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Administrative Judicial Review Dismissed - Licence Refusal Appeal

Australia Federal Court Latest Judgments

Filed March 20th, 2026

Detected March 30th, 2026

Summary

The Federal Court of Australia dismissed an application for judicial review brought by JGW25 challenging a decision to refuse a licence under s 19AP of the Crimes Act 1914 (Cth). The applicant raised grounds including constructive failure to exercise jurisdiction, legal unreasonableness, reliance on erroneous information, and failure to consider relevant matters. The Court ordered the applicant to pay the respondent's costs.

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What changed

The Federal Court of Australia dismissed VID 1300 of 2024, an application for judicial review of a decision to refuse a licence under s 19AP of the Crimes Act 1914 (Cth). The applicant challenged the delegate's decision on multiple administrative law grounds including constructive failure to exercise jurisdiction, legal unreasonableness, reliance on erroneous information, and failure to take into account relevant considerations. Justice Vandongen rejected all grounds of review. The judgment was partially suppressed under s 37AF of the Federal Court of Australia Act 1976, with parties required to propose redacted versions for publication within seven days.

The practical effect is that the original licence refusal decision stands. The applicant was ordered to pay the respondent's costs. This is an individual case decision that applies existing administrative law principles to the facts at hand. It does not create new regulatory obligations for the broader public, but serves as precedent for how courts assess challenges to licence refusals under the Crimes Act 1914 framework.

Penalties

Applicant ordered to pay respondent's costs of the application

Source document (simplified)

Original Word Document (126.5 KB) Federal Court of Australia

JGW25 v Attorney-General (Cth) [2026] FCA 321

| File number: | VID 1300 of 2024 |
| | |
| Judgment of: | VANDONGEN J |
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| Date of judgment: | 20 March 2026 |
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| Catchwords: | ADMINISTRATIVE LAW - application for judicial review of decision to refuse to grant licence under s 19AP of Crimes Act 1914 (Cth) - whether delegate failed to constructively exercise jurisdiction - whether delegate's decision was legally unreasonable - whether delegate erred by relying on erroneous information - whether delegate failed to take into account relevant considerations - application dismissed |
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| Legislation: | A dministrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13, Sch 2

Crimes Act 1914 (Cth) ss 16, 16A, 19ALA, 19ALB, 19AP, Pt 1B

Criminal Code Act (Cth) ss 11, 361

Customs Act 1901 (Cth) s 233BAB

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Judiciary Act 1903 (Cth) s 39B

Cornwell v Attorney-General of the Commonwealth of Australia (1993) 45 FCR 492

Dalton v Attorney-General of the Commonwealth of Australia [2025] FCA 625

Hasim v Attorney-General (Cth) [2013] FCA 1433; (2013) 218 FCR 25

Jackson v Minister for Justice [2011] FCA 831

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

Lodhi v Attorney-General (Cth) [2020] FCA 1383

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Ng v Attorney-General (Cth) [2017] FCA 1392

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217

R v Kelly (Edward) [2000] QB 198

Roberts v Attorney - General (Cth) [2022] FCA 574

Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173

Applicant | |
| AND: | ATTORNEY-GENERAL (COMMONWEALTH)

Respondent | |

The amended originating application for judicial review filed on 11 April 2025 is dismissed.
The applicant is to pay the respondent's costs of the application.
Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground in s 37AG(1)(c):

(a) the reasons for judgment are not to be published and are not to be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court; and

(b) within seven days of this order the parties are to provide to the Associate to Justice Vandongen a proposed redacted version of the reasons for judgment which each party considers, or if the parties agree, which the parties jointly consider is appropriate for publication.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1 The applicant is serving a sentence of 15 years' imprisonment, with a non-parole period of 11 years. His non-parole period is due to expire on 30 August 2027. That sentence was imposed after the applicant was convicted of several very serious offences concerning the unlawful importation of firearms into Australia.

2 The applicant made an unsuccessful application to the respondent, the Commonwealth Attorney-General, in 2019 to be released from prison on licence, pursuant to s 19AP of the Crimes Act 1914 (Cth) (first application). In June 2021, the applicant made a further application under s 19AP to be released on licence (second application). In February 2025, after an extraordinary delay of over three and a half years, and then only after the applicant made an application to this Court in November 2024 for judicial review of the respondent's failure to determine his second application to be released on licence, a delegate of the respondent eventually refused to grant the licence sought.

3 With the assistance of pro bono counsel, and pursuant to an amended originating application for judicial review, the applicant applies for judicial review of the decision made by the respondent's delegate. The applicant seeks an order in the nature of certiorari quashing that decision and an order of mandamus compelling the respondent to make a decision under s 19AP according to law. In the alternative, the applicant seeks orders to similar effect under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

4 For the following reasons, the application for judicial review and for orders under the ADJR Act must be dismissed with costs.

5 Before explaining why I have reached that conclusion, it is convenient to begin by summarising some of the relevant background.

Some relevant background

6 [Redacted] the applicant was sentenced in the County Court of Victoria to a total effective sentence of 10 years and three months' imprisonment for four counts of importing 'tier 2 goods', contrary to s 233BAB(5) of the Customs Act 1901 (Cth), as well as two further counts of attempting to import firearms or firearm parts with the intention of trafficking, contrary to ss 11.1(1) and 361.2(3) of the Criminal Code (Cth). [Redacted].

7 The Crown successfully appealed against the sentence imposed on the applicant and against the non-parole period. None of the individual sentences imposed on the applicant were disturbed. Instead, the Court of Appeal of the Supreme Court of Victoria (Court of Appeal) set aside the sentencing judge's orders for cumulation of the individual sentences. On resentencing, different orders for cumulation were made, producing a total effective sentence of 15 years. A non-parole period of 11 years was also imposed, after the Court of Appeal took into account the applicant's age, health issues and prospects of rehabilitation. The applicant's non-parole period will expire on 30 August 2027, and his aggregate sentence will expire on 30 August 2031.

8 The applicant made the first application on 15 September 2019. However, on 28 August 2020, a delegate of the respondent decided not to grant the applicant a licence. Subsequently, on 12 May 2021 the applicant made the second application, which was received by the Attorney-General's Department on 1 June 2021. However, several years then passed without any decision being made. It was only when the applicant filed in this Court an originating application for judicial review in November 2024 that a decision was then made.

9 In a brief letter addressed to the applicant and dated 20 February 2025, a delegate of the respondent informed the applicant that:

After careful consideration I am not satisfied that there are exceptional circumstances that justify your release on licence for any of the grounds that you raise either in combination or individually.

10 There is no dispute that the delegate had power to make that decision pursuant to a delegation made under s 17(2) of the Law Officers Act 1964 (Cth). It is also common ground that, in reaching that decision, the delegate had before him a 26-page submission prepared by the Director of the Commonwealth Parole Office (CPO) which included 249 pages of attachments (CPO submissions). I will summarise the delegate's decision, as well as the CPO submissions and its attachments, later in these reasons.

11 After the delegate informed the applicant of the decision not to grant him a licence to be released from prison, the applicant filed an amended originating application in April 2025. In that amended application the applicant contends that the delegate fell into jurisdictional error, or otherwise erred on grounds provided for in s 5 of the ADJR Act, in deciding not to grant him a licence to be released from prison. The applicant argues that the delegate failed to constructively exercise the jurisdiction conferred on the respondent under s 19AP of the Crimes Act by, in effect, failing to genuinely consider the applicant's claim that his various medical conditions were not being adequately treated while he was in custody. The applicant also contends that the delegate's decision was 'legally unreasonable' in several respects. Finally, the applicant argues, in effect, that the delegate erroneously failed to take into account several relevant considerations that he was required to take into account.

12 Before dealing with each of the applicant's contentions, it is necessary to say something about the legislative provisions pursuant to which the delegate was required to consider whether to grant the applicant a licence to be released from prison.

Relevant legislative provisions

13 Section 19AP appears in Div 5 of Pt IB of the Crimes Act. Part IB, which is entitled 'Sentencing, imprisonment and release of federal offenders', contains various provisions concerned with the sentencing of persons convicted of offences against the law of the Commonwealth. Division 5 is specifically concerned with the conditional release on parole or on licence of persons serving sentences of imprisonment for such offences.

14 Section 19AP, insofar as it is relevant for present purposes, is in the following terms:

19 AP Release on licence

(1) Where a person is serving a federal sentence (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), the Attorney-General may grant a licence under this subsection for the person to be released from prison.

(2) A person who is serving a federal sentence of imprisonment (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), or another person acting on that person's behalf, may apply to the Attorney-General for a licence under this subsection for the first-mentioned person to be released from prison.

(3) An application under subsection (2) must:

(a) be in writing; and

(b) specify the exceptional circumstances relied on to justify the grant of the licence.

(4) The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.

(4A) Without limiting the matters to which the Attorney-General may have regard for the purposes of subsection (4), the Attorney-General may have regard to:

(a) any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or

(b) any extensive cooperation by the person with law enforcement agencies after sentencing; or

(5) The Attorney-General is not required to consider an application under subsection (2) in respect of a person if an application has been made under that subsection in respect of that person within one year before the first-mentioned application.

…

15 Section 19AP also provides that a licence must specify the day on which the licence period ends, which must be a day not earlier than 5 years after the person is released on licence: s 19AP(6) of the Crimes Act. Release on licence may also be on conditions, including that during the licence period the person be of good behaviour and be subject to supervision: s 19AP(7). Further, a licence directing that the offender be released from prison is sufficient authority for the release: s 19AP(10).

16 A person who is serving a 'federal sentence' does not have a right to be granted a licence for release from prison. Instead, s 19AP(1) confers on the Attorney-General a discretion to grant a licence: Hasim v Attorney-General (Cth) [2013] FCA 1433; (2013) 218 FCR 25 at [47].

17 The term 'federal sentence' is defined in s 16(1) of the Crimes Act to mean 'a sentence imposed for a federal offence', and a 'federal offence' is in turn defined to mean 'an offence against the law of the Commonwealth'. Further, the term 'sentence' is defined in s 16(1) to mean a sentence of imprisonment.

18 Section 19AP(4) provides that the Attorney-General must not grant a licence under s 19AP 'unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence'. As Greenwood J noted in Hasim at [47]:

Section 19AP(4) makes the relationship between the exercise of the discretion and the specified exceptional circumstances justifying the exercise of that discretion plain, by providing that the Attorney‑General must not grant a licence under s 19AP unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.

(original emphasis)

19 Accordingly, while s 19AP(1) confers a broad discretion on the Attorney-General to grant a licence, s 19AP(4) constrains the circumstances in which that discretion may be exercised: Ha s im at [48].

