Community Safety

Border Force advised final say on detainee ankle monitors was with immigration minister

May 3, 2024

Friday 03 May 2024
Tom Lowrey and Matthew Doran
ABC News Online

The federal government is being pressed to explain why it allowed a former immigration detainee, who is now facing charges over a violent home invasion, to have his ankle monitor removed despite multiple alleged breaches in the weeks before.

Majid Jamshidi Doukoshkan, 43, was one of several people charged over a violent home invasion and burglary in which an elderly man and woman were assaulted.

Prime Minister Anthony Albanese this morning admitted it was a failure of the government's hand-picked Community Protection Board to remove Mr Doukoshkan's ankle bracelet.

But despite Mr Albanese laying blame at the board's feet, the Australian Border Force has been clear that decision-making power ultimately rests with the immigration minister.

Court transcripts obtained by the ABC also detail a timeline of alleged curfew breaches, some of which Mr Doukoshkan was not charged over, leading up to the alleged home invasion.

Saga deepens for government

Mr Doukoshkan is among roughly 150 former immigration detainees released following the NZYQ High Court ruling last year, which found detainees cannot be held indefinitely and must be released, if they can't be deported.

The management of those people since their release has been politically sensitive, with the government keen to make clear they would prefer the former detainees still be in detention, and the opposition fiercely critical of how the situation has been handled.

Mr Doukoshkan's case has become a new flashpoint — with both sides of politics blaming each other for allowing it to happen, and an elderly Perth couple saying they have been let down.

And a key question is why the former detainee didn't need to wear an ankle monitor, after he was bailed for breaching his curfew twice — breaches that were detected by that very ankle bracelet tipping off authorities.

Border Force: final say rests with minister

Late last year the government rushed a whole range of new and unprecedented legal powers through the parliament with the Coalition's support.

That included powers to require former detainees to wear ankle monitors and be subject to curfews, as part of their visa conditions.

Any breach of those conditions would be a criminal offence, punishable by a mandatory minimum one year in prison.

Initially the intention was that those conditions would apply broadly across the NZYQ cohort.

But in December, the government established the Community Protection Board, tasking the non-statutory body with providing advice on how individual cases should be managed.

In a joint statement at the time, Home Affairs Minister Clare O'Neil and Immigration Minister Andrew Giles said the board would "advise the ABF Commissioner and Minister for Immigration on the management of individuals in the group released due the decision of the High Court."

Border Force's website states that the board "provides informed, impartial and evidence-based recommendations".

But both the prime minister and the immigration minister have since asserted that the board is tasked with making "decisions" when it comes to the NZYQ cohort.

Anthony Albanese told the Seven Network this morning that the board made the "wrong decision" when it came to the case of Majid Jamshidi Doukoshkan.

And he stressed the independence of the board from the government.

"They make the decisions independent. One of the things that we have in this country is a separation there," he said.

In a press conference in February, Andrew Giles said decisions around ankle monitors and other conditions were up to the board.

"One of the things we have done is to put in place a Community Protection Board, so that decisions about the appropriate management of the people who are required to be released…is done by people best placed to make those decisions," he said.

The ABC has contacted the prime minister's office and the immigration minister's office for comment.

During an estimate hearing in February, Shadow Home Affairs Minister James Paterson questioned Border Force commissioner Michael Outram on who is the "final decision-maker".

"The minister … on the recommendation of the board and the endorsement of the commissioner," Mr Outram replied.

Senator Paterson told the ABC Mr Albanese was being misleading.

"The Prime Minister has clearly misled Australians, the Community Protection Board only makes recommendations and the Immigration Minister Andrew Giles does not have to follow the advice of the Board if he chooses not to," Senator Paterson said.

"The ex-detainee accused of the home invasion should not have been released on bail and the government should not have removed his electronic monitoring device in the first place given his recent alleged offending."

What is the Community Protection Board?

There are eight people on the Community Protection Board (CPB), made up of a mix of Home Affairs and Border Force officials, along with experts in policing, psychology and social work.

In making its recommendations, it is tasked with weighing up factors like a person's immigration history, character and criminality, security information and medical records.

It provides advice to both the ABF commissioner and immigration minister on questions like what measures need to be applied to specific released detainees.

The ultimate decision-maker is the minister, but that power can be delegated to the ABF commissioner, and it would be unusual for the minister to override that advice.

That arrangement was made in December, but as of the February estimates hearing, it hadn't actually been used.

That means that in the dozens of cases considered by the CPB up to that point, advice was provided and a final decision was made by the minister.

Court documents reveal Majid Jamshidi Doukoshkan was wearing an ankle bracelet as recently as February 20, but is understood to have not been wearing one at the time of the alleged home invasion in April.

Commonwealth made 'generous' offer not to fight bail

Mr Doukoshkan appeared in the Perth Magistrates Court on February 20 this year, charged with two breaches of his visa conditions — he was meant to stay at a certain address between 10pm and 6am every night.

Court documents show he actually breached his conditions two more times prior to being charged — but wasn't charged and hauled before the courts to explain why.

One of those incidents was when he let the battery on his ankle bracelet go flat, and the other was when he left his registered address for two hours in the middle of the night.

By the time he appeared before Magistrate Tanya Watt, he had been arrested by the Australian Federal Police and was in custody after refusing to participate in a police interview.

The prosecutor in the case, Kirsty Stynes, told the court that the Commonwealth did "have concerns about his ability to not commit further offences, particularly in relation to the curfew, having regard to his attitude towards compliance thus far".

"Notwithstanding that, your Honour, we do not oppose bail with a personal undertaking being imposed, but want to make it very well known to the accused that that's the position of the Commonwealth today, but further breaches may not have the same response in terms of attitude towards bail," she told the court.

Mr Doukoushkan's defence lawyer said he was "well aware that if bail is granted today, any further allegations of breaches he would be brought to the AFP and would be brought before the court".

One of the curfew breaches, the lawyer argued, was on the less serious range of offending — he'd left his house at 5:52 am, eight minutes before his curfew lifted. The other breach happened when he tried to go to a restaurant to a pay a bill for his partner.

"Obviously I've noted that that needs to be a problem for his partner, not him, and obviously if he's in custody he's not able to assist her anyway. So I've given him that strong warning, but I would be asking your Honour to consider bail today," his lawyer said.

Magistrate Watt made a frank assessment of Mr Doukoshkan's situation, saying he was on "very thin ice".

"You will be back in custody if you keep breaching this curfew — and it's silly, because you are being monitored," she said

"The monitoring equipment is going to show what time you leave and what time you get back … for the sake of six minutes, you wait until six o'clock, all right?

"The Commonwealth is being very generous today, because quite frankly if they didn't consent to the release of you on bail, I wouldn't be bailing you."

The prime minister, home affairs minister and immigration minister have all said bail is a matter for state and territory courts.

Recent News

All Posts