Khazaal v Attorney-General

• Jurisdiction: Australia Federal only
• Judge: WIGNEY J
• Judgment Date: 06 April 2020
• Neutral Citation: [2020] FCA 448
• Date: 06 April 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Khazaal v Attorney-General [2020] FCA 448

File number:	NSD 1418 of 2019
Judge:	WIGNEY J
Date of judgment:	6 April 2020
Catchwords:	ADMINISTRATIVE LAW – procedural fairness – where applicant convicted of terrorism-related offence and sentenced to imprisonment for twelve years with a non-parole period of nine years – where Attorney-General refused to make a parole order – where applicant provided with adverse comments letter which disclosed or purported to disclose the main factors or issues in a number of reports that the Attorney-General had received from relevant agencies – whether Attorney-General disclosed all credible, relevant and significant adverse information concerning the applicant and parole decision concerning him – whether applicant had opportunity to make meaningful submissions about the adverse information – application dismissed
Legislation:	Crimes Act 1914 (Cth) ss 19AKA, 19AL(1), 19AL(2), 19AL(2)(a), 19AL(2)(a)(ii), 19AL(2)(b), 19ALA, 19ALA(1), 19ALA(1)(h) Criminal Code Act 1995 (Cth) Sch Criminal Code ss 101.5(1)
Cases cited:	Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 Butler v Queensland Community Corrections Board [2001] QCA 323 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; FCA 1074 Duxerty v Minister for Justice and Customs (2002) 136 A Crim R 373; FCA 1518 Habib v Director-General of Security (2009) 175 FCR 411; FCAFC 48 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Jaffarie v Director-General of Security (2014) 226 FCR 505; FCAFC 102 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; FCAFC 13 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; FCAFC 45 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; FCA 1113 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 R (King) v Secretary of State for Justice [2016] AC 384 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Snedden v Minister for Justice (2014) 230 FCR 82; [2014] FCAFC 156 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Westlake v Attorney-General [2017] FCA 1058
Date of hearing:	13 December 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Federal Crime and Related Proceedings
Category:	Catchwords
Number of paragraphs:	117
Counsel for the Applicant:	Mr D Hughes with Mr N Li
Solicitor for the Applicant:	Lawyers Corp Pty Ltd
Counsel for the Respondent:	Mr T Glover
Solicitor for the Respondent:	Attorney-General’s Department

ORDERS

		NSD 1418 of 2019
BETWEEN:	BELAL SAADALLAH KHAZAAL Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	6 April 2020

THE COURT ORDERS THAT:

1. The applicant’s application be dismissed.

2. The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1. In September 2009, Mr Belal Saadallah Khazaal was convicted of a terrorism-related offence and sentenced to imprisonment for 12 years with a non-parole period of nine years. The non-parole period of Mr Khazaal’s sentence expired on 30 August 2017. The Attorney-General of the Commonwealth has, however, refused to make an order directing that Mr Khazaal be released on parole. In this proceeding, Mr Khazaal challenged the Attorney’s most recent decision in that regard. He alleged, in summary, that the Attorney had denied him procedural fairness because he was not given him adequate notice of certain adverse information which the Attorney took into account in deciding to refuse his release on parole.

2. There is no doubt that the Attorney was required to afford Mr Khazaal procedural fairness in relation to his parole decision. The central issue in this proceeding is whether the Attorney fairly and adequately disclosed all credible, relevant and significant adverse information which was before him for the purposes of making the parole decision and whether Mr Khazaal had an opportunity to make meaningful submissions about that information.

FACTUAL BACKGROUND

3. On 25 September 2009, Mr Khazaal was convicted of the offence of making a document connected with assistance in a terrorist act, contrary to subs 101.5(1) of the Criminal Code, which is the Schedule to the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for 12 years with a non-parole period of nine years commencing on 31 August 2008. That sentence was eventually upheld following a protracted series of appeals. The effect of the sentence imposed on Mr Khazaal was that he was first eligible to be released on parole on 30 August 2017.

4. Subsection 19AL(1) of the Crimes Act 1914 (Cth) provides that the Attorney must, before the end of a non-parole period fixed for a federal sentence imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).

The Attorney refuses to make a parole order

5. On 8 August 2017, the Attorney refused to make a parole order for Mr Khazaal.

6. Subsection 19AL(2) of the Crimes Act provides that if the Attorney refuses to make a parole order under subs 19AL(1), the Attorney must, inter alia, reconsider the making of a parole order for the person and either make, or refuse to make, such an order within 12 months after the refusal.

7. On 27 July 2018, the Attorney reconsidered the making of a parole order for Mr Khazaal and again refused to make such an order. Mr Khazaal contended that the Attorney had failed to afford him procedural fairness in making that decision and requested that the Attorney remake the parole decision. The Attorney agreed to do so. Mr Khazaal subsequently commenced proceedings in this Court concerning the Attorney’s decision of 27 July 2018. The upshot of that proceeding was that the parties consented to orders which quashed the decision of 27 July 2018 and required the Attorney to reconsider whether to make a parole order in relation to the applicant.

The initial “adverse comments letter” and Mr Khazaal’s complaints about it

8. On 3 September 2018, a legal officer in the...