20 The phrase 'exceptional circumstances' is not defined in the Crimes Act. Unsurprisingly, it has been said that the word 'exceptional' is broad, that it is in many respects vague and that it is a term that has a wide operation: Hasim at [62]. In Lodhi v Attorney-General (Cth) [2020] FCA 1383, a matter that concerned s 19ALB of the Crimes Act, Bromwich J at [21] to [22] observed that the following passage from R v Kelly (Edward) [2000] QB 198 at 208 (Bingham LCJ for the Court) has been adopted in many cases in Australia involving statutes with this or similar phrases:

We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

21 See, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at 30.

22 The requirement that the Attorney-General must first be satisfied that there are exceptional circumstances before the discretion to grant a licence under s 19AP(1) is enlivened suggests a legislative intention that there be a high degree of deference to the judicial process under which a prison sentence was imposed and then intended to be served: Ng v Attorney-General (Cth) [2017] FCA 1392 at [21]. Release on licence is not, at least other than in exceptional circumstances, intended to be a process by which sentences imposed by courts are able to be the subject of some kind of de facto executive review: Ng at [23].

23 There is nothing in the text used in s 19AP that suggests that the Attorney-General must grant a licence to a person, even if satisfied that exceptional circumstances exist. The Attorney-General has a broad discretion to decide whether a licence should be granted but lacks the power to exercise that discretion if he or she is not satisfied of the existence of exceptional circumstances: Jackson v Minister for Justice [2011] FCA 831 at [24].

24 Section 19AP, and the Crimes Act generally, do not expressly prescribe the factors the Attorney-General must or must not take into account in determining whether he or she is satisfied that exceptional circumstances exist in a particular case or, if so satisfied, in exercising the discretion conferred by s 19AP(1). However, s 19AP(4A) does refer to the following three specific matters to which the Attorney-General may have regard for the purposes of determining whether he or she is satisfied of the existence of exceptional circumstances justifying the grant of a licence:

(a) any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or

(b) any extensive cooperation by the person with law enforcement agencies after sentencing; or

25 Having regard to ordinary sentencing principles, and to the factors courts are required to take into account under s 16A of the Crimes Act when sentencing a person for a federal offence, it is easy to understand why the Attorney-General might in a particular case be satisfied that one or a combination of those matters amount to exceptional circumstances justifying the grant of a licence.

26 It is important to appreciate that s 19AP(4) requires that, before granting a licence under s 19AP(1), the Attorney-General must be satisfied that exceptional circumstances exist which justify the grant of a licence. This means that the Attorney-General must be satisfied that the relevant circumstances exist, that those circumstances are exceptional, and that they justify releasing a person on licence in circumstances in which they have already been convicted and sentenced to a term of imprisonment.

27 Under s 19AP(2) a person who is serving a 'federal sentence of imprisonment', or another person acting on that person's behalf, may apply to the Attorney-General for a licence to be released from prison. However, there is nothing in the text used in s 19AP to suggest that the Attorney-General may only exercise the discretion in s 19AP(1) if an application has been made under s 19AP(2). Accordingly, the Attorney-General may of his or her own volition decide to grant a licence to a person serving a relevant sentence, provided that the Attorney-General is first satisfied that exceptional circumstances exist that justify the grant.

28 If an application is made under s 19AP(2), then the application must ' specify the exceptional circumstances relied on to justify the grant of the licence' (emphasis added): s 19AP(3)(b). The evident purpose of the requirement to specify the exceptional circumstances that are relied upon is to ensure that there is a clearly identified framework within which the Attorney-General is to decide whether to grant a licence. This is reinforced by s 19AP(3)(a), which requires that an application to be released on licence be made in writing.

29 When s 19AP(3) is read with s 19AP(1) it may be seen that in exercising the discretion to grant a licence to a person serving a federal sentence, the Attorney-General must have regard to the particular circumstances that are specified in an application and are relied upon as exceptional circumstances justifying the grant of the licence made under s 19AP(2): Hasim at [49]; Cf Ng at [22]. In having regard to those circumstances, the Attorney-General is ordinarily required to consider them individually and in combination with each other.

30 It may be anticipated that where a prisoner applies under s 19AP(2) for early release on licence the written application that is required by s 19AP(3)(a) may not always clearly 'specify' the circumstances that are relied upon as exceptional circumstances justifying the grant of such a licence. Nevertheless, as the Attorney-General is required to have regard to such circumstances when deciding whether to grant a licence under s 19AP(1), it will be necessary for care to be taken to ensure that the Attorney-General correctly identifies those specified circumstances. A failure by the Attorney-General to correctly identify a specified exceptional circumstance relied on by a prisoner to justify the grant of a licence under s 19AP(1) is likely to be productive of a failure to have regard to a mandatory consideration and to thereby fail to carry out the statutory task required by s 19AP.

31 Based on the materials that are before this Court, the CPO did seek to ensure that it had correctly identified the specified exceptional circumstances on which the applicant relied. In that respect, the CPO wrote to the applicant on several occasions in what were termed 'adverse comments letters' that were sent to the applicant for the purpose of affording him natural justice. In each of those letters the CPO advised the applicant that his application was considered to be based on certain clearly articulated circumstances. I will come to discuss those circumstances later in these reasons.

32 The Attorney-General must consider an application made under s 19AP(2). Otherwise, the ability to make an application under s 19AP(2), and the requirement that such an application comply with the conditions in s 19AP(3), would be devoid of utility. Further, and as was made clear in Dalton v Attorney-General of the Commonwealth of Australia [2025] FCA 625 at [84], although s 19AP is silent as to the period within which a decision must be made after receipt of an application for a licence, there is a duty to consider such an application within a reasonable time.

33 Where an application is made under s 19AP(2) that complies with s 19AP(3), the Attorney-General's consideration of whether relevant exceptional circumstances exist is not limited to the circumstances specified in that application. This is made clear by subss (4) and (4A) of s 19AP. Section 19AP(4) is concerned with the question of whether the Attorney-General is satisfied that relevant exceptional circumstances exist, and not with a more limited question of whether the circumstances specified in a written application are exceptional circumstances that justify the grant of a licence. Further, s 19AP(4A) provides that the Attorney-General may have regard to three specific circumstances, but there is nothing to suggest that regard may only be had to those circumstances on condition that they are also specified in a written application.

34 As was observed in Hasim at [47]:

It may be that the Attorney‑General reaches a relevant state of statutory satisfaction as to the subsistence of exceptional circumstances which go beyond or take into account factors in addition to the circumstances said to be exceptional by the applicant for the licence provided that in reaching or not reaching the relevant state of satisfaction, the factors the decision‑maker takes into account, at least in the context of these proceedings, are relevant to the question of whether the circumstances are exceptional …

35 However, and as will be seen when I come to consider ground 5 of the application for judicial review, apart from any specified circumstances that are relied on by an applicant in a written application as exceptional circumstances justifying the grant of a licence made under s 19AP(3), I am of the view that the Attorney-General is not bound to have regard to any other matter in determining whether he or she is satisfied of the existence of exceptional circumstances justifying release on licence, as required by s 19AP(4). My view may be contrasted with the approach taken by Foster J in Cornwell v Attorney - General of the Commonwealth of Australia (1993) 45 FCR 492 at 505, where his Honour appeared to conclude that the Attorney-General was obliged to take into account questions of public interest and public reaction in deciding whether exceptional circumstances exist and whether to exercise the discretion conferred by s 19AP.

36 Drawing together what I have said about the operation of s 19AP to this point, the Attorney-General is obliged to consider an application made under s 19AP(2), which complies with s 19AP(3), and must do so within a reasonable time. Where a compliant application is made, the Attorney-General is required to consider whether he or she is satisfied that exceptional circumstances exist which justify the grant of a licence under s 19AP(1). In considering that issue, the Attorney-General is required to have regard to the circumstances specified in the application that are relied on as exceptional circumstances justifying the grant of a licence, both individually and in combination. However, the Attorney-General may also, but is not obliged to, have regard to any other matter, including those referred to in s 19AP(4A), in determining whether he or she is satisfied that exceptional circumstances exist which justify the grant of a licence. If the Attorney-General reaches the necessary satisfaction provided for in s 19AP(4), then he or she may exercise the discretion conferred by s 19AP(1) to grant a licence for the person to be released from prison.

37 It has been held that the exercise of the power conferred by s 19AP is conditioned by the requirements of procedural fairness and legal reasonableness: Dalton at [70]; and Ng at [22]. However, those requirements will ordinarily have little work to do. It will also generally be very difficult to challenge by way of judicial review a largely unfettered decision to decline to grant a licence under s 19AP(1): Ng at [22]. This difficulty is made even more acute if there is no requirement to provide reasons, as the applicant appears to accept was the case in the context of his application to be released on licence.

38 In this case, the delegate gave very short reasons for refusing to grant the applicant a licence under s 19AP(1). I will reproduce those reasons in full later in these reasons. However, before doing that it is necessary to note that in reaching his decision, the delegate had the benefit of the CPO submissions and its many annexures.

39 As will be seen, the applicant's case that the delegate fell into jurisdictional error depends largely upon inferences being drawn from the CPO submissions. The parties accept that the Court may have regard to the CPO submissions and to its various attachments in determining the material before the delegate and in assessing whether that material could support the inference that the delegate fell into jurisdictional error: Stephens v Attorney-General [2021] FCA 204 at [5] to [6]; Roberts v Attorney - General (Cth) [2022] FCA 574; (2022) 176 ALD 509 at [25]; and Lee v Attorney-General (Cth) [2023] FCA 952 at [16]. However, that material must be read as a whole and parts of it must not be read out of context: Stephens at [6]. Accordingly, it is necessary to summarise the CPO submissions in some detail.

40 It is also important to appreciate that there is a danger in drawing inferences about what a decision-maker did, read or considered in exercising a statutory power, in the absence of any direct evidence about these matters: Roberts at [26]; and Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173 at [70].

The CPO submissions

41 The lengthy and detailed CPO submissions commence with a summary of the background to the applicant's application for the grant of a licence, including a summary of the circumstances of the applicant's offending, of the sentencing proceedings that took place when the applicant was first sentenced, and of the subsequent prosecution appeal against that sentence. The CPO submissions also refer to the first application and to the originating application he filed in this Court seeking judicial review of the respondent's failure to make a decision in relation to the second application.

42 The CPO submissions also set out, in some detail, the nature and circumstances of the applicant's offending behaviour, the sentencing judge's remarks and the observations that were made by the Court of Appeal. It is unnecessary to summarise the CPO submissions in relation to those matters. In the circumstances of this application for judicial review, it is only necessary to note that the CPO submissions made reference to the following matters:

(1) The sentencing judge took into account, in the applicant's favour and 'in a significant way', what were said to have been 'other mitigating factors known to the parties'. It is apparent that the sentencing judge used that phrase as code to discreetly indicate that he had taken into account in mitigation the fact that the applicant had provided assistance to a law enforcement agency.

(2) The sentencing judge was satisfied that the applicant was suffering from 'a multiplicity of health conditions' which were specifically identified in the CPO submissions. The sentencing judge was also satisfied that those conditions would make imprisonment more burdensome on the applicant and that there was a risk that his health conditions could deteriorate while he was in custody. Consequently, the sentencing judge said that he had moderated the sentence he would otherwise have imposed, while also noting that the very serious nature of the offences committed by the applicant warranted significant terms of imprisonment.

