Federal Court of Australia

Masri v Attorney-General (Cth) [2022] FCA 17

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 15 December 2021 be dismissed.

2.    The applicant pay the respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    In March 2020, the applicant, Mr Abedelrahman Masri, was sentenced to imprisonment for a federal offence of attempting to possess a commercial quantity of a border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth). His sentence of six years and three months, with a three year and three month non-parole period, was backdated to commence when he went into custody on 9 February 2018 and expires on 8 May 2024. He was eligible for parole from 8 May 2021. On 7 May 2021, a delegate of the Commonwealth Attorney-General, the respondent, decided to refuse Mr Masri parole. He applies for judicial review of that decision under s 39B of the Judiciary Act 1903 (Cth) and under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

The legislative scheme for federal parole

2    Part IB, Division 5, Subdivision A of the Crimes Act 1914 (Cth) provides for the release of federal offenders on parole or by licence. In the absence of any State or Territory sentences being served, the provisions that are relevant to the present situation of parole refusal relevantly state:

(a)    The express purposes of parole are protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community: s 19AKA.

(b)    Before the end of a federal non-parole period the Attorney-General must either make or refuse to make an order directing that the offender be released from prison on parole: s 19AL(1).

(c)    If the Attorney-General refuses to make a parole order, within 14 days of that refusal written notice must be given informing the offender of the refusal, including reasons, and advising that reconsideration must take place within 12 months of that refusal: s 19AL(2).

(d)    In making a parole decision under s 19AL, the Attorney-General may have regard to a list of matters set out in s 19ALA(1), including in particular any report or information in relation to the granting of parole by the relevant State or Territory corrective services or parole agency: s 19ALA(1)(h).

3    Mr Masri does not take issue with the following characterisation of the statutory framework for making federal parole decisions contained in the Attorney-General’s written submissions:

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.    s 19ALA, while setting out a wide range of factors that the Attorney-General an take into account – significantly – does not limit the factors to which the Attorney-General can have regard;

d.    the legislation 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; and

e.    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).

4    Both Mr Masri and the Attorney-General relied upon certain observations made by Wigney J in Khazaal v Attorney-General [2020] FCA 448. His Honour relevantly said:

[66]    The main observation that may be made about the statutory scheme for the making of parole decisions in respect of federal offences is that, unlike the statutory schemes for the grant of parole in many of the States and Territories, there is no prescribed procedure that the Attorney must follow in considering and determining whether to make a parole order. There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole … of any particular information, and no express requirement that the person be given the opportunity to make submissions. There is no doubt, however, that the Attorney must afford procedural fairness to the person affected by the parole decision. As the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice.

[67]    The terms of subs 19ALA(1) of the Crimes Act would suggest that procedural fairness would require, at a minimum, that the Attorney advise the person affected by the decision of any information known to the Attorney in respect of any of the matters referred to in that subsection which are, or might be, relevant to the parole decision. Of course, as the list of matters in subs 19ALA(1) is non-exhaustive, the Attorney would also be required to advise the person of any other information known to the Attorney which fell outside the list but was nevertheless relevant to the decision. That would include, in particular, any adverse information which was credible, relevant and significant to the decision.

[68]    Procedural fairness would also require that the person affected by the parole decision be given an opportunity to address the information notified to him or her by the Attorney and to advance any submissions that the person may wish to make in support of the making of a parole order. The opportunity afforded to the person in that regard must undoubtedly be real and meaningful. It follows that the relevant information disclosed to the person must be expressed in terms which are sufficiently clear and comprehensive that the person is able to provide a real and meaningful response. The level of detail which will be required to ensure that the person has a real and meaningful opportunity to respond and make submissions will depend on the nature of the information in question and the particular circumstances of the case. As will be seen, there may be cases where the circumstances are such that the disclosure of information or issues in only broad and general terms will not suffice.

5    The foregoing is subject to the requirement to demonstrate materiality so as to constitute jurisdictional error for the purposes of s 39B of the Judiciary Act, or practical injustice so as to constitute a breach of the rules of natural justice for the purposes of s 5(1)(a) of the ADJR Act.

The decision-making process and result

6    At the time of making the decision to refuse Mr Masri parole, the delegate had before her a detailed submission from an officer of the Attorney-General’s Department dated 6 May 2021, recommending that parole be refused. That submission to the delegate had the following eight documents attached:

A:    The sentencing judge’s remarks of 12 March 2020;

B:    A pre-release report from Corrective Services New South Wales (CSNSW) dated 22 December 2020, annexing a 24 February 2020 pre-sentence report from a psychologist, Professor Stephen Woods;

C:    A letter from the Attorney-General’s Department dated 30 March 2021 inviting comment on reasons why parole might be refused (adverse comments letter);

D:    A report from Professor Woods dated 27 April 2021, addressing the 30 March 2021 letter (Woods report);

E:    An expert certificate from Professor Woods dated 27 April 2021;

F:    An undated resume of Professor Woods;

G:    A letter from New South Wales Health dated 23 April 2021 concerning Mr Masri’s father;

H:    An email chain between 22 April and 3 May 2021 between an officer at the Attorney-General’s Department and the author of the pre-release report from CSNSW, concerning aspects of the Woods report and the pre-release report.

7    The submission to the delegate concluded with a recommendation that the delegate refuse to grant parole to Mr Masri at that time, and that she sign an attached notice informing him of that decision. The delegate signed the submission indicating that she approved the recommendation to refuse parole and that she had signed the attached notice. There is nothing to suggest that the delegate, in signing the submission, did so without reading and considering its contents.

8    The reasons in the delegate’s notice for refusing parole were as follows:

[1]    You have demonstrated poor behaviour throughout your time in prison, including violence, threats of violence against Corrections staff, possession of contraband and disregard of correctional centre routine. Your most recent prison misconduct offence occurred in July 2020. I am concerned about your capacity to comply with parole conditions and adjust to a law-abiding lifestyle.

[2]    You have outstanding rehabilitative needs relating to your substance abuse issues. Given the connection between your drug use and index offending, I am concerned that if you are released into the community without having completed targeted programs to manage your addiction to prescription drugs, you may relapse into substance abuse and reoffend.

[3]    You lack insight into your index offending, and prison misbehaviour. I am not satisfied that you have developed realistic and considered strategies to address factors relating to your offending and to reduce your risk of reoffending upon your release into the community.

[4]    Your criminal history, including dealing with proceeds of crime, obtaining financial advantage by deception and smuggling indicates a pattern of behaviour focussed on financial gain. I am not satisfied on the evidence before me that you have appropriate strategies in place to avoid reoffending.

[5]    Your limited social support network gives rise to a concern that upon your return to the community, you may become socially isolated or drawn to pro-criminal peer groups once more. I am concerned that this would increase your risk of relapsing into substance abuse and reoffending.

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

9    Mr Masri and his lawyers apparently did not see the submission to the delegate, the pre-release report, or the email chain, until after the delegate’s decision made been made. They did not see it until after the proceeding had been commenced and the Attorney-General had served the bundle of documents that was before the delegate. However, the substance of the pre-release report was summarised in the adverse comments letter. Neither the email chain, nor the substance of what was in them, was disclosed to Mr Masri before the delegate made her decision.

10    Mr Masri’s challenge focuses on three aspects of the material that was before the delegate, each of which concerned matters that were raised in the adverse comments letter, addressed at least in part in the Woods report, or was the subject of part of the email chain. In order to understand what the grounds of review are referring to, it is necessary to address those three aspects in the course of considering each ground of review.

Ground 1

11    The matters listed for consideration in the adverse comments letter (and then addressed in some detail) were Mr Masri’s poor behaviour in custody, prior response to supervision, prior criminal history, substance abuse, insight into offending, associations, financial stability and relationship with money, and mental health.

12    The adverse comments letter summarised what was said to be Mr Masri’s poor behaviour in custody as follows (emphasis added):

You have been involved in several adverse incidents whilst in prison, including the following:

•    On 10 July 2020, you and another inmate were observed leaving a cell where a third inmate was found to have sustained head injuries requiring hospital treatment, you received 7 days of cellular confinement.

•    On 19 September 2019, a mobile phone was located in your possession during a strip search. You were placed in segregation for 2 weeks, which was extended to a total of 3 months.

•    On 10 June 2019, you were involved in a physical combat with another inmate and ignored directions to stop fighting, resulting in 4 days of cellular confinement.

•    On 14 April 2019, you threatened to chop a Correction’s Officer’s head off and kill him, resulting in 7 days of cellular confinement.

•    Possession of contraband on a number of occasions, mirroring your index offending.

Violence, threats against corrections staff and serious security breaches such as possession of a mobile phone are viewed seriously by the Attorney-General (or delegate).

CSNSW notes that whilst you have recently gained employment within the Food Services Industry, you have acted with a total disregard to correctional centre routine. You were told that unless your attitude and adherence to routine improve, your employment would be terminated.

A person’s conduct while in prison is considered to be a reliable indicator of their progress toward rehabilitation, their capacity to comply with conditions of parole upon release, their potential for successful reintegration into the community and the likelihood of their reoffending.

These incidents raise concerns about your rehabilitation, capacity to adjust to a law-abiding lifestyle and reintegrate into the community. Based on your poor prison behaviour, the Attorney-General (or delegate) may form the view that your release on parole at this time would pose a risk to community safety.

Your behaviour in prison may be considered indicative of a lack of rehabilitation and increased likelihood of reoffending. It would be helpful if you could provide information about how you intend to address this risk, including any strategies that you intend to implement to manage your behaviour.

13    The emphasised portions above concern the possession of a mobile phone and an allegation of disregard for correctional centre routine, which could result in Mr Masri’s employment being terminated unless his attitude and adherence to routine improved. The former will now be considered in relation to ground 1; and the latter will be considered later in these reasons in relation to ground 2.

14    The information in relation to the mobile phone incident emphasised in the extract from the adverse comments letter reproduced at [12] above was drawn from the pre-release report as follows (again noting that the pre-release report was not disclosed to Mr Masri before the delegate made her decision):

Behaviour in custody

Mr Masri has extensive breaches of discipline resulting in sanctions imposed whilst in custody. Mr Masri has been subjected to 11 offences in custody during his short period whilst incarcerated for assaults, intimidation; possess tobacco and general failure to comply with Correctional Centre routine.

…

On 19 September 2019 whilst housed at Metropolitan Special Purpose Centre (MSPC), a target cell search was conducted. Review of the Incident Reporting Module (IRM) stated during the course of a strip search a mobile phone fell from Mr Masri’s buttock, he was subsequently questioned admitting full ownership of the contraband. The matter was forwarded to NSW police for further charges; however, the charges were dismissed.

…

Segregation

On 20 September 2019 Mr Masri was placed into segregation for the good order and discipline within a Correctional Centre for possession of a mobile phone with the order expiring on the 3 October 2019. On the 3 October 2019 his placement in segregation was extended due to the threat of good order and discipline expiring on the 19 December 2019. At this time he was returned to the mainstream area of the Correctional Centre.

15    It should be noted that this part of the pre-release report refers to two types of charges: disciplinary charges and criminal charges.

16    The Woods report addressed each of the above incidents by responding to the adverse comments letter summary rather than the pre-release report which was the source of the information. In relation to the mobile phone incident the following was recorded:

19th September, 2019

It is stated that Mr. Masri was found to be in possession of a mobile phone and arising was placed in segregation.

Mr. Masri explained that he was subsequently found to be innocent of the charges.

17    The submission to the delegate addressed the issue of possession of the mobile phone as follows:

(a)    At [34], under the heading “Conduct in prison” as part of a list of dot points summarising the pre-release report:

On 19 September 2019, a mobile phone was located in Mr Masri’s possession. He was placed in segregation for 2 weeks, which was extended to a total of 3 months.

(b)    At [41], under the heading “Poor behaviour in custody” as part of a list of dot points summarising the Woods report response to the adverse comments letter:

Mr Masri was found innocent of the charge of being in possession of a mobile phone on 19 September 2019. [Note: CSNSW advised that the matter was dismissed on 23 June 2020. Mr Masri was placed in segregation for the good order and security of the centre].

(c)    At [78], in the “Discussion” part, under the heading “Protection of the community”:

Since his imprisonment, Mr Masri has been involved in 11 adverse incidents, including violence against other inmates, threats of violence against correctional staff, a serious security breach involving a mobile phone and possession of contraband. Mr Masri has received 3 periods of cellular confinement and 3 months’ segregation. This indicates that at present, Mr Masri lacks capacity to comply with parole conditions and adjust to a law-abiding lifestyle.

18    Ground 1 has a number of particulars. In relation to the mobile phone, Mr Masri submits that the submission to the delegate, when turning to the critical question of protection of community, failed to consider his submission that the charge against him about the mobile phone had been dismissed. The complaint is that instead the submission at [78] (reproduced immediately above) stated that the conviction was “a serious security breach involving a mobile phone”, and that this was the only conduct that was described as “serious”. Mr Masri submits that overlooking his submission about being found innocent was a clear breach of procedural fairness by reason of failing to respond to a substantial, clearly articulated argument, citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24].

19    In making that submission, Mr Masri acknowledges that the submission had at [41] recognised that he had contended that he was found innocent of the mobile phone charge, and that CSNSW had confirmed this was so. However, he asserts that it was not possible to reconcile the finding at [41] with what was said at [78], which he says is to the exact opposite effect. He therefore submits that the submission is best understood as containing contradictory findings, with the operative finding being at [78] and made in disregard of his submission and contrary to the confirmation of CSNSW.

20    Alternatively, Mr Masri submits that the existence of contradictory findings, and the fact that the finding at [78] was unsupportable on the evidence before the delegate has the consequence that the finding is legally unreasonable.

21    Unfortunately, Mr Masri’s arguments in relation to the mobile phone depend upon a misreading of the material that was before the delegate, reproduced above. The part of the submission at [34] is referring to the fact of the mobile phone being found and to the disciplinary response in general terms. The part of the submission at [41] is referring to the criminal charge and that being dismissed, and also Mr Masri’s description of being found innocent. The submission at [78] is referring to various disciplinary issues, including in relation to the mobile phone, not the criminal charge arising from the possession of the mobile phone which had already been addressed in the part of the submission at [41].

22    Mr Masri’s reference to having been “found to be innocent” of a criminal charge is a misdescription because criminal courts do not make findings of innocence but rather findings of guilty or not guilty. Leaving that aside, it is apparent that Mr Masri (via the Woods report) addressed the criminal charges that were brought in relation to possession of the mobile phone as contraband. However, he did not address at all his disciplinary segregation arising from possession of the mobile phone. I am unable to accept the submission on behalf of Mr Masri that there was any curial finding that he was not in possession of a mobile phone as that seems impossible when regard is had to the undisputed way in which it was found on his person. Moreover, at no point did Mr Masri deny being in possession of the mobile phone.

23    It is not necessary to determine what else Mr Masri was referring to when he said he was found innocent. That description was accepted by the author of the submission to the delegate, and nothing ultimately turns on it.

24    Once it is appreciated that there is no inconsistency between the parts of the submission to the delegate from [34], [41] and [78] reproduced above at [17], and correspondingly no failure to consider Mr Masri’s submission in relation to the possession of the mobile phone, the foundation for his entire argument falls away. This aspect of ground 1 must therefore fail.

25    The other aspect of ground 1 relied upon by Mr Masri is the lack of a reference to or acknowledgement of his submissions in the delegate’s reasons, an omission which he describes as a breach of natural justice. The Woods report was summarised in some detail in the submission to the delegate. No submission is made that the summary was in some way incomplete or inaccurate. Nor was it suggested that the submission had not been read and considered by the delegate, a matter which Mr Masri would bear the onus of proving. However, he submits that this is not enough to constitute the response to his submissions required by Dranichnikov at [24]. He submits that nothing less than an acknowledgment of the Woods report in the delegate’s reasons will suffice to meet the requirements of procedural fairness. That is said to be so because, as a reader of the delegate’s reasons (which is all that was initially provided to Mr Masri) he has no way of knowing whether the delegate had read or even been aware of his submissions via the Woods report.

26    The practical effect of this argument is that it does not matter how thoroughly a submission has in fact been considered and presented to the decision-maker – in this case by way of a detailed submission containing a recommendation which was expressly accepted by the delegate – nothing short of the decision-maker expressly referring to that submission will suffice. The argument only has to be articulated in this way for the need for it to be rejected to be readily apparent. As Gleeson CJ pointed out in a much-cited passage in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37], “[w]hether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.

27    There was no injustice at all, let alone practical injustice, in the Woods report being considered in detail in a submission to the delegate, rather than being referred to in the delegate’s reasons. Subject to questions of materiality, which do not arise for consideration unless some relevant denial has taken place, what matters is the fact that the submissions made on behalf of Mr Masri were considered, not how that taking place was recorded. It follows that this remaining aspect of ground 1 must also fail.

Ground 2

28    This ground of review turns on what took place after the Attorney-General’s Department had received the Woods report. That report contained a number of factual assertions emanating from Mr Masri. A number of those assertions were checked for accuracy by questions asked in an email sent by an officer at the Attorney-General’s Department on 28 April 2021, and the replies furnished by email from the author of the pre-release report on 3 May 2021. The information that was provided was not given to Mr Masri before the delegate’s decision was made, such that he was not given an opportunity to respond to it. Mr Masri contends that this resulted in adverse information being referred to in the submission to the delegate without him having an opportunity to address it, which could have made a difference to the decision that was made.

29    One of the questions asked and the response given concerns the mobile phone. However, that did not contain anything new, beyond advising of the date upon which the criminal charge was dismissed, being 23 June 2020. Nothing turns on that even without the rejection of ground 1.

30    Another question concerns Mr Masri’s employment whilst in prison. As reproduced above at [12], the adverse comments letter included the following:

CSNSW notes that whilst you have recently gained employment within the Food Services Industry, you have acted with a total disregard to correctional centre routine. You were told that unless your attitude and adherence to routine improve, your employment would be terminated.

31    The Woods report addressed this aspect of the adverse comments letter as follows (emphasis added):

Reference is also made to Mr. Masri having recently gained employment within the Food Services Industry and of having acted with a total disregard for correctional routine.

Mr. Masri reported to have gained employment in the kitchen while housed at the Goulburn Correctional Centre. He further reported to have been “promoted” to a responsible position and to have routinely organized up to 2,100 meals at any one time.

Mr. Masri reported to have maintained the position in the kitchen up until being transferred to a different facility. Mr. Masri cited his promotion in support of his stated readiness to engage in employment.

He also cited his work in the kitchen and subsequent transfer to a different facility where he was classified as being a minimal security inmate as being evidence of his readiness to comply with correctional institution regulations.

32    The part of the 28 April 2021 email and 3 May 2021 response relevant to this was as follows:

(a)    The question asked was:

6. Lastly, was Mr Masri promoted to a ‘responsible position’ while working in the Goulbourn [sic] CC kitchen?

(b)    The answer given was:

To my knowledge Mr Masri was not promoted to a responsible position. Please [see] below case note of an interaction with CPT whilst at Goulburn Correctional Centre on the 28/01/2021: Inmate seen by CPT today after requesting placement in the metro area. It was noted the inmate did not have any adverse case notes for behaviour in his accommodation unit, however there were a number of negative work reports. When questioned regarding this, MASRI stated he did not wish to work and was only doing so because he is forced to. Inmate then became argumentative whilst the CPT was explaining reasoning behind classification recommendation. Inmate stated staff were liars and muttered under his breath words to the effect “You can all get fucked”, when asked not to swear at the CPT, MASRI stated he was speaking to himself so [he] could say whatever he wanted. MASRI then walked out of the room whilst stating he refused to sign.

33    The submission to the delegate contained the following:

(a)    At [41], under the heading “Poor behaviour in custody” as part of summarising the Woods report response to the adverse comments letter the following was stated:

Mr Masri was promoted to a responsible position while employed at the Goulbourn Correctional Centre kitchen, routinely organising up to 2,100 meals. Mr Masri maintained this position until his transfer. Mr Masri considers his promotion to support his stated readiness to engage in employment. [Note: CSNSW advised that Mr Masri was not promoted and cited a case note from 28 January 2021 where Mr Masri is quoted as saying that he did not want to work and was only doing so because he was forced to. It also mentioned that Mr Masri had incurred a number of negative work reports].

(b)    At [72], in the “Discussion” part, under the heading “Reintegration of the offender into the community”:

Mr Masri has ‘unconditional’ offers of employment from 2 of his brothers. Employment is important for an offender’s ability to financially support themselves and reintegrate into the community. This is particularly significant as Mr Masri’s offending was financially motivated. In his response, Mr Masri commented that both employment and family support are protective factors. Prior to his incarceration, Mr Masri was sporadically employed by his brothers, unable to work full-time due to his addiction. Mr Masri has held limited employment while incarcerated. CSNSW confirmed that Mr Masri did not get promoted to a ‘responsible position’ at the prison kitchen, as stated in his response. Case notes from 28 January 2021 report Mr Masri as stating that he did not wish to work and was only doing so because he was forced to. Mr Masri was employed for one week in April 2021 following his transfer to Bathurst Correctional Centre.

34    Mr Masri takes issue with the reference to the advice from CSNSW in both passages that he was not promoted. At the hearing of his application, he tendered without objection a later document than the case note of 28 January 2021 referred to above, being a case note report dated 12 February 2021 in relation to him, the relevant part of which stated (verbatim):

Offender was recently refused classification progression to C2 due to poor compliance and poor work reports. Discussions with staff re offenders behaviour; they stated that they have notice an improvement in work and compliance since MASRI was put in charge of the Plating Room.

35    Mr Masri submits that had he been given a copy of, or the substance of, the answer given in the 3 May 2021 email he could have marshalled further evidence to show that he had in fact being promoted in the kitchen, and that his behaviour in prison had improved. This included, but was not limited to, the extract from the case note report dated 12 February 2021 reproduced above. Mr Masri asserts that this was material because it denied him the opportunity to argue that he had turned himself around and made real progress with his prison behaviour, which was also material to his prospects of rehabilitation and thereby the protection of the community.

36    Mr Masri submits that such an argument might have caused the delegate to have a different view on his prospects of rehabilitation. On his argument a more favourable, or at least a less unfavourable, assessment of his prospects of reintegration could have altered the balance and thereby the conclusion reached on the decisive issue of community protection. He contended that this was a realistic possibility that the Attorney-General could not exclude, also submitting that it was important for the Court to eschew any kind of merits assessment as to the likely final outcome.

37    The Attorney-General submits that Mr Masri’s employment in the kitchen at Goulburn Correctional Centre was only one of several considerations in [72] in particular, and that the issue of his work in the kitchen was not material to the delegate’s refusal decision. This is said to be especially so as there was nothing in the reasons given that referred in any way to employment, let alone any improvement in that employment leading to a promotion. The Attorney-General submits that procedural fairness did not require that Mr Masri be given an opportunity to comment on this material, characterised as being of little significance to the decision that was made, relying upon Kioa v West (1985) 159 CLR 550 at 628-629 per Brennan J (footnotes embedded):

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya [[1962] A.C. 322, at p. 337]; Ridge v. Baldwin [[1964] A.C., at pp. 113-114] per Lord Morris; De Verteuil v. Knaggs [[1918] A.C., at pp. 560, 561]. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed.

38    The Attorney-General submits that in light of both the submission to the delegate and the delegate’s reasons, it is post-incarceration employment that is important or most significant. While she acknowledges that this is perhaps informed by pre-incarceration employment history and then to a lesser extent, if at all, employment while in custody, she submits that employment in custody had little, if any, significance to the issue of reintegration into the community, and in any event had to have little weight. She submits that when regard is had to the whole of [72] in the submission to the delegate (reproduced above at [33(b)]) it can be seen that the issue of Mr Masri’s employment in custody, and more specifically his employment at Goulburn, was only one of the many considerations relating to his employment as that related to his reintegration into the community, so as not to be significant to the delegate’s decision. Moreover, the Attorney-General submits, the submission recommended that the factors relating to Mr Masri’s reintegration into the community, none of which are challenged by him except as to the aspect of his promotion in the kitchen, weighed against his release on parole at this time. She submits that it had not been demonstrated how his promotion in the kitchen could be said to change either the result of the factors relevant to his reintegration into the community or how this could be said to change the delegate’s decision.

39    I have read the submission to the delegate carefully in the context of the delegate’s reasons. While being mindful of the need to avoid any process of merits review, I am unable to see how reinstating Mr Masri’s submission that he had in fact been promoted to a responsible position in the kitchen could realistically have made any difference to the decision that was made. I consider that the material before the decision maker should have been disclosed to Mr Masri, and he should have been given an opportunity to comment upon it. However, the array of more compelling factors taken into account, especially in the delegate’s reasons, make it wholly unrealistic to think that if Mr Masri had been able to see the material related to this point and been given an opportunity to comment upon it, it could have possibly affected the outcome. It follows that ground 2 must fail.

Ground 3

40    Paragraph 74 of the submission to the delegate states (emphasis added):

If Mr Masri is released into the community, CSNSW has prepared an extensive supervision plan, which includes referrals to a psychologist, the Salvation Army Money SMART Program, EQUIPS addiction program, and a general practitioner to obtain a Mental Health Care Plan. However, CSNSW does not believe this supervision plan adequately manages Mr Masri’s risks, and recommended that Mr Masri not be released on parole at this time.

