Federal Court of Australia

Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to Assistant Minister to the Attorney-General of the Commonwealth of Australia.

2.    The respondent’s decisions of 14 April 2021 to refuse the first and second applicant parole are set aside.

3.    The matters are remitted to the respondent to decide according to law.

4.    The respondent pay the applicants’ costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

Introduction

1    The applicants are each imprisoned under federal sentences of imprisonment. The first applicant (Mr Pulini) is the husband of the second applicant (Mrs Pulini).

2    On 14 April 2021, the respondent (the Assistant Minister) made a decision refusing to release Mr Pulini on parole, and a separate decision refusing to release Mrs Pulini on parole (together, the refusal decisions).

3    The applicants have brought an application for judicial review of the refusal decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Their application is made upon the following grounds:

(a)    The Assistant Minister was bound, but failed, to consider substantial and clearly articulated claims or contentions made by the applicants, in breach of the rules of natural justice.

(b)    The Assistant Minister’s reliance on “risk to community safety” in the absence of any findings or reasoning about that risk was illogical or legally unreasonable.

(c)    The Assistant Minister failed to give reasons or adequate reasons for either of the refusal decisions.

4    The applicants seek orders setting aside the refusal decisions and remitting the matters for reconsideration according to law.

Background

5    On 16 April 2019, Mr Pulini was sentenced to five years’ imprisonment (with a non-parole period of two years) for offences of harbouring an unlawful non-citizen and causing a person to enter or remain in forced labour. Mr Pulini is detained at the Palen Creek Correctional Centre in Queensland. His term of imprisonment expires on 15 April 2024.

6    On 16 April 2019, Mrs Pulini was sentenced to six years’ imprisonment (with a non-parole period of two years) for offences of trafficking in a person, harbouring an unlawful non-citizen, and causing a person to enter into or remain in forced labour. Mrs Pulini is detained at the Southern Queensland Correctional Centre. Her term of imprisonment expires on 15 April 2025.

7    On 4 June and 30 November 2020, Queensland Corrective Services (QCS) prepared Parole Reports in relation to Mr Pulini. The second Parole Report recommended that Mr Pulini be granted parole.

8    On 25 September 2020, QCS prepared a Parole Report regarding Mrs Pulini. The Parole Report recommended that parole be granted.

9    The Attorney-General’s Department (the Department) wrote to Mrs Pulini on 16 February 2021 and to Mr Pulini on 25 February 2021 outlining a number of considerations relevant to parole and inviting them to “comment on the issues” by way of a written response.

10    On 18 March 2021, Mr Pulini (through his solicitors) provided to the Department a written submission, a statement from himself, a psychologist’s report, records from QCS, and 24 letters of support.

11    While three of the applicants’ four children are adults, the youngest was 13 years old at the time the submission was made. Mr Pulini’s statement dealt, amongst other things, with the impact of his incarceration upon his youngest child, saying that the child had struggled the most in the absence of his parents, had been put through a lot and that this was an important time as he entered his teenage years.

12    On about 31 March 2021, the Department provided a submission to the Assistant Minister concerning whether Mr Pulini should be released on parole. The covering page contained two options for the Assistant Minister’s decision. The first was to decide to release Mr Pulini and sign the attached draft parole order. The second was to decline to release Mr Pulini and sign the attached draft parole refusal notice. The Assistant Minister could circle whichever option she chose.

13    Underneath the options for the Assistant Minister to choose from, the “Key Issues” were summarised in eight paragraphs. The Key Issues described the nature and circumstances of Mr Pulini’s offending, noted that the Department supported QCS’ recommendation for release on parole, and outlined factors which suggested that Mr Pulini could readily transition into the community, that he was unlikely to reoffend and that he would comply with parole conditions. The Key Issues concluded by describing the legislative framework.

14    The submission to the Assistant Minister attached ten bundles of documents, including a document prepared by the Department entitled “Analysis”, the sentencing remarks, the QCS Parole Reports, Mr Pulini’s submissions and the material that had accompanied those submissions.

