Ghasemi v NSW Department of Corrective Services

By summons filed on 28 August 2018, Behrooz Ghasemi (the plaintiff) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) for error of law on the face of the record or jurisdictional error relating to the refusal of his application that his classification as an inmate serving a term of imprisonment be changed from C2 to C3.

Relief is sought against the Commissioner of the Department of Corrective Services, the first defendant (the Commissioner) and the Serious Offenders Review Council (SORC) and its subcommittee, the Pre-Release Leave Committee (PRLC), the second defendant. The first defendant is the only active defendant. The second defendant has filed a submitting appearance.

The plaintiff relies on the following alleged errors of law on the face of the record: failure to take into account relevant considerations; taking into account irrelevant considerations; and that the decisions and recommendations are ultra vires. He also relies on other errors, said to be jurisdictional errors, including bias and denial of procedural fairness. Before addressing these alleged errors I propose to summarise the relevant statutory provisions and administrative procedures and the factual background.

All references to legislation in these reasons are references to the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) unless otherwise indicated.

The Migration Act 1958 (Cth) is relevant because the plaintiff is a citizen of New Zealand but not a citizen of Australia.

Section 13(1) of the Migration Act provides that “[a] non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.” Section 14(1) of the Migration Act provides that “[a] non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.”

Section 198 of the Migration Act makes provision for the removal from Australia of unlawful non-citizens. Deportation is dealt with under Division 9 of the Act. The visa of a “lawful non-citizen” can be cancelled under s 501 of the Migration Act. When this occurs, the person becomes an “unlawful non-citizen”. Section 501 provides for various bases for cancellation of a visa, including that the person does not satisfy the “character test”. The term character test is defined in s 501(6). A person does not pass the character test if the person has a “substantial criminal record”. Section 501(7) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

Section 2A includes the following in the list of objects of the Act:

Section 3(1) defines “serious offender” by reference to a number of categories. It was common ground that the plaintiff did not fall into any of these categories and was not a serious offender.

Section 6 of the Act relevantly provides for work to be performed by inmates in various settings as follows:

The Act provides, in Part 9, for SORC to be constituted: s 195(1). The Chairperson may constitute Divisions of SORC, to which he or she may delegate any of SORC’s functions: s 196. Section 197 provides for the functions of SORC. Section 197(1) provides that SORC has “such functions as are conferred on it by or under this or any other Act or law.”

While many of the specific functions conferred on SORC by s 197(2) relate to serious offenders, its functions do not pertain only to serious offenders and include: “to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders”: s 197(2)(f).

Section 271(1) provides that “[t]he Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act.”

Regulation 311 of Crimes (Administration of Sentences) Regulation 2014 (CAS Regulation) relevantly provides:

Division 1 of the CAS Regulation provides for the classification and designation of inmates. It relevantly provides:

Mr Emmett, who appeared for the first defendant, tendered extracts from various documents which he contended constituted either specifications by the Commissioner pursuant to CAS regulation 311 or relevant policy documents.

Chapter 4.1 of the “Custodial Operations Policy and Procedures” says:

Chapter 4.3 contains details of the three sub-committees of SORC, including the PRLC. It includes the following:

Extracts from the Offender Classification & Case Management Policy and Procedures Manual (CCOPM) were also tendered. They are summarised below.

Chapter 18.1 of the CCOPM refers, in section 18.1.3, to the PRLC, which is dealt with in Chapter 18.4. Section 18.4.2, entitled “Legislation/Policy” relevantly provides:

Section 18.4.3, entitled Public Interest Criteria, provides for criteria for designation as a Public Interest Inmate. The criteria include:

Chapter 20 of the CCOPM outlines the parameters within which inmates are permitted to participate in External Leave Programs. Section 20.1.6 defines PRLC as a sub-committee of SORC which “provides an independent means of assessing applications for participation in certain external escorted, supervised programs and unescorted leave programs by inmates identified as ‘Public Interest Inmates’.” Part of the definition of the PRLC includes its functions, as follows:

Chapter 21 provides for External Leave Programs for Inmates Subject to Being Removed or Deported. It relevantly provides:

The basis on which a lawful non-citizen’s visa may be cancelled is provided for as follows:

The implications for inmates who are not Australian citizens are relevantly provided for as follows:

The Compendium of Offender Behaviour Change Programs in New South Wales dated June 2016 contains, as its name indicates, “the approved list of offender behaviour change programs within Corrective Services NSW that directly or indirectly seek to reduce re-offending.” The EQUIPS Foundation Program is among the programs available. The Compendium relevantly provides, in relation to this program:

