Supreme Court of WA|2011-07-29|Before: Martin CJ

MIKETIC -v- PRISONERS REVIEW BOARD [2011] WASC 176 (29 July 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MIKETIC -v- PRISONERS REVIEW BOARD [2011] WASC 176

Administrative law - Judicial review - Decision by the Prisoners Review Board to refuse release on parole - Jurisdictional error - Irrelevant consideration - Wednesbury unreasonableness - Whether reliance on absence of a date for deportation - Whether inference may be drawn regarding consideration of circumstances of deportation - Adequacy of reasons - Relevance of mental health of the applicant and the applicant's criminal charges in home country - Sentence Administration Act 2003 (WA) s 5A, s 5B, s 115A

Alexander v Australian Community Pharmacy Authority [2010] FCA 189

ARM Constructions v Deputy Federal Commissioner of Taxation (NSW) (1986) 10 FCR 197

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663

Dornan v Riordan (1990) 95 ALR 451

Kirby v Prisoners Review Board [2011] WASCA 149

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Littlefair v Prisoners Review Board [2011] WASCA 150

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 [2003] HCA 30

Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422

Sieffert v Prisoners Review Board [2011] WASCA 148

Turner v Minister for Immigration & Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388

1 Mr Vladan Miketic (the applicant) has applied for the issue of a writ of certiorari quashing the decision of the Prisoners Review Board (the respondent) (the Board) to deny him parole, and for a further order that the Board reconsider the question of his parole according to law. He seeks that relief on the ground that the Board took into account an irrelevant consideration - namely, that there was no confirmed date for his deportation to Serbia, and alternatively that the Board failed to take account of relevant considerations being his circumstances in Serbia following his deportation and his depression, and in the further alternative, on the ground that the Board failed to discharge its obligation to provide him with an adequate statement of its reasons for refusing parole. Appropriately, the Board took no active part in these proceedings and filed a notice that it would abide their outcome, although it did provide limited discovery of documents as a consequence of an order which I made. Leave to intervene was granted to the Attorney General of Western Australia on the basis that he would act as contradictor. For the reasons which follow, I have concluded that none of the grounds upon which Mr Miketic relies are made out, and that his application should be dismissed.

2 In order to enunciate and address the grounds upon which Mr Miketic asserts that the Board exceeded its jurisdiction by refusing his parole, it is necessary to set out the factual circumstances in which the grounds were advanced. I will do so by setting out the findings of fact which I make on the basis of the evidence adduced, which was not contentious on any relevant issue, and which took the form of affidavits and documents tendered without opposition.

3 Mr Miketic was born in 1978 in what is now Serbia. In about June 2001, he travelled to Australia, in search of a better life. There are conflicting assertions within the evidentiary materials as to the precise circumstances of his entry into Australia, but he either entered illegally on false documents, or overstayed a tourist visa he had been granted. At all events, he either was or became an unlawful non-citizen.

4 On 1 May 2003, Mr Miketic and Mr Ilija Subotic travelled from Sydney to Perth, under names that differed from those they were given at birth. Upon their arrival at Perth airport, they were intercepted by investigators from the organised crime investigation unit and escorted to secure areas where their baggage was searched. Each was found to be carrying approximately 900 grams of cocaine. The street value of each package was estimated at $270,000. Each was also found to be in possession of false identification in the form of Australian passports and driver's licences in false names. Each was charged with possession of cocaine with intent to sell or supply, and each pleaded guilty.

5 On 10 February 2004, each was sentenced to 8 years imprisonment, backdated to commence on 1 May 2003, when both were taken into custody. Each was made eligible for parole. Each was sentenced on the basis that they were not themselves users of illegal drugs, but were motivated to commit their crime by the prospect of financial gain in order to alleviate the financial predicament in which they had found themselves in Australia.

6 On 13 November 2005, Mr Miketic, again in company with Mr Subotic, escaped from the minimum security prison farm where they were serving their sentence. They were at large until 4 August 2006, when they were apprehended by police at Bondi Junction in New South Wales, and extradited back to Western Australia. Upon their return, they were each charged with escaping lawful custody and using a false name. Each was sentenced to 3 months imprisonment, cumulative upon their existing sentence, for escaping from lawful custody, and 3 months imprisonment to be served concurrently with their other sentences for using a false name.

