CDI15 v Minister for Immigration and Border Protection [2018] FCA 58

FEDERAL COURT OF AUSTRALIA

CDI15 v Minister for Immigration and Border Protection [2018] FCA 58 Appeal from: CDI15 v Minister for Immigration and Border Protection [2017] FCCA 1603

File number: NSD 1235 of 2017

Judge: BURLEY J

Date of judgment: 12 February 2018

Catchwords: MIGRATION – second application for protection visa – whether the original Form 866 was a valid form – appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 48A, 48B Migration Regulations 1994 (Cth)

Cases cited: BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 BVJ16 v Minister for Immigration and Border Protection [2016] FCCA 178

Date of hearing: 22 November 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 14

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the Respondent: Mr A Markus of Australian Government Solicitor

ORDERS NSD 1235 of 2017

BETWEEN: CDI15 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: BURLEY J DATE OF ORDER: 12 February 2018

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1. INTRODUCTION 1 The appellant is a citizen of Bangladesh who arrived in Australia on 28 March 2013. On 1 July 2013 he submitted an application for a protection (Class XA) visa (first visa application). His application was refused by a delegate of the Minister for Immigration and Border Protection (Minister) on 28 August 2014. The appellant then applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate's decision. On 8 October 2015 the Tribunal affirmed the decision of the delegate. 2 The appellant did not then appeal from the decision of the Tribunal, but instead on 19 October 2016 he lodged a further application for a protection (class XD) visa (second visa application). On 25 October 2016 the Department of Immigration and Border Protection wrote to the appellant and informed him that his second application was not valid because he had previously been refused a protection (Class XA) visa and s 48A of the Migration Act 1958 (Cth) (Act) prevents a person who has not left Australia since they were refused a protection visa from making a subsequent protection visa application. In summary, s 48A of the Act provides that, subject to s 48B, a non-citizen who has had his or her application for a protection visa refused, may not make a further application for a protection visa or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone. Section 48B provides that the Minister has discretion to determine that s 48A does not apply. 3 The appellant then filed an application in the Federal Circuit Court of Australia (FCCA) seeking declaratory and other relief to set aside the decision contained in the letter of 25 October 2016. On 7 July 2017 a judge of the FCCA heard the application and determined that the second application was not valid pursuant to s 48A of the Act and dismissed the application. It was not in dispute that the FCCA had jurisdiction to consider the application. 4 On 25 July 2017 the appellant filed a Notice of Appeal in this Court stating, as the only ground advanced, "error of law". 5 The appellant did not have the benefit of legal assistance at the hearing, but represented himself, with the assistance of a Bengali interpreter. He filed no written submissions. Mr Andras Markus, a solicitor from the Australian Government Solicitor, appeared on behalf of the Minister and filed submissions in advance of the hearing.