The eligibility and suitability criteria for this program are:

The Level of Service Inventory-Revised (LSIR), which is referred to in the criteria for eligibility set out above, is a calculated risk score. The evidence before me included a document, entitled, “Using the Level of Service Inventory-Revised (LSI-R) in CSNSW Correctional Centres: Offender Services and Programs staff”. This document explains the calculation of LSIR and its use within the prison system. An inmate’s LSIR is relevant to a determination of the programs for which the inmate might be eligible. The LSIR purports to create a profile of criminogenic needs by allocating scores to particular areas. The sum of the scores is used to determine the risk level by category from Low; Low/Medium; Medium; Medium/High and High.

One of the areas which contributes to an LSIR is “Alcohol/Drug Problems” (AOD). An AOD score of 2-4 means that there is “some need for improvement” and a score of 5-9 means that there is “considerable need for improvement”.

The plaintiff is presently in custody, having been convicted of two counts of supplying a large quantity of prohibited drugs. His sentence of 8 years’ imprisonment, which was imposed on 11 September 2015, commenced on 11 April 2014 and will expire on 10 April 2022. He will become eligible for parole on 10 October 2019.

On 24 September 2014 the plaintiff was assessed as having an AOD score of 4 which signified that there was “some need for improvement”.

On 18 September 2015, a week after his sentence was imposed, the plaintiff was classified Category C1. On 8 March 2017 he was reclassified as C2.

On 27 June 2017 the plaintiff was transferred at his own request from Dawn de Loas Correctional Centre, Silverwater, to Parklea Correctional Centre (Parklea). The plaintiff’s custodial history recorded that he wanted to transfer to Parklea so that he could “pursue his educational needs”. I take this to be a reference to the plaintiff’s wish to become legally qualified. The plaintiff understood that he would not be permitted to work “off complex” under s 6(2) of the Act if he remained at Dawn de Loas Correctional Centre.

On 21 August 2017 the plaintiff sought reclassification as C3. He supplemented the submissions in his inmate request with further submissions dated 17 September 2017. The staff at Parklea recommended that he be reclassified. However, the Area Manager did not approve the reclassification. On 30 October 2017 the plaintiff was provided with reasons for the refusal, which included that the plaintiff’s immigration status was under consideration and that his visa was likely to be cancelled. It was also noted that his “6.2 [on/off complex order under s 6(2)] has recently been suspended as a result of his current immigration status.” He was informed that he could reapply for reclassification once a decision had been made on his immigration status.

On 21 November 2017 the Minister for Immigration and Border Protection cancelled the plaintiff’s Special Category Visa pursuant to s 501 of the Migration Act on the ground that he did not pass the character test as he had a substantial criminal record within the meaning of s 501(7) of the Migration Act, having been sentenced to a term of imprisonment of 12 months or more. As a consequence, the plaintiff, who had previously been a lawful non-citizen, became an unlawful non-citizen and was designated a public interest inmate pursuant to section 18.4.3 of the CCOPM. As such, any application for his reclassification to C3 was required to be referred to the PRLC for consideration and recommendation to the Commissioner.

On 8 January 2018 the plaintiff wrote to the Commissioner outlining his plans to become legally qualified. The letter concluded:

On 12 January 2018 the plaintiff applied for reclassification to C3. His application was supported by a five-page written submission.

On 9 February 2018 the Commissioner wrote to the plaintiff relevantly as follows:

The plaintiff’s application was supplemented by further written submissions and documents provided on 8 March 2018. He informed the Case Management Team (CMT), the PRLC and the Commissioner that he wanted to complete a Bachelor of Laws degree in order to obtain employment on his release and had secured a place to study remotely with the University of New England which he had deferred until second term. He also annexed a letter of offer from a law firm, Sydney Criminal Defence Lawyers, as an Administrative Assistant.

On 13 March 2018 the author of a document entitled “Review of Classification”, who was accepted to be part of the CMT, recommended “progression to C3”. The matter was then referred to the PRLC on 16 April 2018 pursuant to section 21.1.6(3) of CCOPM. The PRLC recommended against progression to C3 and said:

The recommendation was expressed as follows:

On 1 June 2018 the Commissioner refused to reclassify the plaintiff and approved the PRLC’s recommendation (the Commissioner’s decision) and added, above his signature in the box headed “Comments of Commissioner”:

On 4 July 2017 the plaintiff signed a document confirming that he had been advised that he met the eligibility criteria for the EQUIPS Foundation program but that he did not wish to participate. He ticked the box stating that he had been informed that his decision may affect his parole and progression while in custody. The plaintiff gave the following reason for his decision:

He had given a similar response in an earlier form on 19 October 2017.

