FEDERAL COURT OF AUSTRALIA
Stephens v Attorney-General [2021] FCA 204
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:
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
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
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.