FEDERAL COURT OF AUSTRALIA

Ng v Attorney-General [2017] FCA 1392

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 7 September 2017 be dismissed with costs, including costs incurred when the named respondent was the Minister for Justice.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for judicial review of a decision of a delegate of the respondent, the Attorney-General for the Commonwealth of Australia, to refuse to make an order under s 19APA(1)(d) of the Crimes Act 1914 (Cth) to amend the terms of a release on licence from prison granted by the federal Minister for Justice under s 19AP(1). The licence decision was made in respect of a prison sentence imposed on the applicant, Mr Matthew Chik-Hui Ng, in the People’s Republic of China.

2    After serving part of his prison sentence in China, Mr Ng successfully applied to be transferred to Australia to serve the balance of his sentence as though he was a federal offender who had the same sentence imposed on him in Australia. Mr Ng’s transfer to serve the balance of his Chinese sentence in Australia was subject to transfer conditions that he expressly consented to in writing, as was required for the transfer to take place. He did not, however, consent to the conditions for the later release on licence that was granted, although there is nothing in the text of the licence provisions to suggest that such consent is required to be obtained, or that a prisoner’s views are required to be taken into account.

3    Ten weeks after his release on licence, Mr Ng (via a friend and lawyer) applied either to have all but one of the conditions removed from his licence or, alternatively, to have the condition requiring him to have permission to leave Australia removed. He also sought to have an error in the description of the duration of his sentence corrected. That error arose because of reductions in his sentence ordered by a Chinese court not having been taken into account in the terms of the release on licence. While the change to the licence conditions sought was refused, the licence was amended by the delegate, as requested by Mr Ng, in relation to his sentence duration. That resulted in his sentence and therefore licence expiry date being brought forward by nine months to 14 August 2021.

4    Mr Ng could not (and did not) seek the removal of the mandatory statutory licence condition imposed by s 19AP(7)(a) of the Crimes Act to be of good behaviour and not violate any law during the licence period. For convenience, all further reference to “licence conditions” in these reasons is confined to those conditions capable of being removed. Also, one of the licence conditions, which required Mr Ng to report to a New South Wales community corrections office within 24 hours of release, was apparently complied with and is now spent.

5    For the reasons that follow, Mr Ng has not made good his challenge to the delegate’s decision to refuse to remove continuing licence conditions that were capable of being removed. His application for judicial review must therefore be dismissed.

Summary of key events

6    On 6 December 2011, Mr Ng, an Australian citizen, was sentenced to 13 years’ imprisonment (reduced on appeal to 11 years and six months’ imprisonment) in China, where he was born. The offences for which he was sentenced are described in the material before the Court as “organisational bribery”, “misappropriation of funds”, “misstatement of registered capital” and “official embezzlement”. A further conviction on another charge was quashed on appeal in China. Mr Ng had been remanded in custody in China from about 31 October 2010. He successfully applied to serve the rest of his sentence in Australia under s 24 of the International Transfer of Prisoners Act 1997 (Cth) (ITP Act).

7    On 29 November 2014, Mr Ng returned to Australia pursuant to a transfer warrant issued by the Minister on 28 July 2014. He then continued to serve his Chinese prison sentence in New South Wales as though he was a federal offender, as provided for by s 46 of the ITP Act. The expiry date for his non-parole period at that time was understood to be 15 August 2016.

8    On 15 June 2016, Mr Ng was released from prison pursuant to an early release on licence by the Minister on compassionate grounds arising from his family circumstances. The Minister was satisfied that those grounds amounted to exceptional circumstances, this being a statutory condition precedent to the grant of a release on licence: see s 19AP(4) of the Crimes Act. The release on licence and variation of licence provisions reproduced and discussed below make no reference to the appropriateness or otherwise of a federal sentence that has been imposed, although such a consideration is not proscribed either.

9    At the same time that he granted the release on licence, the Minister declined to recommend to the Governor-General of Australia that he grant Mr Ng a pardon by the exercise of the Royal Prerogative of Mercy.

10    By way of background for what follows, it is important to note that the delegate who subsequently refused the licence condition variations sought on behalf of Mr Ng was involved in the submissions made to the Minister leading both to his transfer to Australia and to his release on licence on particular conditions. The knowledge and understanding of the delegate and, perhaps even more importantly, the range of matters that he might have had regard to, cannot be regarded as confined to the matters that were specifically drawn to his attention in the memorandum provided to assist in making that subsequent decision not to vary the licence conditions. This also has a bearing on the conclusion reached below as to whether the memorandum can properly be regarded as any part of the delegate’s reasons.

11    The power to grant the licence, expressed to be bestowed on the Attorney-General by s 19AP(1) of the Crimes Act, was apparently exercised by the Minister pursuant to machinery of government arrangements reflected in item 3 in s 19(1) and also s 20 of the Acts Interpretation Act 1901 (Cth): see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 347 ALR 45 at [24], [45]-[46]. Thus the s 19AP(1) power to grant a licence and the s 19APA(1) power to vary or rectify errors in a licence may be exercised by the Attorney-General in person, by the Minister in person, or by a delegate of the Attorney-General. As noted, in this case, the grant of the licence was by the Minister and the limited variation by amendment of the sentence dates was by a delegate of the Attorney-General. The delegate of the Attorney-General also refused to remove the licence conditions sought by Mr Ng, being the decision that is now under review in these proceedings.

12    On 29 August 2016, a friend of Mr Ng, Mr Thomas Lennox, who was also a solicitor acting for him, applied by a letter sent on Mr Ng’s behalf for the removal of all of his licence conditions or, alternatively, the removal of condition (m), which required Mr Ng to have the written permission of the Attorney-General or his delegate to leave Australia. The operative licence conditions capable of being removed were as follows:

(b)    You will be supervised by a parole officer until your supervision period ends on 14 May 2022.

