Federal Court of Australia

Ahmad v Attorney-General (Cth) [2022] FCA 1270

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to rely on the amended originating application filed 26 September 2022.

2.    The application is dismissed.

3.    The applicant is to pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 6 April 2018 the applicant, Youssef Ahmad, was sentenced by the District Court of New South Wales, for an offence of attempting to import a marketable quantity of a border-controlled drug contrary to ss 11.1(1) and 307.2(1) of the Criminal Code Act 1995 (Cth), to a term of imprisonment of five years commencing on 9 June 2018 and concluding on 8 June 2023, with a non-parole period of three years concluding on 8 June 2021. On 7 June 2021, a delegate of the first respondent, the Attorney-General of the Commonwealth of Australia (Attorney-General) made a parole order pursuant to s 19AL(1) of the Crimes Act 1914 (Cth) (Crimes Act) directing that the applicant be released from prison on parole the following day, subject to certain conditions.

2    The applicant seeks judicial review of a decision made by a delegate of the Attorney-General (the Delegate) on 25 July 2022, revoking his parole pursuant to s 19AU(1) of the Crimes Act (Revocation Decision). The applicant also seeks an order in the nature of a writ of habeas corpus.

3    The second and third respondents are magistrates of the Local Court of New South Wales. They respectively issued a warrant for the applicant’s arrest under s 19AV(2) of the Crimes Act, and made an order that the applicant be detained in custody under s 19AX(1)(b) of the Crimes Act. Each has filed appearances confirming that they submit to any order the Court may make in this proceeding.

4    By amended originating application dated 23 September 2022, the applicant alleges 9 grounds which are directed to claiming: there were no reasonable grounds for suspecting a breach of the condition of his parole order: grounds 1 and 2; there was a failure to obtain further information: grounds 3, 4 and 5; there was a failure to engage in an intellectual process and/or the Delegate’s decision was unreasonable or illogical: grounds 6 and 7; there was a failure to consider the non-exercise of the discretion: ground 8; and the Revocation Decision was taken to support suppression strategies of NSW Police: ground 9. As explained, the applicant also sought an order in the nature of a writ of habeas corpus, alleging the respondents must demonstrate lawful authority for the applicant’s continued detention.

5    For the reasons below, the application is dismissed.

Material before the Court

6    The Court has before it the bundle of material that was before the Delegate. That bundle included a covering submission regarding the revocation of parole with its attachments (with some redactions with which no issue was taken): see [50]-[60] below. It also comprised the instrument of revocation and its attachments, namely: a covering submission to the delegate of the Attorney-General regarding consideration of parole; the applicant’s parole order; a NSW Police Force covering summary report; a news article from the Guardian; a news article from ABC News; a NSW Corrective Services pre-release report; and a wholly redacted attachment (collectively, Exhibit 1).

7    In addition, the applicant read the affidavit of his solicitor, Hisham Karnib, sworn 9 September 2022 and tendered the following additional documents:

(1)    the warrant issued by Magistrate Price dated 9 September 2022;

(2)    a letter from Hisham Karnib on behalf of the applicant to the Attorney-General of the Commonwealth, copying the Commonwealth Parole Office (CPO), dated 30 September 2022;

(3)    a letter from the Acting Director of the CPO to the applicant, copying Corrective Services NSW, dated 4 October 2022;

(4)    a letter from Hisham Karnib on behalf of the applicant to the Attorney-General of the Commonwealth, copying the CPO, dated 5 October 2022; and

(5)    a letter from the Acting Director of the CPO to the applicant, copying Corrective Services NSW, dated 28 September 2022.

Factual overview

8    As referred to above, on 6 April 2018 the applicant was sentenced to a period of imprisonment with the non-parole period to expire on 8 June 2021. On 28 May 2021, a delegate of the Attorney-General granted the applicant release on parole, which release occurred on 8 June 2021. Condition 1 of the parole order was “[w]hile you are on parole, you must be of good behaviour and not violate any law”.

9    On 20 July 2022, the CPO, which is within the Commonwealth Attorney-General’s Department, received an urgent request for the revocation of the applicant’s parole order from the NSW Police Force (NSWPF). The request was made in a document titled ‘Covering Summary Report’ (NSWPF Report). It stated, inter alia, that:

Between 2021 and 2022, several public place shootings and homicides occurred in the South-west Sydney Region. Investigations have identified the involvement of Middle Eastern Organised Crime Networks (OCN) and Outlaw Motorcycle Gangs (OMCG) involved in retaliatory acts of shooting offences due to escalating conflicts relating to each group’s involvement in the control of drugs networks and personal disputes. NSWP investigations identified the conflict extended into the AHMAD Network and Comanchero OMCG operating in the Southwest Sydney region.

On 27 April 2022, Mahmoud AHMAD was targeted in a public place shooting and died from multiple gunshot injuries. At the time of this murder, it was widely known that there was conflict between AHMAD and the Comanchero OMCG. Mahmoud is the brother of Yousef AHMAD.

…

Current NSW Police investigations and intelligence holdings identified Yousef AHMAD is at extreme risk of being murdered. It has further been identified that Yousef AHMAD is planning retaliation attacks to murder members of the Comanchero OMCG.

Parolee Yousef AHMAD is currently on a Commonwealth Parole Order which concludes in June 2023, there is still a remaining 10 months of supervision on his parole. In NSW the ongoing violence between organised crime groups has escalated with a total of four murders and a number of shootings incidents being attributed to the current conflict. This type of violence places both the NSW community and members of the NSWPF at considerable risk. The AHMAD Network have been involved in organised crime activities for a number of years, with some of the contributing factors to the current violence relating to the murder of Walid AHMAD (brother of Yousef) in 2016. Ongoing suppressions strategies have been implemented by the NSWPF. In support of revocation of Yousef AHMAD’s parole his incarceration may reduce the risk of further retaliation from both the AHMAD and Comanchero OMCG.

10    As referred to above, on 25 July 2022, the Delegate made the Revocation Decision, by which the applicant’s parole was revoked pursuant to s 19AU(1) of the Crimes Act, and without notice to him pursuant to s 19AU(3)(ba) of the Crimes Act. The instrument of revocation states that the Delegate had determined as follows:

I have reasonable grounds to suspect that you have not complied with condition 1, which requires you to be of good behaviour and not to violate any law.

11    On 2 August 2022, the second respondent, Magistrate Moody, upon the application of the Commonwealth Director of Public Prosecutions, issued an arrest warrant for the applicant under s 19AV(2) of the Crimes Act.

12    On 5 August 2022, the applicant was arrested by officers of the NSWPF.

13    On 9 August 2022, the applicant appeared before the third respondent, Magistrate Price, who made an order in accordance with s 19AX(1)(b) of the Crimes Act that the applicant be detained in custody until the Attorney-General (or his delegate) rescinds the revocation of his parole, or until resentencing proceedings under s 19AW of the Crimes Act are completed.

14    On 23 August 2022, the Delegate issued a notice under s 19AX(2) of the Crimes Act, which was in the statutory form: Crimes Regulations 2019 (Cth) sch 1 form 8. The notice stated:

I, [name omitted], a delegate of the Attorney-General of the Commonwealth of Australia, pursuant to the delegation under subsection 17(2) of the Law Officers Act 1964, under subsection 19AX(2) of the Crimes Act 1914:

(a)    notify you that you have not complied with the following condition of your parole order:

(i)    condition 1, which requires you to be of good behaviour and not to violate any law; and

(b)    request that you give me, within 14 days after the date of this notice, reasons, in writing, why the parole order should not have been revoked.

I do not propose to rescind the revocation of the parole order unless you give me reasons and I accept them.

15    On 24 August 2022, the CPO wrote to the applicant stating:

On 25 July 2022, a delegate of the Attorney-General revoked your parole order on the basis that she was satisfied that there were reasonable grounds to suspect that you had failed to comply with condition 1 of your parole order, which required you to be of good behaviour and not violate. The delegate had regard to information that you are planning retaliatory attacks, information about ongoing violence between organised crime groups, information from your parole report which supports the view that your family is involved in organised crime, and that your links to organised crime are not fanciful or remote. The delegate decided that there was no basis for her to revoke your parole on the information provided about threats to your life. Your being in danger is not a breach of parole conditions by you and was not taken into account.

In light of the seriousness of the seriousness of the investigations and intelligence that you are planning retaliatory attacks, the delegate of the Attorney-General decided to revoke your parole order without notice pursuant to paragraph 19AU(3)(ba) of the Crimes Act 1914.

16    The CPO’s letter attached the notice under s 19AX(2) of the Crimes Act and outlined the process to take place, stating:

Pursuant to subsection 19AX(2) of the Crimes Act, the Attorney-General (or a delegate) is now required to notify you, in writing, of the conditions of your parole order alleged to have been breached and request that you give the Attorney-General (or a delegate), within 14 days of the date of this letter, a written submission stating why that parole order should not have been revoked.

I therefore put you on notice that you are alleged to have breached condition 1 of your parole order, which requires you to be of good behaviour and not to violate any law.