In a status report dated 7 March 2018 the plaintiff was assessed as having an AOD score of 5, which signified that he was within the range where there was thought to be “considerable need for improvement”. However, this assessment was not provided to the PRLC. The material which was before the PRLC, and subsequently the Commissioner, indicated that the plaintiff, who had previously been assessed as “Medium”, did not have an up-to-date LSIR score. It can also be inferred from the requirement that he perform the EQUIPS Foundation Program rather than the EQUIPS Addiction Program that he was not being assessed on the basis of an AOD of 5, since this would have made him eligible for the latter program.

The entries in the plaintiff’s case notes which were before the PRLC consistently record throughout the period from January to April 2018 that the plaintiff had been assessed as unsuitable for EQUIPS Addictions but that he may benefit from EQUIPS Foundation.

Before addressing the grounds, I note that, in addition to his oral submissions at the hearing, the plaintiff provided several documents to the Court which contain his written submissions, both in chief and in response to the Commissioner’s decision. In his written submissions, the plaintiff did not indicate, in all cases, the ground to which the submissions related. I have endeavoured, in addressing the plaintiff’s submissions, to deal with them by reference to the particular grounds. However, as some submissions could be allocated to more than one ground, this has involved a degree of judgment.

The plaintiff challenges both the recommendation of the PRLC and the Commissioner’s decision. This Court has no jurisdiction to review decisions or conduct that does not affect legal rights. As a recommendation from the PRLC has no discernible effect on the plaintiff’s rights, any error would not entitle the plaintiff to relief: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44 at 159: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580-581 (Mason CJ, Dawson , Toohey and Gaudron JJ); [1992] HCA 10. Accordingly, it is only necessary to consider the Commissioner’s decision.

As referred to above, some of the grounds raise alleged error of law on the face of the record while others raise jurisdictional error. In these circumstances it is necessary to identify “the record” for the purposes of those grounds which are confined to errors of law on the face of the record.

The plaintiff provided written submissions and documents to the PRLC. His written submissions and some of the documents were provided to the Commissioner in the form of a bundle attached to the PRLC’s recommendation. Not all of the documents provided to the PRLC were contained in the bundle. However, the substance of the documents and other matters germane to the application was summarised in the covering minute from the PRLC to the Commissioner which accompanied the bundle. The Commissioner’s decision is recorded on the covering minute by his indication that he approved the recommendation, his signature and the handwritten note. The bundle, including the covering minute and the Commissioner’s notations constitute “the record”. The other material tendered may not be taken into account on grounds confined to the record but it may be taken into account on the other grounds, such as alleged bias, alleged lack of procedural fairness and alleged bad faith.

Ground 1 raises denial of procedural fairness. The plaintiff has not identified any document provided to the PRLC the substance of which was not adequately brought to the attention of the Commissioner in the documents attached to, or in the summary provided in, the bundle which constitutes the record. There is no indication in the material that either the PRLC or the Commissioner did not consider the material which the plaintiff provided in support of his application for reclassification. Ground 1 has not been made out.

Ground 13 raises the concept of “legitimate expectation”, which was once thought to be a pre-requisite to the provision of procedural fairness. However, in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, the High Court (Kiefel, Bell and Keane JJ) said at [30]:

Ground 13 does not raise an additional point. It was common ground that the applicant was entitled to be accorded procedural fairness, in that he was entitled to have an opportunity to be heard on why he ought be reclassified. He had that opportunity. His correspondence and the documents he relied upon were provided to the Commissioner or adequately summarised for him. Ground 13 has not been made out.

The plaintiff contended that the Commissioner’s decision was ultra vires because he was dealt with as if he were a serious offender when he did not fall into that category. As referred to above, it was common ground that the plaintiff was not a serious offender. However, the words of s 197(2)(f) which provide that SORC is “to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders” indicate that SORC can perform functions prescribed by the regulations in relation to the management of all offenders, being serious offenders and other (that is, non-serious) offenders. The plaintiff’s reliance on the maxim ejusdem generis (general matters are constrained by specific matters) is misplaced. There is no list in s 197(2)(f). There is merely a description of the universal set of offenders: those who are serious offenders and those who are not. In these circumstances, there is no basis for reading down “other offenders” in s 197(2)(f).

