Forster v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORSTER v MINISTER FOR IMMIGRATION

[2017] FCCA 2676

Catchwords:
MIGRATION – Interlocutory application for leave to amend – amendment not warranted in the interests of the administration of justice – application refused.

Legislation:

Migration Act 1958 (Cth), s.78B

Applicant:

DEBRA MARIE FORSTER

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

PEG 364 of 2017

Judgment of:

Judge Street

Hearing date:

1 November 2017

Date of Last Submission:

1 November 2017

Delivered at:

Sydney

Delivered on:

1 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Edwards

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondent:

Mr P Hannan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application for leave to amend is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 364 of 2017

DEBRA MARIE FORSTER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

A Registrar of this Court made orders on 10 August 2017 giving the applicant an opportunity to file an amended application. On 9 October 2017 this Court made further orders providing opportunity for the filing of an amended application.
On 11 October 2017 an amended application was filed by the applicant. It was not until yesterday that there was forwarded to the Court a proposed further amended application seeking to raise an alleged Constitutional issue that is the subject of proceedings in the High Court. No affidavit has been put on explaining the belated circumstances in which that application is now made. Reference was made to correspondence from the Court in relation to which, it is apparent that the applicant’s legal advisers were well aware of the issue relating to the Constitutional matter and indeed, it was referred to in an email dated 23 October 2017.
Orders of this Court are not to be the subject of being trifled with. When the Court makes an order granting leave to amend, any amendments that are appropriate should be brought forward. In the present case there is no explanation in relation to the belated endeavour to amend to raise an alleged constitutional issue. The consequences of the belated amendment would be that an adjournment would have to be granted because of the requirements of s 78B of the Migration Act 1958 (“the Act”).
In the absence of proper explanation from the applicant’s legal advisers, and in this regard, no criticism is made of Mr Edwards of counsel for the applicant, who only recently came into the matter, it is not appropriate given the history of this matter, to grant leave to amend.
I am not satisfied that the amendment is warranted in the interests of the administration of justice. The application for leave to amend is refused.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 10 November 2017

In *Forster v Minister for Immigration*, the applicant, Mr. Forster, sought judicial review of a decision made by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether Mr. Forster had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth).

The primary legal issue before the court was whether the Minister's delegate had erred in law by failing to adequately consider and assess the evidence presented by Mr. Forster regarding his fear of persecution. Specifically, the court was required to determine if the delegate had properly applied the relevant legal tests for assessing claims of persecution, including the standard of proof and the assessment of credibility.

Judge Street found that the delegate had failed to properly consider crucial aspects of Mr. Forster's evidence, particularly concerning the alleged threats he faced. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims in a manner required by law. The court reiterated the principle that decision-makers must give proper, rational, and logical consideration to all relevant evidence when determining protection claims.

Consequently, the court quashed the decision of the Minister and remitted the matter to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established