Supreme Court New South Wales Medium Neutral Citation: Ghasemi v NSW Department of Corrective Services [2019] NSWSC 207 Hearing dates: 27 February 2019 Decision date: 05 March 2019 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the summons. (2) Make no order as to costs. Catchwords: ADMINISTRATIVE LAW – alleged error of law and jurisdictional error – Commissioner's decision not to vary the plaintiff's prison classification – relevance of his immigration status – powers and functions of Serious Offenders Review Council – allegations including bias and that decision was ultra vires – no ground for relief made out Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), ss 2A, 3, 6, 195, 196, 197, 271, Pt 9 Crimes (Administration of Sentences) Regulation 2014, rr 11, 12, 19, 311, Div 1 International Transfer of Prisoners (New South Wales) Act 1997 (NSW) Migration Act 1958 (Cth), ss 13, 14, 198, 501, Div 9 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1 Clark v Commissioner for Corrective Services [2016] NSWCA 186 Davison v Commissioner for Corrective Services [2011] NSWSC 699 Drake v Minister for Immigration (1979) 24 ALR 577 Green v Daniels (1977) 51 ALJR 463 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Category: Principal judgment Parties: Behrooz Ghasemi (Plaintiff) NSW Department of Corrective Services (First Defendant) Serious Offender Review Council (SORC) (Second Defendant) Representation: Counsel: Plaintiff (In person) J Emmett (First Defendant) Solicitors: Crown Solicitor's Office (First and Second Defendants) File Number(s): 2018/318313 Judgment Introduction 1. By summons filed on 28 August 2018, Behrooz Ghasemi (the plaintiff) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) for error of law on the face of the record or jurisdictional error relating to the refusal of his application that his classification as an inmate serving a term of imprisonment be changed from C2 to C3. 2. Relief is sought against the Commissioner of the Department of Corrective Services, the first defendant (the Commissioner) and the Serious Offenders Review Council (SORC) and its subcommittee, the Pre-Release Leave Committee (PRLC), the second defendant. The first defendant is the only active defendant. The second defendant has filed a submitting appearance. 3. The plaintiff relies on the following alleged errors of law on the face of the record: failure to take into account relevant considerations; taking into account irrelevant considerations; and that the decisions and recommendations are ultra vires. He also relies on other errors, said to be jurisdictional errors, including bias and denial of procedural fairness. Before addressing these alleged errors I propose to summarise the relevant statutory provisions and administrative procedures and the factual background. 4. All references to legislation in these reasons are references to the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) unless otherwise indicated. Relevant legislative and administrative provisions Statutes and regulations Migration Act 1958 (Cth) 1. The Migration Act 1958 (Cth) is relevant because the plaintiff is a citizen of New Zealand but not a citizen of Australia. 2. Section 13(1) of the Migration Act provides that "[a] non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen." Section 14(1) of the Migration Act provides that "[a] non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen." 3. Section 198 of the Migration Act makes provision for the removal from Australia of unlawful non-citizens. Deportation is dealt with under Division 9 of the Act. The visa of a "lawful non-citizen" can be cancelled under s 501 of the Migration Act. When this occurs, the person becomes an "unlawful non-citizen". Section 501 provides for various bases for cancellation of a visa, including that the person does not satisfy the "character test". The term character test is defined in s 501(6). A person does not pass the character test if the person has a "substantial criminal record". Section 501(7) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Crimes (Administration of Sentences) Act 1999 (NSW) 1. Section 2A includes the following in the list of objects of the Act: (d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community. 1. Section 3(1) defines "serious offender" by reference to a number of categories. It was common ground that the plaintiff did not fall into any of these categories and was not a serious offender. 2. Section 6 of the Act relevantly provides for work to be performed by inmates in various settings as follows: 6 Work performed by inmates (1) The governor of a correctional centre may make an order directing any convicted inmate in the correctional centre to carry out such work as the governor considers suitable. (2) The governor may direct a convicted inmate, or such classes or groups of convicted inmates as the Commissioner may from time to time determine, to carry out community service work, or any work for Corrective Services NSW or a public or local authority: (a) within the correctional centre in which the inmate is imprisoned, or (b) within the correctional complex in which the inmate is imprisoned but outside the correctional centre, or (c) outside the correctional complex in which the inmate is imprisoned. 1. The Act provides, in Part 9, for SORC to be constituted: s 195(1). The Chairperson may constitute Divisions of SORC, to which he or she may delegate any of SORC's functions: s 196. Section 197 provides for the functions of SORC. Section 197(1) provides that SORC has "such functions as are conferred on it by or under this or any other Act or law." 2. While many of the specific functions conferred on SORC by s 197(2) relate to serious offenders, its functions do not pertain only to serious offenders and include: "to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders": s 197(2)(f). 