CAS Regulation 311(1)(e) contemplates that the Commissioner will request reports, advice and recommendations from SORC (and its sub-committees) on any matter specified by the Commissioner. It follows that the Commissioner was entitled to request that SORC consider the plaintiff’s application and make a recommendation to him and that SORC was obliged to fulfil its function to provide such a recommendation. The Chairperson was entitled to delegate this function to the PRLC, as is reflected in the extracts from the CCOPM set out above. I assume that this occurred in the present case, there being no suggestion to the contrary and no challenge to the delegation. The plaintiff submitted that CAS regulation 311(1)(e) was ultra vires the regulation-making power conferred by s 271(1) because it purports to apply to the plaintiff when he is not a serious offender. I reject this submission. A regulation constitutes “any other Act or law” for the purposes of s 197(1). As referred to above, the functions conferred on SORC are not limited to those relating to serious offenders.

Pursuant to CAS regulation 12(2), it was for the Commissioner to make the decision whether to vary the plaintiff’s classification. The record (referred to above) indicates that the Commissioner made the decision himself not to vary the plaintiff’s classification on the recommendation of the PRLC. In these circumstances, the plaintiff has not established that the Commissioner’s decision was ultra vires.

The plaintiff submitted that the Commissioner’s note that the plaintiff had no resettlement needs, together with the time taken to make the decision established real or apprehended bias. The plaintiff contended, in his written submissions:

The plaintiff argued that the Commissioner’s note indicated that the Commissioner intended to absolve himself from any responsibility towards the plaintiff. The plaintiff also relied on the object in s 2A(d) set out above in support of the submission that his reintegration into the general community would be served by his reclassification as C3.

The plaintiff also sought to draw an analogy between his situation and that of a “transferred prisoner” under the International Transfer of Prisoners (New South Wales) Act 1997 (NSW). The plaintiff contended that CAS regulation 19 ought be read so as to confine the matter to be considered in (b) to security issues, that being the evident concern of (a).

The Commissioner was obliged to take into account, in making the decision whether to vary the plaintiff’s classification, whether or not the inmate was likely to be removed from Australia: CAS regulation 19; see also Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-41 (Mason J); [1986] HCA 40. There is nothing in that regulation which indicates that the consideration in (b) is to be confined to the parameters of the consideration in (a). Accordingly, although the Commissioner was obliged to take into account that the plaintiff was likely to be removed from Australia, as he was an unlawful non-citizen, it was for the Commissioner to determine how he would take that into account and what weight he would give to it: Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5]–[7] (Gleeson CJ). The matter in CAS regulation 19(b) was relevant on at least two bases: first, it is possible that there would be a heightened level of risk that the plaintiff would abscond in Australia in preference to being deported to New Zealand; and, secondly, that when the plaintiff was released to parole he would not be at liberty in the community but would be required to go to a detention centre to be deported. The Commissioner’s note indicated that he specifically considered the second consequence of the plaintiff’s status as an unlawful non-citizen.

The plaintiff cannot establish bias, whether actual or apprehended, by reference to a factor which the Commissioner was obliged, by law, to take into account. The alleged analogy between the present situation and the International Transfer of Prisoners (New South Wales) Act is inapposite. Not only are the statutory provisions different but also the purpose of the International Transfer of Prisoners (New South Wales) Act is to create a degree of parity between prisoners sentenced in Australia and those sentenced in New Zealand upon transfer. By contrast, the Commissioner is obliged by CAS Regulation 19(b) to consider the immigration status of a prisoner when deciding whether to reclassify the prisoner.

In support of the bias ground, the plaintiff contended that the Commissioner was discriminating against him because he was not an Australian citizen and that, to the extent that this treatment was authorised by CAS Regulation 19(b), it was a discriminatory law. This argument must be rejected. As Gaudron and McHugh JJ said in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478; [1990] HCA 1:

In the present case, CAS regulation 19(b) not only authorises, but also requires, the Commissioner to take into account whether or not the inmate (the plaintiff) is likely to be removed from Australia. There is no “overriding law” which decrees that matter to be irrelevant and is, accordingly, not discriminatory.

The plaintiff also relied, in support of the bias ground, on the status report dated 7 March 2018 in which his AOD score was recorded as 5. For the reasons given above, this score is irrelevant to the plaintiff’s challenge to the Commissioner’s decision as the PRLC was not privy to it.

