Lodhi v Attorney-General (Cth)

• Jurisdiction: Australia Federal only
• Judgment Date: 28 September 2020
• Neutral Citation: [2020] FCA 1383
• Court: Federal Court
• Date: 28 September 2020

Federal Court of Australia

Lodhi v Attorney-General (Cth) [2020] FCA 1383

File number:	NSD 551 of 2020
Judgment of:	BROMWICH J
Date of judgment:	28 September 2020
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of parole decision – terrorism offence – where the making of a parole order was statutorily prohibited unless Attorney-General satisfied that exceptional circumstances exist to justify the order pursuant to s 19ALB of Crimes Act 1914 (Cth) – where extrinsic legislative material of no assistance in determining judicial review application – where Court cannot conduct merits review – whether Attorney-General’s decision affected by Wednesbury unreasonableness or legal unreasonableness – whether Attorney-General failed to give adequate reasons – held: decision within range of permissible conclusions – decision not unreasonable only because different conclusions could have been reached – reasons adequate for jurisdictional task – application dismissed
Legislation:	Criminal Code (Cth) s 101.5, s 101.6 Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) s 15AA, s 19AKA, s 19AL(1), s 19AL(2), s 19ALA(1), s 19ALA(1)(h), s 19ALB(1), s 19ALB(2)(a), s 19AP(4) Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth) Acts Interpretation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) s 430(1), s 476(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(b)
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 Associate Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Baker v The Queen [2004] HCA 45; 223 CLR 513 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Hammoud v DPP (Cth) [2006] VSC 516 Hasim v Attorney-General (Cth) [2013] FCA 1433; 218 FCR 25 Hatcher v Cohn [2004] FCA 1548; 139 FCR 425 House v The King (1936) 55 CLR 499 Kruger v Commonwealth (1997) 190 CLR 1 Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; 68 AAR 86 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Minister for Immigration v Eden [2016] FCAFC 28; 240 FCR 158 Public Service Board v Osmond (1986) 159 CLR 656 R v JS [2007] NSWCCA 272; 230 FLR 276 R v Kelly (Edward) [2000] QB 198 at 208 R v NK [2016] NSWSC 498 R v Naizmand [2016] NSWSC 836 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; 229 FCR 537
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	97
Date of hearing:	26 August 2020
Counsel for the Applicant:	R Mathur with Z Alderton
Solicitor for the Applicant:	Bannisters Lawyers
Counsel for the Respondent:	T Glover
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 551 of 2020
BETWEEN:	FAHEEM KHALID LODHI Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent

order made by:	BROMWICH J
DATE OF ORDER:	28 september 2020

THE COURT ORDERS THAT:

1. The further amended originating application be dismissed.

2. The applicant pay the respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1. The applicant, Mr Faheem Lodhi, was sentenced to imprisonment for 20 years after being found guilty by a jury, and being convicted, of committing the federal offence of doing an act in preparation for a terrorist act contrary to s 101.6 of the Criminal Code (Cth), in the Schedule to the Criminal Code Act 1995 (Cth). Mr Lodhi was also found guilty, convicted and sentenced to 10-year concurrent sentences for each of two further federal offences of collecting documents connected with preparation for a terrorist act (Criminal Code, s 101.5(1)) and possessing a document connected with preparation for a terrorist act (Criminal Code, s 101.4(1)). He was acquitted on a fourth charge. Appeals against conviction and sentence were unsuccessful, and an application for special leave to appeal to the High Court was refused.

2. The three sentences were made subject to a single non-parole period of 15 years. Mr Lodhi was eligible for parole from 22 April 2019. He has been refused parole twice by the respondent, the Commonwealth Attorney-General, in April 2019 and April 2020. As a result, he has served well over 16 years in prison. His parole is required by statute to be considered again by the anniversary of the second parole decision, in April 2021, just prior to the completion of 17 years imprisonment.

3. After Mr Lodhi’s parole was refused the first time in April 2019, the federal parole provisions were made considerably harsher by providing that the Attorney-General must not make a parole order for someone in Mr Lodhi’s situation unless satisfied that “exceptional circumstances” exist to justify it. On 14 April 2020, the Attorney-General again refused to make a parole order (second parole decision). Very short reasons were given for that decision, in the context of a detailed submission, with 16 attachments, from the Attorney-General’s Department.

4. By a further amended originating application, Mr Lodhi seeks judicial review of the second parole decision, challenging the conclusion that exceptional circumstances had not been established.

The parole provisions as amended in 2019

5. Part 1B, Division 5, Subdivision A of the Crimes Act 1914 (Cth) provides for the release of federal offenders on parole or by licence. In the absence of any State or Territory sentences being served, the provisions that are relevant to the present situation of parole refusal relevantly state:

1. The purposes of parole are protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community: s 19AKA.

2. Before the end of a federal non-parole period, the Attorney-General must either make or refuse to make an order directing that the offender be released on parole: s 19AL(1).

3. If the Attorney-General refuses to make a parole order, within 14 days of that refusal written notice must be given informing the offender of the refusal, including reasons, and advising that reconsideration must take place within 12 months of that refusal: s 19AL(2).

4. In making a parole decision under s 19AL, the Attorney-General may have regard to a list of matters set out in s 19ALA(1), including in particular any report or information in relation to the granting of parole by the relevant State or Territory corrective services or parole agency: s 19ALA(1)(h).

5. Per s 19ALB(1), which came into effect on 12 December 2019:

Despite any law of the Commonwealth, the Attorney-General must not make a parole order in relation to a person...