7 After recalculating Mr Miketic's sentence to allow for the time not served while he was at large following his escape, and for the additional sentence of 3 months imprisonment which he received, Mr Miketic was eligible for release on parole on 17 July 2010. His sentence is due to be completed on 16 July 2012. Pursuant to s 20 of the Sentence Administration Act 2003 (WA) (the Act), the Board was obliged to consider whether or not Mr Miketic should be granted parole prior to the date upon which he was eligible for release on parole. To that end, a number of documents were prepared for the consideration of the Board. At the time I granted the order nisi in these proceedings, I directed that the Board provide discovery of all documents relevant to the extent to which the Board considered the circumstances of Mr Miketic in the event that he was deported after being released to parole. In accordance with that direction, a number of documents were discovered by the Board and tendered in evidence by consent. Counsel on behalf of Mr Miketic accepts that I should infer that those documents were before the Board at the time it decided to refuse Mr Miketic parole (ts 70). In all the circumstances, including the terms of the order for discovery which I made, and the nature of the documents themselves, I draw that inference. For convenience, I will refer to those documents by reference to the number which they bear in the index to that bundle of documents.

8 Document 14 was a form entitled 'Parole Plan' completed in manuscript by or on behalf of Mr Miketic. The form provides an opportunity for prisoners to advise the Board of their plans and circumstances in the event that they are released to parole. In the case of Mr Miketic, the form advised that upon release he would live at an address in Belgrade, Serbia, with his father, mother and sister. Mr Miketic further advised that everyone he knew lived in Serbia, and that he had managed to keep in touch with them by telephone calls, as much as he could. In relation to employment, Mr Miketic advised that he would be working with the 'Tintolino family' providing catering services. Mr Miketic provided further information as to the work and studies he had undertaken during his imprisonment. Under the heading 'Risk to the Community' the form was completed in the following terms:

Given that I will be deported as soon as released from custody I will no longer be a risk to the community or a burden, financial or supervision vise (sic - wise). Also while being in prison made me realise that drug-related problems are harmful to the people doesn't matter what country they belong to.

9 Also before the Board was a letter apparently signed by Mr Miketic's father, mother and sister, apparently written in Serbian, but translated into English (Document 15). The letter confirmed that accommodation was available for Mr Miketic in the family home in the event that he returned to Serbia and that he would be provided with 'full moral and financial support' by his family. The letter requested that favourable consideration be given to the grant of parole to Mr Miketic.

10 Also before the Board was a letter produced on the letterhead 'Tintolino family' showing an address in Belgrade, apparently written in Serbian, but translated into English confirming that Mr Miketic would be given permanent work upon his return to Serbia (Document 16).

11 Also before the Board was a document entitled 'Parole Review Checklist' which appears to have been partly generated by a computer (Document 12). The document sets out the various relevant dates relating to the sentences imposed upon Mr Miketic, and the circumstances of the offences giving rise to those sentences. Under the heading 'Deportation/Removal Issues' the form asks 'Is the prisoner subject to deportation/removal order?', after which the document provides:

Yes.

Comments: MIKETIC is not an Australian citizen and was born in the former Yugoslavia. The Department of Immigration and Citizenship (DIAC) have identified him as a deportee. At the completion of his custodial sentence, MIKETIC will be transferred to an Immigration Detention Centre until deportation. MIKETIC is accepting of the situation.

12 Under the heading 'Medical/Mental Health Issues' it is reported that no urgent medical problems are listed in relation to Mr Miketic, and that there were 'no psychological or psychiatric issues recorded or raised during parole review interview'.

13 The document further reports that Mr Miketic proposed to live with his family in Belgrade following release, and that Miketic 'will be deported upon release from prison'. In relation to future employment, the document reports:

MIKETIC states that he will be able to gain employment at Tintolino Family Catering Services although this was unable to be confirmed.

14 Under the question 'Does the prisoner understand the obligations of parole and willing to comply?', the document reports:

Yes.

Comments: He has been given a copy of his obligations under sections 29 and 30 of the Sentence Administration Act 2003. He stated that he would not need to abide by these rules as he was being deported.

15 Under the heading 'Other Relevant Information', the document reports another factor to be considered, namely:

MIKETIC stated that he is happy to be deported as he claims to have no family or friends in Australia. Additional documents attached.

16 Under the heading 'Parole Conclusions', under the sub-heading 'What is the officer's conclusion regarding release?', it is reported:

Under the sub-heading 'Are there any special conditions that need to be applied?', the document reports:

17 However, in the same section, under the sub-heading 'What is the Assistant Superintendent/Manager Assessments conclusion?', the document reports:

Officer's report noted. Defer release to parole in view of the lack of community support and non viable parole plan.

