Haouchar v Parole Authority of NSW

1. [1]

   By a summons filed 12 August 2025, the plaintiff (Mr Haouchar) seeks judicial review of a determination dated 15 July 2025 in which the State Parole Authority (SPA) declined to rescind the revocation of Mr Haouchar’s parole (see s 175 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act)). In brief, Mr Haouchar claims that (a) he was denied procedural fairness; and (b) the SPA misapprehended the relevant statutory scheme by purporting to make a final determination rejecting Mr Haouchar’s rescission application while also standing the matter over for further review.

2. [2]

   For the following reasons, Mr Haouchar’s judicial review challenge will be dismissed, with costs.

Some background matters

1. [3]

   On 13 February 2018, Mr Haouchar was sentenced in the District Court to a term of imprisonment of ten years in respect of four offences of robbery while armed with a dangerous weapon, aggravated breaking and entering with the intention of committing a serious indictable offence, knowingly directing activities of a criminal group and assaulting a law enforcement officer in the execution of duty in contravention of various provisions of the Crimes Act 1900 (NSW). The sentence commenced on 26 April 2016 and carried with it a non-parole period of six years and six months that expired on 25 October 2022 (i.e. Mr Haouchar’s parole eligibility date). The expiry date for the head sentence is 25 April 2026.

2. [4]

   On 26 September 2022, the SPA directed that Mr Haouchar be released on parole on 25 October 2022, subject to the standard conditions and some additional conditions.

3. [5]

   On 15 April 2023, while on parole, Mr Haouchar was charged with further offending. His parole was revoked on 3 May 2023, effective retrospectively from 14 April 2023. The charges leading to the revocation of Mr Haouchar’s parole were subsequently withdrawn. An order was made by the SPA rescinding the revocation of his parole, effective from 2 November 2023.

4. [6]

   On 9 January 2025, Mr Haouchar was charged with one offence of conspiracy to murder (s 26 of the Crimes Act) alleged to have been committed between 4 and 29 December 2023, while he was on parole. He was refused bail.

5. [7]

   On 9 January 2025, a Breach of Parole Report prepared by a Community Corrections officer, Mr Sean Peters, recommended that Mr Haouchar’s parole be revoked. The SPA revoked the parole order on 21 January 2025, with retrospective effect to 9 January 2025.

6. [8]

   By an SPA letter dated 23 January 2025, both the Governor of the Corrections Centre where Mr Haouchar was incarcerated and Mr Haouchar were notified of the revocation. They were told that the SPA would reconvene on 18 February 2025 to reconsider the revocation. Mr Haouchar was advised that he could make submissions.

7. [9]

   Mr Haouchar responded on 28 January 2025, indicating that he wished to appear before the SPA by audio-visual link with legal representation.

8. [10]

   On 19 February 2025, Mr Haouchar’s solicitor received an email from the SPA, which referred to an attached “stand over memo” dated 18 February 2025. The stand over memo stated that, at its meeting on 18 February 2025, the SPA had considered Mr Haouchar’s case and determined that the matter be stood over until 18 March 2025. The stated reason was “For results of Downing Centre Local Court on 6 March 2025 and for further review”. The email stated that the SPA “will continue to monitor your client’s court results administratively until such time unless the outstanding matters are finalised or Mr Haouchar is granted bail”.

9. [11]

   By an email dated 17 March 2025, Mr Haouchar’s solicitor contacted the SPA on the understanding that Mr Haouchar’s matter was listed for review before the SPA the following day. The solicitor asked for the listing to be vacated and stood over to a future date in approximately 8 weeks’ time to permit the solicitor to “liaise with Mr Haouchar’s family and prepare material pertinent to the parole hearing”.

10. [12]

    The SPA responded the same day, stating that it was still “currently monitoring the outstanding charges and confirm that the matter is not listed for a review hearing tomorrow”.

