PAYAM SAADAT v COMMONWEALTH OF AUSTRALIA [2025] SASC 59

Applicant: PAYAM SAADAT Counsel: MR H ABBOTT SC, MR B KRUPKA, MS A SIBREE - Solicitor: SHINE LAWYERS Respondent: COMMONWEALTH OF AUSTRALIA Counsel: MR R WILLIAMS KC, MS G WALKER SC, MR M DOUGLAS, MS S HEIDENREICH - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR First Third Party: AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD (ACN 050 054 389) Counsel: MR A HARRIS KC WITH MR C GOODALL KC - Solicitor: BARRY NILSSON Second Third Party: G4S AUSTRALIA PTY LTD (ACN 100 104 658) Counsel: MR C.S.L ABBOTT KC WITH MS C D’ARCY - Solicitor: HWL EBSWORTH Third Third Party: THE GEO GROUP AUSTRALIA PTY LIMITED (ACN 051 130 600) Counsel: MR A HARRIS KC WITH MR C GOODALL KC - Solicitor: BARRY NILSSON Fourth Third Party: G4S REGIONAL MANAGEMENT (UK & I) LIMITED (COMPANY NO. 03189802) Counsel: MR C.S.L ABBOTT KC WITH MS C D’ARCY - Solicitor: HWL EBSWORTH Hearing Date/s: 06/04/2021 to 30/06/2021, 26/10/2021 to 20/12/2021, 15/02/2022 to 11/07/2022, 14/11/2022 to 20/12/2022 File No/s: SCCIV-18-470 A SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SAADAT v COMMONWEALTH & ORS [2025] SASC 59 Judgment of the Honourable Justice Stanley 9 May 2025 TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH TORTS - NEGLIGENCE - MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM - AT COMMON LAW TORTS - NEGLIGENCE - MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM - AT COMMON LAW - FACTORS - RECOGNISABLE PSYCHIATRIC ILLNESS TORTS - NEGLIGENCE - MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM - AT COMMON LAW - DAMAGE AND CAUSATION CITIZENSHIP AND MIGRATION - MIGRATION - DETENTION AND REMOVAL OF UNLAWFUL NON-CITIZENS - DETENTION - CONDITIONS OF DETENTION -- 1 of 647 -- Mr Payam Saadat (the applicant) arrived in Australia as an unlawful non-citizen in December 2000. He sought asylum and was detained pursuant to the Migration Act 1958 (Cth). The applicant brings a claim relating to his detention at Baxter Immigration Reception and Processing Centre (Baxter) in South Australia from September 2002 to April 2005. The applicant alleges the respondent (the Commonwealth) breached its duty of care to him while he was detained at Baxter, causing him to suffer a recognisable psychiatric injury resulting in loss and damage. He alleges that his psychiatric injury was caused by the conditions of his detention and/or by a failure to treat him for his psychiatric injury at Baxter. The day-to-day operation and management of Baxter was conducted by contractors. The Commonwealth joined these contractors and their relevant entities by filing third party claims against each of the first to fourth third parties. The applicant does not pursue a claim directly against the third parties. The foundational factual issue for determination in the primary action is whether the applicant suffered a recognisable psychiatric injury during his time at Baxter or after his detention. The issue that follows is whether any such injury can be attributed to the features or conditions of his detention which are compensable, and/or from a negligent failure to treat him during his detention at Baxter. These issues must be determined within the context of the applicant’s lawful detention. Pursuant to provisions of the Migration Act 1958 (Cth), any injury, loss or damage attributable to certain features or conditions of his detention are non-compensable and accordingly, the Commonwealth cannot be held liable for such. These features include the mere fact of his detention, the length and indeterminate nature of his detention, his constant fear of deportation and the rejection of his application for a protection visa and his unsuccessful appeals from that decision. Held (granting the applicant an extension of time in which to bring the primary claim, but dismissing the applicant’s claim and the Commonwealth’s third party claims): 1. The applicant’s evidence is not a reliable basis for making findings of fact. The Court is unable to rely upon his testimony except where it is supported by reliable corroboration, where his evidence is unchallenged, or is consistent with objectively established facts and the apparent logic of events, or where it involves an admission against interest. 2. That the applicant may have been part of a class of detainees which was more vulnerable than the Australian community to suffering mental illness cannot prove that he, in fact, suffered a psychiatric injury. 3. The applicant has not proven that he suffered a recognisable psychiatric injury at Baxter because of a negligent failure to treat him and/or the compensable conditions under which he was detained. The applicant has not proven that the hardships he has suffered since his release from immigration detention are causally linked to any injury incurred at Baxter. 4. The only recognisable psychiatric injury suffered by the applicant while detained at Baxter occurred between August and December 2003. It was caused by, and reactive to, the refusal of his application for special leave to appeal his visa decision to the High Court of Australia. This cause of injury is non-compensable and the Commonwealth cannot be held liable for such. 5. The Commonwealth breached its duty of care to the applicant by confining him in the Management Unit at Baxter for longer than reasonably necessary in March 2003. However, the applicant has not proven that this breach caused him to suffer a recognisable psychiatric injury as a result. 6. The duty owed to the applicant by the Commonwealth was non-delegable. It was a duty to use reasonable care and to ensure reasonable care was taken by the third parties it employed to discharge this duty. The applicant was not owed a more stringent duty and nor did there exist a positive duty to protect the applicant from psychiatric injury in the absence of some evidence he was actually suffering, or at risk of personally suffering, such an injury while he was detained. A non-delegable duty does not extend beyond taking reasonable care to avoid -- 2 of 647 -- a foreseeable risk of injury. The applicant was not owed an absolute duty to ensure a particular outcome or result. Migration Act 1958 (Cth) ss 273(1), 197AB, 5, 252A, 252B, 189, 196; Civil Liability Act 1936 (SA) ss 53, 28(1), 24C; Wrongs Act 1936 (SA); Law Reform (Ipp) Recommendations (2004) (SA) clause 1(2); Wrongs (Liability and Assessment of Damages for Personal Injury) Amendment Act 2002 (SA) s 6; Limitation Act (2005) (WA) s 14; Evidence Act 1929 (SA) s 53; Limitation of Actions Act 1936 (SA) s 48; Law Reform (Contributory Negligence and Apportionment of Contribution) Act 2001 (SA), referred to. Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth (2011) 246 CLR 36; Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2019] FCA 1520; Chappel v Hart (1998) 195 CLR 232; Collings v Amaroo Pty Ltd & Worker’s Compensation Board of Queensland [1997] QCA 224; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Graham v Minister for Immigration and Border Protection (2018) 265 FCR 634; Hegarty v Queensland Ambulance Service [2007] QCA 366; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; McDonald v South Australia; McDonald v Minister for Education and Child Development (No. 3) [2016] SASC 79; New South Wales v Lepore (2003) 212 CLR 511; Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) (2020) 136 SASR 455; SBEG (No 2) v Commonwealth (2012) 292 ALR 29 at 57-58; SBEG v Commonwealth (2012) 208 FCR 235; Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 259 FCR 576; Tabet v Gett (2010) 240 CLR 537, applied. Amaca Pty Ltd v Ellis (2010) 240 CLR 111; Amaca Pty Ltd v Hannell (1998) 195 CLR 232; Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424; Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; Astley v Austrust Ltd (1999) 197 CLR 1; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Betts v Whittingslowe (1945) 71 CLR 637; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Chester v Waverley Corporation (1939) 62 CLR 1; Cotton On Group Services Pty Ltd v Golowka [2022] VSCA 279; Gulic v Boral Transport Ltd [2016] NSWCA 269; Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Hinz v Berry [1970] 2 QB 40; Jaensch v Coffey (1984) 155 CLR 549; King v Philcox (2015) 255 CLR 304; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Kozarov v Victoria (2022) 273 CLR 115; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; Lowes v Amaca Pty Ltd [2011] WASC 287; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; McGhee v National Coal Board [1972] 3 All ER 1008; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; Minister for Immigration v Li (2013) 249 CLR 332; Minister for the Environment (Cth) v Sharma (2022) 291 FCR 311; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 ALR 659; Naxakis v Western General Hospital (1999) 197 CLR 269; New South Wales v Fahy (2007) 232 CLR 486; Perre v Apand Pty Ltd (1999) 198 CLR 180; Pomeroy v Thwaites Witham Pty Ltd and Krantz (2001) 79 SASR 489; Prince Alfred College v A, DC (2016) 258 CLR 134; Queen Elizabeth Hospital v Curtis (2008) SASR 534; Roads and Traffic Authority v Royal (2008) 82 ALJR 870; Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; Rosenberg v Percival (2001) 205 CLR 434; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Willmot v Queensland (2024) 419 ALR 623; Wilsher v Essex Area Health Authority [1988] AC 1074; Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78; Wyong Shire Council v Shirt (1980) 146 CLR 40; Tame v New South Wales (2002) 211 CLR 317; S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 217, discussed. Abdulla v Birmingham City Council (2013) 1 All ER 649; Al-Kateb v Godwin (2004) 219 CLR 562; AMP v Road Traffic Authority & Anor [2001] NSWCA 186; Armes v Nottinghamshire County Council [2018] AC 355; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; Bae v The Queen (2020) 135 SASR 522; Bersee v State of Victoria (Department of Education and Training) (2022) 70 VR 260; Bonnington Castings Ltd v Wardlaw [1956] AC 613; Brookfield Multiplex Ltd v Owners - Strata Plan No. 61288 (2014) 54 CLR 185; Bropho v Western Australia (1990) 171 CLR 1; Bus v Sydney County Council (1989) 167 CLR 78; Cekan v Haines (1990) 21 NSWLR 296; Chapman v Hearse (1961) 106 CLR 112; Coco v The Queen (1994) 179 CLR 427; Commonwealth v Introvigne (1982) 150 CLR 258; Commonwealth v Verwayen (1990) 170 CLR 394; Council of the -- 3 of 647 -- Shire of Sutherland v Heyman (1985) 157 CLR 424; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500; Dietrich v The Queen (1992) 177 CLR 292; Donoghue v Stevenson [1932] AC 562; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1; Findlay v State of Victoria [2009] VSCA 294; Fried v National Australia Bank Ltd (2001) 111 FCR 322; Gifford v Strang Patrick (2003) 214 CLR 269; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Harriton v Stephens (2006) 226 CLR 52; Hewitt v Bernhardt (1979) 21 SASR 510; Hillier v Lucas (2000) 81 SASR 451; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; Imbree v McNeilly (2008) 236 CLR 510; Kondis v State Transport Authority (1984) 154 CLR 672; Koowarta v Bjelke Petersen (1982) 153 CLR 168; Mabo v Queensland (No. 2) (1992) 175 CLR 1; Mannone v Chaplin [1991] 54 A Crim R 163; March v Stramare (1991) 171 CLR 506; McDonald v State of South Australia; McDonald v Minister for Education and Child Development [2017] SASCFC 146; McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835; McLean v Tedman (1984) 155 CLR 306; Minister for State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; MZYYR v Secretary, Department of Immigration and Citizenship & The Commonwealth of Australia (2012) 292 ALR 659; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Nevin v B & R Enclosures [2004] NSWCA 339; New South Wales v Bujdoso (2005) 227 CLR 1; Northern Sandblasting v Harris (1997) 188 CLR 313; Northern Territory v Mengel (1995) 185 CLR 307; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; Okwume v Commonwealth [2016] FCA 1252; Owens v Liverpool Corporation [1939] 1 KB 394; Paris v Stepney Borough Council [1951] AC 367; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Potter v Minahan (1908) 7 CLR 277; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; R v Nguyen (2013) 117 SASR 432; Ramsay v Watson (1961) 108 CLR 642; Roads and Traffic Authority v Dederer (2007) 234 CLR 330; Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431; Roo Roofing Pty Ltd v Commonwealth of Australia [2019] VSC 331; Rosenberg v Percival (2001) 205 CLR 434; Rowe v Transport Accident Commission (2017) MVR 195; Sargood Bros v The Commonwealth (1910) 11 CLR 258; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Shaaban Bin Hussein v Chong Fook Kam (1970) AC 942; Storm v Geeves [1965] Tas SR 252 at 255; Sullivan v Moody (2001) 207 CLR 562; Swinton v The China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553; Taylor v Smith (1926) 38 CLR 48; The Queen v Fowler (1985) 39 SASR 440; Triaca v Summaries Pty Ltd [1971] VR 347; Trustees of Roman Catholic Church for Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; Vairy v Wyong Shire Council (2005) 223 CLR 422; Virk Pty Ltd (In Liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190; VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Westina Corporation Pty Ltd v BGC (2009) 41 WAR 263; Wodonga Regional Health Service v Hopgood (2010) 37 VR 284; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, considered. -- 4 of 647 -- SAADAT v COMMONWEALTH & ORS [2025] SASC 59 Civil Contents INTRODUCTION ............................................................................................. 11 CLAIM................................................................................................................ 13 The basis of the applicant’s claim................................................................... 13 Commonwealth’s defence ............................................................................... 16 ACM’s case on the applicant’s claim ............................................................. 18 ACM’s defence to the third party claim .......................................................... 26 G4S’ defence to the third party claim ............................................................. 28 ISSUES FOR DETERMINATION IN THE PRIMARY ACTION .............. 31 PRELIMINARY EVIDENCE ISSUES ........................................................... 34 Evidence admitted de bene esse ...................................................................... 34 Exhibit A109.................................................................................................. 34 Epidemiological analysis – long-term detainees .......................................... 34 Golden Rules Card ........................................................................................ 34 Foundational proposition ................................................................................ 35 Justiciability and coherence ............................................................................ 36 Place of detention is justiciable .................................................................... 40 Form, character and environment of applicant’s detention is justiciable .... 42 Decisions to release persons other than the applicant are non-justiciable .. 44 Assessment of the evidence ............................................................................. 44 Delay impoverishes the evidence..................................................................... 45 No systems case pleaded .................................................................................. 46 LAYOUT OF CURTIN ..................................................................................... 49 LAYOUT OF BAXTER .................................................................................... 50 THE APPLICANT’S EVIDENCE ................................................................... 51 Pre-detention.................................................................................................... 51 The applicant’s life in Iran ........................................................................... 51 The applicant flees Iran ................................................................................ 53 The boat trip to Australia .............................................................................. 55 -- 5 of 647 -- [2025] SASC 59 Stanley J 2 Curtin ............................................................................................................... 56 The applicant’s detention at Curtin .............................................................. 56 Curtin medical centre ................................................................................... 61 Application for visa refused .......................................................................... 62 Riots at Curtin ............................................................................................... 63 The applicant’s mental state ......................................................................... 64 Baxter ............................................................................................................... 65 Transfer to Baxter ......................................................................................... 65 Early days at Baxter...................................................................................... 65 The applicant’s mental state ......................................................................... 68 Management Unit – December 2002 ............................................................ 68 The fires ........................................................................................................ 69 Transfer to Red 3 .......................................................................................... 71 The applicant’s mental state upon release from the Management Unit – January 2003 ................................................................................................ 71 Transfer to Blue 3 ......................................................................................... 72 Hunger strike – January 2003 ...................................................................... 72 Protest and self-harm incident - 6 February 2003 ....................................... 73 Acts of self-harm witnessed by the applicant at Baxter ................................ 74 The state of the applicant’s health – February 2003 .................................... 74 Escape attempt .............................................................................................. 75 Management Unit – March 2003 .................................................................. 75 The Australian government’s agreement with Iran – Memorandum of Understanding (MOU) .................................................................................. 77 Events in March 2003 after the applicant’s release from the Management Unit ....................................................................................................................... 77 Suicide attempt - 11 August 2003 ................................................................. 79 The applicant’s use of marijuana ................................................................. 79 United Nations application ........................................................................... 80 October 2003 - transfer to White 3 ............................................................... 81 January 2004 - G4S commences management of Baxter.............................. 81 The applicant’s last year in detention ........................................................... 82 Summary ....................................................................................................... 84 POST DETENTION .......................................................................................... 84 The applicant’s release from detention ......................................................... 84 -- 6 of 647 -- [2025] SASC 59 Stanley J 3 The applicant’s post detention employment .................................................. 86 The applicant’s post detention health ........................................................... 90 University studies .......................................................................................... 96 Permanent protection visa and Australian citizenship ................................. 96 Relationships ................................................................................................. 96 United States trip .......................................................................................... 96 The applicant’s marriage .............................................................................. 97 Other anger incidents and mental health problems .................................... 100 Application for a disability support pension ............................................... 101 THE APPLICANT’S RELIABILITY AND CREDIT ................................. 101 History given to Dr Raeside .......................................................................... 102 History given to Dr Schirripa ........................................................................ 106 History given to Mr McInerney .................................................................... 107 Outline of Evidence ....................................................................................... 108 Applicant’s affidavits ..................................................................................... 112 Examples of unreliable evidence or omissions about specific events.......... 114 Arrival in Australia ..................................................................................... 115 Management Unit........................................................................................ 116 Overdose ..................................................................................................... 117 Release from detention ................................................................................ 117 Housing Trust.............................................................................................. 117 Travel to the United States .......................................................................... 118 Dubai trip .................................................................................................... 118 Domestic violence incident ......................................................................... 119 OxyContin and other drug use .................................................................... 119 Conclusion on the applicant’s reliability and credit .................................... 120 APPLICANT’S CORROBORATIVE LAY WITNESSES .......................... 125 Mahnaz Saadat .............................................................................................. 125 Inconsistencies in Mrs Saadat’s Evidence .................................................. 134 Corroboration of the applicant’s evidence ................................................. 135 Shahin Shahrooei .......................................................................................... 138 Conditions at Baxter ................................................................................... 138 Blue 3 .......................................................................................................... 139 White 1 ........................................................................................................ 140 Management Unit........................................................................................ 141 -- 7 of 647 -- [2025] SASC 59 Stanley J 4 Applicant’s overdose ................................................................................... 142 Release from detention ................................................................................ 142 Corroboration of the applicant’s evidence ................................................. 143 Ali Namavar ................................................................................................... 145 Arrival at Baxter ......................................................................................... 145 Conditions at Baxter ................................................................................... 146 Compound movements ................................................................................ 147 Red 1 ........................................................................................................... 148 Red 3 – 22 January 2003 ............................................................................ 149 Blue 3 – 22 January 2003 ........................................................................... 149 Red 3 – 10 February 2003 .......................................................................... 150 Management Unit – 5 April 2003 ............................................................... 151 Blue 3 – 15 April 2003 ................................................................................ 152 After the applicant’s attempted overdose ................................................... 153 Post detention.............................................................................................. 154 Corroboration of the applicant’s evidence ................................................. 154 Shokrollah Paparzadeh ................................................................................. 156 Curtin .......................................................................................................... 156 Conditions at Curtin ................................................................................... 157 Incidents at Curtin ...................................................................................... 158 Baxter .......................................................................................................... 160 Conditions at Baxter ................................................................................... 161 Management Unit........................................................................................ 162 Blue 3 .......................................................................................................... 163 White 3 ........................................................................................................ 164 Post detention.............................................................................................. 165 Corroboration of the applicant’s evidence ................................................. 167 Alex Sovi (formerly Ali Reihizadeh) ............................................................. 168 Curtin .......................................................................................................... 169 Baxter .......................................................................................................... 170 Management Unit........................................................................................ 172 Blue 3 .......................................................................................................... 172 Applicant’s escape attempt ......................................................................... 173 Post detention.............................................................................................. 175 Corroboration of the applicant’s evidence ................................................. 176 -- 8 of 647 -- [2025] SASC 59 Stanley J 5 Conclusion on corroboration of the applicant’s evidence ........................... 177 THE APPLICANT’S LAY WITNESSES – MEDICAL .............................. 178 Damien McInerney ........................................................................................ 178 Mehdi Abiyat .................................................................................................. 184 Dr Behzad Shroff ........................................................................................... 185 THE APPLICANT’S LAY WITNESSES – SYSTEMS CASE ................... 186 Harold Bilboe................................................................................................. 186 Father Paul Bourke....................................................................................... 188 Marie Anne Saracino .................................................................................... 191 David Wright.................................................................................................. 193 Bobbi Sawyer ................................................................................................. 194 Dr Jonathan Phillips ..................................................................................... 195 IDAG .............................................................................................................. 197 Professor Harry Minas ............................................................................... 197 Retired Air Marshal Ray Funnell ............................................................... 206 Consideration of IDAG Witnesses .............................................................. 212 Reviews – Lay Witnesses ............................................................................... 214 Dr Michael Bollen....................................................................................... 214 Professor Richard Harding ......................................................................... 215 Michael Palmer ........................................................................................... 221 The Falconer Report ................................................................................... 230 The Health Advisory Panel ......................................................................... 231 Reviews – Expert Evidence ........................................................................... 231 Dr Chris Henderson .................................................................................... 231 Amanda Gordon .......................................................................................... 237 COMMONWEALTH’S LAY WITNESSES ................................................. 242 Greg Wallis .................................................................................................... 242 Curtin .......................................................................................................... 244 Baxter - management .................................................................................. 250 Baxter - layout and facilities ....................................................................... 253 Baxter – medical facilities .......................................................................... 258 Security and incidents ................................................................................. 260 ACM’s LAY WITNESSES ............................................................................. 265 Stephen Monaghan ....................................................................................... 265 Diane Rarity ................................................................................................... 270 -- 9 of 647 -- [2025] SASC 59 Stanley J 6 Gerald McCormack ....................................................................................... 275 Keith Fyfe....................................................................................................... 276 Maureen Hanly.............................................................................................. 283 Christopher Burns ......................................................................................... 286 G4S’ LAY WITNESSES ................................................................................. 297 Peter Saxon .................................................................................................... 297 Tanya Horner ................................................................................................ 300 George Rooks ................................................................................................. 304 THE PSYCHIATRIC EVIDENCE - APPLICANT ..................................... 306 Dr Raeside...................................................................................................... 308 Report of 21 June 2011 ............................................................................... 309 Report of 18 February 2015 ....................................................................... 313 Report of 23 August 2017 ........................................................................... 314 Report of 14 December 2018 ...................................................................... 316 Report of 8 January 2019 ........................................................................... 320 Report of 1 February 2021 ......................................................................... 320 Report of 7 July 2021 .................................................................................. 321 Report of 7 December 2021 ........................................................................ 322 Reports of 14 March 2022 and 15 March 2022 .......................................... 323 Diagnosis by Dr Raeside ............................................................................ 323 Reliance upon the Outline of Evidence and Summary of Evidence ............ 328 Professor Jureidini ........................................................................................ 332 THE PSYCHIATRIC EVIDENCE - COMMONWEALTH ....................... 338 Dr Schirripa ................................................................................................... 338 Report of 8 April 2013 ................................................................................ 338 Report of 18 July 2018 ................................................................................ 343 Report of 24 August 2020 ........................................................................... 344 Report of 28 January 2021 ......................................................................... 345 Report of 23 February 2022 ....................................................................... 347 Oral Evidence ............................................................................................. 347 Assessment of Dr Schirripa’s evidence ....................................................... 356 THE EXPERT EVIDENCE - ACM ............................................................... 357 Dr Dilip Kapur ............................................................................................... 357 Overdose ..................................................................................................... 357 OxyContin addiction ................................................................................... 359 -- 10 of 647 -- [2025] SASC 59 Stanley J 7 Marijuana use ............................................................................................. 360 Physical pain ............................................................................................... 360 Dr Clarke ....................................................................................................... 361 4 December 2018 report ............................................................................. 362 3 November 2020 report ............................................................................. 366 19 March 2021 report ................................................................................. 372 15 March 2022 report ................................................................................. 374 Management Unit........................................................................................ 378 Torture and trauma ..................................................................................... 380 Reliance on the applicant’s evidence .......................................................... 380 Assessment of Dr Clarke’s evidence ........................................................... 382 CONSIDERATION OF THE EXPERT EVIDENCE .................................. 384 FINDINGS OF FACT AND FAILURE TO PROVE ALLEGATIONS OF FACT ................................................................................................................ 388 Chronology .................................................................................................... 390 Pre-detention findings ................................................................................... 452 University studies in Iran ............................................................................ 453 Curtin Findings ............................................................................................. 454 Did the applicant hide psychiatric symptoms at Curtin because he feared it would adversely affect his prospects of obtaining a visa? .......................... 458 Was the applicant suffering from a recognisable psychiatric injury at the time of his transfer from Curtin to Baxter? ........................................................ 459 Was the applicant vulnerable to suffering a recognisable psychiatric illness at the time of his transfer from Curtin to Baxter on 22 September 2002? ...... 460 Baxter Findings ............................................................................................. 461 What occurred during the applicant’s transfer from Red 3 to Blue 3 on 22 January 2003? ............................................................................................ 473 What occurred during the protest and self-harming incident of 6 February 2003?........................................................................................................... 475 Did the applicant hide psychiatric symptoms while at Baxter because he feared he would be placed in the Management Unit or that it would adversely impact his visa prospects? ...................................................................................... 477 The applicant’s placement in the Management Unit between 5 to 13 March 2003............................................................................................................. 479 The applicant’s mental health in March 2003 ............................................ 482 Reliance on DSO notes between the fires and the overdose ....................... 483 Was the overdose on 11 August 2003 a genuine suicide attempt? ............. 483 -- 11 of 647 -- [2025] SASC 59 Stanley J 8 Was the applicant suffering from a recognisable psychiatric injury between the suicide attempt on 11 August 2003 and his release from detention?.... 