18 It seems the document was prepared by the relevant officer on 10 May 2010 and endorsed by the Assistant Superintendent, with his or her differing view, on 11 May 2010.

19 Also before the Board was a document entitled 'State Parole Assessment' prepared by an officer of the Department of Corrective Services (Document 11). That officer has sworn an affidavit depicting the circumstances in which she interviewed Mr Miketic prior to preparing the document. In her account, she relates a detailed interview which took approximately 40 minutes. However, an affidavit has been tendered from Mr Miketic in which he asserts that the interview was 'very brief', and involved only four questions. It is unnecessary to resolve that conflict in the evidence, as the only facts relevant to the grounds of review that have been pursued are the terms of the document presented to the Board - the circumstances of the interview which preceded the preparation of that document are irrelevant.

20 The document deals with the circumstances of Mr Miketic's offence in Australia. It also reports a computer-generated assessment of Mr Miketic's likelihood of reoffending within the next two years. The document concludes with the following observations:

LIKELIHOOD OF COMPLYING WITH THE ORDER OBLIGATIONS AND REQUIREMENTS

Mr Miketic has no capacity to meet the standard obligations given his deportee status.

OTHER CONSIDERATIONS

Health Issues

Mr Miketic advised that he is in good physical health and mental health. He advised that he has been prescribed anti depressant medication previously however he is no longer taking this as he does not want to be dependant on them. He relayed that he speaks to a psychiatrist on a six weekly basis.

Accommodation and Community Support

Mr Miketic has nominated to reside with his parents and sister in Serbia, this address is not able to be confirmed. Mr Miketic advised that he has no family or community support in Australia.

Employment

Mr Miketic advised that he intends to work as a caterer for the Tontolino Family Catering Services. This has been confirmed by way of a letter from Marko Radulovic the manager of the Tontolino Family Catering Services on the 03.06.2009. This letter was translated to English in Belgrade by a court certified English translator on the 05.06.2009.

Issues That May Impact Order Completion and Compromise Security Safety

Mr Miketic is in Australia illegally and will be deported from prison; therefore he does not have the ability to comply with a Parole Order.

RISK ASSESSMENT

The risk of further offending in this country is nil due to the fact Mr Miketic will be deported upon his release from prison.

Brief discussion with Mr Miketic's case manager from the Department of Immigration (name redacted) 31.05.2010 confirmed that they are in contact with the Serbian authorities to obtain travel documents for Mr Miketic. (Name redacted) advised that as Mr Miketic has stated that he would like to return to his country and not stay in Australia, then the process is generally from prison to tarmac, however as Mr Miketic's cooffender is going through the same process at the same time they do not want them on the plane together. So Mr Miketic may be held in detention until the next available flight. (Name redacted) also advised that the process will be on hold in anticipation of Mr Miketic's release to Parole.

RECOMMENDATION

Due to Mr Miketic's position in regard to deportation he is unable to comply with a Parole Order.

Parole plan:

Accommodation: Address in Belgrade

Employment: Tontolino Family Catering Services

Supervision: Nil

21 It seems that the Board also had before it a document provided by Interpol relating to Mr Miketic, which reported that as a juvenile in Serbia he had been convicted of robbery and sentenced to strict supervision (Document 8). The document further reports that in 1997, it is alleged that during a search of Mr Miketic's apartment, plastic explosives and igniters were found, and that in March 1996 Mr Miketic had stolen technical equipment. The document suggests that Mr Miketic is wanted for those offences in Serbia, although it did not indicate that his extradition from Australia would be sought.

22 The Board considered the question of whether or not Mr Miketic should be granted parole at its meeting on 16 June 2010. It was decided to refuse to grant Mr Miketic parole. A letter was prepared on behalf of the Board and signed by the registrar of the Board dated 16 June 2010 addressed to Mr Miketic (Document 9), advising of the Board's decision for the following reasons:

The risk of reoffending and risk to the safety of the community due to:

Serious nature of current offence.
Overseas court history which includes violence indicates you are a risk to the community.
The escape legal custody in 2005 together with no confirmed date of deportation from Australia further indicates you are a risk to community safety.
Entering Australia under false documents and being found in possession of further false documents indicates you did not intend to lead a law abiding lifestyle.

Unlikely to comply with the requirements of parole in view of:

Escape legal custody which demonstrates a lack of regard for Court orders noting you were at large for 270 days.