3. Section 271(1) provides that "[t]he Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act." 4. Regulation 311 of Crimes (Administration of Sentences) Regulation 2014 (CAS Regulation) relevantly provides: 311 Additional functions of Review Council (1) For the purposes of section 197 of the Act, the functions of the Review Council include the provision, at the request of the Commissioner, of reports, advice and recommendations to the Commissioner with respect to: (a) the management of serious offenders, and (b) the probability that a serious offender: (i) who is serving an existing life sentence, and (ii) who has applied for a local leave permit, will be fit to be released on parole at the time the Council expects to advise the Parole Authority about release on parole (assuming the serious offender satisfactorily completes a pre-release development program to which the application relates of at least 12 months or other relevant period), and (c) the designation of inmates as high security, extreme high security, extreme high risk restricted and national security interest inmates (including the revocation or variation of a designation), and (d) the management of high security, extreme high security, extreme high risk restricted and national security interest inmates (including the periodic review of that management), and (e) other matters specified by the Commissioner. [Emphasis added.] 1. Division 1 of the CAS Regulation provides for the classification and designation of inmates. It relevantly provides: 11 Classification of inmates (1) As soon as practicable after an inmate is first received into a correctional centre, the Commissioner is to determine the inmate's classification in accordance with this Division. (2) An inmate's classification under clause 12, 13 or 14 is to be reviewed at least once every 12 months and at the other times the Commissioner determines. 12 Classification of male inmates (1) Each male inmate is to be classified in one of the following categories for the purposes of security: … Category C1, being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner. Category C2, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner. Category C3, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised. (2) Subject to clause 17, the Commissioner may at any time vary or revoke a classification under this clause. … 19 Information to be considered for classification purposes For the purposes of making a decision with respect to a person's classification under this Division, consideration must be given to: (a) any advice received from the NSW Police Force or from any other public authority (whether of this or any other State or Territory or of the Commonwealth) established for law enforcement, security or anti-terrorist purposes, and (b) whether or not the inmate is likely to be removed from Australia. Other documents, manuals and specifications 1. Mr Emmett, who appeared for the first defendant, tendered extracts from various documents which he contended constituted either specifications by the Commissioner pursuant to CAS regulation 311 or relevant policy documents. Custodial Operations Policy and Procedures Chapter 4: SORC 1. Chapter 4.1 of the "Custodial Operations Policy and Procedures" says: "[SORC] is an independent statutory authority constituted under section 195 of the Crimes (Administration of Sentences) Act 1999. It is both an entity in its own right as well as an umbrella organisation currently with three subcommittees whose functions are not necessarily related to serious offenders." 1. Chapter 4.3 contains details of the three sub-committees of SORC, including the PRLC. It includes the following: "The [PRLC] assesses applications from inmates identified as 'public interest' for participation in external, unescorted pre-release leave programs." Offender Classification & Case Management Policy and Procedures Manual 1. Extracts from the Offender Classification & Case Management Policy and Procedures Manual (CCOPM) were also tendered. They are summarised below. Chapter 18: SORC 1. Chapter 18.1 of the CCOPM refers, in section 18.1.3, to the PRLC, which is dealt with in Chapter 18.4. Section 18.4.2, entitled "Legislation/Policy" relevantly provides: "The classification progression of a Public Interest Inmate is to occur as for a non-public interest inmate up to and including C2/CAT2. Progression in classification is NOT linked to Commissioner's Guidelines applied to Serious Offenders. 1 Refer CCOPM 1.1 Any inmate designated as a Public Interest Inmate MUST be approved by the Commissioner, after consideration of advice from the Pre-Release Leave Committee (a sub-committee of the SORC), to participate in the unescorted External Leave Program". 1. Section 18.4.3, entitled Public Interest Criteria, provides for criteria for designation as a Public Interest Inmate. The criteria include: "Unlawful Non-Citizens - An offender convicted for an offence(s) committed while the offender was not an Australian citizen or the holder of a visa giving permanent residency and for which he/she is currently serving a custodial sentence This criterion applies to an offender who has had a permanent residency visa cancelled." Chapter 20: External Pre-Release Leave Programs 1. Chapter 20 of the CCOPM outlines the parameters within which inmates are permitted to participate in External Leave Programs. Section 20.1.6 defines PRLC as a sub-committee of SORC which "provides an independent means of assessing applications for participation in certain external escorted, supervised programs and unescorted leave programs by inmates identified as 'Public Interest Inmates'." Part of the definition of the PRLC includes its functions, as follows: "The PRLC makes recommendations to the Commissioner on progression to C3/Cat1 who then determines classification and participation in external leave programs. Public interest inmates will only be permitted to access unescorted pre-release leave programs when the Commissioner has given approval after considering recommendation(s) for such participation from the [PRLC]." Chapter 21: External Leave Programs for Inmates Subject to Being Removed or Deported 1. Chapter 21 provides for External Leave Programs for Inmates Subject to Being Removed or Deported. It relevantly provides: "21.1.4. Unlawful Non-Citizens 'Unlawful Non-Citizen' refers to an inmate who did not have a valid visa at the time of his or her incarceration. DIBP [Department of Immigration and Border Protection] will issue these inmates with a visa to cover the period they are in custody. In most cases unlawful non-citizens will be removed from Australia either directly from a correctional centre or after being taken into immigration detention when released from CSNSW custody, but some may be eligible to apply for a visa. Unlawful Non-Citizens are included in the Public Interest Criteria for the purposes of considering an inmate's consideration for participation in an unescorted External Leave Program. The Classification and Case Management Review Coordinator must refer all unlawful non-citizen inmates to the Pre-Release Leave Committee (PRLC) for determination for progression to C3/CAT1. . . . 