Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 10 December 2021
• Neutral Citation: [2021] FCA 1543
• Court: Federal Court
• Date: 10 December 2021

Federal Court of Australia

Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543

Review of:	Decision of the Assistant Minister to the Attorney-General of the Commonwealth of Australia
File number:	QUD 149 of 2021
Judgment of:	RANGIAH J
Date of judgment:	10 December 2021
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of decisions of the Assistant Minister to refuse the applicants parole – whether Assistant Minister failed to consider the applicants’ submission that their rehabilitative progress made the present time optimal for their release – ground rejected – whether Assistant Minister failed to consider submission that the applicants’ youngest child was struggling in their absence – ground upheld – consideration of materiality of error – whether Assistant Minister’s reliance on risk to community safety in the absence of express reasoning or findings was illogical or legally unreasonable – ground dismissed – whether Assistant Minister’s reasons were inadequate – ground dismissed – application allowed – Assistant Minister’s decisions set aside and remitted
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16 Crimes Act 1914 (Cth) ss 19AB, 19AKA, 19AL, 19ALA and 19ALB Migration Act 1958 (Cth) s 430(1)
Cases cited:	Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Dornan v Riordan (1990) 24 FCR 564 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 Khazaal v Attorney-General [2020] FCA 448 Leggett v Queensland Parole Board [2012] QSC 121 Lodhi v Attorney-General (Cth) [2020] FCA 1383 McGrane v Queensland State Parole Board [2010] QSC 209 Minister for Home Affairs v Ogawa (2019) 269 FCR 536 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NBMZ v Minister for Immigration and Border Protection (2018) 220 FCR 1 Re The Australian Bank Employees Union; Ex Parte Citicorp Australia Limited (1989) 167 CLR 513 Soliman v University of Technology, Sydney (2012) 207 FCR 277 Williams v Minister for the Environment and Heritage (2003) 74 ALD 124
Division:		General Division
Registry:		Queensland
National Practice Area:		Federal Crime and Related Proceedings
Number of paragraphs:	83
Date of hearing:	13 September 2021
Counsel for the Applicants:	Mr M Black
Solicitor for the Applicants:	Fisher Dore Lawyers
Counsel for the Respondent:	Mr T Glover
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		QUD 149 of 2021
BETWEEN:	ISIKELI FELEATOUA PULINI First Applicant ; MALAVINE PULINI Second Applicant
AND:	ASSISTANT MINISTER TO THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent

order made by:	RANGIAH J
DATE OF ORDER:	10 DECEMBER 2021

THE COURT ORDERS THAT:

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

2. The respondent’s decisions of 14 April 2021 to refuse the first and second applicant parole are set aside.

3. The matters are remitted to the respondent to decide according to law.

4. The respondent pay the applicants’ costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

Introduction	[1]
Background	[5]
Legislative framework	[24]
Consideration	[31]
Ground 1: Failure to consider submissions advanced by the applicants	[31]
Ground 2: Risk and illogicality	[70]
Ground 3: Inadequate reasons	[79]
Conclusion	[82]

Introduction

1. The applicants are each imprisoned under federal sentences of imprisonment. The first applicant (Mr Pulini) is the husband of the second applicant (Mrs Pulini).

2. On 14 April 2021, the respondent (the Assistant Minister) made a decision refusing to release Mr Pulini on parole, and a separate decision refusing to release Mrs Pulini on parole (together, the refusal decisions).

3. The applicants have brought an application for judicial review of the refusal decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Their application is made upon the following grounds:

1. The Assistant Minister was bound, but failed, to consider substantial and clearly articulated claims or contentions made by the applicants, in breach of the rules of natural justice.

2. The Assistant Minister’s reliance on “risk to community safety” in the absence of any findings or reasoning about that risk was illogical or legally unreasonable.

3. The Assistant Minister failed to give reasons or adequate reasons for either of the refusal decisions.

4. The applicants seek orders setting aside the refusal decisions and remitting the matters for reconsideration according to law.

Background

5. On 16 April 2019, Mr Pulini was sentenced to five years’ imprisonment (with a non-parole period of two years) for offences of harbouring an unlawful non-citizen and causing a person to enter or remain in forced labour. Mr Pulini is detained at the Palen Creek Correctional Centre in Queensland. His term of imprisonment expires on 15 April 2024.

6. On 16 April 2019, Mrs Pulini was sentenced to six years’ imprisonment (with a non-parole period of two years) for offences of trafficking in a person, harbouring an unlawful non-citizen, and causing a person to enter into or remain in forced labour. Mrs Pulini is detained at the Southern Queensland Correctional Centre. Her term of imprisonment expires on 15 April 2025.

7. On 4 June and 30...