15    The Analysis document dealt with the issues raised under the Key Issues heading in more detail, as well as summarising, inter alia, the criminal proceedings at first instance and on appeal, Mr Pulini’s statement and his supporting material, the submissions made by his solicitor and the QCS reports. It is of note that the Analysis focussed upon issues of protection of the community, rehabilitation and reintegration into the community, but did not mention the submission that a factor favouring parole was that Mr Pulini’s youngest son was suffering from his parents’ absence.

16    Under the Key Issues heading and in the Analysis, the Department recommended in favour of Mr Pulini’s release on parole.

17    The Department’s submission recognised that it was open to the Assistant Minister to decide either to grant parole, or not grant parole. The submission attached a draft parole order, as well as a draft notice refusing parole.

18    On 14 April 2021, the Assistant Minister circled the option on the submission to refuse to release Mr Pulini, and signed, without alteration, the draft notice refusing parole. The notice refusing parole amounted to a statement of the Assistant Minister’s reasons for refusing parole.

19    On 11 March 2021, Mrs Pulini (through her solicitors) provided to the Assistant Minister’s Department a written submission, a statement from herself, a psychologist’s report, records from QCS, and 28 letters of support. In her statement, Mrs Pulini expressed concern about the effect of her absence upon her children, saying that it had been terribly hard on them and that her priority was to spend time with them and look after them.

20    On 31 March 2021, the Department provided the Assistant Minister with a submission concerning Mrs Pulini. The submission was in the same format as the submission in respect of Mr Pulini. The content of the submission was similar. Again, the Analysis did not mention the submission that a factor favouring parole was that Mrs Pulini’s youngest son was suffering from her absence.

21    On 14 April 2021, the Assistant Minister signed, without alteration, the draft notice refusing Mrs Pulini parole.

22    The Assistant Minister’s reasons as set out in the notices of refusal of parole for each applicant were almost identical (with the differences between Mr Pulini’s notice and Mrs Pulini’s notice identified below in square brackets):

Federal offenders are subject to sentencing and management provisions set out in Part IB of the Crimes Act. In making a parole determination, the decision maker may have regard to the matters that are known to the decision maker and relevant to the decision. This can include comments made by the sentencing court; whether a person has satisfactorily completed programs ordered by a court or recommended by corrective services; parole reports on the offender’s conduct while serving his or her sentence; post release plans and the risk to the community of releasing an offender on parole. The above list does not limit the matters that can be taken into account by the decision maker when making a decision on whether to grant or refuse parole.

The order for refusal of parole has been made for the following reasons:

1.    I have taken into account the nature and circumstances of the offences to which your sentence relates, which involved [for Mrs Pulini: “human trafficking”] [for Mr Pulini: “offences under the Migration Act 1958”] with the intention of causing someone to enter into [for Mr Pulini: “and remain in”] forced labour. In so doing, I give weight to the comments of the sentencing judge that you ‘took away a woman’s freedom and seriously compromised her human rights and dignity for eight years’, your conduct was ‘sustained, protracted and callous’ and the damage that your actions caused the victim cannot be undone.

2.     I note the purposes of parole set out in section 19AKA of the Crimes Act 1914, being the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. I consider that the risk to community safety posed by your release on parole at this time outweighs the benefits which parole would provide to assist in your rehabilitation and reintegration into the community.

23    The present application for judicial review was filed on 7 May 2021. The parties are in agreement that the respondent was incorrectly named in the originating application. I will order that the name of the respondent be amended to, “Assistant Minister to the Attorney-General of the Commonwealth of Australia”.

Legislative framework

24    Under s 19AB(1) of the Crimes Act 1914 (Cth) (the Crimes Act), a court must generally fix a non-parole period if it imposes a “federal sentence” exceeding 3 years. A “federal sentence” is, under s 16, a sentence imposed for an offence against a law of the Commonwealth.

25    The purposes of parole are described in s 19AKA of the Crimes Act as follows:

19AKA    Purposes of parole

The purposes of parole are the following:

(a)    the protection of the community;

(b)    the rehabilitation of the offender;

(c)    the reintegration of the offender into the community.

26    Section 19AL(1) requires that the Attorney-General, “must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order)”.