21.1.5. Lawful non-citizens Lawful non-citizen refers to an inmate who had a valid visa (eg A Special Category Visa if a citizen of New Zealand) at the time of his or her incarceration. The visa of a lawful non-citizen can be cancelled under section 501 of the Migration Act 1958." 1. The basis on which a lawful non-citizen's visa may be cancelled is provided for as follows: "21.1.5.2. Cancellation after consideration of circumstances A lawful non-citizen's visa may be cancelled if the inmate does not pass the character test as defined by section 501 of the Act. In these cases DIBP will issue the inmate with a Notice of Intention to Consider Cancellation (NOICC). The visa holder then has a prescribed time in which to respond to that notice. If a decision is made by DIBP to cancel the visa, the person will be notified that their visa has been cancelled. This notice must be in writing. The effect of the cancellation is immediate. If a person was in the community at the time of cancellation, they would be visited by DIBP officers and taken into a detention centre. If they are in a correctional centre they would be granted a form of temporary visa, eg a bridging visa, to enable incarceration in NSW until they are released and upon release taken to a detention centre." 1. The implications for inmates who are not Australian citizens are relevantly provided for as follows: "21.1.6. Progression to C3/CAT1: Careful consideration must be applied with respect to any inmate who is not an Australian citizen when being considered for classification progression to C3/CAT1 having regard to the potential for additional incentives to escape when facing uncertainty about being removed or deported. 1. Inmates who have submitted an appeal against a deportation or removal order issued by DIBP may not participate in external leave programs while the appeal is pending. 2. When the nationality and/or visa status of an inmate is unclear, he or she is not to be considered for C3/CAT1 until written confirmation is obtained from DIBP. Unlawful Non-Citizens (including temporary visa holders) - When it is proposed that an inmate who is an unlawful non-citizen (but who has been issued with a visa to cover the period they are in custody) participate in an Unescorted External Leave Program, the Commissioner must give approval for progression to C3/CAT1 through the PRLC for inmates NOT designated as serious offenders and through SORC for designated serious offenders. The issuing of a Section 6(2) ON/OFF order is at the discretion of the General Manager (MOS if delegated by General Manager)." Compendium of Offender Behaviour Change Programs in New South Wales 1. The Compendium of Offender Behaviour Change Programs in New South Wales dated June 2016 contains, as its name indicates, "the approved list of offender behaviour change programs within Corrective Services NSW that directly or indirectly seek to reduce re-offending." The EQUIPS Foundation Program is among the programs available. The Compendium relevantly provides, in relation to this program: "The general offender program - EQUIPS Foundation - is available to all offenders, regardless of offence type. While the program is not offence-type specific it does aim to reduce re-offending by addressing criminogenic needs for general offence types therefore all offenders can benefit from it. It specifically caters for the needs of offenders who do not meet the criteria for violent, sexual or addiction interventions. . . . EQUIPS Foundation is a general therapeutic program available to all offenders assessed as medium to high-risk of re-offending regardless of their offence type. The program consists of the following treatment modules . . ." 1. The eligibility and suitability criteria for this program are: "Eligibility Criteria LSIR: Offenders who are assessed as medium to high risk of recidivism as measured by the Level of Service Inventory-Revised (LSIR) (calculated risk score). Those who have a current offence resulting in a period of supervision or incarceration. Time left to serve: Those who have sufficient time remaining in their total sentence/order to complete the program. . . . Suitability Note that even if an offender meets the eligibility criteria, a suitability assessment is still required on a case by case basis as certain factors may find the offender unsuitable. Offenders in custody who are eligible require a Pre-Program Suitability Interview (PPSI) to ascertain their suitability. Community Corrections Officers are responsible for assessing the suitability of offenders under their supervision in the community. This should be undertaken as part of the normal case planning process with consideration of the offenders' risks/needs and the schedule of programs at their location." Level of Service Inventory-Revised 1. The Level of Service Inventory-Revised (LSIR), which is referred to in the criteria for eligibility set out above, is a calculated risk score. The evidence before me included a document, entitled, "Using the Level of Service Inventory-Revised (LSI-R) in CSNSW Correctional Centres: Offender Services and Programs staff". This document explains the calculation of LSIR and its use within the prison system. An inmate's LSIR is relevant to a determination of the programs for which the inmate might be eligible. The LSIR purports to create a profile of criminogenic needs by allocating scores to particular areas. The sum of the scores is used to determine the risk level by category from Low; Low/Medium; Medium; Medium/High and High. 2. One of the areas which contributes to an LSIR is "Alcohol/Drug Problems" (AOD). An AOD score of 2-4 means that there is "some need for improvement" and a score of 5-9 means that there is "considerable need for improvement". The factual background The sentence 1. The plaintiff is presently in custody, having been convicted of two counts of supplying a large quantity of prohibited drugs. His sentence of 8 years' imprisonment, which was imposed on 11 September 2015, commenced on 11 April 2014 and will expire on 10 April 2022. He will become eligible for parole on 10 October 2019. 