Khawaja v Attorney-General (Cth)

• Jurisdiction: Australia Federal only
• Judgment Date: 04 April 2022
• Neutral Citation: [2022] FCA 334
• Date: 04 April 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Khawaja v Attorney-General (Cth) [2022] FCA 334

File number:	NSD 1375 of 2021
Judgment of:	THAWLEY J
Date of judgment:	4 April 2022
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of parole decision under s 19AL(1) of the Crimes Act 1914 (Cth) – where sentencing remarks considered the applicant’s mental illness causative of offending – where the Attorney-General’s reasons for decision did not refer to the applicant’s mental illness or disclose any consideration of the longer term risks to the community if parole were refused or of the rehabilitation of the offender or of the reintegration of the offender into the community – whether Attorney-General’s decision affected by legal unreasonableness – whether Attorney-General failed to afford procedural fairness – held: decision was legally unreasonable and made in a procedurally unfair manner – application allowed
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) Criminal Code Act 1995 (Cth) ss 135.1(7), 144.1(1) Crimes Act 1914 (Cth) ss 37(3), 43(1), 16BA, 19AKA, 19AL(1), 19AL(2), 19ALA(1), 19ALA(2) Judiciary Act 1903 (Cth) s 39B
Cases cited:	Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Khazaal v Attorney-General (Cth) [2020] FCA 448 King v Minister for Immigration and Border Protection [2014] FCA 766; 142 ALD 305 Lodhi v Attorney-General (Cth) [2020] FCA 1383 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031 MZAFS v Minister for Immigration and Border Protection [2016] FCA 75; 237 FCR 347 MZAPC v Minister for Immigration and Border Protection (2021) [2021] HCA 17; 95 ALJR 441 R v Khawaja [2020] NSWDC 718 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	124
Date of hearing:	31 March 2022
Counsel for the Applicant	Mr M Kalyk
Solicitor for the Applicant	Murphy’s Lawyers
Counsel for the Respondent	Mr T Glover
Solicitor for the Respondent	Australian Government Solicitor

ORDERS

		NSD 1375 of 2021
BETWEEN:	ARSALAN TARIQ KHAWAJA Applicant
AND:	ATTORNEY-GENERAL (CTH) Respondent

order made by:	THAWLEY J
DATE OF ORDER:	4 APRIL 2022

THE COURT ORDERS THAT:

1. The respondent’s refusal of parole decision made on 2 December 2021 be set aside.

2. The respondent reconsider the decision to make, or refuse to make, an order that the applicant be released on parole in accordance with section 19AL of the Crimes Act 1914 (Cth).

3. The proceeding be adjourned for a case management hearing at 9.00 am on 12 April 2022, or such other date as may be fixed, at which time the respondent:

(a) advise the Court as to whether a decision has been made in accordance with order 2; and

(b) if such a decision has not been made, show cause why an order in the nature of a writ of mandamus should not be made, compelling the respondent to make or refuse to make an order that the applicant be released on parole in accordance with subsection 19AL(1) of the Crimes Act 1914 (Cth) within a stipulated time.

4. Reserve liberty to the parties to apply, by email to the Associate to Justice Thawley, to seek a variation or vacation of order 3 and generally.

5. The respondent pay the applicant’s costs of and incidental to the proceeding.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

OVERVIEW

1 Mr Khawaja seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) of a decision made by the Attorney-General on 2 December 2021 under s 19AL(1) of the Crimes Act 1914 (Cth). The Attorney-General’s decision was one refusing to make an order directing that Mr Khawaja be released from prison on parole.

2 Mr Khawaja committed a number of serious offences in 2017 and 2018 for which he was sentenced on 5 November 2020. Consistently with the expert psychiatric evidence adduced by both the prosecution and the defence, the sentencing judge concluded that Mr Khawaja was suffering from a serious mental illness which had been undiagnosed and untreated at the time of the offences. He considered that the offences provided a “cogent explanation” for, and a substantial cause of, his offending.

3 The sentencing judge imposed a sentence of 4 years and 6 months, commencing on 27 December 2018 and expiring on 26 June 2023. His Honour imposed a shorter than typical non-parole period: 2 years and 6 months, expiring on 26 June 2021. This was done to “ensure the offender’s compliance with his undertakings in respect of his future psychiatric health care” which would be “both in the interest of the offender and in the public interest”. These interests were served because parole conditions could be imposed such that Mr Khawaja could be appropriately reintegrated to the community whilst being required to undergo recommended treatment and have his progress supervised.

4 The Attorney-General was required by s 19AL(1) of the Crimes Act to make a decision to grant or refuse parole before the end of Mr Khawaja’s non-parole period on 26 June 2021. Mr Khawaja was invited to and made submissions. The Attorney-General made a decision refusing parole on 22 June 2021. Mr Khawaja commenced judicial review proceedings in this Court on 20 July 2021. His application was supported by detailed written submissions. The Attorney-General consented to the decision being set aside on the basis that it was unlawful because it proceeded on a material misapprehension of the relevant facts. The first decision was set aside on 25 August 2021 and the Attorney-General was ordered to remake the decision.

5 Mr Khawaja was invited to and made further submissions. As he had done already in relation to the first decision, he submitted that the decision whether or not to grant parole would require a careful consideration of his...