You now have 14 days to provide the Attorney-General (or a delegate) with a written submission stating why your parole order should not have been revoked. You should provide this written submission to cpo@ag.gov.au by close of business on 7 September 2022.

17    On 6 September 2022, the applicant’s solicitor wrote to the CPO, stating:

Your letter [ie, the 24 August letter] fails to articulate any proper basis upon which the delegate purports to have been satisfied that there were reasonable grounds to suspect that Mr Ahmad had failed to comply with condition 1 of his parole order. It also fails to identify which aspect of condition 1 is said to have been breached. Instead, it makes a series of vague, generalised assertions concerning “information” and “intelligence” to which the delegate had regard without disclosing that information, or why such information amounted to reasonable grounds to suspect a breach of condition 1. That approach is in breach of the requirement to set out findings on material questions of fact and evidence under s 25D of the Acts Interpretation Act 1901 (Cth) and renders it impossible for Mr Ahmad to respond in any meaningful way, in breach of the requirements of procedural fairness.

18    On 28 September 2022, the CPO wrote again to the applicant stating:

The purpose of this letter is to make you aware of further information that the Attorney-General (or delegate) may have regard to in deciding whether to confirm or rescind the revocation of your parole. This information arises from a further report from the New South Wales Police, dated 19 September 2022.

The report confirms information contained in their original report, including that:

Current NSW Police investigations and intelligence holdings identified Yousef AHMAD is at extreme risk of being murdered. It has further been identified that Yousef AHMAD is planning retaliation attacks to murder members of the Comanchero OMCG.

The report further states that:

The information previously provided outlining the planning of retaliation attacks on members of the Comanchero OMCG by Yousef AHMAD is considered highly credible and corroborated however, due to confidentiality and for the protection of NSW Police holdings, the nature of the planning of these attacks cannot be disclosed.

The report concludes:

In support of revocation of Yousef AHMAD’s parole, his incarceration may limit his abilities to plan retaliation and reduce the risk of further retaliation.

19    The CPO’s letter invited the applicant “to respond to this information and provide further written submissions stating why [his] parole order should not be revoked”. He had until 10 October 2022 to do so.

20    On 4 October 2022, the CPO again wrote to the applicant, stating:

The purpose of this letter is to invite you to provide further written submissions as to why your parole order should not have been revoked.

In particular, you may wish to directly address information from New South Wales Police that states you are ‘planning retaliation attacks to murder members of the Comanchero OMCG’ and that your continued incarceration ‘may limit [your] abilities to plan retaliation’.

21    On 5 October 2022, the applicant replied as follows:

For the reasons previously outlined, it is impossible for Mr Ahmad to provide any meaningful response to your letter. Accordingly, he does not intend to make any further submissions.

We therefore invite you once more to take a decision whether or not to rescind the revocation of Mr Ahmad’s parole as matter of urgency, in advance of tomorrow’s hearing.

22    The evidence before this Court therefore includes events after the Revocation Decision which include that the applicant was put on notice of further information that was not before the Delegate at the time of the Revocation Decision. Accordingly I note that the information as to events after the Revocation Decision was only put before the Court as part of the broader factual context, and to support a submission by the respondent as to the exercise of the discretion to refuse relief.

Statutory framework

23    The statutory context is important for informing the administrative decision making principles and processes applicable to the decision under review: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30]; Khazaal v Attorney-General (Cth) [2020] FCA 448 (Khazaal) at [53]; Stephens v Attorney General (Cth) [2021] FCA 204 at [21] (Stephens).

24    The statutory scheme for parole of persons serving sentences of imprisonment for Commonwealth offences is contained in part IB div 5 sub-div B of the Crimes Act.

25    There is no entitlement to parole for federal offenders. The power to release a prisoner on parole once their non-parole period has expired is a matter for the executive: Minogue v Victoria [2019] HCA 31; (2019) 268 CLR 1 at [17]. 

26    The operative power to make, or refuse to make, a parole order lies with the Attorney-General, and is contained in s 19AL of the Crimes Act. The Attorney-General must make a decision before the end of the non-parole period fixed for one or more of the federal sentences imposed on a person: s 19AL(1). Section 19ALA sets out a non-exhaustive list of matters that may be considered by the Attorney-General in making a decision to grant or refuse parole.

27    As to the process of considering the grant of parole, in Lodhi v Attorney-General (Cth) [2020] FCA 1383 (Lodhi) Bromwich J observed at [6(e)]:

[T]he 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 …

28     To similar effect, In Khazaal, Wigney J observed:

... [U]nlike 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.

29    The purposes of parole are described in s 19AKA as: (a) the protection of the community; (b) the rehabilitation of the offender; and (c) the reintegration of the offender into the community. This provision was inserted into the Crimes Act by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) sch 7 pt 6, which commenced operation from 27 November 2015. The Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (Cth) stated at [446]:

Section 19AKA establishes that the purposes of parole are the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community. The purpose of this item is to provide guidance in ensuring that parole conditions are consistent with the purposes of parole, for use in making decisions on release on parole, and when considering breaches of parole conditions.

30    The effect of a parole order is that the person is taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period, until: the parole period ends without the parole order being revoked; or the person is otherwise discharged from imprisonment: Crimes Act, s 19APB(1). That is, an offender is on conditional liberty while still serving their sentence, which is subject to their compliance with the specified conditions on which they were granted parole.

31    Section 19AU of the Crimes Act, the power to revoke parole, is in the following terms:

19AU Attorney‑General may revoke parole order or licence

(1)    The Attorney‑General may, by instrument in writing, revoke a parole order or licence at any time before the end of the parole period or licence period:

(a)    if the offender has, during that period, failed to comply with a condition of the order or licence; or

(b)    if there are reasonable grounds for suspecting that the offender has, during that period, so failed to comply;

and the instrument of revocation must specify the condition that was breached or is suspected of having been breached.

(2)     Before revoking a parole order or a licence, the Attorney‑General must, subject to subsection (3), by notice in the prescribed form, notify the person to whom the order or licence relates of:

(a)    the condition of the order or licence alleged to have been breached; and

(b)    the fact that the Attorney‑General proposes to revoke the order or licence at the end of 14 days after the day the notice is issued unless the person, within that period, gives the Attorney‑General written reasons why the order or licence should not be revoked and those reasons are accepted by the Attorney‑General.

(3)    Subsection (2) does not apply where:

(a)    the person’s whereabouts are and remain, after reasonable inquiries on behalf of the Attorney‑General, unknown to the Attorney‑General; or

(b)    there are circumstances of urgency that, in the opinion of the Attorney‑General, require the parole order or licence to be revoked without notice being given to the person; or

(ba)    in the opinion of the Attorney‑General it is necessary to revoke the parole order or licence without giving notice to the person in the interests of ensuring the safety and protection of the community or of another person; or

(c)     the person has left Australia; or

(d)    in the opinion of the Attorney‑General it is necessary, in the interests of the administration of justice, to revoke the parole order or licence without giving notice to the person.

32    Where notification of the revocation is not given, s 19AX applies:

19AX Where person on parole or licence not notified of revocation

(1)    Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied that the person so brought is the person named in that revocation order but is not satisfied that the person was notified by the Attorney‑General of the proposal to make that revocation order, the prescribed authority must:

(a)    immediately notify the Attorney‑General that the person has been brought before that prescribed authority; and

(b)    order that the person be detained in custody until the Attorney‑General orders that the revocation order be rescinded or until the completion of proceedings under subsection 19AW(1) as applied by subsection (6) of this section.

(2)    Where the Attorney‑General is notified that a person has been brought before a particular prescribed authority, the Attorney‑General must, as soon as practicable, notify the person, in writing, of the conditions of the parole order or licence alleged to have been breached and request that the person give him or her, within 14 days of notification of those reasons, a written submission stating why that parole order or licence should not have been revoked.

(3)    If, within 14 days of a person receiving notification under subsection (2), the person fails to make a written submission to the Attorney‑General, the Attorney‑General must, as soon as practicable after the end of that period, notify the prescribed authority of a decision not to rescind the revocation order.

(4)    If, within 14 days of notification under subsection (2), the person makes a written submission to the Attorney‑General, the Attorney‑General must decide, as soon as practicable after receiving that submission, and on the basis of that submission and any other material the Attorney‑General considers to be relevant, whether or not to rescind the revocation order and must, as soon as practicable after so deciding, inform the prescribed authority and the person, in writing, of the decision.

(5)    If the prescribed authority is notified of a decision to rescind the revocation order, the prescribed authority must immediately order the person to be released from prison.

(6)    If the prescribed authority is notified of a decision not to rescind the revocation order made in respect of the person, subsection 19AW(1) applies to the person so as to authorise the issue of a warrant as if the prescribed authority had been satisfied of the matters referred to in paragraphs 19AW(1)(a), (b) and (c) and subsections 19AW(3), (4), (5) and (6) apply to that person according to their terms.

