Salgado v Attorney-General

Federal Court of Australia|2023-08-18|Before: Lee J

The originating application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A INTRODUCTION AND BACKGROUND 1 The applicant, Mr Luis Salgado, seeks judicial review of a decision of a delegate of the Attorney-General of the Commonwealth of Australia (Delegate) to refuse to release him on parole pursuant to s 19AL of the Crimes Act 1914 (Cth) (Crimes Act). 2 In February 2020, Mr Salgado was arrested and charged with importing a marketable quantity of a border controlled drug into Australia (specifically, 900 times the marketable quantity of cocaine), contrary to s 307.2 of the Criminal Code Act 1995 (Cth) (Criminal Code). 3 Just shy of one year later, Mr Salgado was sentenced to a term of imprisonment of four years and six months, commencing on 17 December 2020 and expiring on 16 June 2025, with a non-parole period of two years and six months, expiring on 16 June 2023: R v Salgado [2021] NSWDC 24. On 14 June, the Delegate refused Mr Salgado's release on parole, providing written reasons in the form of a Refusal of Parole Notice (Refusal Notice). 4 For the following reasons, Mr Salgado has failed to establish the Delegate's decision was attended by error. It follows his application for judicial review should be dismissed. 5 It is worth noting at the outset that this outcome does not preclude Mr Salgado's release on parole in the future. Pursuant to s 19AL(2)(b) of the Crimes Act, the Refusal Notice provides the Delegate "will reconsider [Mr Salgado] for release on parole within 12 months of [the Refusal Notice]".

B GROUNDS OF JUDICIAL REVIEW 6 Mr Salgado seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), advancing the following six grounds of review: (1) the Delegate "failed to give adequate reasons and in doing so failed to observe the procedures that were required by law to be observed in connection with the making of the decision to refuse parole" (s 5(1)(b) of the ADJR Act) (Ground One); (2) the refusal decision amounted to an improper exercise of the power conferred on the Delegate, as she: (a) took into account irrelevant considerations (ss 5(1)(e) and 5(2)(a) of the ADJR Act) (Ground Two); (b) failed to take into account relevant considerations (ss 5(1)(e) and 5(2)(b) of the ADJR Act)) (Ground Three); (c) exercised the power in a manner "so unreasonable that no reasonable person could have so exercised the power" (ss 5(1)(e) and 5(2)(g) of the ADJR Act)) (Ground Four); (3) in failing to take into account certain relevant considerations, the Delegate failed to afford Mr Salgado natural justice (s 5(1)(a) of the ADJR Act)) (Ground Five); and (4) the Delegate had before her no evidence or other material to justify the making of the decision (s 5(1)(h) of the ADJR Act) (Ground Six).

