Federal Court of Australia

Lee v Attorney-General (Cth) [2023] FCA 952

ORDERS

THE COURT ORDERS THAT:

    The name of the respondent be changed to Attorney-General of the Commonwealth.

    The originating application for judicial review is dismissed.

    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

DOWNES J:

1    By his application, the applicant, Mr Anthony Lee, seeks judicial review of a decision made by a delegate of the respondent (the Attorney-General) refusing to make a parole order pursuant to s 19AL of the Crimes Act 1914 (Cth) (Refusal Decision).

2    For the following reasons, Mr Lee has failed to identify any jurisdictional error that would justify setting aside the Refusal Decision. This has the consequence that the application must be dismissed.

3    An order will also be made that the name of the respondent be changed to Attorney-General of the Commonwealth, which reflects the correct position.

Background

4    Mr Lee is a citizen of New Zealand.

5    On 3 October 2018, Mr Lee was convicted of the following Commonwealth offences:

(1)    five counts of obtaining financial advantage by deception pursuant to s 134.2(1) of the Criminal Code Act 1995 (Cth);

(2)    one count of attempting to obtain financial advantage by deception pursuant to s 11.1(1) and s 134.2(1) of the Criminal Code; and

(3)    two counts of using a forged document to induce a Commonwealth official pursuant to s 145.1(1) of the Criminal Code.

6    For these offences, Mr Lee was sentenced by the District Court of Queensland to a term of five years and ten months’ imprisonment, with a non-parole period of two years and six months.

7    On 2 August 2021, Mr Lee was convicted of two additional fraud offences and sentenced to a term of two years’ imprisonment. That sentence was ordered to be served concurrently for four months with the first sentence, and then suspended for three years.

8    The Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole: s 19AL(1) of the Crimes Act. If the Attorney-General refuses to make a parole order, the Attorney-General must reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal: s 19AL(2)(b) of the Crimes Act.

9    The Attorney-General refused to make a parole order in relation to Mr Lee in March 2021 and March 2022. On 20 March 2023, the delegate of the Attorney-General notified Mr Lee in writing of the Refusal Decision and the reasons for that decision as required by, and in accordance with, s 19AL(2)(a) of the Crimes Act.

10    Mr Lee remains in custody in Woodford Correctional Centre in Queensland. However, his Australian visa has been cancelled and he will be subject to deportation to New Zealand upon release.

11    Mr Lee must be reconsidered for parole at least once more before his head sentence expires on 2 August 2024: s 19AL(2)(b) of the Crimes Act.

Grounds of judicial review

12    By his originating application, Mr Lee raises the following grounds:

1.    The Applicant is applying to the Court on the Grounds of unfairness of treatment to the Applicant and making excuses for not approving Parole Release and that they do not understand that there are no courses for my convictions.

2.    There have been three (3) different Delegates who have assessed the 12 monthly Parole Release and there is inconsistency in their Reviews and the making up of excuses in each Refusal where in other Federal cases the Prisoner has been released on their Bottom Sentence for a lot larger convictions.

3.    The Applicants [sic] incarceration is costing the Australian Government unnecessary costs to keep the Applicant incarcerated for approximately $120k per year.

4.    The Applicant is 70 years of age and his Health is deteriorating and on heavy prescription medication.

13    Although these grounds were not framed by reference to specific categories of judicial review recognised at law, the Attorney-General acknowledged at the hearing that some grounds did fall under such categories, and prepared written submissions accordingly.

14    However, to the extent that Mr Lee’s grounds of review contend that the delegate did not make the correct decision, the Attorney-General correctly emphasised that this Court cannot engage in a review of the merits of the Refusal Decision: see, eg, Roberts v Attorney-General (Cth) (2022) 176 ALD 509; [2022] FCA 574 (Lee J) at [42].

15    Mr Lee’s originating application also sets out a number of matters which provide some background to the application and his circumstances. Those matters have been considered, but it is not necessary that they be set out in full. Where relevant, they will be addressed in these reasons.

Material before the Court

16    The question of whether the Attorney-General fell into legal error is to be considered primarily by reference to the Refusal Decision. However, it is not uncommon in cases of this kind to also consider the submission provided to the Attorney-General by the Attorney-General’s Department concerning whether Mr Lee should be granted parole (referred to as the Departmental Submission): see, eg, DYS21 v Attorney-General (Cth) (2021) 288 FCR 607; [2021] FCA 1331 (Bromwich J) at [13]; Stephens v Attorney-General [2021] FCA 204 (Abraham J) at [5]–[6].

Material which was before the delegate

17    On 15 March 2023, the Attorney-General’s Department provided the Departmental Submission and its attachments to the delegate.

18    The Departmental Submission considered the possibility of Mr Lee’s release on parole at length, and stated the Department’s recommendation that parole be refused. The attachments to the Departmental Submission included: the District Court of Queensland’s sentencing remarks dated 3 October 2018; Mr Lee’s earlier parole refusal notices; Mr Lee’s Parole Suitability Assessments dated 18 November 2020, 24 November 2021 and 29 November 2022; and a letter from the Commonwealth Parole Office to Mr Lee dated 10 February 2023, giving Mr Lee the opportunity to respond to concerns held about his suitability for release on parole (otherwise referred to as the adverse comments letter).

19    The Departmental Submission also attached a number of documents which Mr Lee had provided to the Attorney-General’s Department, including a letter containing responses to a number of matters raised in the adverse comments letter.

20    The matters which Mr Lee’s response addressed included:

(1)    the nature and circumstances of his offending, and the events surrounding his decision to plead guilty;

(2)    the decision-maker’s concerns that he lacked insight into his offending;

(3)    his behaviour in custody, including the custodial offences which he had committed since his entry into custody;

(4)    the decision-maker’s concerns that he had been assessed as having a “pro-criminal attitude”; and

(5)    his plans for employment and how he planned to support himself upon release.

21    Mr Lee also provided letters and emails of support from his family which indicated that his family would assist him “with accommodation”. However, neither Mr Lee’s response nor his supporting documents directly or specifically addressed the decision-maker’s concern that he did not have approved accommodation in which to live if released.

Material which was not before the delegate

22    In his judicial review application, Mr Lee seeks to rely on several new documents, namely:

(1)    Queensland Corrective Services records;

(2)    a parole release plan;

(3)    a resume;

(4)    a letter from Dr Matthew Yoong dated around 23 July 2018; and

(5)    an Accommodation Acceptance Letter dated 13 June 2023.

23    None of these documents was before the delegate, and Mr Lee did not explain why they should be considered as part of his application.

24    In any event, these documents do not assist in demonstrating jurisdictional error, such that their admission would not lead to a different result.

25    It is therefore not appropriate for leave to be granted to Mr Lee to rely upon this material, and leave is therefore refused.

Statutory scheme

26    Section 19AKA of the Crimes Act states the purposes of parole are (a) the protection of the community, (b) the rehabilitation of the offender, and (c) the reintegration of the offender into the community.

27    While those three purposes “cover different ground”, they interact and, in some respects, overlap: see Khawaja v Attorney-General (Cth) (2022) 293 FCR 396; [2022] FCA 334 (Thawley J) at [15]. No pre-eminence or priority is given to any one purpose.

28    Importantly, there is no entitlement to parole under the statutory scheme: Khawaja at [11].

29    Further, there is no prescribed procedure which the Attorney-General must follow in determining whether to make a parole order; rather, it is a matter for the Attorney-General to determine a procedure that affords procedural fairness and which avoids any unfairness or injustice: see Khazaal v Attorney-General [2020] FCA 448 (Wigney J) at [66].

30    The exercise of the power under s 19AL(1) of the Crimes Act must be exercised reasonably: Khawaja at [22].

31    Section 19ALA of the Crimes Act sets out a non-exhaustive list of matters that may (not must) be considered by the Attorney-General in making a decision under s 19AL. However, it makes clear that the matters in question must be known to the Attorney-General and be relevant to the decision.

Consideration

Grounds 1 and 2

32    Grounds 1 and 2 raise overlapping contentions and are appropriately dealt with together.

33    Mr Lee’s overarching position in relation to these grounds is that he was treated unfairly, and that the Refusal Decision was inconsistent with previous decisions to refuse him parole. Within this theme, Mr Lee advanced a number of disparate arguments which will now be addressed.

