Federal Court of Australia

Miller v Attorney-General (Cth) [2026] FCA 943

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the respondent 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 9 November 2021, Mr David Oscar Miller was sentenced in the District Court of New South Wales to 6 years and 8 months’ imprisonment, commencing on 9 November 2021, with a non-parole period of 4 years, for 2 offences contrary to the Criminal Code 1995 (Cth) (Criminal Code), being:

(1)    1 count of conspiracy to defraud, contrary to s 135.4(1); and

(2)    1 count of aiding and abetting a named employee to deal with the proceeds of crime, contrary to s 400.9.

2    The statutory scheme for parole of persons serving sentences of imprisonment for Commonwealth offences vests the power in the Attorney-General of the Commonwealth of Australia (or their delegate): Crimes Act 1914 (Cth) (Crimes Act) s 19AL. On 6 November 2025, an officer of the Commonwealth Parole Office (CPO) notified the applicant of the Delegate’s decision to refuse parole (refusal decision). As required, the Delegate gave the applicant notice of that decision pursuant to s 19AL(2) of the Crimes Act (refusal notice). The effect of the refusal is that the Attorney-General is required to reconsider whether to release Mr Miller on parole within 12 months of the date of the refusal decision: Crimes Act s 19AL(2)(b).

3    The applicant seeks judicial review of the refusal decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

4    The applicant represented himself in these proceedings.

5    For the reasons below, the application is refused.

Material before the Court

6    The Court has before it the refusal notice dated 6 November 2025. It also has the submission from the CPO to the Delegate, the decision of the New South Wales District Court (Attachment A), the agreed statement of facts (Attachment B), the applicant’s criminal history (Attachment C), the pre-release report prepared by a community corrections officer of Corrective Services New South Wales (Attachment D), the adverse comments letter sent to Mr Miller (Attachment E) and Mr Miller’s response to the adverse comments letter (Attachment F) This material comprises the material that was before the Delegate at the time she made the refusal decision.

7    The Court also has before it a bundle of relevant correspondence following the refusal decision.

8    The applicant relied on three affidavits sworn/affirmed by him dated 5 December 2025, 5 April 2026 and 26 April 2026. The applicant also filed written submissions dated 29 April 2026 and written submissions in reply dated 28 May 2026 which included amended grounds of review. Before the hearing, the applicant also filed further submissions dated 9 June 2026. After the hearing the applicant filed and sought leave to rely on further written submissions dated 15 June 2026. The respondent did not oppose leave, and leave was granted (with the respondent having an opportunity to file written submissions in reply). The applicant then filed further post-hearing written submissions in reply dated 29 June 2026. He did not have leave to do so. Rather, the parties had been informed that no further submissions would be received. By email dated 3 July 2026, the applicant apologised for sending the submissions but requested that it be considered. I considered the submissions but it does not alter the conclusion I have reached.

Statutory regime

9    There is no entitlement to parole; the power to release a prisoner on parole after the expiry of the non-parole period is a matter for the executive: Minogue v Victoria [2019] HCA 31; (2019) 268 CLR 1 at [17]. In the case of federal offenders, this is the Attorney-General.

10    The regime for the parole of persons serving sentences of imprisonment for Commonwealth offences (federal offenders) is contained in Part IB, Division 5 of the Crimes Act. The principles as to its application are well-established, and were summarised in Stephens v Attorney-General [2021] FCA 204 (Stephens) at [11]-[17] and Lazarus v Attorney-General (Cth) [2024] FCA 1021 at [10]-[18]. See also Lodhi v Attorney-General (Cth) [2020] FCA 1383 (Lodhi) and Khazaal v Attorney-General (Cth) [2020] FCA 448 (Khazaal).

11    As I described in those decision, s 19AKA states the purposes of parole are the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community.

12    Section 19AL, which addresses release on parole, is relevantly in the following terms:

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).

Note 1:    See subsection (5) if the person is subject to a State or Territory sentence.

Note 2:    See also sections 19ALA (matters that may be considered in decisions about parole orders) and 19ALB (decisions about parole orders—terrorism and control orders).

(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.

Note: See subsection (5) if the person is subject to a State or Territory sentence.