C RELEVANT PRINCIPLES 7 In Roberts v Attorney-General (Cth) [2022] FCA 574; (2022) 176 ALD 509 (at 512-516 [12]-[26]), I summarised the principles underpinning the relevant power in issue on this application. That statement of the law remains current, and was the parties' point of departure for their arguments. It is well to commence with it before drawing out further principles of relevance to the present case. 8 In Roberts (at 512-513 [14]-[18]) I explained: 14. There is no entitlement to parole for federal offenders: Khawaja (at [11] per Thawley J). The power to release a prisoner on parole once their non-parole period has expired is a matter for the executive: Minogue v Victoria [2019] HCA 31; (2019) 268 CLR 1 (at 17 [17] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 15. The operative power to make, or refuse to make, a parole order lies with the Attorney-General, and is contained in s 19AL of the Crimes Act. The Attorney-General must make a decision before the end of the non-parole period fixed for one or more of the federal sentences imposed on a person: s 19AL(1) of the Crimes Act. 16. Section 19ALA sets out a non-exhaustive list of matters that may be considered by the Attorney-General in making a decision to grant or refuse parole: 19ALA Matters that may be considered in decisions about parole orders (1) In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision: (a) the risk to the community of releasing the person on parole; (b) the person's conduct while serving his or her sentence; (c) whether the person has satisfactorily completed program[mes] ordered by a court or recommended by the relevant State or Territory corrective services or parole agency; (d) the likely effect on the victim, or victim's family, of releasing the person on parole; (e) the nature and circumstances of the offence to which the person's sentence relates; (f) any comments made by the sentencing court; (g) the person's criminal history; (h) any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency; (i) the behaviour of the person when subject to any previous parole order or licence; (j) the likelihood that the person will comply with the conditions of the parole order; (k) whether releasing the person on parole is likely to assist the person to adjust to lawful community life; (l) whether the length of the parole period is sufficient to achieve the purposes of parole; (m) any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release. (2) Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL. 17. As is clear on its face, s 19ALA does not designate any of the matters under s 19ALA(1) as mandatory considerations, nor does it limit the matters to which the Attorney-General may have regard: Lodhi (at [6(d)] per Bromwich J). 18. The broader statutory context also guides the Attorney-General's task: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 (at 355 [30] per Kiefel, Bell and Keane JJ); Khazaal (at [52]-[53] per Wigney J). That context includes the purposes of parole, being: (a) the protection of the community; (b) the rehabilitation of the offender; and (c) the reintegration of the offender into the community: see s 19AKA of the Crimes Act. Although these purposes "cover different ground", they "interact and in some respects overlap": Khawaja (at [15] per Thawley J). 9 Four aspects of the statutory scheme should be emphasised in the light of the grounds of review advanced by Mr Salgado. 10 First, if the Attorney-General refuses to make a parole order, he is required by s 19AL(2) of the Crimes Act and s 25D of the Acts Interpretation Act 1901 (Cth) (AI Act) to provide written reasons for his decision: see, generally, Roberts (at 514-515 [21]-[24]). 11 Counsel were agreed that the statutory framework dictates the nature and extent of the obligation to give reasons (Lodhi v Attorney-General (Cth) [2020] FCA 1383 (at [85] per Bromwich J)), and that the obligation imposed by s 25D of the AI does not require the Attorney-General to make any particular findings of fact, but rather to do no more than set out any findings of fact he did in fact make that he considered material to the decision not to make a parole order: Lodhi (at [87] per Bromwich J). That requirement gives effect to the words "for the refusal" in s 19AL(2)(a)(ii). In practice, what this means is that not every factor that was considered (including those non-mandatory considerations appearing in s 19ALA) needs to be set out in the reasons (rather, it is only the refusal grounds): Roberts (at 519 [44]). 12 Secondly, and following from the foregoing point, a host of factors may conceivably be relevant to the exercise of the power in s 19AL of the Crimes Act. The terms of ss 19AL and 19ALA make tolerably clear that the Attorney-General has a wide discretion. Judicial experience demonstrates that in applications of this kind, applicants often (perhaps understandably) misdirect their efforts towards scrutinising the merits of a decision, in particular, discretionary conclusions upon which reasonable minds may reasonably differ: see, for example, Roberts (at 518-519 [42]). But this approach disregards the nature of judicial review and the reality that another person in the position of a decision-maker may, in lawfully discharging the same statutory task, weigh relevant factors and reach a different conclusion. 13 Thirdly, the Crimes Act does not prescribe a procedure which must be followed in determining whether to make a parole order. The scheme for federal offences differs from its state and territory cognates in this respect. Notwithstanding the silence of the statute, a duty to exercise the power in s 19AL in a way which is procedurally fair or accords with principles of natural justice has been implied by this Court: see, for example, Khazaal v Attorney-General [2020] FCA 448 (at [66] per Wigney J). In Khazaal (at [67]-[68]), Wigney J explained that the content of the duty is furnished by the broader statutory context: 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 relevant information disclosed to the person must be expressed in terms which are sufficiently clear and comprehensive that the person is able to provide a real and meaningful response. The level of detail which will be required to ensure that the person has a real and meaningful opportunity to respond and make submissions will depend on the nature of the information in question and the particular circumstances of the case. As will be seen, there may be cases where the circumstances are such that the disclosure of information or issues in only broad and general terms will not suffice. 14 Fourthly, a further condition on the exercise of the power in s 19AL is that it be exercised reasonably, in the light of the terms, scope, purpose and object of the statute as a whole: Khawaja v Attorney-General (Cth) [2022] FCA 334; (2022) 293 FCR 396 (at 402 [22]-[23] per Thawley J); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (at 370-371 [90] per Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (at 586 [135] per Edelman J). "Reasonableness" is, of course, an indeterminate concept upon which quasi-merits based arguments are often sought to be built; however, in the context of administrative decision-making, it is concerned with whether a decision falls within the range of available lawful outcomes.