487 The applicant’s marijuana use in Baxter .................................................... 489 Did the applicant experience insomnia at Baxter? ..................................... 490 Does the evidence support a finding that the applicant socially isolated himself towards the end of detention? ..................................................................... 492 Stressors at Baxter ...................................................................................... 495 Was the applicant suffering from a recognisable psychiatric injury upon his release from detention?............................................................................... 499 Post Detention Findings ................................................................................ 501 General medical records............................................................................. 502 Psychological / psychiatric records ............................................................ 503 Post-detention psychiatric care .................................................................. 504 Work, relationships and university studies ................................................. 505 Observations by detainee witnesses post detention .................................... 506 The applicant’s OxyContin addiction ......................................................... 507 DUTY ................................................................................................................ 513 The Commonwealth’s duty of care ............................................................... 513 The non-delegable duty of care owed by the Commonwealth ..................... 514 Affirmative duty of care................................................................................. 522 Standard of care ............................................................................................ 525 Reasonable foreseeability .............................................................................. 526 Injury.............................................................................................................. 527 Is the content of the Commonwealth’s duty of care informed by Australia’s international treaty obligations? ................................................................... 528 CONTENT OF THE DUTY OF CARE AND BREACH ............................. 530 BREACH .......................................................................................................... 531 The medical failure to treat case ................................................................... 534 Breach One ................................................................................................. 535 Breach Two ................................................................................................. 539 Breach Three ............................................................................................... 542 Breach Four ................................................................................................ 546 Breach Five ................................................................................................. 549 Breach Six ................................................................................................... 550 The applicant’s overall case on breach ........................................................ 553 The Counterfactual ....................................................................................... 555 -- 12 of 647 -- [2025] SASC 59 Stanley J 9 The applicant’s form of detention case......................................................... 558 Place of detention ....................................................................................... 559 Alternative places of detention.................................................................... 561 The Commonwealth’s conduct after the fires ............................................. 563 Subjecting the applicant to stressors during the course of his detention which caused or contributed to him developing mental illness or vulnerability to mental illness .............................................................................................. 566 Other aspects of the applicant’s form of detention case ............................. 567 Interpreters ................................................................................................. 568 Counsellors ................................................................................................. 569 The temperament of DSOs .......................................................................... 570 Failure to ensure staff were aware of the applicant’s personal history and took it into account when dealing with him ........................................................ 571 The provision of educational and recreational facilities ............................ 571 The failure to ensure unnecessary force and handcuffing was not used .... 572 The Management Unit................................................................................. 577 The failure to minimise tension at Baxter ................................................... 582 CAUSATION ................................................................................................... 582 Legal principles ............................................................................................. 582 Recognisable psychiatric injury – August 2003 ........................................... 592 Management Unit - March 2003 .................................................................. 593 Failure to provide access to a psychiatrist or psychologist did not cause any loss .................................................................................................................. 594 Summary of causation issues ........................................................................ 594 THE COMMONWEALTH’S PLEADING ................................................... 596 CONCLUSION ON LIABILITY IN NEGLIGENCE.................................. 597 DAMAGES ....................................................................................................... 598 CIVIL LIABILITY ACT ................................................................................ 600 EXTENSION OF TIME.................................................................................. 609 THE THIRD PARTY CLAIMS ..................................................................... 618 Legislative framework – Migration Act 1958 ............................................... 618 The making of the contracts.......................................................................... 619 The Commonwealth’s contractual arrangements with ACM and G4S....... 620 The Commonwealth’s causes of action on its third party claims ................ 621 The third party defences ................................................................................ 623 The Commonwealth’s third party claims in contract ................................... 624 -- 13 of 647 -- [2025] SASC 59 Stanley J 10 Liability of a guarantor ................................................................................. 625 The indemnity provisions .............................................................................. 626 The Commonwealth’s third party claims in tort .......................................... 631 The Commonwealth’s claim that the third parties were in breach of concurrent duties owed to it in contract and tort............................................................. 632 Estoppel / waiver / ratification ...................................................................... 639 CONCLUSION ................................................................................................ 642 POSTSCRIPT .................................................................................................. 642 -- 14 of 647 -- [2025] SASC 59 Stanley J 11 STANLEY J: INTRODUCTION 1 On 16 December 2000 Payam Saadat (the applicant), having entered Australian territorial waters by boat from Indonesia, was taken aboard an Australian Naval vessel near Ashmore Reef. He was processed at Darwin on 22 December 2000. The next day he, along with other passengers on that boat, was transferred to Curtin Immigration Reception and Processing Centre (Curtin) near Derby, Western Australia. The applicant claimed asylum. He was placed in immigration detention while his claim was assessed and determined. He remained in immigration detention until 27 April 2005. During that period, he was detained at Curtin until 22 September 2002 when he was transferred to Baxter Immigration Reception and Processing Centre (Baxter). He remained at Baxter until his release into the Australian community on 27 April 2005 when he was granted a temporary protection visa (TPV). 2 The applicant claims damages from the Commonwealth for psychiatric injuries he alleges he suffered as a result of the conditions under which he was detained by the Commonwealth at Baxter in breach of the Commonwealth’s duty of care it owed him. In the alternative, he alleges that, as a result of the Commonwealth’s breach of its duty of care, he suffered psychiatric injury caused by the conditions of his detention at Curtin from 23 December 2000 to 22 September 2002, which was aggravated by the conditions of his detention by the Commonwealth at Baxter. He also alleges the Commonwealth breached its duty of care by failing to treat his psychiatric injury while he was in detention. 3 By reason of the operation of s 14 of the Limitation Act 2005 (WA), any claim by the applicant for damages for injury suffered by him while he was detained in Curtin is statute barred. 4 The applicant’s entry into Australia was governed by the provisions of the Migration Act 1958 (Cth) (the Migration Act). The Migration Act provides that all unlawful non-citizen entrants into Australia without a lawful right of entry must be detained. This has been a feature of the statutory regime governing the entry of non-citizens or British subjects since shortly after Federation. This was described by Hayne J in Al-Kateb v Godwin.1 He said:2 Since before federation, control of immigration to Australia has had a prominent place in Australian law and politics. In the first year of federation, the Parliament passed the Immigration Restriction Act 1901 (Cth) “to place certain restrictions on Immigration and to provide for the removal from the Commonwealth of prohibited Immigrants”. For more than ninety years, legislation prohibited various classes of person from entering the Commonwealth and made it a criminal offence to enter, or to be found within, the Commonwealth as a prohibited immigrant. For many years, the dictation test was used to 1 [2004] HCA 37, (2004) 219 CLR 562. 2 Al-Kateb v Godwin [2004] HCA 37 at [201], (2004) 219 CLR 562 at 632. -- 15 of 647 -- [2025] SASC 59 Stanley J 12 exclude persons, or classes of person, whom the government of the day deemed undesirable immigrants. The operation of that test was considered by this Court many times. [citations omitted]. 5 It is not in dispute that the applicant arrived in Australia without legal authorisation. The applicant left Iran and eventually came to Australia via Indonesia and possibly other countries by boat. For the purposes of the Migration Act he was an unlawful non-citizen in this country. 6 In 1998 the Commonwealth entered into a contract with Australasian Correctional Services Pty Ltd and the GEO Group Australia Pty Ltd (ACM) for the management of detention facilities on behalf of the Department of Immigration and Multicultural Affairs, later known as the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).3 When these contracts were entered into in 1998 there were four detention centres in Australia, namely, Port Hedland, Villawood, Maribyrnong and Perth. Relevantly, the two detention centres where the applicant was detained, Curtin and Baxter were not in operation. 7 The contract required ACM to provide detention services in accordance with industry best practice and the Immigration Detention Standards (IDS). The IDS were expressly incorporated into the contractual framework between the Commonwealth and ACM as a schedule to the detention services agreements. The contract permitted ACM to subcontract services for the delivery of detention services. Subcontracting of those services was subject to demonstration that the subcontractors were capable of providing detention services at the requisite standard. Importantly, pursuant to the contract, ACM provided an express contractual indemnity on its warrant to provide the detention services, whether those services were provided by it or a subcontractor. By the indemnity, ACM agreed to hold the Commonwealth harmless from liability from its provision of detention services pursuant to the contract. Further, ACM executed a deed of guarantee of its obligations, including the indemnity obligation to the Commonwealth. The existence of the indemnity obligation is not in issue in the primary proceedings. However, there is an issue as to whether in respect of the applicant’s claim ACM is obliged to indemnify the Commonwealth. 8 It is not contested that the applicant was lawfully detained by the Commonwealth pursuant to the relevant provisions of the Migration Act as an unlawful non-citizen. 9 Both the Commonwealth and ACM emphasise a change in the historical circumstances relevant to unauthorised arrivals that occurred in the period of two or three years immediately preceding the applicant’s arrival in Australia. They point to a dramatic increase in the number of unauthorised arrivals during that period relative to what had occurred previously. These arrivals swamped the existing facilities for detention of unauthorised arrivals. Until 1998 those detention 3 The Department had various changes of nomenclature during the relevant period. -- 16 of 647 -- [2025] SASC 59 Stanley J 13 facilities were operated by organs of the Commonwealth executive government, namely, DIMIA. 10 In 1999 and 2000 the dramatic increase in the number of unauthorised arrivals by non-citizens into Australia led the Commonwealth to open further detention centres and to re-open detention centres previously operated by the Commonwealth but subsequently closed. During this period the Commonwealth detained asylum seekers at Curtin, some 40 kilometres from the town of Derby, and Woomera Detention Centre (Woomera) in the north of South Australia. Subsequently, on 26 August 2002, pursuant to s 273(1) of the Migration Act, the Commonwealth established the Baxter detention centre approximately 12 kilometres from Port Augusta in the State of South Australia. ACM was contracted to operate the detention centres at, inter alia, Curtin, Woomera and Baxter on behalf of the Commonwealth. Baxter commenced operation on 6 September 2002. It was a purpose-built detention facility. 11 On 27 August 2003 the Commonwealth contracted with Group 4 Falck Global Solutions Pty Ltd (G4S) to manage and operate, inter alia, the Baxter detention centre on behalf of the Commonwealth. On 1 December 2003 G4S contracted with International Health and Medical Services Pty Ltd (IHMS) for the provision of health care services at, inter alia, Baxter. ACM ceased to operate Baxter and G4S assumed the management and operation of Baxter on 19 January 2004. Like ACM, G4S was contractually obliged to observe the IDS. The IDS were re-drafted in the years between the ACM and G4S Contracts and the standards incorporated into the G4S contract differed from the IDS in the ACM contract. 12 On 6 February 2004 G4S contracted with Professional Support Services (PSS) for the provision of psychological and other counselling services at Baxter. CLAIM The basis of the applicant’s claim 13 Upon his arrival in Australia the applicant claimed asylum and applied for a protection visa. His application was refused and he brought a series of appeals challenging this decision which culminated in the rejection of his application for special leave to appeal in August 2003. Thereafter, until he was granted a TPV and released from Baxter in April 2005, he was at risk of being deported to Iran involuntarily. 14 The applicant says that while in detention he made repeated requests for medical assistance for various health problems, including insomnia and self-harm, but he did not see a psychiatrist in the entire period of his detention. Eventually he alleges he suffered a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and/or a Persistent Depressive Disorder. He also alleges that he subsequently suffered an opioid dependence as a result of the psychiatric injuries he suffered. He alleges his psychiatric injury is permanent. -- 17 of 647 -- [2025] SASC 59 Stanley J 14 15 The applicant’s case is that he had no prior history of mental illness before arriving in Australia. He alleges that by the time of his transfer from Curtin to Baxter in September 2002 he was, at the very least, vulnerable to suffering a mental illness by reason of the conditions of his detention at Curtin. He alleges that by the time he was released from Baxter in April 2005 he had developed a recognisable psychiatric injury from which he has not recovered. It is his case that his psychiatric injury was caused or materially contributed to by the conditions under which he was detained at Baxter and/or by the failure to treat the applicant for his alleged psychiatric injuries. 16 There are two limbs to the applicant’s claim. The first is what can be characterised as a failure to treat case and the second is a negligent form of detention case. 17 The applicant gave evidence that, when in Iran, he was detained and physically tortured by Ettela’at, the secret police, which caused him to flee that country and seek asylum. He said the boat journey to Australia was traumatic. The applicant’s case is that the Commonwealth was aware of this history when it detained him. As a consequence, it knew or ought to have known that he was a vulnerable person who needed to be treated with sufficient care to prevent him suffering psychiatric injury. Instead, it detained him under conditions which rendered it almost inevitable that he would suffer psychiatric injury or that any pre- existing psychiatric injury would be aggravated by the conditions under which he was detained, particularly at Baxter. 18 He alleges that in 2011 he read a medical report of a psychiatrist, Dr Raeside, and discovered, for the first time, that he had a psychiatric illness and would require the indefinite use of antidepressant medication and ongoing psychological therapy. From reading the report, he ascertained that a psychiatrist considered it likely that he would suffer permanent psychiatric disability with a consequential impact on his work and social life. 19 The applicant alleges that before and during his detention period the Commonwealth knew or ought to have known that accepted medical opinion held that long-term detention can cause or contribute to mental illness. The applicant alleges that he was vulnerable to suffering a mental illness due to being tortured and detained in Iran and enduring a traumatic voyage in an unseaworthy boat to Australia. However, he also alleges he had not experienced symptoms of mental illness prior to his detention in Australia. 20 The circumstances under which he was detained at Curtin and Baxter were harsh. It is the applicant’s case that this was deliberately so and that the Commonwealth established detention centres and conducted and managed those centres in a manner which was intended to deter people seeking asylum from coming to Australia for that purpose. The applicant points to particular features of Curtin and Baxter. They were located in remote and inhospitable parts of Australia. The location of these detention centres made visiting difficult. That -- 18 of 647 -- [2025] SASC 59 Stanley J 15 increased a detainee’s sense of isolation. The rules and procedures adopted by those operating the detention centres added to that sense of isolation. In order for someone to visit a detainee, the detainee had to make a written request for a particular person to visit. Even then, the operator of the detention centre and DIMIA was conferred with discretionary powers, including to refuse visits by both personal and institutional visitors, such as churches, welfare organisations, lawyers and advocacy groups. 21 The applicant submits the sense of isolation was further exacerbated by the limited availability of telephones. By way of example, at Curtin there were four phones with four outward lines and two inward lines. In circumstances where there were frequently as many as 850 detainees in that centre the queue to get a phone was always long. Further, detainees had to pay for their phone calls. The opportunity to earn money while in detention was limited. There were few paying jobs and the pay was low. He submits that at Curtin there was no access to newspapers, whether Australian or from detainees’ countries of origin, including Iran. 22 The applicant submits the conditions at both centres were inhospitable. The temperature was very hot during the day and it could be very cold at night. Curtin was frequently overcrowded which strained infrastructure. The showers were inadequate. There were few lavatories and they were disgusting. 23 He submits that at both centres procuring basic items such as detergent, shampoo and toothpaste was difficult because of the limited availability of such items. Food was bland and unchanging. The applicant described it as tasting terrible. Food could not be obtained outside designated meal hours. Detainees could not make their own meals. 24 The applicant alleges medical services at Curtin and Baxter were overstretched. The medical and nursing staff were inadequate for the number of detainees who required treatment. Medical centres were swamped by the demand. By way of illustration the applicant said that while at Curtin he suffered a throat infection. Over the course of three months he attended at the medical centre almost 30 times for treatment of this condition. He alleges that it was only at the end of that period that he was given antibiotics. The applicant said he had dental problems which caused him severe pain for which he never received proper treatment. At one stage he suffered a testicular torsion which required surgery. He said that required him to be transported to hospital which involved him travelling in handcuffs and being shackled to a bed while being treated in the hospital. 25 The applicant submits that while in detention there was little organised activity. Detainees spent interminable days sitting around with nothing to do. Reports provided to DIMIA by the ACM painted a misleading impression of conditions at Curtin. While there was a soccer pitch, the goals had no nets and there was only a single soccer ball. There was always a competition to see who could get the soccer ball. It had to be obtained from a Detention Services Officer -- 19 of 647 -- [2025] SASC 59 Stanley J 16 (DSO). Even then there was stiff competition as to who could play given there were so many single men detained at Curtin who were interested in playing. That contest itself could become a source of friction between Afghan and Iranian detainees. In any event, play was often confined to the evening when the heat of the day had eased. 26 The applicant alleges that adult education was virtually non-existent. At Curtin there were few televisions. There were no excursions for single men. The only time the applicant left the detention centres was to travel to hospital for treatment. 27 The applicant alleges that the management and operation of the detention centres at Curtin and Baxter prioritised security over the wellbeing of detainees. The ambiance was that of a prison. That was contributed to by the attitude of many of the DSOs who were recruited from the prison system which the third parties operated. Detainees and their rooms were subject to arbitrary searches. Systems were highly regimented. 28 The applicant claims that the Commonwealth failed to conduct any research into the effect of detention, particularly long-term detention, on detainees’ mental health. When offered assistance by the Royal Australian and New Zealand College of Psychiatrists (RANZCP) to undertake such research the Commonwealth declined that offer. These offers were made expressly by a former president of the RANZCP, Dr Phillips, in 2001 and 2002. Such research as was undertaken was publicly debunked and dismissed by the Commonwealth. 29 The applicant submits that from time to time there were riots and other disturbances, including arson, at Curtin and Baxter. There is ample evidence of detainees self-harming or threatening suicide. The applicant contends that the Commonwealth, rather than recognising such events as symptomatic of desperate people suffering recognisable psychiatric illnesses requiring treatment, characterised these actions as protests designed to manipulate the detention service provider or DIMIA into treating the detainees involved and their claims more favourably. This led to counterproductive responses by the Commonwealth and third parties. Commonwealth’s defence 30 The Commonwealth accepts that it owed a non-delegable duty to the applicant to ensure reasonable care was taken of him while he was in detention. 31 The Commonwealth denies that it has breached its duty of care to the applicant. The Commonwealth submits that it discharged its non-delegable duty of care to the applicant through a range of measures including instituting appropriate contractual arrangements with the third parties, the provision for reports and records, together with a review of those records, the monitoring by the Commonwealth of the third parties’ management of the detention centres and their exercise of appropriate operational discretions on a daily basis as part of the -- 20 of 647 -- [2025] SASC 59 Stanley J 17 discharge of their duty of care. It contends that reliance on the third parties for the management and operation of Curtin and Baxter did not constitute delegation in these circumstances. 32 The Commonwealth’s primary defence to the applicant’s claim is that it fails as a matter of fact. The Commonwealth denies that the applicant suffered psychiatric injury even if it was in breach of the duty of care it owed him. Further, the Commonwealth contends that if the applicant suffered psychiatric injury, he has failed to prove it was caused by stressors that existed during the period the applicant was in detention. Rather, it contends it was the result of stressors to which the applicant was subject before and/or after his period in detention. In the further alternative, the Commonwealth says that if the applicant suffered psychiatric injury as a result of its breach of its duty of care, he recovered from that injury. If he did not, any symptoms he now suffers are not caused by any injury he suffered as a result of the Commonwealth’s breach of its duty of care, but are the result of other stressors unrelated to his period in detention or stressors which caused loss and damage that is nonjusticiable. 33 The Commonwealth further contends that, in any event, the applicant has failed to prove that any breach of its duty of care was causative of loss and damage to him. 34 In discharging its duty of care, the Commonwealth emphasises that, from time to time, there was a fluctuating balance in resolving the tension between various factors that were to be observed by the Commonwealth and the third parties. Examples being the security of detainees, the necessity of detention, and respect for the cultural integrity of detainees. 35 In addition, in considering whether a duty of care was breached, the Commonwealth says it is important to recognise the third parties were managing detention centres in the context of unprecedented pressure due to the number of unlawful non-citizens arriving. This resulted in the detention system being swamped in the late 1990s and early 2000s, requiring a process of regular adaptation, modification and improvement in the system of immigration detention. 36 It contends that, in any event, the applicant’s claim is statute barred. It opposes an extension of time. 37 The Commonwealth joined as third parties Australasian Correctional Services Pty Ltd, the first third party, G4S Australia Pty Ltd, the second third party, GEO Group Australia Pty Ltd, the third third party and G4S Regional Management (UK & I) Ltd, the fourth third party.4 The third parties contracted with the Commonwealth at various times relevant to the applicant’s claim, to conduct and manage, inter alia, Curtin and Baxter. 4 For convenience, throughout these reasons I will refer to the first and third third parties as ACM, and the second and fourth third parties as G4S. -- 21 of 647 -- [2025] SASC 59 Stanley J 18 38 During the applicant’s detention, ACM was contracted for the period up to on or about 19 January 2004 and G4S was contracted for the period from on or about 19 January 2004 until the applicant was released from detention on 27 April 2005. The Commonwealth in its third party claim, contends that if the Commonwealth is found liable to the applicant, that would be a breach of the service obligations to which the third parties are contractually bound triggering a contractual right to indemnity guaranteed by the third parties. In addition, the third parties would be liable in those circumstances to the Commonwealth in negligence. The third parties deny any liability to the Commonwealth. They deny either the existence of a contractual relationship giving rise to a duty of care or the breach of a duty of care. In the alternative, they allege waiver by the Commonwealth of any liability and they plead that the Commonwealth is estopped from bringing any claim against them. 39 The third parties were selected by the Commonwealth because of their experience and expertise in managing these complex and difficult demands which existed in operating and managing detention facilities. ACM’s case on the applicant’s claim 40 Despite the fact the applicant did not directly institute proceedings against them ACM chose to respond directly with a Defence to the applicant’s Statement of Claim, in addition to the Third Party Claim. ACM’s case on the applicant’s claim is that he did not suffer a recognisable psychiatric injury at Curtin. If he did suffer a psychiatric injury at Curtin, it was in the nature of a mild reactive depression in response to his “detention uncertainty”. ACM alleges reactive depression amongst the detainees at Curtin was widespread and largely untreatable. Whatever it was, such an injury at Curtin is not compensable. 41 ACM submits it had no capacity to control the expectations of detainees at Curtin in respect of their visa applications. This was in the exclusive province of the Commonwealth. Detaining people against their will, over an extended period of time without any certainty as to their future, was potentially detrimental to their mental health. ACM knew and understood this from at least 2002. The Commonwealth was aware of the existence of expert opinion to that effect from an even earlier time. 42 ACM admits that to the extent that the applicant became, over time, a long- term detainee at Curtin, he became vulnerable, along with all other such detainees, to the development of a psychiatric injury. It accepts that many of hundreds of male detainees at Curtin fell into this category. ACM submits there were not sufficient indicators of the applicant suffering from psychiatric injury at Curtin to justify him being referred either while at Curtin, or when transferred to Baxter, for a full mental health assessment (MHA) by a mental health nurse, a psychologist or a psychiatrist. Further, it contends it is entirely reasonable and consistent with the detection, management and treatment of mental illness in the general population that the level of intervention and treatment will be largely dictated by the particular -- 22 of 647 -- [2025] SASC 59 Stanley J 19 symptoms, or lack thereof, exhibited by the individual patient. In the presence of symptomatology which might be suggestive of a psychiatric cause, it was reasonable to take a staged approach to diagnosis and treatment which, in the first instance involves screening and, depending on the results of screening, a triage of the patient to more detailed assessment and treatment from other more specialised health professionals if the presenting symptoms indicate that this is necessary. ACM submits that this process existed at both Curtin and Baxter, and at neither centre did the overall presentation of the applicant warrant any greater level of intervention than occurred. 43 ACM contends that the Commonwealth and ACM committed no actionable breach by failing to conduct full MHAs on the applicant at Curtin and Baxter. ACM submits it acted appropriately in meeting the applicant’s physical health care needs at Curtin. 44 ACM submits that Baxter was designed and constructed by the Commonwealth as a facility which had the capacity to both keep detainees in, and to keep potential protestors out. It was therefore intended, by design, to be more secure than significantly less structured detention facilities, such as Curtin and Woomera. ACM contends that the fact the applicant, and other detainees, did not like the detention environment at Baxter, is not relevant, or an actionable complaint. Baxter was designed with multiple compounds in order to be able to compartmentalise detainees into smaller and more manageable residential groups or compounds, as the need arose, for the good order and management of the facility. The compounds were identified by colour, red, white and blue, and numbers one, two and three. The previous experience of fire, riots and escapes at places like Curtin and Woomera were taken into account by the Commonwealth at the design stage for Baxter. Further, independent expert opinion provided to the Commonwealth after the fires and riots at Woomera and Curtin (and other detention centres) in 2001 indicated to ACM and the Commonwealth that the detainee cohort should now be assumed to be non-compliant in their attitude toward detention.5 45 ACM submits it was contractually required, as at September 2002, to simultaneously detain persons in an administrative setting and ensure they did not escape, while at the same time providing a reasonable level of service in connection with their physical and mental health. 46 ACM contends the mere transfer of apparently healthy detainees from one detention centre, in this case Curtin, to another, Baxter, did not of itself automatically trigger a requirement to undertake a full MHA upon their arrival at the new detention centre. 47 ACM submits the mental health screening process undertaken by ACM upon the applicant’s transfer to Baxter was in accordance with ACM’s Operational 5 Exhibit A228. -- 23 of 647 -- [2025] SASC 59 Stanley J 20 Procedures, as approved by the Commonwealth. The process followed by ACM was in accordance with its contract. ACM argues that if that process was somehow defective, any responsibility for that rests with the Commonwealth. 48 While the IDS sought contractually to impose upon ACM a standard of care which ACM was required to achieve in its treatment of all detainees, including the applicant, the duties ACM owed to the Commonwealth remained at all times contractually based. The applicant does not plead the existence of a duty of care owed by ACM to him and has not brought a claim directly against ACM. It is submitted that the nature and content of any duty owed by ACM to the Commonwealth is informed by and coextensive with, the IDS. ACM submits its duties can rise no higher than those found within the four corners of the contracts. 49 ACM submits that though its procedures for the transfer of detainees to Baxter were not foolproof in terms of detecting potential mental health problems, such an approach was in all the circumstances, a reasonably sufficient way to identify those requiring further MHAs at that time. ACM contends it cannot be said that it had made no attempt to look after the mental health of detainees or ignored the vulnerability to mental illness which long-term detention could produce. 50 ACM submits that the applicant’s attempt to make the case that the fact he “flew under the radar” is an indictment of the Commonwealth’s and ACM’s attention to this aspect of detainee wellbeing, should be rejected. In support of this submission, it argues that: • the Court should find that the applicant did not have a recognisable psychiatric injury during his detention in Baxter; • even if the applicant’s mental health deteriorated from time to time during his period in Baxter such that it could be classed as a recognisable psychiatric injury, it was an Adjustment Disorder with Depressed Mood which ebbed and flowed according to events. In between times, his condition was not such as to warrant a diagnosis of mental illness; • whenever the applicant complained of some emotional or psychological issues, those complaints were acted upon. The contemporaneous evidence of the applicant’s level of functioning and social interaction throughout his time in Baxter does not support his claim that he had given up; • a symptom and complaint based approach to dealing with physical and mental health is an entirely reasonable means by which large numbers of people being held against their will in a detention facility can be cared for; and -- 24 of 647 -- [2025] SASC 59 Stanley J 21 • the fallacy in the applicant’s complaint of the failure of ACM to carry out a MHA on the applicant is that it assumes such an assessment would have revealed the existence of a psychiatric injury or resulted in the applicant being treated differently than he was in fact. 51 ACM contends the applicant was not identified as a person requiring additional mental health treatment and management and, that this was both reasonable and understandable on the evidence. ACM rejects the submission that there should have been some wholesale system of conducting MHAs on detainees which included those who exhibited no symptoms or made no complaints of mental health problems. It argues liability in negligence is to be considered from a prospective position and requires consideration of the appropriate response of the reasonable person in the position of the Commonwealth at the time, rather than with the wisdom of hindsight. 