The letter goes on to advise Mr Miketic of his right to seek review of the Board's decision under s 115A of the Act, and of the grounds upon which such a review could be sought.

23 On 22 June 2010, Mr Miketic wrote to the Board seeking review of the decision to refuse him parole (Document 6). The grounds upon which he sought review included the following:

...

(5) Suffered depression and anxiety for report contact Dr Jacob Nazarian at Hakea.

(6) Once deported will not be a threat or a burden to Australia.

(7) Once deported will not be re-offending.

In addition to the above, I now enclose a letter from Department of Immigration dated 22 June 2010 which is self explanatory, you will note from the Departments (sic) letter that my deportation by consent is imminent and immediate upon the grant of parole. I belive (sic) in the circumstances that it would be grossly unjust and unfair for the Parole Board to continue to oppose my parole given that my re-patriation is in the public interest and is in my own interest and for my own wellbeing.

24 Enclosed with the letter was a letter to the Board from the Department of Immigration and Citizenship dated 22 June 2010. The letter was in the following terms:

Once the Department of Immigration and Citizenship (DIAC) have been advised by the Prisoners Review Board of Western Australia of Mr Miketic's expected parole date we will contact the Serbian Embassy in Canberra, requesting that they issue Mr Miketic with a travel document to facilitate his return to Serbia. Please note that our department has already made contact with the Serbian Embassy and they have advised that they will issue Mr Miketic's travel document upon our request.

In addition to this, our department will make the appropriate travel bookings and arrangements to facilitate his request for a voluntary return to Serbia from Perth.

If the Prisoners Review Board provides our department with sufficient notice we will attempt to book Mr Miketic's flights to coincide with him being released straight from Casuarina Prison to the Perth International airport. If this is not possible he will be held in Immigration Detention until such time as he is required to board the flight.

Due to Mr Miketic's escape from legal custody in 2006, he will be escorted by security escorts for his return to Serbia.

25 By letter dated 13 July 2010, the deputy chairperson of the Board wrote to Mr Miketic advising that his request for review had been considered but dismissed on the basis that none of the matters raised in his letter fell within the grounds of review set out in s 115A(6) of the Act (Document 4).

26 By letter dated 22 September 2010, solicitors acting on Mr Miketic's behalf sought a further review pursuant to s 115A of the Act, on various grounds, including grounds related to Mr Miketic's deportation following the grant of parole, and his mental state (Document 3).

27 By letter dated 29 September 2010, the deputy chairperson of the Board responded, advising that even though s 115A provided for only one review of the Board's decision, he was nevertheless prepared to consider the additional information provided in the letter from Mr Miketic's solicitors (Document 2). However, he went on advise that having considered the information provided, he had concluded that there had not been a change in circumstances, with the result that he affirmed the earlier decision of the Board to refuse Mr Miketic parole.

28 These proceedings were commenced in early November 2010.

29 Before turning to the specific grounds of review, it would ordinarily be appropriate to undertake a review of the relevant provisions of the Act establishing the Board and designating its functions, powers and responsibilities. However, that task has recently been undertaken in three cases before the Court of Appeal in which reasons have been recently published - namely, Sieffert v Prisoners Review Board [2011] WASCA 148; Kirby v Prisoners Review Board [2011] WASCA 149; Littlefair v Prisoners Review Board [2011] WASCA 150.

30 I adhere to the views which I expressed in those cases as to the functions, powers and responsibilities of the Board and which should be taken to be incorporated into these reasons.

31 Counsel for Mr Miketic confirmed that all grounds of review were advanced on the basis that they constituted jurisdictional error. Reliance upon non-jurisdictional error apparent on the face of the record was expressly eschewed (ts 93).

32 Ground 1 asserts that the Board exceeded its jurisdiction by taking into account an irrelevant consideration being the absence of a confirmed date for deportation of Mr Miketic to Serbia. It is said that this was irrelevant because it should have been obvious to the Board that it would be impossible for a confirmed date of deportation to be provided prior to any decision being made by the Board to grant Mr Miketic parole. In other words, although not cast in these exact terms, Mr Miketic asserts that the position adopted by the Board places him in 'Catch-22' (from the novel of the same name by Joseph Heller), in that the immigration authorities cannot provide a date for deportation until the Board has decided when Mr Miketic will be paroled, but the Board will not decide when Mr Miketic will be paroled until the immigration authorities confirm the date upon which he will be deported.