(c)    You must obey all reasonable directions given to you by your parole officer.

(d)    You must report to your parole officer as requested by him or her.

(e)    You must live in a place of which your parole officer approves. If you change your address, you must tell your parole officer within 48 hours, or as soon as possible.

(f)    Your employment, both paid and unpaid, must be approved by your parole officer. If you change your job, you must tell your parole officer within 48 hours, or as soon as possible.

(g)    You must not have the sole responsibility for the financial affairs of any business.

(h)    You must disclose details of your financial affairs to your parole officer if requested to do so.

(i)    You must not undertake any employment involving financial matters without informing your employer of your convictions for financial crimes.

(j)    You must be assessed for psychological and psychiatric counselling and/or treatment, and you must attend such counselling and/or treatment if it is recommended as a result of the assessment, or if it is considered necessary by your parole officer.

(k)    You must authorise and direct all relevant advisers or counsellors to make available to your parole officer a report on your conditions, treatment and progress on request.

(l)    You must not leave the State of New South Wales without first obtaining the written permission of the Assistant Commissioner, Community Corrections, Department of Corrective Services, Henry Deane Building, 20 Lee Street, Sydney.

(m)    You must not leave Australia without first obtaining the written permission of the Attorney-General or delegate and if permission to leave Australia is granted subject to any conditions, you must comply with those conditions.

13    The application for the removal of the licence conditions relied upon much the same arguments as had been advanced, unsuccessfully, for the grant of a pardon, albeit that the family circumstances upon which the release on licence was based were no longer relied upon.

14    The Attorney-General submitted that the removal of all licence conditions that were able to be removed could be equated to a pardon. While that comparison is not apt, given that a pardon may be seen to have the practical effect of eliminating a conviction (at least prospectively) while a release on licence without conditions leaves a conviction in place, there is no apparent reason why refusal of a pardon, including any reasons for that refusal, is a circumstance that cannot be taken into account in deciding not to vary licence conditions. In particular, that circumstance cannot be regarded as an irrelevant consideration in the public law sense of being forbidden from being taken into account.

15    Mr Ng’s application to remove his licence conditions became the subject of a detailed memorandum from the Director of the Federal Offender’s Unit within the Attorney-General’s Department addressed to the delegate and dated 21 November 2016. The express purpose of the memorandum was to assist the delegate in deciding whether to amend the licence as requested. The attachments to the memorandum to the delegate that were relevant to the licence condition variation sought were as follows:

(1)    the application letter from Mr Lennox on behalf of Mr Ng;

(2)    letters from Mr Ng’s employer and father;

(3)    a psychological report;

(4)    a letter from Mr Ng’s licence supervising officer enclosing the application letter from Mr Lennox; and

(5)    a report from Mr Ng’s licence supervising officer on his request to vary his licence conditions.

16    There was no evidentiary basis established before this Court for concluding that the delegate did or did not read and consider each of those documents himself, irrespective of the contents of the memorandum addressed to him. Accordingly, no factual basis was established for concluding that any particular argument advanced in writing on behalf of Mr Ng was not, in fact, considered by the delegate.

17    Also included with the memorandum addressed to the delegate were court documents from China and related documents concerning the error in the description of the expiry date of Mr Ng’s prison sentence. Those documents were the basis for the recommendation that was accepted and acted upon by the delegate to amend Mr Ng’s licence so as to vary and thereby correct the sentence dates, as sought by Mr Ng. That material requires no further consideration.

18    On 22 November 2016, the delegate agreed to recommendations in the memorandum before him. Those recommendations were to not remove any of the licence conditions, and to amend the sentence details in the licence as outlined above. In accepting that recommendation, no indication was given by the delegate as to which parts of the memorandum were accepted or rejected by him. There was no evidence that the delegate did or did not have regard to the assertions made on Mr Ng’s behalf about the supposed harshness of the sentence imposed on him in China.

19    A consequential recommendation to sign letters that were attached to the memorandum in draft, addressed to Mr Ng and his solicitor, was also expressly accepted by notation by the delegate on the last page. Letters to Mr Lennox and Mr Ng were subsequently signed by the delegate. At the hearing of this application, it was suggested on behalf of Mr Ng that it should be inferred that the letters were signed by the delegate without amendment from the draft provided with the memorandum. However, there is no evidence by which such an inference could safely be drawn. The notation on the memorandum by the delegate would most likely have been the same whether the letters prepared for the delegate’s signature were changed in any way or not. That said, nothing appears to turn on whether the letters drafted for the delegate were amended or not before they were signed.

Sections 19AP and 19APA of the Crimes Act 1914 (Cth)

20    The key provisions to be considered in this application are ss 19AP and 19APA of the Crimes Act. Because the case advanced on behalf of Mr Ng suggests that those provisions must be interpreted and applied in particular ways, it is necessary to reproduce those provisions in full, so as to appreciate the scope of their operation and, in particular, the breadth of the discretion both to impose and to vary licence conditions. On the date of the delegate’s decision on 22 November 2016, the terms of those provisions were as follows:

19AP Release on licence

(1)    Where a person is serving a federal sentence (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), the Attorney-General may grant a licence under this subsection for the person to be released from prison.

(2)    A person who is serving a federal sentence of imprisonment (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), or another person acting on that person’s behalf, may apply to the Attorney-General for a licence under this subsection for the first-mentioned person to be released from prison.

(3)    An application under subsection (2) must:

(a)    be in writing; and

(b)    specify the exceptional circumstances relied on to justify the grant of the licence.

(4)    The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.

(4A)    Without limiting the matters to which the Attorney-General may have regard for the purposes of subsection (4), the Attorney-General may have regard to:

(a)    any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or

(b)    any extensive cooperation by the person with law enforcement agencies after sentencing; or

(c)    any serious medical condition the person has that cannot adequately be treated or managed within the prison system.