27    Section 19AL(2) provides:

(2)     If the Attorney-General refuses to make a parole order for a person under subsection (1) or paragraph (b) of this subsection, the Attorney-General must:

(a)     give the person a written notice, within 14 days after the refusal, that:

(i)     informs the person of the refusal; and

(ii)     includes a statement of reasons for the refusal; and

(iii)     sets out the effect of paragraph (b) of this subsection; and

(b)     reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal.

…

28    Section 19ALA sets out a non-exhaustive list of matters to which the Assistant Minister “may have regard” in making a decision under s 19AL, as follows:

(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 programs 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.

29    In Lodhi v Attorney-General (Cth) [2020] FCA 1383, Bromwich J at [6] accepted the following propositions:

(a)    The power to release or not release a federal offender on parole concerns the administration of criminal justice.

(b)    That power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority).

(c)    While s 19AL(1) requires the Attorney-General to make a decision in relation to parole, the Attorney-General has a discretion to grant or refuse parole.

(d)    Section 19ALA, while setting out a wide range of factors that the Attorney-General can take into account, does not make consideration of any of the factors mandatory and – significantly – does not limit the factors to which the Attorney-General can have regard.

(e)    The Crimes Act contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. What is required may vary having regard to what has already occurred and what is said or done during the process.

(f)    When the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal).

30    Under s 19ALB, for some offences, parole may only be granted if “exceptional circumstances” are established. That requirement does not apply to the applicants.

Consideration

Ground 1: Failure to consider submissions advanced by the applicants

31    The applicants’ first ground alleges that the Assistant Minister was bound, but failed, to consider substantial and clearly articulated submissions made by the applicants. The submissions alleged not to have been considered are: first, that the time of the Assistant Minister’s decision was optimal for the applicants’ release on parole having regard to their rehabilitative progress; and, second, that their youngest child was struggling in his parents’ absence and needed his parents’ support.

32    In response, the Assistant Minister submits that these submissions were neither substantial, nor clearly articulated. The Assistant Minister also submits that the Department’s Analysis, which formed part of the material placed before the Assistant Minister, discussed the applicants’ rehabilitative progress and prospects of reintegration into the community. The Assistant Minister further submits it is apparent from the Analysis as a whole that the applicants’ submissions about their children were presented to the Assistant Minister. The Analysis document for Mrs Pulini expressly referred to letters of support which note Mrs Pulini’s, “concerns for her children’s mental health if she is not released”.

33    Generally, where there is a duty to act judicially, “coupled with that duty is the duty to consider the case put”: Re The Australian Bank Employees Union; Ex Parte Citicorp Australia Limited (1989) 167 CLR 513 at 519; Leggett v Queensland Parole Board [2012] QSC 121 at [25]. The duty to consider the case put forward by a party at least requires the decision-maker to consider any “substantial and clearly articulated argument” that is advanced by the party: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]. Similarly, where a decision-maker “makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63].

34    In the context of parole, Dranichnikov was applied by the Supreme Court of Queensland in Leggett v Queensland Parole Board [2012] QSC 121 at [26]-[28]. There, a prisoner applied under the Queensland legislation for “exceptional circumstances” parole and put forward a case that included a contention that since his imprisonment, his health problems had become significantly worse. Justice Dalton concluded that the Parole Board had, “fail[ed] to recognise and deal with the case” put by the prisoner and thereby denied the prisoner natural justice (at [29]).

35    Similarly, in McGrane v Queensland State Parole Board [2010] QSC 209, a prisoner who was classified as “high security” claimed that being able to achieve a lower classification, “was no more than a theoretical possibility”, so that his current classification should not weigh against his release on parole. Justice McMurdo held at [23]:

It was necessary for the respondent to consider that claim by the applicant…Because that premise was challenged by the applicant, it was not open to the Minister to assume its correctness and to disregard, without considering the matter, the applicant’s contention.

36    The obligation to “consider” a submission requires the decision-maker to engage in an active intellectual process with reference to the submission: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [35], [43]-[48]; Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36].

37    In Duxerty v Minister for Justice and Customs [2002] FCA 1518; (2002) 136 A Crim R 373 at [22] and Khazaal v Attorney-General [2020] FCA 448 at [2], it was held that the rules of natural justice apply to a parole decision made under s 19AL(2).

