Khawaja v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Khawaja v Attorney-General (Cth) [2022] FCA 334   

File number: NSD 1375 of 2021
Judgment of: THAWLEY J
Date of judgment: 4 April 2022
Catchwords: ADMINISTRATIVE LAW – application for judicial review of parole decision under s 19AL(1) of the Crimes Act 1914 (Cth) – where sentencing remarks considered the applicant’s mental illness causative of offending – where the Attorney-General’s reasons for decision did not refer to the applicant’s mental illness or disclose any consideration of the longer term risks to the community if parole were refused or of the rehabilitation of the offender or of the reintegration of the offender into the community – whether Attorney-General’s decision affected by legal unreasonableness – whether Attorney-General failed to afford procedural fairness – held: decision was legally unreasonable and made in a procedurally unfair manner – application allowed
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Criminal Code Act 1995 (Cth) ss 135.1(7), 144.1(1)

Crimes Act 1914 (Cth) ss 37(3), 43(1), 16BA, 19AKA, 19AL(1), 19AL(2), 19ALA(1), 19ALA(2)

Judiciary Act1903 (Cth) s 39B

Cases cited:

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423

Khazaal v Attorney-General (Cth) [2020] FCA 448

King v Minister for Immigration and Border Protection [2014] FCA 766; 142 ALD 305

Lodhi v Attorney-General (Cth) [2020] FCA 1383

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589

Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031

MZAFS v Minister for Immigration and Border Protection [2016] FCA 75; 237 FCR 347

MZAPC v Minister for Immigration and Border Protection (2021) [2021] HCA 17; 95 ALJR 441

R v Khawaja [2020] NSWDC 718

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 124
Date of hearing: 31 March 2022
Counsel for the Applicant Mr M Kalyk
Solicitor for the Applicant Murphy’s Lawyers
Counsel for the Respondent Mr T Glover
Solicitor for the Respondent Australian Government Solicitor

ORDERS

NSD 1375 of 2021
BETWEEN:

ARSALAN TARIQ KHAWAJA

Applicant
AND:

ATTORNEY-GENERAL (CTH)

Respondent

ORDER MADE BY:

THAWLEY J

DATE OF ORDER:

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Details
Case
[2022] FCA 334
Decision Date

CaseChat Overview and Summary

In the case of Khawaja v Attorney-General (Cth), the applicant, Mr Khawaja, sought judicial review of the Attorney-General’s decision to refuse his application for parole. The offences for which Mr Khawaja was sentenced were serious, with significant consequences for the victims, and were committed while he was suffering from a significant undiagnosed mental illness. The applicant’s mental health issues and their impact on his offending behaviour were considered during sentencing. The legal issues the court had to decide included whether the Attorney-General’s decision was legally unreasonable and whether it was made in a procedurally unfair manner.

The court found that the Attorney-General’s decision was legally unreasonable because it failed to consider the applicant’s mental illness, the longer-term risks to the community if parole were refused, and the rehabilitation and reintegration of the offender into the community. The decision did not refer to the applicant’s mental illness or disclose any consideration of these matters. Furthermore, the court found that the decision-making process did not afford procedural fairness to the applicant as required by law. The applicant was not given the opportunity to address the adverse information and respond to it. The court concluded that the decision was legally unreasonable and made in a procedurally unfair manner, and the application for judicial review was allowed.

The final orders of the court were that the Attorney-General’s refusal of parole decision be set aside, the respondent reconsider the decision to make, or refuse to make, an order that the applicant be released on parole, the proceeding be adjourned for a case management hearing, and the respondent pay the applicant’s costs of and incidental to the proceeding.

Orders

Orders of the court

1. The respondent’s refusal of parole decision made on 2 December 2021 be set aside.

2. The respondent reconsider the decision to make, or refuse to make, an order that the applicant be released on parole in accordance with section 19AL of the Crimes Act 1914 (Cth).

3. The proceeding be adjourned for a case management hearing at 9.00 am on 12 April 2022, or such other date as may be fixed, at which time the respondent:

(a) advise the Court as to whether a decision has been made in accordance with order 2; and

(b) if such a decision has not been made, show cause why an order in the nature of a writ of mandamus should not be made, compelling the respondent to make or refuse to make an order that the applicant be released on parole in accordance with subsection 19AL(1) of the Crimes Act 1914 (Cth) within a stipulated time.