(5)    The Attorney-General is not required to consider an application under subsection (2) in respect of a person if an application has been made under that subsection in respect of that person within one year before the first-mentioned application.

(6)    A licence in relation to a person:

(a)    if the person is subject to a federal life sentence—must specify the day on which the licence period ends, being a day not earlier than 5 years after the person is released on licence; and

(b)    specify whether or not the person is to be released subject to supervision; and

(c)    if it is proposed that the supervision period for a person released on licence subject to supervision should end before the end of the person’s licence period—specify the day on which the supervision period ends.

(7)    A licence:

(a)    is subject to the condition that the offender must, during the licence period, be of good behaviour and not violate any law; and

(b)    if the licence specifies in accordance with subsection (6) that the person is to be released subject to supervision—is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a person specified in the licence and obey all reasonable directions of that person; and

(c)    is subject to such other conditions (if any) as the Attorney-General specifies in the licence.

(10)    A licence directing that the offender be released from prison is sufficient authority for the release.

19APA Amendment of parole orders and licences

Amendment of conditions

(1)    The Attorney-General may, at any time before the end of:

(a)    a parole period for a person for whom a parole order has been made; or

(b)    a licence period for a person who is released on licence for a federal sentence;

by order in writing, amend the parole order or licence by doing any or all of the following:

(c)    imposing additional conditions on the parole order or licence;

(d)    varying or revoking a condition of the parole order or licence specified under paragraph 19AN(1)(c) or 19AP(7)(c) or imposed under paragraph (a);

(e)    if the supervision period has not ended—changing the day on which the supervision period ends.

Amendments to rectify errors etc.

(2)    If a parole order or licence:

(a)    contains an error of a technical nature; or

(b)    has a defect of form; or

(c)    contains an ambiguity;

the Attorney-General may, at any time, by order in writing, amend the parole order or licence to rectify the error, defect or ambiguity.

Note:    For paragraph (a), the following are examples of errors of a technical nature: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter.

When amendments take effect

(3)    An amendment of a parole order or licence under subsection (1) takes effect when notice in writing of the amendment is given to the offender.

(4)    An amendment of a parole order or licence under subsection (2) is taken to have had effect from the date of effect of the parole order or licence.

21    It may be observed that while a licence cannot be granted unless the decision-maker is satisfied that there are exceptional circumstances, suggesting a high degree of deference to the judicial process by which a prison sentence was imposed and intended to be served, there are no overt restrictions on the matters that may be taken into account in either imposing or varying licence conditions under ss 19AP(7)(c) or 19APA(1)(d) of the Crimes Act respectively, nor in the surrounding provisions. Such restrictions as may be found elsewhere, as discussed in the next several paragraphs, do not assist Mr Ng’s case.

22    There is also no basis within ss 19AP or 19APA for inferring, at least in relation to federal sentences imposed in Australia, any practical limitation by way of relevant or irrelevant considerations that would render any particular fact or circumstance pertaining directly or indirectly to the circumstances of a prisoner as something that must or must not be taken into account. While the usual restrictions as to procedural fairness and legal unreasonableness can still be seen to apply, they will ordinarily have little work to do under such a statutory regime. It will generally be very difficult to challenge by way of judicial review a decision to impose, vary or decline to vary any particular licence condition for such reasons as the decision-maker sees fit. That is the very essence of a largely unfettered executive decision-making process of the kind provided for by s 19APA(7)(c) of the Crimes Act.

23    The implication that release on licence is not, at least other than in exceptional circumstances, intended to be a process by which sentences imposed by courts are able to be the subject of some kind of de facto executive review, is reinforced in the case of overseas sentences being served in Australia by ss 42 and 45 of the ITP Act, including as to licence condition variation applications. Those sections provide as follows (emphasis as per original):

42    Sentence enforcement in Australia

The Attorney-General may direct that a sentence of imprisonment imposed on a prisoner by a court or tribunal of a transfer country, or on a Tribunal prisoner by a Tribunal, be enforced on transfer of the prisoner to Australia under this Act:

(a)    without any adaptation of the duration of the sentence of imprisonment or its legal nature, or with only such adaptations to the duration of the sentence or its legal nature as the Attorney-General considers are necessary to ensure that enforcement of the sentence is consistent with Australian law (in this Act called the continued enforcement method); or

(b)    by substituting a different sentence of imprisonment for that imposed by the transfer country or Tribunal (in this Act called the converted enforcement method).

…

45    Appeal and review of sentences of imprisonment imposed by transfer country or Tribunal and sentence enforcement decisions of Attorney-General

(1)    On transfer of a prisoner to Australia under this Act, no appeal or review lies in Australia against the sentence of imprisonment imposed by the court or tribunal of the transfer country or by the Tribunal.

(2)    No appeal lies against a decision of the Attorney-General concerning the enforcement in Australia under this Act of a sentence of imprisonment imposed by a court or tribunal of a transfer country or the Tribunal.

24    For completeness, ss 43 and 44 of the ITP Act deal with the duration and nature of enforced sentences and directions concerning enforcement of sentences. Articles 12 and 13 of the Treaty between the Government of Australia and the Government of the People’s Republic of China concerning Transfer of Sentenced Persons, which is in Schedule 1 to the International Transfer of Prisoners (China) Regulations 2011 (Cth), describe how transferred sentences may be the subject of “continued enforcement”, including by adaptation, and the laws that apply to the process.

25    The combined effect of ss 42 and 45 is that the Attorney-General has a non-appellable discretion as to how a transferred sentence may be enforced in Australia and, upon transfer, a prisoner has no right to seek an “appeal or review” of the sentence imposed in the transfer country. Mr Ng’s Chinese sentence was apparently transferred for enforcement in Australia by the “continued enforcement method”.

