Federal Court of Australia

Baggaley v Attorney-General (Commonwealth) [2025] FCA 968

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant is serving a sentence of imprisonment for a Commonwealth offence involving the attempted importation of cocaine into Australia. On 7 March 2025, a delegate of the respondent, the Attorney-General of the Commonwealth of Australia, made a decision refusing to grant parole to the applicant.

2    The applicant has applied for judicial review of the respondent’s decision.

3    It is necessary to describe the factual background, the relevant legislative provisions and the respondent’s reasons in order to give context to the grounds of review and the parties’ submissions.

Background

4    On 27 July 2021, the applicant was sentenced in the Supreme Court of Queensland to a term of 25 years’ imprisonment for the offence of attempting to import a commercial quantity of a border-controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.1(1) of the Criminal Code Act 1995 (Cth).

5    The offence involved the applicant negotiating the purchase of a boat which was then used by the applicant, his brother and another man to collect some 512 kilograms of pure cocaine worth in excess of $130 million about 360 kilometres off the coast of Brunswick Heads in New South Wales.

6    The applicant was successful in an appeal against his conviction and a retrial was ordered. The applicant then pleaded guilty to the same offence on a different factual basis, including that he only became aware of the importation late in the piece and was reckless as to the identity of the drug.

7    On 4 November 2024, the applicant was resentenced to 13 years’ imprisonment with a non-parole period of 1,964 days. That was the number of days the applicant had already served in pre-sentence custody. The non-parole period therefore expired on 4 November 2024.

8    On 2 January 2025, the Director of the Commonwealth Parole Office (CPO) wrote to the applicant giving him an opportunity to respond to concerns about his suitability for release on parole. The applicant’s legal representatives responded on 31 January 2025. They provided a letter from The Health Retreat dated 16 January 2024 (sic 2025) confirming that the applicant had been accepted into a structured rehabilitation program, and a psychological assessment prepared by Dr Yoxall dated 24 July 2021. They also provided a letter written by the applicant dated 3 February 2025 in response to issues raised by the CPO.

9    On 4 March 2025, the CPO provided a briefing note to the respondent (the Departmental Submission). The Departmental Submission contained a detailed assessment of factors in favour of and against the applicant’s release on parole. The CPO recommended that the respondent refuse parole and sign an attached notice informing the applicant of the decision.

10    On 7 March 2025, the respondent (through a delegate) adopted the CPO’s recommendation by notating the Departmental Submission to indicate that parole would be refused (the refusal decision). The respondent’s delegate also signed a notice which advised of the refusal decision and provided reasons for that decision (the Statement of Reasons).

11    The Statement of Reasons provided, relevantly:

In making my decision, I have taken into account submissions made by you or on your behalf. I have had regard to the matters that weigh in favour of release on parole, including your willingness to engage in interventions, your motivation to find employment, and approved accommodation plans and acceptance into The Health Retreat.

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

1.     I have had regard to your criminal history.

Periods of incarceration and time spent on parole do not appear to have deterred you from offending again. While you have successfully completed two parole periods, the benefits of parole have failed to prevent and deter your offending behaviour.

Taking this information into account, I hold concerns with your ability to be of good behaviour and not violate any law, and cannot be satisfied that you are willing and able to comply with the conditions of a parole order. As such, I have determined that your release on parole at this time would not benefit your rehabilitation or lawful reintegration into the community, and would pose an unacceptable risk to community safety.

I consider that you would benefit from a further 12 months in custody to demonstrate a prolonged period of good behaviour, without incurring additional charges or being named the perpetrator of misconduct incidents - and progression through the security classification system.

2.     I have had regard to your ongoing rehabilitative needs relating to your mental health, substance abuse and insight.

I note that you are waitlisted to partake in the Low Intensity and Medium Intensity Substance Intervention programs and the Build Don’t Break – Resilience program in custody.

Although you have been accepted into a short residential rehabilitation program, there is no information about your longer term plans to engage with professional supports for your rehabilitative needs.

You have been involved in multiple misconduct incidents in custody and you appear to minimise and justify your behaviour. This suggests your level of insight may not be sufficient to prevent you from reoffending in the community.

I am not satisfied that you have sufficient insight or strategies in place to identify and mitigate situations that may place you at risk of reoffending if released. This includes how you will avoid pro-criminal associates and individuals who you have previously offended with, and how you, your family and friends will navigate your relationship with your brother. As such, I consider your release on parole at this time would not be in the best interests of your rehabilitation and poses a risk to community safety.

3.    I have had regard to the short and long-term risks to the community of you remaining in custody. I consider on the evidence above that your release on parole at this time poses a risk to the community. I have had regard to other risks that may be mitigated by your release on parole at this time, including that you would be able to experience the benefits of supervision in the community. I consider you have ongoing rehabilitative needs in relation to your insight and substance abuse.

(Underlining added.)

The grounds of review

12    On 4 April 2025, the applicant filed an originating application for judicial review of the refusal decision. The applicant then gained pro bono representation, following which, an amended originating application was filed on 15 May 2025.

