FEDERAL COURT OF AUSTRALIA

Biswas v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 904

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

BROMWICH J:

1    The appellant, Mr Md Aby Obyda Biswas, is a citizen of Bangladesh who arrived in Australia on 8 July 2009, travelling on a student (Temporary) (Class TU) (subclass 572) visa. He was subsequently granted two further student visas.

2    On 7 March 2017, he applied for a student (Temporary) (Class TU) (subclass 590) visa, his fourth application for a student visa. On 11 April 2017, that application was refused by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, on the basis that Mr Biswas did not meet the criteria set out in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth), namely, that he was a genuine applicant for entry and stay as a student.

3    On 26 April 2017, Mr Biswas applied for merits review of the delegate’s decision by the second respondent, the Administrative Appeals Tribunal. The Tribunal affirmed the decision of the delegate on 19 March 2019. On 2 April 2019, Mr Biswas appealed from the Tribunal’s decision to the Federal Circuit Court, now Division 2 of the Federal Circuit and Family Court of Australia. That appeal was dismissed on 17 December 2020. He appealed to this Court on 29 December 2020 by filing a notice of appeal dated 23 December 2020. That notice of appeal has not been amended.

4    For the reasons that follow, the appeal is without any merit and must be dismissed.

Before the Tribunal

5    The primary judge summarised the Tribunal’s decision as follows (omitting footnotes):

[15]    The Tribunal noted Mr Biswas’ study history in Australia, noting that he had completed four courses and had enrolled in but not completed two more. The Tribunal also had regard to Mr Biswas’ documentary evidence, including evidence of his previous studies.

[16]    The Tribunal summarised Mr Biswas’ oral evidence before it.

[17]    The Tribunal identified that the dispositive issue was Mr Biswas’ satisfaction of the genuine temporary entrant criterion, and set out that criterion. The Tribunal observed that it was required to have regard to Direction No 69, and it summarised that direction. It noted that the direction was not to be used as a checklist, but rather as a guide.

[18]    The Tribunal found that Mr Biswas did not satisfy the genuine temporary entrant criterion. In so finding, the Tribunal made the following relevant findings:

(a)    the Tribunal accepted that Mr Biswas had ongoing ties to his home country because his family resides there, but was not satisfied that they were a strong incentive for him to return to Bangladesh;

(b)    the Tribunal noted that Mr Biswas had spent nearly 10 years in Australia holding either a student visa or a bridging visa, and had been employed for the majority of that time. Mr Biswas had not provided corroborative evidence of the job he claimed that his brother had offered him in Bangladesh. As such, the Tribunal found that Mr Biswas had ties to Australia that were an incentive for him to extend his residency for reasons other than study;

(c)    the Tribunal had regard to Mr Biswas’ immigration history, including his travel and visa histories. The Tribunal noted that Mr Biswas came to Australia on 8 July 2009, had returned to Bangladesh four times for short periods, and had previously held three substantive visas (with the subject visa application being his fourth);

(d)    the Tribunal noted extended gaps in Mr Biswas’ study history. The Tribunal expressed concern about Mr Biswas’ ability to complete the proposed degree course, given his study history to date, and his permanent physical injury;

(e)    regarding Mr Biswas’ study history and the value of the course to his future, the Tribunal noted that Mr Biswas would have been in Australia for 12 years by the time his proposed course (Bachelor of Business) was expected to be completed, and in that time would have spent nine of those years undertaking a range of lower level vocational courses;

(f)    the Tribunal found that Mr Biswas’ study history was not adequately explained, and did not consider his academic progress to be satisfactory given the amount of time he had spent in Australia;

(g)    on the evidence, the Tribunal was not satisfied that Mr Biswas had demonstrated a clear career path, or that he had demonstrated the relevance of the course to his proposed future employment.

[19]    After weighing up Mr Biswas’ circumstances, immigration history and other relevant matters, the Tribunal was not satisfied that Mr Biswas was a genuine student or that he intended to stay in Australia temporarily.

[20]    Consequently, the Tribunal was not satisfied that Mr Biswas met the genuine temporary entrant criterion, or that he satisfied the criteria for the grant of a student visa.