33    Given the terms of s 19AX(6) it is appropriate also to refer to s 19AW, which is as follows:

19AW Where person on parole or licence notified of revocation

(1)    Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied:

(a)    that the person is the person named in that revocation order; and

(b)    that the person was notified by the Attorney‑General of the proposal to make the revocation order; and

(c)    that the revocation order is still in force;

the prescribed authority must issue a warrant, in the prescribed form:

(d)    authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested; and

(e)    directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences) that the person was serving or had yet to serve at the time of his or her release; and

(f)    subject to subsections (3) and (3A), fixing a non‑parole period in respect of the outstanding sentence or sentences.

(2)    If the prescribed authority cannot complete the hearing under subsection (1) immediately, the prescribed authority must issue a warrant for the remand of the person in custody pending completion of the hearing.

(3)    The prescribed authority is not required to fix a non‑parole period under paragraph (1)(f) if:

(a)    the prescribed authority considers it inappropriate to do so because of the serious nature of the breach of the conditions of the order or licence that led to its revocation; or

(b)    the unserved part of the outstanding sentence or sentences is, or aggregates, 3 months or less.

(3A)    Before fixing a non‑parole period under paragraph (1)(f) in respect of the outstanding sentence or sentences, the prescribed authority must have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked under subsection 19AU(1).

(4)    Where a prescribed authority issues a warrant, the prescribed authority must specify in the warrant the particulars of the unserved part of each outstanding sentence and, if a non‑parole period is fixed, particulars of that period.

(5)    A non‑parole period fixed under this section has effect as if it had been fixed by a court in respect of the outstanding sentence or sentences and section 19AL applies in relation to that non‑parole period according to its terms.

(6)    Where a person brought before a prescribed authority under section 19AV is dealt with in accordance with this section, the unserved part of any outstanding sentence or sentences that the person was serving or had yet to serve at the time of his or her release, is to be reduced by any period of remand under subsection (2).

34    It is necessary to consider the provisions in respect to revocation in the context of the statutory scheme in which they appear.

35    As apparent from those provisions, the discretion to revoke parole arises in circumstances where the federal offender has failed to comply with a condition of parole or where “there are reasonable grounds for suspecting the offender has, during that period, so failed to comply”: s 19AU(1). Revocation can occur with or without notification to the offender. The latter can only occur in certain circumstances, which include: circumstances of urgency that, in the opinion of the Attorney-General, require the parole order to be revoked without notice; and when in the opinion of the Attorney-General it is necessary to revoke the parole order without giving notice to the person in the interests of ensuring the safety and protection of the community: s 19AU(3). The terms of the provision therefore expressly exclude the duty to afford procedural fairness in advance of revocation in the circumstances identified. The text of the provision also reflects that the circumstances in which parole can be revoked without notification, apart from where the offender’s whereabouts are unknown or where they have left the jurisdiction, are circumstances of urgency.

36    Section 19AU(3)(ba), which was relied on in this case, was introduced in 2020. The Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2020 (Cth), stated at [6]-[9] of Schedule 1:

Section 19AU of the Crimes Act outlines when the Attorney-General can revoke a parole order or licence and the procedures that must be followed when doing so. Currently, unless certain circumstances apply, before revoking a parole order or licence, a person must be notified of the specific conditions of the order or licence that they are alleged to have breached and given 14 days to respond.

This item amends section 19AU(3) to provide that a federal offender’s parole or licence may be revoked without notice if doing so is necessary to ensure the safety and protection of the community or of another person. This provides an option to revoke a person’s parole or licence in circumstances that require a response before the current 14 day timeframe, but would not otherwise meet the current threshold of urgency (which implies a need for immediate action).

Including this in the current list of exceptions will ensure that if the Attorney-General or their delegate becomes aware that a person who has been released into the community on parole or licence poses a threat to the safety of the community or to another person, that person can be taken into custody immediately.

Importantly, the person is still afforded procedural fairness as they retain the opportunity under section 19AX of the Crimes Act to make a written submission to the Attorney-General as to why the parole order should not be revoked. However, during this time the person will be remanded in custody, where they cannot cause harm. If, after considering the person’s submission, the Attorney-General decides to rescind the revocation order, he or she would be immediately released from prison.

37    Procedural fairness is accommodated after the decision is made in these circumstances by s 19AX, with the federal offender retaining the opportunity to make submissions after notice of revocation.

38    Section 19AX sets out a two stage process. Following the federal offender being brought before a prescribed authority, the Attorney-General (or delegate) must, as soon as practicable: notify the person in writing of the conditions of the parole order alleged to have been breached; and request the person give the Attorney-General (or delegate), within 14 days of notification, a written submission stating why that parole order should not have been revoked. The submission could address both the issue of the precondition to revocation and/or matters relevant to the exercise of the discretion, the precondition having been established. The provision then specifies the next step, which is dependent on the existence and content of that submission, and the consequences thereof.

39    If no submission is made, the Attorney-General must notify the prescribed authority as soon as practicable, of the decision not to rescind: s 19AX(3). If a submission is made, within 14 days of it being received, the Attorney-General must decide as soon as practicable, on the basis of that submission and any other material the Attorney-General considers to be relevant, whether or not to rescind the revocation. If the decision is to rescind, the prescribed authority and federal offender must be informed, and on being informed the federal offender must be immediately released: ss 19AX(4)-(5). If, however, the decision is not to revoke, the matter proceeds according to s 19AW. That is also the situation where a federal offender does not make written submissions: s 19AX(6).

40    The only notice requirement in relation to revocation is of the condition alleged to have been breached and of the opportunity to make submissions: ss 19AU(2) and 19AX(2). This approach is to be contrasted to the requirement imposed on the Attorney-General if they refuse to grant parole, which requires, inter alia, the provision to the federal offender of a statement of reasons: s 19AL(2)(a)(ii). I note, as the applicant submitted, that the latter part of s 19AX(2) refers to “those reasons”, which purports to refer back to an earlier reference to reasons. However, there is no earlier reference in that provision to any requirement to give reasons. Rather, it is confined to notification of the conditions breached. I also note that the phrase “those reasons” does not appear in s 19AU(2), which applies when notice is given of the intention to revoke. There would be no basis to differentiate between the two circumstances as to the extent of the notification requirement.

41    That said, as accepted by the first respondent, it can be inferred that the process requires the Attorney-General (or delegate) “to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”: Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (Alphaone).

42    In Alphaone at 591-592 the Full Court said:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. ...

43    Given that inadequacy of reasons is not a ground of review, it is not necessary in the circumstances of this case to consider, beyond that, the particular information the offender should be given. That said, it is appropriate to note that the applicant relied in his submissions on a passage from Khazaal at [62], contending what is required is the applicant be provided with “specific adverse information that is credible, relevant and significant”. However, that passage was said in respect to a refusal to grant parole, where the statutory scheme expressly refers to the provision of a statement of reasons. Further, in contrast to the grant of parole, the basis on which parole is revoked is dependent on satisfaction of a statutory precondition (which includes “reasonable grounds for suspecting” a breach of a condition). I also note that the applicant in advancing the submission did not refer to the decisions, also in the grant of parole context, which are to the contrary, nor, that the approach he contends for was said to only apply in “some cases”: see Westlake v Attorney-General [2017] FCA 1058 at [40] and Duxerty v Minister for Justice and Customs [2002] FCA 1518; (2002) 136 A Crim R 373 at [22], as summarised by Wigney J at [60]-[62] of Khazaal. Also see, in respect to reasons in respect to refusal of parole: Lodhi at [84]-[96]; Stephens at [29]-[34].

44    If the decision is to revoke parole, or the decision of revocation made without notice is not rescinded, s 19AW applies. Section 19AW(3A) requires that, before the prescribed authority fixes a non-parole period, it must have regard to the period of time spent by the federal offender on parole or licence, before the parole order or licence was revoked. Moreover, the prescribed authority retains discretion when fixing a new non-parole period under s 19AW: see, for example, Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62 at [25]; Dobie v Commonwealth [2013] FCA 1224; (2013) 216 FCR 300 at [40] (which includes fixing a non-parole period at zero months, which would result in immediate release of the offender).

45    Pausing there. A consideration of the provisions which govern the assessment of whether to grant parole are, in some respects, in different terms to those applicable to the revocation of parole. This reflects the different nature of the decisions and the circumstances in which they may arise. For example, there is no identification of factors which may be considered in the revocation decision akin to s 19ALA (which applies to the grant of parole). The consideration of the grant of parole occurs in each case, with the federal offender in a position to make submissions and provide material for consideration by the Attorney-General in support of their case for conditional release before a decision is made. This occurs while the federal offender is still serving their sentence in prison. By contrast, the decision as to whether parole is to be revoked occurs while the federal offender is on conditional release in the community, although still serving their sentence. Their right to remain in the community is dependent on compliance with the conditions imposed by the Attorney-General. The decision may, as recognised in s 19AU, be considered in circumstances where there is some urgency, and in circumstances where community safety may be at issue. It may, in some circumstances, be taken without notification to the federal offender because of those features. Given these differences, one cannot simply transpose, without attention being given to the relevant statutory provisions, the assessment process or the procedural requirements that apply to the consideration of whether to grant parole, to the decision whether to revoke parole.

46    Against that background, given the grounds of this application, it is appropriate to consider s 19AU(1)(b) (the relevant precondition to the Revocation Decision) in more detail.