13    The applicant’s amended grounds of review (omitting particulars) are as follows:

1.     The impugned decision is affected by error because it was based upon the existence of a particular fact, and that fact did not exist, such that there was no evidence or other material to justify the making of the decision within the meaning of ss 5(1)(h) and (3)(b) of the [Administrative Decisions (Judicial Review) Act 1977 (Cth)], or otherwise involved an error of law within the meaning of s 5(1)(f) of the ADJR Act.

2.     A breach of the rules of natural justice occurred in connection with making the decision within the meaning of s 5(1)(a) of the ADJR Act.

3.     The making of the impugned decision was an improper exercise of power conferred on the Respondent by the Crimes Act because no reasonable person could have so exercised the power within the meaning of ss 5(1)(e) and (2)(g) of the ADJR Act.

4.     The making of the impugned decision was an improper exercise of power conferred on the Respondent by the Crimes Act because they failed to take into account a relevant consideration in making the impugned decision within the meaning of s 5(1)(e) and (2)(b) of the ADJR Act.

5.    The Respondent failed to provide adequate reasons under s 19AL(2) of the Crimes Act and thereby failed to observe procedures that were required by law to be observed in connection with the making of the impugned decision under s 5(1)(b) of the ADJR Act, or the decision involved an error of law within the meaning of s 5(1)(f) of the ADJR Act, or the Respondent otherwise constructively failed to exercise s 19AL(1) of the Crimes Act.

Statutory provisions

14    Section 19AKA of the Crimes Act 1914 (Cth) specifies the purposes of parole as follows:

19AKA    Purposes of parole

The purposes of parole are the following:

(a)    The protection of the community;

(b)    The rehabilitation of the offender;

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

15    Section 19AL of the Crimes Act provides for the making of parole orders by the Attorney-General, and relevantly states:

19AL    Release on parole—making of parole order

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

…

(1A)    If the Attorney-General does not, under subsection (1), make, or refuse to make, a parole order for a person before the end of the non-parole period referred to in that subsection, the Attorney-General must, as soon as practicable after the end of that period, make, or refuse to make, a parole order for the person.

(2)    If the Attorney-General refuses to make a parole order for a person under subsection (1) or (1A), paragraph (b) of this subsection, or subsection (2A), (6) or (7), the Attorney-General must:

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

(i)    informs the person of the refusal; and

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

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

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

…

16    Section 19ALA provides:

19ALA     Matters that may be considered in decisions about parole orders

(1)    In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision:

(a)    the risk to the community of releasing the person on parole;

(b)    the person’s conduct while serving his or her sentence;

(c)    whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;

(d)    the likely effect on the victim, or victim’s family, of releasing the person on parole;

(e)    the nature and circumstances of the offence to which the person’s sentence relates;

(f)    any comments made by the sentencing court;

(g)    the person’s criminal history;

(h)    any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;

(i)    the behaviour of the person when subject to any previous parole order or licence;

(j)    the likelihood that the person will comply with the conditions of the parole order;

(k)    whether releasing the person on parole is likely to assist the person to adjust to lawful community life;

(l)    whether the length of the parole period is sufficient to achieve the purposes of parole;

(m)    any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

(2)    Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL.

17    Section 19AN provides:

19AN    Parole order is subject to conditions

A parole order:

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

(b)    if the parole order specifies in accordance with subsection 19AL(3) that the person is to be released subject to supervision—is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a parole officer or other person specified in the order and obey all reasonable directions of that officer or other person; and

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

18    Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) sets out the grounds upon which an administrative decision may be reviewed:

Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court…for an order of review in respect of the decision of any one or more of the following grounds:

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

…

(d)     that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)     that the decision involved an error of law, whether or not the error appears on the record of the decision;

…

(h)     that there was no evidence or other material to justify the making of the decision;

(j)     that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

…

(b)    failing to take a relevant consideration into account in the exercise of a power;

…

(g)     an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

…

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

Consideration

Ground 1: Whether the respondent made a decision based upon a particular fact of which there was no evidence or other material upon which to justify finding that fact

19    The applicant’s first ground of review relies on ss 5(1)(h) and (3)(b) of the ADJR Act. He argues there was no evidence or other material supporting the respondent’s finding that the applicant had an ongoing rehabilitation need for substance abuse.

20    The applicant’s submission commences with the proposition that the respondent’s delegate did not consider the Departmental Submission. The applicant points to the absence of any specific reference to the Departmental Submission in the Statement of Reasons and that there were only three days between the respondent receiving the Departmental Submission and making the refusal decision. The applicant submits the consequence is that the no evidence ground should be assessed by reference only to the content of the Statement of Reasons, and not the content of the Departmental Submission.

21    The applicant argues that even if the delegate did consider the Departmental Submission, there is no evidence or other material within that submission to support the finding that the applicant has an ongoing rehabilitation need for substance abuse.