(2A)    If the Attorney-General does not, under paragraph (2)(b), reconsider the making of a parole order for a person and either make, or refuse to make, such an order before the end of the 12 month period referred to in that paragraph, the Attorney-General must, as soon as practicable after the end of that period, reconsider and either make, or refuse to make, a parole order for the person.

Contents of parole order

(3)    A parole order must:

(a)    be in writing; and

(b)    specify whether or not the person is to be released subject to supervision; and

(c)    if it is proposed that the supervision period for a person released on parole subject to supervision should end before the end of the person’s parole period—specify the day on which the supervision period ends.

Note 1:    For when a person is released on parole in accordance with a parole order, see section 19AM.

Note 2:    A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AMA, 19AN and 19AU).

(3A)    If the Attorney-General considers that in all the circumstances it is appropriate to do so, the Attorney-General may specify in a parole order that a person is to be released from prison on a day that is before the end of the non-parole period, but is not earlier than 30 days before the end of the non-parole period.

13    In making a decision under s 19AL, a non-exhaustive list of matters which may be considered is set out in s 19ALA:

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.

14    The following propositions also emerge from the statutory framework governing the Attorney-General’s (or their delegates) exercise of the power in s 19AL:

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

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

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

(4)    the legislation contains no process for how consideration of release on parole is to be undertaken. It is 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 case. What is required may vary having regard to what has already occurred and what is said or done during the process; and

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

See also Lodhi at [6]; Stephens at [17].

15    The propositions set out at [14] inform the boundaries of the Attorney-General’s power, within which there is an area of “decisional freedom” that permits such a decision-maker genuinely free discretion: Eden v Minister for Immigration and Border Protection [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [62], citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [29] and [66]. That is, within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area falls within the bounds of legal reasonableness: Eden at [62]; Li at [66]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [7]. Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105]; Stretton at [11].

16    As to the role of this Court, in Lodhi, Bromwich J observed at [43] that:

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

17    As apparent from s 19AL(2), if the Attorney-General refuses to make a parole order, the Attorney-General must give the person a written notice that includes “a statement of reasons for the refusal”. The statutory framework dictates the nature and extent of this obligation: Lodhi at [85]. Relevantly, the obligation imposed on the decision-maker by s 25D of the Acts Interpretation Act 1901 (Cth) does not require him to make any particular findings of fact, but rather to do no more than to set out any findings of fact that he did in fact make that he considered material to the decision not to make a parole order: Lodhi at [87]; Stephens at [33]; Whaley v Attorney-General [2025] FCA 1657 (Whaley) at [19]. That requirement gives effect to the words “for the refusal” in s 19AL(2)(a)(ii): see Stephens at [31]-[34]; Lazarus at [18].

Refusal notice

18    The refusal notice included the following:

…

In making my decision, I have taken into account submissions made by you or on your behalf.

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

1.    I have had regard to the nature and circumstances of the Commonwealth offences to which your sentence relates, including conspiracy to defraud and proceeds of crime.

You conspired together with your co-offender to defraud the Commonwealth Department of Education of over $9 million by falsely claiming and obtaining childcare payments. The sentencing court found that you [sic] offence was sustained and deliberate, and you were regarded as a crucial player of an offending assessed as well above the mid-level of objective seriousness.

You were also found aiding and abetting an employee to deal with the proceeds of crime. You instructed the employee to withdraw and forward $135,000. The sentencing court found that you recruited your employee by deceptive means, playing a significant role in a moderately serious offence of this type.

Taking into account the nature and circumstances of your offending, and the comments by the sentencing court, I consider that your release on parole is an unacceptable risk to community safety.

2.    I have had regard to your ongoing rehabilitative needs in relation to substance use.

I have considered your proposed professional support plans and your history of substance abuse. I cannot conclude that you have provided sufficient information regarding how you intend to manage your substance abuse rehabilitative needs post-release. While I acknowledge your claim you are motivated to engage in treatment and engage with the proposed referrals from Corrective Services New South Wales (CSNSW), you do not have any confirmed plans for support in the community. While you have remained abstinent in custody, I consider your ability to remain abstinent in the community is untested and without confirmed professional supports to assist you, you are at risk of relapse. I consider a further 12 months in custody would allow you to substantiate your post release plans to mitigate your risk of substance use in the community.

