Bhardwaj (Migration)

[2020] AATA 4083

Bhardwaj (Migration) [2020] AATA 4083 (31 August 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Simron Gajendra Pal Bhardwaj
Mrs Monika Simron Bhardwaj
Miss Vihana Bhardwaj
Master Dhanveer Simron Bhardwaj

CASE NUMBER:  1804483

HOME AFFAIRS REFERENCE(S):          BCC2017/2909833

MEMBER:Stavros Georgiadis

DATE:31 August 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of all applicants, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 31 August 2020 at 9:58am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – ICT Business Development Manager – qualifications or the required work experience– concerns about the genuineness of qualifications –evidence provided – qualification satisfies the requirement–decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 359, 376
Migration Regulations 1994, Schedule 2, cl 187.234

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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 August 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of ICT Business Development Manager (ANZSCO 225212).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations as he did not have the listed in ANZSCO as being necessary to perform the tasks of the occupation (cl.187.234(c)).

6. The first named applicant appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Robert Marriotti, Managing Director of the applicant’s employer, World Global Solutions Pty Ltd.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

8. The applicants were represented in relation to the review by their registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary applicant satisfies the criteria in cl.187.234 for the grant of the Subclass 187 visas.

    Skills and qualifications

11. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

12. For visa applications made on or after 18 March 2018 (not the case here), applicants who are not exempt persons must also have been employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation.

13. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060 of the Register of Instruments: Business visas, and the occupations and relevant assessing authorities have been specified in IMMI12/096 of that Register of Instruments.  For the purpose of the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.  The applicant has previously held a Class FA Subclass 600 (Visitor) visa granted on 18 July 2017.

14. The application for the Subclass 187 visas was lodged on 14 August 2017 under the Direct Entry stream.  The criteria set out in cl.187.234 must be satisfied by the applicant at the time of application. 

15. For the grant of the visas, the applicant must satisfy one of the three alternatives (a to c) below as set out in cl.187.234 of Schedule 2 of the Regulations as follows:

    cl.187.234

    At the time of application:

    (a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or

    (b) all of the following requirements were met:

    (i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph;
    (ii) the applicant did not obtain the necessary qualification in Australia;
    (iii) the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;
    (iv) the assessment was not for a Subclass 485 (Temporary Graduate) visa;
    (v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment - the period had not ended;
    (vi) if subparagraph (v) did not apply - not more than 3 years had passed since the date of the assessment; or

    (c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

16. The legislative instrument refers to the following classes of persons as exempt from skill requirement for the purposes of 187.234(a) of the Regulations:

    Class 1 - Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.

17. At the hearing, the applicant said that his nominated remuneration for the nominated occupation at the time of application was $60,000 per year gross plus superannuation at 9.5%.  The Tribunal accepts the oral evidence provided in this regard and finds the applicant is not exempt from the skills requirement as a person under Class 1, as the accepted level of remuneration is lower than the current Australian Tax Office top individual income tax rate.

    Class 2 - Persons who hold a Subclass 444 – Special Category visa; or Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa, and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their Subclass 187 – Regional Sponsored Migration Scheme visa.

18. The applicant responded when asked that he has not held any of the above visa classes.  The Tribunal accepts the applicant’s oral evidence in this regard as this is consistent with the department’s Movement Details for the applicant. The Tribunal finds that the applicant is not an exempt person under Class 2 above as he does not hold a Subclass 444 or 461 visa.

19. Accordingly, the applicant does not meet cl.187.234(a).

20. At the hearing, the applicant confirmed that the position identified in the application is for the occupation of ICT Business Development Manager (ANZSCO 225212). This is not an occupation specified by the Minister in the relevant legislative instrument in writing [IMMI12/096 of the Register of Instruments] for the purposes of cl.187.234(b)(i). Accordingly, cl.187.234(b) does not apply as not all the requirements listed in cl.187.234(b) are met. 

21. As neither subclauses 187.234(a) nor (b) apply, the applicant is required at the time of application to show that he has qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation, or relevant experience in the alternative, that may substitute for the formal qualification: cl.187.234(c).

22. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) sets out: Most occupations in this unit group have a level of skill commensurate with a Bachelor degree or higher qualification. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

23. The applicant relies on a qualification of Bachelor of Business Administration (Management) degree to satisfy the requirement of cl.187.234(c).  At the time of the delegate’s decision he had provided the following documents in support of this requirement: Academic Transcripts issued by Sunrise University - for three academic years for Bachelor of Business Administration (Management) undertaken in India at Sunrise University.

24. The delegate concluded that:

    The documents provided do not demonstrate that the applicant has been awarded the above stated qualification. I therefore find that the applicant does not hold the necessary qualification.

25. The Tribunal heard evidence from the applicant that he undertook the required unit studies for the qualification of Bachelor of Business Administration (Management) at Sunrise University which is located in Anwar, Rajasthan State, India.  The applicant told the Tribunal that he attended lectures and tutorial classes there in 2013, 2014 and 2015, and completed all the requirements for the Bachelor degree at the end of 2015.  He told the Tribunal that the parchment qualification confirms he completed all requirement in 2015 and that the degree was issued to him in 2017 at a ceremony he attended personally in India.  The Department’s Movement Details confirm that the applicant first arrived in Australia on 26 July 2016 and that in 2017 he was offshore from 12 May 2017.  He returned to Australia on 8 August 2017 staying for 4 days before departing and then returning to Australia on 25 October 2017.  He departed again four days later and did not return until 20 February 2018. When questioned about the conferral of the degree at the award ceremony in 2017 some 2 years after completing the qualification in 2015, the applicant responded: “this is normal for India.” 

