Keliher v Attorney-General of the Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 16 December 2021
• Neutral Citation: [2021] FCA 1641
• Court: Federal Court
• Date: 16 December 2021

Federal Court of Australia

Keliher v Attorney-General of the Commonwealth of Australia [2021] FCA 1641

Review of:	TBA - Judicial Review
File number:	QUD 307 of 2021
Judgment of:	RANGIAH J
Date of judgment:	16 December 2021
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of decision of the Attorney-General to refuse the applicant parole – whether Attorney-General failed to consider submission that applicant’s release on parole would aid his rehabilitation and reduce his risk to the community – whether failure to consider submission that there was nothing further the applicant could do in custody to advance his rehabilitation or reduce his risk to the community – whether failure to give proper or adequate reasons for decision – whether decision legally unreasonable – application dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) Crimes Act 1914 (Cth) ss 19AB, 19AKA, 19AL, 19ALA Criminal Code Act 1995 (Cth) s 474.24A Migration Act 1958 (Cth) s 430
Cases cited:	Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 Duxerty v Minister for Justice and Customs [2002] FCA 1518; (2002) 136 A Crim R 373 Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 Khazaal v Attorney-General [2020] FCA 448 Leggett v Queensland Parole Board [2012] QSC 121 Lodhi v Attorney-General (Cth) [2020] FCA 1383 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Home Affairs v Omar (2019) 272 FCR 589 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543 Re The Australian Bank Employees Union; Ex Parte Citicorp Australia Limited (1989) 167 CLR 513 Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Division:	General Division
Registry:	Queensland
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	41
Date of hearing:	16 December 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

Table of Corrections
7 January 2022	In the third sentence of paragraph 38, “applicant’s” has been replaced with the word “respondent’s”.

ORDERS

		QUD 307 of 2021
BETWEEN:	STEPHEN JAMES KELIHER Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent

order made by:	RANGIAH J
DATE OF ORDER:	16 DECEMBER 2021

THE COURT ORDERS THAT:

1. The name of the respondent be amended to Attorney-General of the Commonwealth of Australia.

2. The application be dismissed.

3. The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1. The applicant is imprisoned under a federal sentence of imprisonment. On 3 September 2021, the respondent made a decision under s 19AL(1) of the Crimes Act 1914 (Cth) (the Crimes Act) refusing to release the applicant on parole.

2. The applicant has brought an application for judicial review of the respondent’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the amended originating application are, relevantly, as follows.

1. The respondent erred in law in failing to consider, in the sense of directing an active intellectual process towards, submissions made by the applicant’s solicitor and a report from a forensic psychologist, Dr Bruce Hamilton which together encapsulated the applicant’s case to be granted parole.

Particulars

(a) Failure to consider the primary submission advanced by the applicant’s solicitor, supported by Dr Hamilton’s report, which was that release of the applicant on parole, subject to conditions, would aid his rehabilitation and reduce his risk to the community.

(b) Failure to consider the submission that there was nothing further that the applicant could do in custody to reduce his risk to the community or advance his rehabilitation.

2. The respondent breached the requirements of natural justice/procedural fairness in that she failed to consider, in the sense of directing an active intellectual process towards submissions made by the applicant’s solicitor and a report from a forensic psychologist, Dr Bruce Hamilton which encapsulated the applicant’s case to be granted parole.

Particulars

(c) Failure to consider the primary submission advanced by the applicant’s solicitor, supported by Dr Hamilton’s report, which was that release of the applicant on parole, subject to conditions, would aid his rehabilitation and reduce his risk to the community.

(d) Failure to consider the submission that there was nothing further that the applicant could do in custody to reduce his risk to the community or advance his rehabilitation.

…

4. In the alternative to grounds 1 and 2 above, the respondent failed to give proper or adequate reasons for her decision and thus failed to comply with s. 19AL(2) of the Crimes Act, 1914 (Cwth).

Particulars

(a) The respondent’s reasons failed to respond to and engage with submissions made by the applicant’s solicitor and a report from a forensic psychologist, Dr Bruce Hamilton which encapsulated the applicant’s case to be granted parole.

5. The respondent’s decision was affected by legal unreasonableness.

Particulars

(a) The respondent ignored the expert evidence of Dr Hamilton, in favour of her lay opinion as to the following matters,

(i) Whether the applicant’s adherence to his stance that his interest in child exploitation material was relevant to his treatment and ongoing management.

(ii) Whether the supervision and monitoring that he required was best completed in the community.

3. On 8 December 2017, the Supreme Court of Queensland sentenced the applicant to seven-and- a-half years’ imprisonment for using a carriage service to make child pornography on three or more occasions, contrary to s 474.24A(1) of the Criminal Code Act 1995 (Cth). The term of imprisonment will expire on 18 September 2024.

4. On 9 July 2021, the Attorney-General’s Department wrote to the applicant setting out a number of considerations relevant to a decision as to whether to release him on parole and invited his comment.

5. The applicant’s solicitors provided undated written submissions in response. The submissions enclosed a report of a psychologist, Dr Bruce Hamilton. Those submissions stated, inter alia:

3. Our primary submission is that it is in the interests of community safety that Mr Keliher be granted parole subject to conditions. This is because releasing him on parole is likely to assist him to adjust to lawful community life (s. 19ALA(1)(k) Crimes Act 1914 (Cth) (the Act)), and thus reduce the risk of his reoffending. The facts, evidence and reasoning leading to that submission are developed below, whilst at the same time dealing with the CPO’s adverse comments letter.

…

19. It is also suggested Mr Keliher’s continued stance undermines his efforts at rehabilitation, his remorse and his insight. This is a flawed proposition...