2. On 24 September 2014 the plaintiff was assessed as having an AOD score of 4 which signified that there was "some need for improvement". 3. On 18 September 2015, a week after his sentence was imposed, the plaintiff was classified Category C1. On 8 March 2017 he was reclassified as C2. 4. On 27 June 2017 the plaintiff was transferred at his own request from Dawn de Loas Correctional Centre, Silverwater, to Parklea Correctional Centre (Parklea). The plaintiff's custodial history recorded that he wanted to transfer to Parklea so that he could "pursue his educational needs". I take this to be a reference to the plaintiff's wish to become legally qualified. The plaintiff understood that he would not be permitted to work "off complex" under s 6(2) of the Act if he remained at Dawn de Loas Correctional Centre. The first application for reclassification as C3 1. On 21 August 2017 the plaintiff sought reclassification as C3. He supplemented the submissions in his inmate request with further submissions dated 17 September 2017. The staff at Parklea recommended that he be reclassified. However, the Area Manager did not approve the reclassification. On 30 October 2017 the plaintiff was provided with reasons for the refusal, which included that the plaintiff's immigration status was under consideration and that his visa was likely to be cancelled. It was also noted that his "6.2 [on/off complex order under s 6(2)] has recently been suspended as a result of his current immigration status." He was informed that he could reapply for reclassification once a decision had been made on his immigration status. Cancellation of visa 1. On 21 November 2017 the Minister for Immigration and Border Protection cancelled the plaintiff's Special Category Visa pursuant to s 501 of the Migration Act on the ground that he did not pass the character test as he had a substantial criminal record within the meaning of s 501(7) of the Migration Act, having been sentenced to a term of imprisonment of 12 months or more. As a consequence, the plaintiff, who had previously been a lawful non-citizen, became an unlawful non-citizen and was designated a public interest inmate pursuant to section 18.4.3 of the CCOPM. As such, any application for his reclassification to C3 was required to be referred to the PRLC for consideration and recommendation to the Commissioner. The second application for reclassification as C3 1. On 8 January 2018 the plaintiff wrote to the Commissioner outlining his plans to become legally qualified. The letter concluded: ". . . A prisoner whom [sic] takes the initiative to better improve him-self [sic] should be assisted in this regard. I would, therefore, respectfully prevail upon you, Commissioner, to assist me in this regard. One would have thought that furthering a prisoners [sic] academic abilities and future prospects of employment was/is the touchstone of the executive arm of justice. Justice must not simply be applied equally, but be seen to be applied equally." 1. On 12 January 2018 the plaintiff applied for reclassification to C3. His application was supported by a five-page written submission. 2. On 9 February 2018 the Commissioner wrote to the plaintiff relevantly as follows: "With regard to your classification, you may apply to management at Parklea for C3 classification and access to pre-release leave programs. However, as you are currently subject to a visa cancellation by the Commonwealth any such application would need to be considered by the Pre-Release Leave Committee (PRLC) of the Serious Offenders Review Council. The PRLC would make a recommendation for my consideration. The application would be considered in accordance with legislation and Corrective Services NSW policies. You should note your immigration status would form an important part of the Committee's consideration." 1. The plaintiff's application was supplemented by further written submissions and documents provided on 8 March 2018. He informed the Case Management Team (CMT), the PRLC and the Commissioner that he wanted to complete a Bachelor of Laws degree in order to obtain employment on his release and had secured a place to study remotely with the University of New England which he had deferred until second term. He also annexed a letter of offer from a law firm, Sydney Criminal Defence Lawyers, as an Administrative Assistant. 2. On 13 March 2018 the author of a document entitled "Review of Classification", who was accepted to be part of the CMT, recommended "progression to C3". The matter was then referred to the PRLC on 16 April 2018 pursuant to section 21.1.6(3) of CCOPM. The PRLC recommended against progression to C3 and said: "Although Correctional Centre Management supports progression in classification and inmate receives positive reports, the PRLC recommends that, prior to consideration of progression, the inmate be assessed for eligibility to undertake EQUIPS Foundation and complete this program if eligible." 1. The recommendation was expressed as follows: "1) [The plaintiff's] current C2 (Section 6.2 ON complex/property) security classification remain unchanged. 2) [The plaintiff] may re-apply after being assessed for eligibility to undertake the EQUIPS Foundation Program and found to be ineligible. 3) If found eligible for EQUIPS Foundation, [the plaintiff] may re-apply after successful completion of the program." 1. On 1 June 2018 the Commissioner refused to reclassify the plaintiff and approved the PRLC's recommendation (the Commissioner's decision) and added, above his signature in the box headed "Comments of Commissioner": "Please note that this inmate has no resettlement needs in Australia!" 1. On 4 July 2017 the plaintiff signed a document confirming that he had been advised that he met the eligibility criteria for the EQUIPS Foundation program but that he did not wish to participate. He ticked the box stating that he had been informed that his decision may affect his parole and progression while in custody. The plaintiff gave the following reason for his decision: "[A]s I am appealing the premise of my convictions, at this stage, it would be unsuitable and inappropriate to part take [sic], as I believe disclosure of the alleged elements of the offences of which I stand convicted may hinder and in fact [compromise] my ongoing legal proceeding, that is appeal against conviction. On any view, the nominated course has no basis of [sic] proven methods in reducing recidivism." 