52 ACM argues there was no breach of duty by the Commonwealth and ACM in not undertaking a full MHA of the applicant upon his arrival at Baxter. To have required this for the applicant, and for all long-term detainees arriving at Baxter at that time, set the standard of care too high. 53 In the alternative, ACM submits that if the Court finds that a full MHA ought to have been undertaken upon the applicant’s arrival at Baxter, it would not have revealed a psychiatric injury at that time. 54 ACM accepts that between December 2002 and October 2003 the applicant was exposed to a number of events and stressors at Baxter which potentially had a negative impact on his mental health. In addition to the risk of deportation, ACM from time to time imposed on the applicant, and various other detainees, a higher level of security, and more restricted detention conditions, in order to maintain good order and security at Baxter. ACM submits that to the extent these measures caused or resulted in the applicant developing a psychiatric injury at Baxter, which is denied, such measures were contractually justified and they are also not actionable against the Commonwealth. 55 ACM rejects the applicant’s submissions,6 that ACM acted or treated the applicant in an arbitrary, unprincipled or capricious way, without reasonable grounds to suspect that the applicant was a potential risk to good order and security at Baxter. ACM submits instead that it responded reasonably to the extremely difficult circumstances with which it was presented in late 2002 and during 2003 and the treatment of the applicant and other detainees at Baxter must be seen in this context. The applicant’s mental health was only one of the considerations to which the Commonwealth and ACM had to have regard during his detention. 56 The December fires in 2002 created a significant risk to detainees and staff. ACM rejects the applicant’s submission,7 that the fires at Baxter were substantially 6 Applicant’s Written Submissions (FDN 681) at [29]-[30]. 7 Applicant’s Written Submissions (FDN 681) at [28]. -- 25 of 647 -- [2025] SASC 59 Stanley J 22 caused by “detainee dissatisfaction with numerous aspects of ACM’s management” given that the fires were not lit by the entire detainee population. 57 ACM submits the suspects were Iranian men who had entirely or substantially exhausted their rights of appeal against determinations that they were not refugees and who were facing deportation. ACM submits it had intelligence large scale protests were planned for Baxter at Easter 2003 when Iranian male detainees might be assisted to escape and a high level of vigilance and security was therefore essential to protect the detainee population and the staff at the facility. ACM rejects the contention that the applicant was denied “natural justice” in the aftermath of the fires. 58 The applicant was suspected of being involved in the lighting of the fires. ACM submits it is irrelevant that he denies any involvement. It was perfectly reasonable to err on the side of caution in terms of the suspects given the expectation of further riots and protests. ACM argues that isolating the examination of particular steps taken in relation to the applicant and looking only at what negative effect that might have had on him ignores the wider duties which ACM had to the safety and good order of the facility. 59 ACM contends the applicant’s submission that ACM had no proper or reasonable grounds even to suspect him in late December 2002 and January 2003 is not consistent with legal principle and that ACM was privy to evidence or intelligence that the applicant: • had been seen with a lighter prior to the first fire; • was known to be friends with another detainee, Ghorbanali, who was suspected of lighting the fires, and/or agitating for more fires; • occupied a room immediately adjacent to the sources of the first fire, i.e., Ghorbanali’s room; • was overcome, along with Reza and Ali Namavar, by exposure to smoke, during the first fire; • had stood in solidarity with other detainees who were together threatening further fires in early January 2003; • had knowledge of the threat of further fires evidenced by his packing of a bag of personal belongings in anticipation of more fires; and • continued to associate and socialise with other detainees under suspicion, including being in a room with Ali Namavar when a lighter was discovered. 60 ACM submits that these matters in combination provided more than ample grounds for ACM to have placed the applicant in the Management Unit in early -- 26 of 647 -- [2025] SASC 59 Stanley J 23 January 2003; strip-searched the applicant as authorised by DIMIA; and placed the applicant in Blue 3 on 22 January 2003. 61 To the extent that there were occasions in 2003 when the applicant was either subjected to periods of detention in the Management Unit, or otherwise displayed behaviours not inconsistent with an emerging mental health condition, ACM submits it acted reasonably in undertaking welfare checks on the applicant from time to time, and by monitoring his mood, demeanour and general behaviour. This structure recognised that actions taken for the purpose of maintaining the safety and good order of the facility might have negative effects on detainees who therefore needed to be monitored. ACM argues that the IDS made clear that in certain circumstances, those standards directed at the quality of the detention experience would have to give way to considerations relating to the safety and good order of the facility. ACM rejects the applicant’s submission that it employed “an excessively security-driven regime”,8 rather, ACM argues it was contractually bound to ensure the safety and good order of the facility in priority to all the other considerations which were articulated in the IDS. 62 It is submitted that neither ACM nor the Commonwealth committed any breach by not having the applicant referred for a full MHA in 2003. In the alternative, if the Court considers that at some stage in 2003 a full MHA was warranted, ACM submits that, in any event, no psychiatric injury would have been revealed or diagnosed at that time. Further, ACM submits the applicant would not have willingly cooperated with such an assessment due to his suspicion of all persons associated with ACM and his stated fear that the disclosure of any mental health concerns would harm his visa prospects. 63 Even if a psychiatric injury had been identified and diagnosed, ACM submits that Baxter was not a therapeutic environment and it was not possible to effectively treat any psychiatric injury suffered by the applicant while he remained at Baxter. Further, as the applicant was suspicious and did not trust ACM’s staff, including mental health staff, it would not have been possible for any mental health professional who was perceived by the applicant to be associated with the Commonwealth or ACM to have developed a therapeutic relationship with him at Baxter. 64 ACM submits the only witness who suggested that a therapeutic relationship was possible in Baxter was Professor Jureidini and his evidence was based on a personal experience, on one occasion, with a youth at Baxter.9 ACM argues that case was materially different because unlike an ACM engaged psychiatrist, Professor Jureidini was, and would have been perceived as, a psychiatrist who was completely independent from ACM and the Commonwealth. 8 Applicant’s Written Submissions (FDN 681) at [30]. 9 T 5657.5-7. -- 27 of 647 -- [2025] SASC 59 Stanley J 24 65 ACM relies upon the evidence of psychiatrist Dr Michael Clarke to submit that to the extent the applicant had a psychiatric injury at Baxter, it was an Adjustment Disorder of the kind that fluctuated. ACM argues the fallacy in the applicant’s case is that it assumes the existence of a recognisable psychiatric injury throughout the applicant’s detention in Baxter and beyond, despite the contemporaneous evidence of his functioning and inter-personal dealings with staff and other detainees, which contradicted that assumption. 66 ACM rejects the applicant’s submission that in 2003 he had “given up” and was in the third stage of mental illness described by Dr Professor Jureidini. ACM submits that Professor Jureidini was neither independent nor credible as an expert witness and his opinions should be rejected. However, even Professor Jureidini accepted, somewhat grudgingly, that the contemporaneous documentation relating to the applicant’s observed level of functioning and inter-personal engagement, socialisation and work meant that he was not in a “given up” state in 2003 and into early 2004. 67 ACM argues that a MHA carried out in this period would not have revealed that the applicant had given up or was in the third stage.10 Rather, that the ebb and flow of his emotions in response to various events in 2003 were consistent with normal psychological reactions to such events which might include periods of sadness or depression, but which do not rise to the level of the diagnosis of a psychiatric injury. Further, even if they did, the nature of an Adjustment Disorder is that it is reactive to the relevant event and does not linger in terms of its disabling effect. 68 Dr Clarke’s diagnosis was that, if it rose to the level of a psychiatric injury, then it was one that was reactive to stressful events experienced by the applicant. These included his general unhappiness with mandatory detention; his exposure to fires; his two periods in the Management Unit; and his concerns about possible deportation, which came to a head upon the refusal of his application to the High Court. 69 ACM submits Dr Raeside recognised that the initial diagnosis which he made would not be expected to have had a lasting disabling effect. It was only after being asked to make assumptions, which ACM submits on the evidence were and are untenable, that he made a diagnosis of a more severe psychiatric injury. However, as he conceded in his evidence, if those assumptions are not borne out by the evidence, he would revert to his original diagnosis which is not materially different from that of Dr Clarke. 70 ACM submits it, in conjunction with the Commonwealth undertook various measures at Baxter which, subject to security and good order considerations, were reasonable measures to try and minimise the onset or aggravation of mental health problems. These included the provision of meaningful activities in the form of 10 In Professor Jureidini’s construct the third stage is when the patient has given up. -- 28 of 647 -- [2025] SASC 59 Stanley J 25 work opportunities; opportunities for education and recreation, subject to security and good order considerations; and the availability of counselling. Work opportunities were highly sought after as they carried with them small financial benefits. At Baxter the applicant worked in the yard and in the kitchen. He was observed to be a good worker who enjoyed his work. ACM submits the fact that the applicant did not participate in the self-paced education packs made available to him was a matter of his personal choice and ACM could not force him to participate. 71 To the extent that the Commonwealth and ACM did not conduct educational classes on mental health issues prior to October 2003, ACM submits that the applicant was unlikely to have participated in those classes and therefore, the failure to provide them therefore made no difference. 72 ACM submits the applicant’s lack of eligibility for occasional visits and activities outside of Baxter due to his security rating did not meaningfully impact on his mental health. Further, even if it did, ACM submits that the failure to provide him with excursions was not negligent. In the context of a detention environment where considerations of the security and good order of the facility are to trump other considerations, the connection between a security rating and the level of freedom enjoyed by a particular detainee by reference to it is both reasonable and understandable. 73 ACM submits that following the overdose incident in August 2003, the applicant’s observable behaviour was not consistent with a person suffering a mental illness. It contends that the evidence does not support a finding that the applicant consumed a lethal dosage of Tramadol tablets and that, in any event, he denied any suicidal intention when speaking to Ms Rarity. ACM submits that it acted reasonably in monitoring him in the aftermath of this event and that even if he had been referred for psychiatric assessment, there is no reason to think that his treatment would have been different. His subsequent level of functioning contraindicated the existence of an underlying psychiatric injury. As a result ACM contends there was no breach of duty by the Commonwealth or ACM in failing to have the applicant referred for a MHA or review by a psychiatrist at that time. 74 Further, ACM argues that if a MHA had been done at the time, it would not have revealed a recognisable psychiatric injury and that the evidence of Dr Raeside is fatal to the applicant’s case on this issue. It is reasonable to assume that if the applicant had been referred to a psychiatrist in the aftermath of the overdose he would have given an account of those events in much the same terms as he gave to ACM detention and medical staff, namely, he would have denied that it was a suicide attempt. His relatively quick recovery from the “seizure” gave clinical support that he had not ingested much medication. Dr Raeside agreed that a psychiatrist presented with that picture would have reasonably adopted an approach which kept the applicant under surveillance to see how he was functioning. The contemporaneous evidence of his level of functioning and social and work interaction in the immediate aftermath of the overdose would have -- 29 of 647 -- [2025] SASC 59 Stanley J 26 satisfied Dr Raeside that no further or more detailed investigation of his mental health was required at that time. 75 ACM submits that even if a diagnosis was made or ought to have been made at that time, no amount of counselling, reassurance or medication would have changed the applicant’s underlying unhappiness at being in detention, his lack of a visa, and his fear of deportation. The problem remained that no effective psychiatric treatment would have been able to have been provided to the applicant while he remained at Baxter. As such, even if the Commonwealth and ACM had taken additional steps to try and ameliorate the risks of the applicant developing a psychiatric injury, they were unlikely to have been effective. 76 ACM submits that from August 2003 onwards, the applicant appears to have decided to make the best of his detention circumstances and the ACM observations of him over many months were not consistent with a person suffering from a chronic and serious mental illness requiring a diagnosis of psychiatric injury and treatment or transfer to a mental health facility. 77 ACM argues the applicant’s fear of deportation would have abated in 2004 when Minister Vanstone announced that no Iranian asylum seekers would be involuntarily deported. Further, ACM submits this partly explains why it was possible for a long-term detainee such as the applicant to have had a better mental outlook thereafter, notwithstanding he remained in detention. 78 Overall, the submission made by ACM is that based on the contemporaneous observations of the applicant recorded by DSOs employed by ACM and G4S, the evidence does not support a finding that the applicant was suffering a recognisable psychiatric injury when he left Baxter in April 2005 or, in the alternative, if he was, it was due to detention itself and the associated non compensable factors. ACM submits that this conclusion finds support in the evidence of not only Dr Raeside and Dr Clarke but also in the evidence of Professor Jureidini. ACM therefore contends that the applicant’s post detention experiences and difficulties are not causally related to his time in detention. ACM’s defence to the third party claim 79 The commencement point of ACM’s defence to the third party claim by the Commonwealth is that it was not responsible for the applicant’s detention. It was not responsible for decisions made in relation to his claim for asylum. It was not responsible for the location of Curtin or Baxter and the design, physical condition and features of those detention facilities. It was not responsible for the length of time the applicant was detained. It was not responsible for the indefinite nature of the applicant’s detention and his uncertainty as to his future or his fear of forced repatriation to Iran. It was only responsible for the provision of detention services for detainees, including the applicant, in Curtin and Baxter between December 2000 and January 2004 in accordance with the IDS. -- 30 of 647 -- [2025] SASC 59 Stanley J 27 80 Detention services are defined in the detention services contract between the Commonwealth and ACM as including guarding, interpreting and translation, catering, cleaning, education, welfare, health services, escort or transport services where not otherwise provided in the contract, and any other services necessary to enable delivery of detention services in accordance with the IDS. 81 Compliance with the IDS was relevant to the payment to be made by the Commonwealth to ACM for the provision of detention services. A failure to meet the benchmarking standards prescribed by the IDS could result in a reduction in the amount due to be paid by the Commonwealth to ACM under the contract. 82 For the purposes of ACM’s defence of the third party claim it emphasises its contractual obligation not only to detain detainees who were unlawful non-citizens but to prevent them escaping from immigration detention. ACM contends this is an overriding contractual obligation relevant to meeting criticism that ACM’s approach to managing the detention centres excessively focussed on security. ACM contends that maintaining the security of the detention centres was the paramount contractual obligation imposed on it. In those circumstances ACM submits the treatment of the applicant during his time in detention until January 2004 was neither in breach of the IDS or of the duty of care ACM owed to him. 83 ACM contends that the duty of care it owed the Commonwealth was congruent with the contractual obligation to comply with the IDS. 84 ACM contends that the measure or scope of the duty of care owed by the Commonwealth to the applicant is not congruent or co-extensive with the duty of care owed by ACM to anyone.11 85 ACM contends there was no breach by it of a duty of care towards the applicant. ACM submits the duty of care in relation to the provision of adequate mental health services was met by the applicant being assessed at various times to determine whether he was at risk of suffering a psychiatric injury. ACM contends that as the relevant inquiry for the purposes of determining whether or not a breach of the duty has occurred is prospective, this approach was reasonable. 86 ACM submits that the treatment of the applicant, which he alleges constituted a breach of the duty of care owed to him by the Commonwealth, as a result of the specific actions of ACM in managing Curtin and Baxter, did not involve any breach because they were undertaken legitimately for the purposes of maintaining the security and good order of the detention centre, in accordance with the contractual obligations assumed by ACM pursuant to the detention services agreement. 87 ACM contends its treatment of the applicant was informed by an intelligence based security assessment. Such assessments not only informed decisions about where the applicant would be housed and what restrictions, if any, would be 11 Romeo v Conservation Commission NT (1998) 192 CLR 431 at 478. -- 31 of 647 -- [2025] SASC 59 Stanley J 28 imposed on his freedom of movement, but also whether he would be the subject of random searches of his room for contraband. Searches might include bodily searches as well as room searches. ACM submits this was all part of the obligation to maintain secure control of the detention centre. 88 ACM submits circumstances of legitimate heightened concern about the security and good order of the detention facilities at Curtin and Baxter lead to a conclusion that more rigorous measures to regain and maintain control of a facility were reasonable from time to time. These considerations were particularly acute following the fires at Baxter in late December 2002 and the intelligence received in January 2003 that there was a risk of further fires. 89 ACM contends there is no proper basis to find it was negligent in failing to arrange for a psychiatric assessment of the applicant upon his arrival at Baxter given the history he provided to Dr Raeside that he did not suffer any mental illness at Curtin. ACM denies it was negligent in failing to have the applicant assessed by a psychiatrist in the wake of his alleged suicide attempt in August 2003. G4S’ defence to the third party claim 90 G4S submits the applicant was detained at Baxter for 464 days during the period it was under the management and control of G4S. G4S contends that from 19 January 2004 until 9 September 2004 the applicant was housed in White 3 From 9 September 2004 to his release on 27 April 2005 he was housed in Blue 2. G4S submits that from 16 November 2004 until his release the applicant worked in the kitchen at Baxter for all but 11 days. The applicant does not allege any specific acts of mistreatment or incidents of self-harm, or time in the Management Unit or Red 1 during the G4S period. 91 G4S submits that pursuant to the contractual framework that existed between it and the Commonwealth and the presence of DIMIA employees at Baxter, the Commonwealth controlled how Baxter operated. As such, G4S submits the Court should find that it did not owe a separate duty of care to the Commonwealth outside of and inconsistent with the contractual terms which incorporated the IDS. 92 G4S contends that there is no scope for the operation of a duty of care in the relationship between it and the Commonwealth because, in accordance with the principles set out by the High Court in Brookfield Multiplex Ltd v Owners - Strata Plan No 61288,12 the nature of the relationship is governed by extensive and comprehensive contractual rights and duties. Those contractual arrangements did not alter the non-delegable duty of care the Commonwealth owed to the applicant. G4S submits that the terms of the contractual arrangements between it and the Commonwealth were not co-extensive with the Commonwealth’s duty of care to the applicant. 12 [2014] HCA 36, (2014) 254 CLR 185. -- 32 of 647 -- [2025] SASC 59 Stanley J 29 93 Further, G4S contends that its contractual obligation to indemnify the Commonwealth was not triggered as the contract provides for an exclusion of the indemnity obligation where the loss occasioned to the applicant was caused by any negligent act or omission of the Commonwealth, its employees, officers or agents, given the Commonwealth owed the applicant a non-delegable duty of care. In any event, even if the Commonwealth proves a relevant breach by G4S, it submits that the evidence does not prove any breach was causative of loss. G4S contends the evidence does not establish that any breach of the applicable standard of care caused the applicant loss, given the other aspects of detention that are not actionable against G4S such as the fact of detention, with its concomitant loss of liberty and independence; the uncertainty of the duration of detention; the anxiety and resulting uncertainty as to whether the applicant would be deported to Iran; the boredom, frustration and anger resulting from long-term indeterminate detention; and measures taken to maintain the security and good order of Baxter. If the applicant proves that he suffered a psychiatric injury, G4S denies that it resulted from the circumstances of his detention at Baxter for which it was responsible, as opposed to events that preceded and succeeded the applicant’s time in detention. 94 In any event, G4S contends that by reason of the control the Commonwealth exercised over G4S’ management of Baxter, it has either waived any claim to an indemnity or it is estopped from pursuing such a claim. G4S submits that the Commonwealth so closely monitored and supervised it that the Commonwealth cannot now allege that G4S committed a breach of contract where the Commonwealth had in place mechanisms to monitor and correct any acts or omissions on the part of G4S which otherwise might have constituted a breach of contract. Unlike G4S, the Commonwealth had full access to IHMS and PSS personnel and their records. 95 In addition, G4S submits that it cannot be liable for contribution as a joint tortfeasor where there is no evidence that the applicant suffered a psychiatric injury in the G4S period, or there is insufficient connection between any post detention mental illness suffered by the applicant and his time in detention during the G4S period. 96 G4S denies that the applicant was suffering from a recognisable psychiatric injury during the period from 19 January 2004 until his release on 27 April 2005. G4S submits that this is supported by the evidence of the general practitioner, Dr Shroff, who treated him during that period and detected no emotional or mental abnormality. In addition, G4S contends the evidence of contemporaneous records presents a portrait of the applicant functioning as well as could be expected in the context of long-term detention. He was working, socialising and making efforts to maintain his health and physical appearance to find some purpose in his existence at Baxter. G4S submits the evidence does not support a finding that he was suffering a psychiatric injury at the time. Accordingly, G4S alleges that it is irrelevant whether the Court concludes that generally there should have been more -- 33 of 647 -- [2025] SASC 59 Stanley J 30 mental health nurses working at Baxter or attendances upon the applicant by a psychiatrist, during this period. 97 G4S denies there was any breach of contract on its part by reason of a failure to provide a greater level of psychiatric services to the applicant. G4S contends that the applicant’s presentation during its period of operation gave no indication that he was in need of mental health treatment. Therefore, the adequacy of the rates of attendance by Dr Frukacz is irrelevant as even if Dr Frukacz had attended more frequently, this would not have resulted in any additional psychiatric treatment of the applicant. ACM submits that the frequency of attendance at Baxter by the medical subcontractors IHMS and PSS was a matter for them rather than being dictated by G4S. 98 G4S contends that the failure to refer the applicant to a psychiatrist was not a breach of the IDS or the contract. Accordingly, it has not been proved that the applicant was denied access to necessary psychiatric care. The fact the applicant did not receive any psychiatric treatment during the G4S period was not because he was denied access to such treatment but because he gave no signs of requiring it. G4S submits there is no evidence that he asked for a referral to a psychiatrist notwithstanding being seen by general practitioners and nurses during the G4S period. 99 G4S’ case is that any failure to provide additional mental health care at Baxter during the G4S period did not cause any loss or damage to the applicant. Furthermore, they contend that any failure in that regard lies at the feet of the Commonwealth who were put on notice by G4S as early as October 2003, before it took over the management of Baxter from ACM, that additional mental health funding was required to meet the psychiatric needs of the detainee population at Baxter. G4S submit this had not occurred by the time the applicant was released in April 2005. 100 Overall, G4S contends that the applicant did not suffer the onset of psychiatric injury prior to the G4S period, nor did he suffer the onset of psychiatric injury during the G4S period. In the alternative, G4S submits if the applicant did have a psychiatric injury before the G4S period, it was not exacerbated by anything G4S did or failed to do. Further, if subsequent to the applicant’s release from detention, he suffered from a recognisable psychiatric injury, it was not caused by any act or omission by G4S during its period of operation at Baxter. Rather, it submits that the cause of such psychiatric injury was the mere fact of the applicant’s detention, the location of Baxter, the indeterminate nature of immigration detention, the time taken to determine the applicant’s claim for asylum, the rejection of his claim for asylum and the threat of deportation to Iran. These matters were the responsibility of the Commonwealth. It is for the Court to determine whether that amounted to a breach of the Commonwealth’s non- delegable duty of care to the applicant. -- 34 of 647 -- [2025] SASC 59 Stanley J 31 101 G4S submits that any mental illness suffered by the applicant subsequent to his release from detention was more likely to have been contracted after he left detention. G4S contends that the evidence is that the applicant did not feel the need to seek psychiatric help for three and a half years after his release and he told Dr Schirripa his first two years after release were free of problems until he developed an addiction to Tramadol and OxyContin. G4S contends this occurred prior to any complaint of mental ill health. 102 G4S further submits that there is no evidence of economic loss suffered by the applicant as a result of any recognisable psychiatric injury he is found to have suffered. Even if the Court is satisfied that the applicant suffered a mental illness post detention, any claim for damages for economic loss, like a claim for damages for non-economic loss, depends upon proof of causation. In G4S’ submission, evidence of causation has not been established. ISSUES FOR DETERMINATION IN THE PRIMARY ACTION 103 In these proceedings the following matters arise for consideration in the primary action: • Whether the applicant developed a recognisable psychiatric injury, or a vulnerability to developing a psychiatric injury, at Curtin? If so, what caused that injury? • Whether the Commonwealth, in discharge of its non-delegable duty of care, ought to have detected the injury at Curtin? • If no recognisable psychiatric injury was reasonably detectable at Curtin, what steps, if any, should the Commonwealth have taken to assess the applicant’s mental health upon his arrival at Baxter? • Was the applicant suffering from a recognisable psychiatric injury at the time of his transfer to Baxter? • Did the Commonwealth breach its duty of care to the applicant by its agents, ACM, undertaking a mental health screen rather than a full MHA upon his transfer from Curtin to Baxter? • If so, what loss or damage, if any, did that breach cause; in particular, would a full MHA undertaken at that time by a reasonably competent psychiatrist have revealed the presence of a recognisable psychiatric injury in the applicant? • If the applicant did have a recognisable psychiatric injury on arrival at Baxter or developed one during his time at Baxter, what was the nature and extent of that recognisable psychiatric injury? -- 35 of 647 -- [2025] SASC 59 Stanley J 32 • On the assumption that the contemporaneous documentary evidence of the applicant’s level of activity and social and work interactions was the information which a reasonably competent psychiatrist would have elicited had such a person seen the applicant at Baxter, would such recognisable psychiatric injury have been likely to have been detected and diagnosed? • What intervention, referral, treatment or other steps, if any, should the Commonwealth, by its agents ACM and G4S, have taken in relation to the applicant given the nature of his presentation from time to time in Baxter? • Were there other occasions during the applicant’s stay at Baxter when the mental health of the applicant should have been fully assessed by either a mental health nurse, a psychologist or a psychiatrist? • If such assessment, or assessments, had been undertaken by a mental health nurse, psychologist or psychiatrist, would the applicant have utilised such an opportunity to communicate openly about his mental health? • Should the Court accept the evidence given by the applicant at trial as to the condition of his mental health during his time in Baxter? • If the Court accepts the evidence given by the applicant about how he felt at Baxter, is it likely he would have told a mental health nurse, psychologist or psychiatrist about this if they had interviewed him while he was at Baxter? • If the applicant had been prepared to communicate openly with health professionals, would the applicant have been diagnosed with a recognisable psychiatric injury during that time? • If the applicant did suffer a recognisable psychiatric injury which remained undetected and undiagnosed during that period, but which ought to have been detected, was that injury capable of being effectively treated while the applicant remained at Baxter? • Did any failure to provide the applicant with mental health treatment, cause him any loss or damage? • If a competent psychiatrist would not have found that the applicant was suffering from a recognisable psychiatric injury upon his arrival at Baxter, and would not have found that the applicant was suffering such an injury despite having endured some especially stressful events and circumstances in 2003, what steps, if any, should the Commonwealth have taken to attempt to minimize the risk of the applicant developing -- 36 of 647 -- [2025] SASC 59 Stanley J 33 a psychiatric injury at Baxter? Would any such steps have made a real difference to the applicant’s state of mental health, or have prevented the development of a recognisable psychiatric injury? • During the period of the applicant’s detention at Baxter was it reasonable to prioritise and implement security measures designed to maintain the good order and security of Baxter, even if those measures had the potential to impact adversely on the mental health of the applicant? • If a recognisable psychiatric injury was suffered by the applicant at Baxter: - When did it first develop? - At what point, if any, would a psychiatric assessment of the applicant have revealed the injury? - Why did it develop? In particular: o was the injury wholly or predominantly attributed to the effects of mandatory detention and the uncertainty associated with it? o was the injury caused by particular conditions of detention or events experienced by the applicant at Baxter, and if so, what events? If so, did the Commonwealth breach its non- delegable duty of care by exposing the applicant to a higher degree of security and more restrictive conditions? - Was any psychiatric injury capable of being effectively treated while the applicant remained at Baxter? - What was the precise nature of the applicant’s injury at Baxter, and did it persist throughout his entire period of detention and thereafter, or did it ebb and flow depending upon his conditions of detention from time to time and the nature of the stressors being experienced by the applicant from time to time? • Was the applicant’s subsequent OxyContin addiction caused by any breach of duty by the Commonwealth? • Do the mental health stressors experienced by the applicant post detention cause or explain his post detention experience and behaviours? -- 37 of 647 -- [2025] SASC 59 Stanley J 34 PRELIMINARY EVIDENCE ISSUES Evidence admitted de bene esse Exhibit A109 104 I admitted Exhibit A109 de bene esse over an objection on the ground of relevance. Exhibit A109 was a document produced by the Immigration Detention Advisory Group (IDAG) as a response to a report of a joint standing committee of the Parliament. It was admitted subject to the applicant establishing that the IDAG response to the recommendations of the joint standing committee was sent to DIMIA or the Minister. That was established through the evidence of Mr Minas.13 Accordingly, I admit Exhibit A109. Epidemiological analysis – long-term detainees 105 Dr Schirripa was a psychiatrist called by the Commonwealth. In cross- examination by the applicant he was asked about an article by Green and Eagar. The article was based on a study of immigration detainees in a period subsequent to the applicant’s detention. It was put to him that the article established that there was evidence that long-term detainees were more vulnerable to mental illness and that the Court could use this evidence as a basis to find that the applicant suffered psychiatric injury and that it was caused by his detention. I admitted the evidence de bene esse in the face of objections by the Commonwealth and the third parties as to its relevance.14 Having considered the matter I would not admit the evidence given by Dr Schirripa in cross-examination based on the contents of the article by Green and Eagar. 106 In my view it is not open to the applicant to prove that he suffered a psychiatric injury by reference to some epidemiological analysis which suggests that the longer a person has spent in detention the more vulnerable they became to suffering mental illness. That methodology is not available as proof that the applicant himself, suffered psychiatric injury or that it was caused by the conditions of his detention. A claim in negligence is a personal claim. It requires proof, in this case, that the applicant actually suffered a recognisable psychiatric injury. That statistically he may have been part of a class that was more vulnerable than the Australian community to suffering mental illness cannot prove that he, in fact, suffered a psychiatric injury or, if he did, its cause. Golden Rules Card 107 Mr Burns was the ACM general manager at Baxter. He gave evidence that he recalled DSOs at Baxter were provided with a laminated card which described features in the presentation of detainees for which DSOs should keep a look out. It was referred to by Mr Burns in his evidence as the “golden rules card”. He gave evidence that the same or a similar card had been used at two other detention facilities where he had worked. Objection was taken to the relevance of the 13 T 4057.1-27. 