26. The applicant’s oral evidence is consistent with information publicly available regarding Sunrise University, India and for this reason, the Tribunal carefully questioned the applicant at the hearing regard his undertaking of the qualification and the conferral from the said educational institution.

27. The Tribunal exercised its discretion to put to the applicant information raised in a non-disclosure certificate issued by the Department under s.376 of the Act. The s.376 certificate is dated 13 March 2018 and refers to information received from the New Delhi departmental Post by email on 12 December 2017 “containing alert advice in relation to fraudulent educational documents” … and information “… given to the Minister, or to an officer of the Department, in confidence …” The Tribunal considered the validity of the s.376 certificate but does not consider the information should not be disclosed on the basis of public interest immunity and therefore, put issues raised in the certificate to the applicant at the hearing.

28. In accordance with the procedure under s.359AA of the Act the Tribunal put to the applicant at the hearing that it wished to discuss with him information that, subject to his comments, would be a reason or part of the reason, for affirming the decision to refuse the applicants a Subclass 187 visa. The Tribunal explained that he would be asked to respond to this information and would be entitled to seek additional time to comment on, or to respond to, the information the Tribunal was about to put to him, which the Tribunal would consider. The Tribunal explained that affirming the decision under review is a consequence of relying on the information in making its decision. 

29. The Tribunal put to the applicant that the s.376 certificate raises concerns about the genuineness of qualifications issued by certain educational institutions in India.  The applicant was told the advice specifically mentions Academy for Global Studies and Techno Global University alerting of fraudulent educational documents issued from those institutions in exchange for money. The Tribunal raised the issue of whether the Bachelor of Business Administration (Management) which the applicant relies on from Sunshine University is genuine.  The Tribunal noted that Sunrise University is not specifically included as a fraudulent institution only alerting that: “Educational certificates issued from Janardan Rai Nagar Rajasthan Vidyapeeth University, Monad University Uttar Pradesh, Jaipur National University, RKDF University, OPJS University, Shri Venkateshwara University Uttar Pradesh and Sunrise University Rajasthan should be closely scrutinised” (emphasis added).

30. The applicant responded forthwith to the issue raised of the bona fides of his degree qualification. He maintains his qualification is genuine. His oral evidence is that Sunrise University is a registered educational institution located in India which has been approved by the overseeing body, the University Grant Commission under the UGC Act, 1956. 

31. The Wikipedia website ( accessed on 26 August 2020 provides as follows:

    Sunrise University is a private university located in Alwar, Rajasthan, India. Sunrise University is situated on a sprawling campus of 30 acres in the National Capital Region Alwar which is also known as “Tiger Gate of Rajasthan”. It is established under Sunrise University Act, 2011 (Act No. 25 of 2011) and recognized by University Grant Commission u/s 2(f) of UGC Act, 1956. Sunrise University is a venture of well-known and reputed educational group “IET Group of Institutions”.

32. The Tribunal has had regard to the applicant’s parchment qualification of Bachelor of Business Administration (Management) issued by Sunrise University that he has now provided to the Tribunal.  It was on the absence of such information to “demonstrate that the applicant has been awarded the above stated qualification” that the delegate had refused the applicant’s visa. The Tribunal has had the benefit of considering this document that was not before the delegate at the time of the delegate’s decision to refuse the applicant’s visa. Further, the alert raised in the email referred to in the s.376 certificate warns that education documents issued by Academy for Global Studies and Techno Global University (prior to 2017 in the case of the latter) should be deemed as non-genuine (emphasis added) and the associated application considered for refusal.  Notably, there is no such warning in respect of Sunshine University specifically.

33. The transcript of qualifications raised in the alert relates to academic materials from educational institutions other than Sunrise University and appears to relate to another person who had claimed to have completed a Diploma in Business Administration from the Academy for Global Studies and also a Bachelor of Arts In General from Techno Global University in 2010.  This is not the applicant’s claim.  The alert does not relate to the applicant’s academic transcripts  mentioned in the delegate’s decision (at page 3) for the three academic years from 2013 to 2015, inclusive, undertaken at Sunrise University.

34. The Tribunal accepts from the applicant’s qualification parchment of Bachelor of Business Administration (Management) issued by Sunrise University and from the applicant’s oral evidence discussed above, that he had completed the requirements for the Bachelor degree qualification in 2015 and that the qualification document was subsequently awarded to him in 2017.  The Tribunal is not able to positively find that this qualification is not genuine or that it has been issued to the applicant by a bogus educational institution when all the evidence is considered together with the applicant’s oral evidence in support of the application.

35. The Tribunal finds that at the time of application, the applicant had completed all the requirements for the Bachelor of Business Administration (Management) degree in 2015, and that this qualification had been awarded to him in 2017.

36. Accordingly, the applicant’s qualification of Bachelor of Business Administration (Management) from Sunrise University satisfies the requirement of cl.187.234(c) as being necessary to perform the tasks of the nominated occupation.

37. The Tribunal finds therefore, that the applicant had the qualifications in ANZSCO to perform the occupation of ICT Business Development Manager at Skill Level 1 required in ANZSCO 225212 for that occupation.

38. Therefore, cl.187.234 is met.

39. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas in respect of all visa applicants, including those in the combined application claimed as members (spouse and children) of the same family unit as the primary applicant.

    decision

    The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of all applicants, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.234 of Schedule 2 to the Regulations.