(3) The sentencing judge was aware of the applicant's other personal circumstances including his age, his family, his schooling and work history, his history with trading in firearms trade and his criminal record.

(4) A prosecution appeal against sentence was allowed after the Court of Appeal decided that the seriousness of the applicant's offending demanded a substantially higher total sentence and non-parole period.

(5) The Court of Appeal 'implicitly' upheld the sentencing judge's findings in relation to the applicant's medical conditions and their impact on the sentence.

43 The CPO submissions then dealt with the second application. Importantly, the specified circumstances on which the applicant relied as exceptional circumstances justifying the grant of a licence were identified and articulated in the following way:

(a) The applicant's cooperation with law enforcement agencies before sentencing was not taken into account by the sentencing court.

(b) As a result of his assistance to law enforcement, the applicant claimed he was at risk of violence if he transferred to Port Phillip Prison for medical treatment.

(c) The applicant suffers from serious medical conditions that cannot adequately be treated or managed within the prison system.

44 It may be seen that the first 'ground', as it was articulated by the CPO, focuses on the applicant's cooperation with a law enforcement agency before he was sentenced and on a contention that this cooperation was not taken into account by the sentencing court. In circumstances in which the CPO submissions had earlier noted that the sentencing judge did take the applicant's cooperation into account as a mitigating factor, this ground must be understood as a contention that the applicant's cooperation was not taken into account by the Court of Appeal when it resentenced him after the successful prosecution appeal against sentence.

45 The second 'ground' is concerned with the purported existence of a risk that the applicant may be the victim of violence because he had previously provided assistance to a law enforcement agency if he had to be transferred to Port Phillip Prison when he required medical treatment.

46 The third 'ground' is concerned with the treatment of the applicant's medical conditions. Read literally, this ground focuses on the capacity for the applicant's medical conditions to be adequately treated or managed within the prison system. However, it may be accepted that it also raises the related question of whether the applicant's medical conditions were being adequately treated or managed.

47 I will return to those grounds later in these reasons. Nevertheless, it should be noted at this stage that none of the grounds on which the applicant relies on this application for judicial review seek to challenge the way in which the CPO submissions articulated the grounds on which the applicant sought the grant of a licence under s 19AP.

48 The CPO submissions noted that the applicant's application for early release on licence consisted of a handwritten letter, correspondence with the Executive Director of 'Justice Health' (including attachments relating to the first application and correspondence regarding his medical conditions) and a freedom of information request seeking a copy of the applicant's medical records for a period of about four and a half years. The CPO submissions also noted that the applicant relied on substantially similar grounds to those on which he had previously relied when he made the first application in 2019.

49 Reference was made in the CPO submissions to the applicant's previous cooperation with a law enforcement agency, and it was noted that the applicant was provided with a 'medium value letter of assistance' for the purposes of sentencing. It was also said that this cooperation was taken into account when the applicant was originally sentenced in the County Court. However, the CPO submissions noted that the applicant asserted that his assistance was not taken into account when he was resentenced by the Court of Appeal.

50 The CPO submissions recorded that the applicant believed that information about him having cooperated with a law enforcement agency had been 'leaked' and that he was therefore at risk of violence. The CPO submissions noted that the applicant had expressed concerns that if he were to be transferred to Port Phillip Prison for medical treatment, he would then be at greater risk of violence and that he had consequently refused to be transferred to Port Phillip Prison so that he could receive medical treatment.

51 The applicant's numerous medical conditions were also spelled out in the CPO submissions, which contained a dot point summary of the applicant's complaints regarding the adequacy of the medical treatment that had been made available to him. Those complaints included assertions about excessive waiting times for operations to be carried out, failures to transfer him to hospital as required, failures to prove a reasonable standard of heath care that was comparable to the standard available in public health care, and failures to address his security concerns about being required to transfer to Port Phillip Prison for medical treatment.

52 The CPO submissions also referred to correspondence it had received from the applicant. It was noted that the applicant continued to complain in that correspondence about the adequacy of the medical treatment he had been receiving, and that he had provided examples of specific occasions on which he had received what he perceived to have been inadequate medical attention. The CPO submissions also recorded the applicant's claims that several of his medical conditions had worsened and that he had not received adequate health care to deal with the deterioration in these conditions.

53 The CPO submissions set out in some detail the input the CPO had received from Justice Health, which appears to have been the agency responsible for delivering health services to prisoners in Victoria, and from Corrections Victoria.

54 Justice Health provided two reports about the applicant, one in August 2021 and another in November 2023. Having regard to the issues raised by the applicant's grounds of review it is necessary to set out the relevant parts of the CPO submissions in which those reports were summarised:

On 3 November 2023, the CPO again wrote to Justice Health (Attachment H) to attain updated information regarding [the applicant's] medical conditions as he had made submissions stating his condition had deteriorated. On 22 November 2023, Justice Health provided the following information (Attachment I):

[The applicant's medical conditions were listed]

The primary health services which [the applicant] had access to in prison were equivalent to that provided in the general community. This included primary health care provided by registered nurses, and medical, dental and allied health practitioners. He had regular reviews of his chronic health conditions with the Health Promotions Nurses, including regular pathology to monitor his condition.
Specialist services were available via referral to St Vincent's Hospital Melbourne (SVHM). An increasing number of these services were available to prisoners via telehealth, reducing the need for transfer to Melbourne for appointments. If a prisoner requires an in-person appointment with a specialist at SVHM, they will be transferred either to Port Phillip Prison, or in some circumstances may instead be transferred to the Melbourne Assessment Prison.
[The applicant] had a number of appointments with various specialists at SVHM, both in person and via telehealth. He refused to attend a number of the in-person appointments, citing that he did not wish to go to Port Phillip Prison. Appointments were also cancelled either by the hospital or by the security provider, for a range of reasons. Wherever possible, appointments were conducted via telehealth facilities at [the prison in which the applicant was being held]. [The applicant's] medical treatment was adjusted by the medical practitioner at [the prison where he was being held] in accordance with the recommendations of the specialists.
[The applicant] stated during a consultation with a registered nurse that he was going to refuse to go to any further appointments in Melbourne as it was a waste of his time. He has also failed to attend appointments booked with the medical practitioner at [the prison where he was being held].
[The applicant's] pathology at the time, including examination of cholesterol, thyroid function, androgenic hormones, general biochemistry, glucose, and prostate specific antigens were essentially within normal limits. Arterial Doppler studies of his legs showed no evidence of deep vein thrombosis. Venous Doppler studies demonstrate the known issue of insufficiency. [The applicant] had his first COVID-19 vaccine, and was booked for the second. His blood pressure was maintained well within normal limits and his weight was approximately 40 kilograms lower than when he entered incarceration in 2016.
[The applicant] had access to a full range of primary, secondary and tertiary health care available to him, his medical conditions were being cared for, as with any other prisoner, and within the limits that he himself sets. [The applicant's] health conditions are chronic in nature, and were well established prior to the commencement of his incarceration in 2016. Any change in his condition was managed in accordance with medical guidelines and appropriate referrals were made to specialist treatment clinics as required.

In the opinion of the report author, [the applicant's] medical condition had not substantially changed since the information provided in the report dated 17 August 2021.
His medical conditions could be adequately treated in custody.

[The applicant's medical conditions were listed]

[The applicant] stated during a consultation with a registered nurse that he would be refusing to go to any further appointments in Melbourne as it was a waste of his time. He has also failed to attend medical appointments booked with the medical practitioner at the [the prison where he was being held].
[The applicant's] pathology including examination of cholesterol, thyroid function, androgenic hormones, general biochemistry, glucose, and prostate specific antigens, had been essentially within normal limits. His chronic kidney disease was stable. Venous Doppler studies of his legs showed no evidence of deep vein thrombosis but known incompetent veins throughout causing venous insufficiency. His weight was approximately 38 kilograms lower than when he entered incarceration in 2016.
[The applicant] had access to a full range of primary, secondary and tertiary health care available to him, and his medical conditions were being cared for, as with any other prisoner, and within the limits that he himself sets.
[The applicant's] health conditions are chronic in nature, and were well established prior to the commencement of his incarceration in 2016. Any change in his condition was managed in accordance with the current medical guidelines, and appropriate referrals made to specialist treatment clinics as required.

55 The CPO submissions also explained that input had been obtained from Corrections Victoria concerning the applicant's claims about the risk of violence were he to be transferred to Port Phillip Prison for medical treatment in Melbourne. It was recorded that, on 13 August 2021, Corrections Victoria had advised that because of the applicant's concerns with a placement at Port Phillip Prison, steps had been taken to ensure that if he should be required to return to metropolitan Melbourne for any reason, including any medical reason, the applicant would instead be returned via the Melbourne Assessment Prison.

56 The CPO submissions indicated that Corrections Victoria had also provided the CPO with several 'Parole Assessment Reports' relating to the applicant's application for early release on licence. The contents of those reports were then summarised, focusing on the applicant's personal circumstances, his risk of reoffending, his eligibility to participate in 'offence specific programs' and the fact that he had completed three short drug and alcohol programs. Detailed reference was also made to the applicant's post-release plans, noting concerns about the ability to monitor his risk to the community without electronic monitoring and that an addendum to a parole assessment report from 13 April 2023 stated that Corrections Victoria did not recommend that the applicant be released 'given the risks outweigh the benefits'.

57 As I have already mentioned, the Crown appealed against the sentence imposed on the applicant at first instance. In that appeal it was contended that both the total effective sentence and the non-parole period were manifestly inadequate. The CPO submissions recorded that the Commonwealth Director of Public Prosecutions (CDPP) had advised that the applicant's assistance to authorities was taken into account when he was resentenced by the Court of Appeal after the successful prosecution appeal. It is apparent that the CDPP provided advice to the CPO that, in effect, it was evident that the Court of Appeal took the applicant's assistance to authorities into account when it resentenced him because the Court did not interfere with any of the individual sentences imposed on the applicant, but resentenced him by making different orders for cumulation and concurrency.

58 The CPO submissions then set out the process that was adopted to ensure that the applicant was afforded procedural fairness. That process involved putting the applicant on notice of various matters that could be considered by the respondent to be adverse to the applicant's application for early release on licence. In that regard, the CPO submissions record that four 'adverse comments letters' were sent to the applicant on 11 August 2021, 13 July 2022, 4 November 2022 and 2 January 2025, respectively. It is not clear why this process took as long as it did, but that was not a matter that was raised before me and therefore I need say nothing more about it.

59 Pausing there, it is important to appreciate that, in each of those four adverse comments letters, the specified circumstances on which the applicant relied as exceptional circumstances justifying the grant of a licence were identified and articulated in essentially the same way in which they were identified in the CPO submissions, as recorded earlier in these reasons at [42].