14 T 7012-7019. -- 38 of 647 -- [2025] SASC 59 Stanley J 35 document and the basis upon which ACM sought to prove its contents. I admitted the evidence de bene esse. Having considered the matter I would exclude Mr Burns’ evidence on this topic. While I am satisfied as to its relevance, the card was not tendered in evidence and evidence of its contents was sought to be adduced by the hearsay evidence of Mr Burns. I do not consider that this evidence fell into any of the recognised exceptions to the hearsay rule. Foundational proposition 108 In Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs15 Gleeson CJ, in analysing the nature of the power to detain unlawful non-citizens under the Migration Act, held that the power to detain under the Migration Act is an exercise of the executive rather than the judicial power. It is not punitive. This stands in contrast to the position in relation to citizens. The Commonwealth is authorised to detain an unlawful non-citizen in custody in the context and for the purposes of executive powers to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport them. An unlawful non-citizen does not have a right without permission to enter Australia or to become part of the community. The unlawful non-citizen’s vulnerability to exclusion and deportation alters the nature of the detention when it is for this purpose. It is an incident of the executive power to exclude people who have no right to enter Australia, to process their applications for permission to enter, and to deport them if their applications fail.16 109 Gleeson CJ said that whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty. However, harsh conditions of detention may violate the civil rights of an unlawful non-citizen. They do not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution or an action claiming damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable to the detainee in tort for any resulting injury.17 110 It was not in issue that the Commonwealth, in detaining the applicant under the Migration Act at Baxter or, for that matter at Curtin, cannot be liable in negligence for any psychiatric injury suffered by him as a result of the fact of his detention; the length of his detention; the indefinite nature of his detention;18 the rejection of his visa application and subsequent appeals; the risk that he could be deported at any time during the period of his detention; and the effect on him of witnessing other detainees being detained and deported. 15 [2004] HCA 36, (2004) 219 CLR 486. 16 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [20], (2004) 219 CLR 486 at 498-499. 17 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [21], (2004) 219 CLR 486 at 499. 18 But, see postscript re NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, (2023) 97 ALJR 1005. -- 39 of 647 -- [2025] SASC 59 Stanley J 36 111 However, the applicant sought to circumvent this difficulty, in part, by contending that the Commonwealth breached its duty of care to him in failing to provide him with counselling when he was being informed of the outcome of his appeals. Justiciability and coherence 112 The Commonwealth denies that it is liable in tort to the applicant by reason of the non-justiciability of core policy decisions made by the Commonwealth and the inconsistency in the applicant’s case with the terms of the Migration Act which gives rise to incoherence in the law. 113 The Commonwealth submits that in the context of what has been described as the core policy/operational dichotomy, the relevant distinction is between decisions made by DIMIA constituting core policy decisions which are non- justiciable and the operational conduct of the third parties in implementing those decisions which are justiciable. 114 The Commonwealth submits that the establishment of detention centres, decisions concerning the location of detention centres, and policy decisions determining the environment and form of such facilities, are part of the statutory scheme established by the Migration Act and are rendered immune from a finding of liability in tort because a duty of care cannot arise in relation to acts and omissions which reflect the policy making and discretionary elements involved in the exercise of statutory discretions.19 In the same vein the Commonwealth submits that the design, construction, location and furnishment of detention centres pursuant to the Migration Act involve the Commonwealth exercising its powers to make and implement core policy in relation to immigration detention. A central feature of policy making implementation in this area concerns the level of security maintained at Baxter. The Commonwealth submits that the terms of the Migration Act and the core policy considerations involved in applying it means it cannot be held liable in tort on account of the level of security adopted at Baxter. 115 The law recognises that there are acts and omissions of public authorities for which they cannot be held liable in tort. This is reflected in the operational/policy dichotomy whereby decisions of the former kind can give rise to a liability in tort but decisions of the latter kind cannot. The distinction was recognised in Council of the Shire of Sutherland v Heyman.20 As Allsop CJ in Minister for the Environment (Cth) v Sharma noted, the utility of the dichotomy has been questioned, sometimes generally and sometimes for the resolution of a particular case, not only because the difference in character of, or the boundary between, the two concepts can be elusive, but also because operational decisions may sometimes be based on policy.21 As Gleeson CJ explained in Graham Barclay Oysters Pty Ltd v Ryan (Graham Barclay Oysters), one of the difficulties which 19 Council of the Shire of Sutherland v Heyman [1985] HCA 41, (1985) 157 CLR 424 at 468. 20 [1985] HCA 41, (1985) 157 CLR 424 at 469. 21 [2022] FCAFC 35 at [235], (2022) 291 FCR 311 at 389. -- 40 of 647 -- [2025] SASC 59 Stanley J 37 renders policy decisions inappropriate as subjects of curial judgment about reasonableness is that they involve competing public interests in circumstances where there is no criterion by which a court can assess where the balance lies between the weight to be given to one interest and that to be given to another.22 However, these difficulties do not deny that there will be, in some decisions of a public authority, factors that make the law of negligence an inapposite or unsuitable vehicle for examining the choices and judgments involved. 116 As Allsop CJ went on to observe in Sharma:23 It must be recognised that the field of matters not amenable to the imposition of the duty of care at common law for such reasons is narrow. Further, it is not a question of labels. It would be a false syllogism to say or incant: there can be no duty of care as to policy (as distinct from operations), this is policy, therefore there is no duty. The proper approach is not taxonomy or definition or labels, but to recognise that some questions of decision- making are not a legitimate or apposite or appropriate subject of curial judgement, such as where there is no criterion by reference to which a court can determine the reasonableness of the conduct. This may involve policy-making, or quasi-legislative or regulatory power. The question is the suitability of the task for judicial determination by reference to a legal standard. The question is not definitional; it is a question of institutional inappropriateness or unsuitability. [citations omitted]. 117 In this case the difficulty for the Commonwealth’s submission is that the issue of justiciability arises as a threshold question to the determination of the existence of a duty of care. However, the Commonwealth has admitted it owed a non-delegable duty to take reasonable care of the applicant while he was in immigration detention.24 That was a duty to take reasonable care for his safety while in detention, including by providing for his medical care in detention. 118 The Commonwealth riposte to the applicant’s reliance upon its admission that it owed a duty of care to him is twofold. First, that accepting the existence of a duty to take reasonable care for his safety in detention, which was non-delegable, the assessment of reasonable care must occur in the context of the need for compliance with the statutory requirements of immigration detention.25 Second, the Commonwealth seeks to circumvent this difficulty by contending that the policy/operational function distinction works as well on the question of breach.26 119 While questions of policy, unsuitability for judicial determination, incoherence and inconsistency are separate considerations to a degree they are inter-related and intertwined.27 22 [2002] HCA 54 at [13], (2002) 211 CLR 540 at 557. 23 [2022] FCAFC 35 at [237], (2022) 291 FCR 311 at 391. 24 Commonwealth Defence – Revision 4 (FDN 555) at [5.6]. 25 SBEG v Commonwealth [2012] FCAFC 189 at [69], (2012) 208 FCR 235 at 251. 26 Roo Roofing Pty Ltd v Commonwealth of Australia [2019] VSC 331 at [475]. 27 Minister for the Environment v Sharma [2022] FCAFC 35 at [233], (2022) 291 FCR 311 at 389. -- 41 of 647 -- [2025] SASC 59 Stanley J 38 120 In Graham Barclay Oysters Kirby J said that any duty of a public authority at common law must be compatible with the legislative powers conferred, and duties imposed, on that authority. It must conform to the apparent purpose of the legislature relating to the authority carrying out its duties according to statute.28 Coherence is to be judged not only by reference to the statute providing for the decision in question, but also by reference to the legal context in which the statute sits, including the basic values which the law promotes or protects, and the law of negligence and the fundamental values therein such as neighbourhood, reasonableness and incrementalism.29 121 The Commonwealth submits that the extent of the duty of care it admits it owes the applicant is restricted by the statutory scheme in which officers and agents of the executive are required to act. As a result, the Commonwealth cannot be liable in tort for the fact of the applicant’s detention, the place at which he was detained, the duration of his detention, and the form, character and environment of his detention. 122 The applicant concedes that the Commonwealth is not liable to him in negligence for the fact of his detention or its duration. However, the applicant alleges that the Commonwealth is liable to him in tort for the place of his detention and its design, and the conditions under which he was detained, i.e., what the Commonwealth describes as the form, character and environment of his detention. 123 What is meant by the form, character and environment of his detention is somewhat opaque. However, as the Commonwealth developed this submission, it appears that the effect of its submission concerned the consequences of the mandatory statutory obligation found in the Migration Act that an unlawful non- citizen is required to be detained in a place of detention, as defined. Necessarily that involves an involuntary deprivation of liberty. Immigration detention restricts the right to freedom of movement, and inflicts a loss of personal liberty and privacy, as well as, in some cases, the loss of a supportive family. These are the usual incidents of detention under the Migration Act.30 It submits that issues as to the form of detention are concerned with the standard of care rather than the existence of a duty. The assessment of the standard of reasonable care occurs in the context of the need for compliance with the statutory requirements of the Migration Act.31 The Commonwealth submits it was not under any obligation to exercise its statutory power to customise the conditions of detention in order to prevent psychological injury being suffered by an individual detainee. Further, the Commonwealth submits it was not under a duty to avoid detention having the characteristics of an environment of incarceration. 124 The applicant submits the authorities are confined to a consideration of whether the Commonwealth’s decisions were valid or invalid. Yet the 28 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 at [213], (2002) 211 CLR 540 at 617. 29 Minister for the Environment v Sharma [2022] FCAFC 35 at [245], (2022) 291 FCR 311 at 392. 30 SBEG v The Commonwealth [2012] FCAFC 189 at [54]-[56], (2012) 208 FCR 235 at 248-249. 31 SBEG v The Commonwealth [2012] FCAFC 189 at [69], (2012) 208 FCR 235 at 251. -- 42 of 647 -- [2025] SASC 59 Stanley J 39 Commonwealth submits it is fundamental that, to the extent the applicant was detained as the Migration Act required, or in the valid exercise of an administrative power, the Commonwealth’s conduct in detaining him cannot give rise to a liability in tort.32 The nature of his detention was established by the provisions of the Migration Act pursuant to which, and for the purpose of which, his detention was required.33 However, the Migration Act operates against the fabric of the common law pursuant to which remedies are available to redress issues relating to conditions of detention and treatment of detainees to the extent to which they are not inconsistent with the Migration Act.34 The Migration Act is generally silent concerning the conditions of detention.35 In particular, nothing is said in the Migration Act specifically about the minimum conditions that must be observed for detainees. The absence of a statutory elaboration of the conditions within a detention centre does not mean there are no standards which the law will uphold. That is where there is room for the operation of the common law of negligence, so long as the law of negligence is not inconsistent with the provisions of the Migration Act, whether express or implied.36 But the applicant does not assert he has an action in negligence for having been detained. His claim is that the Commonwealth is liable to him in negligence for the pure psychiatric injury he suffered as a result of the conditions under which he was detained at Baxter and, the failure to treat him for this injury while in detention. If those who managed or operated Baxter on behalf of the Commonwealth failed to comply with their duty of care, the Commonwealth may be liable in tort.37 125 The applicant submits that the Commonwealth is seeking to resile from its admission that it owed a non-delegable duty of care to the applicant. He submits that the Commonwealth should not be allowed to withdraw its formal admission of an unqualified duty of care. 126 I do not accept this submission. I do not understand the Commonwealth’s submission to amount to a withdrawal of its admission that it owed the applicant a non-delegable duty to take reasonable care for his safety while in detention. The Commonwealth contends that admission merely begs the question of the extent of that duty and whether some aspects of the applicant’s case allege a basis for liability in tort that is non-justiciable or inconsistent with the Migration Act. That submission is not inconsistent with the admission by the Commonwealth that it owed a non-delegable duty of care to the applicant while he was in detention. 32 Northern Territory v Mengel (1995) 185 CLR 307 at 356. 33 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [22], (2004) 219 CLR 486 at 500. 34 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [51], (2004) 219 CLR 486 at 507. 35 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93 at [8], (2004) 259 FCR 576 at 578. 36 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [81]-[82], (2004) 219 CLR 486 at 514-515. 37 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [21], (2004) 219 CLR 486 at 499. -- 43 of 647 -- [2025] SASC 59 Stanley J 40 127 It is convenient to address the Commonwealth’s submission in relation to each matter discretely, commencing with consideration of the Commonwealth’s case in relation to the place of detention. Place of detention is justiciable 128 In S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs38 (S v Secretary) Finn J, while not expressing a concluded view as to the Commonwealth’s decision to establish and maintain Baxter in a relatively isolated part of Australia, considered that decision raised the issue potentially of whether in so doing it could itself affect the standard of healthcare services the Commonwealth was obliged to provide. However, his Honour went on to say that having made its choice of location, the Commonwealth, not detainees, should bear the consequences of it insofar as that choice affected or compromised the medical services that could be made available to meet the known needs of detainees. 129 While it appears that no submission was put to Finn J in S v Secretary that the Commonwealth could not be held liable in tort for any loss suffered by the detainees as a result of the place at which they were detained, I do not consider that the Commonwealth’s liability, if any, to the applicant for psychiatric injury he suffered as a result of him being detained at the relatively remote location at Baxter is non-justiciable. Both the decision to construct an immigration detention centre at Baxter and the decision to detain the applicant at Baxter had consequences for the availability and provision of health services to the applicant, including, in particular, mental health services and treatment. The Commonwealth need not have established an Immigration Reception and Processing Centre at Baxter. The Commonwealth had established immigration detention centres in metropolitan areas of Australia, namely, Perth, Melbourne (Maribyrnong) and Sydney (Villawood). 130 The Commonwealth cites in support of its submission a passage from the reasons for judgment of Callinan J in Minister for Immigration and Multicultural and Indigenous Affairs v B (MIMIA v B), that the Migration Act confers upon officials administering the Act the duty to decide where a detainee resides, which is an administrative decision likely to be affected by considerations of policy to the extent that discretions have to be exercised, and with respect to priorities of allocation of public resources.39 However, his Honour’s reasons do not support the Commonwealth’s submission that its decisions as to the location of immigration detention centres are non-justiciable. Immediately before the passage cited from his Honour’s reasons, Callinan J said:40 The appellant and the Attorney-General of the Commonwealth accept that detention under the Migration Act is subject to the general law and in that sense to the supervision of the 38 [2005] FCA 549 at [213], (2005) 143 FCR 217 at 263. 39 [2004] HCA 20 at [218], (2004) 219 CLR 365 at 440. 40 Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 at [218], (2004) 219 CLR 365 at 440. -- 44 of 647 -- [2025] SASC 59 Stanley J 41 courts. Officials administering the Migration Act may, for example, be liable criminally or in tort. 131 Nothing else in his Honour’s reasons provides support for that proposition. Further, there is nothing in the reasons of the other judges in MIMIA v B which would lend support to that conclusion. 132 While s 273 of the Migration Act confers power upon the Minister to determine the places at which a person in immigration detention is to be detained, that does not make it inappropriate for curial judgment. As Allsop CJ noted in Sharma41 following the reasons of the High Court in Crimmins v Stevedoring Industry Finance Committee42 (Crimmins), the field of matters not amenable to the imposition of the duty of care at common law for such reasons is narrow. 133 The Commonwealth sought to rely upon VLAH v Minister for Immigration and Multicultural and Indigenous Affairs (VLAH)43 where Ryan J said that the flexibility in the selection of a mode and place of detention found in the statutory definitions of “detain” and “immigration detention” did not, by implication, restrict the Minister’s choice in a particular case or impose any statutory duty to consider alternative modes of detention. Accepting the correctness of that statement of the effect of the Migration Act does not support the Commonwealth’s contention that the Minister’s decision to establish a detention centre at Baxter is non-justiciable or immune from liability in tort because of any inconsistency with the terms of the Migration Act. The reasons of Ryan J go no further than to explain that the terms of the Migration Act afford a wide discretion to the Minister in the selection of a place of detention and do not restrict the Minister’s choice in a particular case. However, recognising the wide discretion conferred on the Minister as to the location of a detention centre does not exclude consideration by the Court of a claim that the location chosen by the Minister had consequences for the observance by the Commonwealth of the duty of care it owed to detainees. Neither does it create inconsistency between the existence of the admitted duty of care owed by the Commonwealth in this case and the Minister’s statutory right to establish a detention centre in a location which is considered appropriate. 134 In Graham v Minister for Immigration and Border Protection Tracey J, approving the reasoning in VLAH, held that decisions as to the place of detention are not immune from judicial review.44 That conclusion was subsequently approved by Robertson J in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2).45 In my view, where decisions as to the place of detention are not immune from judicial review, there is no sound 41 [2022] FCAFC 35 at [237], (2022) 291 FCR 311 at 391. 42 [1999] HCA 59 at [87], (1999) 200 CLR 1 at 37. 43 [2002] FCA 1554 at [10]. 44 [2018] FCA 1012 at [129], (2018) 265 FCR 634 at 662. 45 [2019] FCA 1520 at [140]. -- 45 of 647 -- [2025] SASC 59 Stanley J 42 basis for concluding that they are non-justiciable or give rise to an incoherence with the terms of the Migration Act. 135 There can be no question that the Minister’s decision to locate Baxter in regional South Australia had resource allocation implications for the Commonwealth government, although that could not be said, in any substantial way, for the decision to detain the applicant there. The fact that the establishment of a detention centre required the expenditure of very considerable public funds is not necessarily a basis to render the consequences of that decision for the applicant non-justiciable. I do not accept that the location of detention centres is a matter of core policy. The statutory provision that requires unlawful non-citizens to be detained in a detention centre once they have entered Australia is a matter of high public policy. The adoption of the system of mandatory detention by the Commonwealth Parliament is non-justiciable. The location of detention centres for that purpose is merely an example of the operational implementation of that policy. 136 Accordingly, I reject the Commonwealth’s submission that its decisions to locate an immigration detention centre at Baxter and to detain the applicant there are non-justiciable or give rise to an inconsistency with the Migration Act so as to render those decisions immune from an action in negligence. Form, character and environment of applicant’s detention is justiciable 137 I turn to the Commonwealth’s case in relation to the form, character and environment of the applicant’s detention. Again, the Commonwealth submits that it cannot be liable in tort to the applicant for psychiatric injury he suffered due to these matters. It submits that decisions in relation to these matters are non- justiciable or so inconsistent with the terms and scheme of the Migration Act such that existence of a duty of care concerning decisions relating to these matters would create incoherence in the law. 138 The applicant submits that all of the conditions of detention, including the design of Baxter, were the result of operational decisions as opposed to core policy decisions. Further, he submits that the terms of the Migration Act oblige the Commonwealth to ensure that reasonable care is taken for the safety of detainees and to devote adequate resources to fulfill this duty. The applicant submits that the existence of a common law duty of care is consistent with and complementary to the performance by the Commonwealth of its statutory functions under the Migration Act.46 139 The applicant pleads a two-limbed case: a failure to treat case and a form of detention case. It is the latter case which the Commonwealth submits is non- justiciable. It submits that policy decisions determining the environment and form 46 MZYYR v Secretary, Department of Immigration and Citizenship & The Commonwealth of Australia [2012] FCA 694 at [55], (2012) 292 ALR 659 at 671. -- 46 of 647 -- [2025] SASC 59 Stanley J 43 of Baxter are part of the statutory scheme established by the Migration Act and rendered immune from a finding of liability in negligence. 140 I do not accept this submission. 141 It can be accepted that the design, construction, location and furnishment of Baxter occurred pursuant to s 273 of the Migration Act. It can also be accepted that those matters were intended to provide for the control, care and security of detainees in Baxter. The Migration Act requires unlawful non-citizens who enter Australia to be detained until they are either granted a visa or deported, or leave the country voluntarily.47 However, as was observed in Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (Mastipour)48 by Selway J, with whom Finn J agreed, the pleadings in that case identified a number of issues concerning the powers of detention centre staff in relation to detainees. The conferral of those powers did not mean that the Commonwealth could not be liable in negligence for the performance of them. Nevertheless, the Migration Act may well be critical in determining the extent of the duty of care, if any, owed by the Commonwealth to detainees. However, it is unlikely that a common law duty of care would or could be imposed which is contrary to a statutory duty or even a clear statutory power. Neither the Migration Act nor the regulations made thereunder impose any conditions on the exercise of the conferred power. Selway J said that the absence of a detailed regulatory regime against which to consider a duty of care owed by the Commonwealth provides no obvious reason for limiting the common law duty of care by reason of some inferred power or duty of the Commonwealth. Despite the duty and power of the Commonwealth to detain, Selway J emphasised that a detainee retains all of his or her civil rights other than those that are only available to a citizen or those taken away by law either expressly or by necessary implication.49 142 In these circumstances, decisions by the Commonwealth as to the design and construction of Baxter were intended to effect the detention of detainees, including the applicant, consistent with the common law duty admitted by the Commonwealth. Again, these decisions are to be characterised as operational rather than matters of core policy. Matter of design and construction of Baxter involve the implementation of decisions to adopt a policy of mandatory detention. In a similar way, decisions to place the applicant in the Management Unit at Baxter should be characterised as operational. There is nothing inappropriate about curial consideration of whether those decisions breached the admitted duty of care. The Court is capable of assessing whether the environment and form of Baxter, informed by security considerations, breached the admitted duty of care. That is a balancing exercise with which the Court is very familiar. The touchstone is reasonableness. 47 Migration Act 1958 (Cth) s 196. 48 [2004] FCAFC 93, (2004) 259 FCR 576. 49 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93 at [12]-[14], (2004) 259 FCR 576 at 579. -- 47 of 647 -- [2025] SASC 59 Stanley J 44 143 Likewise, it is at least arguable that there is nothing inconsistent between the existence of the duty of care and the provisions of the Migration Act. As Gordon J said in MZYYR v Secretary, Department of Immigration and Citizenship (MZYYR),50 albeit in the context of an application for an interlocutory injunction, the imposition of an affirmative common law duty of care is consistent with and complementary to the performance of the Commonwealth’s statutory function pursuant to the Migration Act. However, Gordon J left open the question of whether the imposition of a duty of care is inconsistent with the statutory scheme. The authorities do not expressly provide otherwise. Decisions to release persons other than the applicant are non-justiciable 144 A discrete question arises in this case in relation to decisions made by the Commonwealth to release from detention persons, other than the applicant, detained under the Migration Act where it is alleged that the applicant suffered psychiatric injury as a result. For reasons which I will explain, such decisions are dictated by the legislation and to that extent are non-justiciable. Assessment of the evidence 145 Considerable caution must be exercised in relying upon the evidence of witnesses to events that occurred decades ago. Evidence as to verbal statements allegedly made by a person many years earlier, in the absence of corroborative evidence, is evidence that demands the exercise of caution in making findings of fact. 146 The reasons for that include the possibility of faulty recollection and/or fading memory for detail with the passage of time, and whether the witness giving evidence of past events or conversations has a particular cause or interest to advance. 147 The critical events in relation to the conditions under which the applicant was detained at Curtin and Baxter occurred approximately 20 years before the relevant witnesses gave evidence. When assessing the credibility and reliability of the various witnesses who gave evidence as to conversations, events and conditions at those immigration detention centres it is necessary to bear in mind that they have been required to recall events which occurred a long time ago and which they would not, at the time they occurred, have anticipated they would have to recall at all, let alone many years later in the context of legal proceedings. Actual memory and reconstruction can be interchanged. Memory may be genuinely inaccurate. The applicant and other witnesses gave evidence for lengthy periods and while under pressure to remember those events. The evidence of these witnesses must be approached with caution. However, the frailty of memory which may be inaccurate is not necessarily to be equated with a lack of honesty. Necessarily, caution must be exercised in reaching conclusions about particular events which are alleged to have occurred during the period of approximately four-and-a-half 50 [2012] FCA 694 at [55], (2012) 292 ALR 659 at 671. -- 48 of 647 -- [2025] SASC 59 Stanley J 45 years the applicant was in detention. Caution must also be exercised in reaching conclusions about each witness called to give evidence of events they witnessed and conditions they observed, making allowance for these matters and after considering their evidence in the context of all the evidence, both oral and documentary. Given these difficulties, the Court relies upon evidence of contemporaneous documents which in many instances may be a more reliable guide to what occurred so many years ago. In this regard the Court has the benefit of voluminous documents made by officers and employees of the Commonwealth and the third parties. They provide contemporaneous evidence of many, if not most, of the significant events with which this litigation is concerned. They provide an invaluable body of evidence upon which the Court can make findings of fact. That is not to say that I have universally accepted documentary evidence over the oral evidence of the relevant witnesses to events occurring during the time of the applicant’s detention. However, I have recognised the likelihood that in most instances the evidence of contemporaneous documents is a more reliable guide to making findings of fact. While the evidence of documentary records is not without its difficulties as to the reliability of any fact evidenced by a particular document, they do not suffer from the deterioration of memory that afflicts oral evidence given decades after the relevant event. 148 I am also conscious that the applicant alleges misconduct on the part of ACM, G4S and DIMIA personnel. I accept the possibility that in many instances it may be that those personnel deliberately refrained from making a documentary record of events that would reflect badly on them. However, I am generally prepared to rely upon the accuracy of the vast majority of those records. I will return to this. Delay impoverishes the evidence 149 I accept the difficulty in relying on the applicant’s evidence so long after the events the subject of his evidence. A psychiatrist is heavily reliant on the history provided by a patient. Over time a patient’s ability to accurately describe a previous mental state can diminish and be distorted, with the account becoming less reliable with the effluxion of time. This problem affected not only the applicant’s evidence but the evidence of the other detainees and health centre staff. 150 In Abdulla v Birmingham City Council51 Lord Sumption observed that delay impoverishes the evidence available to determine a claim. In Brisbane South Regional Health Authority v Taylor (Taylor)52 in a passage recently approved by the majority of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore53 McHugh J said, in the context of considering the underlying purpose of limitation periods: The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document 51 [2012] UKSC 47 at [41], (2013) 1 All ER 649 at 666. 52 [1996] HCA 25, (1996) 186 CLR 541 at 551. 53 [2023] HCA 32 at [46]. -- 49 of 647 -- [2025] SASC 59 Stanley J 46 has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody even realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly it must often happen that time will diminish the significance of a known fact or a circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may well appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay … the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. [citations omitted]. 151 Those concerns apply equally to the Court’s ability to reach a just verdict where the effluxion of a very lengthy period of time can corrode memory and increase the risk that evidence given based on recollection only, many years later, may be flawed. It follows that this can occur without the flaw being recognised. No systems case pleaded 152 The applicant claimed from time to time he was conducting a “systems case”. This was a submission I repeatedly rejected during the course of the trial.54 A systems case was not pleaded, or at least was not pleaded after the fourth Statement of Claim. 153 The only case that the Court can try is that pleaded by the applicant. That requires consideration of the pleadings in their final form, the Eighth Statement of Claim (8ASoC). The plea in sub-paragraph 26.6 alleges in part, the content of a duty of care owed by the Commonwealth to the applicant. The plea alleges a duty of care on the part of the Commonwealth to devise and implement systems for the management of detainees so as to minimise the risk of injury to the plaintiff [sic]. The pleas in sub-paragraphs 30.3, 30.9.1 and 31.3.8 are pleas of the state of knowledge of the Commonwealth. They are not pleas of the establishment or existence of a system. 154 The plea in sub-paragraph 32.5 alleges a breach of the duty of care. The plea alleges a failure by the Commonwealth to recognise that the detainee population at Baxter and the other detention centres had mental health needs and amongst them a rate of mental illness at Baxter which was far greater than in the general community. The plea while containing a glancing reference to detention centres other than Baxter, is not a plea of a system. There is no evidence of the rate of mental illness in the general community. There is no specificity about what ‘far greater’ means. There is no reliable or credible evidence of the rate of mental illness at Baxter other than it being above the Australian average (whatever that may be). Accordingly, the plea goes nowhere. However, the Commonwealth 54 Ruling 22 June 2021 (FDN 425) at p 10; Ruling 27 October 2021 (FDN 443) at pp 5, 6 and 8; Ruling 19 April 2022 (FDN 571) at p 13; Ruling 10 May 2022 (FDN 589) at p 4. -- 50 of 647 -- [2025] SASC 59 Stanley J 47 admits that it had either actual or constructive knowledge of particular statements and expressions of opinion contained in the documents referred to in paragraphs 1-73 of Appendix 1 to 8ASoC. I accept that such knowledge could be relevant to the issue of foreseeability. However, knowledge of those matters does not equate to either actual or constructive knowledge on the part of the Commonwealth that the applicant was likely to have a psychiatric illness upon his transfer to Baxter. Foreseeability is to be determined prospectively. What the applicant is required to prove is that it was reasonably foreseeable at the time of his transfer to Baxter that he was suffering from a psychiatric illness or had a particular vulnerability to suffering such illness. Even accepting that long-term detainees were a class of persons more vulnerable to suffering psychiatric illness than individuals in the Australian community, this did not require the Commonwealth to undertake a comprehensive MHA of every long-term detainee upon arrival at Baxter, in the absence of signs or symptoms of psychiatric illness in an individual detainee. Given the number of detainees, that would not have been reasonable. Further, the applicant’s case runs up against the finding that, even if the Commonwealth had intended to undertake a comprehensive MHA of the applicant upon his arrival at Baxter, or at any other time before his release, he would have declined to participate in that assessment. 155 The plea in sub-paragraph 32.6 alleges a breach of the duty of care. The plea alleges a failure by the Commonwealth to allow for a system of regular, timely and thorough ongoing health check of detainees, including the applicant. Any reference to the existence or establishment of a system alleged to actually be causative of the applicant’s pleaded psychiatric injury is conspicuously absent from the pleading. 156 Again, a pleading that the majority of the detention population at Baxter was medicated for symptoms of psychiatric illness55 or that there were systemic defects in the mental health services provided at Baxter by the Commonwealth and ACM or G4S,56 goes nowhere in the absence of evidence that the applicant was medicated for symptoms of psychiatric illness or that there was a failure to treat him for a psychiatric illness by reason of some systemic defect or defects in the mental health services at Baxter. The evidence does not prove either proposition. There was no evidence about the “majority” of detainees at Baxter. Even if there was, such evidence is not probative of the issues the applicant must prove to succeed in these proceedings unless there is evidence that he formed part of this majority. Likewise, evidence that the delivery of health services at Baxter was considered to be inadequate does not prove that the health services provided to the applicant at Baxter were inadequate. In a similar vein, evidence of the inadequacy of counselling services in general at Baxter during the period of the applicant’s detention does not in or of itself, prove any liability on the part of the Commonwealth to the applicant for damages for psychiatric injury. 