11. [13]

    By an email dated 2 June 2025, Mr Haouchar’s solicitor asked that his matter, which was listed for review by the SPA the following day, be stood over for a further period of 2 weeks. In its email response dated 2 June 2025, the SPA advised that it was still currently monitoring the outstanding charges, confirmed that the matter was not listed for a review hearing on 3 June 2025 and said that the next tentative review hearing date was 1 July 2025. It added that if the outstanding charges were not finalised, then the review hearing scheduled for 1 July 2025 would be moved to a further date approximately 2 weeks after the Local Court adjournment date.

12. [14]

    There was a further exchange of emails on 30 June 2025 regarding the date of a review hearing. The SPA confirmed that Mr Haouchar’s matter was not listed for hearing on 1 July 2025 because the charges at the Local Court had not been finalised. Mr Haouchar’s solicitor was advised that the next tentative review hearing was on 5 August 2025 but that if the outstanding charge was not finalised, then the review hearing would change again.

13. [15]

    On 11 July 2025, Mr Haouchar was granted conditional bail by Harrison CJ at CL in respect of the conspiracy to murder charge. However, this did not secure his release from incarceration because he was still serving his sentence for the convictions dated 13 February 2018.

14. [16]

    On the same day Mr Haouchar was granted bail, his solicitor emailed the SPA advising that bail had been granted. The email stated that the solicitor was seeking to have Mr Haouchar’s matter listed for review by the SPA and asked when was the first available hearing date.

15. [17]

    On Monday 14 July 2025, the SPA responded saying that the matter could be added to the SPA’s hearings list for the following day, 15 July 2025. Mr Haouchar’s solicitor confirmed that the matter should be listed for review then. The SPA asked the solicitor to provide any written submissions by 1 pm on 14 July 2025 to give the SPA members sufficient time to review them.

16. [18]

    On 14 July 2025, Mr Haouchar’s solicitor provided the SPA with a bundle of material in support of his application for review of the revocation of the parole order. It comprised:

17. [19]

    The bundle of material totalled 68 pages.

18. [20]

    In light of Mr Haouchar’s complaint of procedural unfairness, it is desirable to set out the following two paragraphs from his written submissions dated 14 July 2025 which were provided to the SPA:

19. [21]

    On 15 July 2025, Mr Haouchar was represented by Mr Ozen SC. The Community Corrections officer, Mr Peters, also participated.

20. [22]

    In brief, Mr Ozen SC made the following oral submissions to the SPA:

21. [23]

    During the course of the hearing, the Chairperson raised concerns regarding (a) Mr Haouchar’s personal safety and that of his family if he was released into the community and if their whereabouts became known; (b) the need for Mr Haouchar to leave his residence to consult with his GP and a psychologist as part of a mental health treatment plan and the need for his bail conditions to be varied accordingly; and (c) what additional parole conditions were needed to protect both Mr Haouchar and the community if he were released on parole.

22. [24]

    Responding to some of those concerns, Mr Ozen SC said:

23. [25]

    The following exchange (which is at the forefront of Mr Haouchar’s procedural fairness complaint) then occurred at the end of the hearing between one of the members of the SPA and Mr Peters regarding electronic monitoring and the capacity of Community Corrections to manage or supervise Mr Haouchar if he were released on parole:

24. [26]

    The hearing was then concluded with the Chairperson saying that the decision was reserved. He added that this might take some time because of the material which had just been provided on behalf of Mr Haouchar.

25. [27]

    On 16 July 2025, the SPA emailed Mr Haouchar’s solicitor attaching a letter dated 15 July 2025. The letter is on the SPA’s letterhead and is addressed to the Governor of the Corrections Centre where Mr Haouchar was imprisoned. The letter is headed “NOTIFICATION OF DETERMINATION OF THE STATE PAROLE AUTHORITY IN RESPECT OF REVIEW OF REVOCATION ORDER” (Notification Letter). The Notification Letter contains the following statements (emphasis in original):

26. [28]

    Mr Haouchar now contends that the Notification Letter evinces a misapprehension by the SPA of its powers under the statutory scheme because, despite having made a determination to refuse Mr Haouchar’s rescission application, the SPA stood the matter over in circumstances where it was functus officio.

