FEDERAL COURT OF AUSTRALIA
Roberts v Attorney-General (Cth) [2022] FCA 574
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- Case
- [2022] FCA 574
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Attorney-General had failed to consider arguments presented by Mr Roberts, whether the decision was affected by procedural unfairness, and whether the decision lacked evident and intelligible justification. The court examined the principles of administrative law relevant to judicial review, including the statutory framework for parole decisions and the broad discretion afforded to the Attorney-General. The court considered whether the Attorney-General's decision to balance the risks of release against the risks of refusal of parole was supported by the evidence and whether the decision-making process was fair.
The court found that the Attorney-General had properly exercised her discretion by considering all relevant factors, including those raised by Mr Roberts. The decision was supported by material evidence and did not exhibit procedural unfairness or lack of justification. The court held that it was not appropriate to conduct merits review of the decision and that the Attorney-General was entitled to rely on departmental advice. The detailed submissions made by Mr Roberts were adequately addressed in the decision-making process, and the decision was well-reasoned and justifiable.
The final order of the court was to dismiss the amended originating application with costs. The court ruled that the application for judicial review was without merit and that the decision of the Attorney-General should be upheld.
Orders
Orders of the court
1. The amended originating application be dismissed with costs.
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
Ratio Decidendi
Legal Principle Established
The Court should, above all, be guided by the overarching purpose of the law concerning procedural fairness, to “avoid practical injustice”: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (at [37] per Gleeson CJ); Masri (at 517 [26] per Bromwich J). E.2 Consideration In substance, review grounds one and two allege no legal error. Mr Roberts’ contention that the Attorney-General did not adequately address his submissions reflects his subjective and unsurprising view that the Attorney-General did not make the correct decision. This Court cannot indulge in merits review of the Attorney-General’s decision. The remarks of Allsop CJ, Besanko and O’Callaghan JJ in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 (at 23 [103]–[105]), albeit made in a different statutory context, are instructive. Parliament has made clear that the Attorney-General may refuse to make a parole order, on the condition reasons for the decision are provided, and with the liberty to consider the factors in s 19ALA of the Crimes Act. If the Attorney-General does so, she has properly exercised the jurisdiction entrusted to her. Whether or not another person in the Attorney-General’s position would have come to the same decision is not to the point. A cynic might speculate that the documents recording the decision-making process undertaken by the Attorney-General might suggest that what was going on was some sort of kabuki dance, involving no more than the uncritical adoption of the advice of a departmental officer. But such a submission is not made, and such an inference should not be lightly drawn. The Attorney-General was entitled to obtain assistance from departmental officers, although the relevant question is directed to what the Attorney-General considered, not what members of the Department considered. As noted above, that question may be answered by drawing appropriate inferences from the relevant circumstances, including the Refusal Notice and the material prepared by the Attorney-General’s Department: Khawaja (at [95] per Thawley J). As explained above at [22]–[23], the combined operation of s 19AL(2) of the Crimes Act and s 25D of the AI Act requires only that the Attorney-General “set out” any findings of fact that she did in fact make and considered material to the decision not to grant parole. Each of the four arguments that Mr Roberts alleges were not properly considered by the Attorney-General (enumerated above at [35]) was indeed dealt with on the face of the Refusal Notice, and with considerable depth and care in the Departmental Submission. There is no injustice in having submissions addressed at length in a submission to the Attorney-General, or on the covering page to the Departmental Submission, rather than being explicitly referred to in the Attorney-General’s reasons. What matters is the fact that the submissions were considered by the Attorney-General, not the manner in which that consideration was recorded: Masri (at 517–518 [27] per Bromwich J).