Lazarus v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Lazarus v Attorney-General (Cth) [2024] FCA 1021

File number: NSD 652 of 2024
Judgment of: ABRAHAM J
Date of judgment: 6 September 2024
Catchwords: ADMINISTRATIVE LAW – application for judicial review of parole decision – whether Delegate failed to given proper, genuine and realistic consideration to relevant matters – whether decision gave rise to jurisdictional error – whether decision was an improper exercise of power – whether the decision was illogical, irrational or legally unreasonable – Crimes Act 1914 (Cth), ss 19AKA, 19AL(1), 19ALA – application dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Crimes Act 1914 (Cth) Part IB, Division 5, ss 16BA, 19AKA, 19AL, 19ALA

Criminal Code 1995 (Cth) ss 474.19(1)(a)(i),(ii), 474.22A(1), 474.26(1), 474.27A(1)

Cases cited:

Alexander v Attorney-General (Cth) [2019] FCA 1829

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

DYS21 v Attorney-General(Cth) [2021] FCA 1331; (2021) 288 FCR 607

Eden v Minister for Immigration and Border Protection [2016] FCAFC 28; (2016) 240 FCR 158

Khawajav Attorney-General (Cth) [2022] FCA 334; (2022) 293 FCR 396

Khazaal v Attorney-General [2020] FCA 448

Lazarus v R [2023] NSWCCA 214

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

Masri v Attorney-General (Cth) [2022] FCA 17; (2022) 398 ALR 509

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

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594

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

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Roberts v Attorney General [2022] FCA 574; (2022) 176 ALD 509

Salgadov Attorney-General (Cth) [2023] FCA 984

Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173

Stephens v Attorney-General [2021] FCA 204
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 88
Date of hearing: 19 August 2024
Counsel for the Applicant: Mr P Coady and Mr C J Beshara
Solicitor for the Applicant: Legal Aid NSW
Counsel for the Respondent: Mr T Glover
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 652 of 2024
BETWEEN:

GERARD DANIEL LAZARUS

Applicant
AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

6 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the costs of the respondent to be agreed or assessed.

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


REASONS…

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Details
Case
[2024] FCA 1021
Decision Date

CaseChat Overview and Summary

The applicant, Lazarus, sought judicial review of a decision by the Attorney-General (the respondent) not to release him on parole. The case before the court was an application for judicial review of the Attorney-General's decision, contesting whether the decision was made without proper, genuine, and realistic consideration of all relevant matters, and whether it constituted a jurisdictional error or an improper exercise of power. The legal issues before the court included whether the decision-maker properly considered all relevant matters and whether the decision was irrational, illogical, or legally unreasonable.

The court examined the statutory framework governing the Attorney-General's exercise of power under the Crimes Act 1914 (Cth) and the non-exhaustive list of matters that may be considered in parole decisions. The court noted that the power to release or not release a federal offender on parole is a matter for the Attorney-General, who has a significant degree of discretion within the bounds of legal reasonableness. The court assessed whether the decision-maker, in this case the Delegate, had genuinely exercised this discretion by considering all relevant matters and whether the decision fell within the range of possible lawful outcomes. The court found that the Delegate's decision to refuse parole was supported by the Departmental Submission and the Refusal Notice, which together provided a comprehensive consideration of all relevant factors.

The court dismissed the application for judicial review. It found that the Delegate had genuinely exercised his discretion by considering all relevant matters and that the decision did not give rise to jurisdictional error or represent an improper exercise of power. The court also determined that the decision was not irrational, illogical, or legally unreasonable, as it was supported by the material before the Delegate.

The final orders of the court were that the application for judicial review be dismissed, and the applicant was to pay the respondent's costs as agreed or assessed. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the costs of the respondent to be agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In making a decision under s 19AL, a non-exhaustive list of matters which may be considered is set out in s 19ALA:19ALA 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 likelihood that the person will comply with the conditions of the parole order;(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. The following propositions also emerge from the statutory framework governing the Attorney-General’s exercise of the power in s 19AL:(1)the power to release or not release a federal offender on parole concerns the administration of criminal justice;(2)that power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority);(3)s 19ALA, while setting out a wide range of factors that the Attorney-General can take into account, significantly, does not limit the factors to which the Attorney-General can have regard;(4)the legislation contains no process for how consideration of release on parole is to be undertaken. It is 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 case. What is required may vary having regard to what has already occurred and what is said or done during the process; and(5)when the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal).And see Lodhi at [6]; Stephens at [17]. Those propositions inform the boundaries of the delegate’s power, within which there is an area of ‘decisional freedom’ that permits a decision-maker genuinely free discretion: Eden v Minister for Immigration and Border Protection [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [62], citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [29] and [66]. That is, within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Eden at [62]; Li at [66]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [7]. Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105]; Stretton at [11].

Ratio Decidendi

Legal Principle Established

The respondent submitted, in essence, that the applicant’s submission relies on a failure to refer to material in the Refusal Notice as a basis for contending the Delegate did not consider (or properly consider) that material; takes statements out of context from the Refusal Notice, and the Departmental material before the Delegate; and that properly considered, the Delegate’s decision to refuse to release Mr Lazarus on parole, gave genuine and proper consideration to all relevant matters. The respondent contended that the Refusal Decision is not irrational, illogical and legally unreasonable.Consideration There are several observations to be made at the outset. First, regard can be had to the Departmental Submission in determining the material before the Delegate, and assessing whether that material could support the inference that he had applied the wrong test or was not “in reality” satisfied of the requisite matters: Stephens at [6]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (Palme) at [16] and [20]; and see Alexander v Attorney-General (Cth) [2019] FCA 1829 at [18]; Roberts v Attorney General [2022] FCA 574; (2022) 176 ALD 509 (Roberts) at [25]. In having regard to the Departmental Submission, it should be read as a whole; parts should not be taken out of context: Palme at [28]. Second, the applicant did not cavil with those principles yet, at least at times, did not adopt that approach in advancing his case. Although the applicant took issue with that proposition, his submissions reflect that the applicant is relying on the Refusal Notice’s failure to refer to a matter, as evidence that the Delegate did not consider the matter or take it into account in his decision, a conclusion which does not follow. Moreover, by addressing each of the four paragraphs in the Refusal Notice individually, the applicant had a tendency at times to take a statement out of context. As Lee J observed in Salgadov Attorney-General (Cth) [2023] FCA 984 (Salgado) at [21]:It was not incumbent upon the Delegate to refer to any particular circumstance in the Refusal Notice, nor was she required to refer to a shopping list of all or most factors raised on the material before her. That approach adopted by the applicant also took the paragraphs in the Refusal Notice out of the context of the Departmental Submission. The applicant similarly sought to draw inferences from the failure of the Departmental Submission to refer to certain matters. I also note the Court should be cautious in drawing inferences about what a decision-maker did or did not do, read or consider in exercising a statutory power, in the absence of any direct evidence about these matters: Roberts at [26], citing Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173 (Stambe) at [70]. That said, in this case, the purpose of the Departmental Submission was to provide the Delegate with information to make the decision: see Stambe at [74]-[75].