1. He had given a similar response in an earlier form on 19 October 2017. The plaintiff's AOD score 1. In a status report dated 7 March 2018 the plaintiff was assessed as having an AOD score of 5, which signified that he was within the range where there was thought to be "considerable need for improvement". However, this assessment was not provided to the PRLC. The material which was before the PRLC, and subsequently the Commissioner, indicated that the plaintiff, who had previously been assessed as "Medium", did not have an up-to-date LSIR score. It can also be inferred from the requirement that he perform the EQUIPS Foundation Program rather than the EQUIPS Addiction Program that he was not being assessed on the basis of an AOD of 5, since this would have made him eligible for the latter program. 2. The entries in the plaintiff's case notes which were before the PRLC consistently record throughout the period from January to April 2018 that the plaintiff had been assessed as unsuitable for EQUIPS Addictions but that he may benefit from EQUIPS Foundation. The grounds of appeal 1. Before addressing the grounds, I note that, in addition to his oral submissions at the hearing, the plaintiff provided several documents to the Court which contain his written submissions, both in chief and in response to the Commissioner's decision. In his written submissions, the plaintiff did not indicate, in all cases, the ground to which the submissions related. I have endeavoured, in addressing the plaintiff's submissions, to deal with them by reference to the particular grounds. However, as some submissions could be allocated to more than one ground, this has involved a degree of judgment. The challenge to the PRLC's recommendation 1. The plaintiff challenges both the recommendation of the PRLC and the Commissioner's decision. This Court has no jurisdiction to review decisions or conduct that does not affect legal rights. As a recommendation from the PRLC has no discernible effect on the plaintiff's rights, any error would not entitle the plaintiff to relief: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44 at 159: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580-581 (Mason CJ, Dawson , Toohey and Gaudron JJ); [1992] HCA 10. Accordingly, it is only necessary to consider the Commissioner's decision. What constitutes "the record" 1. As referred to above, some of the grounds raise alleged error of law on the face of the record while others raise jurisdictional error. In these circumstances it is necessary to identify "the record" for the purposes of those grounds which are confined to errors of law on the face of the record. 2. The plaintiff provided written submissions and documents to the PRLC. His written submissions and some of the documents were provided to the Commissioner in the form of a bundle attached to the PRLC's recommendation. Not all of the documents provided to the PRLC were contained in the bundle. However, the substance of the documents and other matters germane to the application was summarised in the covering minute from the PRLC to the Commissioner which accompanied the bundle. The Commissioner's decision is recorded on the covering minute by his indication that he approved the recommendation, his signature and the handwritten note. The bundle, including the covering minute and the Commissioner's notations constitute "the record". The other material tendered may not be taken into account on grounds confined to the record but it may be taken into account on the other grounds, such as alleged bias, alleged lack of procedural fairness and alleged bad faith. Alleged lack of procedural fairness (ground 1) and alleged improper conduct defeating the plaintiff's legitimate expectation (ground 13) 1. Ground 1 raises denial of procedural fairness. The plaintiff has not identified any document provided to the PRLC the substance of which was not adequately brought to the attention of the Commissioner in the documents attached to, or in the summary provided in, the bundle which constitutes the record. There is no indication in the material that either the PRLC or the Commissioner did not consider the material which the plaintiff provided in support of his application for reclassification. Ground 1 has not been made out. 2. Ground 13 raises the concept of "legitimate expectation", which was once thought to be a pre-requisite to the provision of procedural fairness. However, in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, the High Court (Kiefel, Bell and Keane JJ) said at [30]: "[I]n the absence of a clear, contrary legislative intention, administrative decision‑makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made." 1. Ground 13 does not raise an additional point. It was common ground that the applicant was entitled to be accorded procedural fairness, in that he was entitled to have an opportunity to be heard on why he ought be reclassified. He had that opportunity. His correspondence and the documents he relied upon were provided to the Commissioner or adequately summarised for him. Ground 13 has not been made out. The Commissioner's decision was allegedly ultra vires (ground 2) 1. The plaintiff contended that the Commissioner's decision was ultra vires because he was dealt with as if he were a serious offender when he did not fall into that category. As referred to above, it was common ground that the plaintiff was not a serious offender. However, the words of s 197(2)(f) which provide that SORC is "to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders" indicate that SORC can perform functions prescribed by the regulations in relation to the management of all offenders, being serious offenders and other (that is, non-serious) offenders. The plaintiff's reliance on the maxim ejusdem generis (general matters are constrained by specific matters) is misplaced. There is no list in s 197(2)(f). There is merely a description of the universal set of offenders: those who are serious offenders and those who are not. In these circumstances, there is no basis for reading down "other offenders" in s 197(2)(f). 