27. [29]

    The covering email described the Notification Letter as the SPA’s “stand over memo dated 15 July 2025”. The email contained the following statements:

28. [30]

    The reference to the SPA monitoring Mr Haouchar’s “court results administratively until such time as the outstanding matters are finalised” presumably reflects the fact that, at that time, the charge against Mr Haouchar had not been certified by the Director of Public Prosecutions, nor had he been committed to trial.

29. [31]

    On 24 July 2025, Mr Haouchar’s solicitor requested a copy of the “full decision of the Board” (emphasis in original). By an email in response dated 24 July 2025, the SPA’s secretariat told Mr Haouchar’s solicitor that the “matter is still under consideration by the Parole Authority as a final determination has not been made” (emphasis added).

30. [32]

    On 30 July 2025, Mr Haouchar’s solicitor was provided with a transcript of the SPA hearing held on 15 July 2025.

31. [33]

    By an email dated 30 July 2025, Mr Haouchar’s solicitor sought clarification of the SPA’s statement that Mr Haouchar’s matter was “still under consideration by the Parole Authority as a final determination has not been made”.

32. [34]

    The SPA’s secretariat responded by email on the same day. It referred again to the “stand over memo” provided to Mr Haouchar’s solicitor on 16 July 2025 and reiterated that the SPA “will be monitoring the outstanding charges at Downing Centre Local Court”. It added that “a final decision will not be made until those charges are finalised”.

33. [35]

    As noted above, the summons seeking judicial review was filed on 12 August 2025.

34. [36]

    On 16 September 2025, Chen J ordered that the hearing of the summons be expedited. Expedition was sought on the basis that Mr Haouchar’s head sentence is due to expire on 25 April 2026 and an early hearing date of his summons was sought because, if successful, the matter would need to be referred back to the SPA for reconsideration before Mr Haouchar’s head sentence expires.

35. [37]

    The SPA has filed a submitting appearance. The Attorney-General, who is named as the second defendant, is the only active defendant. So that the Court had the benefit of an active contradictor, the Attorney-General provided written and oral submissions. In his written submissions the Attorney stated “that the plaintiff’s grounds have some force”.

Relevant legislation summarised

1. [38]

   The determination of both grounds of judicial review requires a close consideration of relevant provisions in both the CAS Act and the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Regulations) bearing upon the SPA’s powers and procedures relating to parole orders. The legislative provisions are relatively detailed and cover a wide range of issues concerning the grant/refusal of parole, the revocation of a parole order, the rescission of any such revocation, the conduct of SPA review hearings and an offender’s rights to participate, and the giving of reasons for certain decisions. As might be expected given the significance of the personal and community interests involved, the whole subject of parole is closely regulated.

2. [39]

   Part 6 of the CAS Act provides for parole. Section 126 provides for the eligibility of an offender to be released on parole. An offender who is eligible for release on parole cannot be released on parole except in accordance with a parole order directing his or her release (s 127). A parole order is subject to conditions which are described as “the standard conditions” imposed by the CAS Act or the regulations, as well as any additional conditions imposed by the SPA (s 128(1)).

3. [40]

   Sub-section 128(3) provides:

4. [41]

   An offender who is on release on parole is obliged to comply with all relevant requirements in Pt 6 and the regulations as apply to the offender, as well as with the requirements of any conditions attached to the offender’s parole order (s 129).

5. [42]

   Provision is made for the SPA to revoke a parole order. Under s 130(1) the SPA is empowered, by an order in writing, to revoke a parole order at any time before the offender to whom the order relates is released if the SPA is satisfied, relevantly, that:

6. [43]

   Division 2 of Pt 6 contains detailed provisions relating inter alia to the SPA’s consideration of whether an offender should be released on parole. Different provisions apply depending on whether or not the offender is a “serious offender” within the meaning of s 4 of the CAS Act. Division 2 applies where the offender has been sentenced to a period of imprisonment of more than 3 years for which a non-parole period has been set (which is the case with Mr Haouchar).