6    Relevantly to the present proceedings, Mr Biswas had provided a bundle of medical documents to the Tribunal that had not been provided to the delegate. These documents related to injuries to his back that he incurred in 2011 and 2012, as follows:

(a)    a letter dated 12 September 2012 from a radiologist, Dr Craig Harris, to Mr Biswas’ general practitioner, Dr Andrew Tuan Anh Le, outlining an injury to his lumbar spine;

(b)    a letter dated 30 May 2013 from a radiologist, Dr Peter Kitchener, to the doctor treating Mr Biswas’ back injury, Dr David Manohar, describing the findings of an MRI scan of Mr Biswas’ lumbar spine;

(c)    a letter dated 19 June 2014 from a radiologist, Dr Peter Kitchener, to Dr Manohar, describing the findings of an MRI scan of Mr Biswas’ lumbar spine;

(d)    a medical assessment certificate dated 16 September 2014, completed by Dr Peter Holman for the Workers Compensation Commission, which assessed his injuries as causing a “permanent impairment”, though also noted that there had been “some mild resolution of the disc protrusion”, and that it is “not unusual for an acute disc herniation to partially resolve over time”;

(e)    a medical certificate dated 10 October 2014 from Dr Le, stating:

He had his first injury on 17/7/2011. He sustained a second injury on 23/08/2012. As a result of his injuries, he has been suffering chronic back pain. This condition has also affected his mental health. There was a time he was depressed and unable to study or work. His back pain is now stable and he has been able to work part time. His mental health is now also improving.

(f)    a letter dated 22 September 2017 from Dr Md Modasser Hossain, stating that that Mr Biswas suffered “stress/anxiety/depression”, written in apparent support for the grant of a tourist visa to Mr Biswas’ wife; and

(g)    a medical certificate dated 22 June 2018 letter from Dr Le, stating:

The patient has been under my care since 2012. He had a work related injury in 2012 which resulted in chronic pain due to prolapsed L5/S1 disc, right S1 root compression, depression, anxiety and dyspepsia from Celebrex. He was taking Endep, Lyrica, Panadol and Celebrex. Due to his physical and mental conditions he had he had problem with sleep and concentration. He could not study effectively that is one of the reasons he could not complete his course. His condition is improving now and he can concentrate better with his study.

7    The Tribunal considered cl 500.212 in Sch 2 to the Migration Regulations and Direction Number 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications, made under s 499 of the Migration Act 1958 (Cth). After considering Mr Biswas’ educational and immigration history, among other relevant matters outlined by the Direction, the Tribunal affirmed the delegate’s decision on 19 March 2019.

8    The Tribunal stated at [18] of its reasons, being the part that Mr Biswas takes particular objection to:

The applicant’s immigration history includes his travel and visa history. The applicant came to Australia on 8 July 2009 as the holder of a Subclass 572 Student Visa. Since then the applicant has returned to Bangladesh four times, in 2011, 2015, 2016 and 2017/18 for between one and two months on each occasion. He has held three student visas to date and the application that is the subject of this review is for his fourth. According to the Department, the applicant was not enrolled to study from October 2014 to January 2015 and from July 2015 to February 2016. Regarding the first period, the applicant stated in his written submission that while he did receive warning letters for non-attendance, it was a system error and he successfully passed the course. The applicant claimed the second period of not studying was due to his back injury that occurred at work and for which he provided medical and worker’s compensation evidence. The Tribunal accepts the applicant was affected by a physical condition for which he received assessment and treatment over a period of time. It was open to the applicant at the time to defer his studies until he had recovered, or was in a position to continue a study path. In this regard the Tribunal is concerned about the applicant’s ability to complete a degree course given his study history to date, including enrolling in and discontinuing a Bachelor of Accounting, and his physical injury being declared to be permanent.

Before the Circuit Court

9    By an amended application dated 17 November 2019, Mr Biswas advanced three grounds of judicial review, all related to the Tribunal’s treatment of the medical evidence of his back injury:

GROUND ONE:

The AAT has breached section 359(1) of the Migration Act 1958 (Cth).

Particulars

In failing to have regard to the prognosis by the medical experts that the Applicant's back pain is now stable and his mental health improving and instead have regard only to his “study history to date” and “his physical injury being declared to be permanent” at paragraph [18] of the decision, the Tribunal has failed to have regard to information before it when making the decision under review.

GROUND TWO:

The AAT has failed to have regard to the full integers of the Applicant's claim.

Particulars

By misdirecting itself about the significance of the medical material with respect to the prognosis that arises on a fair read of the material at paragraph [18] of the decision, the AAT has failed to have regard to the full integers of the Applicant's claim.

