Masri v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Masri v Attorney-General (Cth) [2022] FCA 17   

File number: NSD 669 of 2021
Judgment of: BROMWICH J
Date of judgment: 21 January 2022
Catchwords: ADMINISTRATIVE LAW – application for judicial review of Commonwealth Attorney-General’s delegate’s decision to refuse to grant parole – whether the delegate denied the applicant procedural fairness, failed to respond to or give genuine consideration to the applicant’s representations, was legally unreasonable or irrational or made a finding that was not open on the material before her – held: application dismissed.   
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(a)

Crimes Act 1914 (Cth) pt IB div 5 subdiv A, ss 19AKA, 19AL, 19ALA

Criminal Code (Cth), contained in the Schedule to the Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1)

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088

Khazaal v Attorney-General [2020] FCA 448

Kioa v West (1985) 159 CLR 550

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 49
Date of hearing: 28 September 2021
Counsel for the Applicant: D Hughes
Solicitor for the Applicant: One Group Legal
Counsel for the Respondent: T Glover
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 669 of 2021
BETWEEN:

ABEDELRAHMAN MASRI

Applicant
AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

21 JANUARY 2022

THE COURT ORDERS THAT:

1.The amended originating application dated 15 December 2021 be dismissed.

2.The applicant pay the respondent’s costs as assessed or agreed.

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


REASONS FOR JUDGMENT

BROMWICH J:

  1. In March 2020, the applicant, Mr Abedelrahman Masri, was sentenced to imprisonment for a federal offence of attempting to possess a commercial quantity of a border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth). His sentence of six years and three months, with a three year and three month non-parole period, was backdated to commence when he went into custody on 9 February 2018 and expires on 8 May 2024. He was eligible for parole from 8 May 2021. On 7 May 2021, a delegate of the Commonwealth Attorney-General, the respondent, decided to refuse Mr Masri parole. He applies for judicial review of that decision under s 39B of the Judiciary Act 1903 (Cth) and under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

    The legislative scheme for federal parole

  2. Part IB, Division 5, Subdivision A of the Crimes Act 1914 (Cth) provides for the release of federal offenders on parole or by licence. In the absence of any State or Territory sentences being served, the provisions that are relevant to the present situation of parole refusal relevantly state:

    (a)The…

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Details
Case
[2022] FCA 17
Decision Date

CaseChat Overview and Summary

The case of Masri v Attorney-General (Cth) involved Mr Masri seeking judicial review of a decision by a delegate of the Commonwealth Attorney-General to refuse his application for parole. The Federal Court was required to determine whether the delegate denied Mr Masri procedural fairness, failed to respond to or give genuine consideration to his representations, was legally unreasonable or irrational, or made a finding that was not open on the material before her.

The court found that the delegate had carefully considered all relevant material before her, including submissions from an officer of the Attorney-General’s Department, reports from psychologists, and a pre-release report from Corrective Services New South Wales. The delegate provided detailed reasons for refusing parole, which addressed Mr Masri’s poor behaviour in prison, his rehabilitative needs, lack of insight into his offending, criminal history, and limited social support network. The court held that the delegate’s decision was not legally unreasonable or irrational, and that she had given genuine consideration to Mr Masri’s representations.

Accordingly, the court dismissed Mr Masri’s application for judicial review. The court found that the delegate’s decision to refuse parole was based on a thorough consideration of all relevant material, and that Mr Masri had not demonstrated any procedural unfairness or jurisdictional error on the part of the delegate. The court also held that Mr Masri’s application did not meet the threshold for practical injustice under the rules of natural justice.

The final orders of the court were that the amended originating application be dismissed, and that Mr Masri pay the respondent’s costs as assessed or agreed. The court emphasised that its decision was based on the material before the delegate at the time of the decision, and that it was not open to the court to substitute its own view for that of the delegate.

Orders

Orders of the court

1. The amended originating application dated 15 December 2021 be dismissed.

2. The applicant pay the respondent’s costs as assessed or agreed.

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

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Decision

Reasons for decision

The foregoing is subject to the requirement to demonstrate materiality so as to constitute jurisdictional error for the purposes of s 39B of the Judiciary Act, or practical injustice so as to constitute a breach of the rules of natural justice for the purposes of s 5(1)(a) of the ADJR Act.The decision-making process and result At the time of making the decision to refuse Mr Masri parole, the delegate had before her a detailed submission from an officer of the Attorney-General’s Department dated 6 May 2021, recommending that parole be refused. That submission to the delegate had the following eight documents attached:A:The sentencing judge’s remarks of 12 March 2020;B:A pre-release report from Corrective Services New South Wales (CSNSW) dated 22 December 2020, annexing a 24 February 2020 pre-sentence report from a psychologist, Professor Stephen Woods;C:A letter from the Attorney-General’s Department dated 30 March 2021 inviting comment on reasons why parole might be refused (adverse comments letter);D:A report from Professor Woods dated 27 April 2021, addressing the 30 March 2021 letter (Woods report);E:An expert certificate from Professor Woods dated 27 April 2021;F:An undated resume of Professor Woods;G:A letter from New South Wales Health dated 23 April 2021 concerning Mr Masri’s father;H:An email chain between 22 April and 3 May 2021 between an officer at the Attorney-General’s Department and the author of the pre-release report from CSNSW, concerning aspects of the Woods report and the pre-release report. The submission to the delegate concluded with a recommendation that the delegate refuse to grant parole to Mr Masri at that time, and that she sign an attached notice informing him of that decision. The delegate signed the submission indicating that she approved the recommendation to refuse parole and that she had signed the attached notice. There is nothing to suggest that the delegate, in signing the submission, did so without reading and considering its contents. The reasons in the delegate’s notice for refusing parole were as follows:[1] You have demonstrated poor behaviour throughout your time in prison, including violence, threats of violence against Corrections staff, possession of contraband and disregard of correctional centre routine. Your most recent prison misconduct offence occurred in July 2020. I am concerned about your capacity to comply with parole conditions and adjust to a law-abiding lifestyle.[2] You have outstanding rehabilitative needs relating to your substance abuse issues. Given the connection between your drug use and index offending, I am concerned that if you are released into the community without having completed targeted programs to manage your addiction to prescription drugs, you may relapse into substance abuse and reoffend.[3] You lack insight into your index offending, and prison misbehaviour. I am not satisfied that you have developed realistic and considered strategies to address factors relating to your offending and to reduce your risk of reoffending upon your release into the community.[4] Your criminal history, including dealing with proceeds of crime, obtaining financial advantage by deception and smuggling indicates a pattern of behaviour focussed on financial gain. I am not satisfied on the evidence before me that you have appropriate strategies in place to avoid reoffending.[5] Your limited social support network gives rise to a concern that upon your return to the community, you may become socially isolated or drawn to pro-criminal peer groups once more. I am concerned that this would increase your risk of relapsing into substance abuse and reoffending.[6] I note the purposes of parole set out in section 19AKA of the Crimes Act, being the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. I consider that your release on parole at this time would pose an unacceptable risk to community safety, which outweighs the benefits which parole would provide to assist in your rehabilitation and reintegration into the community.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.