FEDERAL COURT OF AUSTRALIA
Lee v Attorney-General (Cth) [2023] FCA 952
File number: QUD 205 of 2023 Judgment of: DOWNES J Date of judgment: 15 August 2023 Catchwords: ADMINISTRATIVE LAW – application for judicial review of parole decision under s 19AL(1) of the Crimes Act 1914 (Cth) – no jurisdictional error shown – application dismissed Legislation: Crimes Act 1914 (Cth) ss 19AKA, 19AL, 19ALA
Criminal Code Act 1995 (Cth) ss 11.1(1), 134.2(1), 145.1(1)
Cases cited: DYS21 v Attorney-General (Cth) (2021) 288 FCR 607; [2021] FCA 1331
Khawaja v Attorney-General (Cth) (2022) 293 FCR 396; [2022] FCA 334
Khazaal v Attorney-General [2020] FCA 448
Roberts v Attorney-General (Cth) (2022) 176 ALD 509; [2022] FCA 574
Division: General Division Registry: Queensland National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 60 Date of hearing: 2 August 2023 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr M McKechnie Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 205 of 2023 BETWEEN: ANTHONY ROBERT LEE
Applicant
AND: ATTORNEY-GENERAL OF THE COMMONWEALTH
Respondent
ORDER MADE BY:
DOWNES J
DATE OF ORDER:
15 AUGUST 2023
THE COURT ORDERS THAT:
1.The name of the respondent be changed to Attorney-General of the Commonwealth.
2.The originating application for judicial review is dismissed.
3.The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWNES J:
By his application, the applicant, Mr Anthony Lee, seeks judicial review of a decision made by a delegate of the respondent (the Attorney-General) refusing to make a parole order pursuant to s 19AL of the Crimes Act 1914 (Cth) (Refusal Decision).
For the following reasons, Mr Lee has failed to identify any jurisdictional error that would justify setting aside the Refusal Decision. This has the consequence that the application must be dismissed.
An order will also be made that the name of the respondent be changed to Attorney-General of the Commonwealth, which reflects the correct position.
BACKGROUND
Mr Lee is a citizen of New Zealand.
On 3 October 2018, Mr Lee was convicted of the following Commonwealth offences:
(1)five counts of obtaining financial advantage by deception pursuant to s 134.2(1) of the Criminal Code Act 1995 (Cth);
(2)one count of attempting to obtain financial advantage by deception pursuant to s 11.1(1) and s 134.2(1) of the Criminal Code; and
(3)two counts of using a forged document to induce a Commonwealth official pursuant to s 145.1(1) of the Criminal Code.
For these offences, Mr Lee was sentenced by the District Court of Queensland to a term of five years and ten months’ imprisonment, with a non-parole period of two years and six months.
On 2 August 2021, Mr Lee was convicted of two additional fraud offences and sentenced to a term of two years’ imprisonment. That sentence was ordered to be served concurrently for four months…
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- AGLC
- Lee v Attorney-General (Cth) [2023] FCA 952
- Case
- [2023] FCA 952
- Decision Date
CaseChat Overview and Summary
The Court examined the grounds for judicial review, including Mr Lee's claims of unfairness and inconsistency in the decision-making process. It found that the delegate had considered Mr Lee's response to an adverse comments letter and the Departmental Submission, which addressed his response in detail. The Court also noted that there was no prescribed obligation for the delegate to speak to Mr Lee personally. The decision to refuse parole was based on the nature and circumstances of Mr Lee's offending, his outstanding rehabilitative needs, and his criminal history, all of which were relevant considerations. The Court concluded that the decision did not involve any jurisdictional error or breach of natural justice.
The Court dismissed Mr Lee's application for judicial review and ordered that the respondent's name be changed to Attorney-General of the Commonwealth. The originating application was dismissed, and Mr Lee was ordered to pay the respondent's costs of the application. This case highlights the importance of considering relevant factors and adhering to procedural fairness in the parole decision-making process.
Orders
Orders of the court
1. The name of the respondent be changed to Attorney-General of the Commonwealth.
2. The originating application for judicial review is dismissed.
3. The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Section 19ALA of the Crimes Act sets out a non-exhaustive list of matters that may (not must) be considered by the Attorney-General in making a decision under s 19AL. However, it makes clear that the matters in question must be known to the Attorney-General and be relevant to the decision.CONSIDERATIONGrounds 1 and 2 Grounds 1 and 2 raise overlapping contentions and are appropriately dealt with together. Mr Lee’s overarching position in relation to these grounds is that he was treated unfairly, and that the Refusal Decision was inconsistent with previous decisions to refuse him parole. Within this theme, Mr Lee advanced a number of disparate arguments which will now be addressed. Mr Lee complains in his written submissions that he is not being “treated fairly” and that “[t]here is no Natural Justice [sic]”. By this, Mr Lee appears to contend that the Attorney-General failed to consider the case and supporting materials put forward by him, constituting an error of law and a breach of the rules of natural justice. At the hearing, Mr Lee appeared to confirm this, stating that the Attorney-General had “failed to recognise [his] written communication and breached the laws of natural justice and …consider procedural fairness”. In this case, where the Attorney-General invited Mr Lee to make submissions, procedural fairness required the delegate to consider any response to that invitation: Roberts at [37]. However, that is what occurred: the delegate did have regard to Mr Lee’s response to the adverse comments letter. The first page of the Refusal Decision states that Mr Lee’s response to the adverse comments letter had been considered by the delegate. The Refusal Decision also referred to aspects of Mr Lee’s response. Further, the delegate had regard to the Departmental Submission, which addressed Mr Lee’s response in detail. Mr Lee also complains that the delegate “has not spoken to [him] personally”. However, Mr Lee did not point to any circumstances which suggest that such action was required by the delegate to ensure procedural fairness. In any event, there was no prescribed obligation for the delegate to speak to Mr Lee. The delegate, having considered all of the relevant matters including Mr Lee’s response, decided to refuse to release Mr Lee on parole. Three primary reasons were cited for the refusal:(1)the nature and circumstances of Mr Lee’s offending, including the sentencing comments regarding the “substantial” amount of the fraud;(2)the fact that Mr Lee had “outstanding rehabilitative needs in relation to insight and financial management”, and did not “appear to have any post-release plans to manage [his] risk of future financial issues”; and(3)Mr Lee’s criminal history, which demonstrated a “pattern of offending behaviour”. Each of these reasons led the delegate to conclude that Mr Lee’s release on parole “would not benefit [his] rehabilitation and lawful reintegration into the community” and “would pose an unacceptable risk to the safety of the community”. The delegate was lawfully able to have regard to such considerations in reaching his conclusion.