Taking this information into account, I consider that your release on parole at this time would not be in the best interest of your ongoing rehabilitation and you may pose an unacceptable risk to the safety of the community.

3.    I have had regard to your inadequate post-release plans in relation to accommodation and prosocial supports.

I have considered CSNSW’s assessment of your proposed accommodation. However, I consider your plans to reside with your brother and co-offender, Mr Ibrahim Omar, while on parole may undermine your rehabilitative and reintegrative prospects. Beyond the supervision of your parents to establish boundaries and promote accountability, you have not provided evidence of any other plans or measures that will be put in place to manage negative behaviours and associations. I have considered you have engaged with your brother on day leave from custody and in other capacities, but without appropriate measures in place to mitigate the risks of your association and cohabitation with your brother, I cannot conclude that your proposed accommodation will provide a protective environment that will support your reintegration. I consider that a further 12 months in custody would allow you to establish more suitable reintegration plans.

I have considered your proposed pro-social supports in the community, including family members and a support group. While your family may be pro-social, they are not necessarily a protective factor, evidenced by the fact that you had the support of your family at the time of your offending. Given your plans to reside with your brother, I also cannot conclude that you have adequate strategies to manage the influence of anti-social influences in the community.

Taking this information into account, I consider that your release on parole at this time would not be in the best interest of your reintegration and you may pose an unacceptable risk to the safety of the community.

4.    I have had regard to your criminal history and behaviour in custody.

I consider your criminal history indicates that you proceeded to engage in similar offending behaviours after your index offending was discovered. I consider your index offending was part of a larger pattern of anti-social behaviour.

In custody, you have committed several misconducts, including dishonesty related offences as recently as March 2025. You have been found attempting to bring unapproved items back into the correctional centre. I consider this demonstrates you are unable to comply with directions, and this raises concerns about your rehabilitative progress in custody. I consider a further 12 months in custody would provide you the opportunity to display appropriate custodial behaviour and continue to engage in pre-release leave.

Taking this information into account, I hold concerns with your ability to be of good behaviour, not violate any law, and comply with the conditions of a parole order. As such, I consider you may pose an unacceptable risk to the safety of the community.

5.    I consider on the evidence above that your release on parole at this time poses a risk to the community. In coming to this view, I have had regard to the matters that weigh in favour of your release on parole at this time, including your education in custody.

Under paragraph 19AL(2)(b) of the Crimes Act, I am required to reconsider you for release on parole within 12 months of this notice being signed.

    (together, refusal reasons)

Grounds of review

19    By an amended originating application dated 4 June 2026, the applicant relies on 7 grounds of review:

(1)    Denial of procedural fairness: uncommunicated confirmation standard. The adverse comments letter of 18 September 2025 raised a concern about the adequacy of professional supports. It did not use the word “confirmed” or require formal documentary confirmation. The refusal notice applied a confirmation standard for the first time without ever communicating it to the Applicant. The Applicant had no opportunity to respond to that standard: Kioa v West (1985) 159 CLR 550; Khazaal v Attorney-General (Cth) [2020] FCA 448.

(2)    Jurisdictional error: material deficiency in CPO briefing. The Justice Health post-release letter of 30 October 2025, which confirmed the Applicant’s full treatment compliance and post-release planning, was absent from the material before the delegate. That letter directly addressed the finding treated as decisive. The briefing was materially deficient on the matter central to the refusal: DYS21 v Attorney-General (Cth) [2021] FCA 1331; 288 FCR 607.

(3)    Jurisdictional error: failure to make an obvious and easy inquiry. The CPO failed to obtain Justice Health records before the refusal notwithstanding that the inquiry was obvious, easy and centrally relevant to the exercise of power. It was the Applicant, not the CPO, who identified the omission after the refusal and arranged consent on 17 November 2025: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.

(4)    Failure to engage with central submissions. The refusal found the Applicant had provided no other plans or measures beyond parental supervision to manage co-offender association risk. That finding is irreconcilable with the Applicant’s response at RD 107-108, which expressly identified non-association conditions, Community Corrections supervision and pro-social living arrangements: Pulini v Assistant Minister to the Attorney-General [2021] FCA 1543.