7. [44]

   Sub-division 1 includes s 135 (to which reference was made in Mr Haouchar’s written submissions to the SPA). Relevantly, it provides:

8. [45]

   Sub-division 2 applies where an offender first becomes eligible for parole. It includes s 137:

9. [46]

   Section 137A provides for the SPA to consider whether or not an offender should be released on parole in subsequent years. In effect, it requires the SPA, in specified circumstances, to review on at least an annual basis whether an offender who is eligible for release on parole should be so released:

10. [47]

    Section 137B is an important provision. It empowers the SPA to consider an offender’s case at any time after the offender becomes eligible for release on parole and without any need for an application, but only in such circumstances as may be prescribed by the regulations as constituting “manifest injustice”. Section 137B provides:

11. [48]

    Circumstances which are prescribed in reg 223 of the CAS Regulations as constituting “manifest injustice” for the purposes of s 137B include those in reg 223(1)(b) and (c), which are as follows:

12. [49]

    Section 138 of the CAS Act provides for a release of an offender on parole. Sections 139 and 141 concern such matters as giving notice to an offender of a decision by the SPA to refuse parole, an offender’s right to apply for such a decision to be reconsidered and the conduct of a hearing by the SPA at which the offender has the right to make submissions.

13. [50]

    The SPA is obliged by s 141 to decide whether or not the offender should be released on parole. Relevantly, it provides:

14. [51]

    It may be noted that the effect of s 141(2) is to permit the SPA to defer once only the question of whether or not an offender should be released on parole, and the period of deferral cannot be for more than 2 months. (The SPA is also empowered under cl 11(2) of Sch 1 to the CAS Act to adjourn its proceedings – see at [62] below.)

15. [52]

    Divisions 3 and 4 of Pt 7 of the CAS Act provide for the revocation and reinstatement of parole for offenders who are serving a term of imprisonment.

16. [53]

    If the SPA is satisfied that an offender has failed to comply with his or her obligations under a parole order, the parole order may be revoked (see 170A(2)(e) of the CAS Act).

17. [54]

    A parole revocation order may be made whether or not the offender has been called on to appear before the SPA and whether or not the SPA has held an inquiry (s 171(1)).

18. [55]

    The SPA must cause a revocation notice to be served on an offender if the offender’s parole order has been revoked by the SPA (s 173(1)). The revocation notice must set a date within the period of 14–28 days after the date of the service of the revocation notice for the SPA to meet for the purpose of reconsidering the revocation of the parole order (as well as the date on which the revocation order takes effect). The notice must also require the offender to notify the SPA if he or she intends to make submissions to the SPA in relation to the reconsideration of those matters. The notice must be accompanied by copies of the report and other documents used by the SPA in making the revocation decision (s 173(2)).

19. [56]

    Section 174 provides for an SPA meeting to be convened if the offender duly notifies the SPA that he or she intends to make submissions regarding the revocation decision. It provides:

20. [57]

    Section 175 is an important provision. It relevantly requires the SPA to make a decision of a specified kind after reviewing the revocation of a parole order. That decision must be whether or not to (a) rescind the parole revocation order; or (b) rescind or vary the specification of the date as referred to in s 174(1)(b). Thus, although there is a statutory duty imposed upon the SPA to make a decision of the kind specified in s 175(1), the choice of which of the specified decisions is left to the SPA’s judgment, having regard to its review of all the material placed before it and the consideration of the offender’s behaviour.

21. [58]

    Section 175 provides:

22. [59]

    The functions of the SPA are set out in s 185. For present purposes it is sufficient to note s 185(1)(a) and (2):

23. [60]

    The SPA is required to cause “a record of its reasons” to be kept in the minutes of its meetings for, inter alia, decisions under Pt 7 that either result in the grant or refusal of parole or the revocation of a parole order (see s 193C(1)(a) and (b)). Section 193C relevantly provides:

24. [61]

    It is notable that s 193C(2) is the only provision which casts direct light on what must be included in a record of reasons relating to the SPA’s decisions under Pts 6 and 7. Moreover, that provision is confined to decisions under Div 2 of Pt 6 and therefore does not apply, for example, to a decision to refuse to rescind an order revoking a parole order.