33 As I observed in Sieffert [192], an administrative body like the Board will only exceed its jurisdiction by taking into account an irrelevant consideration if the consideration is one which it is precluded by law from taking into account.

34 In deciding whether or not to grant parole, the Board is expressly required to take into account the release considerations specified in s 5A of the Act and is also required by s 5B of the Act to regard the safety of the community as the paramount consideration in the exercise of its powers and functions. The safety of the community, in the event that parole is granted, and at least some of the release considerations specified in s 5A of the Act have an element of futurity which requires the Board to undertake an assessment of the likely circumstances of the prisoner in the event that parole is granted. In those circumstances, it is impossible to see how the Act could be construed so as to arrive at the conclusion that it was beyond the jurisdiction of the Board to take into account the fact that there was no confirmed date upon which Mr Miketic would be deported in the event that he was granted parole.

35 In the submissions advanced in support of this ground, the approach taken by the Board was described as 'circular and illogical and thus unlawful'. This suggests that the real basis upon which the ground was being advanced was unreasonableness, in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The ground can, and in my view should, be addressed in that way, as no prejudice arises from that approach, as the intervener has provided submissions on that alternative basis.

36 The decided cases are replete with observations to the effect that an applicant seeking to set aside an administrative decision on the basis of unreasonableness (in the Wednesbury sense) carries a heavy burden which will not be easily discharged. Such an applicant must establish that the decision was so unreasonable that no reasonable decision-maker with a proper appreciation of the legal duties and responsibilities imposed upon him or her could have arrived at the impugned decision, from which it can be inferred that the decision-maker failed to comprehend his or her statutory responsibilities: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 [2003] HCA 30.

37 In the present case, if it was concluded that a lack of a confirmed date for deportation was the reason why the Board had refused parole, the circularity of reasoning involved would reveal misapprehension of the Board's duties under the Act (in the Wednesbury sense), because of the 'Catch-22' in which every prisoner liable to deportation would be placed, and which would lead to the conclusion that such prisoners could never be granted parole; they would never have confirmed dates of deportation until after parole had been granted, notwithstanding the express obligations imposed by the Act requiring the Board to consider the individual circumstances of each offender by reference to the release considerations and the safety of the community.

38 However, the argument advanced in support of this ground on behalf of Mr Miketic misconstrues the reference to the lack of a confirmed date for deportation in the reasons given by the Board. When those reasons are considered in their entirety, it is clear that Mr Miketic was refused parole because the Board considered that the risk of him reoffending, and posing a risk to the safety of the community, was unacceptably high, and that it was unlikely that he would be able to comply with the requirements of parole. Four matters were relied upon in support of the conclusion that his risk of reoffending and the consequent risk to the community was unacceptably high, being the serious nature of the offence of possessing a substantial quantity of cocaine with intent to sell or supply, the offence he had committed in Serbia as a juvenile, his entry into Australia under false documents, being found in possession of further false documents which indicated that he 'did not intend to lead a law-abiding lifestyle', and his 'escape legal custody in 2005 together with no confirmed date of deportation from Australia' which indicated that he was 'a risk to community safety' (Document 9). Viewed in that context, it is clear that the lack of a confirmed date of deportation was not a factor which the Board viewed in isolation. Rather, it was a factor which, together with Mr Miketic's escape from legal custody, caused the Board to apprehend a risk to community safety, which together with the other enunciated factors being the seriousness of his offence in Australia, his criminal record in Serbia, and his use of false identities, caused the Board to conclude that there was an unacceptable risk of Mr Miketic reoffending if granted parole, and therefore an unacceptable level of risk to the safety of the community.

39 The coupling of Mr Miketic's escape from legal custody, with the lack of a confirmed date of deportation to support the conclusion that Mr Miketic was a risk to community safety, supports the inference that, although somewhat inelegantly expressed, the Board is referring to a lack of a confirmed date of deportation as an oblique reference to the risk that Mr Miketic might again escape from legal custody at some point in the process of deportation and thereby pose a risk to the Australian community (although the other aspects of the reasons given by the Board are not geographically constrained). Put another way, the Board's reference to the lack of a confirmed date of deportation was merely a step in the process of reasoning to the conclusion that deportation could never entirely eliminate the risk which Mr Miketic might pose to the Australian community, especially having regard to his previous escape from legal custody. In its context, the expression 'no confirmed date of deportation' can be taken to be a reference to the information in the materials before the Board to the effect there was no assurance that Mr Miketic would be taken straight from prison to an outgoing flight, because the authorities proposed to arrange that he and Mr Subotic travel on different flights. The lack of such an assurance is relevant to the assessment of the risk that Mr Miketic might escape during the process of deportation.

40 Counsel on behalf of Mr Miketic acknowledged, as he must, that the risk of escape during the process of deportation could never be eliminated, and such a risk was relevant to the Board's assessment of the risk to community safety in the event that Mr Miketic was granted parole (ts 81). Having made that concession, it was necessary to then submit that what the Board was required to do 'was to engage with particularity with their circumstances', for the purposes of assessing the degree of risk, and that it failed to do so (ts 84). However, once that point is reached, it is clear that the submission is essentially concerned with the finding of fact made by the Board as to the degree of risk which Mr Miketic would pose to the safety of the Australian community if granted parole, or perhaps as to the weight given by the Board to that factor in its deliberations. In either case, the error, even if established, is not of a kind which would take the Board outside the jurisdiction conferred upon it by the Act, or provide Mr Miketic with a ground upon which the decision of the Board to refuse him parole could be quashed. Once it is conceded, as it must be, that the process of deportation carries with it a risk of escape which can never be eliminated, the existence and extent of that risk was a relevant fact for the Board to take into account. The assessment of the extent of the risk, and the degree of weight to be given to the risk, are matters for the Board, not for the court.

41 Ground 2 asserts that the Board failed to take account of relevant considerations which it was obliged to take into account pursuant to the express provisions of the Act, being those considerations which have an element of futurity, because of the Board's failure to take into account Mr Miketic's circumstances in the event that he was deported following the grant of parole.

42 As I have already noted, at least some of the considerations which the Board is expressly required by the Act to take into account prior to deciding whether or not to grant a prisoner parole have an element of futurity. The risk of reoffending, and consequently the safety to the community, are obvious examples because the risk of the prisoner reoffending is likely to depend, to at least some extent, upon the circumstances in which he or she finds himself or herself following release to parole. The likelihood of the prisoner complying with the obligations of parole is another obvious example because, in the event of deportation, the practical content of those obligations will be reduced to nil because of the impracticability of supervision following deportation. It follows that in order to comply with the express obligations imposed by the Act, it was necessary for the Board to take into account the strong likelihood that Mr Miketic would be deported very soon after being granted parole, and his circumstances in the event that he was deported. Failure by the Board to take those matters into account would constitute a failure to take account of considerations which the Act requires be taken into account, which would in turn lead to the conclusion that the Board had exceeded the jurisdiction conferred upon it by the Act. The critical question, therefore, is whether it can be concluded, on the evidence, that the Board failed to take those matters into account.

43 The obvious difficulty which the argument advanced on behalf of Mr Miketic faces, is that the documents which were before the Board at the time it decided to refuse Mr Miketic parole are replete with observations concerning the likelihood of his deportation, and his circumstances in the event that he was granted parole and deported. The reasons given by the Board make an express reference to the prospect of deportation. In the face of those evidentiary difficulties, counsel was driven to submit that the only basis upon which it could be inferred that the Board failed to take these matters into account was the Board's failure to expressly refer to them in its reasons for decision (ts 70 - 72).

44 It is well established that a decision-maker's failure to refer to a matter in reasons given for the relevant decision can support an inference that he or she has failed to take that matter into account - see Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422, 445 - 446 (Brennan J; Murphy J agreeing); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [69] (McHugh, Gummow and Hayne JJ). However, it is important to emphasise that the process of reasoning employed is a process by which an inference of fact is drawn as to the matters taken into account by the decision-maker at the time of making the decision. It follows that 'the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was': Turner v Minister for Immigration & Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388, 392 (Toohey J); see also Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663, 683 (Lord Morton), 685 - 686 (Lord Reid).

45 Accordingly, the legal principles involved are different in character to those cases in which the provision of a statement of reasons complying with a specific statutory standard has been held to be a condition of the valid exercise of jurisdiction - see Dornan v Riordan (1990) 95 ALR 451, 460 - 462; Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170 [67] - [69] (Olsson AUJ; Steytler J agreeing). In those cases, the statutory obligation to provide a statement of reasons is construed as a condition upon which the valid exercise of the power of a decision-maker depends, and so the question is whether the reasons provided by the decision-maker adequately disclose the process of reasoning employed. If not, a condition of jurisdiction will not have been fulfilled, and the decision will be invalid, irrespective of the adequacy of the process of reasoning actually undertaken by the decision-maker.

46 Although a ground challenging the adequacy of the reasons provided by the Board was added in the course of argument (ts 90; see ground 4 below), ground 2 is advanced on the basis that an inference of fact should be drawn from the reasons given by the Board to the effect that it failed to take into account the likelihood of Mr Miketic being deported in the event that parole was granted, and his likely circumstances following deportation.

47 It must first be observed that such an inference is improbable, given the plethora of material which was before the Board on the subject of deportation and Mr Miketic's circumstances in Serbia following his return to that country. In that context, it is necessary to focus upon the reasons given by the Board to assess whether they are capable of sustaining the inference that, notwithstanding those materials, the Board failed to take these matters into account.

48 The analysis of the Board's reasons to which I have already referred shows that the Board focused upon two critical considerations - namely, the risk of reoffending (and consequent risk to the community), and the unlikelihood of compliance with the requirements of parole. The Board gave particulars of its reasons for arriving at its conclusions in respect of those two primary considerations which do not refer to Mr Miketic's circumstances in the event of his deportation. Rather, they focus upon the serious nature of his offending, his previous criminal history, his escape from legal custody and his possession of false documents and use of a false identity. These are all matters that are plainly relevant to, and capable of sustaining, the Board's conclusions in relation to the two primary issues which it identified. In those circumstances, the Board's failure to refer to other aspects of Mr Miketic's case, which may or may not have affected the primary reasons why it decided to refuse Mr Miketic parole does not support any inference that the Board failed to take them into account, because they were not a necessary step in the process of reasoning undertaken by the Board.

49 The extent to which an inference of failure to take a matter into account can be drawn from a failure to refer to that matter in reasons provided by the decision-maker will of course depend upon the nature and extent of the obligation to provide a statement of reasons. Many of the cases in this area concern a failure to refer to a particular matter in the context of the obligation to provide reasons expressed in the terms stipulated in s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), or s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) - namely, the obligation to set out all findings on material questions of fact, referring to the evidence of other material on which those findings were based, and giving the reasons for the decision: see Alexander v Australian Community Pharmacy Authority [2010] FCA 189 [56] (Bromberg J); ARM Constructions v Deputy Federal Commissioner of Taxation (NSW) (1986) 10 FCR 197, 205 (Burchett J). This is a significantly more onerous obligation than the obligation imposed upon the Board to give reasons for its decision - see my reasons in Sieffert. In the context of a statutory obligation of the kind imposed by those Commonwealth statutes, failure to refer to a matter in the reasons given is, of its nature, significantly more likely to sustain an inference that the matter was not taken into account by the decision-maker, although even then the drawing of the inference will by no means be inevitable (see Turner, above).

50 In all the circumstances of this case, it cannot be inferred from the Board's statement of reasons that the Board failed to take into account the likelihood of Mr Miketic being deported, or his likely circumstances in the event that he were to be deported following the grant of parole because those matters were not necessary elements in the process of reasoning which caused the Board to refuse parole. Ground 2 must be dismissed.

51 This ground asserts a failure by the Board to take into account a relevant consideration, being the applicant's depression. This ground faces a number of insuperable obstacles, both factual and legal.

52 At a factual level, the decision of the Board to refuse Mr Miketic parole was taken at its meeting on 16 June 2010. On the information available to the Board, Mr Miketic had not reported any significant psychiatric disorder and had discontinued taking medication for his depression. Accordingly, on the information available to the Board, there was nothing to suggest that the prior treatment Mr Miketic had received was indicative of a medical condition of any particular significance to the decision which the Board was required to make. The next factual difficulty for this ground is that, like ground 2, it depends upon an inference being drawn from the Board's statement of reasons that no account was taken of Mr Miketic's condition, notwithstanding that it was referred to in the written materials before the Board at the time of its decision. For the reasons given in relation to ground 2, that inference should not be drawn in this case.

53 Turning then to the legal obstacles in the path of the success of this ground, the most significant is the inability to identify any provision in the Act which would impose upon the Board an obligation to take Mr Miketic's depression into account, as a matter which would support the grant of parole. Counsel on behalf of Mr Miketic was driven to suggest that the source of that obligation was s 5A(k) of the Act, which includes, amongst the release considerations, 'any other consideration that is or may be relevant to whether the prisoner should be released'.

54 The argument relies also upon observations made by the plurality in R v Shrestha [1991] HCA 26; (1991) 173 CLR 48, for the proposition that any mitigating circumstance, such as a medical condition, is a matter which the Board must take into account in order to validly exercise its jurisdiction to determine whether or not to grant parole.

55 This line of reasoning cannot be accepted. Shrestha was a case concerning the proper approach to be taken at the time of sentencing a prisoner who faced the prospect of deportation following the completion of his or her sentence. It was not a case concerned with the proper construction of the parole legislation, and it was certainly not concerned with the proper construction of the Act. Similarly, general observations as to the objectives which underpin parole of the kind made by Malcolm CJ in Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442, 459, fall well short of supporting the proposition that the proper construction of the Act requires the Board to take any and all mitigating factors into account as a condition of the valid exercise of its jurisdiction to decide whether or not to grant parole. To the contrary, s 5B of the Act expressly negates that proposition by requiring the Board to regard risk to the community as the paramount consideration to be taken into account when exercising its powers under the Act.

56 This is not to say that mitigating circumstances could not, or should not, be taken into account by the Board in an appropriate case. Plainly, there will be many cases in which such circumstances will be very relevant, and appropriately taken into account. However, it is quite a different thing to assert, as is asserted on behalf of Mr Miketic, that mitigating circumstances must be taken into account in all cases, as a condition of the valid exercise of the Board's jurisdiction.

57 For these various reasons, ground 3 must be dismissed.

58 The final ground was advanced orally during the course of argument, in the following terms:

The reasons given by the Board in respect of the applicant failed to meet the standard required by section 107B of the Act in that:

(i) they failed to include any consideration of the applicant's probable immediate deportation to Serbia if released on parole;

(ii) as a consequence failed to state the effect of the material regarding the applicant's circumstances was he deported;

(iii) failed to state the significance of Mr Miketic's depression as a mitigating circumstance (ts 90 - 91).

59 As I have noted, all grounds asserted are said to sustain the conclusion that the Board has gone beyond the jurisdiction conferred upon it by the Act. In the case of this ground, that proposition could only be made out if the provision of an adequate statement of reasons is a condition of the valid exercise of the jurisdiction conferred upon the Board. In Sieffert, Kirby and Littlefair it has been held by the Court of Appeal that the discharge of the obligation imposed by s 107B of the Act is not a condition of the jurisdiction to grant or refuse parole, with the result that failure to adequately discharge that duty does not take the Board beyond the jurisdiction conferred upon it.

60 That ruling is sufficient to dispose of this ground. However, it will be apparent that the ground is, in substance, a mirror image of the complaints advanced in relation to grounds 2 and 3, and presumes that the Board was obliged to state reasons in relation to matters which were not essential steps in the reasoning process which led it to conclude that Mr Miketic should be refused parole. For the reasons I have given in relation to those grounds, the proposition that the Board was obliged to refer, in its reasons, to matters which were not an essential part of its process of reasoning should be rejected. This is another reason why ground 4 must fail.

61 Although not the subject of any specific ground, the written submissions filed on behalf of Mr Miketic refer to the Interpol report and suggest that the possibility that Mr Miketic might be the subject of charges in Serbia, or perhaps extradition from some country other than Australia, were matters which the Board was obliged to take into account, but failed to do so.

62 No application was made to amend the grounds of review in order to include a ground to this effect. Even if such an application had been made, any such ground would have faced the same difficulties faced by the other grounds with which I have dealt. First, the document referring to the Interpol report was apparently before the Board at the time of its decision (reference to some of the material in that report is included in the Board's reasons), precluding any inference that the Board failed to take those matters into account. Second, the possibility that charges might be brought against Mr Miketic in Serbia was not an essential part of the Board's process of reasoning that led it to its conclusion that parole should be refused, and was not therefore a necessary component of the reasons provided by the Board. It follows that it would not be inferred that the Board failed to take account of the possibility that Mr Miketic might face charges upon his return to Serbia merely from the failure to expressly refer to that possibility in the reasons given by the Board.

63 For these various reasons, Mr Miketic has failed to make out any of the grounds upon which he relied to establish that the decision of the Board to refuse him parole was invalid. The order nisi should be discharged and these proceedings dismissed.

Administration Act 2003

Appeals Tribunal Act 1975

Decisions (Judicial Review) Act 1977

MIKETIC -v- PRISONERS REVIEW BOARD [2011] WASC 176 (29 July 2011)

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MIKETIC -v- PRISONERS REVIEW BOARD [2011] WASC 176 (29 July 2011)

Legislation Cited (3)

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