38    In this case, the applicants were invited to make written submissions. Natural justice required that the Assistant Minister consider any substantial and clearly articulated arguments advanced by the applicants.

39    The applicants each contended in their submissions that this was the optimal time for their release on parole, having regard to their rehabilitative progress. They argued that there was, “cogent evidence” of their “remorse and commitment to change”, and that the purposes of, “rehabilitation, reintegration and protection of community safety, are best served by…release on 15 April 2021”, that being the “optimal time” for parole based on completion of treatment tailored to their needs. They further argued that their progress towards rehabilitation could “stagnate” if they remained in custody. It can be accepted that the applicants advanced a substantial, clearly articulated argument that this was the optimal time for their release on parole.

40    The applicants also contended that their youngest child (“M”), who was 13 of age, was struggling in his parents’ absence and needed his parents’ support. Mr Pulini stated that, “[o]ur youngest son [M] is struggling the most in our absence”. Mrs Pulini referred to, “our youngest child [M], who has been struggling a lot without us”. Several of the letters of support relied on by the applicants raised concerns that the applicants’ absence had led to significant emotional impacts on their children, particularly M, and expressed opinions that the children would benefit greatly if parole were granted. The following passage provides an example:

I strongly believe that mentally the impact on the children, if [Mrs Pulini] is not given parole will be enormous. The youngest is only 13 years old and just starting his high school journey. [M], the 13 year old is a beautiful kind and thoughtful child, however, he is struggling with his mother being away. He needs his mother around. I am truly worried about the mental impact on all four children if [Mrs Pulini] is not given parole. I believe it would have a negative impact on the children’s future, especially the youngest children (sic), who still need (sic) the guidance and love of his mother.

41    It must be accepted that the applicants each advanced a clearly articulated argument that a reason why they should be released on parole was that their youngest child was struggling in his parents’ absence and needed his parents’ support. The argument was substantial in the sense that its acceptance could have resulted in a different outcome for the refusal decisions: see NABE at [63].

42    The next issue is whether the Assistant Minister considered the applicants’ submissions that this was the optimal time for their release on parole and that their youngest child was struggling in his parents’ absence and needed his parents’ support. It is convenient to refer to these submissions collectively as the “contentious submissions”.

43    The applicants submit that as the contentious submissions were not mentioned in the Assistant Minister’s reasons, nor did the Assistant Minister record any findings of fact relevant to those submissions, it should be inferred that the Assistant Minister failed to consider the contentious submissions. The applicants also submit that the Department’s Analysis documents, which were before the Assistant Minister, discussed the applicants’ rehabilitation but did not mention their argument that the purposes of parole were best served by an “extended period of time” on parole or that their rehabilitation might otherwise “stagnate”. The Assistant Minister submits that upon a reading of each Analysis document as a whole, the contentious submissions were referred to, and it should be inferred that they were taken into account.

44    Section 19AL(2)(a)(ii) requires that a person who is refused parole must be given a written notice which, “includes a statement of reasons for the refusal”. Whether or not the contentious submissions were considered by the Assistant Minister falls to be considered primarily by reference to the Assistant Minister’s reasons for refusing to release the applicants on parole. The material placed before the Assistant Minister may also inform that issue.

45    The Assistant Minister’s reasons must, “be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error”: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. However, “eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney (2012) 207 FCR 277 at [57].

46    The applicants bear the onus of proving that the Assistant Minister failed to considered the submission, and must do so on the balance of probabilities: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [39], [48], [60], [64], [68], [74], [85]; Carrascalao at [48].

47    It is convenient, at this stage, to again set out the reasons given by the Assistant Minister for the refusal decisions:

1.    I have taken into account the nature and circumstances of the offences to which your sentence relates, which involved [for Mrs Pulini: “human trafficking”] [for Mr Pulini: “offences under the Migration Act 1958”] with the intention of causing someone to enter into [for Mr Pulini: “and remain in”] forced labour. In so doing, I give weight to the comments of the sentencing judge that you ‘took away a woman’s freedom and seriously compromised her human rights and dignity for eight years’, your conduct was ‘sustained, protracted and callous’ and the damage that your actions caused the victim cannot be undone.