60 The CPO submissions summarise in great detail the various responses the applicant gave the CPO in answer to the four adverse comments letters. However, it is not necessary for me to summarise those responses here. It is enough to note, at this stage at least, that in his responses the applicant gave further details about:

(1) the question of whether his cooperation with the authorities had been taken into account when he was resentenced by the Court of Appeal;

(2) his health issues;

(3) the treatment of his health issues while he had been in custody;

(4) his safety concerns;

(5) the seriousness of his offending behaviour;

(6) his risk of reoffending;

(7) his criminal history, behaviour while in custody and the likelihood of him complying with licence conditions;

(8) his post-release plans; and

(9) the risk that he would pose to the community were he to be released early on licence.

61 The CPO submissions concluded with a section headed 'Discussion'. Under that heading, the author of the CPO submissions identified the legal framework within which the delegate was required to decide whether to grant a licence under s 19AP(1) as well as the specified circumstances that the applicant relied on as exceptional circumstances justifying his release on licence. The author then analysed each of those circumstances before making a submission that the applicant's circumstances did not, either separately or in combination, constitute exceptional circumstances that would justify granting a licence under s 19AP(1). On that basis, the author recommended that the grant of a licence be refused.

62 The applicant contends, by ground 1 of his amended application for judicial review, that the delegate failed to constructively exercise his discretion under s 19AP(1) by failing to consider, and also by misunderstanding, the specified circumstances on which he applied for a licence. This means that it is necessary to look at this part of the CPO submissions in more detail.

63 The author of the CPO submissions commenced a discussion of the applicant's application with a summary of the legal framework within which the delegate was required to decide whether to exercise the discretion conferred by s 19AP(1). In that regard, the CPO submissions made it clear that, before granting a licence to the applicant, the delegate was required to be satisfied that 'exceptional circumstances' exist to justify the granting of the licence. The delegate was informed that he was required to decide whether the circumstances specified in the applicant's application for early release on licence together, or separately, constituted exceptional circumstances justifying the grant of a licence. The delegate was also informed that s 19AP(4A) sets out three non-exhaustive circumstances that could constitute exceptional circumstances.

64 The author of the CPO submissions summarised the specified circumstances on which the applicant sought early release on licence in the following way:

[The applicant's] application is primarily based on medical grounds, his cooperation with law enforcement and subsequent fears for his safety and mental health. The CPO considers the grounds are not substantially different to the grounds of his previous release on licence application in 2020.

65 The CPO submissions then dealt with those circumstances under the headings of 'Cooperation with law enforcement', 'Medical grounds' and 'Mental health'. However, and as I have already noted, the CPO submissions must be read as a whole. Accordingly, the summary of the specified circumstances must be read in light of the circumstances that were articulated in each of the adverse comments letters as well as in the CPO submissions themselves: see [42] and [58] of these reasons.

66 Returning to the CPO submissions, under the heading 'Cooperation with law enforcement', it was noted that the applicant had submitted that 'he has significantly assisted law enforcement authorities and that his assistance was not appropriately taken into account in his sentencing'. The CPO submissions then recorded the following:

122. Cooperation with law enforcement authorities may be grounds for early release if that cooperation occurs after the person was sentenced or where the cooperation was not known to the sentencing court.

123. The CDPP advised the CPO that the Court of Appeal's sentence takes the assistance [the applicant] provided to law enforcement agencies into account. The CDPP advised that this is evident from the fact the Court of Appeal accepted the approach of the County Court, altering the County Court Judge's orders of cumulation (based on the principle of totality) rather than the sentences for individual offences due to the Court of Appeal's finding that the total sentence awarded by the County Court was manifestly inadequate.

124. Given the advice from the CDPP, the CPO considers that [the applicant's] claims that there is no reference to 'assistance' or 'cooperation' in the Court of Appeal's written decisions is due to the fact it was a silent hearing and irrelevant given the Court of Appeal accepted the approach of the County Court, which [the applicant] conceded did take into account the assistance he provided.

125. The CPO considers [the applicant's] assertion that he offered to continue cooperation with law enforcement post-sentencing and that this offer remained open is irrelevant and could not be said to constitute 'extensive cooperation with law enforcement provided after sentencing.' For these reasons, there is no information to suggest that [the applicant's] cooperation with law enforcement constitutes exceptional circumstances that justify his release on licence at this time.

67 It is apparent that the CPO submissions ultimately communicated to the delegate that one of the specific matters upon which the applicant relied as constituting an exceptional circumstance justifying the grant of a licence was that the assistance he provided to a law enforcement agency before he was originally sentenced in the County Court was not 'appropriately' taken into account when he was resentenced by the Court of Appeal. Further, the CPO submissions also referred to the applicant's contention that he offered to provide further cooperation to law enforcement agencies after he was sentenced.

68 Under the same heading, the CPO submissions also dealt with the applicant's concerns about his safety:

126. In relation to this ground, [the applicant] raised his concern that the assistance he provided to authorities is known and that his safety is at risk. In his response to the second adverse comments letter, [the applicant] submitted that in July 2020 he had human excrement thrown over him, 'a sure sign that [he] had been talking to law enforcement.' [The applicant] believed that his safety would be jeopardised if he transferred to Port Phillip Prison for medical treatment. [Corrections Victoria] was aware of [the applicant's] concerns and appear to have adequately addressed them by changing his interim placement classification and referring him to the Melbourne Assessment Prison if necessary, rather than Port Phillip Prison, as a protective measure. This is discussed in more detail below under 'Medical grounds'.

127. The CPO considers that the link between any security threat faced by [the applicant] and his cooperation with law enforcement appears to be speculative. The CPO considers that [the applicant's] security and custodial placement is a matter for [Corrections Victoria] to manage and monitor. The CPO does not consider that the concerns raised by [the applicant] are sufficient to establish exceptional circumstances in this case. For these reasons, the CPO considers that there is no information to suggest that [the applicant's] risk of being the victim of violence is of an extreme nature and that his claims are not exceptional circumstances that justify his release on licence.

69 The CPO submissions then dealt with the applicant's 'Medical grounds'. In that regard, the CPO submissions recorded that the applicant had submitted that,

he should be released on licence due to his various medical conditions which he believes he is not receiving adequate treatment for. [The applicant] stated that staff in custody have done 'nothing' to address his medical conditions and that he has not received the required operations to manage these conditions.

70 It may be noted that, rather than focusing on the capacity for the applicant's medical conditions to be adequately treated or managed in prison, the CPO submissions characterised the applicant's complaint as one in which his medical conditions were not in fact being adequately treated or managed.

71 The CPO submissions recorded the following about the applicant's medical conditions:

131. In the information provided by Justice Health on 17 August 2021 and 22 November 2023, Justice Health provided assurances that [the applicant's] complex medical conditions are adequately managed within the correctional system and that he has not requested any services that are unable to be provided to him. As such, the CPO considers it could not be said that [the applicant's] conditions require a level of care or type of treatment that is not available through the prison medical system. Justice Health noted that [the applicant] had significant health problems prior to imprisonment and where his conditions have deteriorated or changed he has received appropriate treatment to stabilise his condition on site or has been referred to specialists for that treatment.

132. Justice Health advised that [the applicant] has access to a full range of primary, secondary and tertiary health care available to him, and his medical conditions are being cared for, as with any other prisoner, and within the limits that he himself sets. [The applicant's] health conditions are chronic in nature and were well established prior to the commencement of his incarceration in 2016. Any change in his condition has been managed in accordance with the current medical guidelines, and appropriate referrals made to specialist treatment clinics as required.

133. [The applicant's] condition prior to imprisonment is relevant in so far as it was taken into account by the sentencing court. The Court of Appeal noted that the County Court had held that [the applicant's] physical conditions made imprisonment more burdensome for him than for a prisoner of normal health and moderated the sentence that would have been imposed on account of this hardship. Specifically, in the Court of Appeal's sentence, [the applicant's health concerns] were all noted. The CPO considers that based on the information available, there does not appear to have been a significant change to [the applicant's] health condition since sentencing.

134. The CPO considers that there is no corroborated information to suggest that [the applicant's] medical conditions are not being treated appropriately in custody. The CPO considers that [the applicant's] health conditions were taken into account for sentencing and that information from Justice Health supports the conclusion that his conditions have not occurred, nor worsened significantly, due to his incarceration. The CPO considers that there is no information to support a view that [the applicant's] release on licence is necessary (as opposed to desirable) for his medical conditions. Indeed, the available information suggests that [the applicant] is receiving adequate health support and is managing his health conditions.

72 Finally, the CPO submissions dealt with the applicant's mental health:

135. [The applicant's] application also notes mental health as another reason for his release on licence.

136. [The applicant] submitted that the COVID-19 restrictions have had a negative impact on his mental health due to in-person visits being cancelled. The limitations on in-person visits by [the applicant's] family have also had an adverse impact on his mental health.

137. The CPO considers that there is no information to suggest that the hardship being suffered by [the applicant] is of an extreme kind, and is not dissimilar to the experiences of families who are ordinarily significantly impacted by the imprisonment of one of their family members. Indeed, the impact of the COVID-19 pandemic on prison visits is a factor which affected the entire prison system and the CPO considers that limitations on prison visits are not hardships of an extreme kind.

73 Having dealt with the circumstances that were considered to have been specified in the applicant's application, and which were relied upon as exceptional circumstances justifying the applicant's early release on licence, the author of the CPO submissions then set out his or her conclusions. In essence, it was concluded that the circumstances relied on by the applicant did 'not satisfy release on licence at this time' and a recommendation was made that the application for early release on licence be refused because the applicant's circumstances do not, either separately or in combination, constitute exceptional circumstances justifying the grant of a licence under s 19AP(1) of the Crimes Act.

74 On the last page of the CPO submissions the following appears:

I recommend that you:

(i) do not grant early release to federal offender [the applicant] under subsection 19AP(1) of the Crimes Act, and

Agreed / Not Agreed / Discuss

(ii) sign the attached letter informing [the applicant] of your decision.

Signed / Not Signed

75 That same page is signed by the delegate of the Attorney-General.

76 Having summarised the salient features of the CPO submissions, it is now necessary to summarise the brief reasons that were given by the delegate for refusing to grant a licence under s 19AP(1). It should be noted, however, that the applicant does not complain about the brevity of those reasons. In her written submissions, counsel for the applicant noted that although a request was made under s 13 of the ADJR Act for the delegate to provide reasons, that request was denied on the basis that it fell within a class of 'decisions relating to the administration of criminal justice': para (e) in Sch 2 of the ADJR Act.

The delegate's decision to refuse to grant a licence under s 19AP

77 The delegate's decision was communicated to the applicant in a short letter dated 20 February 2025 (delegate's decision). Given the brevity of the delegate's decision I will set it out in full:

I refer to your application for early release on licence, received on 1 June 2021.

I must not grant a licence under subsection 19AP(4) of the Crimes Act 1914 (Cth) (Crimes Act) unless I am satisfied that 'exceptional circumstances' exist that justify early release from prison.

