FEDERAL COURT OF AUSTRALIA
Salgado v Attorney-General (Cth) [2023] FCA 984
File number: NSD 704 of 2023 Judgment of: LEE J Date of judgment: 18 August 2023 Catchwords: ADMINISTRATIVE LAW – application for judicial review of parole refusal decision under s 19AL(1) of the Crimes Act 1914 (Cth) – whether delegate of Attorney-General failed to provide sufficient reasons – whether delegate failed to take into account relevant considerations – whether decision procedurally unfair – whether decision legally unreasonable – whether delegate made decision on no evidence – where no jurisdictional error identified – application dismissed Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 5(1)(a), 5(1)(b), 5(1)(e), 5(1)(h), 5(2)(a), 5(2)(b), 5(2)(g)
Crimes Act 1914 (Cth) ss 19AKA, 19AL, 19AL(2)(a)(i), 19AL(2)(a)(ii), 19AL(2)(b), 19ALA
Criminal Code Act 1995 (Cth) s 307.2
Judiciary Act 1903 (Cth) s 39B
Cases cited: Associate Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Khawaja v Attorney-General (Cth) [2022] FCA 334; (2022) 293 FCR 396
Khazaal v Attorney-General [2020] FCA 448
Lodhi v Attorney-General (Cth) [2020] FCA 1383
Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; (2015) 68 AAR 86
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590
Roberts v Attorney-General (Cth) [2022] FCA 574; (2022) 176 ALD 509
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 42 Date of hearing: 18 August 2023 Counsel for the applicant: Ms C Goodhand Solicitor for the applicant: Hope Criminal Lawyers Counsel for the respondent: Mr T Glover Solicitor for the respondent: Australian Government Solicitor ORDERS
NSD 704 of 2023 BETWEEN: LUIS SALGADO
Applicant
AND: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.The originating application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LEE J:
A INTRODUCTION AND BACKGROUND
The applicant, Mr Luis Salgado, seeks judicial review of a decision of a delegate of the Attorney-General of the Commonwealth of Australia (Delegate) to refuse to release him on parole pursuant to s 19AL of the Crimes Act 1914 (Cth) (Crimes Act).
In February 2020, Mr Salgado was arrested and charged with importing a marketable quantity of a border controlled drug into Australia (specifically, 900 times the marketable quantity of cocaine), contrary to s 307.2 of the Criminal Code Act 1995 (Cth)…
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- AGLC
- Salgado v Attorney-General (Cth) [2023] FCA 984
- Case
- [2023] FCA 984
- Decision Date
CaseChat Overview and Summary
The court examined each ground of review presented by Mr Salgado. It found that Mr Salgado had not established any of the alleged errors in the delegate's decision-making process. The court held that the delegate's decision, while perhaps not ideal, was not so unreasonable as to be legally flawed. The court considered the purposes of the Crimes Act 1914 (Cth), which include the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community, and found that the delegate had appropriately balanced these considerations in reaching the decision. The court further found that Mr Salgado had not demonstrated that the alleged errors, if they existed, were material to the outcome of the decision. Therefore, the application for judicial review was dismissed.
The court concluded that Mr Salgado had not demonstrated any jurisdictional error or legal unreasonableness in the delegate's decision to refuse his parole application. The court emphasised the importance of considering the purposes of the relevant legislation and the broad discretion afforded to the decision-maker. Given the lack of established errors, the court did not find it necessary to consider whether such errors were material to the decision.
The final orders of the court were that the originating application be dismissed with costs. The dismissal of the application indicates that the court found no merit in Mr Salgado's claims against the decision of the delegate.
Orders
Orders of the court
1. The 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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Accordingly, Ground One must fail. E.2 Grounds Two, Three and Five: Relevant Considerations and Natural Justice There was considerable overlap between Grounds Two, Three and Five, such that they can be dealt with together and they were not the focus of oral submissions. Mr Salgado’s originating application purported to advance two so-called “considerations” grounds: first, Ground Two, which alleged the Delegate placed undue emphasis on “irrelevant considerations”; and secondly, Ground Three, which alleged a failure on the Delegate’s part to account for “relevant considerations”. As it happened, Mr Salgado’s submissions were effectively directed towards Ground Three only. Counsel did not point to any “irrelevant” considerations referred to by the Delegate, nor cavil with the relevance of the factors referred to in the Refusal Notice (and referred to above in [21]). Ground Five alleged that the Delegate’s failure to account for relevant considerations constituted a breach of the rules of natural justice. Consistently with his approach to Ground One, Mr Salgado submitted the Delegate was required to take into account the factors set out above in [18]. Mr Salgado did not make any submissions directed to procedural fairness in support of Ground Five. Mr Salgado can only succeed on Ground Three if he establishes the Delegate was bound to take a factor into account and did not do so: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (at 39 per Mason J). Sections 19AL and 19ALA do not expressly require the Delegate to consider or give weight to any particular factor, but, as Thawley J reasoned in Khawaja (at 429–430 [92]), the responsible exercise of executive power in s 19AL(1) would generally involve consideration of, and an exercise of the power for, the purposes for which that power was conferred. Those purposes are set out in s 19AKA, namely the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community. Mr Salgado’s main complaint in writing was that the Refusal Notice does not expressly mention certain matters, being those listed above in [18]. At its highest, this seems to me to be a submission that the Refusal Decision focussed overwhelmingly on the protection of the community, at the expense of considering Mr Salgado’s rehabilitation and reintegration into the community. But, on the evidence before me, I cannot infer that the absence of express reference to these circumstances and considerations in the Refusal Notice meant the Delegate did not consider them. Indeed, “a finding by the Court that [a decision-maker] has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (at 364 [48] per Griffiths, White and Bromwich JJ).