26    The terms of ss 42 and 45 of the ITP Act were not raised in the course of the hearing of the application, except in the limited way in which the memorandum to the delegate noted at [23], reproduced at [29] below, that s 45 did not prevent Mr Ng from appealing his sentence in China now that he was in Australia. Mr Ng did not, therefore, have an opportunity to be heard on the impact that s 45 of the ITP Act would have on his claim that the delegate should have had regard to his submissions on the supposed harshness of the sentence imposed on him in China. In particular, there was no opportunity to make submissions on the scope of the word “review” in s 45(1) and whether that would proscribe indirect review, such as by making the appropriateness of the sentence a basis for removing or varying licence conditions.

27    But for Mr Ng not having been heard on this issue, I would have decided that the word “review” was clearly wide enough to preclude the supposed harshness of the sentence imposed in China being permitted to be reviewed in this way. On that interpretation, it was not open to the delegate to conduct an assessment of the supposed harshness of sentence as a basis for removing licence conditions. If that was the correct interpretation, the part of Mr Ng’s application that relied on consideration being given to the supposed harshness of the sentence imposed in China could not succeed. That is, s 19APA(7)(c) would not have been available to him to be used as a mechanism by which to seek what is, in substance, a review of the sentence imposed on him in China, contrary to the terms of s 45 of the ITP Act. This is necessarily an obiter observation, and is not the basis upon which Mr Ng’s application is to be decided. Fully argued, it is possible that a different conclusion might be reached on the scope of the word “review” in s 45 of the ITP Act, even if that is not presently readily apparent.

28    As noted above, the terms of s 45 were referred to in the memorandum addressed to the delegate at [23]. However, that was in the context of advising that there was no impediment to Mr Ng seeking to appeal in China against the sentence imposed there. There is no evidence that the delegate did or did not have regard to submissions made on behalf of Mr Ng as to the asserted excessiveness of the sentence imposed in China, whether by reason of the terms of s 45 of the ITP or otherwise.

The passages of the memorandum to the delegate relied upon

29    The oral and written submissions for Mr Ng make reference to many of the passages in the memorandum addressed to the delegate. Ordinarily, there is no useful purpose to be served in reproducing significant portions of such a document in reasons for judgment. However, the challenge to the delegate’s decision is better able to be understood with most of those passages being set out in full as follows (emphasis as per original):

Requests for amendments of licence

Request to amend licence by removing all licence conditions, or alternatively, overseas travel condition 2(m)

Grounds put forward for removal of all licence conditions

16.    Mr Lennox’s detailed letter of 29 August 2016 (Attachment C) asks that you remove or vary the conditions of Mr Ng’s licence. If you do not agree to remove all the conditions, Mr Lennox asks in the alternative, that overseas travel condition 2(m) be removed from the licence so Mr Ng can travel overseas without any restrictions. Mr Lennox provides background information about Mr Ng’s conviction, transfer to Australia and application for a pardon, sentence reduction and/or early release from custody. The letter sets out the following grounds for removal of all conditions:

•    Mr Ng has consistently maintained his innocence of all charges and that his conduct would not have been an offence in Australia.

•    Mr Ng received an unreasonable disproportionate penalty for his offences. He served a longer period of time in prison in China than an Australian court would have set for an equivalent offence in Australia. The prison conditions in China were inhumane.

•    Now that he has been transferred, Mr Ng cannot appeal against the sentence imposed in China and the Minister for Justice refused to grant him a pardon. [This assertion is incorrect as the ITP Act does not prevent a transferred prisoner from exploring appeal options in the transfer country.]

•    Mr Ng’s conviction will affect his ability to travel to the United States and even to New Zealand to see his family.

•    The psychological report (Attachment F) sets out the effect that Mr Ng’s imprisonment in China had on Mr Ng’s mental health. [This is the same psychological report which was previously considered by the Minister for Justice in relation to Mr Ng’s applications for pardon and early release.]

Grounds put forward by Mr Ng’s legal representative for removal of overseas travel condition

•    According to Mr Lennox, on 1 August 2016 Mr Ng applied to travel to New Zealand to visit his father and for a short business trip, but the Attorney-General refused that request and indicated that all travel would be denied until December 2017 at the earliest – being the expiration of one-quarter of Mr Ng’s parole period. [As set out above, this correspondence was considered to be a travel enquiry and no decision was made.]

•    Mr Ng is seeking to re-establish his life by assisting his employer to raise capital for investment in Australia by contacting a number of investors he knew from before his imprisonment. It is important for Mr Ng’s future business and work prospects that he is able to travel overseas to hold meetings and discussions with these investors in person.

•    Mr Ng would like to travel to Singapore and Hong Kong in November 2016 for about two weeks. Mr Ng would not be travelling to other jurisdictions and would not be travelling to the People’s Republic of China. Mr Ng would travel by himself and would stay in hotels in Hong Kong and Singapore. [Hong Kong is a special administrative region of China.]

•    Mr Ng’s travel would not contravene condition 2(g) of his licence because he will not be responsible for the financial affairs of any business.

•    Mr Ng was an exemplary prisoner and has complied with all his licence conditions since his release.

17.    Apart from a letter from Mr Ng’s employer, Mr Lennox has also included a supporting letter from Mr Ng’s father (Attachment G) written in August 2016 which states that:

•    ‘It is a well-known fact’ that his son was unjustly imprisoned in China over a commercial dispute. He states that the Ng family has suffered enough at the hands of the Chinese Government by losing Mr Ng’s daughter, Isabella, Mr Ng’s marriage crumbling and now the Australian Government enforcing ‘a wrongful sentence by China’ and treating Mr Ng like ‘a felon.’

•    He is 80 years old and he has been unable to visit Mr Ng in either China or Australia.

•    His son, (Mr Ng) has told him that the only time he (Mr Ng) could travel to see him during his five year parole period is if he (Mr Ng’s father) is terminally ill. Mr Ng should also follow Chinese customs paying tribute to his late mother by visiting her grave in Auckland.

