FEDERAL COURT OF AUSTRALIA
Khazaal v Attorney-General [2020] FCA 448
File number: NSD 1418 of 2019 Judge: WIGNEY J Date of judgment: 6 April 2020 Catchwords: ADMINISTRATIVE LAW – procedural fairness – where applicant convicted of terrorism-related offence and sentenced to imprisonment for twelve years with a non-parole period of nine years – where Attorney-General refused to make a parole order – where applicant provided with adverse comments letter which disclosed or purported to disclose the main factors or issues in a number of reports that the Attorney-General had received from relevant agencies – whether Attorney-General disclosed all credible, relevant and significant adverse information concerning the applicant and parole decision concerning him – whether applicant had opportunity to make meaningful submissions about the adverse information – application dismissed Legislation: Crimes Act 1914 (Cth) ss 19AKA, 19AL(1), 19AL(2), 19AL(2)(a), 19AL(2)(a)(ii), 19AL(2)(b), 19ALA, 19ALA(1), 19ALA(1)(h)
Criminal Code Act 1995 (Cth) Sch Criminal Code ss 101.5(1)
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Butler v Queensland Community Corrections Board [2001] QCA 323
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; FCA 1074
Duxerty v Minister for Justice and Customs (2002) 136 A Crim R 373; FCA 1518
Habib v Director-General of Security (2009) 175 FCR 411; FCAFC 48
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Jaffarie v Director-General of Security (2014) 226 FCR 505; FCAFC 102
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection vSZSSJ (2016) 259 CLR 180
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; FCAFC 13
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; FCAFC 45
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1
R (King) v Secretary of State for Justice [2016] AC 384
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Snedden v Minister for Justice (2014) 230 FCR 82; [2014] FCAFC 156
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing: 13 December 2019 Registry: New South Wales Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 117 Counsel…
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- AGLC
- Khazaal v Attorney-General [2020] FCA 448
- Case
- [2020] FCA 448
- Decision Date
CaseChat Overview and Summary
The Federal Court was asked to determine whether the Attorney-General had afforded procedural fairness to Mr Khazaal in relation to his parole decision. Mr Khazaal had been convicted of a terrorism-related offence and was serving a 12-year sentence with a non-parole period of nine years. The Attorney-General had refused to make a parole order for Mr Khazaal, and Mr Khazaal argued that this decision was made without procedural fairness. The primary issues before the court were whether the Attorney-General had disclosed all credible, relevant, and significant adverse information concerning Mr Khazaal and whether Mr Khazaal had an opportunity to make meaningful submissions about that information.
The court found that the Attorney-General had indeed disclosed all necessary information to Mr Khazaal and that the information provided was not overly general to the point of preventing meaningful response. Although two alleged incidents involving Mr Khazaal were not specifically mentioned, they were deemed to be of no real significance to the decision-making process. The court noted that the Attorney-General considered multiple agency reports indicating that Mr Khazaal held a position of religious authority and influence, which was disclosed and responded to by Mr Khazaal. Therefore, the non-disclosure of the two incidents did not lead to any practical injustice. The adverse comments letter provided to Mr Khazaal adequately disclosed the critical issues and factors on which the Attorney-General's decision was likely to turn, and Mr Khazaal was given a fair opportunity to make submissions concerning the relevant issues.
As a result, the court concluded that Mr Khazaal's challenge to the Attorney-General's decision was without merit. The application was dismissed, and Mr Khazaal was ordered to pay the respondent's costs.
The court found that the Attorney-General had indeed disclosed all necessary information to Mr Khazaal and that the information provided was not overly general to the point of preventing meaningful response. Although two alleged incidents involving Mr Khazaal were not specifically mentioned, they were deemed to be of no real significance to the decision-making process. The court noted that the Attorney-General considered multiple agency reports indicating that Mr Khazaal held a position of religious authority and influence, which was disclosed and responded to by Mr Khazaal. Therefore, the non-disclosure of the two incidents did not lead to any practical injustice. The adverse comments letter provided to Mr Khazaal adequately disclosed the critical issues and factors on which the Attorney-General's decision was likely to turn, and Mr Khazaal was given a fair opportunity to make submissions concerning the relevant issues.
