MD MAZHARUL Haq v Minister for Immigration, Multicultural Affairs and Citizenship

[2014] HCASL 50

MD MAZHARUL HAQ

v

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP & ANOR

[2014] HCASL 50
S186/2013

1. The applicant, a citizen of Bangladesh, arrived in Australia on a Student visa in March 2007.  On 2 June 2010, he applied for a further Student (Temporary) (Class TU) (Subclass 572) visa.  A delegate of the first respondent refused to grant the applicant's visa.

2. The delegate determined that the applicant failed to meet condition 8516 of his visa (enrolment in or offer of enrolment in an approved course of study), and therefore did not comply with cl.572.235 of Schedule 2 of the Migration Regulations 1994 (Cth), a criterion for the grant of a Subclass 572 visa. Clause 572.235 required that the applicant had complied substantially with the conditions of his last substantive visa. The applicant provided no evidence of full-time study, submitting instead a psychological assessment report ("the Report"), stating that he did not achieve satisfactory attendance because of anxiety and depression.

3. The Migration Review Tribunal ("the Tribunal") affirmed the delegate's decision.  The Tribunal was not satisfied that the applicant's circumstances were such that he was prevented from continuing his studies.  The Tribunal gave little weight to the Report on the basis that it resulted from one consultation which occurred after the applicant had recovered.  

4. The Federal Circuit Court of Australia (Judge Nicholls) dismissed the applicant's application for review of the Tribunal's decision.  Judge Nicholls held that there was no substance to the claim that the Tribunal had failed to take into account the applicant's alleged extenuating circumstances, and that the weight to be given to the Report was a matter for the Tribunal.  

5. An appeal to the Federal Court of Australia (Buchanan J) was dismissed.  The Court held that the applicant's grounds of appeal repeated those agitated in the Court below and did not identify any error made by the Federal Circuit Court.

6. The applicant seeks special leave to appeal to this Court.  There is no reason to doubt the correctness of the decision of the Federal Court.  An appeal to this Court would enjoy no prospects of success.

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
12 March 2014 S.J. Gageler