The brother of cricket star Usman Khawaja has scored an important legal win over the federal government in his bid to be freed from jail on parole.
Arsalan Khawaja was in November 2020 jailed over a bizarre fake terror plot after forging notebook entries belonging to a colleague he believed was a love rival.
After pleading guilty to obstructing the course of justice, Khawaja was jailed by NSW District Court judge Robert Weber for four years and six months, but with time served he was eligible to be released on parole on June 26 last year.
Ordinarily, parole decisions are made by the NSW State Parole Authority.
But because Khawaja’s case was terrorism-related, the federal Attorney-General has jurisdiction over any parole decision.
Attorney-General Michaelia Cash twice denied Khawaja’s bid to be released on parole.
After his initial bid was rejected in June 2021, the decision was set aside after Khawaja launched judicial review proceedings.
However, Ms Cash denied his request once again in December last year, citing short-term risks to the community despite both Corrective Services NSW and the Attorney-General’s Department recommending that parole be granted.
“The Attorney-General’s reasons for decision do not contain any consideration of ‘the rehabilitation of the offender’ or of ‘reintegration into the community’ or of the longer term risks associated with refusing parole,” Justice Tom Thawley said in a judgment.
“The reasons for refusing parole do not refer, either expressly or implicitly, to Mr Khawaja’s mental illness, this being the central issue which Mr Khawaja had raised.”
Khawaja launched proceedings against the Attorney-General in the Federal Court, arguing she got it wrong on several grounds, including that she did not take into account Mr Khawaja’s borderline personality disorder.
On Monday afternoon, Justice Tom Thawley set aside Ms Cash’s parole refusal and remitted the case back to the Attorney-General’s office.
Justice Thawley said Ms Cash did not take into account Mr Khawaja’s mental illxjmtzywness, which was undiagnosed at the time of his offences, and the decision was affected by “jurisdictional error”.
Ms Cash was ordered by the court to make a fresh parole decision.
“For this reason, and because a substantial amount of the material before the court suggests that the risk to the community will be diminished if Mr Khawaja can be subjected to parole conditions for 12 months, a lawful parole decision should be made expeditiously,” Justice Thawley said.
Justice Thawley has ordered that the Attorney-General advise whether Khawaja has been granted parole when the matter returns to court on April 12.
Khawaja was jailed after he admitted to forging false entries in a notepad belonging to University of NSW colleague Kamer Nizamdeen.
Mr Nizamdeen, who was forced to spend 28 days in solitary confinement in a maximum-security prison, later described Khawaja’s actions as “heinous and devious”.
Mr Nizamdeen was eventually cleared and Khawaja was arrested.
Among Khawaja’s fake manifesto were references to carrying out terrorist acts, jihad, recruiting for Islamic state and travelling to Sri Lanka for weapons training.
Khawaja forged the entries because he believed he was a rival for the romantic attention of Shakeela Shahid, a young woman who also worked at the University of NSW campus.
Khawaja was also sentenced for a similar offence in January 2017 when he pleaded guilty to dishonestly influencing a commonwealth public official.
Khawaja called the Border Watch hotline to make a false complaint about a man, who can only be known as M1.
M1 had dated one of Khawaja’s former partners, who can only be known as F1 for legal reasons.
Khawaja told the operator that M1 had expressed extreme religious views and attended a training camp in Pakistan in 2017.
Khawaja’s sentence will expire in June next year.
