Masri v Attorney-General (Cth)

• Jurisdiction: Australia Federal only
• Judgment Date: 21 January 2022
• Neutral Citation: [2022] FCA 17
• Court: Federal Court
• Date: 21 January 2022

Federal Court of Australia

Masri v Attorney-General (Cth) [2022] FCA 17

File number:	NSD 669 of 2021
Judgment of:	BROMWICH J
Date of judgment:	21 January 2022
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of Commonwealth Attorney-General’s delegate’s decision to refuse to grant parole – whether the delegate denied the applicant procedural fairness, failed to respond to or give genuine consideration to the applicant’s representations, was legally unreasonable or irrational or made a finding that was not open on the material before her – held: application dismissed.
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(a) Crimes Act 1914 (Cth) pt IB div 5 subdiv A, ss 19AKA, 19AL, 19ALA Criminal Code (Cth), contained in the Schedule to the Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1) Judiciary Act 1903 (Cth) s 39B
Cases cited:	Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Khazaal v Attorney-General [2020] FCA 448 Kioa v West (1985) 159 CLR 550 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	49
Date of hearing:	28 September 2021
Counsel for the Applicant:	D Hughes
Solicitor for the Applicant:	One Group Legal
Counsel for the Respondent:	T Glover
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 669 of 2021
BETWEEN:	ABEDELRAHMAN MASRI Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent

order made by:	BROMWICH J
DATE OF ORDER:	21 January 2022

THE COURT ORDERS THAT:

1. The amended originating application dated 15 December 2021 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:

1. In March 2020, the applicant, Mr Abedelrahman Masri, was sentenced to imprisonment for a federal offence of attempting to possess a commercial quantity of a border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth). His sentence of six years and three months, with a three year and three month non-parole period, was backdated to commence when he went into custody on 9 February 2018 and expires on 8 May 2024. He was eligible for parole from 8 May 2021. On 7 May 2021, a delegate of the Commonwealth Attorney-General, the respondent, decided to refuse Mr Masri parole. He applies for judicial review of that decision under s 39B of the Judiciary Act 1903 (Cth) and under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

The legislative scheme for federal parole

2. Part IB, 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 express 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 from prison 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).

3. Mr Masri does not take issue with the following characterisation of the statutory framework for making federal parole decisions contained in the Attorney-General’s written submissions:

a. the power to release or not release a federal offender on parole concerns the administration of criminal justice;

b. that power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority);

c. s 19ALA, while setting out a wide range of factors that the Attorney-General an take into account – significantly – does not limit the factors to which the Attorney-General can have regard;

d. the legislation contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process; and

e. when the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal).

4. Both Mr Masri and the Attorney-General relied upon certain observations made by Wigney J in Khazaal v Attorney-General [2020] FCA 448. His Honour relevantly said:

[66] The main observation that may be made about the statutory scheme for the making of parole decisions in respect of federal offences is that, unlike the statutory schemes for the grant of parole in many of the States and Territories, there is no prescribed procedure that the Attorney must follow in considering and determining whether to make a parole order. There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole … of any particular information, and no express requirement that the person be given the opportunity to make submissions. There is no doubt, however, that the Attorney must afford procedural fairness to the person affected by the parole decision. As the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice.

[67] The terms of subs 19ALA(1) of the Crimes Act would suggest that procedural fairness would require, at a minimum, that the Attorney advise the person affected by the decision of any information known to the Attorney in respect of any of the matters referred to in that subsection which are, or might be, relevant to the parole decision. Of course, as the list of matters in subs 19ALA(1) is non-exhaustive, the Attorney would also be required to advise the person of any other information known to the Attorney which fell outside the list but was nevertheless relevant to the decision. That would include, in particular, any adverse information which was credible, relevant and significant to the decision.

[68] Procedural fairness would also require that the person affected by the parole decision be given an opportunity to address the information notified to him or her by the Attorney and to advance any submissions that the person may wish to make in support of the making of a parole order. The opportunity afforded to the person in that regard must undoubtedly be real and meaningful. It follows that the...