2.     I note the purposes of parole set out in section 19AKA of the Crimes Act 1914, being the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. I consider that the risk to community safety posed by your release on parole at this time outweighs the benefits which parole would provide to assist in your rehabilitation and reintegration into the community.

48    In the first paragraph, the Assistant Minister took into account factors weighing against release on parole, namely the nature, circumstances and seriousness of the applicants’ offending.

49    In the first sentence of the second paragraph, the Assistant Minister noted the purposes of parole set out in s 19AKA of the Crimes Act, being protection of the community, rehabilitation of the offender and reintegration of the offender into the community.

50    In the final sentence of the second paragraph, the Assistant Minister stated that the risk to community safety posed by the applicants’ release on parole “at this time” outweighed the benefits which parole would provide to assist in their rehabilitation and reintegration into the community. In that sentence, the Assistant Minister accepted that the applicants’ release on parole at that time could or would assist in their rehabilitation and reintegration into the community, but that their release at that time would be premature because of the risk they posed to community safety. The Assistant Minister plainly considered that this was not the optimal time for the applicants’ release on parole. The applicants have not demonstrated that the Assistant Minister failed to consider their submission that this was the optimal time for their release on parole.

51    However, the Assistant Minister’s reasons made no reference to the applicants’ submission that their youngest child was struggling in his parents’ absence and needed his parents’ support. It is convenient to refer to this submission as the “welfare of the youngest child submission”.

52    It may be seen that the only matters referred to by the Assistant Minister in her reasons were the nature, circumstances and seriousness of the applicants’ offending, the objects of s 19AKA community safety, and the applicants’ rehabilitation and reintegration into the community. None of these matters concerned or dealt with the welfare of the youngest child submission.

53    It may be noted that counsel for the Assistant Minister disavowed any construction of ss 19AL and 19AKA of the Crimes Act to the effect that the welfare of a prisoner’s child is an irrelevant consideration that cannot be taken into account in deciding whether to order release on parole.

54    What inference should be drawn from the Assistant Minister’s silence upon the welfare of the youngest child submission? There are only two possibilities: the Assistant Minister either considered the submission, or overlooked it. The issue is which of these inferences should be drawn.

55    The content of the requirement under s 19AL(2)(a)(ii) of the Crimes Act for the provision of a statement of reasons for the refusal of parole must be considered. Section 19AL(2)(a)(ii) must be read with s 25D of the Acts Interpretation Act 1901 (Cth), which provides:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

56    In Lodhi, Bromwich J observed at [86] that s 25D of the Acts Interpretation Act is in relevantly similar terms to s 430(1) of the Migration Act 1958 (Cth). Section 430(1) was considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Applying Yusuf, Bromwich J held at [87] that s 25D does not require the Attorney-General to make any particular findings of fact, but, rather, to set out any findings of fact that were made which the Attorney-General considered to be material to the decision to refuse to make a parole order. I respectfully agree with that analysis.

57    Accordingly, the Assistant Minister in this case was not required to make particular findings of fact, but only to set out the findings of fact that she did make. However, the Assistant Minister’s statement of the findings she in fact made may have other implications.

58    In Yusuf, the plurality observed at [69]:

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.

59    Where a matter is not mentioned in a statement of reasons, it may be inferred that it has not been adverted to, considered, or taken into account: NBMZ v Minister for Immigration and Border Protection (2018) 220 FCR 1 at [16].

60    I am prepared to accept that the Assistant Minister considered the eight paragraphs immediately following the heading Key Issues in the two briefing notes she was provided with by the Department. That material appeared immediately below the Assistant Minister’s signature, and it is difficult to suppose that she did not read it. That material is consistent with the contents of the Assistant Minister’s statements of reasons. The only references in the Key Issues to the children were to Mr Pulini and Mrs Pulini’s, “goals around reuniting with [their] family”. There was no reference to the welfare of the youngest child submission.