•    Mr Ng’s father states that the travel restriction is inhuman and asks you to review it.

...

Discussion

19.    A person who is granted early release on licence is permitted to be in the community under supervision before the expiry of their non-parole period. Apart from prisoners who are granted early release because they are dying, prisoners released on licence are obliged to be under supervision and subject to conditions similar to those placed in parole orders.

20.    Licence conditions are a combination of standard conditions and additional conditions tailored to the person’s particular circumstances. Standard licence conditions include requirements to report to their parole officer, to obey reasonable directions from their parole officer, to have their employment and accommodation approved by their parole officer, and to request permission from the relevant authorities for travel interstate or overseas. A person who is in the community under licence conditions is still under sentence. As they cannot be supervised when they are absent from their State of normal residence, it is not appropriate to allow them unrestricted travel either inside Australia or internationally.

21.    A licence extends until the end of the prisoner’s sentence unless the licensee dies before that time. The only other cases in which licence or parole conditions have been removed are those of life prisoners. In these cases, the Minister or delegate has removed the need for ongoing supervision after the person has been in the community for a lengthy period of time without re-offending. In the most recent case where this occurred, the person had been under supervision for nine years and six months.

22.    Mr Ng was released on licence on 15 June 2016. He has been under supervision in the community for about four months. Mr Ng’s belief that he has not committed any offence, coupled with his wish to travel overseas for business appears to be his primary motivation for wanting to be in the community without any conditions or supervision. However, under the ITP Act, to be eligible for transfer to Australia the conduct which constituted the offence in the sentencing country must also be an offence in Australia. When Mr Ng consented to his transfer to Australia under the ITP scheme, he consented to having the sentence imposed on him in China continued upon transfer to Australia. His release on licence and the licence conditions imposed form part of the enforcement of his sentence in Australia. While it is understandable that Mr Ng is finding it difficult to accept the enforcement of the sentence that was imposed by China now that he is in Australia, if Mr Ng had not accepted the terms of his transfer he would have remained in prison in China for at least another 19 months (between November 2014, when he was transferred to Australia, and his release on licence in June 2016). Further, although Mr Ng would still have been eligible for release in August 2016 in China, there was no guarantee that China would have granted his release from custody at that time.

23.    Mr Lennox claims in the application that Mr Ng cannot appeal against his Chinese sentence now that he has been transferred to Australia. Section 45 of the ITP Act provides that ‘no appeal or review lies in Australia against the sentence of imprisonment imposed by the Court or Tribunal of the transfer country.’ However, the ITP Unit within the Department has advised that there is nothing in the ITP Act preventing a transferred prisoner from exploring appeal options in the transfer country.

24.    Mr Lennox’s application for removal of Mr Ng’s licence conditions is based on essentially the same grounds as those he put forward in support of Mr Ng being granted a pardon. Those grounds were considered on 15 June 2016 by the Minister for Justice who declined to recommend that the Governor-General grant a pardon to Mr Ng. The Minister did not enter into any evaluation of the foreign conviction or sentence, or make any judgment as to the reasonableness or otherwise of the sentence imposed by the foreign country. The Minister’s decision to grant Mr Ng early release on licence was based on his exceptional family circumstances, not on issues related to his Chinese conviction, sentence or imprisonment, or his international transfer to Australia. Mr Lennox has not raised any new information that was not considered by the Minister. In these circumstances, it would not be appropriate for a Departmental delegate, in effect, to review the Minister’s decision.

…

26.    The other basis for the removal of Mr Ng’s licence conditions is compassionate grounds. Both Mr Lennox and Mr Ng’s father put forward the losses Mr Ng has suffered as a result of his imprisonment. The psychological report which diagnosed Mr Ng as suffering from depression and posttraumatic stress disorder was also considered by the Minister in relation to Mr Ng’s early release and pardon applications. The report from NSW Corrective Services of 28 September 2016 states that although Mr Ng attended three appointments with a psychologist after his release, Mr Ng was focussed on re-entering the workforce and did not believe that his previously diagnosed PTSD was an issue. As he was not interested in therapy, he has not attended any further appointments.

27.    The assertion by Mr Ng’s father that he will not be permitted to visit him in New Zealand unless he is dying appears to be based on a misunderstanding of the travel policy. Mr Ng was told that travel would not normally be approved during the first quarter of a person’s order unless there were urgent compassionate grounds. Mr Ng’s father is elderly but we have not been provided with any information to suggest that he is ill. Although Mr Ng made enquiries about his proposed travel, there was no formal application and so there was no decision to refuse to grant travel. Whether Mr Ng would be granted a visa to enter New Zealand is outside the Department’s control and is a matter for the New Zealand Government to determine.

28.    Mr Ng appears to be focussed on re-establishing his previous career as a businessman which involved unrestricted international travel. However, neither this goal nor the compassionate grounds he has raised are sufficient justification to consider overriding his licence obligations by removing either all the conditions from his licence or the travel condition 2(m).

29.    If Mr Ng makes an application for permission to travel overseas, you can consider that application on its merits.

…

Summary

37.    It is a general expectation that people released from custody should be subject to conditions requiring them to be supervised and monitored, as this ensures community safety and assists the person with their reintegration into the community. Mr Ng has only been in the community under supervision for a short time. None of the grounds raised form a compelling case for treating Mr Ng differently from other offenders who are released on licence by removing either all the conditions of Mr Ng’s licence or the travel condition 2(m).

…

39.    Therefore, taking all relevant factors into account, we recommend that you decide not to remove all the licence conditions or travel condition 2(m), but decide to amend the sentencing details of Mr Ng’s licence to reflect his reduced sentence and correct the original sentence information in the licence.

30    As discussed below, a key paragraph of the memorandum addressed to, but not authored by, the delegate that is said to contain the asserted errors is [24], reproduced above.

