Stephens v Attorney-General

Case [2021] FCA 204


FEDERAL COURT OF AUSTRALIA

Stephens v Attorney-General [2021] FCA 204   

File number: QUD 352 of 2020
Judgment of: ABRAHAM J
Date of judgment: 11 March 2021
Catchwords: ADMINISTRATIVE LAW – application for judicial review of parole decision – whether applicant was denied procedural fairness – whether decision was an improper exercise of power – whether Attorney-General failed to consider relevant matters – whether decision within range of permissible conclusions.
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Crimes Act1914 (Cth) ss 19AKA, 19AL, 19ALA

Migration Act 1958 (Cth) s 430(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Criminal Code Act 1995 (Cth) s 474.19

Cases cited:

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

Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

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

Khazaal v Attorney-General (Cth) [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 Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326

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

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67

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

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

Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 65
Date of hearing: 9 February 2021
Counsel for the Applicant: Mr. L Karp
Solicitor for the Applicant: Fisher Dore Lawyers
Counsel for the Respondent: Mr. T Glover
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 352 of 2020
BETWEEN:

BEVAN ALLAN STEPHENS

Applicant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

11 MARCH 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the costs of the respondent as agreed or taxed.

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


REASONS FOR JUDGMENT

ABRAHAM J:

  1. On 6 September 2018, Mr Stephens was sentenced in the District Court of Queensland to four years’ imprisonment with a non-parole period of 20 months for one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code…

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AGLC
Stephens v Attorney-General [2021] FCA 204
Case
[2021] FCA 204
Decision Date

CaseChat Overview and Summary

In the case of Stephens v Attorney-General, the applicant, a federal offender, sought judicial review of the respondent's decision to refuse his application for parole. The primary legal issue before the court was whether the respondent, the Attorney-General, had afforded the applicant procedural fairness and had exercised their power under section 19AL of the Crimes Act 1914 (Cth) appropriately. Specifically, the applicant contended that the Attorney-General failed to consider relevant submissions and arguments, including those presented by the applicant’s solicitors, which were critical to the decision-making process.

The court examined the statutory framework and noted that section 19ALA lists factors that may be considered by the Attorney-General when making a parole decision, but it does not limit the factors that can be taken into account. The court further highlighted that the Crimes Act does not prescribe a specific process for parole consideration, leaving it to the Attorney-General to determine a reasonable procedure. The court also referred to previous cases, such as Carrascalao and Lodhi, to emphasize the importance of a reasoned decision and the onus on the applicant to demonstrate a failure in procedural fairness.

The court concluded that the applicant had not discharged the onus of proving that the Attorney-General failed to consider relevant submissions or engaged in an inadequate decision-making process. The reasons provided in the Refusal Notice were found to be sufficient, and there was no clear evidence to suggest that the Attorney-General did not engage in an active intellectual process. The court held that the decision to refuse parole was within the range of permissible conclusions and that the applicant had not demonstrated any procedural unfairness.

The court dismissed the application and ordered that the applicant pay the costs of the respondent as agreed or taxed.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the costs of the respondent as agreed or taxed.

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 section 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 Attorney-General submitted, and it was not disputed by the applicant, that 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 Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially 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 particular 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 v Attorney-General (Cth) [2020] FCA 1383 at [6].

Ratio Decidendi

Legal Principle Established

In response, the applicant contended that the respondent has not addressed the issue raised, which was “whether it may reasonably be inferred from the reasons that consideration took place”, citing Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34]. He contended that Carrascalao is applicable in this case. It was submitted that the Attorney-General did not cite the Departmental Submission in his Refusal Notice, nor incorporate any part of them or address any of the arguments in those submissions or the applicant’s solicitor’s submissions, including the specific submission by his solicitors that the protection of the community is best served by the applicant’s release to a supervised parole order which was not summarised in the Case Analysis. He submitted that had they been considered, it may have been expected that they would be addressed in the Attorney-General’s Refusal Notice.Consideration There is no dispute that the applicant was entitled to be afforded natural justice, or procedural fairness, in relation to the Refusal Decision: Khazaal at [50]-[70]. The applicant’s submission is dependent on an inference being drawn from the Attorney-General’s failure to refer to the applicant’s submission or that of his solicitors in his Refusal Decision, is that he did not consider those submissions, relying on Carrascalao at [46]. However, as the Full Court observed in Carrascalao at [48], “a finding by the Court that the Minister 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”. Although there is not any challenge to the adequacy of the reasons given in the Refusal Notice, given the nature of the applicant’s submissions in this and the other grounds, it is necessary to consider the nature of a Refusal Notice in its statutory context. This was considered in Lodhi where Bromwich J addressed a ground of review which challenged the sparseness of a Refusal Notice. The Refusal Notice in that case is recited at [29]:This order for refusal of parole has been made for the following reasons:1.I have considered the reasons put forward by you and your legal representatives, but I do not consider that you have established exceptional circumstances that would justify your release on parole at this time.2.Given the length of time that you have served in custody, I agree with the recommendation from Corrective Services NSW that you not be granted parole at this time and that you would be best prepared for release on parole by continuing your progression through minimum security classifications to provide a well-managed transition into the community and enable Corrective Services NSW to assess your compliance.3.Given the serious nature of your offending, the Australian Federal Police remains concerned about the potential threat you may pose to community safety if you are released on parole at this time.