4. Reserve liberty to the parties to apply, by email to the Associate to Justice Thawley, to seek a variation or vacation of order 3 and generally.

5. The respondent pay the applicant’s costs of and incidental to the proceeding.

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

Background

Background to the litigation

With that context in mind, it is necessary to turn to the central facts.FACTUAL BACKGROUNDMr Khawaja’s offences The offences committed by Mr Khawaja were serious and had significant consequences to the victims. Each of the offences was found to have been committed whilst Mr Khawaja had a significant undiagnosed mental illness. The first two offences, to which he pleaded guilty, were:(1)On 9 January 2017, Mr Khawaja made a telephone call to the Department of Immigration and Border Protection’s “Border Watch” hotline with the intention of dishonestly influencing a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official contrary to s 135.1(7) of the Criminal Code Act 1995 (Cth) (the Code) (the dishonestly influence offence). The maximum penalty for this offence is imprisonment for 5 years and/or 300 penalty units.(2)Between about 30 August 2018 and 13 September 2018, Mr Khawaja attempted to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power, being a judicial power of the Commonwealth, contrary to s 43(1) of the Crimes Act (the public justice offence). The maximum penalty for this offence is imprisonment for 10 years and/or 600 penalty units. The third and fourth offences were ones which Mr Khawaja admitted and asked the court to take into account under s 16BA of the Crimes Act when passing sentence:(3)Between 1 July 2018 and 30 August 2018, Mr Khawaja made a false document, being parts of a notebook, with the intention to use it to dishonestly induce a person in the person’s capacity as a Commonwealth public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a public duty or function contrary to s 144.1(1) of the Code (the forgery offence).(4)On 26 December 2018, Mr Khawaja did an act intending to induce a person to be called as a witness in a federal judicial proceeding, ‘F1’ (a pseudonym), to withhold true testimony contrary to s 37(3) of the Crimes Act (the influence witness offence). A summary of Mr Khawaja’s interrelated series of offending is as follows. Mr Khawaja met F1 in November 2013 and commenced a romantic relationship which continued for a number of years. The relationship ended and F1 commenced a relationship with M1. To adopt the sentencing judge’s remarks, “the offender did not take this development well”. Mr Khawaja’s mental state started to deteriorate. He reported that he was haunted by both auditory and visual hallucinations regarding F1 and her relationship with M1. He experienced paranoia and preoccupation with F1 and M1 and other severe psychological experiences that almost culminated in him committing suicide in 2015 and 2016. On 9 January 2017, in an attempt to “get M1 off the scene, in the hope he could resurrect his relationship with F1” (the sentencing judge’s remarks), Mr Khawaja made a number of false statements to the Border Watch hotline suggesting M1 was an Islamic extremist. Mr Khawaja did so with the intention of dishonestly influencing a public official to investigate wrongdoing by M1: the dishonestly influence offence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In making a parole decision under s 19AL(1), the Attorney-General may have regard to the matters set out in s 19ALA(1): Matters that may be considered in decisions about parole orders(1)In making a decision under section 19AL in relation to a person, the Attorney‑General may have regard to any of the following matters that are known to the Attorney‑General and relevant to the decision:(a)the risk to the community of releasing the person on parole;(b)the person’s conduct while serving his or her sentence;(c)whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;(d)the likely effect on the victim, or victim’s family, of releasing the person on parole;(e)the nature and circumstances of the offence to which the person’s sentence relates;(f)any comments made by the sentencing court;(g)the person’s criminal history;(h)any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;(i)the behaviour of the person when subject to any previous parole order or licence;(j)the behaviour of the person when subject to any previous parole order or licence;(k)whether releasing the person on parole is likely to assist the person to adjust to lawful community life;(l)whether the length of the parole period is sufficient to achieve the purposes of parole;(m)any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.(2) Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL. Section 19ALA, whilst setting out a wide range of factors that the Attorney-General “may” take into account, does not expressly make consideration of any of the factors mandatory. Further, it does not limit the factors to which the Attorney-General may have regard: s 19ALA(2). The Attorney-General must afford procedural fairness in exercising the power under s 19AL(1). As Bromwich J observed in Lodhi v Attorney-General (Cth) [2020] FCA 1383 at [6(e)]:[T]he Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process In Khazaal v Attorney-General (Cth) [2020] FCA 448 at [66], Wigney J observed:… [U]nlike the statutory schemes for the grant of parole in many of the States and Territories, there is no prescribed procedure that the Attorney must follow in considering and determining whether to make a parole order. There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole … of any particular information, and no express requirement that the person be given the opportunity to make submissions. There is no doubt, however, that the Attorney must afford procedural fairness to the person affected by the parole decision. As the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice.