25. [62]

    Regulation 230 of the CAS Regulations requires the SPA to keep a record in writing or otherwise of its proceedings and to specify particular matters which need to be recorded. It provides:

26. [63]

    Clause 11 of Sch 1 of the CAS Act is important in assessing Mr Haouchar’s procedural unfairness complaint (particularly cl 11(4)(b) and (c)). The clause is headed “General procedure” and provides:

Consideration and determination

1. [64]

   To avoid adding unduly to the length of these reasons I will address the parties’ primary submissions in this section, when considering Grounds 1 and 2 respectively. It might be noted at the outset, however, that the presentation of Mr Haouchar’s judicial review case shifted, not only in his written submissions prepared by Mr Chhabra, but also perhaps more profoundly in the oral submissions which were presented by Mr Lenehan SC (who appeared for Mr Haouchar at the hearing together with Mr Chhabra).

2. [65]

   In his written outline of submissions, Mr Haouchar first sought to argue that he was denied procedural fairness in circumstances where the SPA purported on 15 July 2025 to make a final determination under s 175 of the CAS Act not to rescind the revocation of his parole order, but then proceeded to stand the matter over to 5 August 2025 pending the outcome of a proceeding in the Local Court scheduled for 24 July 2025 relating to the charge of conspiracy to murder. Mr Haouchar submits that the position is analogous to that in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [76]–[77]. He contends that his detention was unlawfully prolonged by the SPA’s actions.

3. [66]

   It is difficult to see how this particular complaint involves procedural unfairness. If the SPA erred by making a final determination not to rescind the parole revocation order while standing over the matter to a future date, that error is more likely to be of a substantive and not a procedural nature (this may be why, in his oral submissions, Mr Lenehan SC addressed this alleged error under Ground 2 and not the procedural fairness head). It is also difficult to understand Mr Haouchar’s contention that his detention was “unlawfully prolonged”. That contention assumes that the SPA was obliged to rescind the parole revocation order. Plainly, the SPA had some discretion under s 175 in relation to that matter (see at [56] above).

4. [67]

   In any event, I am not satisfied that any reviewable error is established as claimed by Mr Haouchar. I accept Mr Haouchar’s submission that, on 15 July 2025, the SPA made a “final” determination of his rescission application, as is reflected in the terms of the formal Notification Letter sent to the Governor of the Corrections Centre. The Notification Letter speaks for itself. It gave notification that the SPA had made a determination in respect of its review of the revocation order based upon the material which was before the SPA at the hearing on 15 July 2025. Subject to other provisions in the CAS Act, such a determination is “final” (see s 193C(4)). That is not to say, however, that this was the end of the matter, as is made clear in the emails sent on 24 and 30 July 2025 by the SPA secretariat (see at [30] and [33] above).

5. [68]

   In the light of the history of Mr Haouchar’s case, these emails should be read as confirming that, despite the determination made on 15 July 2025 in response to Mr Haouchar’s rescission application, Mr Haouchar’s case for parole would continue to be reviewed, with particular reference to the outcome of proceedings in the Local Court concerning the charge of conspiracy to murder, which was unknown as at 15 July 2025. The reference to Mr Haouchar’s case being “stood over” post the hearing and determination on 15 July 2025 is consistent with the previous history of the matter, which involved his case being stood over or adjourned on several occasions at the behest of either the SPA or Mr Haouchar himself pending any further relevant developments (see at [10]–[14] above).