55 8ASoC Appendix 1 at [64]. 56 8ASoC Appendix 1 at [65]. -- 51 of 647 -- [2025] SASC 59 Stanley J 48 157 While the pleas in sub-paragraphs 26.6 and 32.6 refer to some unspecified “system” they are not pleas of a case founded on a system of detention, established by the Commonwealth, not only at Curtin and Baxter, but at other detention centres, including Woomera, which is alleged to have caused detainees to suffer mental harm that required treatment. 158 These are not pleas of a “systems case”. For the purpose of the applicant’s case what is relevant is evidence that proves or tends to prove that acts or omissions by the Commonwealth caused or materially contributed to the applicant suffering the pleaded psychiatric injury. 159 The applicant’s reliance upon a so-called systems case only deflected attention from the real issue, namely, whether the applicant suffered a recognisable psychiatric injury in immigration detention caused or contributed to by negligent acts or omissions of the Commonwealth which sound in damages. Evidence purportedly about a vague and generalised ‘system’ does not assist in answering that central question. It simply obscures it. 160 In the absence of adequate pleadings, it is difficult to define the applicant’s ‘systems case’ with any precision. The applicant had to adduce evidence that proved the alleged breach or breaches of the duty of care, by the Commonwealth’s acts or omissions at Baxter, caused the pleaded injury. 161 The question for the Court to determine is whether the applicant suffered from a recognisable psychiatric injury in, or caused by his experiences in, Baxter. I do not accept any submission which extrapolates from general observations and opinions, to the specific about the applicant. In isolation, evidence of a system cannot prove that the applicant had a psychiatric illness or how it was caused. 162 In any event, it is illogical to reason, as the applicant does, that the Commonwealth is liable in damages in favour of the applicant because of the lack of a system for identifying detainees with mental health problems. It is conceptually wrong to identify a failure in establishing a system for diagnosing mental health problems in detainees and to extrapolate from that failure a conclusion that the applicant must have suffered psychiatric injury as a result of any alleged defect in such a system. 163 Evidence of the establishment or existence of a system, which resulted in a breach by the Commonwealth of the duty of care it owed to the applicant can only be relevant to the extent that such a system caused the applicant to suffer the pleaded injury. 164 In the end the applicant did not plead a systems case. His persistence in contending that he had, did not change his pleaded case. -- 52 of 647 -- [2025] SASC 59 Stanley J 49 LAYOUT OF CURTIN 165 Curtin was a recommissioned facility established on land owned by the Department of Defence and forming part of a RAAF base near Derby. It was 48 kms from Derby in Western Australia. Curtin was managed and operated by ACM pursuant to a series of contracts between it and the Commonwealth. Prior to the applicant’s period of detention Curtin had operated as an immigration detention centre but was closed by the Commonwealth. It was recommissioned in 1999 to accommodate the sudden and substantial influx of asylum seekers which had swamped the existing immigration detention system. 57 166 The climate at Curtin consisted of two seasons. In the dry season it was hot in the day but cold at night and, during the rainy season, humid and wet. 167 At the time of the applicant’s arrival Curtin consisted of demountable buildings in fenced compounds where facilities were basic and crowded. Conditions were rudimentary. The detention centre was divided into compounds. There were razor wire fences separating the compounds from one another. The compounds were identified by use of the NATO phonetic alphabet. There were accommodation compounds with large shared spaces which provided facilities including a kitchen, dining hall, education and recreational facilities. There was also an administrative area which housed the health facilities and offices for DIMIA and ACM staff. The accommodation buildings were split into four, sometimes five rooms. Generally each room, except for the large dormitory-style rooms, had one bunk bed consisting of two single beds. The dormitory style sleeping quarters had a number of bunk beds. There were ablution blocks with toilets, showers and a laundry. Often the toilets were not cleaned adequately or with sufficient regularity. This resulted in them periodically being filthy and unhygienic. Queues would often form to use the facilities. There was a bank of telephone boxes in Golf compound. Telephones were installed by Telstra. Detainees were required to use telephone cards to pay for calls. 168 At Curtin, apart from having secure compounds from time to time for specific reasons, or for specific groups such as women and children, the accommodation compounds were open to each other. Detainee movement occurred freely both between each of the compounds and also between the dining hall, recreation and education areas. Detainees could also freely access the health centre during business hours. 169 India compound was used as a time-out space or for detainees who needed health monitoring or counselling. It was generally only used for short periods. Hotel compound was used to manage detainees who posed a threat to the good order and security of the centre, other detainees or staff. I find that its purpose was not punishment but the temporary separation of detainees from the rest of the centre to better manage those detainees. 57 T 7200. -- 53 of 647 -- [2025] SASC 59 Stanley J 50 LAYOUT OF BAXTER 170 Baxter was a purpose-built immigration detention facility constructed on the site of a former military training camp. It was located about 12 kilometres south- west of Port Augusta. It was designed and constructed by the Commonwealth as a facility which had the capacity both to keep detainees in and to keep potential protesters out. It was intended to be more secure than the facility at Curtin. It was designed to address perceived deficiencies in other detention facilities where facilities were spartan and riots and large-scale escapes had previously occurred. It contained nine separate, self-contained and secure residential compounds for detainees which were designated by colour and number i.e., Red 1, 2 and 3; White 1, 2 and 3; and Blue 1, 2 and 3.58 During G4S’ operation of Baxter, the compound names were renamed after Australian flowers. During these reasons I will only refer to the original compound names. All compounds consisted of residential rooms surrounding a large, grassed area with shaded outdoor seating and eating areas. 171 The nine compounds were configured in a rectangular design. In the centre of the compounds was a lawned area large enough for sports to be played, together with shelters, tables and benches. Each side of the compound consisted of cabins, which faced inwards, where detainees were housed. Some of these cabins were designed for single occupation and some for a family. The evidence established that from most, but not all, of the residential compounds a detainee could see the sky but not the landscape beyond the compound to the horizon. Outside the residential compounds but within the detention centre itself was a visitors’ centre, interview area, gym, health centre, education centre, dining room and management compound. There were stations for DSOs at the entrance to each residential compound. A wire fence topped with razor wire was erected on the perimeter of the detention centre. 59 172 The design utilising multiple compounds had the purpose of enabling detainees to be compartmentalised into smaller and more manageable residential groups. Different residential compounds were used for different purposes. Different levels of security could be applied to different compounds. Particular detainees could be segregated. Control could be exercised over movement of detainees between compounds and within the detention centre. 173 The design was informed by previous experience of fires, riots and large- scale escapes from Curtin and other detention centres. It was designed to address perceived deficiencies in amenity and security in those facilities. The compounds at Baxter were designed deliberately to be smaller, accommodating fewer detainees. The design was intended to make it more difficult for detainees to move between compounds so as to reduce the potential for crowd-driven misconduct and non-compliance. The design of each compound was intended to prevent persons outside the detention facility from being able to see in and detainees inside the 58 Exhibit 1.3TP22. 59 Exhibit 1.3TP22. -- 54 of 647 -- [2025] SASC 59 Stanley J 51 facility from being able to see out. The underlying purpose of the design from a security perspective was to reduce or remove the ability for detainees to see or communicate with persons outside the facility who might be engaging in protest activity or agitating the detainees to riot or attempt escape. 174 A feature of the security purpose underpinning the design of Baxter was the Management Unit. It was a purpose-built, self-contained, video monitored compound comprising 10 accommodation rooms. It was used as a form of solitary confinement. Detainees were kept in the Management Unit for the purposes of observation in circumstances where that was necessary for reasons of detainees’ health, or management for security purposes. The evidence was that the accommodation rooms were either about three metres square or two metres by three metres. It was air-conditioned and heated, and the temperature was controlled from outside the accommodation rooms. Each room had a window which admitted light but was opaque. There was a mattress on the floor and bedding was provided. There were no other furnishings. An open doorway led to a small bathroom containing a shower, hand basin and toilet. Detainees in the Management Unit were subject to constant surveillance, both in their rooms and in the rest of the compound. There was an adjoining courtyard where detainees could go to have a cigarette, coffee or meals.60 THE APPLICANT’S EVIDENCE 175 The applicant gave evidence through an interpreter over 31 sitting days. The evidence he gave spans his life in Iran, his journey to Australia, his time in Curtin and Baxter and his life after detention. The section below is the evidence the applicant gave at trial. However, as I will return to later, much of his evidence was contradictory and cannot be substantiated or corroborated by other evidence. For reasons which I will explain, I am unable to accept the vast majority of his evidence. Pre-detention The applicant’s life in Iran 176 The applicant gave evidence that was born in Tehran, the Islamic Republic of Iran (Iran) on 19 September 1975. He is the eldest of three children. He has a sister. His brother died in a motor vehicle accident more than 20 years ago. The applicant enjoyed a comfortable middle-class upbringing in Tehran. His father was an engineer who rose to the position of assistant director of a government owned steel factory. His mother was a school teacher who stayed home once she had children. His family lived in a good suburb. They went on regular holidays. They owned a four-wheel-drive Pajero. 177 The applicant said he was educated in Tehran. He completed high school. He had a solid academic record with good results in physics, mathematics and chemistry. He played football. He was raised as a Shia Muslim. Until the age of 60 Exhibits A1, A7, 1.3TP23, T 952. -- 55 of 647 -- [2025] SASC 59 Stanley J 52 11 or 12 years he attended mosque with his father. His father was a strict Shia Muslim. 178 After completing high school the applicant undertook two years of compulsory military service. He lived in a training camp for three months. He was then posted to a border check point on the Pakistan border. While he was not involved in any war, there was occasional trouble at the border check point with drug couriers which resulted in shots being fired. After completing his military service in 1996 he said he attended Tehran University on a scholarship. He wished to study civil engineering but switched to graphic design after he found employment in his father’s factory doing construction design drawing. The applicant said he spent two years at university obtaining an advanced diploma in mapping. 179 The applicant gave evidence that in Iran, the government imposed restrictions on drinking alcohol, what you could wear, how long men could grow their hair and other aspects of lifestyle. You could be punished for such infringements. There were public executions. The applicant witnessed three. 180 The applicant said he was employed at Foolad Technic. He claimed this employment commenced while he was at university. Training was required to perform his duties. On a training course he met a young woman, Soheyla Ejvak. They became friends. She was a Zoroastrian. Before the applicant met Soheyla he had become interested in Zoroastrianism. As Soheyla came to know the applicant better and learnt to trust him, she was prepared to talk to him about Zoroastrianism. The applicant told Soheyla that he wanted to convert to Zoroastrianism. This was very dangerous. You could be executed or thrown in prison for encouraging or committing apostasy. Soheyla introduced the applicant to a Zoroastrian priest, or Mobde. Once the applicant had gained his trust, the Mobde took him to the city of Yazd where the applicant witnessed various Zoroastrian ceremonies and attended meetings. Yazd is the location of the largest Zoroastrian temple in Iran. The only member of his family he confided in was his mother. The applicant travelled to Yazd with Soheyla on a number of occasions. The process of conversion takes five years. The applicant was two years into the process of conversion when he fled Iran. 181 The applicant said that in 1999 his father disappeared. The family learned that he had been arrested on accusations of theft and bribery. For a time they did not know where he was being held. Eventually the family was able to visit him in detention. He was imprisoned for about three or four months. The family was very worried. He was later released after it was discovered that the allegations against him were false. Upon his release he was pressured to resign from his position at the factory. He chose to retire and stayed home. After his retirement -- 56 of 647 -- [2025] SASC 59 Stanley J 53 he developed cancer and died about eight or nine months later. It was about a month later that his brother was killed in a motor vehicle accident. 61 182 Notwithstanding his grief, the applicant felt he had to continue to support the family. He was a happy, social person who enjoyed going out. He continued to play soccer. He said he had no mental health issues. Apart from seeing family and friends, he read books, watched movies and listened to music. His health was good apart from the occasional sore throat or cold and twisted ankle.62 The applicant flees Iran 183 The applicant gave evidence that he continued to work at the factory at Foolad Technic. One day his manager called the applicant to his office. There were government security people present. They were from the Ministry of Intelligence and Security, the Ettela’at. They said they had discovered his interest in Zoroastrianism. He said they undertook a search of his office. He was handcuffed, blindfolded, put in a car and driven away. They drove for about an hour. He said he did not know where they went but that it looked like a house. The house was under the supervision of the prison authorities. Upon arrival they locked him in a very small room for about three hours. The room was too small for him to stand up. Men came and took him to another room where he was beaten with a rubber stick for 20 to 30 minutes. He was then interrogated. He was threatened with execution for wanting to change religion and betray the martyrs of the country and the revolution. He denied the allegations. He claimed he was just undertaking research. He was returned to the small room where he was left for about a day. He was then beaten again. He was further interrogated and told that he had to confess or his life would continue like this. The applicant said he again denied wanting to convert because he believed that a confession would result in his execution. He underwent a further round of interrogation. This took three days in total. He was then driven to his house. They searched the whole house and they found books and photos from Yazd and other incriminating objects. Amongst the books was a banned book by Akbar Ganji who was a former member of Ettela’at who became a critic of its operations. There was also a book of speeches by Dr Ali Shariati, who was an Islamic revolutionary whose views the government sought to suppress.63 However, the applicant gave contradictory accounts of these events which I will refer to later. 184 After completion of the search the applicant was handcuffed and blindfolded again and taken to a different house. He was again urged to confess and struck in the face. This interrogation lasted for four or five hours. Then a friend of his uncle arrived. This friend was someone senior in the Ettela’at. He took him from the 61 T 344-346. 62 T 346-347. 63 T 349-352. -- 57 of 647 -- [2025] SASC 59 Stanley J 54 house undertaking to bring him back. The other agents said that the applicant had to be returned in 10 days because he had a court appearance.64 185 The applicant said once they left the house this man advised him that he was in big trouble and he had to leave the country. He drove the applicant about 40 minutes from Tehran to a farm and left him there with instructions not to leave or to contact anybody. The man said he would obtain a false passport for him so he could leave the country. At that stage, the applicant did not have a passport. The applicant stayed at the farm for about four to six weeks.65 He denied that the farm was in Isfahan.66 186 His uncle’s friend returned with a false passport and other documents. The passport was in the name of Shahram Amjad. This man drove the applicant to the airport at Bandar Abbas. At the airport, this man gave him an airline ticket and about $2,000. The man spoke to various officials in the airport and the applicant boarded a flight to Kuala Lumpur. Before he left, his uncle’s friend told him that once he arrived in Kuala Lumpur he would be on his own and that he should destroy the passport. The applicant said he flew to Kuala Lumpur via Ankara, Turkey, where he transited to a flight to Kuala Lumpur. This route was cheaper.67 187 The applicant said that when he was in Kuala Lumpur he was given the contact details of a people smuggler, Majed. He telephoned Majed who told him he needed to come to Indonesia but to wait in Malaysia until Majed was ready. Majed reiterated the advice of his uncle’s friend that he should destroy his passport and identity papers. He had no reason to query this advice. He said he destroyed his passport. The applicant said he remained in Malaysia for three months until he was summonsed to Jakarta by Majed. He travelled to Jakarta. He had to bribe Indonesian customs officials to enter Indonesia. He paid them between $400 and $500.68 188 After he had been in Indonesia for two days Majed’s colleague, Pace, came to the applicant’s hotel and informed him that he needed to go to Bali. He travelled to Bali where he said he waited four months. During that time he and other Iranians, with whom he was living, were questioned by police and they paid them bribes. He was again contacted by Majed. Majed suggested the applicant could travel either to Europe or to Australia. He said that Europe would be a rough journey with a lot of walking but if he waited, Majed could send him to Australia. The applicant elected to travel to Australia. He was told by Majed that when he arrived in Australia he would spend 45 days in a detention centre for medical and other checks, following which the rest of the immigration process would occur out 64 T 352-353. 65 T 353-354. 66 T 1905. 67 T 357-358. 68 T 357-358. -- 58 of 647 -- [2025] SASC 59 Stanley J 55 of detention. He paid Majed $2,500. The applicant said he was transported to Senggigi, a port on the island of Lombok.69 The boat trip to Australia 189 The applicant gave evidence that at Senggigi there was a small fishing boat waiting. There were 113 passengers aboard. It was a rotten hulk with two decks; the lower deck for women and children and the upper deck for single men. There was only one crew member; an Indonesian boy of about 15 years old. He was referred to as the Captain. Most of the passengers were Iraqis but there were four other Iranian men. The applicant was afraid but desperate. He had no way of going back so he boarded the boat. The boat was very crowded. Majed said the voyage to Australia would take 33 hours. The only supplies on the boat were spring water, bananas and two-minute noodles. There was a small frypan and a small gas bottle to cook the noodles.70 190 The applicant suggests in his evidence that they left port in late November 2000. It was about six or seven o’clock at night. After six hours the boat’s engine broke down. The boat drifted for six days until an Indonesian fishing boat appeared. The Indonesian boat sailed away with two of the passengers from the people smugglers’ boat. The following day Majed and a mechanic with a new engine came to the boat. They changed the engine on the boat and supplied the passengers with more noodles, water and some cigarettes. The boat then set sail again for Australia. After another three hours there was a hole in the hull and the boat started taking water. The engine failed again. That night the sea was rough and the boat was becoming inundated with water. Women and children were screaming. Everybody was scared that the boat would sink. The men would go below the deck to bail out the water. An attempt was made to plug the hole. Eventually this succeeded. The boat drifted for another 16 days. The food and water ran out. They were boiling sea water for drinking. During the day the sea tended to be calm but at night it became rough. The passengers were very afraid the boat would be swamped. One of the applicant’s friends said that this would be the last night of their lives. They were found by another Indonesian fishing boat. The boat sailed away with four passengers from the people smugglers’ boat. They returned after eight hours. Majed came with his own boat. He brought a new engine and mechanics as well as more food, water and cigarettes. They installed the new engine and Majed agreed to travel on board until they were in Australian waters. Once in Australian waters he left and returned to Indonesia. A few hours later the applicant’s boat was spotted by a coast watch surveillance flight.71 191 The applicant said that on 16 December 2000 they were intercepted by an Australian naval vessel. They boarded the naval ship and were taken to Darwin. They arrived on 22 December 2000. They were dehydrated, malnourished, weak, sunburned and tired. Before the naval vessel intercepted them they had almost 69 T 357-358, 1894. 70 T 358-360. 71 T 361-363. -- 59 of 647 -- [2025] SASC 59 Stanley J 56 given up hope. Prior to this voyage the applicant had never been to sea. He thought he spent 28 or 29 days on board the people smuggler’s boat.72 192 Once they disembarked in Darwin, DIMIA came with buses. They were taken to a basketball stadium where they stayed overnight. They were told they would be sent to an immigration detention centre. The applicant felt happy and relieved. He thought his journey was over. He considered he could cope with the next 45 days in detention. 73 Curtin The applicant’s detention at Curtin 193 The applicant was flown to Derby and taken to Curtin. This was about a 20 minute bus ride from Derby. They were taken to a secured area surrounded by barbed wire. Afghans were separated from the rest. They were left to wait until a Mr Wallis from DIMIA addressed them. The applicant said Mr Wallis addressed the applicant’s group telling them: you are not real refugees, you are from Iran, Palestine and Israel and you are not real refugees from these countries. You do not have any chance in Australia. The best thing is if you can return to your own country. There was an interpreter named Marian present. However the applicant said she spoke Farsi Dari which is different than Persian Farsi, making it difficult for the applicant to understand what she was saying.74 194 The applicant was initially disheartened by what Mr Wallis said, however, among them there were a couple of Iranians who had relatives in Australia who said not to worry, that the authorities say these things at the beginning but there is a law in Australia which allows detainees to apply to remain.75 195 The applicant was detained at Curtin for almost two years. He described its appearance. He said the detention centre was divided into compounds. There were wire fences with razor wire separating one compound from another. There were dongas in each compound where detainees slept. There were uniformed DSOs throughout the centre. There was an area marked out as a soccer field with goals but no nets. There was green mesh lining on the fences to obscure the view outside each compound. The environment was very hot. There was red earth and few trees for shade. Even under the shade it was very hot. Single men were placed in Charlie compound (Charlie). The detainees in Charlie were mainly Iranians. The detainees were told not to speak to people in other compounds. 76 196 The applicant said in Charlie each donga had six bunk beds. There were 12 people living in each donga. There were two toilets and two showers for the 72 T 363-364. 73 T 364. 74 T 365-366. 75 T 365. 76 T 366-367. -- 60 of 647 -- [2025] SASC 59 Stanley J 57 whole compound. Queues would form to use them. The applicant tended to shower at night when there was less demand and the water pressure was better.77 197 Shortly after being placed in Charlie the applicant was medically examined. He did not have any physical or mental problems at that time. He was not an angry or irritable person. He made an application for a protection visa. He was assisted by a migration agent. On 6 January 2001 there was a short interview with someone from DIMIA. Marian was the interpreter for the interview. While she claimed to be competent in Farsi, there were problems with comprehension. Some of what she said the applicant did not understand. Some of what the applicant said she did not understand. On 12 January 2001 there was another interview. By then the applicant said he felt optimistic about the success of his visa application. An audio recording of this interview was admitted into evidence. The applicant accepted that the interpreter was speaking Farsi. This was the same interpreter used on 6 January 2001. In giving his evidence, the applicant admitted that some of the information he provided to DIMIA at this interview was incorrect.78 I will come back to this. 198 About this time the applicant was transferred to Bravo compound (Bravo). 199 In Bravo there were three showers and three toilets. The applicant said that this was still inadequate. They were filthy and disgusting. It was left to the detainees to clean them. The detainees could move more freely. They were able to walk to the main compound where there was a tennis court and education facilities. However, they tended to stay in their compound.79 200 The applicant said he experienced trouble sleeping with 12 men in a donga. He tried to sleep during the day because of the heat. It was often difficult with other men speaking or smoking in the donga. Due to the heat detainees were inactive during the day and would stay up all night playing cards or talking. There were games of soccer played in the cool of the evening. There was only one soccer ball and there were often arguments between Afghans and Iranians over using the soccer field and getting access to the one soccer ball. If the ball went over the fence, the players would have to wait for the DSOs to retrieve it. Some DSOs would refuse to do so and the game would have to be abandoned.80 201 The applicant said in Curtin spring water was provided each morning. Sometimes it would have been drunk by lunch time. The detainees would have to drink from the tap. The tap water was warm.81 202 He said the food was boring, unappetising and unfamiliar to the Iranian palate. There was white bread or toast, butter and jam and a glass of milk for 77 T 370. 78 T 370-376. 79 T 386-387. 80 T 383-384, 386-387. 81 T 429-430. -- 61 of 647 -- [2025] SASC 59 Stanley J 58 breakfast. Lunch consisted of chicken and rice or vegetables and rice. Dinner was mince and rice. The rice was Asian, not Iranian rice. There was no variety in the food served. The chicken was boiled and mainly undercooked. The vegetables did not seem fresh. 203 At one point the detainees in Bravo complained that they were not given single rooms which were available in Bravo. They staged a sit-in protest. They were then moved to Foxtrot compound (Foxtrot). In Foxtrot there were single rooms but they were not allowed to go to the main compound. They had to eat in their rooms. They did not have access to phones. After 10 days the protest was abandoned and they returned to Bravo. When they returned to Bravo the single rooms were still unoccupied. They were not permitted to use them. This was the first protest the applicant had joined.82 204 The applicant said he had previously seen other detainees on hunger strikes and sitting on the roof of the dongas. Some of them cut themselves with razor blades. He saw more than 15 people cut themselves. Some of them protested in front of the main gate. These protests would occur sometimes three or four times a week; sometimes two or three times in a day. If a detainee cut himself he would be taken to the Management Unit. The applicant recalls seeing DSOs taunting an Iraqi man who had climbed onto a roof in protest. He said the DSOs encouraged him to jump, which he did, breaking his leg. Staging a protest could also lead to a detainee being put into the Management Unit. Sometimes detainees would go without food for so long they had to be admitted to hospital. Protests would result in the DSOs locking all the doors to the compounds. They would deal roughly with protestors. They would be handcuffed and if the detainee refused to go, DSOs would drag them away. He had not witnessed this sort of conduct before arriving at Curtin and was troubled by this.83 205 The applicant referred to one of the worst cases of self-harm he observed. He said when he was in Curtin a detainee, Abdol Amir Hamidi, was transferred from Woomera. On the first day Mr Hamidi was in Curtin he went to the entrance door of the detention facility and cut himself over 100 times. He was covered in blood. He said Mr Hamidi cut himself on a daily basis in Curtin.84 206 At Curtin there were tensions between Afghans and Iranians. These resulted in riots but the evidence is unclear when precisely these occurred. The applicant said about three or four months after the applicant was placed in Bravo, probably on 1 April 2001, there was an attack by around 300 Afghan detainees on 15 Iranians. The Afghans were armed with wooden sticks. The Iranians sought refuge in the phone area where they could lock a door. Nonetheless one of the 82 T 392-393, 396. 83 T 396-399. 84 T 659-661. -- 62 of 647 -- [2025] SASC 59 Stanley J 59 Iranians suffered a fractured skull. This was very frightening. One or two hours elapsed before the DSOs intervened.85 207 The applicant said DSOs always addressed him by his number, which at Curtin was 2010. However, some of them were good and treated the detainees well. Some were helpful, but many were not. Many DSOs would harass detainees. They would frequently ignore detainees when they needed something which could only be obtained through one of the DSOs. They would wake the detainees in the mornings when they were conducting their checks.86 208 The applicant said while he was in Curtin there were English classes, but he only attended once. The classes were held in the education centre. They were so crowded it was impossible to enter the room.87 209 The applicant said when he arrived at Curtin he had $20. He was only able to use that to purchase phone cards. Later he was able to obtain work cleaning in the compound and picking up rubbish. He would be paid $28 for this work. With that he could purchase a phone card one week and cigarettes the following week.88 210 Initially the applicant telephoned his family in Iran weekly. He could purchase a phone card for $10 which would allow a seven-minute call to Iran. When he took up smoking the cost of cigarettes reduced his phone calls home to once a fortnight.89 211 The applicant said that in addition to his cleaning job, he worked in the kitchen washing dishes, preparing vegetables and salads, collecting dishes and mopping the floors. He worked a split shift for six hours each day. He was paid $35 or $36 a week. There was considerable competition for this work. If detainees were not earning money they were not in a position to purchase anything. Sometimes he had no money for phone calls. He missed his family very much. When the applicant had no work he relied upon his friends to give him cigarettes and arranged for his family to call him by phone. The applicant would arrange for his family to call him between 10:30 p.m. and 11:00 p.m. when there was some realistic chance that the phone would be free. This would occasion difficulty for his family because of the time difference.90 212 The applicant said his cleaning job gave him access to the offices at Curtin. He found old Australian newspapers in the rubbish bins. He took these and using a dictionary tried to teach himself English. There were computers in a room next to the education centre. They were not connected to the internet. They were mainly used by children for playing computer games. There was a recreation room with a television in it. If detainees wanted to watch a movie at night they needed 85 T 399-401, 1487-1488. 86 T 401-402. 87 T 402. 88 T 393-394. 89 T 394. 90 T 461-462. -- 63 of 647 -- [2025] SASC 59 Stanley J 60 to take a chair to the recreation room hours before to see the film. This discouraged the applicant from trying, however he made the effort to watch the 2002 World Cup.91 213 The only books that were available in Curtin were children’s books. There were no newspapers. The only source of news was the television. Most of the detainees were not interested in watching the news. They preferred watching movies. They had their own problems. The only recreational devices that were available were the soccer ball and playing cards. The detainees had to ask the DSOs for these cards or the soccer ball.92 214 When in Curtin he tended to associate with Iranians only. This was partly because of language difficulties. During the first three months he was in Bravo the applicant remained optimistic notwithstanding the prison-like conditions under which he was detained. He was hopeful that he would obtain a visa.93 215 At Curtin the applicant was not taken on any excursions. There was a shop that opened once a week where detainees could buy chocolate, chips, cigarettes, shampoo and telephone cards. The applicant purchased shampoo rather than using the shampoo provided by ACM, which was unsuitable and made his hair go very hard in the dusty conditions. Spending money on shampoo reduced the amount the applicant could spend on other items. To purchase anything from the shop required placing an order by a form a day in advance. The shop was open only for two and a half hours each Wednesday morning.94 216 At Curtin the rooms would be searched routinely every week or 10 days unless it was suspected that a detainee was in possession of contraband such as a cigarette lighter. In those circumstances searches would be more frequent. In order to light a cigarette a detainee had to ask a DSO who had a cigarette lighter. The DSOs would not always do so.95 217 The DSOs would search a room by emptying bags and throwing the contents around the room. They would wear their boots into the room and dirty the floor. In Iranian culture people did not wear shoes into a house. The DSOs ignored the detainees’ requests not to wear shoes or boots into the rooms. This lack of respect caused the applicant to feel belittled. The search would cause him stress.96 218 At Curtin there was a complaint box. Detainees could complete a form and place it in the complaint box, but the applicant said there was no action taken or response given in respect of a complaint. In addition, detainees were discouraged from making a complaint as they had to identify themselves on the form. Nonetheless the applicant put in a complaint about not being allocated a single 91 T 403-405. 92 T 386, 404, 407. 93 T 406-407. 94 T 456-459. 95 T 463. 