31    The written submissions for Mr Ng also relied upon the signature of the delegate on the memorandum addressed to him, including him circling the word “agreed” in relation to the final recommendations.

32    While emphasis is placed on the particular paragraphs relied upon by Mr Ng, I have considered the entirety of the document to ensure that the necessary overall context is maintained.

33    The memorandum addressed to the delegate indicates that the licence conditions imposed on Mr Ng are of a kind that are ordinarily imposed on a prisoner obtaining the benefit of early release on licence for a federal offence in exceptional circumstances. Doubtless, those conditions are varied in some cases so as to better fit the circumstances of the individual prisoner. An obvious example might be if a prisoner has a terminal condition and is effectively being released early for palliative treatment or an untimely death. There is no identified basis for describing the conditions that were imposed on Mr Ng as being particularly harsh or onerous. Release on licence remains an alternative to incarceration that is only available in exceptional circumstances.

34    Mr Ng’s real objection was to being convicted, and thus being sentenced, at all. On his view of what transpired in China, he should not be the subject of any sentence, and therefore not subject to any licence conditions. That was not a promising start to his challenge to the delegate’s decision, given the terms of the ITP Act, which is designed to have overseas sentences served in Australia based on what was imposed by a court in the transfer country, unless the Attorney-General determines otherwise, which is not appellable. Even for domestic offending, release on licence is clearly a special exception to serving a federal prison sentence, not an alternative appeal mechanism.

The letter to Mr Ng from the delegate

35    The oral and written submissions for Mr Ng relied upon the third and fourth paragraphs of the letter sent to Mr Ng (and separately to Mr Lennox) by the delegate, dated 23 November 2016. For context, the first, second and fifth paragraphs also warrant reproduction, so as to include all of the text concerning the licence conditions. Those five paragraphs were as follows, with those relied upon by Mr Ng being emphasised:

I refer to the application from your solicitor Mr Lennox, dated 29 August 2016 seeking amendments to your licence. In considering your case I have taken into account that application, the supporting documents you provided, a related Request for Variation of Licence Report provided by Community Corrections, dated 28 September 2016, and information provided by the International Transfer of Prisoners Unit and your supervising officer.

Licence Conditions

In his letter of 29 August 2016, Mr Lennox asked for the removal of all your licence conditions, or alternatively, the removal of overseas travel condition 2(m). These requests are based on grounds primarily relating to your Chinese conviction, sentence and imprisonment. As you know, on 15 June 2016, the Minister for Justice declined to recommend to the Governor-General that he grant you a pardon. Rather, you were granted early release on licence because of your family circumstances. The Minister for Justice considered your wife’s illness and the need to care for your children to be exceptional circumstances that justified your release on licence. In granting you early release, the Minister anticipated that you would be spending time caring for your children.

Under the terms of your transfer the Minister directed that you would be on parole until the expiry of your head sentence, and that your supervision period after your release might continue until the expiry of your head sentence. Although you were released on licence, rather than parole, prisoners on licence are still under sentence and it is not appropriate for them to be in the community without conditions or to be allowed to travel either interstate or internationally without restrictions. All prisoners released on licence into the community are expected to be in the community under supervision and subject to the conditions of their licences until the licence expires.

You were released on licence in June 2016 and have only been in the community under supervision for about five months. Accordingly, I consider it reasonable for you to remain subject to appropriate supervision and monitoring conditions, including the requirement that you apply for permission to travel overseas during the supervision period. Therefore, at this time I have decided not to remove any of your licence conditions including travel condition 2(m).

Your parole officer has informed me that your employer is aware that you will require permission to travel overseas while you are on licence. In response to inquiries from you and Mr Lennox about the possibility of overseas travel while on licence, the Department has provided general advice to you about the Department’s travel policy. In accordance with that policy, people on licence are generally unlikely to be granted permission to travel overseas until they have been under supervision in the community for the first quarter of their licence period, unless there are urgent compassionate grounds. After that time, permission to travel may be granted for family or business reasons. While we appreciate the fact that many people under supervision in Australia are separated from family members overseas, permission to travel is unlikely to be approved unless it is for a legitimate reason that cannot be delayed until the end of the supervision period. All applications are considered on their merits.

36    It should be noted that, by the time of the hearing of Mr Ng’s judicial review application, he had completed almost one quarter of his licence period and thus could have applied for permission to travel overseas in accordance with the usual application of the release on licence policy guidelines referred to in the delegate’s letter above. The letter also makes it clear that the decision by the delegate was made by reference to the circumstances prevailing at that particular point in time, and did not preclude a further application being made, relying, for example, upon the effluxion of time or changed circumstances.

The relief sought

37    By an originating application filed on 7 February 2017, Mr Ng sought wide and, it may be said, ambitious relief against the Minister in relation to certain administrative directions made for the purposes of the ITP Act, the efficacy of Mr Ng’s consent to the conditions of his transfer from China and the conditions of the release on licence as granted, as well as concerning the refusal of the request to vary the licence conditions. The Minister responded by a notice of objection to competency on various grounds, including that Mr Ng had commenced proceedings out of time in relation to relief sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

38    By the time written submissions were filed for Mr Ng, his case was sensibly confined to issues arising from the delegate’s refusal of his request to vary his licence conditions, primarily relying upon the ADJR Act for relief. The rest of his claims for relief were abandoned. Once his case was narrowed in this way, the appropriate respondent was the Attorney-General rather than the Minister. The Attorney-General quite properly consented to this narrower case being brought out of time. Upon that basis, an extension of time was granted and leave was also granted to the applicant to file and rely upon an amended originating application, naming the Attorney-General as the respondent.

39    During the course of the hearing, Mr Ng’s case was further narrowed by the abandonment of a claim of apprehended bias on the part of the delegate.