6. [69]

   In his outline of written submissions, Mr Haouchar’s procedural unfairness case took another direction. With reference to the reason given by the SPA in the Notification Letter, he claims that he was given inadequate notice of the SPA’s concerns regarding whether he could adequately be supervised on parole in light of the “stringent bail conditions” dated 11 July 2025 or by the SPA imposing further additional conditions (the intersection issue). Mr Haouchar draws attention to the fact that, as is reflected in the transcript, Mr Peters gave “positive evidence” at the SPA hearing to the effect that Community Corrections could adequately manage Mr Haouchar if he was released on parole. Mr Haouchar contends that he was “given no opportunity in the circumstances to be heard on this issue, which could have resulted in a different outcome if such an error had not occurred”.

7. [70]

   This particular complaint of procedural unfairness was elaborated on by Mr Lenehan SC in oral address. He cited the following statement of principle in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] per French CJ and Kiefel J (footnote omitted):

8. [71]

   Mr Lenehan SC submitted that this principle applied here, in circumstances where Mr Peters’ opinion that Community Corrections could adequately supervise Mr Haouchar’s parole constituted “known material”. He submitted that it was not obvious from that material that the SPA would not accept that opinion and Mr Haouchar was given no opportunity to address the reservations that the SPA must have had regarding Mr Peters’ opinion. I shall now explain why I do not accept those submissions.

9. [72]

   Although it is common ground that the SPA owed Mr Haouchar procedural fairness in making its determination, the core issue is the content of procedural fairness requirements in the particular circumstances. That content is not immutable. It falls to be determined by a careful examination of the CAS Act, the CAS Regulations and other relevant circumstances. As Kitto J observed in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503–4; [1963] HCA 41 (footnotes omitted):

10. [73]

    Although Kitto J’s observations were directed to procedural fairness requirements owed by a Taxation Board of Review, they have a wider application and resonance.

11. [74]

    So too do the following observations of Brennan J in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 326; [1984] HCA 29 (footnotes omitted):

12. [75]

    The content of procedural fairness requirements is to be determined not only by relevant common law principles, but also by the following features of the statutory scheme which highlight the nature of the SPA’s hearing and how it is to be conducted, together with the subject matter (which involves not only Mr Haouchar’s personal interests but also the safety of the community):

13. [76]

    I consider that Mr Peters’ opinion before the SPA should not be looked at in isolation from other material and circumstances which demonstrate that Mr Haouchar had adequate prior notice of the broader intersection issue to which Mr Peters’ statements related.

14. [77]

    It is notable that the issue was explicitly addressed by Mr Haouchar’s legal representatives in the bundle of material provided to the SPA in advance of the hearing, as well as in Mr Ozen SC’s oral submissions at the hearing itself (see at [19] and [21]–[23] above). Necessarily, therefore, Mr Haouchar’s legal representatives appreciated that the intersection issue was relevant and would be considered by the SPA. That appreciation was presumably informed not only by their knowledge of Mr Haouchar’s case, but also by their knowledge and understanding of the regulatory scheme (in particular, ss 130(1), 135 and 175 of the CAS Act). The intersection issue was also alluded to by the Chairperson and one of the members involved in the hearing (see at [22] and [24] above). I am comfortably satisfied that Mr Haouchar had an adequate opportunity to address the intersection issue.

15. [78]

    For completeness, I should also say something regarding the emphasis which was given in Mr Haouchar’s outline of written submissions to the connection between his procedural unfairness complaint and his claim that the SPA’s reasons for its determination were inadequate. In oral address, Mr Lenehan SC acknowledged that there were difficulties with this contention. I shall now explain why that acknowledgment was rightly made.

16. [79]

    There is a helpful analysis by Beech-Jones J of what constitutes an adequate record of reasons for the purposes of s 193C of the CAS Act in Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223 at [93]ff. His Honour drew attention to the following relevant matters:

17. [80]

    As Mr Haouchar pointed out, it has been held that a decision not to rescind the revocation of a parole order is a decision to which s 193C applies (presumably because such a decision results in the refusal of parole and therefore falls within s 193C(1)(a)). Thus, the SPA must cause a record of its reasons to be kept in the minutes of the meeting: see Samandi v State Parole Authority [2021] NSWSC 1037 at [53] per Davies J. After referring to the terms of s 175(2) of the CAS Act, Davies J stated at [71] that the SPA was not bound to take into account any particular consideration in determining a review of the revocation of a parole order, but was entitled to take into account any such behaviour of an offender (while noting that the SPA was not bound to take any such behaviour into account). His Honour also noted at [74] that the SPA was not bound by the rules of evidence and could inform itself of any matter in such manner as it thinks appropriate (referring to cl 11 of Sch 1 to the CAS Act) and was entitled to take into account allegations of an offender’s wrongdoing.