(5)    Failure to consider relevant considerations. The delegate failed to consider available psychiatric and post-release treatment information directly addressing the key risk factors in the refusal notice, and failed to engage with the specific basis for the CSNSW recommendation for release on parole.

(6)    Legal unreasonableness. The decision lacks an evident and intelligible justification. The delegate accepted the Applicant was motivated to engage in treatment but did not explain what further substantiation was required, why identified named providers were insufficient, or why available parole conditions including non-association orders, treatment requirements, reporting obligations and Community Corrections supervision could not manage the identified risks: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; Khawaja v Attorney-General (Cth) [2022] FCA 334; 293 FCR 396.

(7)    Error of fact. The refusal relied on the Applicant’s co-offender residing at the proposed address at 11 Segers Avenue, Padstow. Ibrahim Omar vacated that address on 6 November 2025, the day of the decision. Community Corrections NSW was notified on 7 November 2025.

Consideration

20    There is significant overlap between the grounds of review, and some can conveniently be considered together. Further, as the applicant’s written submissions do not necessarily align with his grounds I have addressed the submissions in a manner that appears to best fit the complaint. It appears that by the applicant’s written submissions in reply filed before the hearing and his oral submissions, his focus was primarily on the first three grounds. Some matters which are relied on appear to be the basis of a number of different grounds. Grounds 4 to 6 argue, variously, that relevant matters were not considered or properly engaged with, or that the finding was unreasonable, relying on the same matters and aspects relied upon in other grounds.

21    As a general observation, I note that, in determining whether error has been established, regard may be had to the material placed before the decision-maker, here the Delegate, including the Departmental Submission prepared by the CPO which summarises the material and makes a recommendation as to whether parole should be granted: Stephens at [6]; Lazarus at [31]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (Palme) at [16] and [20]; JGW25 v Attorney-General [2026] FCA 321 at [39]; Roberts v Attorney General [2022] FCA 574 (Roberts) at [25]; Whaley at [39]. In having regard to the Departmental Submission, it should be read as a whole and parts should not be taken out of context: Palme at [28]; Lazarus at [31].

22    I also note the Court should be cautious in drawing inferences, in the absence of direct evidence, about what a decision-maker did or did not do, read, or consider in exercising a statutory power: Roberts at [26], citing Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173 (Stambe) at [70]. That said, in this case, the purpose of the Departmental Submission was to provide the Delegate with information to make the decision: see Stambe at [74]-[75]; Lazarus at [34].

23    In this case, on 18 September 2025 the CPO provided the applicant with an adverse comments letter. On 6 October 2025, Mr Miller responded to the letter seeking to “address key elements that were identified by the Commonwealth Parole office”. With limited exception (e.g. addressing the index offence, including stating he now has insight into his offending), he did not engage with the specific adverse matters outlined in the adverse comments letter. Whilst Mr Miller stated that he “will engage” with professional and pro-social supports, that does not establish the supports have been confirmed upon release. At its highest, Mr Miller’s letter simply repeats what he said to CSNSW, that in relation to certain topics (e.g. drug use) he would, if granted parole, engage in counselling and follow-up referrals.

Upon being granted Commonwealth Parole on 8 November 2025 I will engage with:

•    Psychological counselling (via GP referral and mental health care plan)

•    Drug and alcohol relapse – prevention counselling

•    House of Sadaqa support group for pro-social connections

•    Ongoing supervision and compliance with Community Corrections

•    I intend to explore whilst in the community, offence target interventions.

24    I note also the CSNSW report relevantly outlined the post-release supervision plan as follows:

Supervision plan

Upon Mr Miller’s release Community Corrections will implement the following supervision plan:

•    Referral to psychologist to address his financial stress

•    Referral to Alcohol and Drug counselling for relapse prevention

•    Referral to Pro-social Muslim Male support Group: House of Sadaqa

•    Direction to see his General Practitioner to obtain a mental health care plan

25    As apparent, the CSNSW report reflects there were no confirmed supports in place.

Grounds 1, 2 and 3

26    These grounds were argued together by Mr Miller during his oral submissions. In his written submissions he described the errors alleged in these grounds as not being independent, but rather they involved a “single chain” of events.

