Kheir v Robertson - [2019] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0073

ALI KHEIR	Applicant
v
NEIL ROBERTSON (As Delegate of the Secretary to the Department of Justice and Regulation)	First Respondent
and
COMMISSIONER FOR CORRECTIONS	Second Respondent
and
THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION	Third Respondent

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JUDGES:	WHELAN, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 September 2019
DATE OF JUDGMENT:	16 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 229
JUDGMENT APPEALED FROM:	Kheir v Robertson [2019] VSC 422 (McDonald J)

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ADMINISTRATIVE LAW – Application for leave to appeal – Judicial review – Decision of delegate of Secretary to the Department of Justice and Regulation to refuse an application for ‘emergency management days’ – Delegate not satisfied applicant was of ‘good behaviour’ during emergency at the prison – Whether applicant denied procedural fairness – Duty to inquire – Whether delegate obliged to consider transcript of committal proceeding in which witnesses against applicant were said to have resiled from their original allegations – No denial, in the circumstances, of procedural fairness – Leave to appeal refused – Corrections Act 1986 s 58E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P G Nash QC	Access Law
For the First and Second Respondents	Mr L Brown (Crown Counsel) with Ms S M C Fitzgerald	Victorian Government Solicitor’s Office
For the Third Respondent	No appearance

WHELAN JA
McLEISH JA
WEINBERG JA:

This is an application for leave to appeal by Mr Ali Kheir (hereafter referred to as the applicant) against an order made by McDonald J in the Trial Division on 26 June 2019. His Honour dismissed an application for orders in the nature of certiorari and mandamus, as well as declaratory relief, arising out of an application for judicial review of a decision made by the first respondent, Mr Neil Robertson.

On 20 June 2018, Mr Robertson, acting in his capacity as a delegate of the third respondent, the Secretary to the Department of Justice and Regulation (‘the Secretary’), refused an application by Mr Kheir for a reduction in his sentence of imprisonment, and non-parole period, pursuant to s 58E of the Corrections Act 1986 (Corrections Act). That section deals with what are described as ‘emergency management days.’ It provides:

58E Emergency management days
(1)The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation—
(a)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.
(2)Subsection (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.

Section 58E must be read in conjunction with reg 100 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kheir v Robertson

Details

AGLC: Kheir v Robertson [2019] VSCA 229
Case: [2019] VSCA 229
Decision Date: 16 October 2019

CaseChat Overview and Summary

The applicant, Kheir, sought judicial review of a decision by a delegate of the Secretary to the Department of Justice and Regulation, refusing his application for ‘emergency management days’. The refusal was based on the delegate’s conclusion that the applicant was not of ‘good behaviour’ during an emergency at the prison. The applicant argued that the delegate failed to afford procedural fairness by not considering a transcript of committal proceedings, where witnesses against him had reportedly resiled from their original allegations. The court had to determine whether the delegate denied procedural fairness by not considering this transcript and whether there was a duty to inquire into the resiled allegations.

The court considered the nature of the decision-making process and the obligations of the delegate under the Corrections Act 1986. It examined whether the delegate was obliged to consider the transcript and whether there was a denial of procedural fairness in failing to do so. The court held that the delegate was not required to consider the transcript as the decision was based on the available evidence and the delegate’s assessment of the applicant’s behaviour during the emergency. Furthermore, the court found that there was no denial of procedural fairness since the delegate had a sufficient basis for his decision, and it was not necessary for him to inquire further into the resiled allegations.

Given the court's reasoning, it concluded that the delegate's decision did not constitute a denial of procedural fairness and that the applicant was not entitled to the relief sought. Consequently, the court dismissed the application for judicial review and refused leave to appeal. The decision underscores the importance of the delegate’s assessment of the evidence available at the time of decision-making, and the limited scope for judicial review in such administrative contexts.

Orders