GROUND THREE:

The AAT has made a decision so unreasonable and for illogical that no reasonable person would have made it.

Particulars

By failing to consider the expert medical evidence before it to instead provide its own prognosis as to the likely physical and mental health of the Applicant at paragraph [18] of the decision, the AAT has made a decision so unreasonable and/or illogical that no reasonable person would have made it.

10    Following a hearing in which Mr Biswas was represented by counsel, the primary judge dismissed all three grounds of judicial review, concluding that none identified an error, let alone a jurisdictional error. His Honour’s reasoning in relation to each ground can be succinctly summarised as follows.

11    In relation to ground 1, s 359(1) of the Migration Act empowers the Tribunal to seek further information that it considers relevant; it is a “permissive, or facultative discretionary power”: PJ[37]. In any case, the Tribunal did consider the information provided to it by Mr Biswas in relation to his injury, referring to the worker’s compensation certificate and other medical evidence at [18] of its reasons: PJ[38]-[39]. His Honour concluded at PJ[39]:

Leaving aside that one such medical report [referring to the report described at [4](e) above] is dated many years before the Tribunal’s decision, it is unclear what purpose such references to the improvement of Mr Biswas’ condition had to the review. The issue before the Tribunal was whether Mr Biswas met the genuine temporary entrant criteria. It was not whether he was, or in the future might be, fit and able to undertake studies.

12    In relation to ground 2, “This is no more than an impermissible attempt at a merits review, with the weight to be given to evidence being a matter for the Tribunal”: PJ[42].

13    In relation to ground 3, the Tribunal had considered the documentary medical evidence that Mr Biswas had supplied the delegate, the additional bundle he had provided the Tribunal, and his oral evidence at hearing. It gave “substantial and cogent reasons for its findings, which are not in my view illogical, irrational or unreasonable”, and the conclusions reached were open to the Tribunal on the material before it: PJ[44].

Appeal to this Court

14    The appellant appeals the primary judgment on three grounds, which are the same as those before the primary judge, with one amendment to ground 1 (amendment emphasised):

GROUND ONE:

The honourable court below erred that the AAT has breached section 359(1) of the Migration Act 1958 (Cth).

15    Grounds 2 and 3 are unchanged, and therefore directed to the decision of the AAT rather than the primary judge.

16    The Tribunal filed a submitting notice.

17    The Minister submits that the grounds of appeal fail to identify any error on the part of the primary judge, and none is apparent on the face of the judgment. That accords with my reading of the judgment. He submits that, accordingly, all grounds should fail and the appeal should be dismissed with costs.

18    Mr Biswas supplied written submissions that did not identify error on the part of the primary judge. Rather, he overtly sought to have this Court consider his medical history, which he said was the main reason for his “study gap”. He also provided a bundle of medical documents, including some of those that had been provided to the Tribunal, described at [6] above (specifically the documents described at (a), (b), (d) and (g)).

19    Appearing in person at the hearing of this appeal with the assistance of an interpreter as needed, Mr Biswas said that the reason the visa was refused was because of his study gap. He referred to having a severe physical injury, but that he had continued his studies. He said that due to his injuries there had been a study gap. He said that he had a lawyer appearing for him before the Tribunal, but that lawyer did not focus on the study gap that was due to his injuries.

20    The Minister responded in oral submissions, addressing what had been said by Mr Biswas. Counsel for the Minister said that the Tribunal did, in looking at the genuine student criteria, have regard to the way in which Mr Biswas had completed and attended courses and also not attended courses due to his back injury. Counsel said the decision of the Tribunal was not about complying with visa conditions; rather, the Tribunal was concerned with the genuine stay criteria of the temporary visa sought, having regard to his immigration history and living situations both in Australia and in Bangladesh. The Tribunal was not satisfied that Mr Biswas’ stay was intended to be temporary in accordance with the visa’s requirements. Counsel said the Tribunal did not doubt the information had been provided in relation to the explanation for the study gap and had, indeed, accepted it, but concluded adversely to Mr Biswas for other reasons.

21    Having carefully read the primary judgment, along with the Tribunal’s decision, the key features of which are summarised above, I accept the Minister’s submission. The appellant identifies no error on the part of the primary judge. No error is apparent on the face of his Honour’s reasons. To the contrary, his Honour was correct.

22    Accordingly, the appeal must be dismissed with costs.

Associate:

Dated:    12 August 2024