96 T 464. -- 64 of 647 -- [2025] SASC 59 Stanley J 61 room when they became available and about the quality of the food. The applicant also asked whether more footballs could be provided. Nothing came of these requests. The applicant did not complain about the bad behaviour of the DSOs because of the requirement to identify himself which he feared might result in retaliation.97 Curtin medical centre 219 The applicant developed various medical problems in early 2001. He experienced chest pain, throat infections, toothache, ear infections, stomach pain and headaches. He would attend the medical centre frequently. To attend the medical centre detainees had to seek permission from a DSO. The medical centre staff were mostly female nurses. They gave him Panadol and told him to drink water. He was given some antibiotics but not regularly. The applicant also had problems sleeping. The only assistance he was given at the medical centre was some herbal remedy.98 220 The applicant continued to experience problems with his teeth. In particular he had a cavity in his left upper wisdom tooth. This was very sensitive to heat and cold. After some months he was taken to Broome to see a dentist. He was driven to Broome by DSOs. He was handcuffed, which he found humiliating. The only time he was not handcuffed was while he was being treated in the dentist chair. At that stage the applicant had done nothing to indicate he was an escape risk. The dentist wanted to extract the tooth. The applicant wanted it filled and did not consent to it being extracted. Eventually a dentist visited Curtin. He placed a temporary filling in the tooth. The tooth was never permanently filled. Ultimately it shattered when the applicant was in Baxter.99 221 The applicant developed pain in his testicles. He was unsure as to the cause. He attended at the medical centre reluctantly because that required examination by a female nurse. He only consented to this because he was in so much pain. In January 2002 the applicant was taken, handcuffed, to Derby Hospital for treatment for his testicle pain. At the hospital he was x-rayed. In May 2002 he was again taken in handcuffs to Derby Hospital for an operation on his testicles.100 The applicant accepted that the nurses and doctors he saw were trying to help him. 222 The applicant said that upon his return from the operation at about 7:00 p.m. that same day, he was placed in the Management Unit, which he stated he thought was called ‘Hotel’ or ‘India’ at Curtin. He felt this was unfair as the Management Unit was for punishment and he had done nothing wrong. He was locked in a room overnight. He was in pain. The air conditioning was on and it was very cold, he was wearing a hospital gown and only provided with a thin blanket. The DSOs 97 T 465-467. 98 T 407-408. 99 T 405, 420-423. 100 T 418-419, 426-427. -- 65 of 647 -- [2025] SASC 59 Stanley J 62 would not give him another blanket.101 He said he threatened to kill himself.102 He said the nurse and DSOs forced him to remove his hospital gown five or six times each day which he found humiliating.103 The applicant conceded that the nurses were checking his wound and the dressing. He accepted they were trying to help him.104 223 He was released to Bravo the next day. At some point around this time he was examined by a doctor. While the operation relieved the pain in his testicles to some extent, it did not eradicate it. He continued to present to the medical centre with groin pain. 224 The applicant continued to have problems with sore throats, ear infections, headaches, reflux and fevers. Again he attended at the medical centre for these problems. He was given a short course of antibiotics that only lasted one day. He was given Mylanta to treat the reflux. He was given Panadeine Forte for the headaches and fevers. The throat infection was quite severe. He had difficulty swallowing. These various ailments left him feeling weak and sick.105 225 When he could not get further pain killing medication from the medical centre the applicant threatened to self-harm. He said a DSO responded threatening to place him in the Management Unit for a long time. The applicant was scared this would happen.106 Application for visa refused 226 On 3 April 2001 the applicant was brought to the DIMIA office. He was subjected to a body search before being taken into an office where a DIMIA officer advised him that his visa application had been rejected. He was shattered. He said he was given a letter which confirmed this advice which he had to get another detainee to translate for him. He understood that he was rejected because the Minister’s delegate did not accept that he had changed religion. He understood that the delegate said that he had claimed that the sun is the God of the Zoroastrians. The applicant said he did not make such a claim. He also understood that the delegate did not accept that he had fled Iran using a false passport. The rejection letter also said that the Iranian government tolerated conversions from Islam to Zoroastrianism. The applicant believed this to be wrong. Apostacy was punishable by a lengthy gaol sentence or execution.107 227 Through a lawyer appointed by the government the applicant applied to the Refugee Review Tribunal (RRT) to review the decision. The hearing was 101 T 433-436. 102 T 1432. 103 T 1434-1435. 104 T 1435. 105 T 425. 106 T 577. 107 T 408-411. -- 66 of 647 -- [2025] SASC 59 Stanley J 63 conducted using a telephone interpreter. The applicant thought he was Kurdish. Because of his accent there was some difficulty in comprehension. 228 The RRT delivered its decision on 5 June 2001. The application for a visa was rejected. He said that before entering the office where he was informed of the outcome of his application for review the applicant was strip-searched in the presence of four of five DSOs. He had to remove all his clothes. One of the DSOs was a female which made him very embarrassed. In Iranian culture it is a source of great shame to be naked in front of a woman who is not his wife. 229 The applicant said he was not given any counselling following the rejection of his application. While he understood that there were further legal steps that could be taken, he understood that the decision of the RRT was most important and that his chance of success in the Federal Court was greatly reduced. Nonetheless he instructed his lawyer to proceed with an application for review to the Federal Court. He was afraid he might be deported notwithstanding he had current proceedings in the Federal Court. 230 The application to the Federal Court was dismissed on 28 November 2001. The applicant said he felt hopeless. Nonetheless he instructed his lawyer to appeal to the Full Federal Court. Again, he was not given any counselling following this judgment.108 231 The applicant gave evidence he was flown, handcuffed, to Perth for the hearing of his appeal before the Full Federal Court. He said this was embarrassing as it gave the impression that he was a criminal. He stayed in the Perth detention centre for a few days. On 6 May 2002 his appeal was dismissed. Again, he was not offered any counselling after the decision was handed down. He was shocked at how quickly the Court dismissed his appeal. The applicant said he lost all hope and feared he would be deported to Iran. In July 2002 he brought an application for special leave to appeal to the High Court. He did not think there was much chance of success but he wanted to delay the threat of deportation to Iran. On 8 August 2003 his application for special leave to appeal was dismissed.109 Riots at Curtin 232 The applicant said there was a riot on 4 April 2001. Permission was granted for some of the detainees to observe a ceremony to commemorate Ashura, which is an Islamic festival. There were fires lit. Some of the detainees engaged in acts of self-flagellation. The DSOs intervened which provoked an angry response. Some of the detainees started fighting with the DSOs. The DSOs retreated and some detainees set on fire tents, the education centre and the welfare storage room. The applicant said the riot involved maybe 100 Afghan men. DSOs dressed in full riot gear eventually restored order. The Afghans involved were handcuffed and taken away. The applicant said he was a mere onlooker but he was very scared. 108 T 425-426. 109 T 468, 629. -- 67 of 647 -- [2025] SASC 59 Stanley J 64 He said it took some 10 days before the situation returned to normal. After this riot the attitude of the DSOs became harsher.110 233 The applicant said there was also a second riot involving the detainees from the other compounds. The applicant unsurprisingly was unable to identify the date of this riot. At one point the applicant agreed the second riot occurred on 1 June 2001.111 The documentary evidence suggests that though there was a riot on 1 June 2001 the ‘second riot’ referred to by the applicant was actually a third riot which occurred from 19 April 2002 to 24 April 2002.112 The applicant said the DSOs retreated and the detainees took control of the whole centre for about five days. They cooked their own meals outside on barbeques made from pallets. The mess and kitchen area were ransacked. Most of the detainees who joined the riot had exhausted their visa applications and appeal rights. They were desperate. They wanted to speak to DIMIA but this did not happen. 234 The applicant said these five days were a happy time. The detainees were in control. They were not being harassed by the DSOs. Eventually the Australian Federal Police (AFP) came and spoke to the detainees. They asked the detainees to produce the knives from the kitchen and persuaded them to give up, otherwise the AFP would call in the army and take the centre back by force. Once ACM was back in control of the centre the applicant said that the DSOs reverted to the same attitudes which had caused such resentment amongst the detainees before the riot. The level of security and restrictions on detainee movement in Curtin increased.113 235 The applicant said that in 2002 there were hunger strikes and some detainees consumed washing liquids at Curtin. The applicant witnessed this. Sometime in 2002 there also was a sit-down protest on the tennis court involving the applicant.114 The applicant’s mental state 236 The applicant said his mood became angry and irritable at Curtin. On occasions he was verbally abusive. Small things caused him to lose his temper. Occasionally this would end in physical altercations with other detainees. The applicant did not complain to any doctor or nurse at Curtin about his mental health problems as he said he feared that might adversely affect his prospects of obtaining a visa. In his mind, at that time there was an association between mental health problems and criminal activity. After the rejection of his application to the RRT his mental health deteriorated. He became angrier. The applicant gave evidence that in the months before he left Curtin his mental state was really bad. He could not sleep. He was concerned about deportation. He felt like a prisoner in a state of suspension. On 28 August 2002, notwithstanding his fear of disclosing his mental health problems, he complained to the medical centre that he was not well mentally and having difficulty sleeping but they would not do anything. They said 110 Exhibit 1.3TP2027, T 442-445, 7287. 111 T 1488. 112 Exhibits A290, R1701. 113 T 445-450. 114 T 442. -- 68 of 647 -- [2025] SASC 59 Stanley J 65 to him that he was going to Baxter which was a better place. He did not see a psychologist or a counsellor at Curtin.115 He said that it would have been helpful if he was able to talk to a psychologist or counsellor about his mental problems. In addition he continued to suffer from a sore throat, earache and toothache. Baxter Transfer to Baxter 237 The applicant was transferred from Curtin to Baxter on 22 September 2002. When the applicant arrived at Baxter it had only recently been commissioned. He, along with about 50 other detainees was flown from Derby airport to Port Augusta airport and then transported by bus to Baxter. He said he was handcuffed for the duration of the trip. He carried a small bag containing a tape recorder, tapes, clothing, slippers, two dictionaries and two blankets. 238 The applicant gave evidence that upon arrival at Baxter he along with the other detainees, was required to sign a behavioural agreement116 undertaking that he would not commit suicide and would not be a danger to himself or others. The applicant understood that the detention centre management imposed rules to ensure the smooth-running of the centre and the safety of those employed or detained in it. The agreement also identified steps that could be taken against detainees who contravened the rules. 239 The following day the applicant underwent a medical assessment with a doctor. He said it took about 10 minutes. The applicant said he was not asked about his prior medical history. He mentioned his sore throat, toothache and headache but the doctor told him this was an initial medical examination and he would have to make an appointment to see the doctor later about any particular medical issues he had. At that time he was still suffering pain in his groin, although the pain was not as severe as it was before his operation. The applicant said he was not asked about this mental health.117 Early days at Baxter 240 Upon arrival, the applicant was placed in the Red 1. He described Red 1 as consisting of about 60 rooms around the perimeter of a rectangular area which was grassed. There was an office area for DSOs and a kitchen and canteen area together with a medical area and a rec room. The applicant said that to exit Red 1 he had to walk through large metal gates similar to prison gates.118 241 He said each detainee in Red 1 had a single room with a toilet, shower, a bed and wardrobe. There was a small window high in the shower and toilet area which allowed light in. There was no other window in the room. The applicant could not see anything through that small window. In the separate laundry room there 115 T 453. 116 Exhibit A768. 117 T 473-474. 118 T 474-476. -- 69 of 647 -- [2025] SASC 59 Stanley J 66 was a window but all the applicant could observe from there were other compounds. As a result, when the applicant was inside Red 1, all he could see of the outside world was the sky.119 There were about 60 people detained in Red 1. 242 The applicant said that at first he felt happy about the improved facilities in which he was detained, but after a while that changed due to him being deprived of any view of the surrounding landscape. In addition, he realised that he had less freedom of movement than at Curtin. 243 The applicant said the system at Baxter was very regimented. To visit someone in another compound the applicant had to complete a request form before lunch in order to visit between 8 p.m. and 11 p.m.120 Sometimes applications to visit other detainees were refused. 244 The applicant recalls that in the recreation room there was a television and a video player. However, he said detainees could only access videos by lodging a request with the DSOs. If a video was on loan the DSOs would not lend a further video. In any event, there was not much interest in watching television because of the language difficulties. If detainees wanted to change the channel, they had to find a DSO with the remote control. Sometimes the DSOs would not come and change the channel if they were busy or another DSO was not available to perform their role for the time it would take to come to the rec room and change channels.121 The applicant did not attend the education facility. While there was supposed to be English language classes, he said the quality of the teaching was poor. The applicant has no memory of being provided with a self-paced education pack. The applicant was interested in the possibility of classes teaching trade skills. He said classes were proposed by some detainees who were electricians, carpenters, spray painters and panel beaters but this was rejected by ACM’s general manager because of the lack of space and equipment.122 245 The applicant said he did not see any computers in Red 1. He was never informed of anywhere computers were available to detainees.123 246 The applicant said football was played in the grassed area in the middle of the compound. However, to do so the detainees would have to ask the DSOs to bring in portable nets. Again, if DSOs were busy the detainees would have to wait.124 Another detainee asked if he could be provided with a chess set but this was refused.125 119 T 486. 120 T 486. 121 T 481. 122 T 627, 670-671. 123 T 483-484. 124 T 484. 125 T 811. -- 70 of 647 -- [2025] SASC 59 Stanley J 67 247 The applicant said he would sleep most of the day at Baxter and then play cards and talk with other detainees at night. The applicant would usually only eat dinner as he tended to sleep through breakfast and lunch. 248 The applicant said DSOs would conduct head counts in the morning when the applicant was sleeping, waking him. Like in Curtin, DSOs at Baxter would conduct searches by entering detainees’ rooms without removing their shoes, contrary to Iranian custom. The applicant felt this was a deliberate act of disrespect. They would turn the room upside down and leave. Detainees would have to restore the room to its previous order.126 249 In addition to the irritation of room searches conducted by DSOs in what the applicant considered a disrespectful manner, he had other confronting experiences. 250 The applicant said that if a detainee had any requests, they were required to make it in writing and hand it to a DSO. Detention centre management would then see if it could be provided. The applicant would complete those forms with the help of a friend or using Farsi to English and English to Farsi dictionaries. 251 In the early days at Baxter, detainees were informed that the facilities and amenities at Baxter included education, the gym for exercise, and shopping trips to Port Augusta. After one detainee wrote asking to go to Port Augusta for shopping and received no response to his request, a number of detainees, including the applicant, decided to write a letter making the same request. They did not expect their request would be granted but rather they wanted to expose the emptiness of the promise. It was clear to the applicant that if they had to be handcuffed to go to the medical centre, ACM were not going to permit detainees to wander freely around Port Augusta’s shops. After putting in a request they were informed that shopping visits would not be conducted. 252 The applicant felt belittled and demeaned by the whole episode concerning the shopping trip. He had already lost self-esteem, self-confidence and hope, and this further eroded his morale. He harboured a deep mistrust of DIMIA and ACM from his time at Curtin. 253 The applicant emphasised the smaller environment in Baxter relative to Curtin. He described it as being very enclosed and there seemed to be a lot of DSOs around. There was more unrest and unhappiness. He said the DSOs would arrest detainees and take them to the Management Unit for minor infractions. 254 The applicant could see a nurse any day. If the applicant wished to see a doctor he would need to ask a nurse for an appointment. If the medical problem was urgent an appointment could be made within a few days, otherwise he might wait for around two to three weeks to see the doctor. The applicant said when he 126 T 608. -- 71 of 647 -- [2025] SASC 59 Stanley J 68 was taken to see the doctor he was often handcuffed with plastic cable ties and then loaded into a van which would drive to the medical centre.127 The applicant’s mental state 255 The applicant said that at Baxter he continued to suffer from the medical problems that had plagued him at Curtin. After he had been in Baxter for around one week his mental health deteriorated. 256 The applicant gave evidence that between September and December 2002 nobody investigated his mental health. He was not given any advice about the signs that might indicate he was suffering any mental health issues. There were no books, brochures or information sessions concerning mental health. When the applicant did see the doctor, the doctor did not ask about the applicant’s mental health. However, the applicant complained to the doctor about his insomnia which resulted in a prescription of sleeping tablets. There was no referral to a psychiatrist or a counsellor or any other form of follow up.128 I find the applicant’s evidence in this regard to be disingenuous. Notwithstanding his claim that his mental health deteriorated over the period between September and December 2002 without anyone from the medical clinic investigating his psychiatric decline, there is no evidence of him reporting to any doctor or nurse that he was experiencing mental health problems. The only complaint he made was of insomnia. I find he did not ask to see a psychiatrist or a counsellor. I do not accept his evidence that his mental health decline during this time. 257 The applicant said his mental health deteriorated further as the end of 2002 approached. He alleges he had a confrontation with a DSO where he complained he had not slept for two nights and asked for some sleeping pills. He said the DSO ignored his request and directed him to return to his room. An argument ensued and the applicant threatened suicide or self-harm if he was not given sleeping tablets. He said he was forcibly taken to the Management Unit by three or four DSOs.129 There is no documentary evidence to support this allegation. I do not accept it occurred. 258 The applicant was unaware that anyone had been appointed as his case manager. The applicant said that at Baxter he was not provided with any counselling. I will come back to this later. Management Unit – December 2002 259 The applicant said the Management Unit was located just outside of the main gates. It had a narrow corridor with several rooms on each side with thick, heavy doors. It had CCTV cameras. The applicant described it as a hostile environment.130 The applicant described the bedroom in which he was detained in 127 T 475. 128 T 501-502. 129 T 502-503. 130 T 503. -- 72 of 647 -- [2025] SASC 59 Stanley J 69 the Management Unit as consisting of a small room with an ensuite shower and toilet. He said there was no window in the room, or if there was a window it was covered. While the room had electric light and air conditioning, that was controlled externally by the DSOs. There was no bed, only a mattress on the floor. 260 The applicant gave evidence that in December 2002 he was kept in the Management Unit for two days. He said he was only allowed out of the Management Unit three times a day for a cigarette break following meals. That would last five to six minutes on each occasion. On this occasion, the applicant did not think there was anybody else being kept in the Management Unit while he was there. He said that before he was admitted to the Management Unit, he was subjected to a strip-search which required him to bend over while naked which he found humiliating and degrading. He found the experience in the Management Unit frightening. He was conscious that he was unable to communicate with anybody. The applicant gave evidence that while he was in the Management Unit, he was not seen by a doctor or a nurse. When released he was suffering from a lack of sleep and was anxious and scared. He said he was released when he signed an undertaking to behave and not to threaten self-harm. He was returned to Red 1.131 261 The applicant’s claim that he spent two days in the Management Unit in December 2002 was challenged by the Commonwealth.132 I do not accept that he was placed in the Management Unit in December 2002. I will address this later. The fires 262 There were two fires in Red 1. The first occurred on 27 December 2002 and the second on 29 December 2002. The applicant said these fires occurred only days after his release from the Management Unit. 263 Prior to the fire on 27 December, a detainee, Ghorbanali, threatened to start a fire. He had been transferred from Curtin. The applicant said that Ghorbanali had been depressed in Curtin and these symptoms were exacerbated at Baxter. The applicant did not take the threat too seriously, although he took the precaution of packing some personal items in a bag which he kept next to the door of his room. He did not say anything to the DSOs. He did not want to get Ghorbanali into trouble and thought that if there was a fire, that this might cause people to ask how desperate were the circumstances of the detainees.133 264 The applicant was in the recreation room when the first fire started. The fire started in the bedroom adjacent to the applicant’s bedroom. He ran to his room to save his belongings. All he could do was take the small bag he had packed and placed by the door. The DSOs rounded up the detainees in a corner of the compound. Each detainee was searched and then taken to the canteen. There they 131 T 510-513. 132 T 1297. 133 T 1527-1528. -- 73 of 647 -- [2025] SASC 59 Stanley J 70 waited for the fire brigade to arrive and douse the flames. The applicant was transferred to another room in Red 1. The applicant said he was left feeling very distressed by this incident. He felt there was a risk of something further occurring as the management did not seem to pay attention to the detainees’ grievances. After this, searches of detainees’ rooms occurred twice daily. In addition, the detainees were subject to body searches. There was an increase in the number of DSOs in the compound.134 265 In the early hours of 29 December 2002, the second fire started. Five separate fires ignited almost simultaneously. The applicant said he was in the recreation room at the time watching a movie. The DSOs started to round up the detainees. The DSOs were dressed in riot gear. The applicant realised one of the Iranian detainees, Mohammad Nemati, had taken a sleeping tablet and might have been asleep in his room as the fire raged. He spoke to the DSOs but they took no notice and the applicant ran towards Nemati’s bedroom to rescue him. Two DSOs came after him. There was smoke pouring out of the veranda outside the room. The applicant was overcome by the smoke. The applicant awoke in the Port Augusta Hospital.135 266 The applicant said that when he awoke in hospital, he was handcuffed to the bed. Other detainees were also treated in the hospital for smoke inhalation. He was effectively in hospital overnight, being admitted at about 3:00 a.m. on 29 December 2002 and returning to Baxter at around the middle of the day. He returned to Baxter in handcuffs and was placed in Red 3. On 30 December a DSO confiscated another lighter found in the applicant’s possession.136 267 The applicant denied any involvement in the lighting of either fire. 268 The applicant said that for two or three nights the detainees slept out in the open. Food was brought to them in the compound. On 1 January 2003 the DSOs took him and another seven or eight detainees to the Management Unit. They were told they were suspected of lighting the fires. They were strip-searched before they were admitted to the Management Unit. On this occasion, the air conditioning was on very high. The applicant was extremely cold. He only had a single blanket. He was shivering. He could not sleep. The detainees in the Management Unit were complaining about the air conditioning. The DSOs would turn it down for a little while and then turn it up. The applicant believed that this was done deliberately to inflict pain and suffering on the detainees. In addition, the lights were kept on in each bedroom all night. While the DSOs had the ability to turn the lights off or to dim them, they did not do so. Again, the applicant believed this was deliberate with the intention to make him suffer. In addition to his physical discomfort, he was frightened of the possible outcome of the accusation of arson.137 134 T 516. 135 T 517-519. 136 T 1531. 137 T 520-524. -- 74 of 647 -- [2025] SASC 59 Stanley J 71 269 While he was in the Management Unit, he was seen by a nurse for his sore throat, headache and difficulty sleeping. The nurse said he could not see a doctor until he left the Management Unit. She gave him some Panadeine and a sleeping tablet. While he took that, it had no effect. While he was in the Management Unit, the applicant had nothing to read. There was nothing to do. He did not receive any visitors.138 Transfer to Red 3 270 The applicant was released from the Management Unit on 3 January 2003.139 He said that upon his release he was told by a DSO that if he misbehaved in the future, he would be detained in the Management Unit for a longer period.140 The applicant, was transferred to Red 3 with some 10 to 14 other detainees.141 The regime was more restricted. There were more frequent searches of detainees’ rooms.142 The applicant’s mental state upon release from the Management Unit – January 2003 271 The applicant gave evidence that on his discharge from the Management unit in January 2003, he was not in good shape physically or mentally. He felt very anxious about the future. He had been told by a DSO that he would be interviewed by the police over the fires and if he was charged and found guilty he would be imprisoned and then deported to Iran. He was scared and distressed. A few days later the applicant saw a doctor. He told the doctor that he could not sleep, his mind was pre-occupied and he could not think straight, and he was feeling depressed. He asked for some sleeping pills and an antidepressant.143 272 In January 2003 there were a number of altercations between the applicant and DSOs or a nurse. The applicant admitted that he was aggressive and rude. He attributed this to feeling under immense pressure as a result of his mental health issues.144 In addition, the applicant found the behaviour of some of the DSOs was aggressive and provocative. The applicant referred to an occasion on 15 January 2003 where the applicant was smoking in the recreation room when he was told by a DSO that smoking in the room was banned. No such prohibition had been mentioned before this.145 Another example of the DSOs’ provocative behaviour was to conduct searches of the applicant’s room while he was asleep. This would interrupt his sleep.146 138 T 528-530. 139 Exhibit A836. 140 T 530. 141 Exhibit A835. 142 T 534. 143 T 530-534. 144 T 535. 145 T 538. 146 T 541. -- 75 of 647 -- [2025] SASC 59 Stanley J 72 273 The applicant said such conduct exacerbated his mental problems. He had trouble with a nurse when she denied him Valium. She said there was no record that this had been prescribed for him, but the applicant knew that it had been prescribed by the doctor.147 On 16 January 2003, the applicant saw the doctor. He had been complaining of painful testicles. He said he had to wait some two or three weeks to see the doctor. When he saw the doctor he also complained about feeling depressed. He was prescribed Diazepam which helped him sleep but did not address his anxiety. He accepted that the medical staff were trying to help.148 Transfer to Blue 3 274 In evidence-in-chief the applicant said that on 22 January 2003 he was transferred along with 13 other detainees to Blue 3. He thought this was related to the arson investigation. He said that in the early hours of the morning, around 3:00 or 4:00 a.m., DSOs rushed into his room in Red 3 shouting. He was placed on his stomach on the floor. The applicant did not resist. He said a DSO, Navid, forcefully dropped his knee onto the applicant’s back and handcuffed him. Subsequently he has suffered from back and neck pain. He said he was lifted by the back of his shirt to his feet and taken away.149 I will return to this later. 275 The applicant described Blue 3 as being similar to the other compounds but smaller. It was enclosed, meaning it was not possible to see anything outside the compound except the sky. There were only 14 detainees in Blue 3. Twice daily searches of the detainees’ rooms and body searches continued. When the detainees arrived they were addressed by one of the ACM managers. He told the detainees that they were suspected of starting the fires and that they were no longer entitled to the privileges they had previously enjoyed, such as phone calls and visitors, access to the gym and education facilities. The applicant said that as he had no part in lighting the fires, he felt this treatment was unfair. He felt very afraid.150 276 The applicant saw a doctor on 23 January 2003. He complained that he was still not sleeping well, even with Diazepam and Valerian. The applicant said he was not given any advice about how he might improve his sleep. He was prescribed Temazepam which provided him some short-term relief.151 Typically the applicant would stay up all night talking and playing cards with Gholam Reza (Reza) and other detainees. He would go to bed around 6:00 a.m. and sleep for four to six hours.152 Hunger strike – January 2003 277 On 28 January 2003, there was an incident in Blue 3 when a detainee, Mohammed Zadeh, attempted to hang himself. He was taken away. The applicant 147 T 536. 148 T 1586. 149 T 541-543. 150 T 544-545. 151 T 546. 152 T 603. -- 76 of 647 -- [2025] SASC 59 Stanley J 73 said that subsequently, the detainees commenced a hunger strike in protest against the way Mr Zadeh was treated. The strike lasted two days. They called it off after a promise was made by ACM’s general manager that Mr Zadeh would be medically treated and provided support and that they would be returned to Red 3. However, none of those promises were kept. The applicant said this only exacerbated his stress and anxiety.153 For reasons that the applicant did not understand, he was not provided with Temazepam between 28 January and 7 February 2003.154 Protest and self-harm incident - 6 February 2003 278 On 6 February 2003 there was an incident where the applicant, along with most of the other detainees in Blue 3, engaged in acts of self-mutilation with razor blades.155 The applicant said they did so as a protest against the promises that had been made and not kept and the removal of privileges such as phone calls, since they were moved to Blue 3. They intended to attract attention to their situation and grievances. The applicant said that a group of detainees approached the DSOs’ station and issued a list of demands, including restoration of phone calls and a meeting with the DIMIA manager. These demands were refused. One of the group, Reza, produced a razor blade and threatened to kill himself. He cut himself. The situation rapidly descended into chaos. People were shouting. The detainees assembled in the compound, removed their shirts and held up razor blades demanding that management come and speak to them about their grievances. The DSOs did not react. So the detainees, including the applicant, commenced to cut themselves. The applicant used a razor blade to cut himself about 40 times. He had never done this before. One of the cuts was deep and has left a permanent scar. The applicant said he was angry and anxious. Some of the detainees had cut themselves badly. The self-harming ended when the DSOs approached the group and said that they would allow them to receive medical treatment only if they threw away the razor blades. As some of the detainees were badly hurt they decided this was best. The applicant and other detainees dropped his razor blade. They were treated by the nurse and told the DIMIA manager would meet with them the following day. They were not sent to the Management Unit.156 279 The applicant said they had a meeting with the DIMIA manager. The detainees complained about being deprived of privileges and continuing to be investigated in relation to starting the fires. A few days later they were informed that they would be returned to Red 3 and phone privileges restored if they behaved. 280 At some point the applicant was interviewed by two AFP officers but was never advised of the outcome of the investigation into the lighting of the fires. He 153 T 547-549. 154 T 549. 155 T 555. 156 T 555-558. -- 77 of 647 -- [2025] SASC 59 Stanley J 74 continued to worry whether he would be charged over the matter. Over time as nothing transpired his concerns in this regard dissipated.157 Acts of self-harm witnessed by the applicant at Baxter 281 The applicant referred to a number of fellow detainees whom he observed engaging in acts of self-harm at Baxter. The applicant said Ali Namavar participated with him in the group self-harming incident on 6 February 2003. On another occasion he witnessed Mr Namavar drink washing up liquid.158 The applicant also witnessed his friend Reza cutting himself, once on the chest and once on his hand.159 The applicant also described an incident at Baxter where Mr Hamidi, whose acts of self-harm he had witnessed at Curtin, complained to a DSO he had a headache and needed to see the nurse to get something to relieve the pain. He was told that there was no access to the nurse until the following morning. When it was apparent that the DSOs were not going to do anything, Mr Hamidi stripped naked and stood in front of the DSOs’ office and demanded to see the nurse for medication. The DSOs refused. Mr Hamidi refused to move and the DSOs surrounded him. At this point he started cutting himself. 282 The applicant said another detainee, Mojahed, observed this and tried to intervene. The DSOs dragged both of them to the Management Unit. The area where Mr Hamidi cut himself on the grass was flooded with blood. Rather than help him, the DSOs dragged him along the lawn. The applicant despaired that all of this was the result of a simple request for medication. The next day the applicant and a number of other detainees went on a hunger strike demanding that Mojahed and Hamidi be released. After two days the general manager met the strikers and promised to release Mojahed and Hamidi if the strikers would end their hunger strike.160 The state of the applicant’s health – February 2003 283 On 7 February 2003 the applicant was seen by a doctor. He complained of severe stress and loss of sleep. He said his mental health had deteriorated further. The applicant was given a further prescription of Temazepam. However, he was not provided with counselling, nor was it suggested that he should see a psychologist or psychiatrist. 284 On 9 February 2003 the applicant verbally abused a nurse saying “fuck you lesbian.” He said he was upset because she did not provide him with his medication. He said he had never addressed a woman in that way before being detained in Australia.161 157 T 569. 158 T 657. 159 T 658. 160 T 660-662. 