Ratio Decidendi

Legal Principle Established

On 5 September 2021, the Commonwealth Parole Office sent a second “adverse comments letter”. The letter, quite similar to the first CPO letter, included:Parole considerationsThe decision-maker will be guided by the purposes of parole when deciding whether to grant or refuse your release on parole. The purposes of parole set out in section 19AKA of the Crimes Act 1914 (Cth) are:•the protection of the community•the rehabilitation of the offender, and•the reintegration of the offender into the community.You can expect that the decision-maker will take into account all relevant matters when deciding whether to grant or refuse your release on parole. This may include (but is not limited to) the matters in section 19ALA of the Crimes Act: …Procedural fairnessFederal offenders are not subject to a parole hearing. The decision making process occurs in accordance with the principles of procedural fairness (also known as natural justice). This requires that you be aware, or be made aware, of adverse information that is credible, relevant and significant to the decision whether to grant you parole, and that you are given the opportunity to address that information and respond to it.This letter is to give you the opportunity to respond to that information.Information receivedThe Attorney-General’s Department has received information relevant to the decision whether to grant you parole. This includes:•the agreed statement of facts or summary of your offending•the sentencing remarks•the psychiatric report prepared by Dr Antony Henderson, registered psychiatrist, dated 12 July 2020•the psychiatric report prepared by Dr Jeremy O’Dea, registered psychiatrist, dated 1 September 2020•the parole assessment report by Corrective Services NSW (CSNSW), which recommends your release on parole, and•the submissions provided to the department on your behalf received on 26 May 2018 [sic – 2020] and 28 May 2018 [sic – 2020].In an email to the Australian Government Solicitor on 11 August 2021, your legal representatives requested that the Attorney-General take into consideration the submissions filed with the Federal Court on 20 July 2021 when considering you for release on parole. I would be grateful if you could please confirm your agreement to these submissions being used as part of the parole consideration process. …Adverse mattersThe following matters may weigh against you being released on parole.You’ve previously been advised of and responded to these matters but you may wish to make additional submissions.Nature and circumstances of offenceYou can expect the Attorney-General (or a delegate) will have regard to the nature and circumstances of your offending. A summary of the nature and circumstances of the offence appears in the sentencing remarks, which are attached for your convenience.Given the serious nature and circumstances of your offending, the decision-maker may have concerns that in the event you reoffend in a similar manner, this would cause harm to further victims. …Your behaviour in custody and your criminal historyThe parole report indicates that you have largely displayed a satisfactory response to the custodial environment, incurring one misconduct offence for failing to comply with correctional centre routine. However, CSNSW advises that custodial case notes reflect that you exhibit manipulative and coercive behaviours. It is reported that on occasion you have become passive-aggressive, undermining and disrespectful towards custodial officers. These types of problematic interactions with custodial staff indicate you have an issue with figures of authority. These reports of instances of your poor behaviour in the custodial setting could also be interpreted as a continuation of your past behaviour in the community and to demonstrate that you retain a pro-criminal attitude.Your criminal history includes a prior conviction for common assault. You noted that this offending occurred during the commission of your current offences and you acknowledged that the assault was in some capacity an escalation of your offending behaviour. Considering the serious nature of your offending, its significant impact on your victims, and your previous offence of common assault, it appears that you have a pattern of offending. The decision-maker may consider that your release on parole at this time represents an unacceptable risk to the safety of the community.A person’s criminal history and conduct whilst in prison is considered to be a reliable indicator of their progress toward rehabilitation, their capacity to comply with conditions of parole upon release, their potential for successful reintegration into the community and the likelihood of their reoffending. Considering your previous conviction for common assault and the reports of your poor behaviour in prison and in some interactions with custodial officers, the decision-maker may have concerns that if you are released on parole at this time you will not respect the authority of your parole officer, comply with the conditions of a parole order or live a law abiding life.The applicant’s response to the second CPO letter