22    Dr Yoxall, a psychologist, provided a report dated 24 July 2021 indicating that the applicant turned to alcohol to numb his emotional distress after being suspended from high-level sport in 2005 and that it was at that time that he first tried recreational drugs. The applicant argues the report is not capable of supporting the finding that he has an ongoing rehabilitation need for substance abuse. The applicant also argues that his willingness to participate in rehabilitative programs is not evidence of any ongoing rehabilitation need, asserting that his engagement with any program was done merely to signal his willingness to address concerns raised by the CPO.

23    The respondent points to a number of aspects of the material before the delegate which are submitted to support the finding that the applicant had an ongoing need for rehabilitation for substance abuse.

24    I will commence by considering the issue of whether the respondent’s delegate considered the Departmental Submission.

25    The applicant bears the onus of proof in establishing that, on the balance of probabilities, the respondent did not consider the Departmental Submission. In Lazarus v Attorney General (Cth) [2024] FCA 1021 (Lazarus), Abraham J observed:

[31]    …regard can be had to the Departmental Submission in determining the material before the Delegate, and assessing whether that material could support the inference that he had applied the wrong test or was not “in reality” satisfied of the requisite matters. In having regard to the Departmental Submission, it should be read as a whole; parts should not be taken out of context.

    …

[34]    I also note the Court should be cautious in drawing inferences about what a decision-maker did or did not do, read or consider in exercising a statutory power, in the absence of any direct evidence about these matters. That said, in this case, the purpose of the Departmental Submission was to provide the Delegate with information to make the decision.

(Citations omitted.)

26    Justice Abraham also referred to the Full Court’s decision in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao) at [48] which stated, relevantly:

…a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof.

27    Where a decision-maker appears to have worked through voluminous material with improbable speed, it might be inferred that they failed to give active intellectual engagement to the material before them: see Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335 at [63], [101].

28    In this instance, the delegate had three days to consider the Departmental Submission of 147 pages. The numerous references in the Statement of Reasons to matters discussed in the Departmental Submission (for example, the applicant’s waitlisting for programs, his misconduct in custody, his absence of insight, his acceptance into a residential rehabilitation program and his completion of two previous parole periods) suggest that the delegate read and considered the Departmental Submission. In addition, the delegate specifically stated that he had taken into account submissions made by the applicant, or made on his behalf, and that he had regard to matters weighing in favour of release on parole, including the applicant’s willingness to engage in interventions, his motivation to find employment, approved accommodation plans and acceptance into The Health Retreat. In the face of the delegate’s assertion that he considered those matters and the absence of anything of sufficient substance to indicate that he did not do so, I am unable to draw any inference that the delegate failed to consider the Departmental Submission.

29    I will turn to consider the applicant’s first ground of review. The ground relies on ss 5(1)(h) and (3)(b) of the ADJR Act.

30    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), Mason CJ discussed the relationship between s 5(1)(f ) (the “error of law” ground) and s 5(1)(h) (the “no evidence” ground). His Honour observed at 355-6 that it had been accepted prior to the ADJR Act that, “the making of findings and the drawing of inferences in the absence of evidence [was] an error of law”. His Honour considered the preferable view to be that s 5(1)(f) embraced the “no evidence” ground as it had been accepted and applied in Australia before the enactment of the ADJR Act and that the “no evidence” ground in s 5(1)(h), as elucidated in s 5(3)(a) and (b), expanded that ground of review: Bond at 358.

31    The applicant relies upon Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 (Curragh Mining), where Black CJ (Spender and Gummow JJ agreeing) held at 220-221 that:

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.

32    In Curragh Mining at 223, Black CJ held that the applicant must not only show there was no evidence before the decision-maker of a particular fact, but must also positively show that the fact did not exist:

It remains to consider the concluding words of s 5(3)(b): “and that fact did not exist.” Since the ground in s 5(1)(h) is a “no evidence” ground, and since s 5(3)(b) requires, in that context, that it be established that the person who made the decision based the decision on the existence of a particular fact as a requirement for making out the ground, the concluding words “and that fact did not exist” must be taken to impose an additional requirement. In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 519-521 Wilcox J examined the history and meaning of s 5(3)(b)….The applicant was required to negative the fact and, as his Honour noted, this may constitute a heavy burden, especially where the facts are obscure. But the language of s 5(3)(b) shows that its concluding words do impose an additional requirement and the history of the section…tends to confirm that this is so.

33    In Bibawi v Australian Human Rights Commission [2021] FCA 1476, Greenwood J, relying on Curragh Mining, observed at [80]:

To succeed on this ground (s 5(1)(h) having regard to s 5(3)(b) of the AD(JR) Act), the Court must be satisfied that the decision was “based on” the existence of a “particular fact”, that is, a particular fact critical to the making of the decision; that there was no evidence or other material to support the finding of that particular fact; and that it could be shown that the particular fact did not exist.