The plaintiff contended that the delay between his application for reclassification and the decision demonstrated bias. The evidence showed that the minute from the PRLC to the Commissioner was dated 29 May 2018 and the Commissioner’s decision was made on 1 June 2018. The Commissioner was entitled to have the PRLC consider the application and make a recommendation to him. In any event, the evidence does not establish any particular delay on the part of the PRLC in considering the application and formulating its recommendation. In these circumstances the allegation of bias is not made out.

The plaintiff also contended that the Commissioner was guilty of “post-decision” bias in appending the note to his decision. The note indicates that the Commissioner had turned his mind to a relevant consideration (CAS regulation 19(b)) and had addressed the plaintiff’s situation specifically. I do not regard the reference to lack of settlement needs as indicating any actual or apprehended bias. Accordingly this ground has not been made out.

A decision-maker is entitled to develop criteria for the exercise of a discretionary statutory power and to take account of a policy in doing so: Drake v Minister for Immigration (1979) 24 ALR 577. However, the decision-maker is not entitled to abdicate its function of making a decision by merely deciding in conformity with the relevant policy without regard to the actual facts of the case: Green v Daniels (1977) 51 ALJR 463. The principles were summarised by Bowen CJ and Deane J in Drake v Minister for Immigration in the following passage at 590-591:

The balancing of consistency and the circumstances of the individual case was pre-eminently a matter for the Commissioner. In Clark v Commissioner for Corrective Services [2016] NSWCA 186, at [31] Basten JA emphasised:

Emmett AJA (Simpson JA agreeing) said at [85]:

There is no prohibition on the reclassification of a person such as the plaintiff to C3 in the policy documents extracted above. All that is required by the Commissioner is that the matter be considered by the PRLC and that a recommendation be made to him. The standard covering minute provides for him to approve or not approve the recommendation. In the present case, the Commissioner accepted the PRLC’s recommendation that the plaintiff be required to complete the EQUIPS Foundation Program, if eligible, before further consideration would be given to his reclassification.

The plaintiff contended that he ought not to have been required to undertake the EQUIPS Foundation Program before his reclassification was considered. He submitted that it was premature to require him to do so in circumstances where his suitability for the program had not yet been determined. He argued that he ought to have been excluded from participating in the program because he was seeking to appeal against his conviction. He referred to other programs, such as the Violent Offender Treatment Program, from which prisoners who are contesting their convictions are excluded.

I do not discern either from the PRLC’s recommendation or the Commissioner’s decision any inflexible application of policy. It was open to the Commissioner to have the plaintiff’s eligibility for the program determined before his suitability. Once the plaintiff refused to participate in the program identified, he could not fulfil the condition in the Commissioner’s decision. The nature of his reasons for not being prepared to participate does not absolve him from the requirement to comply with the condition or establish any legal error on the part of the Commissioner for imposing the condition. It was open to the Commissioner to require that the plaintiff’s eligibility for the program be determined as a condition of his reclassification being considered further.

Further, the analogy between the EQUIPS Foundation Program and the Violent Offender Therapeutic Program (VOTP) is inapt. The VOTP specifically provides, under the heading “Exclusion criteria”:

There is no equivalent exclusion in relation to the EQUIPS Foundation Program. Accordingly, the fact that the plaintiff is seeking to appeal against his conviction does not exclude him from participating in this program.

The condition imposed by the Commissioner in his decision appears to have been tailored to the plaintiff’s actual circumstances, including the type of offences which he had committed. The present case may be distinguished from Davison v Commissioner for Corrective Services [2011] NSWSC 699, where McCallum J set aside a decision of the Commissioner where the delegate had not accepted SORC’s recommendation in circumstances where there was no express indication of why the recommendation had not been accepted. Her Honour inferred that the decision had been made on the basis of an inflexible rule or policy that sex offenders could not be reclassified until they had completed treatment programs.

It is an error of law for a decision-maker to take into account considerations that he or she is bound not to take into account or to fail to take into account matters that he or she is bound to take into account. However, where a statute has conferred a discretion which is in terms unconfined it is for the decision matter to decide what matters may be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend at 40-41.

The plaintiff alleged that the Commissioner had taken into account the following considerations which he contended were legally irrelevant:

As to (3), it can be put aside. It was open to the Commissioner to obtain a recommendation from the PRLC regarding the plaintiff notwithstanding that he was not a serious offender.

As to (1), the matter fell within the parameters of CAS regulation 19(b) and therefore was legally relevant.

