoria. It also set out its Australian Business Number (ABN) and Australian Company Number (ACN).[12]  Publicly available records from the Australian Business Register and ASIC confirm that this is a registered Australian company that has been active in Australia since 9 December 2002.[13]     

    [12]    D1, f.6

    [13]    T1, f.18-21

21. Accordingly, the Tribunal finds that the applicant has traded in Australia for 12 months or more and, therefore, it must meet the training benchmarks set out in IMMI 13/030 for the purposes of subregulation 2.59(d).

22. Notably, the training benchmarks specified in IMMI 13/030 require the applicant to demonstrate ‘recent expenditure’ by the business on training. This concept is not defined in the legislation.

1. According to the Macquarie Dictionary Online the word ‘recent’ is variously defined to mean: “1. of late occurrence, or origin; lately happening, done made etc.: recent events; 2. not long past, as a period; 3. belonging to such a period; not remote or primitive”.[14] The word ‘expenditure’ is relevantly defined to mean: “1. the act of expending; disbursement; consumption; 2. that which is expended; expense.”[15]

   [14]   T1, f.30 - Accessed 9 February 2017

   [15]   T1, f.31

2. Therefore, the wording of subregulation 2.59(d) would appear to favour the view that the training expenditure incurred by the applicant should not have taken place at some distant time in the past. However, the wording of this provision does not indicate at what point in time the assessment that the applicant meets the training benchmarks specified in IMMI 13/030 should be undertaken. In other words, subregulation 2.59(d) does not stipulate whether this assessment is to be made at the time the sponsorship application was lodged, or at the time the Tribunal is making its decision, or at both of these points in time.  

3. Accordingly, the Tribunal has considered the departmental policy guidelines in PAM3[16] to ascertain the policy intention underpinning the requirements in regulation 2.59, including subregulation 2.59(d).

   [16]    PAM3: Procedures Advice Manual 3 

4. Specifically, PAM3 indicates that the sponsorship approval process forms an integral part of the Temporary Work (Skilled) subclass 457 visa programme. Policy also states that this programme “is designed to enable employers to address labour shortages by bringing in genuinely skilled workers where they cannot source an appropriately skilled Australian”.[17]

   [17]    PAM3 - MIGRATION REGULATIONS - SCHEDULES > Temporary Work (Skilled) visa (subclass 457) – sponsorships – See paragraph 4.1

5. As a result, the first step for an Australian employer to sponsor an overseas employee under the 457 visa program requires the employer to apply for approval as a standard business sponsor. Notably, policy further indicates that the sponsorship approval process is intended to confirm “[s]trong worker protection measures are in place to ensure that overseas skilled workers are afforded the same workplace rights as Australian citizens”.[18]

   [18]    PAM3 - MIGRATION REGULATIONS - SCHEDULES > Temporary Work (Skilled) visa (subclass 457) - sponsorships

6. In addition, and in the context of subregulation 2.59(d), policy also provides that ‘recent expenditure’ is expenditure that occurred in the 12 months prior to the lodgement of the sponsorship application.[19]

   [19] PAM3 - MIGRATION REGULATIONS - SCHEDULES > Temporary Work (Skilled) visa (subclass 457) – sponsorships – See paragraph 4.5.4

7. However, whilst departmental policy in PAM3 may provide guidance, the Tribunal is not bound to follow it.[20] In particular, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations, and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[21]

   [20]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

   [21]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

8. The Tribunal notes that it is logical for departmental delegates to assess ‘recent expenditure’ by an applicant on training by reference to the 12 month period immediately before the applicant lodged the sponsorship application. This is because the delegate’s assessment generally takes place at a point in time that is much closer to the date the sponsorship application was lodged with the Department.

9. However, the same cannot necessarily be said once an application for review of a decision not to approve the applicant as a standard business sponsor is made to the Tribunal.

10. In particular, in the present matter the Tribunal is assessing whether the applicant meets the criteria for approval as a standard business sponsor in regulation 2.59 (as well as the associated provisions in regulation 2.60S) in 2017, approximately 22 months after the sponsorship application was first lodged with the Department and 19 months after the delegate refused the application.

11. As a result, given the passage of time since the sponsorship application was first lodged and then refused, there are several reasons that suggest it makes less sense for the Tribunal to adopt the approach set out in policy regarding what constitutes “recent expenditure”.

