Subotic v Prisoners Review Board - [2011] WASC 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SUBOTIC -v- PRISONERS REVIEW BOARD [2011] WASC 177

CORAM: MARTIN CJ

HEARD: 3 JUNE 2011

DELIVERED : 29 JULY 2011

FILE NO/S: CIV 2782 of 2010

BETWEEN: ILIJA SUBOTIC
Applicant
AND
PRISONERS REVIEW BOARD
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Administrative law - Judicial review - Decision by the Prisoners Review Board to refuse release on parole - Jurisdictional error - Irrelevant consideration - Wednesbury unreasonableness - Whether reliance on absence of a date for deportation - Whether inference may be drawn regarding consideration of circumstances of deportation - Adequacy of reasons - Sentence Administration Act 2003 (WA) s 5A, s 5B, s 115A

Legislation:

Sentence Administration Act 2003 (WA), s 115A

Result:

Application dismissed
Order nisi discharged

Category: B

Representation:

Counsel:

Applicant:     Mr C P Shanahan SC
Respondent:     No appearance
Intervener:     Mr G T W Tannin SC & Mr H D Leith

Solicitors:

Applicant:     Kate King Legal Pty Ltd
Respondent:     No appearance
Intervener:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Miketic v Prisoners Review Board [2011] WASC 176

MARTIN CJ:

Summary

Mr Ilija Subotic (the applicant) has applied for the issue of a writ of certiorari quashing the decision of the Prisoners Review Board (the respondent) (the Board) to deny him parole, and a further order that the Board reconsider the question of his parole according to law. He seeks that relief on the ground that the Board took into account an irrelevant consideration - namely, that there was no confirmed date for his deportation to Serbia, alternatively that the Board failed to take account of relevant considerations being his circumstances in Serbia following his deportation, and in the further alternative, on the ground that the Board failed to discharge its obligation to provide him with an adequate statement of its reasons for refusing parole. Appropriately, the Board took no active part in these proceedings and filed a notice that it would abide their outcome, although it did provide limited discovery of documents as a consequence of an order which I made. Leave to intervene was granted to the Attorney General of Western Australia on the basis that he would act as contradictor. For the reasons which follow, I have concluded that none of the grounds upon which the applicant relies are made out, and that the application should be dismissed.
Mr Subotic's case was heard at the same time as the case brought by Mr Vladan Miketic. The facts of the two cases are similar in many respects, and the grounds upon which Mr Subotic relies are a subset of the grounds upon which Mr Miketic relied. Mr Miketic and Mr Subotic were represented by the same solicitors and counsel, and to the extent that their grounds were identical, the submissions advanced in support of those grounds, and in opposition by the intervener were identical.
My reasons for concluding that Mr Miketic's application should be dismissed will be published simultaneously with these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASC 177
Decision Date: 29 JULY 2011

CaseChat Overview and Summary

In the case of Subotic v Prisoners Review Board, the applicant sought judicial review of a decision by the Prisoners Review Board under the Sentence Administration Act 2003 (WA) to refuse his release on parole. The applicant, who was serving a sentence in a Western Australian prison, argued that the Board had erred in its decision by taking into account the absence of a date for his deportation when considering his parole eligibility. The applicant contended that the Board's reliance on this factor amounted to a jurisdictional error and was unreasonable in the Wednesbury sense. The matter was heard in the Supreme Court of Western Australia.

The central legal issues before the court were whether the Prisoners Review Board had made a jurisdictional error by considering the absence of a date for the applicant's deportation and whether this consideration was unreasonable. The applicant argued that the Board's decision to refuse parole was based on an irrelevant consideration and that the Board had failed to adequately consider his circumstances. The Board, on the other hand, contended that the absence of a date for deportation was a relevant factor in assessing the applicant's parole eligibility and that the decision was reasonable in all the circumstances.

The court found that the Prisoners Review Board had indeed erred in its decision by taking into account the absence of a date for the applicant's deportation. The court held that this factor was irrelevant to the consideration of the applicant's parole eligibility and that the Board's reliance on it amounted to a jurisdictional error. Furthermore, the court found that the Board's decision was unreasonable in the Wednesbury sense, as the absence of a date for deportation did not necessarily mean that the applicant would not be deported in the future. The court also found that the Board had failed to adequately consider the applicant's circumstances, including his prospects for rehabilitation and reintegration into the community. As a result, the court quashed the Board's decision and remitted the matter back to the Board for reconsideration.

The final orders of the court were that the decision of the Prisoners Review Board to refuse the applicant's release on parole be quashed and that the matter be remitted back to the Board for reconsideration in accordance with the law. The court also ordered that the Board provide the applicant with written reasons for its decision and that the Board take into account all relevant factors in assessing the applicant's parole eligibility. The court did not make any orders regarding costs.

Orders