40    The relief ultimately sought at the hearing, by the amended originating application filed on the day of the hearing and the grounds relied upon, was as follows:

The request to vary the Licence terms

11.    An order for the issue of a writ of certiorari or, further and in the alternative, an order under section 16(1)(a) ADJR Act, quashing the decision made by the Respondent in the letter dated 22 November 2016 and 23 November 2016 refusing to vary the terms of the Applicant’s Licence.

12.    Further, a declaration or an order declaring under section 16(1)(c) or 16(2)(a) ADJR Act, that the Respondent, in making the decisions set out in prayer for relief 11 acted contrary to law by:

a.    Breaching the rules of natural justice – s 5(1)(a) of the ADJR Act; [Ground A]

b.    The decision involved errors of law in relation to the proper construction of sections 19AP and 19APA of the Crimes Act 1914 (Cth) (Crimes Act) [s 5(1)(f) of the ADJR Act] [Ground B]

c.    Adopting a rule or policy without regard to the merits of the case by stating that “prisoners on licence will be under supervision until their licence expires’ or alternatively that there is an expectation that ‘prisoners on licence will be under supervision until their licence expires.’ [s 5(1)(e) and (2)(f) of the ADJR Act] [Ground C]

d.    Failing to carry out the statutory task under s19AP and 19APA of the Crimes Act [apparently s 5(1)(d) and/or perhaps s 5(1)(e) of the ADJR Act] [Ground D]

e.    Having regard to an irrelevant consideration being the decision of the Minister for Justice in relation to a prior application or request for consideration of a pardon [s 5(1)(e) and (2)(a) of the ADJR Act] [Ground E]

13.    An order under section 16(1)(b) of ADJR Act that the Respondent reconsider the decision rejecting the proposed variation of terms of the Licence issued in its 22 November 2016 and 23 November 2016 letters.

41    The written submissions for Mr Ng stated that the “essence of Mr Ng’s complaint” was the refusal to remove the licence conditions on the basis that some of the material submitted on his behalf was considered by the Minister in deciding to grant Mr Ng the licence with the conditions specified in it and in deciding not to recommend a pardon. The part of that material that was taken into account in granting the licence concerned compelling personal circumstances in Mr Ng’s family. The part that was not taken into account concerned Mr Ng’s complaint about the supposed severity of the sentence imposed in China, especially when compared, so it was said, with sentencing law in Australia. Particular reliance was placed on [24] of the memorandum addressed to the delegate, reproduced at [29] above, which was the asserted repository of actionable error by the delegate that gives rise to Grounds A, B, D and E.

42    The question of whether [24] of the memorandum was of itself any part of the delegate’s reasons, which is indispensable for any of Grounds A, B, D or E to succeed as argued, is addressed below. Before turning to that issue, it is necessary to attempt to summarise the case advanced upon the basis that the argument advanced on behalf of Mr Ng that the memorandum constituted a part of the delegate’s reasons is correct.

43    Distilling the oral and written submissions for Mr Ng, the approach in [24] of the memorandum was said to have led to the errors asserted by Grounds A, B, D and E. On Mr Ng’s case, that was because the notion expressed in [24] that considering the submissions about his Chinese sentence would amount to an inappropriate review of the Minister’s prior decision not to recommend a pardon, constituted:

(1)    A breach of the rules of natural justice alleged in Ground A. That was said to be because the view that considering the submission about the harshness of the Chinese sentence would constitute reviewing the Minister’s decision not to recommend a pardon was an adverse conclusion. Such an adverse conclusion was not obviously open on the known material. Mr Ng was deprived of the opportunity to submit that the Minister’s decision concerning the pardon recommendation was a different decision in a different context, and in circumstances in which he had not been heard in relation to the licence conditions when they were imposed.

(2)    A misapprehension of the power under s 19APA(7)(c) (Ground B), a failure to carry out the statutory task (Ground D) and an improper exercise of power by having regard to an irrelevant consideration (Ground E), because the decision to decline to recommend a pardon had nothing to do with the exercise of the licence variation power and should have had no part to play in the decision required to be made. As such, the prior pardon recommendation decision was not an available basis to decline to consider Mr Ng’s Chinese sentence submissions.

44    Ground C, allegedly adopting a rule or policy without regard to the merits of the case, was said to be constituted by the rigid application of a policy that all persons released on licence had to be subject to conditions.

Characterisation of the memorandum to the delegate – Grounds A, B, D and E

45    A threshold issue to be determined prior to considering Grounds A, B, D and E of the above grounds of review was whether, as contended on behalf of Mr Ng, the memorandum addressed to the delegate constituted any part of the delegate’s reasons, such that any errors disclosed should be attributed to the delegate as decision-maker. Senior counsel for the Attorney-General submitted that the memorandum was not any part of the delegate’s reasons. It was common ground that this was a factual matter for judicial determination. The relevant authorities were also largely common ground and do not require separate consideration.

46    Importantly, it was not in dispute that the letter sent by the delegate to Mr Ng included the expression of certain reasons for the decision to refuse to remove any licence conditions, along with other information, but that this was not an exhaustive statement of the delegate’s reasons. As senior counsel for the Attorney-General correctly pointed out, the letter could not be read in the same way as a formal statement of reasons provided pursuant to a request for reasons under s 13 of the ADJR Act, because such a statement is required to state the material facts taken into account expressly and thereby may support an inference that something material that was omitted was not taken into account.

47    It is not in doubt that the delegate was entitled to rely on material summarised in the memorandum addressed to him: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 30-31; Williams v Minister for Justice and Customs [2007] FCAFC 33; 157 FCR 286 at [21]. There was no legal bar to the delegate relying upon sufficiently accurate and comprehensive summaries of information in the memorandum: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 347 ALR 173 at [41] and [61]. However, as already noted, there is no evidence that the delegate relied only on the summary in the memorandum and did not consider the attachments for himself, which included the material furnished on behalf of Mr Ng. Nor is there any evidence of adoption of any part of the reasoning contained in the memorandum, beyond the ultimate acceptance of the recommendations as to the decisions to be made and to the extent that any part of the memorandum is consistent with letters sent by the delegate to Mr Lennox and Mr Ng.