As a result, the court concluded that Mr Khazaal's challenge to the Attorney-General's decision was without merit. The application was dismissed, and Mr Khazaal was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The applicant’s application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
There is no doubt that the Attorney was required to afford Mr Khazaal procedural fairness in relation to his parole decision. The central issue in this proceeding is whether the Attorney fairly and adequately disclosed all credible, relevant and significant adverse information which was before him for the purposes of making the parole decision and whether Mr Khazaal had an opportunity to make meaningful submissions about that information.FACTUAL BACKGROUND On 25 September 2009, Mr Khazaal was convicted of the offence of making a document connected with assistance in a terrorist act, contrary to subs 101.5(1) of the Criminal Code, which is the Schedule to the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for 12 years with a non-parole period of nine years commencing on 31 August 2008. That sentence was eventually upheld following a protracted series of appeals. The effect of the sentence imposed on Mr Khazaal was that he was first eligible to be released on parole on 30 August 2017. Subsection 19AL(1) of the Crimes Act 1914 (Cth) provides that the Attorney must, before the end of a non-parole period fixed for a federal sentence imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).The Attorney refuses to make a parole order On 8 August 2017, the Attorney refused to make a parole order for Mr Khazaal. Subsection 19AL(2) of the Crimes Act provides that if the Attorney refuses to make a parole order under subs 19AL(1), the Attorney must, inter alia, reconsider the making of a parole order for the person and either make, or refuse to make, such an order within 12 months after the refusal. On 27 July 2018, the Attorney reconsidered the making of a parole order for Mr Khazaal and again refused to make such an order. Mr Khazaal contended that the Attorney had failed to afford him procedural fairness in making that decision and requested that the Attorney remake the parole decision. The Attorney agreed to do so. Mr Khazaal subsequently commenced proceedings in this Court concerning the Attorney’s decision of 27 July 2018. The upshot of that proceeding was that the parties consented to orders which quashed the decision of 27 July 2018 and required the Attorney to reconsider whether to make a parole order in relation to the applicant.The initial “adverse comments letter” and Mr Khazaal’s complaints about it On 3 September 2018, a legal officer in the Commonwealth Parole Office, which is an office within the Attorney’s Department which provides advice and assistance to the Attorney concerning parole decisions, wrote to Mr Khazaal’s solicitor on behalf of the Attorney and invited Mr Khazaal to “put forward anything that he would like the Attorney-General to take into account in his favour and to respond to factors which have been raised against his release on parole”. The letter also advised Mr Khazaal that the Parole Office had received reports from a number of agencies and that he should expect that the Attorney would “take into consideration matters raised in” those reports. The reports were from the New South Wales Department of Corrective Services, the Serious Offenders Review Council, the Proactive Integrated Support Model Program (PRISM), and the Australian Federal Police (AFP) and NSW Police Joint Counter Terrorism Team (JCTT).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Even putting to one side the responses that Mr Khazaal said he would have given had the information about the alleged incidents been disclosed to him, for the reasons already given, the information concerning the allegations about the two incidents was in any event of no real significance to the Attorney’s decision. There is no indication that the Attorney gave any consideration to those allegations, or gave them any weight. The Attorney did have regard to multiple agency reports which stated that Mr Khazaal identified himself as a person of religious authority and held a position of status, control and influence over others of the Islamic faith, both in custody and in the community. The substance of those reports was disclosed to Mr Khazaal and he responded to that information. The Attorney found, in effect, that Mr Khazaal in fact held that status as a religious figure, despite his apparent denials. There is no suggestion that the Attorney’s finding in that regard was in any way influenced by, or based on, the information about the allegations concerning the incidents. It follows that any response that Mr Khazaal may have given in relation to those allegations was highly unlikely to have influenced the Attorney’s decision or affected the outcome. CONCLUSION AND DISPOSITION Mr Khazaal failed to demonstrate that the Attorney denied him procedural fairness in refusing to make a parole order in his favour. The contentions advanced by Mr Khazaal in that regard have no merit. Relevant disclosures of information in the April adverse comments letter were not, as Mr Khazaal claimed, made at such a high level of generality to make meaningful response impossible. Nor was there any non-disclosure of adverse information which was credible, relevant and significant to the Attorney’s decision. While there was no specific disclosure of information concerning two alleged incidents involving Mr Khazaal that were referred to in one of the reports which was before the Attorney, that information was of no real significance to the Attorney’s decision. Nor was there any suggestion that the Attorney gave any specific consideration to that issue, or gave it any weight, in arriving at his decision. The non-disclosure of that information did not give rise to any practical injustice. The April adverse comments letter adequately and fairly disclosed the critical issues and factors on which the Attorney’s decision in respect of parole was likely to turn. It also adequately disclosed the substance and gravamen of any adverse information about Mr Khazaal which was known to the Attorney and was credible, relevant and significant to the decision. Mr Khazaal was given a fair and reasonable opportunity to make submissions concerning the issues and factors relevant to the Attorney’s decision and a fair and reasonable opportunity to respond to any relevant and credible adverse information which was before the Attorney. Mr Khazaal’s challenge to the Attorney’s decision must accordingly be dismissed with costs.
Ratio Decidendi
Legal Principle Established
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