47    It is important to focus on the text of s 19AU(1)(b), which states that “reasonable grounds for suspecting” the federal offender has failed to comply with a condition of parole must exist. That statutory formula of “reasonable grounds for suspecting”, is widely used: see, for example, McKinnon v Secretary Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at [9]-[10]; Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 at [23] (Prior v Mole). What is required to satisfy a precondition expressed in that way is set out in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112 ff (George v Rockett).

48    In George v Rockett, the Court stated that when a statute prescribes that there must be “reasonable grounds” for a state of mind, including suspicion, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: at 112. It is an objective test. George v Rockett concerned Queensland legislation empowering the issue of a search warrant if there were reasonable grounds for suspecting that there was incriminating evidence in a house. The High Court considered the meaning of reasonable grounds for suspecting and said, as to suspicion, at 115-116:

Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, “in its ordinary meaning is a state of conjecture of surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (65):

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

49    During oral submissions the applicant accepted that the relevant standard for reasonable grounds for suspecting is that set out in George v Rockett, and the written submission which sought to impose a different and higher standard was withdrawn.

Covering submission

50    Much of the argument during this application focussed on the material before the Delegate. Accordingly, it is appropriate at this stage to refer to that material in more detail, in particular, the covering submission. As explained above, this covering submission, signed by the Director of the CPO, attaches various documents.

51    The covering submission to the bundle of material, after stating at the outset that the CPO had received an urgent request for the revocation of the applicant’s parole from the NSWPF, summarises the NSWPF Report attached to it: at [8]-[10].

52    At [15], the CPO noted that there is no ability to guarantee the confidentiality of information from the NSWPF, in contrast to the position in respect to state offenders. The CPO also stated at [16] that it had sought further information from the NSWPF regarding the nature of the breach, noting the limitations on what they may be able to disclose and that no response had yet been received.

53    As to the approach to determining whether there had been a breach of parole, the following was stated at [17]-[19]:

17.    As set out above at [2], subsection 19AU(1) of the Crimes Act provides the Attorney-General (or a delegate) may revoke a parole order at any time before the end of the parole period if the parolee has failed to comply with a condition of their parole order, or there are reasonable grounds for suspecting that the parolee has failed to comply with a condition of their parole order.

18.    Initially, you must determine what, if any, conditions of his parole order, Mr Ahmad breached. This will require consideration of whether there are ‘reasonable ground for suspecting an offender has failed to comply with the conditions of a parole order.

19.    To be satisfied that there are ‘reasonable grounds’, you must be satisfied to an objective standard – that is, satisfied that there are sufficient facts that a reasonable person would consider there to be reasonable grounds for suspecting the breach of the parole order (George v Rockett (1990) 170 CLR 104 at 112).

54    The covering submission then addressed whether the NSWPF Report could provide credible evidence of breach at [24]-[25]:

24.    The CPO considers there are reasonable grounds for suspecting that Mr Ahmad has breached this condition of his parole order.

25.    The grounds for finding reasonable suspicion are as follows:

•    The NSWPF report should be considered to contain credible evidence:

•    The NSWPF report cites investigations and intelligence as the source for the information that Mr Ahmad is planning retaliatory attacks.

•    The NSWPF report is signed by an acting Superintendent, i.e. not a junior NSWPF officer.

•    There is ongoing violence between the organised crime groups, as set out in the NSWPF report.

•    The CPO considers that the content from the parole report (discussed at paragraph 26) supports a view that Mr Ahmad's family is involved in such an organised crime group.

•    Mr Ahmad's links to the organised crime groups means that the threat of violence being committed by or on behalf of Mr Ahmad is not fanciful or remote:

•    Mr Ahmad's brother was killed in April 2022.

•    Mr Iskander was killed in May 2022. It is inferred that Mr Ahmad is related to Mr Iskander, with Mr Iskander being his nephew.

•    The shooting of the Zahed brothers is believed to be in retaliation for the shooting of Mr Ahmad’s brother (see news article at Attachment E).

•    The shooting of Mr Iskander was being explored as to whether it was in retaliation for the shooting of the Zahed brothers (see news article at Attachment F).

55    It also summarised the parole report provided by Corrective Services NSW at [26]-[27]:

26.    The CPO has reviewed the parole report provided by Corrective Services NSW dated 25 January 2021 (Attachment G). The CPO notes the following remarks in the parole report (noting Mr Ahmad is referred to in that report as Mr Ahmed):

•    ‘Records indicate that several of Mr Ahmed’s brothers are involved in Organised Criminal Networks (OCNs).’

•    ‘Records indicate that Mr Ahmed’s offending behaviour has been influenced by his criminal family members and associates. Records describe that Mr Ahmed has felt “pressured to always uphold his reputation and his family’s name as they are a well-known crime family.” Mr Ahmed’s various pro-criminal influences appear to pose a criminogenic risk in the community.’

27.    The parole report noted a single reason against release as follows:

•    ‘Anti-social members of Mr Ahmed’s family may pose ongoing criminogenic risks and Mr Ahmed’s attitudes towards his family may interfere with his ability to effectively manage these risks.’

56    At [30] it was said:

NSWPF allege that ‘intelligence and investigations’ indicate that Mr Ahmad is involved in planning retaliatory attacks. While there is no information about the source of this intelligence, the CPO considers that the fact that the report from NSWPF is signed off at a high level, and the report provides additional contextual information regarding the nature of the gang wars, should weigh in favour of its credibility.

57    At [31], the covering submission stated that the CPO considered there were reasonable grounds to determine that the applicant had breached of condition 1 of his parole.

58    The covering submission then advanced various options that arise if such satisfaction is reached, including the issue of notice to the applicant. Those were: revoke his parole order with notice; revoke his parole order without notice; issue a warning letter; or take no further action: at [32]. The covering submission then addressed whether it was appropriate to revoke without notice, if satisfied on the breach of the condition, referring to s 19AU(3)(ba) as the potential basis to do so: at [34]-[37].

59    At [38] the covering submission stated:

It is open to you to find that Mr Ahmad poses a threat to the safety of the community and should be kept in custody. Matters supporting this view include the seriousness of the investigations and intelligence that he is ‘planning retaliation attacks to murder members of the Comanchero OMCG.’ It seems likely that any retaliation attack would involve a public place shooting, which poses a threat to the safety of the NSW community and NSWPF.

60    The Delegate did revoke the applicant’s parole and was satisfied that notice was not required to be provided in the interests of ensuring the safety and protection of the community.

Grounds of review

61    A number of preliminary matters should be noted.

62    First, as explained above, the Delegate had before her a bundle of material (including the covering submission referred to above at [50]-[60]), to which regard can be had when assessing whether “in reality” the Delegate was satisfied of the requisite matters, or fell into the legal errors contended for: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [16] and [20] (Palme); Stephens [6]. In having regard to the covering submission, it should be read as a whole and parts should not be taken out of context: Palme at [28]; and see Stephens at [6]. The applicant, during his oral submissions, accepted that position.

63    Second, as apparent from the factual history of the matter, the applicant is being held pursuant to a warrant of Magistrate Price, under s 19AX(1)(b). The applicant has been notified of the revocation, as required by s 19AX(2), and on 28 September 2022 was provided notice of further information which the Delegate could rely on in deciding whether to rescind the Revocation Decision. I note that the applicant has not made any submission against revocation, instead stating in correspondence that he was not in a position to do so in the absence of any details of that information. The applicant has not provided a submission to the Delegate denying the allegation of planning retaliation attacks or on any other aspect of the information. Nor has the applicant provided any submission directed to the exercise of the discretion. I note that given the affidavit of Hisham Karnib filed in this Court, the applicant also has a copy of the NSWPF Report (it being annexed to it). The applicant submitted that, given the right to silence, his response is an understandable course. However, that is not the basis on which he has not provided any submission. As explained above, the federal offender is provided with an opportunity to make submissions either that parole ought not to be revoked, or in the event of revocation without notice, as to why that should be rescinded. This is to provide procedural fairness. In circumstances where a federal offender is in the community conditional on compliance with the conditions imposed on them and the breach of a condition under either limb of s 19AU has potential to involve criminal behaviour, the choice not to make submissions has the capacity to affect their parole.

64    Third, in that context, although in his correspondence with the CPO and submissions in this Court, the applicant has stated he has insufficient information to enable him to respond to the revocation, as referred to above, he does not advance a ground alleging an entitlement to reasons or alleging that any reasons provided were inadequate: cf Lodhi at [84] ff. It is apparent there has also been no request by the applicant for further information.

65    Fourth, the applicant bears the onus of establishing that the Revocation Decision was infected by jurisdictional error: Stephens at [28]. The applicant appeared to accept this proposition during oral submissions, although I note in his written reply submission he submitted that the respondents had an inadequate basis upon which lawfully to revoke his parole, and that the onus rests on the first respondent to demonstrate that there was a proper basis to do so. In so far as the applicant submitted (for the purpose of his submission as to the writ of habeas corpus) that if a detained person has put in issue the legality of their detention, the onus shifts to the detainer to demonstrate the detention is lawful, failing which the person should be released (citing McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [60], [90]-[95], [284]-[288]; Yoxon v Secretary to the Department of Justice [2015] VSC 124; (2015) 50 VR 5), it is important to recognise the statutory scheme under consideration. This is not a case of executive detention, but rather the applicant is being detained as a result of a warrant issued by a Court (in relation to a sentence of imprisonment imposed by the Court).