You have sought release on licence on the following:

your cooperation with law enforcement, including your concerns for your safety because of your cooperation, and
various medical grounds, including that COVID-19 restrictions impacted your mental health.

Subsection 19AP(4A) of the Crimes Act outlines three examples of matters that could support an offender's early release. The Explanatory Memorandum to section 19AP otherwise states that exceptional circumstances:

'are intended to cover matters that occur, usually post-sentence, that significantly affect an offender's circumstances, such as extensive cooperation with law enforcement agencies, or the development of a serious medical condition which cannot be adequately treated within the prison system'.

The Explanatory Memorandum elaborates that

'excellent conduct in prison, remorse or contrition, liability to deportation, prospects of employment, or family hardship, unless of an extreme kind … would not normally constitute exceptional circumstances'.

I have considered all of the information that you have provided in your application and through adverse comments letter processes. I have also taken into account information that was provided by Justice Health, Corrections Victoria and the Commonwealth Director of Public Prosecutions.

You will be considered for release on parole prior to the expiry of your non-parole period on [a specific date].

78 It may be seen that the delegate set out, in a non-exhaustive way, the circumstances upon which the applicant relied as exceptional circumstances justifying the grant of a licence. However, the delegate said that he had considered all of the information the applicant provided in his application under s 19AP(2), the applicant's responses to the adverse comments letters, and information provided by Justice Health, Corrections Victoria and the CDPP. The delegate then noted that he was not satisfied that there were exceptional circumstances that justified the applicant's release on licence for any of the grounds he raised, either in combination or individually.

79 Having set out the delegate's reasons for his decision to refuse to grant the applicant a licence, it is now convenient to turn to the grounds on which the applicant relies in support of his application for judicial review.

Grounds of application for judicial review

80 The applicant applies for judicial review pursuant to subss (1) and (1A) of s 39B of the Judiciary Act 1903 (Cth) and s 5(1) of the ADJR Act. The grounds on which he relies are as follows:

Ground 1: The delegate failed to constructively exercise jurisdiction in that:

1.1 he failed to consider (or genuinely consider) whether the Applicant's medical conditions were adequately treated or managed in custody.

1.2 he assessed whether the security threat faced by the Applicant raised exceptional circumstances rather than engaging with the Applicant's claim that his assistance to law enforcement led to security concerns which inhibited his ability to receive adequate medical treatment.

Ground 2: [I]t was legally unreasonable for the Respondent to conclude that the Applicant is receiving adequate health support and/or management of his health conditions.

Ground 3: The delegate fell into error, which was not immaterial, in relying on the CDPP's response received on 26 May 2020 that incorrectly represented the Court of Appeal as having 'accepted the approach of the County Court'.

Ground 4: It was legally unreasonable to conclude that the link between any security threat faced by the Applicant and his cooperation with law enforcement was speculative.

Ground 5: The delegate fell into error by applying the 'exceptional circumstances' test without considering the applicant's 'cooperation with law enforcement', 'medical grounds' and 'mental health' in light of, and together with, the Applicant's other relevant factors, including:

a. the Applicant's advanced age;

b. the Applicant's likelihood of dying in custody under the current term of his sentence;

c. the Applicant having been assessed as 'low risk of re-offending over the medium to long term' in his pre-sentence psychological report;

d. the availability of suitable accommodation if released on license as assessed by Corrections Victoria in their Parole Assessment Report dated 20 March 2023;

e. [s]upportive family and social support from his long term partner;

f. his assistance to law enforcement which was given little to no weight by the Court of Appeal despite receiving a letter of assistance citing 'medium level' of assistance.

81 I will first deal with grounds 1.1 and 2. I will deal with those grounds together as they raise similar issues.

Ground 1.1 - The delegate failed to constructively exercise jurisdiction by failing to consider (or genuinely consider) whether the applicant's medical conditions were adequately treated or managed in custody

Ground 2 - It was legally unreasonable for the respondent to conclude that the applicant is receiving adequate health support and/or management of his health conditions

82 By ground 1.1 the applicant contends that the delegate constructively failed to exercise the jurisdiction conferred by s 19AP. The applicant says that the delegate was required to consider the specified circumstances on which he relied as constituting exceptional circumstances justifying the grant of a licence, by engaging in an 'active intellectual' process directed at those circumstances. The applicant complains, however, that the delegate did not carry out that task when considering one of the circumstances on which he relied, namely, that his various medical conditions were not being adequately managed or treated while he was in custody.

83 Based on his written submissions, the steps in the applicant's argument in support of ground 1.1 appear to be:

(1) In determining whether he was satisfied that exceptional circumstances existed that justified the applicant being granted early release on licence, the delegate was required to engage in an active intellectual process directed at determining whether the applicant's medical conditions were not being adequately treated or managed while he is in custody.

(2) The applicant had provided information that his medical conditions were not being adequately managed or treated while he had been in custody.

(3) There was no information before the delegate to contradict the applicant's claim that his medical conditions were not being adequately managed or treated.

(4) In those circumstances, the delegate could not have engaged in the intellectual process in which he was required to engage because he rejected the applicant's uncontradicted claim that his medical conditions were not being adequately managed or treated.

84 When the applicant's argument is set out in this way, it suggests that the applicant's real complaint is that the delegate made a decision that was legally unreasonable or that was infected by illogicality or irrationality. Indeed, in her oral submissions counsel for the applicant expressly contended that it would have been 'unreasonable' for the delegate to reject the applicant's claim, that the delegate 'could not have come to the decision he came to', and that it was 'unreasonable for [the delegate] to have come to that decision when there is no evidence [to] the contrary'.

85 Ground 2 is expressed in terms that directly raise a contention that it was legally unreasonable for the delegate to conclude that the applicant had been receiving 'adequate health support and/or management of his health conditions'. However, the written submissions in support of that contention essentially rely on the same steps in the argument raised in support of ground 1.1.

86 In my view, there are several fundamental difficulties with the applicant's argument, whether it is understood as a contention that the delegate constructively failed to exercise jurisdiction or as a contention that his decision was legally unreasonable. The first of those difficulties is concerned with the premise of both grounds of review. That premise is that the delegate did, in fact, reject the applicant's claim that his medical conditions were not being adequately managed or treated while he was in custody.

87 There is a material difference between, on the one hand, being satisfied of the existence of a circumstance on which an applicant for release on licence relies and, on the other hand, being satisfied that a circumstance found to exist amounts to an exceptional circumstance justifying the grant of a licence. In this case, the delegate's reasons reveal only that he was not satisfied of the latter of these two considerations. In that regard, the delegate said that he was 'not satisfied that there are exceptional circumstances that justify [the applicant's] release on licence for any of the grounds that you raise either in combination or individually'. Otherwise, there is nothing in the delegate's reasons to indicate whether he was also not satisfied that the applicant's medical conditions were not being adequately managed or treated.

88 I would not infer that the delegate necessarily rejected the applicant's claim that his medical conditions were being inadequately managed and treated. Although various arguments were made in the CPO submissions about why the applicant's claim should not be accepted, the delegate had before him the applicant's written application as well as his many letters and responses to the adverse comments letters, all of which contained information that very clearly conveyed the applicant's belief that the medical care he was receiving was inadequate. As the applicant himself submitted, he had provided very detailed information to the CPO about his personal experiences of the medical treatment he was receiving. In those circumstances it is entirely possible that the delegate accepted the applicant's own assessment of the adequacy of the medical treatment but, at the same time, was not satisfied that this constituted an exceptional circumstance that justified the applicant being released on licence, either on its own or in combination with any of the other grounds on which the applicant had relied.

89 This conclusion is a sufficient reason in and of itself to dismiss these grounds.

90 The second, and more fundamental difficulty with both of these grounds is concerned with the third and fourth steps in the applicant's argument and particularly with the contention that there was no evidence to contradict the applicant's claim that his medical conditions were not being adequately managed or treated.

91 The applicant's submissions focused on three medical reports provided by Justice Health to the CPO, which were dated 6 May 2020 (which report was prepared when the first application was made), 17 August 2021 (referred to incorrectly in the applicant's submissions as being dated 18 August 2021) and 15 November 2023 (referred to incorrectly in the applicant's submissions as being dated 3 November 2023), respectively. The applicant essentially submits that none of those reports addressed the 'pertinent question' of whether he was, in fact, receiving adequate medical care for his various conditions. The applicant says that the reports fail to provide any information about the treatment he requires for his various health conditions, whether those treatments have been provided to him and, if not, what the obstacles to treatment are, and whether these obstacles could be resolved while the applicant is in custody.

92 In the Justice Health report dated 17 August 2021, the following information appeared after a brief explanation about why the report was prepared and a summary of the applicant's current medical conditions:

The adequacy of, or any deficiencies in, [the applicant's] current medical treatment regime

The primary health services to which [the applicant] has access in prison are equivalent to that provided in the general community. This includes primary health care provided by medical practitioners, registered nurses, dental practitioner and allied health practitioners onsite at [the prison at which he was then situated]. He has regular reviews of his chronic health conditions with the Health Promotions Nurses, including regular pathology as indicated to monitor his condition.

Specialist services are available via referral to St Vincent's Hospital Melbourne (SVHM). An increasing number of these services are available to prisoners via telehealth, reducing the need for transfer to Melbourne for appointments. If a prisoner requires an in-person appointment with a specialist at SVHM, they will be transferred either to Port Phillip Prison, or in some circumstances may instead be transferred to the Melbourne Assessment Prison.

These appointments are then facilitated by secured transport, with certain arrangements such as handcuffs required according to the security rating of the prisoner.

[The applicant] has had a number of appointments with various specialists at SVHM, both in person and via telehealth. [The applicant] has refused to attend a number of the in-person appointments, citing that he did not wish to go to Port Phillip Prison. Appointments have also been cancelled either by the hospital or by the security provider, for a range of reasons. Wherever possible appointments are conducted via telehealth facilities at [the prison in which the applicant is being held]. [The applicant's] medical treatment is adjusted by the medical practitioner at [the prison where he is being held] in accordance with the recommendations of the specialists.

[The applicant] has stated during a recent consultation with a registered nurse that he was going to refuse to go to any further appointments in Melbourne as it was a waste of his time. He has also failed to attend appointments booked with the medical practitioner at [the prison in which he is being held].

Other relevant Information

[The report then set out details relating to the applicant's pathology, recent studies undertaken in respect of one of his conditions, his COVID-19 vaccination status, as well as his blood pressure and weight].

[The applicant] has access to a full range of primary, secondary and tertiary health care available to him, and his medical conditions are being cared for, as with any other prisoner, and within the limits that he himself sets. [The applicant's] health conditions are chronic in nature, and were well established prior to the commencement of his incarceration in 2016. Any change in his condition has been managed in accordance with the current medical guidelines, and appropriate referrals made to specialist treatment clinics as required.