27    The applicant’s submission on ground 1 changed during the course of the hearing. Initially he submitted he was denied procedural fairness because the “adverse comments letter did not use the word ‘confirmed’ or ‘confirmation’ in relation to professional supports” and did not require documentary proof of appointments. He submitted he was not told that was required as a precondition to parole. He submitted the “word ‘confirmed’ appeared for the first time in the refusal notice itself”. He submitted that he was refused parole on a standard that was never put to him and to which he had no opportunity to respond. The applicant referred to Kioa v West [1985] HCA 81; (1985) 159 CLR 550 submitting that procedural fairness requires a genuine and meaningful opportunity to respond to the case against a person before the decision is made. He also referred to its application in relation to parole in Khazaal at [67]-[68], submitting that procedural fairness requires disclosure of credible, relevant, and significant adverse information with sufficient clarity to permit a real and meaningful response.

28    The applicant’s submission changed during the hearing after the respondent pointed out that the adverse comments letter did refer to “confirmed” supports. In oral submissions in reply, the applicant accepted the word “confirmed” did appear in the adverse comments letter but submitted that it was not directed at him. That is, he was not told he had to confirm anything. The applicant then filed further written submissions accepting that the word confirmed appeared in two places but submitted that the reference was entirely unconnected to any requirement to provide confirmation of professional supports post-release. He submitted that they only appeared in the context of the community corrections referral programs and employment plans.

29    In respect to ground 2, the applicant submitted the Justice Health post-release letter of 30 October 2025 confirmed his “full treatment compliance and his preparedness to continue mental health treatment in the community”. He submitted that letter directly addressed the finding treated by the Delegate as decisive in the refusal decision, namely the absence of confirmed professional supports. In the applicant’s submission, the Delegate therefore refused parole on the basis of an absence which the uncollected material would have answered. The applicant relied on, in particular, DYS21 v Attorney-General (Cth) [2021] FCA 1331; (2021) 288 FCR 607 (DYS21), in submitting the absence was material to the procedural fairness denied to him.

30    In respect to ground 3, the applicant submitted the CPO failed to make an obvious and easy inquiry. That is, there are Justice Health records that would have provided institutional confirmation of the applicant’s treatment planning, psychiatric stability, and post-release supports which were never requested by the CPO at any point before the refusal of parole. After the refusal decision, the applicant became aware this material had not been before the Delegate. The applicant then raised this absence with a parole officer, who arranged for the relevant consent forms for the applicant to sign to provide his consent for the CPO to obtain and access his Justice Health file. The applicant submitted this was an obvious inquiry to make because he was under active Justice Health psychiatric care which the CPO was aware of, and it was easy to get the applicant to sign consent forms. He submitted that where a decision-maker fails to make an inquiry that is obvious, easy to make and centrally relevant to the exercise of power, that establishes jurisdictional error, referring to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZAIAI) at [25]-[26].

31    The applicant has not established these grounds.

32    As a preliminary observation it is appropriate to recall, as explained above, the legislative scheme contains no process for how consideration of release on parole is to be undertaken. “It is 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 case”: Lazarus at [15]; Lodhi at [6]; Stephens at [17]. As the respondent submitted, the procedure adopted in this case, which involved providing the applicant with the adverse comments letter and inviting a response, is an orthodox one.

33    Against that background I turn to the applicant’s submissions.

34    First, procedural fairness. As explained above, contrary to the applicant’s initial submissions, the adverse comments letter sent to him does refer to the word “confirmed”. Under the heading “professional supports”, the following appears (emphasis added):

While you may be referred to programs or supports by community corrections, your eligibility for treatment/participation has not been confirmed. In the absence of evidence that you are eligible or enrolled in these or other programs, the decision-maker may consider that you are not well-placed to be released on parole at this time.

The decision-maker may consider that your release on parole without sufficient professional supports is not in the interests of your successful rehabilitation or reintegration into the community. The decision-maker may therefore conclude that your release without a clear treatment plan places you at risk of reoffending, and would therefore pose an unacceptable risk to the safety of the community.

35    The alleged absence of the word “confirmed” underpinned the applicant’s initial submissions that he was denied procedural fairness. I note that there is also a reference in the letter to not having confirmed plans for employment on release.