66    Fifth, it is appropriate to observe that the applicant’s case as advanced during oral submissions was, in some respects, different to that in his written submissions. The applicant’s oral submissions involved certain concessions or acceptance of certain matters which resulted in some of his written submissions being withdrawn or clarified. Relevantly, the applicant accepted that the relevant satisfaction of plans for retaliation attacks or murders was capable of being a breach of condition 1 of his parole. As noted above, the applicant also accepted during oral submissions that the relevant standard for “reasonable grounds for suspecting” is that set out in George v Rockett, and the written submission which sought to impose a different or higher standard was withdrawn.

67    The parties addressed the grounds in groups, which I will adopt as they reflect the manner in which the case was advanced. Although there are multiple grounds (and groups thereof), they essentially all focussed or stemmed from the same complaint, namely, that there was no, or no sufficient, material before the Delegate to enable her to be satisfied that there were “reasonable grounds to suspect” the applicant had failed to comply with a condition of his parole. Attention was also focussed on what was said to have been erroneously taken into account, or not taken into account, in the Revocation Decision.

Grounds 1 and 2: No reasonable grounds for suspecting a failure to comply

68    These grounds are as follows:

1.    There were no reasonable grounds for suspecting that the applicant had failed to comply with condition 1 of his parole order, which was a statutory pre-condition to the exercise of the power to revoke his parole.

2.    There was no probative evidence to support the delegate's conclusion that there were reasonable grounds to suspect that the applicant had failed to comply with condition 1 of this parole: alternatively there was insufficient evidence to so conclude from which it can be inferred that the delegate of the first respondent applied the wrong test, was not really satisfied that there were such reasonable grounds, or misperceived her function and thereby constructively failed to exercise jurisdiction.

Submissions

69    The applicant submitted that the statutory precondition enlivening the Attorney-General’s discretion to revoke parole in s 19AU(1)(b) is framed in objective terms, namely the existence of “reasonable grounds for suspecting” and is not conditioned upon any particular person having such a suspicion: cf George v Rockett at 111-112. He submitted that properly construed, the existence of such grounds is a jurisdictional fact that falls to be determined by this Court upon review: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [28], [48] (City of Enfield). The applicant contended that an objective examination of the material before the Delegate does not reveal the existence of reasonable grounds for suspecting that the applicant had breached condition 1 of his parole. It was submitted that the single sentence asserting that “it has been identified” that the applicant “is planning retaliation attacks” was the only basis upon which the reasonable grounds required could be founded. It was also submitted that bare assertion by the NSWPF, unsupported by any detail, cannot form the “reasonable grounds” for suspecting that the applicant had breached his parole conditions, as is required by the statute as a precondition to him being deprived of his liberty, and having his sentence extended. The applicant emphasised the role of the decision-maker in this process, relying, inter alia, on George v Rockett at 111 and 112, and the authorities there referred to.

70    The applicant submitted, in the alternative, that if the precondition involves a subjective suspicion entertained by the decision-maker, the requirement that there be “reasonable grounds” imposes an objective criterion that falls to be determined by the Court upon an objective examination of the material before the decision-maker. The task for the Court is substantially the same on either construction. On this basis, the applicant submitted: there was no probative evidence to support the delegate’s conclusion that such grounds existed, citing Wang v Australian Securities and Investments Commission [2019] FCA 1178 at [68] (Wang); and/or it can be inferred from the insufficiency of evidence that the Delegate applied the wrong test, was not really satisfied that there were reasonable grounds, or misperceived her function and thereby constructively failed to exercise jurisdiction, citing One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [117].

71    The applicant identified what he contends are twelve matters from the bundle of material before the Delegate, some characterised by him as facts, others conjecture or speculation, and submitted that all bar one, do not relate to the applicant. In that context, he submitted that there was only one bare assertion, namely that the applicant has been identified as planning retaliation attacks to murder Comanchero Outlaw Motorcycle Gang (OMCG) members, which is vague, obscure and does not identify source or probative evidence. It was submitted that the requisite state of satisfaction could not be arrived at on that material. It was also submitted that: the information about retaliation did not fit with the other material; the applicant had no history of violence; and that there is no evidence he committed offences with his family. The applicant also made a number of submissions directed to why the information before the Delegate could not be relied on.

72    The first respondent submitted that given the scope, purpose and objects of the legislation in question, and on a matter in which minds could reasonably differ, that the improbability of “reasonable grounds” being a jurisdictional fact of the nature contended by the applicant is high. The first respondent also submitted that the expression in its statutory context refers to the state of satisfaction that must be held by the decision-maker (in this case the Delegate), which enlivens the exercise of the discretion in s 19AU(1). The applicant submitted that if it is a jurisdictional fact, then this Court on review can determine for itself whether it is established. However the first respondent submitted that, significantly in this respect, the applicant chose to put on no evidence in this Court denying the allegations against him (even by way of bare denial).

73    The first respondent submitted that in any event, and regardless of whether or not the existence of reasonable grounds is a jurisdictional fact, these grounds must fail when regard is had to the material before the Delegate. The first respondent addressed the details of that material and submitted that there was ample material before the Delegate that provided reasonable grounds to suspect the applicant had breached condition 1 of his parole.

74    As to the applicant’s alternative submission that “there was no probative evidence to support the [D]elegate’s conclusion that such grounds existed”, the first respondent, after addressing the observations in Wang at [68] (which are relied on by the applicant) submitted that there is, plainly, more than a “mere ‘skerrick’ of evidence”, having regard to the covering submission referred to above at [50]-[60]. The first respondent also observed, that a “no evidence” ground will fail if there was any evidence to support a particular factual finding or inference, citing Mason CJ in Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321 at 356 (Bond), as applied by Bromwich J in Wang at [66].

Consideration

75    There is no issue that there is a statutory precondition to the exercise of the discretion in s 19AU(1). The dispute between the parties is: whether it is a jurisdictional fact that there be “reasonable grounds for suspecting” the applicant has failed to comply with a condition of his parole (City of Enfield at [28], [48]) and therefore a matter for the Court to decide itself; or whether, as the first respondent submitted, it is the state of satisfaction that there are reasonable grounds for suspecting (applying the test in George v Rockett) that must be held by the decision-maker (in this case the Delegate), which enlivens the exercise of the discretion in s 19AU(1). If it is the latter, the court may only review the formation of a state of satisfaction on limited grounds: see below at [97]. I note that this issue is only relevant to ground 1, with all remaining grounds advanced based on the Delegate holding the relevant suspicion.

76    Regardless of the characterisation, the onus remains on the applicant to establish there has been jurisdictional error: Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15]. Moreover, as the first respondent submitted, if it is a jurisdictional fact as contended by the applicant, and it is for the Court to determine, it is not confined to the material before the Delegate. I note again that the applicant has not put before the Court any evidence denying the allegations against him, even by way of bare denial.

77    Little attention was paid by the parties to the issue of characterisation, in particular by the applicant who was advocating the precondition being a jurisdictional fact. The first respondent’s position is that regardless of the characterisation, the ground should be dismissed. Neither party addressed the issue by directing any detailed analysis of the statutory provision in the context of the scheme.

78    Determining whether a precondition is a jurisdictional fact is a question of statutory construction: City of Enfield at [50]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [39] (Timbarra). Not all conditions precedent for the exercise of a statutory power or discretion are jurisdictional facts.

79    In Timbarra, Spigelman CJ stated at [40]-[41]:

[40]    Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

[41]    Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense — Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

80    As part of this task, the Court considers whether it can be said Parliament intended the existence of a fact to be an essential precondition to the engagement of a statutory power: AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [118]; Cabal v Attorney-General (Cth) [2001] FCA 583; (2001) 113 FCR 154 at [50]. Factors recognised as relevant include: the language of the relevant statutory provision; the scope and purpose of the legislative scheme; whether the statutory criterion involves matters of judgment or degree; and whether the consequences of invalidity would result in inconvenience: Timbarra at [89] and [91]. Even if some kind of qualitative judgment is involved, that will not necessarily preclude a fact being characterised as an essential precondition which must objectively exist for the power to be engaged: Timbarra at [89]-[90]. Spigelman CJ observed in Timbarra at [42]:

Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker – “opinion”, “belief”, “satisfaction” - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact … Where such words do not appear, the construction is more difficult.

81    There are matters of construction that point both ways. For example, the text of s 19AU(1) does not contain the term “satisfied” or any similar term. This is to be contrasted to s 19AU(3) which is based on the Attorney-General (or delegate) being of the “opinion” that various circumstances exist which result in revocation occurring without notice to the federal offender. Noting also that the term “satisfaction” is referred to elsewhere in the scheme: see, for example, ss 19ALB(1) and (2), 19AX(1), 19AW(1). That tells against the first respondent’s submission that the precondition to enliven the discretion to revoke parole is satisfaction of the Attorney-General or delegate. On the other hand, the Attorney-General (or delegate) must make an assessment, applying the approach in George v Rockett, as to whether there are reasonable grounds for suspecting the offender has failed to comply. That is a matter on which minds could reasonably differ, which tells against it being a jurisdictional fact. Further, the decision is in the context of a scheme whereby the decision-maker is involved in a two stage process. As part of that process, the decision-maker could be required to consider whether to rescind the first decision, which can involve taking into account other material which was not available at the time it was made.