93 The report dated 15 November 2023 essentially reproduced much of the information that appeared in the 17 August 2021 report. However, under the heading 'Other relevant Information', further and different information concerning more recent developments in the applicant's medical conditions was provided.

94 Contrary to the third step in the applicant's argument as identified at [83] of these reasons, the reports of 17 August 2021 and 15 November 2023 did contain information that contradicted the applicant's claim that his medical conditions had not been adequately managed or treated. In that regard, the reports asserted that the primary health services to which the applicant has access in prison are equivalent to that provided in the general community. Further the last paragraph of both reports, which I have reproduced above, record that the applicant has access to 'a full range of primary, secondary and tertiary health care', that 'his medical conditions are being cared for, as with any other prisoner, and within the limits that he himself sets' (emphasis added), and that any 'change in his condition has been managed in accordance with the current medical guidelines, and appropriate referrals made to specialist treatment clinics as required ' (emphasis added).

95 It follows that the applicant's argument cannot be accepted. Specifically, it cannot be inferred that the delegate failed to constructively exercise his power under s 19AP(1) nor can it be concluded that the delegate's decision not to grant a licence to the applicant was legally unreasonable.

96 In ground 2, the applicant also relied on s 5(1)(f) of the ADJR Act. However, the applicant did not submit that there was some other basis on which the delegate's decision involved an error of law in support of either ground 1.1 or 2. Accordingly, that provision does not add anything to the merits of those grounds.

97 Grounds 1.1 and 2 must both be dismissed.

Ground 1.2 - The delegate failed to constructively exercise jurisdiction by failing to address the applicant's claim that his security concerns inhibited his ability to receive inadequate treatment

98 The applicant contends that one of the specified circumstances upon which he relied in his application under s 19AP(2) as justifying the grant of a licence was that his assistance to a law enforcement agency led to security concerns, which then inhibited his ability to receive adequate medical treatment. The applicant says that this circumstance was specified in the second application.

99 In his written submissions the applicant describes this circumstance in the following terms:

[The applicant's] application claims his ability to access medical treatments was inhibited by him having assisted law enforcement because of the difficulties this created for him in being able to be transported to St Vincent's Hospital via Port Phillip Prison.

100 Further, in his written submissions in reply the application describes the relevant circumstance as:

[the applicant's] assistance to law enforcement … significantly impacted on his ability to receive adequate medical treatment.

101 The applicant asserts that the delegate failed to have regard to this circumstance and, instead, erroneously had regard to a different circumstance, namely and merely that his assistance to law enforcement agencies had placed his safety at risk. As it is put in the applicant's written submissions:

the delegate did not understand [the applicant's] argument in the correct way, and consequently he did not turn his mind to whether [the applicant's] medical care was affected by his assistance to law enforcement, and if so whether that constituted exceptional circumstances.

102 On that basis, the applicant contends that the delegate fell into jurisdictional error by failing to respond to the clearly articulated case that he advanced, relying on the principles in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1. In circumstances in which, as I have already explained, the delegate was required to have regard to the specified circumstances upon which the applicant relied in his application under s 19AP(3) as an exceptional circumstance justifying the grant of a licence, the applicant's contention may be understood as a complaint that the delegate failed to have regard to a circumstance to which he was required to have regard.

103 Because the delegate gave limited reasons for concluding that he was not satisfied of the existence of exceptional circumstances justifying the grant of a licence, the applicant's case that the delegate failed to take into account a specified circumstance on which he relied depends on the drawing of inferences. Specifically, the applicant contends that it should be inferred that the delegate had regard to an exceptional circumstance that was erroneously identified in the CPO submissions and in one of the four adverse comments letters as being a circumstance on which the applicant relied. In support of that argument, the applicant refers to three specific paragraphs that appear in the CPO submissions.

104 Firstly, the applicant refers to para 37 of the CPO submissions, which is in the following terms:

[The applicant] was also concerned that, as a result of his cooperation with authorities, he was at risk of violence against him as he believed his involvement had been leaked. [The applicant] was concerned that if he were transferred to Port Phillip Prison for medical treatment he would be at a greater risk of violence. [The applicant] noted that a 'constant stream' of prisoners are beaten and stabbed, 'more than publicly reported'. By testifying, [the applicant] believed that he put himself at greater risk of violence. He refused to be transferred to Port Phillip Prison for the purposes of medical treatment due to his fear of violence at that prison.

105 The applicant submits that this paragraph only captures a component of the circumstance on which he relied, namely that he was in fear of attending Port Phillip Prison for his medical appointments because he was at risk of violence, having provided assistance to law enforcement agencies. The applicant submits, however, that it does not deal with the contention that this caused his medical treatments to be delayed or not progressed.

106 Secondly, the applicant points to para 126 of the CPO submissions:

In relation to this ground, [the applicant] raised his concern that the assistance he provided to authorities is known and that his safety is at risk. In his response to the second adverse comments letter, [the applicant] submitted that in July 2020 he had human excrement thrown over him, 'a sure sign that [he] had been talking to law enforcement.' [The applicant] believed that his safety would be jeopardised if he transferred to Port Phillip Prison for medical treatment. [Corrections Victoria] was aware of [the applicant's] concerns and appear to have adequately addressed them by changing his interim placement classification and referring him to the Melbourne Assessment Prison if necessary, rather than Port Phillip Prison, as a protective measure. This is discussed in more detail below under 'Medical grounds'.

107 The applicant submits that although reference was made in that paragraph of the CPO submissions to the issues being discussed in more detail later in those submissions, the fact that the exceptional circumstance on which he relied concerned a link between his fear of going to Port Phillip Prison and its consequential effect on his ability to receive medical treatment was never actually identified.

108 Thirdly, the applicant relies on para 127 of the CPO submissions, which is in the following terms:

The CPO considers that the link between any security threat faced by [the applicant] and his cooperation with law enforcement appears to be speculative. The CPO considers that [the applicant's] security and custodial placement is a matter for [Corrections Victoria] to manage and monitor. The CPO does not consider that the concerns raised by [the applicant] are sufficient to establish exceptional circumstances in this case. For these reasons, the CPO considers that there is no information to suggest that [the applicant's] risk of being the victim of violence is of an extreme nature and that his claims are not exceptional circumstances that justify his release on licence.

109 The applicant submits that this paragraph demonstrates that the CPO submissions 'missed the point' as they wrongly focused on whether the applicant's assistance to a law enforcement agency had placed his safety at risk to such an extreme extent that this amounted to exceptional circumstances. The applicant submits that the correct focus should have been on whether the applicant's medical treatment had been detrimentally affected because he gave assistance to a law enforcement agency.

110 The applicant also relies on a paragraph that appears in one of the adverse comments letters that was sent to the applicant, which was dated 13 July 2022:

You submit that you are concerned that, as a result of your cooperation with authorities, you are at risk of violence against you as you believe that your involvement has been leaked. Specifically, you are concerned that if you are transferred to Port Phillip Prison, including to facilitate medical treatment, you will be at a greater risk of violence. You submit that a 'constant stream' of prisoners are beaten and stabbed, 'more than publicly reported'. Indeed, you refuse to be transferred to Port Phillip Prison for the purposes of medical treatment due to your fear of violence at that prison.

111 The applicant says that this further confirms that the CPO submissions focused on the wrong exceptional circumstance.

112 The applicant contends that, as the CPO submissions and the adverse letter dated 13 July 2022 formed part of the materials that were before the delegate, it should be inferred that the delegate also failed to identify, and therefore have regard to, the specific exceptional circumstances on which the applicant relied. Specifically, it is said that 'consequently [the delegate] did not turn his mind to whether [the applicant's] medical care was affected by his assistance to law enforcement, and if so whether that constituted exceptional circumstances'.

113 It may be accepted that the delegate's brief reasons, the CPO submissions and the relevant adverse comments letter do not expressly identify the exceptional circumstance on which the applicant now purports to have relied in his application for the grant of a licence. However, that is hardly surprising. As I have already observed, in each of the CPO's four adverse comments letters it was made very clear to the applicant that the CPO considered that the exceptional circumstances on which he relied in his application under s 19AP(2) for release on licence were that:

(a) The applicant's cooperation with law enforcement agencies before sentencing was not taken into account by the sentencing court.

(b) The applicant was at risk of violence as a result of his assistance to law enforcement if he were to be transferred to Port Phillip Prison for medical treatment.

(c) The applicant suffers from serious medical conditions that cannot be (and therefore were not being) adequately treated or managed within the prison system.

114 That the CPO considered that these were the circumstances upon which the applicant relied is confirmed by the fact that those same circumstances were articulated in the CPO submissions.

115 The putative exceptional circumstance that is the subject of this ground is not precisely reflected in any of those three circumstances. Although the second circumstance referred to at [113] above is concerned with the existence of a link between the applicant's assistance to law enforcement agencies and him being transferred to Port Philip Prison for medical treatment, it is not concerned with a link between the applicant's assistance to a law enforcement agency and the adequacy of any medical treatment he did in fact receive.

116 It is significant to note that, despite the very many occasions on which the applicant corresponded with the CPO including in direct response to the four adverse comments letters, there is nothing in the materials before this Court to suggest that the applicant ever disputed the accuracy of the CPO's repeated articulation of its understanding of the specified exceptional circumstances on which he relied. There is also no evidence that the applicant ever sought to clarify that one of the circumstances on which he in fact relied as exceptional circumstances justifying the grant of a licence was the particular circumstance upon which he now says that he relied.

117 In that context the only rational conclusion is that, contrary to the contention that underpins this ground of review, the applicant did not, in his application made under s 19AP(2), rely on a specified circumstance concerning the adverse effect his assistance to a law enforcement agency had on his ability to access medical treatment because of the difficulties in him being transported to St Vincent's Hospital via Port Phillip Prison. This conclusion is fatal to this ground of review. The delegate was not required to have regard to a circumstance that was not specified in the applicant's application under s 19AP(2) as an exceptional circumstance on which he relied to justify the grant of a licence.

118 In any event, even if the circumstance which the applicant now says was a circumstance that was specified in his application under s 19AP(2) as an exceptional circumstance on which he relied, and the delegate did misunderstand and therefore failed to have regard to that circumstance, it does not follow that the delegate fell into jurisdictional error.

119 While a misunderstanding about the circumstances specified in an application made under s 19AP(2) that are relied on as exceptional circumstances justifying the grant of a licence may amount to jurisdictional error, any such error is subject to a requirement of materiality. This was explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, where Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said at [14] to 16:

The question in these cases is whether the decision that was in fact made could, not would, 'realistically' have been different had there been no error. 'Realistic' is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is 'no easy task' for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

(footnotes omitted; original emphasis)

120 In the delegate's letter it was noted that the applicant sought release on licence on grounds relating to his cooperation with a law enforcement agency, including his concerns about his safety because of that cooperation, as well as on 'various medical' grounds. The delegate also wrote that he had considered all of the information the applicant provided in his application and 'through [the] adverse comments letter processes' and said that he had taken into account information provided by Justice Health, Corrections Victoria and the CDPP. The delegate then said that after 'careful consideration', he was 'not satisfied that there are exceptional circumstances that justify [the applicant's] release on licence for any of the grounds that [the applicant raised] either in combination or individually ' (emphasis added).