18. [81]

    Applying the principles in Liew and Samandi, I do not regard the reasons given by the SPA in the Notification Letter to be inadequate in law (the evidence is unclear whether the reason was also recorded in the minutes). It is true that the basis for the decision not to rescind the parole revocation order is pithily expressed, but there was no legal requirement for the SPA to elaborate upon the stated reason or to refer to any evidence or other material on which the reason was based. Nor was there any legal requirement for the SPA to state findings of fact.

19. [82]

    I might also add that even if, contrary to the above, the reasons were inadequate, it is far from certain that any such error would amount to either a jurisdictional error or an error of law on the face of the record, having regard to what was said in Liew.

20. [83]

    I reject Mr Haouchar’s contention that there is analogy between his case and that in Minister for Immigration & Ethnic Affairs v Tagle (1983) 67 FLR 164. That case involved a statement of reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Where it applies, s 13 requires a decision-maker to set out in such a statement findings on material questions of fact, refer to the evidence or other material on which those findings are based and to give reasons for the relevant decision. The required content or standard of such a statement is very different from what amounts to an adequate record of reasons for the purposes of s 193C of the CAS Act.

21. [84]

    Finally, Mr Haouchar’s complaint of procedural unfairness is truly a challenge to the merits of the SPA’s decision, not its procedure or method. It was a matter for the members conducting the review to decide whether or not to act upon Mr Peters’ opinion and they were not obliged to invite Mr Haouchar’s response prior to making that assessment. They were not obliged to reveal their thought processes or tentative views (see SZGUR at [9]). Mr Haouchar’s complaint invites the Court to embark upon an impermissible review of the merits of the decision, which is beyond the proper judicial review function. As Brennan J observed in Kioa v West (1985) 159 CLR 550 at 622; [1985] HCA 81 (footnotes omitted):

22. [85]

    For all these reasons, Ground 1 is rejected.

23. [86]

    As previously noted, Ground 2 was presented differently in Mr Haouchar’s written and oral submissions. His written submissions described this ground as a failure to consider his rescission application on its merits. In contrast, his oral submissions characterised the error as a misapprehension of the statutory scheme on the part of the SPA. This was because the SPA made a final determination refusing Mr Haouchar’s rescission application but also stood the matter over in circumstances where Mr Haouchar claims that the SPA was functus officio.

24. [87]

    I will now explain why I reject both formulations of Ground 2.

25. [88]

    In brief, Mr Haouchar’s written submissions in support of this formulation of Ground 2 are as follows:

26. [89]

    Mr Haouchar carries the burden of establishing this established head of judicial review (which usually arises in the context of a claim that a decision-maker has adopted and applied an inflexible policy, but might also be described as a constructive failure to exercise jurisdiction). That is a difficult task, particularly where the stated reason for the SPA’s decision was expressed as succinctly as it was here. But for the reasons given above, the SPA was not required to elaborate upon that reason. Mr Haouchar has not persuaded me that there is any basis to doubt that the SPA gave full consideration to all the material before it, as well as the particular matter referred to in s 175(2), before making its determination.

27. [90]

    Merely because the SPA also stood over Mr Haouchar’s case pending the proceedings in the Local Court does not suggest that it failed to consider his rescission application on its merits. Rather, I consider the correct analysis is that, having made a determination on 15 July 2025, the SPA nevertheless acknowledged that further consideration of Mr Haouchar’s case may be required depending on the outcome of the proceedings in the Local Court. That falls far short of indicating that Mr Haouchar’s application for rescission had not been considered on its merits on 15 July 2025. Rather, it suggests that the SPA made a determination on 15 July 2025 based on the material which was then available. But the SPA continued to recognise that Mr Haouchar’s circumstances were fluid and the revocation of the parole order may need to be reviewed in the light of future developments.