82    Given the absence of submissions on this topic, it is unnecessary to finally determine this issue, because, whichever characterisation is applied, the result is the same.

83    If it is a jurisdictional fact such that this Court is to decide, on the material I am satisfied, applying the approach in George v Rockett, that there are reasonable grounds for suspecting that the applicant failed to comply with condition 1 of his parole.

84    The material before the Delegate was sufficient for a reasonable person to be satisfied that there are reasonable grounds to suspect the applicant had breached the first condition of his parole.

85    Contrary to the applicant’s submission, that satisfaction is not based on bare assertion that “[c]urrent NSW Police investigations and intelligence holdings ... identified that the applicant is planning retaliation attacks to murder members of the Comanchero OMCG”. The information was presented in a factual context, with those contextual facts being relevant to the assessment.

86    Relevantly, for example, the material before the Delegate included [24] and [25] of the covering submission recited above at [54], and the information underlying it. The credibility of this information about retaliation is in the context of the following: information about ongoing violence between organised crime groups in Sydney; the applicant’s family being involved in such an organised crime group; investigations by the NSWPF identifying that the conflict extended into the Ahmad Network and Comanchero OMCG operating in the Southwest Sydney region; on 27 April 2022 the applicant’s brother, Mahmoud Ahmad was killed in a public place (having been shot multiple times), with it being widely known that there was a conflict between him and the Comanchero OMCG; on 10 May 2022 a high ranking Comanchero OMCG member, Tarek Zahed, and his brother Omar were targeted in a public place with Omar Zahed dying from multiple gunshot wounds, believed to be in retaliation for the murder of Mahmoud Ahmad; on 14 May 2022, Rami Iskander, the applicant’s nephew, was shot dead outside his home, believed to be a reprisal for the murder of Omar Zahed and shooting of his brother; and current NSWPF investigations and intelligence identified the applicant as at extreme risk of being murdered. It is in that context the information provided by the NSWPF as to retaliation is to be considered.

87    The information about retaliation is also to be assessed in the context of the material referred to in [26] and [27] of the covering submission, from the parole report by Corrective Services NSW: see above at [55]. For example, that their records stated that: several of the applicant’s brothers are involved in Organised Criminal Networks; the applicant’s offending has been influenced by his family and associates; and the applicant has felt “pressured to always uphold his reputation and his family’s name as they are a well-known crime family.”

88    It follows that the assessment of whether the information in relation to retaliation could provide reasonable grounds for suspecting that the applicant had breached the condition to be of good behaviour and not violate any law, is in a very particular factual context.

89    The applicant’s submission is premised on the proposition that more detail is needed in relation to the information about retaliation because it is unsourced, vague and obscure. On this topic, the applicant’s submission varied. The applicant, inter alia: suggested that the source of the information was needed, or at least the nature of the source and the underlying evidence; questioned, inter alia, the lack of detail provided of the planned retaliation, implying that such detailed information was needed; and at times took an approach which required a level of detail to prove the allegation, (criticising some of the material provided to the Delegate on the basis the assertions were conjecture). Although the applicant conceded that George v Rockett applied, his submissions took little account of the concept of suspicion. As explained above, suspicion can involve surmise and conjecture. It is a state of conjecture or surmise that the thing may exist, though proof of the existence of that thing is lacking. The facts which can reasonably ground a suspicion may be insufficient to reasonably ground a belief: George v Rockett at 115. The basis for a reasonable suspicion does not necessarily require probative evidence in the manner contended for, nor the level of detail contended for. What is required is the existence of facts which are sufficient to induce a reasonable person to be satisfied that there are reasonable grounds for suspecting the applicant has breached the condition to be of good behaviour.

90    Although the underlying source or sources of the information are not identified beyond being from a NSWPF investigation and intelligence holdings, the information, considered in context, cannot be properly described as vague or obscure. Further detail may be given, or even needed, in a particular case. However, the issue is whether the material before the Delegate in this case was capable, considering it in the context of all the material provided, of satisfying a reasonable person of the relevant state of mind. Each case necessarily turns on its own facts.

91    In this case, the context in which the information has been identified (in particular an investigation into ongoing violence between organised crime groups in Sydney) informs the nature of the information provided to the CPO, and given the nature of it, why the NSWPF could only provide limited information about the circumstances of the alleged breach.

92    It can readily be inferred that an investigation into crimes of the nature referred to in the material before the Delegate might involve a number of different methodologies being employed, while the information obtained, the means of gathering intelligence, and the intelligence itself, are often confidential. More particularly so in light of the ongoing nature of the investigation. The absence of more detailed information did not mean, in the circumstances of all the information provided in this case, that the Delegate, or a reasonable person, could not accept or act on the result of the investigation and the intelligence. It does not prevent a reasonable person from being satisfied that there are reasonable grounds for suspecting the applicant has failed to comply with a condition.

93    Further, contrary to the applicant’s submission, the information about retaliation is not inconsistent with the other material before the Delegate. For example, the applicant did not address submissions to the conclusions in the Corrective Services NSW Report of his behaviour having been influenced by his family and the pressure he felt to always uphold their reputation.

94    The applicant also submitted the fact that the author of the covering submission considered it necessary to seek further information from the NSWPF regarding the nature of the breach alleged, shows that the information before the Delegate was inadequate. I do not accept that submission. Moreover, it reflects a misreading of the covering submission. Although the CPO did request further information, it is plain that the CPO recommended in the covering submission that s 19AU(1) was satisfied on the material then before the Delegate, and explained why that was so. Similarly, I do not accept the applicant’s submission that, in the circumstances of this case, the existence and reliability of the information is called into doubt by acknowledgment in the covering submission that: no charges had been laid; and there was no information to indicate that charges were likely to be laid in the immediate future. This may simply reflect the nature of information gathered, including intelligence, which, as explained above, is often from various sources and often confidential.

95    I also do not accept the applicant’s submission that relying on the information before the Delegate in this case was inconsistent with the statutory scheme because: it rendered it impossible for an affected person to make meaningful submissions as to why their parole should not be revoked; or for the prescribed authority to carry out the re-sentencing exercise required of it. The submission as to the ability to make submissions conflates the separate concept of procedural fairness with the statutory requirement for a decision without notice pursuant to ss 19AU(1) and (3). As to the submission regarding the re-sentencing exercise, the court proceedings on any resentence for a breach of parole are conducted in the ordinary manner, with the Commonwealth Director of Public Prosecutions being the moving party. It follows that evidence can be put before the Magistrate on resentence which is relevant to that process, meaning the exercise is not confined to the information before the decision-maker when deciding whether to revoke parole. The conclusion that the precondition is established on the information provided in this case is not inconsistent with the statutory scheme. The submission fails to grapple with the fact that Parliament has chosen the often used language of “reasonable grounds to suspect” in designating what is required for s 19AU(1)(b) to be established. As observed above, whether material before the Attorney-General or delegate is sufficient to satisfy the precondition in s 19AU(1), is necessarily case specific.

96    If the “reasonable grounds to suspect” requirement is not a jurisdictional fact, but a reference to the Delegate’s state of satisfaction, it was open to the Delegate to act on the information in relation to retaliation, considered in its context, to form the requisite suspicion. The covering submission contained an intelligible process of reasoning that there were reasonable grounds for suspecting breach of the relevant condition of parole: see, for example, the principles referred to in Stephens at [46]-[47].

97    The court may only review the formation of a state of satisfaction on limited grounds, including that: the decision-maker did not address the question formulated by the provision; the decision-maker considered an irrelevant matter or disregarded a relevant matter; the decision-maker engaged in illogical or irrational reasoning; the conclusion is affected by some mistake of law; or there was an absence of good faith: see, for example, Egan v Minister for Home Affairs [2021] FCAFC 85; (2021) 285 FCR 648 at [97]-[99], and the cases cited therein. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [137], Gummow J noted that:

… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.

98    The applicant has not established the underlying premise of this ground. The passage from Wang relied on by the applicant is [68], where Bromwich J observed:

Mr Wang correctly points out that the "no evidence" ground is not restricted to circumstances where there is, quite literally, no evidence at all. That is because a finding may constitute an error of law if there was no probative evidence to support it, so as to be no evidence in law at all: see Bruce v Cole (1998) 45 NSWLR 163 at 188-189 per Spigelman CJ (Mason P, Sheller and Powell JJA agreeing). It follows that the no evidence ground of review will not always be defeated by identifying a mere “skerrick” of evidence if it can be shown by the party asserting the “no evidence” ground not to have been also legally probative in making the finding in question. However that inquiry is one of capacity, not weight.

