CDI15 v Minister for Immigration and Border Protection

The case of CDI15 v Minister for Immigration and Border Protection involved the appellant, who appeared before the Federal Circuit Court of Australia (FCCA) to appeal a decision regarding his second application for a protection visa. The appellant, unrepresented by legal counsel but with the assistance of a Bengali interpreter, contested the Minister’s decision to declare his first application invalid and subsequently bar his second application under Section 48A of the Migration Act 1958 (Cth). The Minister for Immigration and Border Protection was represented by Mr Andras Markus from the Australian Government Solicitor’s office, who had filed submissions prior to the hearing.

The primary legal issue before the court was whether the original Form 866 used in the first protection visa application was valid. The appellant argued that the Delegate of the Minister had made a jurisdictional error by failing to exercise jurisdiction over the first application. He contended that the form used in his first application was valid because it was approved under regulation 1.18(1) of the Migration Regulations 1994 (Cth) prior to the enactment of item 1401 of Schedule 1 to the Regulations on 20 October 1999. The appellant claimed that item 1401, by virtue of the Acts Interpretation Act 1901 (Cth) and the Legislation Act 2003 (Cth), restricted the incorporation of Form 866 to its state at the time of the enactment, making the first application valid and thus exempting the second application from being barred under Section 48A.

The primary judge, in dismissing the appeal, noted that the argument presented mirrored that which had been previously rejected in BVJ16 v Minister for Immigration and Border Protection [2016] FCCA 178. The judge upheld the earlier decision, finding that the appellant’s argument did not constitute a jurisdictional error and accordingly dismissed the appeal with costs. The Federal Circuit Court of Australia, in affirming the primary judge's decision, found no merit in the appellant’s contention that the Minister’s decision was flawed.

The court ordered that the appeal be dismissed and that the appellant pay the respondent’s costs, as per Rule 39.32 of the Federal Court Rules 2011. This ruling upheld the Minister’s decision that the second application for a protection visa was invalid due to the invalidity of the first application, as determined by the primary judge.