36    As to his oral submissions in reply, he submitted that although the word “confirmed” appeared in the adverse comments letter, it was not directed at him. That is, he was not told he had to provide confirmation of any arrangement. That submission cannot be accepted. The letter described in significant detail the concerns that the CPO may have about granting the applicant parole and the basis for them.

37    As to his further written submissions, the applicant submitted the use of the word “confirmed” was confined to a context of requiring confirmation of professional plans and the applicant’s eligibility for professional supports. He submitted it was not conveyed to him that he needed to obtain documentary confirmation for professional health supports. The submission is not borne out by the adverse comments letter. The breadth of the reference to “confirmed” is evident in the passage recited above. The letter also states the Delegate will have “regard to your post-release plans for professional supports to manage your rehabilitative needs in relation to your insight, gambling, mental health, and drug abuse”. It then explains, amongst other things, the absence of evidence that the applicant was eligible or enrolled in “these or other programs”. The letter then stated that “[t]he decision-maker may therefore conclude that your release without a clear treatment plan places you at risk of reoffending, and would therefore pose an unacceptable risk”. I accept the respondent’s submission that properly read, the reference in the letter to “confirmed” was not confined in the manner the applicant contended, but concerned “post-release plans for professional supports to manage” rehabilitative needs.

38    The adverse comments letter was directed to the applicant and his circumstances, identifying specific matters which the CPO may have concerns about and the basis of those concerns. The CPO’s concerns, including the lack of confirmed supports in light of the applicant’s circumstances and the general importance of such supports being confirmed, were raised with the applicant.

39    Further and in any event, a fair and proper reading of the reasons in context does not erect an impermissible standard for the exercise of power under s 19AL of the Crimes Act. As is evident from the refusal notice, a number of reasons were given for the refusal of parole, only one of which refers to the absence of confirmed support plans, being ongoing rehabilitative needs in relation to substance use. In respect to those rehabilitative needs, the applicant was on notice of the finding as the adverse comments letter indicated the Delegate may be concerned about the absence of confirmed plans. In the circumstances, the Delegate was entitled to consider the lack of confirmed support plans in assessing whether she was satisfied parole should be granted. The remaining bases relate to different factors, albeit they must all be read together.

40    Second, the Justice Health post-release letter dated 30 October 2025 was not before the CPO. This is the only document from Justice Health identified by the applicant in his submissions, and the only one in evidence. It is the only record the applicant made any submission about to advance this ground. Contrary to the applicant’s submission, the letter does not directly address the concern in the adverse comments letter about the absence of confirmed professional supports. At its highest, it is a letter from Justice Health to Dr Ricky Tsang, a psychiatrist in the community, indicating that Mr Miller intends to become a patient of Dr Tsang upon his release from custody, and inquiring whether Dr Tsang can accept him as a patient on the assumption that he will be released into the community on 8 November 2025. Mr Miller described it as having confirmed his preparedness to continue mental health treatment in the community and his post-release psychiatric planning. That submission reflects that at its highest, the letter confirms his intention. It does not confirm that there were supports in place.

41    I note that in Mr Miller’s written submissions filed without leave on 3 July 2026, he said he also relied on the Justice Health letter as evidence of his compliance with treatment while in custody. However, that was not the matter identified as of concern by the CPO, or a matter relied on in the refusal reasons. Indeed, the refusal reasons recognise his motivation, and abstinence from drugs while in custody.

42    Given the content of the material in the Justice Health letter, in the context of the material before the Delegate and the refusal reasons, it has not been established that the letter is a critical document of the type that should have been the subject of an obvious inquiry: SZIAI at [25]-[27]; Sultan v Minister for Immigration and Multicultural Affairs [2025] HCASJ 17 (Sultan) at [38]. Further, there is nothing in Mr Miller’s response to the adverse comments letter or the CSNSW report that put the CPO on notice that there was any further information to be obtained as to whether there were any confirmed post-release supports in place. To the contrary, the material made plain that there were none, and that steps in that regard would not be taken until after parole had been granted.