D MATERIAL BEFORE THE COURT 15 The Court has before it the Refusal Notice, which provided the following reasons for refusing Mr Salgado's release on parole: 1. I have had regard to the nature and circumstances of your offending which involved importing a marketable quantity of a border-controlled drug, namely cocaine. The sentencing judge noted that 'as a courier, [you] played a significant role in facilitating and promoting the importation of a significant quantity of a border controlled substance, in this case, some 900 times the marketable quantity and just under the commercial quantity for cocaine. It thus constituted very serious offending.' The sentencing judge also noted '…the objective seriousness of the offending was high.' Taking into account the nature and circumstances of your offending and the comments of the sentencing court, I consider that your release on parole presents an unacceptable risk to community safety. 2. I have had also regard to your misconduct in custody. You have incurred institutional misconduct offences of 'Possess camera or video or audio recording equipment' and 'Possess vape and mobile phone.' In relation to the second offence, you attempted to deny these items were yours and only admitted the truth when told there was CCTV footage of you using the phone. I have also had regard to the fact that you have regressed to a B medium security classification due to your misconduct and have been transferred to a maximum security facility. As a result, I consider that your release from custody at this time presents an unacceptable risk to the safety of the community. 3. I have had regard to the short term and longer term risks of you remaining in custody for a further 12 months. I consider that a further 12 months in prison will allow you the opportunity to demonstrate good behaviour and progress in your security classification, while ensuring you are considered again for parole with such time remaining on your sentence to allow you to have a sufficient period on parole to further your rehabilitation if released at that time. 16 A bundle of the material which was before the Delegate is also in evidence as Exhibit A, including a 108-page document, containing a covering submission from the Attorney-General's Department (Departmental Submission) and attachments, including: the remarks of the sentencing judge; a pre-release report and emails from Corrective Services New South Wales (CSNSW); correspondence from Mr Salgado and his solicitors; and character references submitted on Mr Salgado's behalf. The Departmental Submission recommended parole be refused, however the pre-release report of CSNSW recommended Mr Salgado be released on parole, subject to various conditions.

E CONSIDERATION 17 Ms Goodhand, counsel for Mr Salgado, put everything she could put on behalf of his case during the course of her helpful oral submissions. It is fair to say the focus of the argument was directed more particularly to the unreasonableness contention and I will deal with this specifically under Ground Four, but the same basal assertion of a lack of an evident and intelligible justification for the decision was relied upon as being relevant to the other grounds generally. For completeness, it is necessary to deal with each of the grounds addressed in writing before the hearing.