48    The submissions for Mr Ng criticised the precis provided of the Minister’s antecedent decision not to recommend that Mr Ng be granted parole, as well as of the decision to grant the release on licence. In the absence of any evidence to suggest that this was an inaccurate representation of what had taken place, it was not demonstrated that there was anything wrong with that summary.

49    A careful examination of the memorandum addressed to the delegate and the competing submissions of the parties leads to the conclusion that the memorandum did not, of itself, form any part of the delegate’s reasons. That is not to say that the delegate did not, in his own mind, use or adopt parts of what was put to him, including in the supporting material annexed to the memorandum. That is almost inevitable when a recommendation is accepted, and may be so even when a recommendation is rejected. However, it is impossible to discern what was accepted and what was rejected by way of reasoning as to the final conclusion, let alone to be able to ascertain what weight was given to the competing considerations that were referred to. That conclusion is reinforced by the following combination of features of the memorandum:

(1)    it commences and concludes with a clear statement that it is furnished to enable the delegate to make a decision as whether to amend the licence granted to Mr Ng;

(2)    it provides information, analysis, discussion and recommendations on various topics concerning Mr Ng, quite clearly to facilitate a decision being made by the delegate, rather than being expressed as a statement of reasons for adoption;

(3)    the information, analysis and discussion in the memorandum includes opinions and recommendations for the express purpose of the delegate making a decision, rather than being reasons for having made a decision – the distinction is subtle at points, but fundamental, because the memorandum advocates a course of action, rather than, in form or substance, making or purporting to make any decision;

(4)    the final part on the last page of the memorandum, providing for a written indication by the delegate as to whether or not he agreed with each of the substantive recommendations as to what Mr Ng was seeking by indicating a choice between “Agreed” or “Not Agreed”, makes no provision for any indication as to whether any particular aspect of the preceding text, or, indeed, annexures, has been accepted or rejected – no provision is made for adopting any part of the memorandum as forming any part of the delegate’s reasons, let alone any question of weight or significance.

50    By contrast, the letter from the delegate gave reasons for why the decision not to remove the licence conditions was made. It is unsafe and unsound to speculate as to what more, if anything, formed the basis for the decision. While the delegate’s letter to Mr Ng contains express reasons for the decision made, they cannot be regarded as an exhaustive statement of all the reasons for that decision, as opposed to those considered most important to communicate. The omission of any particular fact, issue or circumstance cannot safely support an inference that such a matter was or was not a part of the reasons for the decision that was made. As already observed, the delegate’s letter is not a statement of all the material facts taken into account of the kind that can be required of a statement of reasons given under s 13 of the ADJR Act. That said, the letter may be taken to be a statement of the matters that were taken into account and that were considered to be of sufficient importance to record and communicate to Mr Lennox and Mr Ng. Accordingly, if any such reason given in the letter was found to be relevantly infected by error, that might vitiate the decision, depending on the impact that such an error can be shown to possibly have had on the result.

51    It follows that it is not possible to conclude that the delegate paid heed to the recommendation not to have regard to the material that had already been considered by the Minister in refusing to recommend a pardon. As aforementioned, the delegate was one of those involved in making the antecedent recommendation to the Minister in relation to both the pardon application and the release on licence application. It is entirely possible that the delegate did have regard to those prior submissions, but perhaps attached little or no weight to them, or at least did not consider that they were a sufficient reason to remove the licence conditions. For that logical reason alone, the arguments for Mr Ng based on this recommendation contain a flaw that is fatal to Grounds A, B, D and E. However, in case that reasoning is not sound, the substance of the arguments advanced will also be considered as though the memorandum did reflect everything that the delegate in fact took into account in making the decision to reject the application to remove or vary the licence conditions and constructively constituted part of the reasons of the delegate for those decisions.

Characterisation of the delegate’s letter regarding conditions – Ground C

52    Ground C also requires an exercise in characterisation. It was said that the letter to Mr Ng from the delegate, concerning the expectation that prisoners who are released on licence will be under supervision until the expiry of the licence, constituted the application of policy without regard to the merits of his individual case. The merits argument that Mr Ng advanced was that he was not someone who would ever require such supervision, and therefore that such a policy should not be applied to him.

53    In relation to the argument as to the inflexible application of policy, the submissions for the Attorney-General assert that the letter from the delegate to Mr Ng was referring to community expectations, rather than to any inflexible policy that must be applied irrespective of circumstances. While it may be going too far to interpret the letter as referring only to community expectations given the words used, there is no proper basis for concluding that the delegate was reflecting any more than his own views, rather than implementing a policy in place of proper consideration of the merits of Mr Ng’s case. That construction is supported by the fourth paragraph of the letter reproduced at [35] above. There is nothing in the letter to suggest that licence conditions would not be removed, in whole or in part, in an appropriate case. The delegate was entitled to form the view that this was not such a case. Ground C must therefore fail, as there was no application of a policy at all in place of the delegate’s own assessment of Mr Ng’s case, let alone a rigid policy that wholly disregarded the merits of Mr Ng’s case.

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.

Conclusion

67    Mr Ng has not made good any of the grounds of review that he relied upon. As each of the grounds for obtaining the relief sought must fail, the amended originating application must be dismissed.

68    Mr Ng must pay the costs of the Attorney-General. He must also pay the costs of the Minister for Justice prior to the change of the named respondent from the Minister to the Attorney-General. The costs orders made to that effect are intended to ensure that there is no hiatus in Mr Ng’s responsibility for costs by reason of that change.

Associate:

Dated:    28 November 2017