99    As explained above, there is more than a skerrick of evidence.

100    Moreover, as Bromwich J observed at [66]-[67], a “no evidence” ground will fail “if there was any evidence to support a particular factual finding or inference”, quoting Mason CJ’s passage in Bond at 356:

… at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

101    Having accepted that the approach in George v Rockett is appropriate, there is no issue that the Delegate applied the correct legal approach in reaching her state of satisfaction. In so far as the applicant submitted on this ground that the Delegate also took into account an irrelevant matter, namely that the applicant’s incarceration may reduce the risk of further retaliation from both the Ahmed and Comanchero OMCG, for the reasons given in ground 9, it has no factual foundation. The Revocation Decision is not unreasonable, illogical or irrational.

102    In this case, as indicated above, the basis for the Delegate’s inference was reasonably open. There was sufficient evidence to make the conclusions she did.

103    The applicant has not established grounds 1 and 2.

Grounds 3, 4 and 5: Failure to obtain further information

104    These grounds are as follows:

3.    A reasonable person in the first respondent's delegate’s position would have awaited further information or made further inquiries of the police before forming a suspicion based on their assertions, such that there were no reasonable grounds for suspecting that the applicant had failed to comply with condition 1 of his parole order, which was a statutory pre-condition to the exercise of the power to revoke his parole.

4.    The Decision was legally unreasonable due to the delegate of the first respondent's failure to obtain material that obviously was available and centrally relevant to the decision to be taken.

5.    The delegate of the first respondent’s failure to receive additional information relevant to taking the decision due to concerns that it could be disclosed to the applicant means that the decision-maker took into account an irrelevant consideration (the desirability of preventing relevant information being disclosed to the applicant) and/or the Decision was taken in a manner infected by an improper purpose (the desire to deny the applicant access to relevant material) and was therefore taken subject to jurisdictional error.

Submissions

105    The applicant submitted that because the Delegate made the Revocation Decision without obtaining further information from the NSWPF concerning their assertions as to the applicant’s conduct, jurisdictional error is established. This submission was put on the basis that there is, on the applicant’s construction of the relevant statutory provisions, a high threshold of “reasonableness” founding grounds for suspicion, and therefore the Attorney-General was obliged to make due inquiry to obtain material likely to be relevant to the formation of that suspicion: Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566 at [6] (Goldie). He submitted that reasonable grounds will not exist if a reasonable person in the first respondent’s position would have desisted from forming the suspicion, or awaited further information or made further inquiries before forming the suspicion: Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 at [134].

106    The applicant contended that the covering submission reflected an acute awareness of the insufficiency of information before the Delegate, but the Revocation Decision was nevertheless taken without obtaining further information that was later sought. Given the serious consequences of the Revocation Decision, it was submitted that a reasonable person in the Delegate’s position would have awaited further information or made further inquiries before forming the suspicion. The applicant also submitted that it can be inferred from the covering submission that the Delegate refrained from obtaining further information which would inform whether or not reasonable grounds to suspect existed on the basis that such information could be disclosed to the applicant in accordance with the requirements of procedural fairness. That approach was submitted to be incorrect, meaning the decision-maker took an irrelevant consideration into account.

107    The first respondent submitted that in circumstances where no charges had been laid and there was no information that would happen in the immediate future, the covering submission set out: the reasons for the information provided by the NSWPF being more limited than may ordinarily be before a Delegate; and that the CPO had sought further information which had not been provided. That was said not to give rise to the inferences contended by the applicant: see below at [114]. The first respondent also noted that the applicant could have provided the Delegate with information refuting the allegations.

Consideration

108    The applicant accepted during oral submissions that if the Delegate was satisfied there were reasonable grounds to suspect the applicant had breached a condition of his parole, there was no obligation to obtain further information.

109    That concession, given the conclusions I have made above in relation to grounds 1 and 2, means grounds 3 to 5 cannot succeed.

110    Nonetheless I make four observations.

111    First, these grounds proceed on the basis that it is the Delegate’s state of mind that is relevant. The applicant did not address how this ground sits with his submission as part of ground 1 that “reasonable grounds for suspecting” is a jurisdictional fact, and not a subjective state of satisfaction to be held by the Delegate.

112    Second, the applicant’s reliance on Goldie takes the following statement of the majority at [6] out of the statutory context in which it was said:

… Section 196 operates upon a person detained under s 189 who is an unlawful citizen, not upon a person reasonably suspected of being an unlawful non-citizen. The scheme contemplated under the Migration Act is indefinite detention pending removal or deportation under administrative fiat. It is not detention for the purpose of curial review or determination of status.

113    It is apparent from a plain reading of that passage that the particular statutory scheme under consideration was significant to the majority’s conclusion. The relevant scheme in this case is notably different as to the standard and nature of the factual finding, and the consequences thereof. This scheme includes the precondition of “reasonable grounds to suspect” and provides for notice to the applicant and an opportunity to provide submissions, with the matter being brought before Court for judicial consideration. It does not involve continued detention as a result of executive action, and operates in circumstances where, although the offender has been granted parole, they are still subject to the sentence of imprisonment imposed by the Court. The passage at [6] of Goldie cannot simply be transposed to a different statutory scheme. As the majority observed at the commencement of [6], “[i]t is trite to say that what is reasonable in a particular case depends on the circumstances of that case”.

114    Third, as referred to above at [94], the applicant’s reliance on the request by the CPO for further information does not give rise to the inferences contended by the applicant, namely that: the information before the Delegate was insufficient to found a reasonable suspicion that the applicant had not been of good behaviour; there was a failure by the Delegate to obtain material that “obviously was available and centrally relevant” to the Revocation Decision; and the Delegate refrained from obtaining further information which would inform whether or not reasonable grounds existed on the basis that such information could be disclosed to the applicant. These inferences are not borne out on a fair reading of the submission. Indeed, as reflected in the covering submission, further information was sought before the Revocation Decision but not provided. The Delegate was aware further information was sought, but being satisfied of the precondition on the material before her, followed the recommendation of the CPO and revoked the applicant’s parole. The Delegate concluded it was appropriate in those circumstances to act under s 19AU(3)(ba), because she was satisfied that it was in the interests of the safety and protection of the community to do so. I note that after the further evidence was received, the applicant was notified of it by letter dated 28 September 2022 and provided with a further opportunity to make submissions as to why the revocation should be rescinded.

115    Fourth, as to the applicant’s submission that there is a need for a high degree of reasonableness, as previously explained, the manner and approach to assessing whether there are reasonable grounds to suspect, is that discussed in George v Rockett. There is no basis to graft additional requirements to that well-established concept.

116    These grounds are not established.

Grounds 6 and 7: failure to engage in an active intellectual process and/or illogicality

117    These grounds are as follows:

6.    The first respondent's delegate failed to engage in an active intellectual process in taking the decision, such that she constructively failed to exercise jurisdiction.

7.    The first respondent's delegate reasoned irrationally or illogically (including by doing so in a conclusory fashion) such that the decision was legally unreasonable.

Submissions

118    The applicant submitted that the Delegate’s reasons reveal a failure to engage in an active intellectual process. It was submitted that the Delegate’s letter dated 24 August 2022 merely identified material to which the Delegate had regard, without explaining how that information supported a conclusion that there were reasonable grounds to suspect the applicant had breached condition 1 of his parole. It was submitted that letter and the covering submission also failed to consider information that weighed against a finding that the applicant had breached his parole. The covering submission was said to reason illogically that extra weight could be placed on unproven information if the nature of the allegation was serious, reversing the recognition that the more serious an allegation, the less readily a decision-maker will be satisfied of its occurrence: cf Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The applicant submitted that the Delegate therefore constructively failed to exercise jurisdiction and reasoned irrationally or illogically (including by doing so in a conclusory fashion) such that the decision was legally unreasonable: Doan v Minister for Home Affairs [2019] FCA 1172 at [39], [53]-[63].

119    An additional source of illegality contended by the applicant was what was said to be undue focus on the NSWPF being signed off by superintendents. It was submitted that sign off, as opposed to sign off from a junior constable, could not make the information sufficiently probative.

120    The first respondent submitted that it is wrong for the applicant to regard the letter dated 24 August 2022 as constituting “reasons” for the Revocation Decision. It was submitted that, in any event, and more significantly, the covering submission sets out a careful process of analysis of the information provided in the NSWPF Report.

Consideration

121    I accept the first respondent’s submission that the letter dated 24 August 2022 is not a statement of reasons, and ought not to be read as such.

122    In any event, there is no proper basis to contend from that letter or the covering submission that the Delegate failed to engage in an active intellectual process. The covering submission sets out a careful process of analysis of the information provided in the NSWPF Report at [25], and also refers to and analyses the report provided by Corrective Services at [26]-[27], as well as the interrelationship between the two: for example at [29]. The covering submission also addressed issues such as there being no information about the source of the material and any impact that may have.

123    Moreover, the applicant’s contention that the covering submission was illogical because it advocated that “extra weight could be placed on unproven information” cannot be accepted. The premise underlying the submission is incorrect. The passage referred to at [28] of the covering submission must be read in its context. At [28] it was stated that:

The CPO considers that ‘reasonable suspicion’ must be considered in the context of particular cases. The CPO considers that it would be reasonable for the decision-maker to place weight on information that has yet to be proven if the nature of the alleged breach is serious, and allegations from a number of sources taken together may lead a decision-maker to a conclusion that the breach is more likely than not to have occurred.