34    In Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 (Rajamanikkam), the High Court considered ss 476(1)(g) and (4) of the Migration Act 1958 (Cth), which are identical to ss 5(1)(h) and (3) of the ADJR Act respectively. There has been conjecture about whether the High Court effectively overturned Curragh Mining by deciding that it is unnecessary for an applicant to satisfy s 5(1)(h) itself if ss 5(3)(a) or (b) are established. The question is whether s 5(1)(h) (that there was no evidence or other material to justify the making of the decision) is a cumulative criterion along with ss 5(3)(a) or (b), or whether satisfying ss 5(3)(a) or (b) amounts to satisfaction of s 5(1)(h). In Rajamanikkam, Gaudron and McHugh JJ expressed the view in obiter dicta at [53]-[56] that the precise content of the ground in s 5(1)(h) is “identified by” ss 5(3)(a) and (b). Justice Kirby at [111] indicated that s 476(4) was “an exposition of the particular circumstances” in which s 476(1)(g) applies, but dissented in the outcome. However, Gleeson CJ at [34] and [41] rejected the proposition that the ground in s 476(1)(g) is made out merely by satisfaction of s 476(4), as did Callinan J at [151].

35    In Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; 264 ALR 447 (Sunchen), Perram J considered at [38]-[39] that the ratio decidendi of Rajamanikkam did not overturn Curragh Mining and that the approach taken in the latter case remains applicable. Justice Perram noted at [38] that the authors of Judicial Review of Administrative Action (4th ed, 2009) had taken the view that because Kirby J agreed with the position of Gaudron and McHugh JJ, the consequence was that Curragh Mining had been overturned. However, in the most recent edition of the text (7th ed, 2022), the learned authors acknowledge that as Kirby J’s judgment in Rajamanikkam was in dissent, it cannot be counted in assessing the impact of Rajamanikkam upon Curragh Mining and therefore, Rajamanikkam did not overturn Curragh Mining. I will adopt that approach, such that s 5(1)(h) is a cumulative criterion.

36    Therefore, for the applicant to succeed in his argument relying on ss 5(1)(h) and (3)(b), he must demonstrate that:

    the decision to refuse parole was based on the finding that he had an ongoing need for rehabilitation for substance abuse;

    there was no evidence or other material to support the finding that he had an ongoing need for rehabilitation for substance abuse; and

    he does not in fact have an ongoing need for rehabilitation for substance abuse.

37    In the Statement of Reasons, the delegate states, “I have had regard to your [the applicant’s] ongoing rehabilitative needs relating to your mental health, substance abuse and insight”. It can be accepted that the respondent found the applicant has an ongoing need for rehabilitation for substance abuse. The applicant submits that there was no evidence or other material to support that finding.

38    The second requirement of “no evidence or other material” is strict – where there is a skerrick of logically probative evidence present, the ground cannot succeed: Wang v Australia Securities and Investments Commission [2019] FCA 1178 at [68] (Bromwich J).

39    The Departmental Submission, under the heading “Substance use”, stated relevantly:

111.    The CPO considers Mr Baggaley has ongoing rehabilitative needs in relation to substance use. The sentencing court noted Mr Baggaley turned to alcohol after his sporting career ended as a way to numb the emotional distress he experienced, and as self-medication for depression that he did not understand he was suffering. Dr Yoxall’s psychological assessment reports Mr Baggaley’s associations and mental health were a factor in his drug use and subsequent offending. Dr Yoxall considers substance abuse to be a risk pathway, although not the highest risk factor. Mr Baggaley’s mental health is linked to his substance use.

112.    QCS reported that Mr Baggaley’s substance abuse is historic, and that he is waitlisted to attend the Low-Intensity Substance Intervention. Mr Baggaley states that other higher-risk inmates were prioritised to attend these programs, however he submits that due to his own persistence he was able to complete the Short Substance Intervention program on 30 September 2024.

113.    In his submissions to the CPO, Mr Baggaley demonstrates his willingness and motivation to participate in criminogenic interventions including residential rehabilitation. The CPO notes that if Mr Baggaley remains in custody there is no timeframe for when he can access these programs. QCS reported that the interventions he is waitlisted for are available in the community. If released, Mr Baggaley will complete an intensive residential rehabilitation program prior to further outpatient treatment, and QCS will refer him to relevant programs in the community.

40    The applicant does not challenge the accuracy of these passages of the Departmental Submission. They indicate the applicant had engaged in drug use which led to his offending, that his drug use was associated with his mental health and that the applicant himself recognised he continued to require rehabilitation for substance abuse through his willingness and motivation to participate in residential rehabilitation. They provide ample support for the respondent’s finding that the applicant had an ongoing need for rehabilitation for substance abuse.

41    The applicant relies on Dr Yoxall’s statement that:

Mr Baggaley has a history of alcohol and drug misuse which contributed to law violations. However he does not have a current drug or alcohol problem.

42    In this passage, Dr Yoxall appeared to record the applicant’s own reporting, rather than any clinical assessment. In any event, Dr Yoxall went on to say that the risk factors included, “his previous drug dependence and misuse”. Accordingly, Dr Yoxall’s report provided support for the delegate’s view that the applicant had an ongoing need for substance abuse rehabilitation.

43    The applicant also provided a letter from The Health Retreat indicating that he had been accepted into a rehabilitation program. The letter stated:

It is important to note that our programs place significant focus on clients’ addiction issues, particularly the underlying factors that have led to their dependency. Our therapists are trained to help clients overcome their addictions by addressing the root causes that prompted self-medication.

44    The Departmental Submission also notes that as at 21 November 2024, the applicant was on a waitlist in prison for a Low-Intensity Substance Intervention program and a Moderate-Intensity Substance Intervention program.

45    During the hearing, the applicant’s counsel asserted that the applicant had merely agreed to enrol in substance abuse courses to demonstrate his cooperation with the CPO and willingness to address their concerns. However, counsel did not point to any evidence in support of that claim. The delegate was entitled to regard the applicant as having recognised, through his repeated efforts to engage in substance abuse courses, that he had an ongoing need for rehabilitation for substance abuse.

46    There was ample evidence to support the delegate’s finding that the applicant had an ongoing need for rehabilitation for substance abuse.

47    Further, the applicant must demonstrate that he does not in fact have an ongoing rehabilitation need for substance abuse. That is not demonstrated merely by the applicant’s assertion that he is fully rehabilitated, the QCS’ description of his substance abuse as “historic” or Dr Yoxall’s recording that “he does not have a current drug or alcohol problem”. The applicant’s lengthy history of substance abuse (even accepting his claim that he had been abstinent for some years), his apparent self-awareness of his need for substance abuse rehabilitation courses and the absence of any expert evidence demonstrating that he is fully rehabilitated, mean the applicant has not demonstrated that he does not have an ongoing need for rehabilitation for substance abuse.

48    The applicant’s first ground of review must fail.

Ground 2: Whether the respondent denied the applicant procedural fairness by failing to take the applicant’s submissions into account

49    The applicant’s second ground relies on s 5(1)(a) of the ADJR Act.

50    The applicant contends he was denied procedural fairness because his letter dated 3 February 2025, explaining his conviction and sentence for possessing two vials of steroids in prison on 15 July 2023, was not taken into account. The applicant’s letter stated, amongst other things, that the sentencing judge had indicated the applicant had good prospects of rehabilitation and would benefit from being released into the community.

51    The applicant submits that the Statement of Reasons fails to meaningfully engage with the content of his letter and reflect the delegate’s failure to read and understand the principal submissions that were raised. The applicant contends that the phrase in the Statement of Reasons, “I have taken into account the submissions made by you or on your behalf”, is a general statement and does not indicate that the delegate took the applicant’s letter into account.

52    The respondent contends that the Departmental Submission contained an outline of the events on 15 July 2023 and of the applicant’s letter dated 3 February 2025. The respondent also contends that the Statement of Reasons is only required to state the reasons for the refusal of parole, rather than stating factors in favour of granting parole.

53    A decision-maker must afford procedural fairness in the exercise of power under s 19AL of the Crimes Act: Khazaal v Attorney-General [2020] FCA 448 at [66] (Wigney J). Procedural fairness requires that a person who may be affected by a decision be informed of the case against them and be given an opportunity to answer it: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ).

54    In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021), Kiefel CJ, Keane, Gordon and Steward JJ held at [24]-[27]:

[24]    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman (1995) 57 FCR 451, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

[25]     It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26]     Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

[27]    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(Underlining added.)

55    The use of general statements by decision-makers to the effect that everything that has been submitted has been taken into account was discussed by Thawley J in Khawaja v Attorney-General (Cth) (2022) 293 FCR 396 (Khawaja) as follows:

[100]    There is a danger in making generalised statements that everything a person has submitted has been taken into account, at least if the generalised statement is unaccompanied by an identification of what the decision-maker understood the principal submissions to be:

(1)    First, it necessarily means that the decision-maker’s understanding of the central submissions are not articulated and can therefore lead to a failure to appreciate the real issues which the affected person has raised for consideration. The precise identification of what has been submitted brings rigour to the intellectual process involved in making a decision because it usually results in the submission being considered and addressed.

(2)    Secondly, the use of generalised statements can lead to the undesirable perception that formulaic expression is being used to mask a lack of proper consideration to an issue raised in the context of a decision which has significant consequences — see, in a different context: Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] . It is one thing for a person to receive a decision which reveals that his or her main submissions were considered and rejected; it is quite another for the person to have his or her case rejected by a decision which is silent on the principal submissions the person raised.

[101]    The use of a generalised statement that everything a person has submitted has been taken into account does not shield from scrutiny the question whether the decision-maker in fact took the submissions into account. In the absence of some other basis in the reasons or circumstances for inferring that a particular submission was taken into account, a generalised statement that “all submissions were taken into account” will often not prove to be a reliable basis to infer that the decision-maker in fact took a particular submission into account in any meaningful way — see, in a different statutory context: Minister for Home Affairs v Omar (2019) 272 FCR 589 at [43(g)]. The position is analogous to a generalised statement that ‘all of the evidence was considered’. Such generalised statements do not discharge the obligation, where it exists, to refer to the evidence on which material findings were based and nor does it shield from scrutiny the consideration, if any, which was in fact given to the evidence.

(Some citations omitted.)

56    Justice Thawley did not suggest that it is improper or an error for a decision-maker to make a general statement that they have taken all the submissions into account. However, his Honour emphasised that such a statement does not shield the decision-maker from scrutiny of whether they in fact took the submissions into account. That question turns upon what inferences ought to be drawn from the structure, tone and conduct of the reasons considered as a whole, and the statutory context: see Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [89].

57    The Departmental Submission contained an analysis of the material and information relevant to the parole decision. It analysed factors in favour of and against the applicant’s release on parole before making the recommendation that the respondent refuse parole. The Statement of Reasons adopted by the respondent did not deal with the factors favouring release on parole.

58    That approach is consistent with s 19AL(2)(a)(ii) of the Crimes Act, which provides that the Attorney-General must give a written notice that includes “a statement of reasons for the refusal”. In Salgado v Attorney-General (Cth) [2023] FCA 984, Lee J held:

[19]    … It is plain [the delegate] was not required to set out all of the reasons she took into account, in particular, those pointing in favour of Mr Salgado’s release on parole.

[20]    Furthermore, as I explained in Roberts (at 514–515 [24]), reasons will not be inadequate merely because they were brief, or because there was evidence, other material or a different path of reasoning by which a different conclusion could have been reached, or the merits of the case re-argued.

[21]    It was not incumbent upon the Delegate to refer to any particular circumstance in the Refusal Notice, nor was she required to refer to a shopping list of all or most factors raised on the material before her. The Delegate was at liberty to determine the factors of importance in this case and make a decision in view of those factors. She was required to explain the reasons for her decision in the Refusal Notice, and did so, providing the following three bases for refusing Mr Salgado’s release on parole…

(Citations omitted.)

59    The applicant contends that his letter dated 3 February 2025, addressing his conviction and sentence for possessing steroids on 15 July 2023, was not taken into account. However, the letter and the events on 15 July 2023 were addressed in the Departmental Submission. I have rejected the applicant’s claim the delegate did not consider the Departmental Submission. The Statement of Reasons must be read in conjunction with the Departmental Submission.

60    The applicant submits that the Statement of Reasons fails to meaningfully engage with the content of the applicant’s submissions, suggesting that the delegate failed to read and understand the submissions. However, the Statement of Reasons was only required to state the reasons for refusing parole and was not required to engage in an analysis of the factors favouring parole. In any case the delegate’s comment that the applicant had been, “involved in multiple misconduct incidents in custody and…appear[ed] to minimise and justify [his] behaviour”, encompasses the 15 July 2023 event. The appropriate inference is that the delegate considered the applicant’s letter.

61    I am not satisfied that the respondent failed to take into account the applicant’s submissions contained in his letter of 3 February 2025.

62    The applicant’s second ground of review must fail.

Ground 3: Whether the respondent’s decision to refuse parole was unreasonable

63    The applicant’s third ground relies on ss 5(1)(e) and (2)(g) of the ADJR Act. The applicant also relies on the principles in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li).

64    The applicant contends that the respondent’s decision to refuse parole is unreasonable on the basis it lacks an evident and intelligible justification. He submits that the delegate’s finding that the applicant had an ongoing rehabilitation need for substance abuse was baseless, and that the respondent’s reliance on this baseless fact to refuse parole makes the decision unreasonable.

65    The applicant also submits that the decision to refuse parole was unreasonable because the respondent purported to consider the long and short-term risks to the community of releasing the applicant on parole without articulating those risks. The applicant also asserts the respondent failed to consider whether conditions could be imposed to mitigate those risks; or the potential benefits of releasing the applicant, with respect to achieving the purposes of parole.

66    The respondent contends that the delegate’s finding that the applicant had an ongoing rehabilitation need for substance abuse was justified and not a “baseless fact”. The respondent also submits that the Departmental Submission and the Statement of Reasons evince the delegate’s consideration of the factors that the applicant asserts were not considered.

67    Justice Thawley held Khawaja at [22]:

The power to grant or refuse parole in s 19AL(1) is also conditioned on an implicit requirement that it be exercised reasonably in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li).

68    In Li it was held by Hayne, Kiefel and Bell JJ at [76] that:

Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

69    A decision which lacks an evident and intelligible justification includes a decision which no reasonable person could have arrived at: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [10].

70    Given that courts will not lightly interfere with the exercise of a statutory power involving an area of discretion, the test for unreasonableness is necessarily stringent: SZVFW at [11]. There is an area of decisional freedom in which the decision-maker has genuinely free discretion, and within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Eden) at [62].

71    Determining whether a decision is unreasonable involves construing the relevant statute and evaluating the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with common law principles concerning reasonableness in decision-making: Li at [90]; Eden at [63]. The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Eden at [63].

72    The reasons for the decision are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Eden at [64]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45]-[47]. The evidence and other material before the decision-maker may also be informative: Roberts v Attorney-General (Cth) [2022] FCA 574 at [25].

73    I have already rejected the applicant’s submission that there was no evidence or material to support the finding that the applicant had an ongoing rehabilitation need for substance abuse. The material discussed in respect of Ground 1 provides an evident and intelligible justification for that finding. I will turn to consider whether the decision was otherwise unreasonable.

74    While s 19ALA of the Crimes Act sets out a number of matters the respondent may have regard to when deciding whether to grant parole, its language makes it clear that none of the enumerated considerations are mandatory considerations, and that the respondent may also consider other factors not indicated in s 19ALA.

75    The delegate was not satisfied that the applicant would be able to comply with the conditions of a parole order, given his criminal history and lack of insight or strategies to identify and mitigate structures that may place him at risk of reoffending. The delegate found the applicant’s release on parole at that time would not benefit the applicant’s lawful reintegration into the community and would pose an unacceptable risk to community safety. The delegate took into account the multiple incidents of misconduct committed by the applicant in custody.

76    I am not satisfied that the delegate failed to consider the long and short-term risks to the community, whether parole conditions could be imposed to mitigate those risks, or the potential benefits of releasing the applicant with respect to achieving the purposes of parole.

77    The Departmental Submission referred to factors weighing for and against the granting of parole, including the rehabilitation of the applicant, his reintegration into the community and the protection of the community. The Statement of Reasons does not include any express evaluation of the factors weighing in favour of parole, but it did not have to. The mere presence of some factors weighing in favour of parole in the Departmental Submission does not demonstrate that the delegate made a decision lacking an evident and intelligible justification. It was a matter for the delegate to determine the relevance, and weight, of each of those factors. In my opinion, the delegate’s reasons identify an evident and intelligible justification for the decision to refuse parole.

78    The applicant’s third ground of review must fail.

Ground 4: Whether the respondent failed to take into account relevant considerations

79    The applicant relies on ss 5(1)(c) and (2)(b) of the ADJR Act. The latter provision refers to, “failing to take a relevant consideration into account in the exercise of a power”.

80    The applicant contends that, considering the subject matter, scope and purpose of s 19AL of the Crimes Act, the respondent was bound to take into account a number of relevant considerations but failed to do so. These are asserted to be:

a.    The risks associated with the Applicant not being released on parole.

b.    The conditions that could be imposed on a grant of parole to mitigate the risks associated with him being released on parole.

c.    The negative impact of not granting him parole on his rehabilitation and reintegration into the community.

d.    The fact that [the] Applicant’s eligibility date [for parole] had been fixed by the sentencing judge, and the reasons why the judge fixed that date to ameliorate the Applicant’s sentence.

e.    The Applicant’s inability to access the further intervention programs the decision maker [considered] would address his “ongoing rehabilitation needs relating to ... mental health, substance abuse and insight” and the absence of any information about the timeframe within which he might be able to access those programs.

81    It may be noted that each of the factors relied on by the applicant refers to facts that are specific to his personal circumstances.

82    The respondent contends that the delegate did take into account the enumerated factors, or, alternatively, that the decision-maker was not bound to take these factors into account.

83    The practice of administrative law is often beleaguered by confusion about what constitutes a “relevant consideration” which a decision-maker is bound to take into account. A decision-maker may be bound to take into account a factor or matter in at least two common contexts.

84    The first is where, as a matter of statutory construction, the decision-maker is bound to take a particular factor into account either expressly or by implication from the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Peko Wallsend).

85    The second is that a decision maker-may be required to consider a “substantial, clearly articulated argument” or one which “clearly arises on the material”: Plaintiff M1/2021 at [25]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]. The obligation may extend to considering evidence or material, depending on the circumstances of the case and the nature of the document: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [52]-[56].

86    Section 19ALA describes factors that the decision-maker may take into account. The provision does not specify any factors that must be taken into account in making a parole decision.

87    The applicant contends that the five factors he relies on are “relevant considerations” that the respondent was bound as a matter of statutory construction to take into account. The applicant relies on Nijp v Parole Board Queensland [2024] QSC 104, where Applegarth J held at [109] that, “in the circumstances of this case, and especially in the light of the submissions that were made, the [Queensland Parole Board] was required to consider the future release risk if the applicant did not start and complete an [Inmate Security Oversight Program] until much closer to his full-time release date”. His Honour also stated at [109] that the Board “failed to take into account a relevant consideration”. However, the reference to “the circumstances of this case” and “the submissions”, coupled with the absence of an explicit construction of the relevant statutory provision, suggests that his Honour was referring to the second category of cases I have described, not the first. I consider Queensland Parole Board v Pangilinan [2016] 1 Qd R 419, upon which the applicant also relies, to also be within the first category.