43    In any event, the respondent also relied on the 21 November 2025 email from Dr Tsang’s practise that indicated he was not accepting any more patients. The applicant opposed the respondent’s reliance on this email on the basis that it occurred after the refusal decision. Further, he submitted that the refusal of parole was not on the basis that Dr Tsang was not available, but that the professional supports were unconfirmed. He also submitted that the 21 November 2025 email cannot displace the confirmation of the applicant’s preparedness to continue mental health treatment in the community and his post-release psychiatric planning. The respondent submitted that the 21 November 2025 email reflects that the Justice Health post-release letter could not have been, in any event, a “critical” fact that should have been the subject of an obvious inquiry because it was dispositive to the ultimate decision, referring to Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [49]; Sultan at [33]-[34], [38]. The respondent submitted the whole of the evidence tends to support the correctness of the Delegate’s reasoning; namely, that the applicant had been referred to various supports by Community Corrections but they had not been confirmed. I agree. This confirms the conclusion above that, given the content of the letter, I am not satisfied it is a critical document. I note the applicant attempted to distinguish Sultan in the submissions he filed without leave, but that is based on a characterisation of the Justice Health letter which is incorrect and a misreading of Sultan.

44    The applicant’s reliance on DYS21 on this aspect of his argument is misplaced, as it is plainly distinguishable. In that case the “material deficiencies in the summary information” relates to deficiencies in the recommendation memorandum provided by the CPO to the Attorney-General who was the decision-maker. That is, the memorandum did not accurately reflect the material provided to the Attorney-General which was relevant to the parole decision. That is factually very different to this case. DYS21 did not relate to the absence of material in the bundle provided to the decision-maker.

45    Further, in so far as the applicant appears to suggest that the CPO ought to have obtained the Justice Health file as a matter of course, I do not agree. He has not established the basis for the submission. Only the letter of Justice Health is in evidence, and for the reasons explained above, that was not of a critical nature.

46    The applicant has not established any of grounds 1, 2 and 3.

Grounds 4 and 5

47    Generally, the applicant submitted the Delegate failed to properly engage with or give adequate consideration to material favourable to him. This appeared to primarily focus on two aspects: first, that the Delegate found he had provided no other plans or measures beyond parental supervision to manage the risk of co-offender association; and second, the applicant relied on a low risk assessment, completion of rehabilitation programs, the recommendation of CSNSW for release on parole, and identified treatment pathways and support arrangements. The applicant placed reliance on Khawaja v Attorney-General (Cth) [2022] FCA 334; (2022) 293 FCR 396 contending it is directly relevant because it concerned Commonwealth parole, mental illness and treatment compliance, a refusal notwithstanding favourable material, and the role of parole conditions in risk management.

48    The Departmental Submission summarised the material, including those matters complained about by the applicant. The Departmental Submission is detailed and accurate in relation to the material before the CPO (attached to the submission). It provided a thorough and reasoned analysis of the material. The applicant’s submission appears to be directed to the reasons for refusal. That is, it was said to follow that, because certain matters were not referred to or explained in those reasons, they were not considered or the matter was not engaged with. In the circumstances of this case, I am not persuaded that that inference is to be drawn.

49    In considering this ground, it is important to recall “[t]here is no obligation, express or implied, for a decision-maker in the Delegate’s position to avert to all and every possible consideration which may inform the assessment of whether a person should be released on parole”: Salgado v Attorney-General (Cth) [2023] FCA 984 at [29]; Lazarus at [32].

50    Further, as the Full Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48] observed:

a finding by the Court that [a decision maker] 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.

51    See Lazarus at [35]; Salgado at [28] for its application in this context.

52    There is no proper basis to infer that the matters complained of were not considered or not properly engaged with by the Delegate. It is apparent from the refusal notice, that the Delegate acknowledged various matters in favour of the applicant’s rehabilitation, treatment and reintegration. It refers to and explains why the concerns still exist despite what has been put by the applicant in his response to the adverse comments letter. The Delegate did not need to refer to every factor that was considered.

53    The applicant’s specific complaint about the Delegate’s reasons in respect to his proposed residence and co-offender association, is not established. Mr Miller contended that the error occurred as the Delegate treated the risk as effectively unmanaged, notwithstanding his response identifying management mechanisms with which the Delegate’s reasons did not engage. However, there is no basis to suggest Mr Miller’s response to the adverse comments letter was not considered. The concerns in the Delegate’s reasons relate to his accommodation in the same residence as his brother. The matters relied on by the applicant, for example, that he anticipates there will be a non-association condition, does not address that concern. The intention to reside with his brother is an intention to associate.