61    In many cases, a statement of reasons will assert that all the material before the decision-maker has been considered in making the decision. Such an assertion provides some evidence of what was considered by the decision-maker, but is not of itself decisive: Minister for Home Affairs v Ogawa (2019) 269 FCR 536 at [102]; Williams v Minister for the Environment and Heritage (2003) 74 ALD 124 at [30]. Where a decision-maker asserts that all the material was considered, it may be open to infer that a particular matter which was not mentioned in the reasons, but which was referred to in the material, was in fact considered.

62    In this case, the applicants’ submissions containing the welfare of the youngest child submission were within the bundle of material placed before the Assistant Minister. So too was the Department’s Analysis documents. However, the Assistant Minister did not make any assertion in her statement of reasons that she had taken all the material before her into account. The absence of any such assertion supports an inference that the only matters considered by the Assistant Minister were those she mentioned in her reasons.

63    The Assistant Minister adopted the draft notice refusing parole that had been prepared by the Department as her reasons, without making any alterations. If alterations been made, that fact might have supported an inference that the Assistant Minister had read the whole of the material placed before her, and therefore considered matters beyond those mentioned in her reasons. However, the Assistant Minister signed the draft notice without alteration.

64    In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67, the Full Court said at [34]:

In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.

65    In my opinion, this is such a case. The welfare of the youngest child submission was an important and substantial part of the applicants’ case for their release on parole. If that submission had been taken into account it is probable that the Assistant Minister would have mentioned it in her reasons, if only to reject it or indicate that it did not outweigh the factors that supported the refusal of parole. The appropriate inference to draw is that the Assistant Minister did not consider the welfare of the youngest child submission. That was a denial of natural justice.

66    I also reject the Assistant Minister’s submission that the Department’s Analysis documents inferentially dealt with the welfare of the youngest child submission. Those documents simply provide no indication that the Department considered that submission.

67    The Assistant Minister submits that it cannot be inferred that the Assistant Minister might have made a different decision in the absence of the alleged error. The Assistant Minister submits, in other words, that the error was immaterial. The submission is presumably that the Court’s discretion under s 16(1) of the ADJR Act should be exercised against the grant of any relief.

68    The approach taken by the High Court to questions of materiality where it is alleged that an error is a jurisdictional error may be applied. In MZAPC, the majority held at [39]:

The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

69    In making a decision as to whether a prisoner should be released on parole, the potential benefit to a young child of being reunited with his or her parent is a matter that is, on any objective view, likely to be of significance. I am satisfied that if the Assistant Minister had considered the welfare of the youngest child submission, there is a realistic possibility that she could have made decisions that the applicants be released on parole.

Ground 2: Risk and illogicality

70    The applicants’ second ground of review alleges that the Assistant Minister’s reliance on “risk to community safety”, in the absence of any findings or reasoning about that risk, was illogical or legally unreasonable.

71    The applicants rely upon MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72, where the Full Court observed:

[22]    A decision might be shown to be affected by jurisdictional error if:

(1)     no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Assistant Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);

(2)     there is no logical connection between the evidence and the inferences drawn: Fattah v Assistant Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);

(3)     there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

72    The applicants also rely upon Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81. In that case, the Minister found that a visa holder had “demonstrated rehabilitation” and his “likelihood of re-offending [was] low”, but that he could not “rule out the possibility” of reoffending. The Minister expressed a particular concern that, “if Mr Muggeridge resumed contact with any outlaw motorcycle club, his likelihood of re-offending would increase” (at [15] and [52]). The Court concluded there was jurisdictional error, saying at [55]:

Although the Minister was not required to evaluate the risk of Mr Muggeridge re-offending in any particular way, the Minister did in fact embark upon an evaluation of Mr Muggeridge’s prospects of re-offending in a way that was acutely fact dependent. The reasoning adopted by the Minister in this case logically required an assessment to be made of the likelihood that Mr Muggeridge would resume contact with an outlaw motorcycle club and so offend “in a similar fashion” and thus cause “great harm”. In light of the Minister’s findings concerning Mr Muggeridge’s rehabilitation, his debilitating spinal injury and the lack of evidence of any affiliation with any outlaw motorcycle club since his return to Australia, the reasons do not provide any logical basis for concluding that there was a possibility that Mr Muggeridge would resume contact with such a club.