12. Firstly, the applicant’s circumstances may well have changed since it first lodged its sponsorship application with the Department in April 2015. Consequently, an approach that required the Tribunal to confine itself to an assessment of the applicant’s training expenditure in the 12 months immediately before the sponsorship application was lodged might exclude relevant information for the purposes of the application for review. This would be contrary to the Tribunal’s obligation under section 353 of the Act to undertake the review according to substantial justice and the merits of the case.

13. Secondly, such an approach may also undermine the underlying intention for the sponsorship approval process within the 457 visa scheme in terms of protecting overseas workers from employers who may not afford them the same workplace rights as Australian citizens. This is particularly important given that the Tribunal, as the relevant decisionmaker, must assess whether the applicant meets the requirements for approval as a standard business sponsor set out in regulations 2.59 and 2.60 before it can approve the applicant as a standard business sponsor.  

14. Accordingly, although the approach set out in policy to the issue of ‘recent expenditure’ provides a reasonable starting point, the Tribunal considers that there are cogent reasons for departing from that policy in terms of assessing what constitutes ‘recent expenditure’ in IMMI 13/030 for the purposes of subregulation 2.59(d).

15. Consequently, the Tribunal prefers to adopt a holistic approach to this issue and it will not confine its consideration of the evidence and issues solely to the 12 month period prior to the lodgement of the applicant’s sponsorship application in April 2015. As a result, the Tribunal will proceed by having regard to the whole of the evidence before it.

    (a) Training Benchmark A – Industry Training Fund

16. In order to meet Training Benchmark A, the applicant must show recent expenditure equivalent to 2% of its business payroll in the form of payments to an industry training fund that operates in the same industry as the applicant’s business.

17. In this case, the applicant has not made any claim or submitted any evidence to this effect. This is in circumstances where the Tribunal specifically invited the applicant on 23 January 2017 to provide such information, and included a copy of regulations 2.59 and 2.60 and Legislative Instrument IMMI 13/030 with its invitation to facilitate the applicant’s ability to do so.

18. Accordingly, given the evidence before it, the Tribunal is not satisfied that the applicant’s business has any recent expenditure equivalent to at least 2% of the payroll of its business in payments allocated to an industry training fund that operates in the same industry as the applicant’s business.

19. As a result, the Tribunal finds that the applicant has not demonstrated that it meets Training Benchmark A in IMMI 13/030.

    (b)      Training Benchmark B – Training Employees

20. In a submission dated 8 July 2015[22], the applicant’s managing director, Mr James Nguyen, argued that the applicant met Training Benchmark B in Schedule A of IMMI 13/030. In particular, Mr Nguyen stated that the applicant’s total wage expenditure for the 2013/14 financial year was $580,702. He also submitted that as the applicant had incurred training and conference expenses of $6,043, this meant it had exceeded the 1% threshold ($5,807) of the payroll of its business set by Training Benchmark B.

    [22]    T1, f.17

21. Accordingly, to support these claims Mr Nguyen provided a copy of the applicant’s unaudited 2014 financial statements[23], a summary of the applicant’s training costs for the year ending 30 June 2014[24] and tax invoices issued to the applicant for various training courses.[25] 

    [23]    T1, f.12-17

    [24]    T1, f.12

    [25]    T1, f.6-12 reverse

22. The Tribunal acknowledges that the applicant’s 2014 financials state that it had total wage expenditure of $580,702 as at 30 June 2014. It also does not dispute the claim that the figures set out in these financial statements formed the basis of the annual company return the applicant submitted to the ATO.[26] As a result, the Tribunal finds that 1% of the applicant’s payroll in respect of the 2013/14 financial year was $5,807.02.

    [26]    ATO: Australian Taxation Office

23. The 2014 financials also indicate that the applicant incurred $6,043.24 in training and conference expenses during the 2013/14 financial year, which is more than 1% of the applicant’s business payroll for that year.

1. However, as noted earlier, Training Benchmark B requires this expenditure to be ‘recent expenditure’ in the provision of training to employees of the business who are Australian citizens and Australian permanent residents.      

