Stephens v Attorney-General

• Jurisdiction: Australia Federal only
• Judgment Date: 11 March 2021
• Neutral Citation: [2021] FCA 204
• Court: Federal Court
• Date: 11 March 2021

Federal Court of Australia

Stephens v Attorney-General [2021] FCA 204

File number:	QUD 352 of 2020
Judgment of:	ABRAHAM J
Date of judgment:	11 March 2021
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of parole decision – whether applicant was denied procedural fairness – whether decision was an improper exercise of power – whether Attorney-General failed to consider relevant matters – whether decision within range of permissible conclusions.
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Crimes Act 1914 (Cth) ss 19AKA, 19AL, 19ALA Migration Act 1958 (Cth) s 430(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) Criminal Code Act 1995 (Cth) s 474.19
Cases cited:	Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 Khazaal v Attorney-General (Cth) [2020] FCA 448 Lodhi v Attorney-General (Cth) [2020] FCA 1383 Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; (2015) 68 AAR 86 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	65
Date of hearing:	9 February 2021
Counsel for the Applicant:	Mr. L Karp
Solicitor for the Applicant:	Fisher Dore Lawyers
Counsel for the Respondent:	Mr. T Glover
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		QUD 352 of 2020
BETWEEN:	BEVAN ALLAN STEPHENS Applicant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	11 March 2021

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the costs of the respondent as agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. On 6 September 2018, Mr Stephens was sentenced in the District Court of Queensland to four years’ imprisonment with a non-parole period of 20 months for one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (the Criminal Code). On the same date, he was also sentenced to four years’ imprisonment to be suspended after 20 months for nine offences of knowingly possessing child exploitation material and making child exploitation material contrary to the Criminal Code Act 1899 (Qld). That sentence was ordered to be served concurrently with the Commonwealth offence.

2. The statutory scheme for parole of persons serving sentences of imprisonment for Commonwealth offences vests the power in the Attorney-General of the Commonwealth of Australia: s 19AL of the Crimes Act 1914 (Cth). On 5 May 2020, a delegate of the Attorney-General declined to release Mr Stephens on parole. The effect of this decision was that the Attorney-General was required to reconsider whether to release Mr Stephens on parole within 12 months of the date of the decision: s 19AL(2)(b) of the Crimes Act. The delegate’s decision said that a reconsideration of the matter should occur within six months, being 5 November 2020. For the purposes of that reconsideration, Mr Stephens and his solicitor on his behalf provided submissions in support of his release. On 26 October 2020, the Attorney-General declined to release the applicant on parole (Refusal Decision).

3. The applicant seeks judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) of the Refusal Decision made by the Attorney-General on 26 October 2020, to refuse to release him on parole pursuant to s 19AL of the Crimes Act.

4. For the reasons below the application is dismissed.

Material before the Court

5. The Court has before it the Refusal Decision. It also has the submission from the Attorney-General’s Department to the Attorney-General (Departmental Submission) which comprises the material that was before the Attorney-General at the time he made the Refusal Decision. Although the Attorney-General’s determination is recorded on the front page of the Departmental Submission, the Departmental Submission does not constitute a statement of the Attorney-General’s reasons. The Attorney-General’s reasons appear in the Refusal Notice.

6. Regard can be had to the Departmental Submission in determining the material before the Attorney-General, and assessing whether that material could support the inference that he had applied the wrong test or was not ‘in reality’ satisfied of the requisite matters: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (Palme) at [16] and [20]. In having regard to the Departmental Submission, it should be read as a whole; parts should not be taken out of context: Palme at [28].

7. The Departmental Submission is a 105 page document with 12 attachments including:

1. a draft parole order: Attachment A;

2. a draft refusal notice: Attachment B;

3. case analysis: Attachment C;

4. the sentencing remarks: Attachment D; and

5. letters from the applicant to the Department dated 2 July 2020 and 12 August 2020: Attachment I;

6. a submission on his behalf by his solicitors in support of the applicant’s release dated 30 September 2020: Attachment K; and

7. a submission by the applicant in response to the adverse comments letter dated 30 September 2020: Attachment I.

8. Attachment C, which is entitled ‘Reconsideration for release of federal offender, Bevan Allan Stephens, on parole by 5 November 2020’ (Case Analysis), commences with the subheading “proposed action”, being the recommendation that the applicant be released on parole. The document thereafter contains a detailed analysis of considerations in favour of, and against, the applicant’s release on parole. This included inter alia, the nature and circumstances of the offences, comments by the sentencing Court, parole reports, information submitted by the applicant, and by him and his solicitors in respect to the adverse comments process. The Case Analysis addressed the...