124    Immediately before that passage is the summary and analysis of the NSWPF Report and the parole report from Corrective Services. Paragraph [28] is not to be considered in isolation. Further, as referred to above, the covering submission at [30] referred to the additional contextual information as to the nature of the gang wars contained in the NSWPF Report, which weighed in favour of its credibility.

125    I also note two additional matters raised by the applicant’s submissions. First, in so far as the applicant refers to Briginshaw, that case has no application. The precondition is as specified in s 19AU(1), regardless of the nature of the breaching conduct. Second, the applicant accepted during oral submissions that the fact the NSWPF Report was signed off at a high level, as opposed to by a more junior person may be a relevant factor in the assessment. It is just one of the circumstances in which the material is presented. Contrary to the applicant’s submission, there is no basis to suggest it was the determinative consideration.

126    These grounds are not established.

Ground 8: failure to consider the non-exercise of the discretion

127    This ground alleges:

8.    Upon concluding that the discretion to revoke the applicant's parole under s 19AU(1)(b) was enlivened, the first respondent's delegate failed to consider the exercise or non-exercise of that discretion and therefore constructively failed to exercise jurisdiction and failed to take into account mandatory considerations.

Submissions

128    The applicant submitted that in deciding whether or not to exercise the discretion to revoke parole, the Delegate was required to have regard at least to: the purposes of parole set out at s 19AKA; the nature and basis of the suspected breach; the nature and strength of evidence to support that suspicion; and the affected person’s subjective circumstances. It was submitted that the Delegate failed to undertake any consideration of whether or not to exercise the discretion once she concluded that the discretion was enlivened. The decision-maker was therefore said to have constructively failed to exercise jurisdiction and failed to take into account mandatory considerations.

129    The first respondent submitted that it is apparent that the discretion was exercised, and took issue with the applicant’s submission that there were mandatory considerations, submitting that, in any event, relevant matters were taken into account.

Consideration

130    A proper reading of the covering submission reflects that it is divided into: first, a consideration of whether there are reasonable grounds to suspect that the applicant has breached the first condition of his parole; and second, if so satisfied, the options as to what may be taken. Further analysis is then provided in relation to the question of whether the criteria for revocation without notice is satisfied, and if not, the alternative position. This is in the context where the Delegate had before her the covering submission and the underlying material attached to it.

131    The structure of the covering submission reflects a recognition that there is a discretion, and that it could be exercised with a number of possible outcomes: see, for example, at [58]-[59] above. There is no basis to suggest that the Delegate did not turn her mind to and exercise that discretion.

132    It is important to recall that the Revocation Decision was made without notice. I note again that although he has had the opportunity to provide submissions as to why the revocation should be rescinded, the applicant has provided no information since he was notified of the Revocation Decision (including material which could go to the question of the discretion). Moreover, as explained above, unlike s 19ALA, which sets out non-exhaustive considerations that may be taken into account when deciding whether to grant parole, no such provision exists in relation to the Revocation Decision. Even then, s 19ALA does not set out mandatory considerations: see, for example, Stephens at [60] and Roberts v Attorney-General (Cth) [2022] FCA 574 at [17]. The absence of even a provision setting out non-exhaustive considerations reflects the different decision that is being made.

133    In any event, the submission is artificial. Matters such as the nature and basis of the suspected breach and the nature and strength of evidence to support that suspicion were plainly considered in concluding that there were reasonable grounds to suspect the applicant had breached his parole. Given the Delegate’s conclusion as to the breach of condition 1, those considerations support the conclusion in [39] that:

It is open to you to find that Mr Ahmad poses a threat to the safety of the community and should be kept in custody. Matters supporting this view include the seriousness of the investigations and intelligence that he is ‘planning retaliation attacks to murder members of the Comanchero OMCG.’ It seems likely that any retaliation attack would involve a public place shooting, which poses a threat to the safety of the NSW community and NSWPF.

134    The applicant’s submission that s 19AKA, which refers to the purposes of parole, is a mandatory consideration on revocation, fails to grapple with the nature of the decision being made. The applicant pointed, inter alia, to the reference in the Explanatory Memorandum to breaches of parole conditions, and submitted that reflects it does apply to revocation: see above at [29]. The first respondent submitted that the Explanatory Memorandum does not suggest that s 19AKA applies to decisions to revoke parole.

135    I accept that the considerations relevant to revocation of parole are different. A federal offender, having been granted parole, is obliged to comply with the conditions imposed upon them, with a failure to do so giving rise to potential revocation. This is also reflected in the fact that if the precondition in s 19AU(1) is established, whether the revocation is with or without notice, the federal offender has opportunity to provide information either as to why their parole ought not be revoked, or the revocation rescinded: ss 19AU(2) and 19AX(2). Even if s 19AKA is relevant, it says nothing about whether it contains mandatory considerations. The text of the provision does not suggest that it does. In any event, as the respondent submitted, protection of the community is one of the three enumerated purposes of parole, and was plainly engaged in the context of the Revocation Decision.

136    I observe that the issue of the status of s 19AKA was referred to in Khawaja v Attorney-General (Cth) [2022] FCA 334, although in the context of a decision whether to grant parole under s 19AL(1). Thawley J concluded at [92] that it was unnecessary to reach a view about whether the purposes in s 19AKA were mandatory relevant considerations in that context, but observed, “nevertheless that the responsible exercise of Executive power would generally involve a consideration of, and an exercise of the power for, the purposes for which that power was conferred”. So much may be accepted. I note again that the power being exercised in this case is different, being the revocation of parole.

137    There was an artificiality about the applicant’s submissions on this topic. For example, it was submitted that the matters to be taken into account as a result of s 19AKA included the applicant’s reintegration into the community and his rehabilitation, while it was also implied that the Delegate was required to consider matters such as further conditions being imposed to address reoffending. However, the discretion only arises where the precondition has been satisfied. In this case, the discretion arose because there were reasonable grounds for suspecting a breach of condition 1, on the factual basis previously described. This is in a context where revocation can occur in circumstances of urgency, as was the case. The Delegate was satisfied that, based on the interests of ensuring the safety and protection of the community, the revocation should occur without notice. Further, this submission is divorced from the facts of this case. As noted above, the applicant has not put before the Delegate any material relevant to discretion. Nor has he identified any factual matter which he contends was relevant but not taken into account. In reaching her decision, the Delegate considered options short of revocation: see above at [58]. In any event, protection of the community, a purpose of parole in s 19AKA, was a matter taken into account.

138    It is important to recall that this ground is directed to the Delegate not exercising the discretion as to whether to revoke the applicant’s parole. For the reasons above, she plainly did.

139    Ground 8 is not established.

Ground 9: decision was taken to support suppression strategies

140    This ground alleges:

9.    The Decision was taken to support suppression strategies of the NSW Police, which was an improper purpose and involved taking into account irrelevant considerations (namely the need or desirability of supporting such strategies), and was therefore infected with jurisdictional error.

Submission

141    The applicant submitted that the paucity of evidence, absence of reasons, urgency with which the decision was taken (without obtaining supporting information) and failure to consider the non-exercise of the discretion to revoke the applicant’s parole, combined with the material placed before the decision-maker, support an inference that the decision was taken to support “suppression strategies” of the NSWPF. It was said to be the basis upon which the NSWPF sought the assistance of the first respondent.

142    The first respondent submitted that properly read, there is nothing in the covering submission to support the applicant’s contention.

Consideration

143    The premises underlying the applicant’s submission are not established. Moreover, there is no material in the covering submission to support an inference that the decision as to satisfaction of the precondition was taken to support “suppression strategies” of the NSWPF. Apart from [10], which is a direct quote from the NSWPF Report, the only reference in the covering submission to suppression strategy is in [39], which recommends that if the approach taken is to give the applicant notice of the intention to revoke, it be undertaken in a certain manner, “because providing him with notice may reveal sensitive NSWPF investigations and intelligence which could damage NSWPF suppression strategies”. Further, the applicant accepted in oral submissions that the consideration could be relevant to whether or not the discretion ought to be exercised.

144    There is no basis to suggest that the Delegate was not satisfied of the statutory precondition, and did not exercise her discretion in an appropriate manner.

145    This ground is not established.

Habeas corpus

146    As none of the applicant’s amended grounds of review are made out, the lawfulness of his detention is not in issue. As explained above, the authority for his detention comes from the warrant issued by the second respondent, and following the decision making process contained in sub-div B of div 5 of part IB of the Crimes Act.

147    As the applicant’s imprisonment is as a result of a judicial warrant, his submission that the onus is on the first respondent to prove the legality of the imprisonment is misconceived.

148    In the circumstances, there is no basis on which such a writ could properly arise. Relief in the nature of habeas corpus is refused.

Conclusion

149    As the applicant has not established any of the grounds, the application is to be dismissed, with costs.

Associate:

Dated:    27 October 2022