2. In considering this issue the Tribunal has taken into account the summary of the applicant’s training expenses[27] Mr Nguyen submitted, including the 11 tax invoices issued to the applicant by various external training providers during the 2013/14 financial year. These are summarised as follows:

   [27]    T1, f.12

Supplier	Date	Cost ($) Excluding GST	Description	Duration (Hours)
JC Training	19/07/2013	600.00	Manual Handling Training 19th July	Not Specified
Gowan & Associates Pty Ltd	23/08/2013	150.00	Presentation of Medication and Falls’	1.5
La Trobe University	30/09/2013	234.00	Wound education	1

Supplier	Date	Cost ($) Excluding GST	Description	Duration (Hours)
Save Training Pty Ltd	20/10/2013	990.00	1 x enrolment in TAE40110[28] online course	Not Specified
Alzheimer’s Australia VIC	15/11/2013	615.00	Dementia Awareness for health professionals	Not Specified
DMA Clinical Pilates	13/01/2014	745.45	Level 1 Equipment Course 1VIC114	Not Specified
DMA Clinical Pilates	07/02/2014	745.45	Level 1 Equipment Course – Treena Lord	Not Specified
VicBig Consulting	28/02/14	675.00	Bariatric Seminar	3
Cathy Derham	28/03/2014	150.00	Professional  Development Talk	1
Malliaras & Associates Trust	09/05/2014	909.00	Presentation Fee	Not Specified
Empower Rehab Pty Ltd	23/05/2014	300.00	Chronic Pain Lecture	2
Total:	6,113.90

[28]    T1, f.32-33

1. The Tribunal observes that some of these invoices, such as those from Gowan & Associates, La Trobe University, VicBIG Consulting, Cathy Derham, and Empower Rehab set out the duration of the training delivered. However, the invoices from JC Training, Save Training Pty Ltd Alzheimer’s Australia, DMA Clinical Pilates and Malliaras & Associates Pty Ltd do not specify the duration of the training that was delivered.

2. In addition, the Tribunal notes that some of the invoices are vague regarding the content of the training provided to the applicant and its employees. For example, the invoices from Cathy Derham and Malliaras & Associates Pty Ltd respectively describe the training as “Professional Development Talk” and “Presentation Fee”. 

3. As a result, there is little in the evidence before the Tribunal to demonstrate that the training invoices the applicant has submitted relate to the kind of training set out in Schedule A of IMMI 13/030, and which is considered acceptable for the purposes of Training Benchmark B.

4. Similarly, apart from the invoice issued by Save Training Pty Ltd, which indicates that the applicant paid the course fees for one individual to complete an online course, the remaining invoices before the Tribunal provide little, if any, information about those to whom the relevant training was delivered. In particular, there is little in this evidence to confirm whether these individuals were Australian citizens and/or Australian permanent residents. Nor does Mr Nguyen’s training summary name the employees who received the training for which the applicant was invoiced, or their immigration status.

5. The Tribunal further notes that the invoices before it are all over 2 years old. In other words, the applicant has not provided any evidence of any training expenditure for its employees since 30 June 2014. Importantly, this is despite the invitation issued to the applicant on 23 January 2017 for it provide information that it meets the particular benchmarks required for the purposes of subregulation 2.59(d).

6. Accordingly, the Tribunal is not satisfied that there is sufficient evidence before it to demonstrate that there has been recent expenditure by the applicant’s business equivalent to at least 1% of the payroll of its business in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

7. Therefore, the Tribunal finds that the applicant has not demonstrated that it meets Training Benchmark B in IMMI 13/030.

   CONCLUSION

8. As a result, given its findings that the applicant does not meet the requirements of either Training Benchmarks A or B in IMMI 13/030, the Tribunal finds that the applicant does not meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing and made for subregulation 2.59(d). The Tribunal therefore finds that the applicant does not meet the requirements of subregulation 2.59(d).

9. In addition, as the applicant does not meet subregulation 2.59(d), an essential criterion for approval as a standard business sponsor, it is unnecessary for the Tribunal to determine whether the applicant meets the remaining criteria set out in regulation 2.59.[29]

   [29]    The Federal Court has confirmed that once the Tribunal has established that at least one essential criterion had not been satisfied, it is not obliged to make findings in relation to any other criteria: see Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596.

10. 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

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

    Danica Buljan
    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 subregulation; 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 subregulation (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 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 subsubregulation (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.

    
    

- Accessed 9 February 2017

TAE40110 – Certificate IV in Training and Assessing (Release 4), Source: - Accessed 9 February 2017