As to (2), the risk profile of a prisoner is rationally relevant to whether the prisoner ought be reclassified to a category of lower security (from C2 to C3). The stated purpose of the EQUIPS Foundation program was to “aim to reduce re-offending by addressing criminogenic needs for general offence types therefore all offenders can benefit from it” (see extract above). This was a matter which the Commissioner was not prohibited from taking into account and, as the decision-maker, was entitled to take into account.

It is not clear from the plaintiff’s submissions which matters he alleges the Commissioner was obliged, and failed, to take into account. It was a matter for the Commissioner to decide what to take into account, as long as the plaintiff’s submissions were considered. The weight to be given to any particular matter was pre-eminently one for the Commissioner.

Neither ground 5 nor ground 6 has been made out.

The plaintiff submitted orally that the PRLC had recommended that he do the EQUIPS Foundation program to improve the statistics relating to the attendance at the program. There is no evidence of this. I do not discern any indication in the PRLC’s recommendation to the Commissioner or the Commissioner’s decision that the decision was made for other than proper purposes. As referred to above, the Commissioner was entitled to consider that it was appropriate that the plaintiff, if eligible, participate in the EQUIPS Foundation program before his reclassification was further considered.

As I understand it, the plaintiff’s objection to participating in this program is that he might be required to acknowledge his offending conduct as part of the program. As any such acknowledgement could jeopardise his chances of resisting a re-trial if his pending appeal against conviction were successful, he has refused to participate in the program. It could not reasonably be suggested that the Commissioner’s motivation for requiring him to do the program, if eligible, was to obtain an admission of guilt, in circumstances where he was convicted and sentenced in September 2015 and will be eligible for parole in approximately six months. Ground 7 has not been made out.

I understand that this ground encompasses all other grounds, apart from alleged bias, alleged lack of procedural fairness and alleged improper purpose which are not confined to the record. Accordingly it does not need to be separately addressed.

The allegation of bad faith appears to be based on the allegation that the Commissioner has used an AOD score for the plaintiff of 5. For the reasons given above, this premise has not been made out since neither the PRLC nor the Commissioner was privy to the status report which contained this score.

The plaintiff also argued that the delay in processing his application and the requirement that he participate in the program had prejudiced his position since in about six months he will be eligible for parole in any event. There is no basis for inferring that the time between the submission of the application and the Commissioner’s decision was a manifestation of bad faith. For the reasons given above, the Commissioner was entitled to obtain a recommendation from PRLC before making a decision whether to vary the plaintiff’s classification.

The ground of legal unreasonableness can only be made out if the plaintiff establishes that no reasonable decision maker could have made the decision: Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18. As Hayne, Kiefel and Bell JJ said in that case at [76]:

The plaintiff resorted to the merits of the Commissioner’s decision when addressing this ground. He submitted that it was unreasonable for the Commissioner to require him to spend time doing an EQUIPS Foundation Program when his rehabilitation would be better advanced by allowing him to work in a solicitor’s office and study for a law degree. This Court’s jurisdiction under s 69 of the Supreme Court Act does not permit a review of the merits of the Commissioner’s decision. The Commissioner was the relevant decision-maker; the plaintiff had no entitlement to be reclassified C3. This Court’s jurisdiction is confined to errors of law on the face of the record and jurisdictional errors. The plaintiff has failed to establish legal unreasonableness within the meaning of the concept as addressed in Minister for Immigration v Li.

The plaintiff alleged that the Commissioner exercised a delegated power. The Commissioner’s power to vary the plaintiff’s classification derived from CAS regulation 12(2). The record indicated that the Commissioner exercised the power personally. Not only did the Commissioner sign the document and indicate on it that he approved the recommendation of the PRLC, he also made the comment about the plaintiff’s lack of resettlement needs, which can be taken to be a reference to his status as an unlawful non-citizen. In these circumstances, it is not necessary to address the hypothetical question whether the Commission would have been entitled to delegate his power. This ground has not been made out.

The plaintiff did not raise any matter under this ground which was additional to the matters raised in support of grounds 2 and 11 which have been considered above. Accordingly, this ground does not need to be further addressed.

For the reasons given above the plaintiff has not established any basis on which this Court could set aside the Commissioner’s decision. Accordingly, the summons must be dismissed.

Mr Emmett confirmed that, despite an indication to the contrary in the Commissioner’s written submissions, the Commissioner did not seek his costs of the proceedings.

For the reasons given above, I make the following orders: