The remaining arguments for Mr Ng on Grounds A, B, D and E
54 The burden of Mr Ng's case was that the sentence imposed in China was unreasonable and disproportionately greater than any sentence that would have been imposed in Australia. It was submitted that this should have been in some way influential on the delegate in making the decision, although it was not explained how this did not constitute engaging the Court in impermissible merits review. The asserted failure to consider and apply the asserted harshness of the Chinese sentence because that would, in effect, second-guess the Minister's decision not to recommend a pardon was said to involve any or all of: misapprehending the nature of the power being exercised, failing to carry out the statutory task or having regard to an irrelevant (that is to say, forbidden) consideration. In those various ways, it was submitted that the delegate did not exercise his own judgment at all in relation to the complaint made about the Chinese sentence and whether that should be addressed by removing or varying the licence conditions. In substance, the argument was that, by whichever of the bases in Grounds B, D and E was applied, the delegate was required to consider Mr Ng's argument as to the harshness of the sentence that had been imposed in China relative to Australian sentences imposed for like offences in Australia.
55 Overall, and as a result of the foregoing, a denial of procedural fairness or natural justice was asserted, being Ground A, in not considering the Chinese sentence claims for a reason that could not have been anticipated by Mr Ng.
56 The point underlying all of the claims made on behalf of Mr Ng, apart from the claim made in Ground C as to the application of policy in relation to conditions being required at all, ends up being of some subtlety as to what was really being argued. The case advanced for Mr Ng needs to be teased out to conclude the assessment of Grounds A, B, D and E.
57 While Mr Ng consented to the licence conditions as being necessary before he could be released, he was not consulted about their terms or given a say as to what they should be. He therefore effectively contended that the prior absence of consultation gave him a right to have his submissions taken into account in the decision-making process as to the supposed harshness of the Chinese sentence, and perhaps even a right to be heard as to the reasons for not taking those submissions into account in that way. That seemed to extend to the content of the deliberative processes contained in the memorandum addressed to the delegate.
58 If the arguments advanced on behalf of Mr Ng as to having his submissions actively considered, and perhaps having a right to be heard before his submission was not taken into account in that way, are correct, it would place the decision-making processes in relation to release on licence condition variations seemingly in a different and more advantageous position than most other forms of administrative decision-making. Ordinarily, it is adverse material that an applicant must be been given an opportunity to respond to, and not deliberative processes in relation to such material, let alone deliberative processes in relation to deciding whether or not to have regard to material that supports the outcome sought: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-2, cited without adverse comment in SZBEL v Minister for Immigration and Citizenship [2006] HCA 63; 228 CLR 152 at [29]. Yet it is that underlying contention that grounds, in substance, most of the arguments advanced on behalf of Mr Ng.
59 In response to the above arguments, the submissions on behalf of the Attorney-General pointed to the prior knowledge of the delegate, and to the fact that specific reference was made to the power that Mr Ng sought to have him exercise. It was therefore asserted that, contextually, it could not be said that the delegate was misled as to the nature of the power being exercised, nor that he failed to carry out the statutory task required or denied Mr Ng procedural fairness. In substance, the Attorney-General submitted that Mr Ng's case relied upon the memorandum to the delegate in a tight and isolated way that was divorced from history and circumstance, including, in particular, the prior involvement of the delegate. It was submitted, in effect, that the case mounted on behalf of Mr Ng did not come close to establishing an underlying, but unstated, allegation of bad faith, relying on Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725; 151 LGERA 229 at [76]-[78] and the cases there cited, as well as Seven West Media Limited v Commissioner of Australian Federal Police [2014] FCA 263; 223 FCR 234 at [110] and Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386 at [130].
60 The submissions for the Attorney-General should be accepted even if, contrary to the finding at [49] above, the memorandum constituted reasons for the delegate's decision. The delegate was entitled to disregard, in the sense of not applying, submissions made on Mr Ng's behalf about the supposed severity of the sentence imposed in China for such reasons as he considered appropriate. Those reasons could properly include that this had been found not to be something that should be taken into account in deciding whether to recommend a pardon.
61 There is, however, a more fundamental problem with the entirety of the case advanced in relation to the supposed harshness of the sentences imposed on Mr Ng in China, at least insofar as it was relied upon for the purposes of judicial review, and probably also as a submission that, as presented, this was required to be actively considered by the delegate.
62 Repeated submissions on behalf of Mr Ng as to sentencing practices in Australia rose no higher than bare assertion, even if this did not constitute a subversion of s 45 of the ITP Act by way of a backdoor review of the Chinese sentence prohibited by that provision. The submissions about the Chinese sentence that were before the delegate and were sought to be relied upon in the application in this Court were based upon the false premise that it had been shown that the Chinese sentences could be said to be excessive relative to the sentences that might have been imposed in Australia for like conduct. Mr Ng's assertion about the harshness of the Chinese sentence relative to sentences imposed in Australia, apparently based on dubious statistics, pays no apparent regard to a body of federal sentencing law emanating from the High Court, such as Wong v The Queen [2001] HCA 64; 207 CLR 584, Hili v The Queen [2010] HCA 45; 242 CLR 520, Barbaro v The Queen [2014] HCA 2; 305 ALR 323 and The Queen v Pham [2015] HCA 39; 256 CLR 550. Those cases make it clear that the limited, although still important, role of comparative sentences in criminal sentence proceedings is to ensure consistency in the application of principle, not consistency in numerical outcomes. Outcomes can only ever have a measure of reasonable consistency determined by the outer limits of manifest excess or manifest inadequacy. That is an exacting error that must be established by detailed and careful legal and factual analysis, not bald assertion and bare statistics. Providing charts and tables of sentences in purportedly like matters is not only discouraged, but of little use even in a sentencing context, and even less so in a judicial review context such as this.
63 To the extent that the arguments for Mr Ng depended on making good the proposition that the sentence imposed on him in China was so clearly outside the range of sentences available and likely to be imposed in Australia for like conduct such that it was a submission that the delegate was required to take into account (assuming that he was entitled to do so), the foundation for that assertion and conclusion was simply never established. Even if the Chinese sentence was very stern, that does not, of itself, place it outside the permissible range of what might have been imposed in Australia for like conduct. The delegate was not in any position to act in the role of an intermediate appeal court reviewing an Australian sentence, let alone a Chinese sentence, even if that was permitted by the terms of s 45 of the ITP Act.
64 The delegate was entitled not to have regard to the assertions made about the Chinese sentence, especially given the breadth of the discretion to remove or vary licence conditions provided by s 19APA(7)(c) of the Crimes Act. It is not to the point that this was not the reason why it was recommended that the delegate not have regard to the submissions made on behalf of Mr Ng as to the supposed excessive duration of the Chinese sentence, especially when it is not known whether the submission as to the harshness of the sentence was in fact disregarded, as opposed to simply being not accepted or given little weight.
65 The remaining arguments advanced on behalf of Mr Ng as to an asserted denial of procedural fairness were said to have arisen from consideration given to the types of cases in which licence or parole conditions have been removed, and in the delegate declining to accept Mr Ng's argument that he could not appeal from his sentence in China because of contrary advice as to the operation of the ITP Act. The submissions for the Attorney-General correctly characterised each of these arguments as doing no more than taking issue with the Department's evaluation of Mr Ng's licence variation application.
66 It follows that even if, contrary to the findings made at [49] above, the delegate made the decision entirely based on the memorandum and with nothing more than that and the letters to constitute his reasons, the asserted errors upon which Grounds A, B, D and E are based are not established.