121 Given the clear and repeated articulation in the CPO submissions, and in each of the four adverse comments letters, of the circumstances on which the applicant relied as constituting exceptional circumstances justifying the grant of a licence, all of which were before the delegate, I infer that the reference in the delegate's letter of 20 February 2025 to the 'grounds' raised by the applicant in his application under s 19AP(2) is a reference to those specific circumstances. That is, I infer that the delegate concluded that he was not satisfied that any one or more of the circumstances identified by the CPO constituted exceptional circumstances that justified the grant of a licence, whether considered individually or in combination.

122 Critically, those circumstances included that:

(a) the applicant was at risk of violence due to his cooperation with law enforcement agencies if he were to be transferred to Port Philip Prison for medical treatment; and

(b) the applicant suffered from serious medical conditions that cannot be (and therefore were not being) adequately treated or managed in custody.

123 It may be noted that these two circumstances constitute the two essential components of the circumstance the applicant now contends was specified in his application as justifying the grant of a licence. In my view, it necessarily follows that the delegate's decision would inevitably have been the same had he had regard to the applicant's contention that there were exceptional circumstances due to a causative link that existed between these two circumstances. If the delegate was not satisfied that either or both of the circumstances referred to in [122] constituted exceptional circumstances justifying the grant of a licence, that he would also fail to be satisfied that the existence of a link between the two circumstances amounted to exceptional circumstances was unavoidable.

124 As there is no realistic possibility that the delegate's decision could have been different, the delegate did not fall into jurisdictional error even if it is assumed favourably to the applicant that the delegate did misunderstand a circumstance on which the applicant relied as contended by this ground.

125 For these reasons, ground 1.2 must be dismissed.

Ground 3 - The delegate fell into error, which was not immaterial, in relying on the CDPP's response received on 26 May 2020 that incorrectly represented the Court of Appeal as having 'accepted the approach of the County Court'

126 This ground is based on one of the annexures to the CPO submissions, namely an email from a CDPP case officer dated 26 May 2020. That email was in the following relevant terms:

I understand [the applicant] has made an application for early release on licence pursuant to s. 19AP of the Crimes Act 1914 (Cth) and a ground on which [the applicant] seeks to rely is that he gave assistance to authorities and that the sentencing court ([the applicant] having been resentenced by the Court of Appeal) did not take assistance into account. I further understand that [the applicant] asserts that his assistance was taken into account as a matter in mitigation in the County Court but that in resentencing him the Court of Appeal failed to take into account his assistance to authorities.

I advise that the hearing of submissions in relation to assistance in this matter was a silent hearing in both the County Court and Court of Appeal and accordingly there is no reference to this issue in the County Court Sentencing Remarks and Court of Appeal Judgment. I can further advise that the County Court did take assistance into account and that the Court of Appeal accepted the approach of the County Court and accordingly [the applicant's] present sentence does take assistance into account.

127 As I have already noted that reference was made in the CPO submissions to the fact that the CDPP had provided advice that the sentence imposed by the Court of Appeal took into account the assistance the applicant gave to a law enforcement agency. In support of that conclusion, the CPO submissions relied on the fact the Court of Appeal did not interfere with any of the individual sentences originally imposed by the sentencing judge.

128 Based on the applicant's written and oral submissions, the applicant's argument in support of this ground is comprised of the following the steps:

(1) One of the specified circumstances upon which the applicant relied as an exceptional circumstance that justified the grant of a licence was that the presentencing assistance he gave to a law enforcement agency was not appropriately taken into account when he was resentenced by the Court of Appeal.

(2) That specified circumstance was a matter to which the delegate was bound to have regard in determining whether he was satisfied that exceptional circumstances existed which justified the grant of a licence.

(3) The CDPP's email of 26 May 2020, and therefore the CPO submissions, incorrectly represented to the delegate that, when the applicant was resentenced, the Court of Appeal 'accepted the approach of the County Court' and accorded the same mitigatory weight for his cooperation with a law enforcement agency as was accorded when he was originally sentenced.

(4) The delegate therefore fell into jurisdictional error because he failed to have regard to a matter to which he was bound to have regard.

129 There is no doubt that a circumstance specified in the applicant's application for the grant of a licence that was relied upon as an exceptional circumstance that justified the grant of a licence was that he had 'significantly assisted law enforcement authorities and that his assistance was not appropriately taken into account in his sentencing' by the Court of Appeal (emphasis added). Accordingly, the first two steps in the applicant's argument may be accepted for the purposes of determining this ground of review. There are, however, fundamental difficulties with the third, and therefore the fourth, step in the applicant's argument in support of this ground.

130 The first difficulty is that the CDPP's email, and therefore the CPO submissions, did not incorrectly represent the mitigatory weight that the Court of Appeal gave to the assistance the applicant gave to a law enforcement agency.

131 Section 16A(2) of the Crimes Act enumerates the matters that a court sentencing a person for a federal offence must take into account, to the extent they are relevant and known to the court. One of those factors is the degree to which the person has cooperated with law enforcement agencies in the investigation of that offence or other offences: s 16A(2)(h). When the applicant was first sentenced in the County Court, the sentencing judge said that he had taken into account 'in [the applicant's] favour, in a significant way, other mitigating factors known to the parties'. The footnote to the relevant part of the sentencing remarks makes it plain that what the sentencing judge had in mind was the matter that is the subject of s 16A(2)(h). It follows that the sentencing judge took this factor into account when fixing each of the individual sentences that he imposed on the applicant. As the sentencing judge said:

In sentencing you for these offences, I am required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth), and more specifically to the matters set out in s 16A of that Act. The governing principle under s 16A(1) is the imposition of a sentence which is of a 'severity appropriate in all the circumstances of the offence.' In determining a sentence appropriate in all the circumstances of the offence, I am required to take into account the matters listed in s 16A(2) and any other relevant matters, insofar as they are relevant and known to me.

132 On the other hand, the total effective sentence was arrived at after the sentencing judge applied the 'totality principle'. The totality principle required that the sentencing judge evaluate the overall criminality involved in all of the offences to ensure there is no disproportion between the totality of the criminality and the totality of the effective length of the sentences imposed, and to avoid a 'crushing' total sentence. In that regard, the sentencing judge referred to the 'overlapping nature of the charges and also to [the need to] avoid imposing a crushing sentence on [the applicant], particularly given [his] age and physical health problems'.

133 The sentencing judge ultimately applied the totality principle by imposing as 'base sentence' of 5 years for one of the offences, by imposing separate sentences for each individual offence, and by making orders that parts of some of those individual sentences be served cumulatively on the base sentence.

134 The reasons of the Court of Appeal record that, in its appeal against the applicant's sentence, the prosecution only challenged the total effective sentence and the non-parole period that were imposed. The lengths of the individual sentences were not challenged. In fact, the Court of Appeal rejected an attempt made by the prosecution to amend its grounds of appeal during the hearing of the appeal. The significance of this is that there was no challenge made to the discount that was allowed by the sentencing judge when fixing the individual sentences, on account of the applicant's assistance to a law enforcement agency.

135 The Court of Appeal allowed the prosecution appeal, concluding that it was not reasonably open to the sentencing judge to impose the total effective sentence and the non-parole period that was imposed. However, it is important to appreciate that the Court of Appeal only set aside the sentencing judge's orders for cumulation. A higher total effective sentence was ultimately imposed because the Court of Appeal substituted its own orders for cumulation, and not because it interfered with any of the individual sentences.

136 Accordingly, while there is no doubt that the applicant was sentenced by the Court of Appeal to a higher total effective sentence, it does not follow that the mitigation that he was originally afforded for his cooperation with a law enforcement agency was not 'appropriately taken into account in his sentencing' by the Court of Appeal. The true state of affairs is that the Court of Appeal's decision did not affect the discounts the sentencing judge gave for all mitigating factors, including for the assistance the applicant had given to a law enforcement agency, which was reflected in the individual sentences imposed for each offence.

137 It follows that, contrary to the third step in the applicant's argument and the terms of ground 3 itself, the CDPP did not make any incorrect representation about the decision of the Court of Appeal. This is fatal to this ground.

138 The second difficulty with the last two steps in the applicant's argument is that, even if the CDDP did incorrectly represent that the Court of Appeal 'accepted the approach of the County Court', it does not follow that the delegate fell into jurisdictional error or that the delegate's decision was an improper exercise of the power conferred by s 19AP by failing to take a relevant consideration into account for the purposes of ss 5(1)(e) and 5(2)(b) of the ADJR Act.

139 The delegate had before him the CPO submissions, the CDPP's correspondence, the sentencing judge's remarks, and the Court of Appeal's decision as well as several documents that were taken to amount to the applicant's application under s 19AP(2). In the circumstances of this case it was for the delegate to determine, based on those materials, whether he was satisfied that the assistance provided by the applicant to law enforcement agencies was not appropriately taken into account in sentencing before then determining whether that, alone or in combination with other factors, amounted to an exceptional circumstance justifying the grant of a licence. If the CDPP made an incorrect representation about those circumstances, the delegate was not thereby, as the applicant's counsel put it in her written submissions, 'robbed of the opportunity to consider whether the failure by the Court of Appeal to give [the applicant a] significant discount for his assistance constituted, either alone or together with other matters, exceptional circumstances'. The delegate could not logically be said to have failed to have had regard to a circumstance specifically relied upon by the applicant as an exceptional circumstance justifying the grant of a licence under s 19AP(1) simply because the applicant now says that the materials that were before the delegate, and that were supplied by another source, were inadequate in some respect.

140 Ground 3 must be dismissed.

Ground 4 - It was legally unreasonable to conclude that the link between any security threat faced by the applicant and his cooperation with law enforcement was speculative

141 At the hearing of this matter, the applicant's counsel did not make any oral submissions in support of this ground preferring to instead rely on her written submissions.

142 The focus of this ground is on the following paragraph taken from the CPO submissions:

143 It is submitted that it should be inferred that the delegate accepted the conclusion in the first sentence of that paragraph. The applicant argues that the Court should draw that inference because the delegate said, in his brief reasons, that he was not satisfied that there are exceptional circumstances on any of the grounds raised by the applicant, either in combination or individually, that justified his release on licence. On that footing, the applicant then contends that the delegate's conclusion was 'legally unreasonable', having regard to several documents that were before the delegate as attachments to the CPO submissions.

144 The first of those documents is an email from the Department of Justice and Community Safety addressed to the CPO and dated 13 August 2021. That email is in the following terms:

I've obtained advice from the manager of the Sentence Management Division in relation to [the applicant's] placement concerns, see below -

" Every prisoner in the state has an interim classification in addition to their classified location. The interim classification is the prison a prisoner would return to in metro Melbourne, should they need to attend court / medical in person.