2. CAS Regulation 311(1)(e) contemplates that the Commissioner will request reports, advice and recommendations from SORC (and its sub-committees) on any matter specified by the Commissioner. It follows that the Commissioner was entitled to request that SORC consider the plaintiff's application and make a recommendation to him and that SORC was obliged to fulfil its function to provide such a recommendation. The Chairperson was entitled to delegate this function to the PRLC, as is reflected in the extracts from the CCOPM set out above. I assume that this occurred in the present case, there being no suggestion to the contrary and no challenge to the delegation. The plaintiff submitted that CAS regulation 311(1)(e) was ultra vires the regulation-making power conferred by s 271(1) because it purports to apply to the plaintiff when he is not a serious offender. I reject this submission. A regulation constitutes "any other Act or law" for the purposes of s 197(1). As referred to above, the functions conferred on SORC are not limited to those relating to serious offenders. 3. Pursuant to CAS regulation 12(2), it was for the Commissioner to make the decision whether to vary the plaintiff's classification. The record (referred to above) indicates that the Commissioner made the decision himself not to vary the plaintiff's classification on the recommendation of the PRLC. In these circumstances, the plaintiff has not established that the Commissioner's decision was ultra vires. Alleged real or apprehended bias (ground 3) 1. The plaintiff submitted that the Commissioner's note that the plaintiff had no resettlement needs, together with the time taken to make the decision established real or apprehended bias. The plaintiff contended, in his written submissions: "It is evident that the mere fact that the applicant is not a naturalised Australian, but a New Zealand national, awaiting removal from Australia at the determination [sic] of his sentence or otherwise, weighed heavily in the decision-making process of the Commissioner not to progress the applicant through to C3 when exercising his statutory duties in the decision-making process." 1. The plaintiff argued that the Commissioner's note indicated that the Commissioner intended to absolve himself from any responsibility towards the plaintiff. The plaintiff also relied on the object in s 2A(d) set out above in support of the submission that his reintegration into the general community would be served by his reclassification as C3. 2. The plaintiff also sought to draw an analogy between his situation and that of a "transferred prisoner" under the International Transfer of Prisoners (New South Wales) Act 1997 (NSW). The plaintiff contended that CAS regulation 19 ought be read so as to confine the matter to be considered in (b) to security issues, that being the evident concern of (a). 3. The Commissioner was obliged to take into account, in making the decision whether to vary the plaintiff's classification, whether or not the inmate was likely to be removed from Australia: CAS regulation 19; see also Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-41 (Mason J); [1986] HCA 40. There is nothing in that regulation which indicates that the consideration in (b) is to be confined to the parameters of the consideration in (a). Accordingly, although the Commissioner was obliged to take into account that the plaintiff was likely to be removed from Australia, as he was an unlawful non-citizen, it was for the Commissioner to determine how he would take that into account and what weight he would give to it: Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5]–[7] (Gleeson CJ). The matter in CAS regulation 19(b) was relevant on at least two bases: first, it is possible that there would be a heightened level of risk that the plaintiff would abscond in Australia in preference to being deported to New Zealand; and, secondly, that when the plaintiff was released to parole he would not be at liberty in the community but would be required to go to a detention centre to be deported. The Commissioner's note indicated that he specifically considered the second consequence of the plaintiff's status as an unlawful non-citizen. 4. The plaintiff cannot establish bias, whether actual or apprehended, by reference to a factor which the Commissioner was obliged, by law, to take into account. The alleged analogy between the present situation and the International Transfer of Prisoners (New South Wales) Act is inapposite. Not only are the statutory provisions different but also the purpose of the International Transfer of Prisoners (New South Wales) Act is to create a degree of parity between prisoners sentenced in Australia and those sentenced in New Zealand upon transfer. By contrast, the Commissioner is obliged by CAS Regulation 19(b) to consider the immigration status of a prisoner when deciding whether to reclassify the prisoner. 5. In support of the bias ground, the plaintiff contended that the Commissioner was discriminating against him because he was not an Australian citizen and that, to the extent that this treatment was authorised by CAS Regulation 19(b), it was a discriminatory law. This argument must be rejected. As Gaudron and McHugh JJ said in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478; [1990] HCA 1: "A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction." 1. In the present case, CAS regulation 19(b) not only authorises, but also requires, the Commissioner to take into account whether or not the inmate (the plaintiff) is likely to be removed from Australia. There is no "overriding law" which decrees that matter to be irrelevant and is, accordingly, not discriminatory. 2. The plaintiff also relied, in support of the bias ground, on the status report dated 7 March 2018 in which his AOD score was recorded as 5. For the reasons given above, this score is irrelevant to the plaintiff's challenge to the Commissioner's decision as the PRLC was not privy to it. 3. The plaintiff contended that the delay between his application for reclassification and the decision demonstrated bias. The evidence showed that the minute from the PRLC to the Commissioner was dated 29 May 2018 and the Commissioner's decision was made on 1 June 2018. The Commissioner was entitled to have the PRLC consider the application and make a recommendation to him. In any event, the evidence does not establish any particular delay on the part of the PRLC in considering the application and formulating its recommendation. In these circumstances the allegation of bias is not made out. 4. The plaintiff also contended that the Commissioner was guilty of "post-decision" bias in appending the