41    Mr Masri submits that it should be inferred that the delegate adopted the finding in bold in the submission as part of the adoption of the submission as a whole. The pre-release report does not expressly say that CSNSW does not believe that the supervision plan adequately manages Mr Masri’s risks. This ground therefore characterises the impugned phrase as either:

(a)    breaching the rules of procedural fairness, because it was not put to Mr Masri that CSNSW did not believe that its plan adequately managed the risk he posed, and therefore denied him an opportunity to comment; or

(b)    a finding that was not open on the material that was before the delegate, namely the contents of the pre-release report.

42    The Attorney-General submits that this ground concerns one part of one sentence in the submission to the delegate. She submits that the complaint made depends upon a selective reading of the pre-release report, as well as ignoring the balance of the sentence in which the impugned phrase appears. She further submits it can be readily inferred that, in light of the recommendation against parole, and the concerns expressed if Mr Masri was released on parole, CSNSW did not consider that the supervision plan was adequate.

43    While the pre-release report does not overtly say that CSNSW does not believe that the supervision plan adequately manages Mr Masri’s risks, it does contain the following:

Response to supervision

Mr Masri has been managed by Community Corrections in 2015-2016. During supervision Mr Masri received a warning letter for failure to attend community service work with his attendance requiring constant follow up. Mr Masri provided ongoing excuses along with several missed attendances and ongoing incidents causing interruptions to his order. Mr Masri required constant follow up with the compliance of his order.

44    The pre-release report also referred to Mr Masri having been assessed as being at a medium risk of reoffending, described how supervision would take place, and indicated that the risk assessment and supervision level may be revised if concerns are identified. It went on to state that should Mr Masri be released on parole the supervision plan would be implemented, listing the various supervisory steps proposed to be taken, and recommended additional conditions be imposed. Ultimately it recommended against parole by reason of his demonstrated problematic behaviour during incarceration, his limited insight into his offending, remorse being expressed to appease and influence the report, blame shifting, and bending of rules for self-gain.

45    The adverse comments letter refers to the pre-release report and makes it clear that the report did not recommend Mr Masri’s release on parole at that time. The balance of the letter then advised Mr Masri of the main issues arising from the sentencing remarks and the pre-release report that could militate against release on parole. In particular, the adverse comments letter referred to Mr Masri’s:

(a)    prior response to supervision in the community being unsatisfactory, warned that the Attorney-General or a delegate may form the view that he would be unable to comply with parole conditions and may present a risk to community safety, and asked him to outline the strategies he intended to adopt to ensure compliance with parole conditions; and

(b)    lack of insight into his offending and the risk this posed to reoffending.

46    The overall impression left by the adverse comments letter is that the pre-release report was plainly concerned about problems with effective supervision upon release on parole. I am satisfied that it is a fair reading of the pre-release report that CSNSW believed that the supervision plan would not be adequate, and that this was advanced in the event that parole was granted despite a recommendation to the contrary. I therefore do not accept that the impugned phrase in [74] of the submission to the delegate was a finding that was not open on the contents of the pre-release report.

47    As to the question of procedural fairness, the adverse comments letter put Mr Masri on notice that his prior response to supervision was a problem and asked him to outline the strategies he intended to adopt to ensure compliance with parole conditions. The Woods report referred to Mr Masri’s prior response to supervision, citing medical issues and his insight into offending, describing him as having a good level of insight into the nexus between drug use and offending, and characterising some of Mr Masri’s actions as tangible evidence of insight and attempts to rehabilitate. No strategy was outlined to ensure compliance with parole conditions as requested. In those circumstances, given that such a direct request was not responded to, it is difficult to see what more could have been said had Mr Masri been directly told that CSNSW did not believe supervision would be adequate. Supervision upon release on parole was plainly an identified problem. He was given ample opportunity to address that.

48    I am therefore not satisfied that there was either a finding made without evidence, nor any injustice, let alone practical injustice, so as to amount to any denial of procedural fairness. It follows that ground 3 must fail.

Conclusion

49    As all three grounds of review have failed, the amended originating application must be dismissed with costs.

Associate:

Dated:    21 January 2022