Ahmad v Attorney-General (Cth)

• Jurisdiction: Australia Federal only
• Judgment Date: 27 October 2022
• Neutral Citation: [2022] FCA 1270
• Date: 27 October 2022
• Court: Federal Court

Federal Court of Australia

Ahmad v Attorney-General (Cth) [2022] FCA 1270

File number(s):	NSD 761 of 2022
Judgment of:	ABRAHAM J
Date of judgment:	27 October 2022
Catchwords:	ADMINISTRATIVE LAW – judicial review of decision of a delegate of the Attorney-General of the Commonwealth of Australia – where delegate revoked applicant’s parole pursuant to s 19AU(1)(b) of the Crimes Act 1914 (Cth) and without notice pursuant to s 19AU(3)(ba) – whether there were or whether the delegate had reasonable grounds for suspecting the applicant failed to comply with a condition of his parole – whether delegate should have obtained further information – whether delegate failed to engage in active intellectual process or reasoned illogically – whether delegate failed to consider non-exercise of the discretion – whether delegate’s decision had improper purpose or took into account irrelevant considerations – application dismissed
Legislation:	Crimes Act 1914 (Cth) ss 19AKA, 19AL(1), 19AL(2), 19ALA, 19ALB(1), 19APB(1), 19AU(1)(b), 19AU(2), 19AU(3), 19AV(2), 19AW, 19AX Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) sch 7 pt 6 Criminal Code Act 1995 (Cth) ss 11.1(1), 307.2(1) Crimes Regulations 2019 (Cth) sch 1 form 8
Cases cited:	AOU21 v Minister for Home Affairs [2021] FCAFC 60 Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Cabal v Attorney-General (Cth) [2001] FCA 583; (2001) 113 FCR 154 Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62 Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Doan v Minister for Home Affairs [2019] FCA 1172 Dobie v Commonwealth [2013] FCA 1224; (2013) 216 FCR 300 Egan v Minister for Home Affairs [2021] FCAFC 85; (2021) 285 FCR 648 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566 Khazaal v Attorney-General (Cth) [2020] FCA 448 Lodhi v Attorney-General (Cth) [2020] FCA 1383 Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 McKinnon v Secretary Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minogue v Victoria [2019] HCA 31; (2019) 268 CLR 1 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Roberts v Attorney-General (Cth) [2022] FCA 574 Stephens v Attorney General (Cth) [2021] FCA 204 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Wang v Australian Securities and Investments Commission [2019] FCA 1178 Yoxon v Secretary to the Department of Justice [2015] VSC 124; (2015) 50 VR 5
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	149
Date of last submission/s:	4 October 2022
Date of hearing:	6 October 2022
Counsel for the Applicant:	Mr A Chhabra with Mr A Bhasin
Solicitor for the Applicant:	Karnib Saddik Law Firm
Counsel for the First Respondent:	Dr J Renwick CSC SC with Mr T Glover
Solicitor for the First Respondent:	Australian Government Solicitor
Solicitor for the Second and Third Respondents:	The Second and Third Respondents filed a submitting notice, save as to costs

ORDERS

		NSD 761 of 2022
BETWEEN:	YOUSSEF AHMAD Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH First Respondent ; MAGISTRATE MIRANDA MOODY Second Respondent ; MAGISTRATE DAVID PRICE Third Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	27 october 2022

THE COURT ORDERS THAT:

1. The applicant be granted leave to rely on the amended originating application filed 26 September 2022.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs to be agreed or assessed.

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 April 2018 the applicant, Youssef Ahmad, was sentenced by the District Court of New South Wales, for an offence of attempting to import a marketable quantity of a border-controlled drug contrary to ss 11.1(1) and 307.2(1) of the Criminal Code Act 1995 (Cth), to a term of imprisonment of five years commencing on 9 June 2018 and concluding on 8 June 2023, with a non-parole period of three years concluding on 8 June 2021. On 7 June 2021, a delegate of the first respondent, the Attorney-General of the Commonwealth of Australia (Attorney-General) made a parole order pursuant to s 19AL(1) of the Crimes Act 1914 (Cth) (Crimes Act) directing that the applicant be released from prison on parole the following day, subject to certain conditions.

2. The applicant seeks judicial review of a decision made by a delegate of the Attorney-General (the Delegate) on 25 July 2022, revoking his parole pursuant to s 19AU(1) of the Crimes Act (Revocation Decision). The applicant also seeks an order in the nature of a writ of habeas corpus.

3. The second and third respondents are magistrates of the Local Court of New South Wales. They respectively issued a warrant for the applicant’s arrest under s 19AV(2) of the Crimes Act, and made an order that the applicant be detained in custody under s 19AX(1)(b) of the Crimes Act. Each has filed appearances confirming that they submit to any order the Court may make in this proceeding.

4. By amended originating application dated 23 September 2022, the applicant alleges 9 grounds which are directed to claiming: there were no reasonable grounds for suspecting a breach of the condition of his parole order: grounds 1 and 2; there was a failure to obtain further information: grounds 3, 4 and 5; there was a failure to engage in an intellectual process and/or the Delegate’s decision was unreasonable or illogical: grounds 6 and 7; there was a failure to consider the non-exercise of the discretion: ground 8; and the Revocation Decision...