Khawaja v Attorney-General (Cth) [2022] FCA 334

FEDERAL COURT OF AUSTRALIA

Khawaja v Attorney-General (Cth) [2022] FCA 334 File number: NSD 1375 of 2021

Judgment of: THAWLEY J

Date of judgment: 4 April 2022

Catchwords: ADMINISTRATIVE LAW – application for judicial review of parole decision under s 19AL(1) of the Crimes Act 1914 (Cth) – where sentencing remarks considered the applicant's mental illness causative of offending – where the Attorney-General's reasons for decision did not refer to the applicant's mental illness or disclose any consideration of the longer term risks to the community if parole were refused or of the rehabilitation of the offender or of the reintegration of the offender into the community – whether Attorney-General's decision affected by legal unreasonableness – whether Attorney-General failed to afford procedural fairness – held: decision was legally unreasonable and made in a procedurally unfair manner – application allowed

Legislation: Acts Interpretation Act 1901 (Cth) s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) Criminal Code Act 1995 (Cth) ss 135.1(7), 144.1(1) Crimes Act 1914 (Cth) ss 37(3), 43(1), 16BA, 19AKA, 19AL(1), 19AL(2), 19ALA(1), 19ALA(2) Judiciary Act 1903 (Cth) s 39B

Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Khazaal v Attorney-General (Cth) [2020] FCA 448 King v Minister for Immigration and Border Protection [2014] FCA 766; 142 ALD 305 Lodhi v Attorney-General (Cth) [2020] FCA 1383 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031 MZAFS v Minister for Immigration and Border Protection [2016] FCA 75; 237 FCR 347 MZAPC v Minister for Immigration and Border Protection (2021) [2021] HCA 17; 95 ALJR 441 R v Khawaja [2020] NSWDC 718 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1