34    Mr Lee complains in his written submissions that he is not being “treated fairly” and that “[t]here is no Natural Justice [sic]”. By this, Mr Lee appears to contend that the Attorney-General failed to consider the case and supporting materials put forward by him, constituting an error of law and a breach of the rules of natural justice.

35    At the hearing, Mr Lee appeared to confirm this, stating that the Attorney-General had “failed to recognise [his] written communication and breached the laws of natural justice and …consider procedural fairness”.

36    In this case, where the Attorney-General invited Mr Lee to make submissions, procedural fairness required the delegate to consider any response to that invitation: Roberts at [37].

37    However, that is what occurred: the delegate did have regard to Mr Lee’s response to the adverse comments letter. The first page of the Refusal Decision states that Mr Lee’s response to the adverse comments letter had been considered by the delegate. The Refusal Decision also referred to aspects of Mr Lee’s response. Further, the delegate had regard to the Departmental Submission, which addressed Mr Lee’s response in detail.

38    Mr Lee also complains that the delegate “has not spoken to [him] personally”. However, Mr Lee did not point to any circumstances which suggest that such action was required by the delegate to ensure procedural fairness. In any event, there was no prescribed obligation for the delegate to speak to Mr Lee.

39    The delegate, having considered all of the relevant matters including Mr Lee’s response, decided to refuse to release Mr Lee on parole. Three primary reasons were cited for the refusal:

(1)    the nature and circumstances of Mr Lee’s offending, including the sentencing comments regarding the “substantial” amount of the fraud;

(2)    the fact that Mr Lee had “outstanding rehabilitative needs in relation to insight and financial management”, and did not “appear to have any post-release plans to manage [his] risk of future financial issues”; and

(3)    Mr Lee’s criminal history, which demonstrated a “pattern of offending behaviour”.

40    Each of these reasons led the delegate to conclude that Mr Lee’s release on parole “would not benefit [his] rehabilitation and lawful reintegration into the community” and “would pose an unacceptable risk to the safety of the community”. The delegate was lawfully able to have regard to such considerations in reaching his conclusion.

41    That Mr Lee will be subject to deportation upon release does not change or limit the delegate decision-maker’s ability to consider the protection of the community. The “community”, in this context, includes Australians staffing any correctional (or detention) centres in which he would be located prior to deportation and the New Zealand community to which he would be returned if deported: see Chukwuma v Attorney-General (2022) 177 ALD 565; [2022] FCA 948 (Rangiah J) at [40]–[41].

42    Mr Lee also complained that the delegate did not understand that there were no courses available for his conviction. However, the Departmental Submission to which the delegate had regard contradicts that assertion. At [40], it refers to a recommendation that Mr Lee undertake the Resilience Program to assist with his emotional wellbeing and coping skills, which recommendation Mr Lee received as a result of a Rehabilitation Needs Assessment that he completed on 6 March 2019. The Departmental Submission acknowledged at [41] and [42] that Mr Lee had not completed (and was not waitlisted for) any rehabilitative programs, but had completed one educational course.

43    The Refusal Decision concluded that Mr Lee had outstanding rehabilitative needs on the following bases:

(1)    Mr Lee had not demonstrated “sufficient insight” into his offending. Specifically, he did not appear to understand what motivated his offending, and had not accepted responsibility for his involvement. There was also no information before the delegate to suggest that he had expressed remorse for the impact of his offending on taxpayers and the Australian community, and no information to suggest that he appreciated the potential risk he posed to the community if he was released on parole; and

(2)    Mr Lee had unresolved issues in relation to financial management arising from the fact that he is still liable to pay a large reparation order in the amount of $820,241. Although Mr Lee had advised that he intended to repay this figure from his old age pension, the delegate held concerns with those plans, and considered that there was no information to confirm whether Mr Lee intended to engage with professional supports to assist with the financial stress that he may experience as a result of the outstanding reparation order.

44    Mr Lee objects to what he submits was a finding by the delegate that he is a risk to the community due to his declaration of bankruptcy. However, this is not a fair or accurate reading of the Refusal Decision which does not cite the declaration of bankruptcy as a reason for the decision. Instead, the Refusal Decision refers to Mr Lee’s bankruptcy in the context of his outstanding rehabilitative needs and post-release plans to manage his risk of future financial issues, which reasons have been identified at [43] above. The Refusal Decision relies on those reasons, in conjunction with Mr Lee’s lack of insight into his offending, to conclude that he presents a risk to the community and that his release “would not benefit [his] rehabilitation and lawful reintegration into the community”.

45    By his submissions, Mr Lee also objects to a number of findings by the delegate including: that he has not shown insight into his offending; that he does not present a risk to the community; and that he will be able to achieve “successful reintegration” into the community. Mr Lee also makes comparisons between his situation and other prisoners with more serious offences that have been released on parole. Each of these objections pertains to Mr Lee’s dissatisfaction with the outcome of the Refusal Decision, as opposed to the lawfulness of the process that led to it.

46    By raising these matters, Mr Lee confuses the nature of judicial review and invites the Court to descend into merits review of the Refusal Decision. As stated in Roberts at [42], this is not permitted on a judicial review application:

… Parliament has made clear that the Attorney-General may refuse to make a parole order, on the condition reasons for the decision are provided, and with the liberty to consider the factors in s 19ALA of the Crimes Act. If the Attorney-General does so, she has properly exercised the jurisdiction entrusted to her. Whether or not another person in the Attorney-General’s position would have come to the same decision is not to the point.

47    By his submissions, Mr Lee refers to his upbringing, his enquiries regarding accommodation and his plans for payment of the reparation order. To the extent that those matters rely on the fresh evidence sought to be adduced by him, they cannot be considered as leave to rely on that evidence has been refused. To the extent that those matters are an attempt to re-agitate arguments already advanced to the delegate, they fall into the category of merits review, which is not permissible.

48    In conclusion, Mr Lee was unable to identify any matters which demonstrate that he has not been afforded procedural fairness. The Attorney-General’s Department advised Mr Lee of the matters which it considered relevant to the parole decision, Mr Lee responded to each of those matters, and the delegate had regard to Mr Lee’s response in making the Refusal Decision.

49    The Refusal Decision was plainly within the delegate’s decisional freedom and there was no procedural unfairness in the decision making process.

50    It follows that grounds 1 and 2 must fail.

Ground 3

51    By this ground, the precise contention which Mr Lee is advancing is unclear. To the extent that this ground of review is advanced as an additional reason to grant parole, it falls into the category of merits review, which is not permitted for the reasons already given.

52    From a review of the Departmental Submission, the cost of incarceration was not a matter which was raised by Mr Lee prior to the making of the Refusal Decision, and the delegate was not otherwise required to take this matter into account when exercising the power under s 19AL(1) of the Crimes Act.

53    There is accordingly nothing which supports the conclusion that the delegate’s decision was infected by jurisdictional error as asserted in ground 3.

54    Ground 3 must therefore also fail.

Ground 4

55    Like ground 3, the precise contention which Mr Lee is advancing is unclear that is not otherwise an illegitimate attempt to reconsider the merits of the decision. And to the extent that it is contended that there was somehow an unreasonable or unlawful failure to consider issues concerning Mr Lee’s age and health, such a contention is not supported by the material.

56    Mr Lee provided information about these issues in his response to the adverse comments letter. The Departmental Submission, which was considered by the delegate in making the Refusal Decision, reveals an intelligible and rational assessment of the evidence regarding Mr Lee’s age and health. In particular, it includes a detailed analysis of Mr Lee’s response, specifically at [18] (sentencing comments about his medical history), [24] (Mr Lee’s age) and [27], [49], [71], [81], [85] and [92] (aspects of Mr Lee’s response which detailed health impacts).

57    While Mr Lee may disagree with the statements concerning his age and health in the Departmental Submission, and the Refusal Decision, that does not make the latter amenable to review.

58    For these reasons, ground 4 must also fail.

Conclusion

59    Mr Lee has failed to identify any jurisdictional error that would justify setting aside the decision made by the delegate of the Attorney-General.

60    The application for judicial review should be dismissed, with costs to follow the event.

Associate:

Dated:    15 August 2023