Garg v Minister for Immigration and Anor

[2018] FCCA 1838

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1838

Catchwords:
MIGRATION – Student Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: NANCY GARG

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 997 of 2017

Judgment of: Judge Vasta

Hearing date: 2 July 2018

Date of Last Submission: 2 July 2018

Delivered at: Brisbane

Delivered on: 2 July 2018

REPRESENTATION

Counsel for the Applicant: Mr P.A. Travers

Solicitors for the Applicant: Chand Lawyers

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That a writ of certiorari issue directed to the Second Respondent quashing its decision dated 8 September 2017.

2. That a writ of Mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 8 September 2017 according to law.

3. The First Respondent pay the Applicant’s costs, fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 997 of 2017

NANCY GARG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 8 September 2017, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant the applicant, Nancy Garg, a student visa.  Nancy Garg had originally lodged the application with her husband, a Mr Dishart Mittal, and the AAT looked at both applications.  The AAT eventually found that, because Mr Mittal was an applicant under the family unit part and because Ms Garg did not meet the criteria, neither did Mr Mittal. 

2. The facts of the matter are these in short compass.  The Applicant is a citizen of India.  She has completed a degree of Bachelor of Technology in Computer Science.  She completed that in India.  After she completed that degree, she has also worked in marketing. 

3. The other applicant, Mr Dishart Mittal, is her husband and he has come to Australia to study.  The Applicant came to Australia in May 2016 with the intention of joining her husband, who was already a student here.  Having come here, she decided that she would undertake studies that were related to the family business.

4. The family business is a business that her husband’s family has and it seems that this is running a supermarket.  The Applicant has no qualifications in running a business, but has the work experience in marketing and her computer technology degree. 

5. She decided, according to her evidence, to study here in Australia, wanting to study a Diploma of Leadership and Management and, having now completed that diploma, to study an Advanced Diploma.  She told the Tribunal that her future plans were then to return to India and run the family business.

6. There is no doubt that a Bachelor’s degree is a much higher qualification than a diploma or an advanced diploma.  The Tribunal seemed almost incredulous that a person with a Bachelor’s degree would benefit from the lower level qualifications that the Applicant was now seeking to attain.  This can be seen in a number of remarks that the Tribunal has made, such as, “It is not clear why the applicant will be prepared to work in a family business” and “The applicant did not explain why she did not pursue her degree subject matter as a career”.

7. In any event, the Applicant said, and there did not seem to be any cavil with this, that her background is that she has a mother and a brother in India and her parents-in-law.  There were no civil or political issues that would prevent her from returning to India.  She has not applied for any other visa.  She declared that she had not returned to India since coming to Australia and is currently on a bridging visa and has, it would seem, been on a bridging visa for nigh on two years.

8. But she consistently repeated that she wanted to complete her studies and return home.  That would seem to be to complete the Advanced Diploma of Leadership and Management and then return home. 

9. The Tribunal had to consider whether, on her evidence, they were satisfied that the Applicant intended to genuinely stay in Australia temporarily, having regard to her circumstances, her immigration history and any other relevant matter.  The Tribunal did look at the matter fairly thoroughly from paragraphs 17 to 22 of its reasons.

10. The main issue did seem to be whether or not the course that the Applicant wanted to attain was actually going to be of any benefit to her in her stated aim of going back to India to run the family business.  At paragraph 20, the Tribunal said this:

    The Tribunal considered the value of the courses undertaken in Australia to the applicant’s future.  As outlined, the applicant attained a Bachelor’s degree in India in the field of computer science.  She declared she had worked in marketing in India following her tertiary studies and plans to use her further qualifications in Australia in her father-in-law’s business on her return.  It is not clear why the applicant will be prepared to work in a family business when she had committed time and resources to her education by completing a Bachelor degree. 

    When asked why during the hearing, the applicant explained in general terms the nature of her work in marketing before coming to Australia, but not why she did not pursue her degree subject matter as a career.  The Tribunal is not satisfied the diploma and proposed advanced diploma courses in Australia are necessary if she plans to work in her in-laws’ business, or will be of any additional benefit to her, given her stated career plans.

11. The Tribunal had also said that the Applicant had the education and ability to support herself financially in Australia and, while she has family members in India, the Tribunal was not satisfied that that was a sufficient incentive for the Applicant to return following her studies.

12. The Tribunal noted that, as far as her immigration history is concerned, she was granted the subclass 572 visa on 10 March 2016 as a subsequent entrant to allow her to join her husband; that she arrived in Australian on 7 May 2016.  The Tribunal found that she had been in Australia for a relatively short time and had complied with visa conditions.

13. However, the Tribunal found that she had not provided sufficient reasons for deciding to study in Australia, given her educational background, or demonstrated how her proposed courses will benefit her in the future in her own country.  The Tribunal concluded, on the basis of all of those matters and having considered the Applicant’s circumstances, immigration and other matters, that they were not satisfied that the Applicant intends generally to stay in Australia temporarily.  Accordingly, she did not meet the criteria.

14. The application to this Court has but one ground of review.  That ground is the Tribunal engaged in conduct which amounted to jurisdictional error in that its decision that the Applicant’s proposed study would not be beneficial and that the Applicant was not a genuine temporary entrant is illogical where the benefits of the proposed study are clear on the evidence.

15. As has been said a number of times in cases such as this, the question of illogicality really comes down to this.  In looking at the evidence, was the conclusion reached by the Tribunal one that was open on the evidence.  Such is a rather shorthand way of giving voice to what the High Court had said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, and what Crennan and Bell JJ said at paragraph 130.

16. In my view, such a finding, that the Tribunal made, was not a conclusion that was open on the evidence.  This is because the Tribunal has come to its conclusions in paragraph 20 because of the incredulity that a woman would be prepared to study for a degree such as the Bachelor of Technology in Computer Science and yet, in effect, throw it all away to work with her husband and her husband’s family managing a supermarket.  It is that conclusion that has underpinned the finding of “non-satisfaction”.

17. To me, that is a course that does occur in societies less – and I will use the words in inverted commas -  “enlightened” as ours in which women are encouraged to strike out on their own and not be simply a cog in the machine of their husband’s destiny.

18. Whilst the thought that being a cog in the machine of a husband’s destiny is an outdated thought in Australian society, it is clear that such thinking is still well and truly alive in other parts of the world.  And to simply dismiss what the Applicant has said in the way that the Tribunal has done is to take a far too narrow approach to her evidence. 

19. It is dangerous, in almost having a paternalistic view of every other culture in the world, for a conclusion to be made that our culture, being more enlightened, is therefore superior.

20. It seems to me that it is not incredible for a woman from India to want to simply become part of her husband’s life and to manage a supermarket that is the husband’s family business.  In deciding to do that, it is clear to me that an advanced diploma in leadership and management may be of benefit to the Applicant in pursuing that career. 

21. This is one of those rare matters where the Court is not looking at the matter as an impermissible merits review, but rather looking at whether the actual conclusion made by the Tribunal was one that was actually open on the evidence.

22. For the Tribunal to find that the Applicant had not provided sufficient reasons for deciding to study in Australia, given her educational background, or that the Applicant had not demonstrated how her proposed courses would benefit her in the future in her own country, was a conclusion that I find was simply not open on the evidence.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 October 2018