73    In this case, the Assistant Minister stated that, “the risk to community safety posed by your release on parole at this time outweighs the benefits which parole would provide to assist in your rehabilitation and reintegration into the community”. The applicants submit that the Assistant Minister’s reasons did not identify or explain the “risk” to which she referred (for example, whether this was a risk of similar offending or a risk of different offending); the “benefits” to which she referred; nor the manner in which the “risk” was said to outweigh the “benefits”. They submit that there was no logical connection between the evidence and the inference or conclusion of “risk” that was reached. The QCS Parole Reports did not identify a risk to the community, and the Department’s Analysis documents advised that the applicants did “not pose an unacceptable risk to community safety”. The applicants submit that in the absence of any evidence identifying some particular risk, there was no logical connection between the material before the Assistant Minister and the conclusions she reached.

74    The applicants submit, in the alternative, that there was an irrational or illogical step in the Assistant Minister’s reasoning. The Assistant Minister concluded that the “risk” outweighed the “benefits” of parole. That conclusion was expressed after reference to the nature and circumstances of the offending conduct, but without any explanation of how the Assistant Minister moved from an understanding of the offences to a conclusion of the risk outweighing the benefits of parole. The applicants submit that a leap or gap in the reasoning that appears in the statement of reasons, demonstrating irrationality or illogicality.

75    Whether there is unreasonableness in the legal sense depends primarily on the statutory framework: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [63], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 349 [24] and 363-364 [67]. Eden was applied in Lodhi, where Bromwich J held at [43]:

The above principles mean that the Attorney-General’s role was to make the parole decision, and the role of this Court is to ensure that that was carried out within the proper exercise of the power bestowed, but not to second-guess the ultimate decision. A judge’s personal view of the merits of the decision is irrelevant. Concepts such as fairness and reasonableness have a more confined meaning and operation than used in more general settings, such as making findings on the merits of a particular case, or asserting what those findings should be. It is not part of this Court’s function even to consider whether parole should, or should not, have been granted to Mr Lodhi.

76    The Assistant Minister’s assessment was that, “the risk to community safety posed by your release on parole at this time outweighs the benefits which parole would provide to assist in your rehabilitation and reintegration into the community”. This involved an assessment that the applicants posed a risk to community safety. The Assistant Minister had earlier referred to the sentencing remarks which described the applicants’ conduct as sustained, protracted and callous and causing the victim to remain in forced labour for eight years.

77    As the High Court observed in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, “determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future”. In view of the applicants’ past criminal conduct and the views expressed by the sentencing judge, the Assistant Minister was not obliged to accept the applicants’ protestations that they would not engage in criminal conduct in the future. It was open to the Assistant Minister to conclude that the applicants continued to pose a risk to community safety.

78    The applicants’ argument that the Assistant Minister’s decision was illogical or legally unreasonable must be rejected.

Ground 3: Inadequate reasons

79    The applicants submit that the Assistant Minister’s reasons are inadequate, relying on cases such as Dornan v Riordan (1990) 24 FCR 564 for the proposition that, “the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions”.

80    However, as Bromwich J made clear in Lodhi, the content of a requirement to provide reasons must depend upon the particular statutory context. His Honour held that s 19AL(2) of the Crimes Act and s 25D of the Acts Interpretation Act do not require the Attorney-General to make any particular findings of fact, but rather to set out any findings of fact that were made which the Attorney-General considered to be material to the decision to refuse to make a parole order. His Honour observed at [90] that reasons may be brief without being shown to be fatally flawed, with the focus required to be on the substance of what has been decided.

81    The applicants’ submissions that the Assistant Minister failed to make adequate factual findings and failed to adequately set out her reasoning process cannot be accepted.

Conclusion

82    The applicants have established that they were denied natural justice. The Assistant Minister’s refusal decisions of 14 April 2021 in respect of each of the applicants will be set aside. The matters will be remitted for reconsideration.

83    The Assistant Minister will be ordered to pay the applicants’ costs of the application.

Associate:    

Dated:    10 December 2021