E.1 Ground One: Failure to Provide Reasons 18 Recognising the reality of the statutory scheme, Mr Salgado's submissions as to Ground One were sparse. It was said the Delegate's reasons for refusal were "plainly inadequate … and failed to disclose consideration of a number of factors that were relevant to the decision". No further elaboration was provided, although I infer the "factors" are those referred to in relation to Grounds Two and Three, including: Mr Salgado's young age (being 19 at the time of offending); the fact Mr Salgado does not have a previous criminal history; the recommendation in the CSNSW pre-release report that he be released on parole subject to conditions; Mr Salgado's "low/medium" risk of reoffending and his consequent ineligibility for custodial based programmes; evidence as to Mr Salgado's abstinence from illicit substance possession or use while in gaol; Mr Salgado's engagement in psychological treatment while on bail; and Mr Salgado's proposed psychological care and employment plans upon re-entering the community on parole. 19 But as Ms Goodhand frankly accepted, in order to establish that the reasons provided were insufficient, an applicant must satisfy the Court the relevant jurisdictional task was not performed: Lodhi (at [90] per Bromwich J). As explained above (at [11]), s 19AL(2)(a)(ii) required the Delegate to provide a statement of reasons for the refusal. It is plain she was not required to set out all of the reasons she took into account, in particular, those pointing in favour of Mr Salgado's release on parole. 20 Furthermore, as I explained in Roberts (at 514-515 [24]), reasons will not be inadequate merely because they were brief, or because there was evidence, other material or a different path of reasoning by which a different conclusion could have been reached, or the merits of the case re-argued: Lodhi (at [91] per Bromwich J); Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962; (2015) 68 AAR 86 (at 97 [22] per Pagone J). 21 It was not incumbent upon the Delegate to refer to any particular circumstance in the Refusal Notice, nor was she required to refer to a shopping list of all or most factors raised on the material before her. The Delegate was at liberty to determine the factors of importance in this case and make a decision in view of those factors. She was required to explain the reasons for her decision in the Refusal Notice, and did so, providing the following three bases for refusing Mr Salgado's release on parole: first, the nature and seriousness of Mr Salgado's offending (involving Mr Salgado facilitating and promoting the importation of some 900 times the marketable quantity of cocaine); secondly, Mr Salgado's misconduct in custody (which led to his security classification being raised and his transfer to a maximum security facility); and thirdly, the short term and longer term risks of Mr Salgado remaining in custody, as compared with the counterfactual. 22 Mr Salgado has not identified any inadequacy in reasons set out in the Refusal Notice, nor articulated why there was a failure to observe the procedures that were required by law to be observed in connexion with the making of the decision. 23 Accordingly, Ground One must fail.

E.2 Grounds Two, Three and Five: Relevant Considerations and Natural Justice 24 There was considerable overlap between Grounds Two, Three and Five, such that they can be dealt with together and they were not the focus of oral submissions. 25 Mr Salgado's originating application purported to advance two so-called "considerations" grounds: first, Ground Two, which alleged the Delegate placed undue emphasis on "irrelevant considerations"; and secondly, Ground Three, which alleged a failure on the Delegate's part to account for "relevant considerations". As it happened, Mr Salgado's submissions were effectively directed towards Ground Three only. Counsel did not point to any "irrelevant" considerations referred to by the Delegate, nor cavil with the relevance of the factors referred to in the Refusal Notice (and referred to above in [21]). Ground Five alleged that the Delegate's failure to account for relevant considerations constituted a breach of the rules of natural justice. 26 Consistently with his approach to Ground One, Mr Salgado submitted the Delegate was required to take into account the factors set out above in [18]. Mr Salgado did not make any submissions directed to procedural fairness in support of Ground Five. 27 Mr Salgado can only succeed on Ground Three if he establishes the Delegate was bound to take a factor into account and did not do so: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (at 39 per Mason J). Sections 19AL and 19ALA do not expressly require the Delegate to consider or give weight to any particular factor, but, as Thawley J reasoned in Khawaja (at 429-430 [92]), the responsible exercise of executive power in s 19AL(1) would generally involve consideration of, and an exercise of the power for, the purposes for which that power was conferred. Those purposes are set out in s 19AKA, namely the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community. 28 Mr Salgado's main complaint in writing was that the Refusal Notice does not expressly mention certain matters, being those listed above in [18]. At its highest, this seems to me to be a submission that the Refusal Decision focussed overwhelmingly on the protection of the community, at the expense of considering Mr Salgado's rehabilitation and reintegration into the community. But, on the evidence before me, I cannot infer that the absence of express reference to these circumstances and considerations in the Refusal Notice meant the Delegate did not consider them. Indeed, "a finding by the Court that [a decision-maker] has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (at 364 [48] per Griffiths, White and Bromwich JJ). 29 In any event, the Refusal Notice explains that the Delegate "consider[ed] that a further 12 months in prison [would] allow [Mr Salgado] the opportunity to demonstrate good behaviour", while also ensuring he is "considered again for parole with such time remaining on [his] sentence to allow [him] to have a sufficient period on parole to further [his] rehabilitation if released at that time." There is no obligation, express or implied, for a decision-maker in the Delegate's position to avert to all and every possible consideration which may inform the assessment of whether a person should be released on parole: see, similarly, Carrascalao (at 391-392 [158] per Griffiths, White and Bromwich JJ). 30 Furthermore, I am not satisfied the Delegate's failure to refer to the factors identified by Mr Salgado in the Refusal Notice was procedurally unfair. Mr Salgado was advised in writing of the issues deemed by the Delegate to be relevant to the decision, and was given an opportunity to address that information in a meaningful way, including by providing numerous character references and proof of his post-release plans. That material was in the Delegate's possession at the time of making the decision, and it was not legally necessary for her to refer to it specifically in the Refusal Notice.