161 T 565. -- 78 of 647 -- [2025] SASC 59 Stanley J 75 285 On 14 February 2003 the prescriptions for Luvox, Diazepam and Temazepam were stopped, and the applicant was prescribed Endep and Capadex. Endep was for the applicant’s anxiety and Capadex was for pain. The other medications were stopped because they were upsetting his stomach. The applicant continued to have problems with sleeping. He was regularly seeking sleeping pills. He said he was prescribed Tramadol for pain in his back and leg.162 286 The applicant said he has no recollection of an incident on 28 February 2003 where he was accused of stealing a bottle of sleeping pills from the nurses’ station.163 Escape attempt 287 Around the middle of February 2003, the applicant and his close friend Reza began digging a hole underneath Reza’s room towards the perimeter fence. The applicant said this continued until they were discovered on 5 March 2003. They had taken some serving spoons from the kitchen which they used to dig. The hole was under the bunk bed in the bedroom. The applicant said that while he thought there was little prospect of the escape attempt succeeding, he was so desperate he was prepared to try. He realised the potential consequences if they were caught were being sent to prison or, at the very least, the Management Unit. The nearest perimeter fence was about six metres from Reza’s room. There was a further fence another four metres beyond that. When the hole was discovered Reza and the applicant were handcuffed and taken to the Management Unit.164 Management Unit – March 2003 288 The applicant said he and Reza were searched and each placed in separate rooms in the Management Unit. The applicant’s room was again very cold. The air conditioning was up too high and he only had a single blanket for warmth. He has no recollection of ever asking for the air conditioner to be turned on in the Management Unit. On the contrary, he said that the air conditioning was always on, it was just a question of how much.165 He later conceded that he might have asked the DSOs to adjust the temperature of the air conditioner.166 289 He again experienced difficulty sleeping and kept asking for sleeping tablets. They offered him Valerian which he refused. He said it was useless and had a horrible smell.167 The applicant said that while in the Management Unit he entertained thoughts of self-harm. He did not mention this as he feared that if he did so it would prolong his time in the Management Unit. His repeated denials and assertions that he was alright were untrue. He felt utterly hopeless. The longer he was in the Management Unit the worse he felt.168 He spent the time in his room 162 T 567. 163 T 569-570 164 T 573-575. 165 T 584. 166 T 1641-1642. 167 T 1633-1634. 168 T 577-578. -- 79 of 647 -- [2025] SASC 59 Stanley J 76 in the Management Unit pacing about or lying under the blanket. He provoked the DSOs by covering the lens of the CCTV with wet toilet paper. They would come into his room and threaten him. He thought that someone would recognise that the digging of the hole was such an act of desperation that he required treatment.169 290 On 6 March 2003 a nurse saw him in the Management Unit. He asked for an appointment to see the doctor. He said he was told that an appointment was not available for two weeks. The applicant thought that the authorities were playing with him. He said they seemed to enjoy deliberately making him suffer. 170 As it transpired, there was record of a visit by Dr Ojah the following day, though the applicant said he did not recall this.171 He said he continued to suffer headaches while in the Management Unit. 291 The applicant alleges that while he was in the Management Unit, DSO Navid, who had previously kneed him in the back continued to mistreat him. While there, Navid would ignore him. He would not respond to requests to turn down the air conditioning or the lights. The applicant said eventually Navid was removed from Baxter for assaulting two detainees with a baton.172 292 The applicant has no recollection of being provided with newspapers while in the Management Unit. He would get three 10-minute smoke breaks during the course of the day.173 293 While in the Management Unit the applicant was regularly asking when he would be released. He was told he would be interviewed by the police about his attempt to escape. DSOs told him his release from the Management Unit had to await an interview with the AFP. On 13 March 2003 he was released from the Management Unit notwithstanding that he had not been interviewed by the AFP.174 294 The applicant said that the DSOs extracted a promise from him that he would not make a further escape attempt. He returned to Blue 3. He felt better even though Blue 3 lacked the facilities available in Red 3. He did not have access to a phone or permission to visit anyone in another compound. The applicant said that after his release from the Management Unit his room was searched every second day. This was upsetting.175 295 The applicant does not recall writing a letter in the Management Unit. He does not think that he would have been given a pen to write a letter because of the risk that it could be used as a weapon. The applicant could not remember if he had received any letters at this stage of his detention. There was a couple he thought 169 T 719. 170 T 580. 171 T 581. 172 T 807-808. 173 T 575-576. 174 T 586-588. 175 T 603-608. -- 80 of 647 -- [2025] SASC 59 Stanley J 77 wrote to him after this time. He believes he only ever wrote one letter to a lady in Melbourne. This was later. 296 The applicant said he was not informed that he would not be prosecuted in relation to the fires on 27 and 29 December 2002 or for the escape attempt in March 2003. The Australian government’s agreement with Iran – Memorandum of Understanding (MOU) 297 Just before 21 March 2003 the applicant and other Iranian detainees were brought to the canteen in Blue 3. He said they were handed two documents.176 One in English, the other in Farsi. They were addressed by the general manager. He informed them that the Australian government had reached an agreement (MOU) with the Iranian government that all asylum seekers in detention whose applications for visas had been rejected and who had exhausted all their appeal rights were to be returned to Iran. Those who did so voluntarily were entitled to compensation of $2,000. If this offer was not accepted they would be involuntarily deported to Iran without compensation. This came as a great shock to the applicant. He thought the timing of the announcement was atrocious being so close to Iranian New Year which fell on 21 March. It caused him great anxiety about the fate that would await him if he was deported to Iran. At that time, he was still waiting for a decision on his application for special leave to appeal to the High Court. The applicant understood that once he had exhausted his appeal rights he would be at risk of deportation.177 298 The applicant said that after this announcement many of the DSOs taunted the applicant and other Iranian detainees about the prospect that they would be deported soon. He said the DSOs would smile sarcastically.178 299 The applicant said that after the announcement of the MOU between the Australian Government and the Government of Iran, he felt particularly anxious and nervous when DSOs came to his room at night. He said that the DSOs would come and take detainees for deportation at night time.179 Events in March 2003 after the applicant’s release from the Management Unit 300 On 23 March 2003 there was an incident where the applicant said he broke up a fight between two detainees.180 176 Exhibit A192. 177 T 594-598. 178 T 598. 179 T 614. 180 T 604-605. -- 81 of 647 -- [2025] SASC 59 Stanley J 78 301 On 24 March 2003 the applicant was informed that he was being transferred from Blue 3 to White 1. He was unhappy with this. He had heard from other detainees that White 1 was crowded.181 302 The applicant said that on 1 April 2003 he wanted to speak to the operations manager about lifting the restrictions imposed preventing him from making telephone calls or visiting other detainees. In Blue 3 Reza and the applicant were the only detainees subject to these restrictions. The following day the applicant threatened self-harm if he did not see the operations manager by the next Friday.182 He accepts he was not taken to the Management Unit as a result of this threat.183 303 The applicant denies that on 4 April 2003 he was laughing and joking with the DSOs.184 However, he accepts that his mood fluctuated in response to events. He remained stressed and anxious about his detention and future.185 304 He also denies ever accessing the gym, although he admitted he went to the building where the gym equipment was kept to obtain videos which were stored there. He said this was also where parcels were collected.186 305 In early April the prohibition on the applicant using the telephone and paying visits to detainees in other compounds was lifted. He made a phone call to Iran on 9 April 2003.187 The applicant denied that he was a prolific phone user.188 He also paid visits to other compounds. 306 The applicant said he continued to experience difficulties sleeping. Between 18 March and 20 April 2003, the applicant did not see a doctor, nor a nurse except when they were dispensing medication.189 In May 2003 the applicant was continuing to suffer back pain. The applicant said that in mid-2003 he was watching a little bit of television and playing some soccer.190 On 29 June 2003 he injured his left wrist playing soccer. He was treated at the medical centre but his wrist remained painful. He was taken to Port Augusta Hospital for an x-ray. He said he was handcuffed with plastic cable ties which aggravated his pain. He was again exposed to the humiliation of being seen handcuffed by members of the public. 191 181 T 605-606. 182 T 607-608. 183 T 1648. 184 T 609. 185 T 1655. 186 T 608-609, 1652. 187 T 610. 188 T 613. 189 T 617-618. 190 T 620-621. 191 T 623-626. -- 82 of 647 -- [2025] SASC 59 Stanley J 79 Suicide attempt - 11 August 2003 307 On 8 August 2003 the applicant’s application for special leave to appeal to the High Court was dismissed. The applicant said he received no counselling after this occurred. He felt utterly hopeless as a result of the rejection of his application. He knew that he had now exhausted his appeal rights and was at real risk of being deported to Iran. He felt frightened and even more anxious. His insomnia intensified. 192 On 11 August 2003 the applicant took an overdose of Tramadol. He stole some tablets from the nurses’ station. Over the course of the afternoon and evening he took between 25 and 30 tablets. He said he intended to commit suicide. He said he took the tablets probably over three or four hours. He went to the common room and watched television, then returned to his room and locked the door. When a friend came to his room he persuaded the applicant to go to the kitchen to watch a football match on television. While he was there he fainted. When he awoke he was in his bed with a friend sitting in the room and two DSOs standing outside talking to a group of detainees. He was not fully conscious. He was nauseous and had a headache and blurred vision. He was placed under regular and frequent observation. He was very confused. Initially he felt as though he had died. His memory of this time is vague. He recalls a nurse coming to check on him. He told the nurse he just wanted to sleep. He did not tell the nurse he was suicidal because he was concerned that he would be put in the Management Unit. For the same reason he told her he had only taken two or three tablets. The applicant said he continued to contemplate suicide, although he denied this when spoken to by medical staff.193 308 On 23 August 2003 Reza was deported. The applicant said the DSOs came to Reza’s room at 2:00 or 3:00 a.m. Reza and two other detainees were told to collect their belongings and personal effects as they were being transferred to another compound. The DSOs prevented the applicant and other detainees from speaking to them. The DSOs were in riot gear. The applicant only managed to wave goodbye to Reza. The applicant was despondent that he could do nothing to help his friend.194 The deportations increased the applicant’s anxiety. He expected that, like Reza, he would also be deported. He understood that Reza and some of the others deported were detained upon their return to Iran and were subject to heavy fines. The applicant’s use of marijuana 309 The applicant said that after the overdose and Reza’s deportation, his mental condition worsened. He felt he had reached the end of the road. Towards the end of 2003 he found some relief from his troubles through smoking marijuana.195 He and a number of other detainees would pool money they obtained from the sale of phone cards to purchase marijuana. He said that later in 2004 and 2005 they obtained marijuana from Albanian detainees in exchange for purchasing items for 192 T 468, 629. 193 T 630-635. 194 T 36. 195 T 649. -- 83 of 647 -- [2025] SASC 59 Stanley J 80 them from the canteen.196 They had a homemade bong which was concealed under the wardrobe of a detainee’s room. In the evening after dinner they would gather in the room of one of the detainees and smoke marijuana. The applicant gave evidence that generally the DSOs turned a blind eye to this.197 He said three to four was a weekly average. The applicant found that it had a relaxing effect and made him feel good. It gave him a sense of euphoria. For a while he used it as a substitute for medication. While he had smoked marijuana a few times in Blue 3 he started smoking seriously once he was transferred to White 3 on 7 October 2003. In March and October 2004 DSOs confiscated bongs found in the applicant’s possession. The applicant obtained other drugs, such as Panadeine Forte, Tramadol and Diazepam from another detainee. He would use these drugs when he could not obtain marijuana. However, the more marijuana he smoked the less effective it became, and he started supplementing marijuana with medication like Endep.198 310 The applicant said that once, during an inspection of the room of the applicant’s friend, Mohammad Nemati, the DSOs found a bong. They confiscated it. The applicant went and sought to negotiate its return. The DSOs refused to return it. The applicant and other detainees had to manufacture a new bong.199 311 The applicant said his daily life consisted of staying up all night, sleeping in the morning, going to the kitchen in the evening to get something to eat, and then going to someone’s room to smoke marijuana. United Nations application 312 For a brief period the applicant’s hopes for release from detention rose after he was approached by three women who proposed that an application could be made on his behalf to the United Nations for his transfer to a third country.200 The applicant would have been happy for this to happen. He just wanted to be out of detention, but his hopes were soon crushed as the Australian Government would not allow the proposal to proceed. 313 Later, in early 2004 lawyers from the Refugee Advocacy Service of South Australia (RASSA) visited Baxter. The applicant said they suggested that they might be able to assist the applicant and others in obtaining a temporary bridging visa. He applied for his DIMIA file for this purpose. However, nothing came of this approach by RASSA. However, in February 2004 an application was made on his behalf to the United Nations. The applicant understood that had the effect of preventing his deportation to Iran until it was determined. As it happened, 196 T 1843-1844. 197 T 644, 1809. 198 T 681. 199 T 652. 200 T 645. -- 84 of 647 -- [2025] SASC 59 Stanley J 81 nothing had occurred in that regard before the applicant was granted a TPV and released from detention.201 October 2003 - transfer to White 3 314 The applicant said that when he was transferred to White 3 on 7 October 2003 he was required to sign a behaviour management plan which he understood provided that he would be put in the Management Unit if he misbehaved.202 He said that during the entire period between being transferred to Blue 3 on 13 March 2003 and being transferred to White 3 he only left Blue 3 to attend the medical centre or the Port Augusta Hospital. 315 The applicant said White 3 was larger than Blue 3. There was a recreation room with a satellite television, a kitchen and dining room. After January 2004 when G4S took over, food was available during the day. There was a canteen from which detainees could purchase snacks and toiletries. Detainees had access to telephones at all times. The applicant spoke to his mother in Tehran by telephone every two to four weeks. There was an education centre with a library which the applicant did not utilise. White 3 had a nurses’ station where the detainees could consult the nurse and where medicine was dispensed. The applicant said that apart from a view through the laundry window, the only view of the outside world was the sky.203 316 The applicant said he was not provided with any counselling. However, he also gave evidence of being approached by a woman who said she was a counsellor and asked if he would like to talk to her to get things off his chest.204 He asked if she could get him out of detention, help him obtain a visa, or get him out of the situation he was in. When she said that she could not do anything in that regard he said he did not see any point in talking to her. He had detainees with whom he could talk. The applicant said there was no offer to arrange for him to consult a psychiatrist or psychologist. He said he would have spoken to either if afforded the opportunity.205 317 The applicant said that at this time he was becoming more withdrawn and secluded. He led an increasingly solitary life spending most of his time alone in his room. He said that tendency increased during 2004. He felt he was just alive but with no reason to live.206 While he visited other compounds frequently, this was predominantly to smoke marijuana. January 2004 - G4S commences management of Baxter 318 G4S commenced management of Baxter on 19 January 2004. The applicant only became aware that a different company had taken over the management of 201 T 677-678. 202 T 645. 203 T 648. 204 T 1758. 205 T 649-650. 206 T 1658. -- 85 of 647 -- [2025] SASC 59 Stanley J 82 Baxter when the DSOs appeared in different uniforms. Most of the DSOs who had been employed by ACM were employed by G4S. There was almost no change in the way the DSOs behaved after the change in management. The only real differences the applicant noticed under the new management were that he was able to get access to Australian newspapers, and that he could walk with DSOs in the vicinity of the compound rather than be transported in a van. 319 The applicant said that generally, the relationship between DSOs and detainees did not change once G4S commenced managing the detention centre. He said that, with a few exceptions, most of the DSOs did not treat the detainees with respect. There was little conversation between the DSOs and detainees. 320 He said that once G4S commenced operating the detention centre most of the DSOs continued the practice of addressing the applicant by his number. Again, he found this demeaning and humiliating. It conveyed the message that he was worthless. However, some DSOs would address him by his first name in conversation. 321 The applicant gave evidence that playing soccer and access to gym equipment were the only activities offered to the single men in White 3, but in cross-examination he accepted that there was also a pool table and table-tennis table available for their use.207 Some detainees played cricket. He was unaware of the opportunity to engage in pilates, yoga, volleyball, arts and crafts, board games and boxing. He played cards. In the middle of 2004 one of his fellow detainees married an Australian woman. She had given him a DVD player and a small television. When the detainee left detention he gave the applicant the DVD player and television. He said that thereafter he spent a lot of his time watching television and DVDs. The applicant’s last year in detention 322 In the last year of his detention, the applicant suffered from earache. He said he was only given pain killers. The applicant’s tooth also continued to trouble him notwithstanding the temporary filling that had been inserted at Curtin. He was told he was on a waiting list to see a dentist. His throat would flare up from time to time and he continued to suffer headaches and back pain. 323 In February 2004 the applicant again experienced right testicle pain. He sought the assistance of the nurse notwithstanding his embarrassment at having to discuss this problem with her within the earshot of others. The applicant was careful about what he said to the nurses. He was concerned that if he detailed the full extent of his mental anguish he would be taken to the Management Unit. 207 T 1732. -- 86 of 647 -- [2025] SASC 59 Stanley J 83 324 The applicant said that he experienced heartburn at Baxter because of the spicy food at Baxter, which was heavily influenced by the tastes of Pakistani and Afghan detainees. 325 The applicant said he lost a lot of weight. The doctor advised him to eat more and eat more often. He was only eating one meal a day. From late 2004 the applicant attempted to gain weight. 326 The applicant’s evidence is that in the last year or so of his detention he became more secluded. He would only spend about five or six hours a day outside his room. He continued visiting detainees in other compounds. He could walk to the nearest compounds. He would often smoke marijuana. During the day he could walk to the gym and education centre. He was alone in his room. He continued to do some cleaning work and work in the kitchen in order to earn money to purchase telephone cards, cigarettes and drugs. He earned $56 per week in the kitchen for six hours work each day, seven days a week and $30 per week for cleaning for four hours a day, six days a week. If he did not work he was paid $22 or $24 per week.208 327 On 11 May 2004 the applicant made a request for a pillow and a blanket because he was very cold at night. He said there was no response to that request and he wrote a further application for a pillow and a blanket on 1 June 2004.209 328 In mid-2004 the applicant was taken to Port Augusta Hospital for a chest x- ray.210 329 On 28 June 2004 the applicant was visited by a Melbourne couple, Warwick Bennett and Rachel Paterson. He did not know them. The applicant thought they subsequently wrote a letter to the Minister for Immigration on his behalf.211 Rachel Paterson offered to house and support the applicant financially upon his release. The applicant wrote to the Zoroastrian community in Melbourne seeking support. Two members, Mr Khan and Mr Bilimora, also wrote to the Minister on his behalf. He also received visits from former detainees who had been granted visas, Mohammad Fardipour and Ali Namavar.212 330 On 9 September 2004 the applicant was transferred to Blue 2. On 5 October 2004 he complained to a DSO about his frustration with his continued detention. On 25 November 2004 the applicant underwent dental treatment. 331 In February 2005 the applicant complained to a nurse that he was not sleeping well and wanted an antidepressant. He was seen by a doctor who prescribed Endep. The applicant took Endep irregularly through March and April of 2005. 208 T 715. 209 T 699. 210 T 1740. 211 T 696-697. 212 T 1803. -- 87 of 647 -- [2025] SASC 59 Stanley J 84 332 In March 2005 the applicant made a further application for a TPV. That was supported by a statutory declaration of 14 March 2005. He was assisted in preparing his application by a migration agent, Ms Hogarth. The interpreter read through the supporting statutory declaration. The applicant, the interpreter and Ms Hogarth signed it. The statutory declaration repeated the claim, made in his initial application for a visa, that he had escaped from the security police in Iran by jumping out a window and flagging down a car which took him away. In addition, it referred to the security police conducting a search of his home in Tehran where they discovered a copy of Salman Rushdie’s Satanic Verses and a video of the Shah of Iran. The applicant denied saying this, he said the statutory declaration was put in front of him and he signed it. He also said that at the time his English was poor. 333 The applicant entertained some hope that this further application might be successful as recently others had been released from detention.213 Summary 334 The applicant’s evidence is that the worst times during his detention were in the Management Unit in March 2003; when Reza was deported; when the Iranian detainees were informed that the Australian government had entered into an agreement with the Iranian government for the return of detainees who had been refused visas; when he was cutting himself; and when he took the overdose. The applicant found that the use of marijuana and prescription medication tended to alleviate his mental health symptoms. From August 2004 until his release from detention the applicant said he felt dead inside. He said he was dependent on drugs to get him through each day. 335 The applicant said that he chose not to inform any doctor or nurse at Baxter about the full extent of what he now alleges are his mental health problems because he thought the immigration authorities would only ever release detainees who were of sound mind.214 POST DETENTION The applicant’s release from detention 336 On 27 April 2005 the applicant was released from detention. He was working in the kitchen that morning when he was summoned to the DIMIA office and informed his visa had been granted and he had to pack his bags and be ready to leave the detention centre by 4:00 p.m. that day. The applicant said that although he was relieved to be free, at the same time he found the prospect of his sudden release difficult because detention had taken five years of his life. He had suffered a lot of mental and physical anguish. He felt numb. He had a limited opportunity to say goodbye to a couple of friends but was not able to see friends in other compounds. He took with him some small belongings and clothes. He said he 213 T 700-701. 214 T 717. -- 88 of 647 -- [2025] SASC 59 Stanley J 85 was given $50 and driven to a motel in Port Augusta which had been paid for by DIMIA. He was told that the next morning he should catch the bus to Adelaide where he would be met and issued with his visa.215 337 Before leaving Baxter he was not examined by a nurse or a doctor. He was not given a copy of his medical records or any medication. He said that after he arrived in Adelaide and was issued with his visa he was on his own. He said DIMIA did not provide him with any information on finding employment, accommodation, medical assistance or social security. When he asked the officers who met him at the bus station in Adelaide what he was to do and where he was to stay, he was told to find a friend and contact the Australian Refugee Association (ARA).216 338 However, in cross-examination the applicant said that upon his release from detention in April 2005 he travelled by bus to Adelaide where he was met by DIMIA officials who gave him his visa. He recalls attending a meeting at Centrelink, although he cannot say whether it was the same day. He accepted that at Centrelink he was given an Eftpos card with a $190 cash credit for his immediate use. Arrangements were made for him to receive fortnightly payments of $497.30. Centrelink referred him to the Migrant Health Service (MHS) and to Survivors of Torture and Trauma Assistance and Rehabilitation Service (STTARS).217 339 The applicant said the first night the applicant was in Adelaide he stayed with a friend. The next day he went to the ARA office and asked if they could assist him in finding some accommodation. They gave him a newspaper and told him to look at the ads. The next night he stayed with another friend who introduced him to an Australian who was a refugee supporter. He arranged for some accommodation. The following day his friend took him to the bank and to Centrelink. At the bank he opened an account. The applicant found accommodation with a couple on Marion Road at Ascot Park who rented him a room for $155 a week. 340 On 14 June 2005 there was an interview conducted at STTARS’ office. At this point, the applicant had been to Centrelink and had a Medicare card, housing and a health care card. He told the interviewer he had a lot of wax in his ears and it affected his hearing. He said he had no problems with his vision. He said he had a lot of cavities, but that he had attended a dental appointment for this. He said that sometimes he had back pain and a sore throat. He said he had not suffered an injury such as a broken arm or leg. He said he had no problems with sleeping. He said his memory was poor sometimes but that he was not concerned about this. He said he felt confused for the first two weeks after his release from detention but he had no intrusive thoughts, flashbacks or suicidal thoughts. When he left Baxter he was not supplied with any medication. Under cross-examination, the applicant 215 T 705-708. 216 T 708. 217 T 1023-1025. -- 89 of 647 -- [2025] SASC 59 Stanley J 86 accepted he had not been on any regular medication since May 2004. During his last year of detention he was given Panadeine, Panadol and some sort of syrup or tablet for an acid reflux. He could not get sleeping pills when he needed them.218 The applicant’s post detention employment 341 About four to six weeks after his release the applicant found some work pruning grapevines. This was too hard physically. He gave up after about three days. A priest, Father Paul Bourke, suggested the applicant should come to Whyalla and he would try and find him employment. The applicant did so. Father Bourke found him work in a factory but the applicant did not like it. He had a small bedroom at the church but there was no-one else around and he was very lonely. It was very quiet and reminded him of detention. He returned to Adelaide. The applicant took steps to obtain a driver’s licence. He purchased a car which enabled him to contact job agencies for work. 342 In 2005 the applicant obtained employment with ROH Wheels. This only lasted three weeks before the section of the plant in which he was working was closed. He was transferred to another section of the plant where he was given work involving lifting alloy wheels weighing 35 kg. He could not cope physically with this work and resigned due to back and shoulder pain. 219 He obtained work at a factory on Port Road which made dashboards and car parts. After three days he argued with his supervisor and was dismissed. 343 He found employment at Cibo working in a cold room. The hours were from 2:00 a.m. to 6:00 a.m. three days a week. He left because he could not withstand the cold. He then obtained work for Clipsal at Bowden manufacturing plastic electrical sockets. He did this work for five or six months until the plant was transferred to Strathalbyn. He picked up some casual work from employment agencies until early 2007 when he underwent an operation for a stomach ulcer. The applicant spent seven months recuperating. The applicant found employment as a meter reader. He lost this job when he had an argument with a supervisor about being sent to distant suburbs for work. He was about to throw the meter reading device at his supervisor when a manager intervened. By this time the applicant was living in a one-bedroom unit in Richmond. He did not seek out his detainee friends as seeing them revived bad memories of detention. The applicant said he was living much as he had done in detention, staying up at night and sleeping during the day. He was taking Tramadol and Panadeine Forte. His sleep was interrupted. He would frequently experience bad dreams about detention. The applicant found that bad memories of detention could be triggered by various things including watching television; seeing bouncers outside nightclubs or the casino; or driving past the detention centre at Woomera when he was working at Roxby Downs.220 218 T 1027-1028. 219 T 731-732. 220 T 742-744. -- 90 of 647 -- [2025] SASC 59 Stanley J 87 344 The applicant said he obtained employment with Spotless Cleaning Services (Spotless) at Roxby Downs in November 2007. He went to Roxby Downs with a friend, Roberto Goodarzi. They obtained work in the laundry washing uniforms for the mines. The applicant worked for two weeks when he was transferred to cleaning work. He was unhappy about being shifted to this work. He said he had an argument with the team leader and was dismissed. 345 In December 2007 the applicant travelled to Perth to look for work. He stayed with a friend in Fremantle. He found work but the duties were not what he expected and after one day he argued with the supervisor, who threatened to call the police if the applicant did not leave. Next, the applicant found work making pots for the mines. He did this for about two months. The job was not well paid so he left when he obtained work at IGA. At IGA he was preparing orders in a central storeroom. After a month he was telephoned by his friend Mr Goodarzi who told him there was work for him at Roxby Downs. He decided to leave Perth because he was living with a friend who was a former detainee and also had mental health issues. His condition was worse than the applicant. 346 The applicant returned to Roxby Downs in April 2008 and again obtained work in the laundry. He worked there for five months. The applicant denied that he was terminated from his employment at the mines at Roxby Downs in July 2008 because he tested positive to amphetamines and methylamphetamines. He denied ever taking speed or ice. He suggested that the presence of those drugs in his urine was explained by him taking cold and flu medication.221 347 The applicant went to Kalgoorlie to stay with a friend, a former Iranian detainee, Jafar Farjavand. The applicant was unable to find work in Kalgoorlie. He contacted another friend who lived on the Gold Coast. He left Kalgoorlie and travelled to the Gold Coast. He was again unable to find work. The applicant continued to look for work. He had to report to Centrelink identifying applications he had made for employment. 348 The applicant confirmed that for a short period around 2010 or 2011 he worked for Mount Barker Farms as a driver. He denied he made $25,000 in this work. 349 The applicant said he returned to Roxby Downs in March 2011. He lived in a cabin at the caravan park. He said it reminded him of detention and made him angry. Again, he was employed by Spotless and worked in the laundry. 350 This time, he worked at Spotless for two months. He said he was dismissed on 17 June 2011 after a dispute about claiming worker’s compensation for back pain. His managers were upset that he had seen a doctor about his back pain without notifying them. The applicant felt he was tricked by his supervisors. They wanted him to sign a declaration saying he would not claim worker’s compensation 221 T 1052-1053. -- 91 of 647 -- [2025] SASC 59 Stanley J 88 for any back injury he suffered. When he agreed to do this and signed the declaration he was dismissed for being absent without leave. He denied this was the real reason for his termination.222 He felt very angry about his treatment. 351 In November 2013 the applicant obtained work with Korvest as a sheet metal worker. He worked there full time for about one and a half years until he was made redundant. He made cable trays and worked on the process line. The work was performed standing. He was able to cope with the work by taking OxyContin. The sheet metal would be cut to specification by an automated guillotine or have holes punched through using a computer-directed machine. He worked the afternoon shift from 3:30 p.m. until 10:35 p.m. 352 On 18 January 2016 the applicant found employment for four days a week at Fielders Manufacturing cutting sheet metal. This was congenial work. Much of it was done with the applicant working by himself. That employment came to an end on 8 May 2016 for reasons the applicant cannot recall. 353 Between 29 May 2016 and 17 July 2016 the applicant was employed as a labourer for Adelaide Industrial Labour Service. This involved placement at different venues undertaking a variety of work. The work was fairly light and with medication he could cope with it. He was happier being at work than at home where he argued with his wife and, over time, with her son. 354 From 27 November 2016 to 18 December 2016 the applicant was employed by Iplex Pipelines. At Iplex the applicant performed work cutting pipes to a specific length and assembling them. He worked full time, which was eight hours a day, five days a week. He used a special tool to wrap material around plastic pipes to protect them from damage when they were underground. He said that while the work was not very heavy, it did aggravate his pain. On the other hand, his mental problems continued to trouble him. Home did not provide respite. The arguments were a source of aggravation. 355 He resumed working at Iplex on 15 January 2017. That employment ended on 8 March 2017. He said he resigned following an argument with another employee. 356 He commenced work with Wengfu Australia on 11 March 2017. This was a fertiliser storage facility. The applicant worked three days per week from Wednesday to Friday. He worked in a warehouse. Fertiliser was imported from China and stored in the warehouse. The applicant would record the details of trucks transporting fertiliser. He would weigh the trucks to ascertain their load. This was a split eight-hour shift. This work came through a job agency. The agency would sometimes find him other work on Mondays and Tuesdays. The applicant’s employment came to an end when he was placed with another employer working in a cold room on a Monday. The applicant said he left after 222 T 1101. -- 92 of 647 -- [2025] SASC 59 Stanley J 89 only working for an hour because he could not tolerate the cold. The job agency then terminated his work with Wengfu on 29 April 2017. 357 The applicant worked for Samaras Structural Engineers between 9 May 2018 and 23 July 2018 as a machine operator. The work involved cutting steel beams to specified lengths using an automatic cutter. He worked from 6:30 a.m. until 2:30 p.m. or 8:00 a.m. until 4:00 p.m. This was process line work using a computer. Some of the work he performed standing; some sitting. The applicant said that due to a lack of concentration he made mistakes in cutting the beams which resulted in the termination of his employment. 358 The applicant then worked at Tony’s Flowers on a conveyer belt putting together flowers. This was on-call work. 359 Next, at Dowell Windows the applicant placed rubber seals around glass in window and door frames. He only performed this work for three or four days. 360 On 9 September 2018 the applicant obtained full time employment with B&R Enclosures. He has remained in this employment. B&R Enclosures produces boxes for gas and electricity meters to be installed on the exterior walls of domestic residences. The work performed by the applicant involves bending metal sheets to a required size. The applicant works by himself. 