88    In Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [23], Gleeson CJ and McHugh J emphasised that for a claim of failure to take into account a relevant consideration within s 5(2)(b) of the ADJR Act to succeed, “there must be found in the legislation an implied obligation on the Minister to examine and investigate the contention at the level of particularity involved in the submission”. It may be seen that each of the five factors relied on by the applicant are particular to the applicant’s personal circumstances, such that they cannot be, as a matter of statutory construction, factors the legislature intended the respondent to be bound to take into account.

89    Accordingly, the factors relied on by the applicant are not “relevant considerations” within s 5(2)(b) of the ADJR Act.

90    In the course of oral argument, the applicant’s counsel raised an alternate argument that the respondent was required to take the five factors relied on by the applicant into account as substantial and clearly articulated arguments or cogent evidence. The applicant is required, as a first step, to show that the delegate failed to consider these factors by failing to give active intellectual attention to the applicant’s representations: Carrascalao at [43]-[46]; Navoto at [87].

91    In assessing the applicant’s submission, it must be borne in mind that the respondent was required to set out the reasons for refusing parole, and not necessarily the factors favouring parole.

92    The first factor that the applicant submits was not taken into account is the risks associated with the applicant not being released on parole and the third factor was the negative impact of refusing parole on the applicant’s rehabilitation and reintegration. The Departmental Submission indicates at [119]:

In taking all the above information into account, the CPO considers Mr Baggaley has opportunities to make some rehabilitative gains in custody, however the timeframe for this and the nature of the programs he will be able to participate in is uncertain. If granted parole, Mr Baggaley will be able to access programs in the community, and on immediate release would attend residential rehabilitation which offers a broad spectrum of rehabilitation support. This is likely to provide some immediate rehabilitative benefits.

93    However, the Statement of Reasons concludes that release on parole “at this time” would not benefit the applicant’s rehabilitation or lawful reintegration into the community; and his rehabilitation and reintegration would, instead, benefit from a further 12 months in prison. Accordingly, the delegate considered that refusing parole would have a positive, not negative, impact on the applicant’s rehabilitation and reintegration. I do not accept that the respondent failed to take into account the first and third factors relied on by the applicant.

94    The second factor that the applicant submits was not considered is the conditions that could be imposed on a grant of parole to mitigate any risks. However, the delegate expressly referred to the applicant’s acceptance into a short residential rehabilitation program. The inference to be drawn is that the delegate had regard to the applicant’s attendance at that program as a possible condition of parole.

95    The fourth factor that the applicant asserts was not taken into account is that the applicant’s eligibility date for parole had been fixed by the sentencing judge and the reason the judge fixed that date was to ameliorate the applicant’s sentence. The Departmental Submission explained the factors taken into account by the sentencing judge and also attached the reasons of the sentencing judge. The delegate’s reasons referred to the applicant’s “criminal history”. It cannot be inferred that the respondent failed to have regard to the reasons of the sentencing judge for fixing the eligibility date.

96    The fifth factor the applicant asserts was not taken into account is the applicant’s inability to access the further intervention programs which the decision-maker considered would address his, “ongoing rehabilitation needs relating to... mental health, substance abuse and insight”, and the absence of any information about the timeframe within which he might be able to access those programs. I have set out paragraph 119 from the Departmental Submission which states that, “the timeframe for this and the nature of the programs he will be able to participate in is uncertain”. The delegate noted that the applicant was waitlisted to participate in two programs in custody. It cannot be inferred that the delegate failed to have regard to this factor.

97    The applicant has not established that the delegate failed to consider the factors he alleges were not considered.

98    The applicant’s fourth ground of review must fail.

Ground 5: Whether the respondent failed to provide adequate reasons

99    The applicant contends that the Statement of Reasons does not set out the material findings of fact upon which the conclusions in those paragraphs are made, and that the reasons do not identify the evidence upon which those findings were based.

100    The respondent argues that the delegate need only set out the reasons for refusing parole and submits that the Statement of Reasons in fact sets out the grounds for the refusal decision.

101    Where the Attorney-General refuses to make a parole order under s 19AL, s 19AL(2)(a) requires the Attorney-General to give the person written notice which relevantly includes “a statement of reasons for the refusal”. The requirement under s 19AL(2) to give reasons is supplemented by s 25D of the Acts Interpretation Act 1901 (Cth), which provides:

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

102    As was observed by Thawley J in Khawaja at [26], s 19AL(2) when read with s 25D of the Acts Interpretation Act:

…requires no more than that the Attorney-General ‘set out’ the findings which the Attorney-General in fact made, being those which the Attorney-General considered to be material to the decision which the Attorney-General made. Section 19AL(2) does not require the Attorney-General to make findings and then set out those findings.

103    I have already set out the relevant passages from Salgado at [19]-[21].

104    The Statement of Reasons sets out the findings of fact the respondent made for refusing to grant parole and adequately sets out the evidence upon which those findings of fact were made.

105    The applicant’s fifth ground of review must also fail.

Conclusion

106    The applicant has not established any of his grounds of review.

107    The application will be dismissed with costs.

Associate:    

Dated:    18 August 2025