E.3 Ground Four: Unreasonableness 31 As noted above, Ms Goodhand focussed upon Ground Four in oral address. 32 To make good Ground Four, Mr Salgado is required to satisfy the Court the Delegate's decision was so unreasonable no reasonable person could have made it. Section 5(2)(g) of the ADJR Act borrows this language from the famous words of Lord Greene MR in Associate Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (at 234). 33 Mr Salgado submitted the Refusal Decision was made on an "erroneously narrow basis" and that "the failure to take into account obviously relevant considerations" meant "the decision was, on its face unreasonable and the nature and quality of this decision so [flawed] so as to warrant intervention". 34 Unfortunately, this submission rises no higher than an attack on the merits of the Delegate's decision. It says nothing of the Delegate's "decisional freedom", and provides no reasons why the result does not fall within the "range of possible lawful outcomes": Stephens v Attorney-General [2021] FCA 204 (at [46]-[48] per Abraham J). 35 There is no suggestion the Delegate was off on a frolic. The Refusal Notice sets out an evident and intelligible justification for refusing to make an order under s 19AL, namely, the "unacceptable risk to community safety" posed by releasing Mr Salgado on parole as at the date of the decision, given the seriousness of his offending, his misconduct in custody and the opportunity to reconsider his release at a later time. 36 In oral address, Ms Goodhand focussed in particular upon the lack of any relevance as between the two instances of custodial misconduct to the Delegate's assessment of the short term and longer term risks of Mr Salgado remaining in custody for a further 12 months. In this regard, reliance was placed on the fact that the remedial response was relatively minor, and administrative, rather than Mr Salgado being the subject of further charges. But as Mr Glover correctly pointed out, the conduct was not trivial and indeed Mr Salgado regressed in his security classification due to his misconduct: it is hardly irrational to think that a man who does not comply with the norms regulating his custody does not pose some increased risk of not complying with the norms that would govern any conditional liberty on parole. It was rational and clearly open for a view to be formed that this was a basis, together with others, for reaching the conclusion that release presented a presently unacceptable risk to the safety of the community without demonstration, over a further period, of Mr Salgado behaving himself. 37 To the extent it matters, taking all factors before the Delegate into account, the result was a far from self-evidently unreasonable one.

E.4 Ground Six: No Evidence 38 As to Ground Six, Mr Salgado "repeat[ed] and relie[d] upon" the submissions canvassed above, contending the Attorney-General relied upon "insufficient" evidence, "considered without regard to the full context, without regard to other relevant factors or the objects of the [Crimes Act]". 39 This submission was underdeveloped and, for the reasons given in relations to Ground One to Five above, is without merit.

E.5 Materiality 40 Even if Mr Salgado had established any one of the errors alleged, it would be necessary for him to discharge the further burden of demonstrating a realistic possibility that the outcome of the Delegate's decision-making process could have been different if it were not attended by error: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 (at 605 [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ). 41 Given Mr Salgado has not established any of his grounds of review, there is no occasion to consider whether the alleged errors were material to the Delegate's decision.

F CONCLUSION AND ORDERS 42 For the reasons given, the originating application must be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Crimes Act 1914(Cth)ss 19AKA, 19AL, 19AL(2)(a)(i), 19AL(2)(a)(ii), 19AL(2)(b), 19ALA

Administrative Decisions (Judicial Review) Act 1977(Cth)ss 5, 5(1)(a), 5(1)(b), 5(1)(e), 5(1)(h), 5(2)(a), 5(2)(b), 5(2)(g)

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