note to his decision. The note indicates that the Commissioner had turned his mind to a relevant consideration (CAS regulation 19(b)) and had addressed the plaintiff's situation specifically. I do not regard the reference to lack of settlement needs as indicating any actual or apprehended bias. Accordingly this ground has not been made out. Alleged inflexible application of policy (ground 4) 1. A decision-maker is entitled to develop criteria for the exercise of a discretionary statutory power and to take account of a policy in doing so: Drake v Minister for Immigration (1979) 24 ALR 577. However, the decision-maker is not entitled to abdicate its function of making a decision by merely deciding in conformity with the relevant policy without regard to the actual facts of the case: Green v Daniels (1977) 51 ALJR 463. The principles were summarised by Bowen CJ and Deane J in Drake v Minister for Immigration in the following passage at 590-591: "It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interest of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it. An example of an area of decision-making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions." 1. The balancing of consistency and the circumstances of the individual case was pre-eminently a matter for the Commissioner. In Clark v Commissioner for Corrective Services [2016] NSWCA 186, at [31] Basten JA emphasised: "the importance for the good order of the prison in not having arbitrary arrangements, pursuant to which some prisoners may be perceived to receive preferential treatment. That is, within the custodial setting, rules of general application can properly be applied with limited scope to take account of individual circumstances." 1. Emmett AJA (Simpson JA agreeing) said at [85]: "Statutes governing discipline and control of prisoners in gaol should not be construed as if they were intended to confer fixed legal rights upon prisoners. That is not to say that judicial review is unavailable, rather that the relevant legislation is indicative of parliament's intention that those responsible for the maintenance of prison administration and management should be given a broad discretion commensurate with the nature of the task and the balancing of potentially conflicting considerations." 1. There is no prohibition on the reclassification of a person such as the plaintiff to C3 in the policy documents extracted above. All that is required by the Commissioner is that the matter be considered by the PRLC and that a recommendation be made to him. The standard covering minute provides for him to approve or not approve the recommendation. In the present case, the Commissioner accepted the PRLC's recommendation that the plaintiff be required to complete the EQUIPS Foundation Program, if eligible, before further consideration would be given to his reclassification. 2. The plaintiff contended that he ought not to have been required to undertake the EQUIPS Foundation Program before his reclassification was considered. He submitted that it was premature to require him to do so in circumstances where his suitability for the program had not yet been determined. He argued that he ought to have been excluded from participating in the program because he was seeking to appeal against his conviction. He referred to other programs, such as the Violent Offender Treatment Program, from which prisoners who are contesting their convictions are excluded. 3. I do not discern either from the PRLC's recommendation or the Commissioner's decision any inflexible application of policy. It was open to the Commissioner to have the plaintiff's eligibility for the program determined before his suitability. Once the plaintiff refused to participate in the program identified, he could not fulfil the condition in the Commissioner's decision. The nature of his reasons for not being prepared to participate does not absolve him from the requirement to comply with the condition or establish any legal error on the part of the Commissioner for imposing the condition. It was open to the Commissioner to require that the plaintiff's eligibility for the program be determined as a condition of his reclassification being considered further. 4. Further, the analogy between the EQUIPS Foundation Program and the Violent Offender Therapeutic Program (VOTP) is inapt. The VOTP specifically provides, under the heading "Exclusion criteria": "Violent offenders appealing against their conviction will not be suitable for VOTP." 1. There is no equivalent exclusion in relation to the EQUIPS Foundation Program. Accordingly, the fact that the plaintiff is seeking to appeal against his conviction does not exclude him from participating in this program. 2. The condition imposed by the Commissioner in his decision appears to have been tailored to the plaintiff's actual circumstances, including the type of offences which he had committed. The present case may be distinguished from Davison v Commissioner for Corrective Services [2011] NSWSC 699, where McCallum J set aside a decision of the Commissioner where the delegate had not accepted SORC's recommendation in circumstances where there was no express indication of why the recommendation had not been accepted. Her Honour inferred that the decision had been made on the basis of an inflexible rule or policy that sex offenders could not be reclassified until they had completed treatment programs. Alleged taking into account irrelevant considerations (ground 5) and failing to take into account relevant considerations (ground 6) 1. It is an error of law for a decision-maker to take into account considerations that he or she is bound not to take into account or to fail to take into account matters that he or she is bound to take into account. However, where a statute has conferred a discretion which is in terms unconfined it is for the decision matter to decide what matters may be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend at 40-41. 2. The plaintiff alleged that the Commissioner had taken into account the following considerations which he contended were legally irrelevant: 1. that the plaintiff had no resettlement needs in Australia; 2. that the plaintiff has not completed the EQUIPS Foundation course; and 3. that the plaintiff is not a serious offender. 1. As to (3), it can be put aside. It was open to the Commissioner to obtain a recommendation from the PRLC regarding the plaintiff notwithstanding that he was not a serious offender. 