54    Further, I am not persuaded the Delegate failed to consider available psychiatric and post-release treatment information directly addressing the key risk factors in the refusal notice and failed to engage with the specific basis for the CSNSW recommendation for release on parole (as alleged in ground 5). In so far as this ground relates to the Justice Health material, for the reasons already given, the applicant has not established error in respect to that. Further, in relation to the material before the Delegate, as explained above, these matters were considered in detail in the Departmental Submission. Given the refusal reasons, considered together with the detailed Departmental Submission on these matters provided to the Delegate, I am not prepared to infer the Delegate failed to have regard to or engage with these matters. Rather, the reasons reflect the Delegate did consider the relevant material, specifically in relation to the applicant’s rehabilitation and post-release plans.

55    The applicant’s reference to Pulini v Assistant Minister to the Attorney-General [2021] FCA 1543 (Pulini) does not assist him. In Pulini, the Court considered that a particular submission relating to the welfare of a child was such an important and substantial part of the applicant’s case that if it had been considered by the decision-maker, it would have been expected to have been in the reasons: see Pulini at [65]. Each decision is fact specific. The matters relied on by the applicant in this case do not fall within the type of submission considered in Pulini. I note the Delegate’s refusal reasons do reference and consider matters the applicant claims were not considered.

56    The applicant has not established grounds 4 and 5.

Ground 6

57    This ground appears to be a compilation of other complaints. That is, that the adverse comments letter did not raise the issue of whether supports were confirmed; it was not explained why identified named providers in the Justice Health letter were insufficient; the refusal notice did not engage with the specific basis for the recommendation by CSNSW that he should be granted parole or explain why it was outweighed; and available parole conditions were not addressed.

58    The first two points proceed on an erroneous basis as explained above. The remaining points relate to a failure to consider or engage with the material. As explained above, there is no basis in the reasons to suppose that the material was not considered.

59    A decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. Although it may be so where a decision is one which no reasonable person could have reached, an inference of unreasonableness is not to be drawn only where a decision appears to be irrational: Li at [68], [76]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [10]-[11]. The test for unreasonableness is necessarily stringent: Li at [108]; SZVFW at [10], [52]. It usually is a high threshold. The requirement of reasonableness is not a vehicle for challenging a decision on the basis the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision maker: Li at [30].

60    As explained above, the refusal reasons are in the context of the Departmental Submission, which was detailed. The refusal reasons reflect or acknowledge matters favourable to the applicant and explain why nonetheless, parole was refused. There is a logical basis for that conclusion. As the respondent submitted, the Delegate was entitled to place greater weight on the matters they did. It was open for the Delegate to rely on matters such as the uncertainty of post-release plans, given the lack of confirmed supports, as part of her reasoning in refusing parole. The Delegate, in exercising her decisional freedom, was entitled to place more weight on community protection: Lazarus at [81]. The Delegate’s reasons provide an intelligible justification for doing so. It was open on the material before the Delegate to make the decision she did to refuse parole. The decision was within the range of possible lawful outcomes: see e.g. Stephens at [46].

61    The applicant has not established that the decision lacks an evident or intelligible justification. The matters considered by the Delegate rationally supported her decision to refuse parole.

62    The applicant has not established ground 6.

Ground 7

63    This ground is misconceived as it alleges the Delegate made a factual error in finding that the refusal notice relies on the applicant’s co-offender (brother) residing at his proposed address. The applicant submitted and led evidence that his co-offender moved out of that address on 6 November 2025 and CSNSW was notified of this on 7 November 2025. That is, the alleged error of fact concerning his proposed living arrangements arises from the CPO being informed of changed circumstances after the parole refusal. That later notification cannot establish a ground of judicial review. Mr Miller accepted as much during the hearing.

64    The applicant has not established ground 7.

Conclusion

65    The applicant has not established any of the grounds of review and accordingly, the application is refused.

Associate:

Dated:    21 July 2026