Due to [the applicant's] concerns with a [Port Phillip Prison] placement, Sentence Management updated [the applicant's] interim placement classification to [Melbourne Assessment Prison] on [a date in 2020], meaning that should he be required to return to metro Melbourne from [the prison in which he was then being held] for any reason such as medical, he would be returned via the [Melbourne Assessment Prison] rather than [Port Phillip Prison]. "

Hope this assists in your consideration. Please let me know if you require anything further.

(original emphasis)

145 The second document is a Parole Assessment Report dated 5 May 2022. The specific part of that document that is relied upon is a section in which 'Other incidents' are identified, including one in which the applicant was found in his cell cleaning up faeces that had been thrown at him by another prisoner, with several other prisoners yelling at him. According to this entry, the applicant believed that this event happened because other prisoners found out that he had provided assistance to a law enforcement agency.

146 There are two fundamental problems with this ground.

147 The first problem is that the premise of the ground is that the delegate did in fact draw a conclusion 'that the link between any security threat faced by [the applicant] and his cooperation with law enforcement was speculative'. However, there is nothing at all in the materials before this Court to suggest that this is in fact what the delegate concluded. For the Court to draw an inference that this is what the delegate actually concluded, the Court would be required to infer that the delegate agreed with what was, in essence, an opinion that had been expressed by the CPO. However, the fact that the delegate was not satisfied that there were exceptional circumstances justifying the applicant's release on licence for any of the grounds on which the applicant relied says nothing about whether he reached a specific conclusion consistent with a single sentence that appears in one of the 143 paragraphs of a 26-page submission.

148 The second problem is that, even if the delegate did reach a conclusion that the link between any security threat faced by the applicant and his cooperation with law enforcement was speculative, such a conclusion was plainly not legally unreasonable.

149 In support of the contention that such a conclusion is legally unreasonable, the applicant's written submissions say only:

Given that the documents containing the information at [paragraphs [144] and [145] of these reasons] was before the delegate in the attachments to the [CPO submissions], for the delegate to make the conclusion [that the link between any security threat faced by the applicant and his cooperation with law enforcement appears to be speculative] was legally unreasonable. Alternatively, it is submitted that the delegate's decision involved an error of law pursuant to s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977.

150 On that basis, I understand that the essence of the applicant's contention is that the delegate acted illogically or irrationally in reaching a finding of fact that the link between the applicant's cooperation with law enforcement agencies and any security threat that he faced was speculative, or that his conclusion in that regard was otherwise legally unreasonable, because it was not open on the documents referred to at [144] and [145] of these reasons. In those circumstances, and on the assumption that the delegate did reach that conclusion, contrary to what I have already found, the correct approach is to ask whether it was open to the delegate to draw that conclusion on the material that was before him: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 133.

151 Noting that the required threshold of legal unreasonableness is usually high (Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]), it was well open to the delegate to reach a conclusion that any link between the applicant's cooperation with law enforcement agencies and security threats was speculative. The documents upon which the applicant relies do not demonstrate that such a finding, if it was made, was illogical or irrational, or that it was otherwise legally unreasonable. The email from the Department of Justice and Community Safety establishes only that alternative arrangements were made because the applicant had concerns about being sent to Port Phillip Prison when in Melbourne for medical treatment. Further, the entry in the Parole Assessment Report records only that the applicant held a belief that the incident described in that report occurred because other prisoners discovered that he had provided assistance to a law enforcement agency.

152 The applicant also sought to rely on s 5(1)(f) of the ADJR Act. However, as the applicant did not make any submissions to suggest that there was some other basis on which the delegate's decision involved an error of law, other than that it was legally unreasonable, his reliance on that provision does not add anything to ground 4.

153 Ground 4 must be dismissed.

Ground 5 - The delegate fell into error by applying the 'exceptional circumstances' test without considering the applicant's 'cooperation with law enforcement', 'medical grounds' and 'mental health' in light of, and together with, the other relevant factors

154 By this ground the applicant contends that the delegate failed to discharge his statutory task because he erroneously limited his consideration of whether relevant exceptional circumstances existed to the specified circumstances on which the applicant relied as exceptional circumstances justifying the grant of a licence. The applicant says that this is what the delegate did can be inferred from the following matters: firstly, in the 'Discussion' section of the CPO submissions, the author of the submissions only analysed the three exceptional circumstances on which the applicant relied. Secondly, the CPO submissions suggested that the question for the delegate was whether the applicant's release on licence was 'necessary as opposed to desirable', which then invited a reasoning process that discounted other relevant factors. Thirdly, in his letter to the applicant dated 20 February 2025, the delegate said that he was not satisfied that there were exceptional circumstances justifying the grant of a licence 'for any of the grounds that [the applicant raised] either in combination or individually'.

155 The applicant argues that in considering whether exceptional circumstances existed, in addition to the circumstances that were specified in the applicant's written application, the delegate was bound to take into account ' all relevant factors' (emphasis added) including the applicant's age, the likelihood that he would die while in custody, his low risk of reoffending over the medium to long term, the availability of suitable accommodation, his supportive family and long-term partner, and the fact that he provided assistance to law enforcement authorities.

156 The applicant contends that, although the text used in s 19AP did not expressly require the delegate to take such relevant matters into account, including those factors referred to in the preceding paragraph of these reasons, an implication that the delegate was bound to take them into account can be drawn from the subject matter, scope and purpose of the Crimes Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 40 (Mason J, with whom Brennan J agreed at 56); see also Hasim at [49]. In that regard, the applicant points only to the fact that s 19AP appears in the same division of the Crimes Act as the provisions concerned with release on parole of persons convicted of federal offences, and submits that it 'may be surmised that matters pertaining to the release on parole would be similarly relevant to an application for release on license' [sic].

157 The applicant claims that the delegate fell into jurisdictional error by 'misapplying the exceptional circumstances test' in s 19AP. The applicant also claims that the delegate's decision involved an error of law for the purposes of s 5(1)(f) of the ADJR Act. However, having regard to the applicant's submissions, it seems clear that his basal contention is that the delegate failed to take various relevant considerations into account.

158 A similar argument to the one propounded by the applicant was rejected in Hasim. There, the applicants argued that the relevant decision maker failed to have regard to several mandatory relevant considerations, which were concerned with a direction given by the Attorney-General to the CDPP in connection with the prosecution of certain people for people smuggling offences under the Migration Act 1958 (Cth). In setting out several 'organising principles' that were relevant to the grounds sought to be agitated in Hasim, Greenwood J said that, when taken in conjunction with s 19AP(1), the decision-maker is required by s 19AP(3) to take into account the circumstances specified by the applicant as exceptional circumstances justifying the grant of a licence. However, Greenwood J also said at [79]:

There is no statutory direction or obligation in the Crimes Act requiring the Attorney‑General's delegate to consider any of the [matters said to have been mandatorily relevant factors] except to the extent that any one of those matters had been raised by the applicants as part of their specification of the content of the exceptional circumstances upon which they were relying to support the exercise of the discretion. To the extent that any of those matters were put to the Attorney‑General or the delegate as part of the specified exceptional circumstances, s 19AP required the decision‑maker to take each proposition into account in reaching the relevant state of satisfaction and in exercising the discretion.

(emphasis added)

159 I respectfully agree.

160 There is plainly no express statutory direction or obligation that appears in s 19AP, or anywhere else in the Crimes Act, which required the delegate to consider the amorphous body of factors, which the applicant described in his written submissions as 'all relevant circumstances', or even the specific examples of those circumstances referred to at [155] of these reasons, in determining whether he was satisfied that exceptional circumstances exist which justified the grant of a licence.

161 Accordingly, for the applicant to succeed on this ground, an implication must be drawn from the subject matter, scope and purpose of s 19AP and the Crimes Act that the factors the applicant says were not considered by the delegate were mandatorily relevant considerations. However, the only submission made in support of a contention that such an implication should be drawn was that it may be deduced that factors that are relevant to a decision about whether a person should be released on parole would also be relevant to a decision whether to grant a licence under s 19AP. This, it was submitted, is because s 19AP appears in the same division of the Crimes Act in which provisions that are concerned with release on parole also appear.

162 The applicant's contention must be rejected.

163 It may be accepted that the statutory provisions that relate to decisions about whether to make, or to refuse to make, an order directing that a person serving a federal sentence be released from prison on parole appear in Div 5 of Pt IB of the Crimes Act. Most relevantly, s 19ALA(1) provides that in making a decision about parole orders, the Attorney-General may have regard to any of the matters set out in paras (a) to (m) of that provision, that are known to the Attorney-General and that are relevant to the decision. Those matters are:

(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; and

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

164 However, and as was recently noted in Baggaley v Attorney-General (Commonwealth) [2025] FCA 968 at [86]:

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

(emphasis added)

165 Accordingly, the provisions that are concerned with release on parole provide no support for the applicant's contention that the delegate was bound to take into account 'all relevant circumstances', including the specific factors referred to at [155] of these reasons, in deciding whether he was satisfied that exceptional circumstances exist that justify the grant of a licence. They in fact suggest the opposite.

166 What the delegate was required to do was decide whether he was satisfied that exceptional circumstances existed that justified the grant of a licence to the applicant: s 19AP(4). In determining whether he was so satisfied, the delegate was required to have regard to the exceptional circumstances, individually and in combination, on which the applicant relied as were specified in his written application. Apart from those circumstances, it was open to the delegate to have regard to any other factors he considered relevant including, but not limited to, any one or more of the factors in s 19AP(4A). However, he was not bound to have regard to those matters.

167 If the delegate was satisfied that there were exceptional circumstances justifying a grant of a licence, he was then required to decide whether to exercise the discretion in s 19AP(1) to grant a licence to the applicant.

168 The applicant again sought to rely on s 5(1)(f) of the ADJR Act. However, as the applicant also did not make any submissions in the context of this ground to suggest that there was some other basis on which the delegate's decision involved an error of law, his reliance on that provision does not add anything to ground 5.

169 Ground 5 must be dismissed.

Conclusion

170 As I would not allow any of the grounds on which the applicant seeks judicial review of the delegate's decision to refuse to grant him a licence under s 19AP of the Crimes Act, the application must be dismissed. In those circumstances, it is appropriate that there be an order that the applicant pay the respondent's costs.

171 On 25 March 2025 an order was made under paras (a) and (b) of s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) that the identity of the applicant, and any information which may tend to disclose his identity, be suppressed and not published until further order of the Court. There is no suggestion that this order should be varied. However, to ensure the continuing efficacy of that order, I will give the parties time to make submissions about whether any aspect of these reasons should also be the subject of an order under s 37AF on the ground that it may tend to disclose the applicant's identity.

Pro bono counsel

172 The Court wishes to record its appreciation for the valuable assistance Ms Yuan provided as pro bono counsel for the applicant in this matter.

| I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen. |
Associate:

Dated: 20 March 2025

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