2. As to (1), the matter fell within the parameters of CAS regulation 19(b) and therefore was legally relevant. 3. As to (2), the risk profile of a prisoner is rationally relevant to whether the prisoner ought be reclassified to a category of lower security (from C2 to C3). The stated purpose of the EQUIPS Foundation program was to "aim to reduce re-offending by addressing criminogenic needs for general offence types therefore all offenders can benefit from it" (see extract above). This was a matter which the Commissioner was not prohibited from taking into account and, as the decision-maker, was entitled to take into account. 4. It is not clear from the plaintiff's submissions which matters he alleges the Commissioner was obliged, and failed, to take into account. It was a matter for the Commissioner to decide what to take into account, as long as the plaintiff's submissions were considered. The weight to be given to any particular matter was pre-eminently one for the Commissioner. 5. Neither ground 5 nor ground 6 has been made out. Alleged improper purpose (ground 7) 1. The plaintiff submitted orally that the PRLC had recommended that he do the EQUIPS Foundation program to improve the statistics relating to the attendance at the program. There is no evidence of this. I do not discern any indication in the PRLC's recommendation to the Commissioner or the Commissioner's decision that the decision was made for other than proper purposes. As referred to above, the Commissioner was entitled to consider that it was appropriate that the plaintiff, if eligible, participate in the EQUIPS Foundation program before his reclassification was further considered. 2. As I understand it, the plaintiff's objection to participating in this program is that he might be required to acknowledge his offending conduct as part of the program. As any such acknowledgement could jeopardise his chances of resisting a re-trial if his pending appeal against conviction were successful, he has refused to participate in the program. It could not reasonably be suggested that the Commissioner's motivation for requiring him to do the program, if eligible, was to obtain an admission of guilt, in circumstances where he was convicted and sentenced in September 2015 and will be eligible for parole in approximately six months. Ground 7 has not been made out. Alleged error on the face of the record (ground 8) 1. I understand that this ground encompasses all other grounds, apart from alleged bias, alleged lack of procedural fairness and alleged improper purpose which are not confined to the record. Accordingly it does not need to be separately addressed. Alleged bad faith (ground 9) 1. The allegation of bad faith appears to be based on the allegation that the Commissioner has used an AOD score for the plaintiff of 5. For the reasons given above, this premise has not been made out since neither the PRLC nor the Commissioner was privy to the status report which contained this score. 2. The plaintiff also argued that the delay in processing his application and the requirement that he participate in the program had prejudiced his position since in about six months he will be eligible for parole in any event. There is no basis for inferring that the time between the submission of the application and the Commissioner's decision was a manifestation of bad faith. For the reasons given above, the Commissioner was entitled to obtain a recommendation from PRLC before making a decision whether to vary the plaintiff's classification. Alleged unreasonableness or irrationality (ground 10) 1. The ground of legal unreasonableness can only be made out if the plaintiff establishes that no reasonable decision maker could have made the decision: Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18. As Hayne, Kiefel and Bell JJ said in that case at [76]: "Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." 1. The plaintiff resorted to the merits of the Commissioner's decision when addressing this ground. He submitted that it was unreasonable for the Commissioner to require him to spend time doing an EQUIPS Foundation Program when his rehabilitation would be better advanced by allowing him to work in a solicitor's office and study for a law degree. This Court's jurisdiction under s 69 of the Supreme Court Act does not permit a review of the merits of the Commissioner's decision. The Commissioner was the relevant decision-maker; the plaintiff had no entitlement to be reclassified C3. This Court's jurisdiction is confined to errors of law on the face of the record and jurisdictional errors. The plaintiff has failed to establish legal unreasonableness within the meaning of the concept as addressed in Minister for Immigration v Li. Alleged exercise of non-delegable powers (ground 11) 1. The plaintiff alleged that the Commissioner exercised a delegated power. The Commissioner's power to vary the plaintiff's classification derived from CAS regulation 12(2). The record indicated that the Commissioner exercised the power personally. Not only did the Commissioner sign the document and indicate on it that he approved the recommendation of the PRLC, he also made the comment about the plaintiff's lack of resettlement needs, which can be taken to be a reference to his status as an unlawful non-citizen. In these circumstances, it is not necessary to address the hypothetical question whether the Commission would have been entitled to delegate his power. This ground has not been made out. Alleged exercise of powers contrary to law or ultra vires decision (ground 12) 1. The plaintiff did not raise any matter under this ground which was additional to the matters raised in support of grounds 2 and 11 which have been considered above. Accordingly, this ground does not need to be further addressed. Conclusion 1. For the reasons given above the plaintiff has not established any basis on which this Court could set aside the Commissioner's decision. Accordingly, the summons must be dismissed. 2. Mr Emmett confirmed that, despite an indication to the contrary in the Commissioner's written submissions, the Commissioner did not seek his costs of the proceedings. Orders 1. For the reasons given above, I make the following orders: 1. Dismiss the summons. 2. Make no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2019