28. [91]

    Mr Lenehan SC submitted that the SPA fell into error because, having made a formal determination to refuse Mr Haouchar’s rescission application as reflected in the terms of the Notification Letter, it proceeded to stand the matter over. Mr Lenehan SC submitted that this was impermissible because the SPA was functus officio having determined the application. He submitted that this was analogous to the jurisdictional error identified by the High Court in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [68], where the Minister made a decision but based on a misunderstanding regarding the scope and operation of a provision in the Migration Act 1958 (Cth).

29. [92]

    The resolution of this issue turns on how the Notification Letter should properly be read and understood. Mr Haouchar contends that it should be read as meaning that despite having made a final determination to refuse his rescission application, it stood over further consideration of that particular application pending developments in the Local Court. In other words, Mr Haouchar contends that what was stood over in the Notification Letter was further consideration of Mr Haouchar’s rescission application relating to s 175 of the CAS Act.

30. [93]

    Mr Tran (who, together with Ms Haidary, appeared for the Attorney-General) acknowledged that this was one possible reading of the Notification Letter, but he also submitted that it was amenable to two other readings:

31. [94]

    For the following reasons, I consider that the Notification Letter is fairly to be read in accordance with the first of Mr Tran’s alternative readings and not in the manner suggested by Mr Lenehan SC.

32. [95]

    In construing the Notification Letter, it is well to bear in mind that it contains the stated reason for the SPA’s decision not to rescind the revocation. As noted above, such reasons attract the principle in Wu Shan Liang. I acknowledge that only part of the Notification Letter constitutes the reasons of the SPA’s decision not to rescind the parole revocation order. But the letter also needs to be read as a whole and in light of all relevant circumstances as at 15 July 2025. Those circumstances include the fact that the SPA was aware at that time that the conspiracy to murder charge against Mr Haouchar was returning to the Local Court on 24 July 2025. The SPA was also aware that there could be developments concerning that charge which might affect whether Mr Haouchar should be released on parole.

33. [96]

    The SPA’s consideration of Mr Haouchar’s case was not confined to s 175. As noted above, the SPA also has power under s 137B to consider an offender’s case at any time after the date on which the offender first becomes eligible for release on parole and without the need for any application, so as to avoid manifest injustice as prescribed in reg 223. Those prescribed circumstances include where it becomes apparent that a matter that was relevant to a decision to refuse or revoke parole is no longer relevant or where such a matter has been addressed in a way that warrants reconsideration. In the light of all these matters, I consider it reasonable to infer that the SPA’s decision to stand Mr Haouchar’s case over to 5 August 2025 reflected the SPA’s understanding that it had an ongoing statutory role and function in relation to Mr Haouchar’s case under s 137B, independently of s 175.

34. [97]

    Having regard to the terms of the Notification Letter and the explicit reference therein to the SPA having made a determination, I do not accept that it should be read in the alternative manner suggested by Mr Tran (see at [92(b)] above).

35. [98]

    Finally, I do not accept Mr Haouchar’s contention that Osman supports his case. I respectfully agree with Fagan J’s observations at [24] regarding the desirability of any adjournment of the SPA’s proceedings being for a relevantly short time. What his Honour had in mind, however, was an adjournment which deferred the making of a determination. That is not what occurred here. I have accepted Mr Haouchar’s contention that the Notification Letter conveyed a “final” determination. I consider that the determination was based on the material which was then available. The SPA envisaged, however, that there may be a need for the matter to be further considered depending on the outcome of the Local Court proceedings, a matter over which it had no control.

36. [99]

    For these reasons, I reject Ground 2.

Conclusion

1. [100]

   For all these reasons, the summons filed 12 August 2025 will be dismissed, with costs.