361 The applicant’s present employment with B&R Enclosures is a full-time position starting at 9:30 a.m. and concluding at 6:00 p.m. It is assembly line work. The applicant manually puts items into meter boxes. He also fabricates the meter boxes, bending them into shape using a machine, and puts rivets into hinges using an automatic process. 362 The general manager of B&R Enclosures is Doug Searle. The applicant applied for the position and was interviewed by Mr Searle. The applicant informed him of his background as an asylum seeker and detainee, as well as his employment history and his physical and mental problems. Mr Searle is very supportive. The applicant has managed the work with his mental problems by taking a day off here and there when he wakes in the morning feeling angry and agitated. He thought he may have taken somewhere between 13 and 15 days off for this reason since he commenced. He would telephone the company and advise that he was physically unwell and unable to attend work on those days.223 363 The applicant said that until recently he has been able to conceal his mental health problems from his fellow employees. However, media reports of the applicant’s case at the commencement of the trial revealed the applicant’s psychiatric issues to the workforce. That resulted in some employees making sarcastic remarks to him. 223 T 897. -- 93 of 647 -- [2025] SASC 59 Stanley J 90 The applicant’s post detention health 364 The applicant’s first attendance on a doctor after his release from detention was on 11 August 2005 for a sore throat, a cough and fever. On 8 October 2005 he attended at a medical clinic with complaints of shoulder and back pain due to heavy lifting at ROH. He was prescribed Tramadol. He sought assistance with his mental health and was referred to the Migrant Health Centre or STTARS. He saw a general practitioner at STTARS. He complained about insomnia; his inability to control his anger; his inability to tolerate crowded, noisy places; his anxiety about what would happen when his three-year TPV expired; and his intrusive thoughts about detention. He was given the details of a general practitioner, Dr Zuvela, and advised to join a group of TPV holders. He said he tried this but found that he was reminded of detention which only exacerbated his symptoms of anxiety. 365 On 8 November 2005 he attended at a natural therapies clinic complaining of back pain. He returned on 28 November 2005 with the same complaint. He was again prescribed Tramadol. 366 On 22 February 2006 he again attended at the natural therapies clinic with a complaint of lower back pain. He attributed his back pain to the work at ROH, which was subsequently aggravated by other work. He was again prescribed Tramadol. 367 On 28 March 2006 he attended at a clinic with shoulder pain. On 29 May 2006 he again attended at the natural therapies clinic complaining of lower back pain aggravated by work. He was again prescribed Tramadol. He thought that by that time he was working at Clipsal. 368 On 22 June 2006 he attended at a clinic with a complaint of pain between his shoulders. He was again prescribed Tramadol. 369 On 24 November 2006 he attended at a clinic with a complaint of back pain and sought a prescription for Tramadol. 370 On 12 December 2006 he attended at a clinic with a complaint of back pain from his right shoulder down to his lower back caused by working in a factory. He again asked for Tramadol. 371 The applicant said he underwent an operation in early 2007 for a stomach ulcer and spent seven months recuperating. He said his general practitioner, Dr Zuvela, gave him a prescription for OxyContin, and that he thought this was the first time he was prescribed OxyContin. 372 On 21 February 2007 the applicant attended at a medical clinic complaining of a soccer injury which aggravated a knee injury sustained when he was playing soccer in Iran, as well as suffering back pain. The applicant said that although he was passionate about football, since leaving detention he had only played on this -- 94 of 647 -- [2025] SASC 59 Stanley J 91 one occasion apart from kicking a soccer ball with his stepson at Renown Park. He had played a bit when he was in detention. He recalls suffering two injuries while playing in detention: once when he broke a toenail and once when he injured his wrist. He does not recall any injury to his shin. When he was in detention he would occasionally watch international matches on television. 373 On 31 July 2007 he again attended a medical clinic complaining of back and knee pain as a result of the soccer injury. 374 On 5 September 2007 the applicant again attended at a medical clinic complaining of back pain and was prescribed Tramadol. On 16 October 2007 he attended with the same complaint and was again prescribed Tramadol. 375 On 28 November 2007 the applicant attended a medical clinic in Adelaide complaining of back pain and seeking Tramadol. 376 On 29 April 2008 the applicant attended at the practice of Dr Lockwood at Roxby Downs complaining of chronic back pain and seeking OxyContin. He said he had been prescribed OxyContin by a doctor in Adelaide. He gave him one tablet. He attended again at Dr Lockwood’s surgery the following day and was given two tablets of OxyContin. Contrary to his evidence-in-chief that he had first obtained a prescription for OxyContin from Dr Zuvela in 2007, the applicant accepted that the first prescription he obtained from a medical practitioner for OxyContin was from Dr Lockwood on 29 April 2008. The applicant conceded that in 2007, before he was medically prescribed OxyContin he obtained it illegally.224 By this time the applicant either was addicted to OxyContin or was developing such an addiction. 377 On 2 May 2008 the applicant attended at the practice of Dr Jilani at Roxby Downs complaining he had been suffering back ache for two years and that he took 80 mg of OxyContin daily. Dr Jilani gave him a prescription for one tablet of OxyContin. 378 On 17 June 2008 the applicant again consulted Dr Jilani seeking OxyContin. The applicant told Dr Jilani that his general practitioner was Dr Loam. Apparently, Dr Jilani attempted to contact Dr Loam without success. Dr Jilani refused to provide the applicant with any more OxyContin. 379 At Roxby Downs in 2008 the applicant was taking 80 mg of OxyContin daily. He said he found that this not only helped with his physical symptoms but also with his mental health problems. When he could not obtain a prescription for OxyContin from the GP, he then sought to obtain OxyContin illegally. As canvassed earlier the applicant lost his job at Roxby Downs in 2008 after failing a random drug test which disclosed a high level of opioids. 224 T 1043-1045. -- 95 of 647 -- [2025] SASC 59 Stanley J 92 380 By the time the applicant returned to Adelaide from Roxby Downs in late 2008 he was desperately seeking OxyContin by doctor shopping. Some of these requests for prescriptions for OxyContin were successful; others were not. 381 In October 2008 the applicant returned to Roxby Downs. By this time the applicant’s mental health was deteriorating again. He realised he was not thinking straight. His life lacked stability travelling from one city to another, unable to maintain relationships and hold down employment. He was anxious and short tempered. He found that the OxyContin was decreasing in its effectiveness in addressing his mental health problem. He got in touch with STTARS. 382 On 18 November 2008 he attended on a doctor complaining of back pain for which he was prescribed OxyContin over the previous two or three years and said that he was soon to return to Iran. 383 On 19 November 2008 he attended another clinic complaining of back pain and saying he was going to Iran and asked for a prescription for OxyContin. On the same day he attended another clinic seeking a prescription for OxyContin. He continued to procure OxyContin illegally when he could not obtain it by consultation with medical practitioners. At Roxby Downs he obtained it from an Albanian man. When he could not obtain OxyContin from the Albanian, he was able to obtain it from a Vietnamese man, the labour contractor he had worked with in 2005. This man had offered to obtain Tramadol for the applicant in 2005. 384 On 24 November 2008 the applicant presented to a medical practitioner with a history of being involved in a motor vehicle accident a year earlier. He said he was travelling to Iran the next day and wanted OxyContin for his back pain. 385 Also on 24 November 2008, the applicant saw a psychologist, Mr Damien McInerney. This was arranged through the MHS. By this time the applicant was homeless and living in his car. Mr McInerney provided the applicant with strategies to deal with his anger. He also wrote to the Housing Trust about his lack of accommodation. 386 On 28 November 2008 the applicant saw another general practitioner seeking OxyContin, saying it had been prescribed by a rehabilitation physician Dr Colin Mills. On the same day he attended at another clinic seeking OxyContin. 387 On 30 November 2008 he saw a general practitioner saying he was travelling to Malaysia the next day and he needed a supply of OxyContin. 388 On 2 December 2008 he saw another doctor reporting a history of suffering a lower back injury seven months earlier. He said he was leaving for Malaysia that night and he needed a prescription which would last for two weeks. 389 On 4 December 2008 he attended at another clinic asking for OxyContin to treat pain that he had suffered as the result of a motor vehicle accident the previous year. -- 96 of 647 -- [2025] SASC 59 Stanley J 93 390 On 6 December 2008 he attended at a different clinic asking for a prescription for OxyContin as he was going to Iran. 391 On 12 December 2008 he again went to a clinic asking for OxyContin. On 18 December 2008 he attended on a doctor seeking OxyContin. On 19 December 2008 he attended at another practice seeking OxyContin. On 24 December 2008 he again attended on a general practitioner seeking OxyContin. On 25 December 2008 he attended on a general practitioner seeking a prescription for OxyContin. 392 After his first consultation with Mr McInerney on 24 November 2008, the applicant had a number of appointments with him for the remainder of 2008 and during 2009 which he cancelled or failed to attend. The applicant had been in the Royal Adelaide Hospital (RAH) with stomach bleeding as a consequence of excessive medication. It was suggested he undergo an endoscopy but he refused. On 10 February 2009, the applicant told Mr McInerney that he had begun playing indoor soccer and was enjoying it very much. The applicant said this only occurred once. He said he missed these appointments because he was not feeling well enough to leave home. He said his condition fluctuated. 393 The applicant was dependent upon OxyContin. If he could not obtain OxyContin he would ask for Tramadol. By late 2008, early 2009 he experienced a lot of problems with his teeth and was in a lot of pain. STTARS referred him to a dentist. Unfortunately, he could not afford to undertake the dental work that was required to fix his teeth. The applicant said he lost six teeth as a result of the neglect of his teeth while in detention. 394 The applicant continued doctor shopping for OxyContin in 2009. He would also purchase OxyContin illegally at $6 to $7 a tablet. If he could not get OxyContin he felt bad, would become aggressive, sweat profusely and his hand would tremble. In 2008 and 2009 the applicant was taking three or four OxyContin tablets a day. 395 In May 2009 the Housing Trust provided the applicant with a one-bedroom unit in Brooklyn Park. Before this, during the period the applicant was homeless he lost eight or nine kilos. His weight reduced to 54 kilograms. At one point, the applicant consulted Mr McInerney because he was feeling suicidal. The applicant said he felt lonely and depressed and mostly stayed at home. 396 On 5 November 2009 the applicant was diagnosed with Hepatitis C. He was treated successfully and recovered. 397 The applicant made further attempts through doctor shopping to obtain OxyContin on 15 May, 18 May, 19 May and 24 May 2010. 398 In the period between July and October 2010, he made 30 visits to general practitioners around Adelaide. He said his mood fluctuated and he remained anxious. The OxyContin helped. -- 97 of 647 -- [2025] SASC 59 Stanley J 94 399 Mr McInerney wrote a medical certificate which the applicant gave to Centrelink stating he was not fit for work mentally or physically. Dr Zuvela also wrote to Centrelink. He referred the applicant to a specialist, Dr Aidinis, who saw him on three occasions. He provided him with prescriptions for OxyContin. 400 At one point after his treating doctor, Dr Nasrine Wilson, refused to prescribe OxyContin the applicant became desperate and suicidal. The applicant contacted Mr McInerney to see if he could help him. Mr McInerney arranged for him to go on a program at Warinilla which was run by Drug and Alcohol Services SA (DASA). 401 While in Roxby Downs in 2011 he again sought to obtain prescriptions for OxyContin. Dr Lockwood advised him to undertake methadone treatment which he refused. After he returned from Roxby Downs in June 2011 the applicant again consulted Mr McInerney. Mr McInerney again wrote to Centrelink seeking an exemption for the applicant from the obligation to look for work because of his mental health condition. On 7 July 2011 the applicant entered Warinilla. He wanted to get off OxyContin. He stayed at Warinilla until 11 July. It had been intended that he would stay for 11 or 12 days but he considered that being in the presence of drug addicts was doing him no good so he left. The whole experience made him angrier. 402 On 13 July 2011 he returned to see Mr McInerney. He continued to use OxyContin, obtaining it illegally or through doctor shopping. The applicant did not feel that he was fit to work. In addition to his back and leg pain he was troubled by the problems with his mental health. The applicant described a relationship between his mental health and his physical symptoms in his back and leg. He said that when his mental health deteriorated his physical symptoms worsened. Both his physical and his mental problems would ease when he took OxyContin. 403 The applicant agreed that from the second half of 2011 to 2014 he continued to try and obtain OxyContin. He would ask doctors for prescriptions for OxyContin and Zoloft. He said that on occasions, he asked his friend, Aref, to obtain OxyContin for him. By the end of 2011 the applicant was looking for Tramadol as a substitute for OxyContin because of the difficulty in obtaining the latter drug. When he obtained prescriptions, he would ask the pharmacists only to fill the prescriptions for OxyContin. However, on 31 August 2012 he again attended at Warinilla as he still wanted to get off OxyContin. From 2013 until May 2014 the applicant made various false claims to doctors in an endeavour to obtain prescriptions for OxyContin. Between 14 February 2013 and 22 May 2014, he obtained 45 prescriptions for Zoloft without having any of them filled. 404 The applicant again consulted Mr McInerney in July, September and October 2013. He was very unhappy due to the continuation of his physical and psychiatric symptoms, and the deterioration in his relationship with his new wife who had joined him in Australia. I will return to this topic later in these reasons. The -- 98 of 647 -- [2025] SASC 59 Stanley J 95 applicant realised he needed help. He found that speaking to Mr McInerney made him feel better but once the consultation was over his intrusive thoughts returned. 405 In May 2014 the applicant again went to Warinilla as an outpatient for treatment of his OxyContin addiction. He underwent detoxification treatment from 26 May to 4 June. He could not break his addiction at this stage. 406 The applicant continued to attend Warinilla as an outpatient. He was prescribed Suboxone as a substitute for OxyContin. The transition was difficult. However, the applicant said he was off OxyContin by the end of 2014. Through the latter part of 2015 until mid-2016 the applicant continued to attend at Warinilla. 407 The applicant was first prescribed Lyrica in January 2014. He was next prescribed Lyrica on 7 May 2015. By May 2016 he was using Lyrica constantly. Between January 2017 and 1 December 2018 he filled 63 prescriptions, each of 56 tablets. Some were 150 mg and some were 300 mg. He said he would take one per day of the 300 mg tablets but one tablet twice a day of the 150 mg. 225 The applicant denied he was taking six Lyrica tablets a day in 2017.226 The applicant said he consumed all the Lyrica tablets he obtained. 408 The applicant continued to use Suboxone. Over time the Suboxone dosage he was taking was reduced from 32 mg to 16 mg. Nonetheless, on 6 September 2016 the applicant again unsuccessfully attempted to obtain a prescription for OxyContin. The applicant has remained on Suboxone. It helps with his physical pain and to manage his anger. Its main effect is to stop him craving opioids. 409 In 2017 the applicant found the body of his friend Aref. He had known him since they were in Curtin together. Aref had been very depressed and withdrawn. The applicant was anxious and worried that he might meet a similar fate. This increased his anxiety and sense of helplessness. 410 In 2018 the applicant consulted a Farsi-speaking psychologist, Mr Mehdi Abiyat. He saw him on three occasions. The applicant completed a questionnaire for a test for depression, anxiety and stress known as a DASS 42227 as well as a document where the applicant recorded specific thinking and feeling.228 The applicant said his answers to these questions reflected his condition generally throughout the period from 2005 until 2018. 411 In discussing his current mental state the applicant said activities which used to give him pleasure such as watching football matches no longer do so. While he does watch football on television, he loses interest before the end of the match. 412 The applicant initially said he has not been treated by a psychiatrist since his release from detention, although he has seen a psychiatrist for medico-legal 225 T 1230-1231. 226 T 1232. 227 Exhibit A3. 228 Exhibit A4. -- 99 of 647 -- [2025] SASC 59 Stanley J 96 purposes. In cross-examination the applicant accepted that he consulted a Dr Giardini once in either 2018 or 2019. University studies 413 The applicant gave evidence that in May 2006 the applicant enrolled in a foundation course at Flinders University. He recognised that he could not do physical labouring work and his problems with anger management made it hard for him to hold down employment. He was interested in undertaking further study in civil engineering. The purpose of the foundation course was to obtain entry into an undergraduate course. He attended the foundation course for three months but found it increasingly difficult. He could not concentrate because of intrusive thoughts of detention. 414 The applicant had considered attempting study at TAFE in 2014 and again in 2017. That did not occur. However, in 2018 he commenced a course studying for a Diploma in Building Design. He only attended two lectures. He said he dropped out of the course because he could not concentrate, and he started late and could not catch up. His last attendance at a lecture was on 26 April 2018. The applicant said he did not feel mentally able to undertake a course of study. If he could do so, he would like to return to university to study or undertake a TAFE course in surveying or building design. He said his inability to do so is a result of difficulty in concentrating. Permanent protection visa and Australian citizenship 415 On 11 January 2007 the Minister for Immigration waived the waiting period for the applicant to apply for a permanent protection visa. A permanent protection visa was granted on 10 July 2007.229 The applicant gave evidence that it was not until 2008 that he became aware that he had been granted a permanent visa permitting him to remain in Australia.230 416 In March 2010 the applicant was granted Australian citizenship. Relationships 417 Before his marriage, the applicant had a series of romantic relationships. He had a girlfriend in Adelaide. This relationship ended after a short time following an argument. While he was in Perth he had another girlfriend. That relationship also ended after an argument. At Roxby Downs he also had a girlfriend, but after he lost his employment he left Roxby Downs and that relationship came to an end. United States trip 418 On 21 May 2010 the applicant attended at the offices of the Housing Trust and advised that he intended to travel to the United States for a period of time. He said it could be up to three months because of the length of his visa. He said he 229 Exhibit A1463. 230 T 826. -- 100 of 647 -- [2025] SASC 59 Stanley J 97 had made arrangements with someone to live in his unit while he was away. In the event that he returned to Australia, this person would have to vacate the unit. The applicant had arranged for this person to pay the rent in his absence. He told the Housing Trust officer that his friend Nazeem Jafari would be paying the rent and staying in the unit in his absence. He was in the US for about three weeks. He had relatives in Texas and hoped to obtain work in shops they owned. However, when he arrived he was told that he would be paid the minimum wage of $5 per hour. The applicant decided he would be better off in Australia. He borrowed money from a relative to purchase a return ticket. 419 On 2 July 2010 after his return from the United States the applicant again attended at the offices of the Housing Trust. When the applicant had returned there was a confrontation with Mr Jafari because he had sublet the applicant’s unit to two female students and they had no other accommodation. The Housing Trust officer suggested that the applicant should move in with them but he explained this was impossible for cultural reasons. The applicant had to live with a friend for a few days until the two women moved out.231 The applicant’s marriage 420 The applicant said that he was feeling very lonely in 2012 and contacted a cousin through Facebook whom he had not spoken to since before he left Iran. This led to a reconnection between the applicant and another of his cousins, Mahnaz (Mrs Saadat). Mrs Saadat is the sister of the cousin he first contacted.232 Her marriage had just ended. The applicant calls her Shiva. Soon they were talking two or three times a week via Facebook. The applicant painted a false picture for her of his situation in Australia. In late 2012 the applicant and Mrs Saadat met in Jakarta. They spent three to four weeks there. They were married at the Iranian embassy in Jakarta. They went to the Australian embassy in Jakarta to apply for a visa for Mrs Saadat. The Australian embassy advised that it was necessary for them to travel to Dubai for an interview at the Australian embassy. 421 The applicant concealed his dependency on OxyContin from Mrs Saadat. The applicant hoped that the marriage would provide him with stability which would enable him to pursue some of the ambitions he had in 2000. He also was concerned about what might happen to him while under the influence of drugs when he was alone. 422 In early 2013 the applicant and Mrs Saadat travelled to Dubai. The applicant arrived on 5 March 2013. After an interview at the Australian embassy Mrs Saadat was granted a visa. 423 The applicant did not take OxyContin with him to Dubai. He was concerned that if he was discovered with it he might be arrested. He said the lack of OxyContin resulted in a deterioration of his mental state. He argued with 231 T 1075-1076. 232 T 840. -- 101 of 647 -- [2025] SASC 59 Stanley J 98 Mrs Saadat. At one stage she threatened to leave. He described this as a difficult time. He was angry and agitated. He wanted to return to Australia as soon as possible. The applicant said he stayed in his hotel room most of this time. He thought that Mrs Saadat became suspicious at this time that he was abusing drugs. She asked him a few times whether he was taking drugs which he denied. He told her that he had a court case pending and he was also trying to find new accommodation which was making him agitated and irritable. The applicant remained in Dubai until 24 March 2013. He then returned to Australia and Mrs Saadat returned to Iran. 424 Back in Adelaide he continued to use OxyContin. He continued to be troubled by back and leg pain and mental health problems. 425 In 2012 and 2013 the applicant was still living at his housing trust single bedroom unit at Brooklyn Park. When the applicant returned from Dubai the unit had been flooded. The carpets were ruined. He recognised that it was unsuitable accommodation for a newly married couple. He applied to the Housing Trust for new accommodation but had to wait 16 months. 426 In August 2013 Mrs Saadat arrived in Australia. She did not speak English. The applicant said that when she first saw his unit at Brooklyn Park she was shocked. She realised that the applicant had misrepresented his situation and she was very upset. They had fights and arguments. The applicant tried to deal with this situation by leaving the unit for a few hours after an argument to allow things to settle down. The applicant wanted to give up OxyContin but realised that if he did so he would become more bad tempered and this would only make the situation between them worse. The applicant wanted to stay at home while Mrs Saadat wanted to go out and explore Adelaide and make Iranian friends. 427 Apart from the unsuitable nature of the accommodation at Brooklyn Park, there was also friction between the applicant and some of his neighbours. They were a group of single men. There was an occasion when one of them said something to Mrs Saadat which she relayed to the applicant. The applicant confronted this man and threatened him. He said he contemplated killing the man, but the situation was defused when the man apologised. 428 In October 2014 the applicant and Mrs Saadat moved into a new Housing Trust property at Renown Park. It had three bedrooms. The new apartment was larger and more comfortable than the Brooklyn Park apartment. Things between them improved. The applicant was not at home as much. 429 In 2015 Mrs Saadat travelled to Iran and brought her son from a previous relationship to Australia. The applicant continued to have problems at home. He and Mrs Saadat continued to argue. He slept in the laundry. 430 In the latter half of 2017 the applicant did not have much work or much money. He said Mrs Saadat’s son began to cause problems which became worse -- 102 of 647 -- [2025] SASC 59 Stanley J 99 as time went by. The applicant’s relationship with his stepson became increasingly antagonistic with the stepson taking his mother’s side in arguments with the applicant. In addition, the applicant was irritated by the stepson bringing his girlfriend and friends to the house where they would stay up all night making a lot of noise and disturbing him. He said he and his stepson argue all the time. 431 At the time he gave evidence the applicant and his wife and stepson lived in their own home at Magill. The house is owned in joint names. It was purchased sometime in 2019 or 2020. The purchase price was $648,000. Mrs Saadat paid the deposit of between $70,000 and $100,000. The applicant said that they now owe $590,000 on the house. The mortgage is $670 per week and the applicant contributes $350 weekly towards the mortgage. The applicant said he keeps to himself at home, resides in the garage and eats his meals separately because of the tension in his relationship with his wife and stepson. 432 The applicant no longer undertakes domestic duties apart from cleaning the garage. He said he does not vacuum, go shopping, garden, clean or mow the lawns. He washes his own clothes. He said he does not do work inside the house because that is not where he is living. However, he also said this is because of his back pain and his mental issues. Instead, Mrs Saadat does all this work. She spends one and a half hours per week vacuuming the house. Every 10 days or so she spends 40 minutes mopping the floors of the kitchen and bathroom. She goes shopping twice a week. The major shop takes 45 minutes and the smaller shop 20 to 30 minutes. 433 Money has always been a cause of tension between the applicant and Mrs Saadat. Mrs Saadat obtained employment at Cibo packing food some months after she arrived in Australia. Approximately two years later in 2016 she obtained employment as a hairdresser. She has worked as a hairdresser ever since. As a result, there have been periods where she has been working while the applicant has not. 434 The applicant accepted that one of the sources of friction between himself and his wife is his gambling.233 She is upset that he loses money. The applicant started gambling in 2007 and has continued to have problems with gambling. He has tried to control it by placing limits on what he can bet using the phone. He said he is not addicted to gambling and has decreased the bets he has placed such that he has only played five or six times since October 2018. 435 The applicant said another problem between them is that he smokes cigarettes. Mrs Saadat objects to this both because of the smell and the cost. Another issue between them is the traffic fines incurred by the applicant. 436 The applicant referred to a particularly troubling incident which occurred on 3 October 2018 when he was arguing with Mrs Saadat. It was provoked by him 233 T 1251. -- 103 of 647 -- [2025] SASC 59 Stanley J 100 using Mrs Saadat’s money for gambling without her knowledge. He was shouting at her and became abusive. The argument escalated to the point where the applicant brandished a knife and threatened to stab her. The police were called, with the applicant being arrested and charged. He told the police that Mrs Saadat had attacked him, trying to shift some of the responsibility for the situation onto her. He spent a day in the cells at the Port Adelaide Police Station. When he was released he was subject to a restraining order and could not return home. Ultimately a magistrate imposed a good behaviour bond. 437 He referred to an earlier occasion on 13 March 2017 where two police officers attended at their home because of an argument involving shouting. There was no weapon involved on that occasion. The police advised him to spend a night away from the family home. 438 More recently the applicant had another confrontation at home with Mrs Saadat. They were arguing and he was afraid he might do something to hurt her with tools. He was also afraid Mrs Saadat would call the police and felt quite disturbed. Following this confrontation, he decided he could not work the next day and sent a text message to Mr Searle to advise him. The applicant stayed at the home of a friend for three nights before Mrs Saadat agreed that he could return home. 439 The applicant said he continues to lead a solitary, isolated life, avoiding noise and crowds. He spends much of his time at home. Mrs Saadat goes out with friends. Other anger incidents and mental health problems 440 The applicant gave further evidence of his problems with anger management. By 2007 the applicant was finding it difficult to control his temper. There was an incident near the Casino where he was returning to his car and saw three drunks, one of whom was holding a bottle. He became anxious that they might attack him. He punched one of them in the face and ran off. 441 The applicant also gave evidence of instances of road rage and traffic offences. Fortunately the episodes of road rage did not end in any actual physical altercations, although he chased drivers and in one instance banged on another driver’s car window. The traffic offences ultimately resulted in the loss of his driver’s licence. Over a number of occasions he has incurred 12 demerit points and has had to make an election pursuant to s 98BE(2) of the Motor Vehicles Act 1959 (SA) to permit him to keep driving. 442 Apart from traffic fines, in October 2017 the applicant was also fined $1,000 for a contravention of the Environment Protection Act 1993 (SA). He was convicted of disposing of hazardous material. -- 104 of 647 -- [2025] SASC 59 Stanley J 101 Application for a disability support pension 443 On 22 July 2011 the applicant applied for a disability support pension. He alleged he suffered from permanent back pain and a permanent residual psychiatric impairment. On the application form he claimed that he was on 100 mg of Zoloft and an antidepressant, Avenza.234 The applicant said he was prescribed Avanza in detention and Zoloft on a few occasions since. He said that he understood that he was being asked what medication he had been on. He did not understand that he was being asked what medication he was currently taking. He denied that he was attempting to mislead Centrelink.235 The applicant declined to answer, on the grounds of the risk of self-incrimination, the question whether he had falsely stated on the application form the drugs he was taking and their effects.236 444 On the application form, the applicant recorded that all medication, especially Zoloft and Avanza, affected his sleeping and his communication with people. He also said that every fortnight he had an appointment with a psychologist at the Migrant Health Service. This is a reference to Mr McInerney. However, throughout 2011, he saw Mr McInerney on only four occasions together with two telephone consultations. 445 The application for a disability support pension was rejected. THE APPLICANT’S RELIABILITY AND CREDIT 446 Critical to the applicant’s claim is his credibility and reliability as a witness. It permeates almost every aspect of his claim. Given the effluxion of time since the relevant events during the applicant’s detention, which I am satisfied has degraded the accuracy and reliability of much of the evidence relied upon in the applicant’s case, and the vested interest of the applicant and the other detainee witnesses in the success of his claim, the contemporaneous documents assume critical importance in making findings of fact. There is negligible indication in the Baxter movement logs or medical records that the applicant was suffering symptoms of a recognisable psychiatric injury, particularly a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood or a Persistent Depressive Disorder, when he was released from Baxter or during the period of his detention at Baxter. For reasons I explain elsewhere, I am satisfied the only convincing evidence of the applicant suffering psychiatric injury at Baxter is in the period following 8 August 2003 until around December 2003. 447 A substantial challenge was mounted by the Commonwealth and the third parties to the applicant’s evidence. I found the applicant to be an unimpressive witness. There are numerous aspects of his evidence which raise doubts as to his reliability and credit. In relation to his reliability, I accept significant allowance must be made for the difficulties of remembering events, in detail, from decades ago. It is the case that with the effluxion of time flaws can infect individual 234 This is likely intended to be a reference to the antidepressant Avanza. 235 T 1067-1107. 236 T 1113. -- 105 of 647 -- [2025] SASC 59 Stanley J 102 memories. In relation to his credit the applicant candidly admitted to having told lies out of desperation when he considered it was to his advantage, particularly when applying for a protection visa upon his arrival in Australia. 448 The applicant was confronted with numerous inconsistencies, inaccuracies and falsehoods in the course of his evidence. Over time his position fundamentally shifted as reflected in the changing versions of the pleadings, and discrepancies between his sworn evidence, his affidavits and the contemporaneous documents. 449 The fact is that the inconsistencies, discrepancies and inaccuracies in his evidence are difficult to explain by the effluxion of time and the corrosive effect of the forensic disadvantage that can occasion when the errors in his evidence are almost solely to his advantage. 450 Ultimately, I find that the applicant is not a credible or reliable witness. I find that the applicant was prepared to lie or exaggerate if he perceived it would be to his benefit and that this is what occurred in relation to material aspects of his evidence. My reasons for making this finding are as follows. History given to Dr Raeside 451 The applicant saw Dr Raeside four times between 2010 and 2021. The histories he gave Dr Raeside were littered with inconsistencies and falsehoods. 452 For example, he told Dr Raeside in 2010: • He was prescribed Zoloft for depression in detention;237 • He was still being prescribed 100mg of Zoloft daily;238 • He has been treated with antidepressant medication for many years up until his consultation with Dr Raeside in 2010;239 • He left his employment in Roxby Downs in 2008 because of, inter alia being affected by memories of detention and having to drive past Woomera to travel there;240 • He was admitted to the Port Augusta Hospital after attempting suicide where his stomach was pumped;241 • He attempted suicide by overdose a second time during detention; 242 237 Exhibit A583 (Report of Dr Raeside 21 June 2011 pp 3, 6). 238 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 4). 239 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 11). 240 Exhibit A583 (Report of Dr Raeside 21 June 2011, p 3), T 1090-1094. 241 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 6). 242 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 6). -- 106 of 647 -- [2025] SASC 59 Stanley J 103 • He took too many painkillers including Tramadol and Panadeine Forte while in detention which gave him stomach problems. He said the doctor just gave them to him and he thought he took perhaps ten to 12 a day;243 and • Following his release from detention he found work in a few factories but was fired after two or three weeks on each occasion.244 453 The history the applicant gave about Zoloft and antidepressant medication was false. He did not obtain any prescriptions for Zoloft prior to 2 December 2010.245 After the applicant saw Dr Raeside, apart from the first prescription, he did not fill the prescriptions he obtained for Zoloft.246 Thereafter, he took Zoloft only a few times but it made him feel worse.247 In fact, he used the request for Zoloft to try and convince doctors to prescribe him OxyContin.248 In reality when he saw Dr Raeside in late 2010 he was in the grip of an OxyContin addiction which he did not disclose to Dr Raeside notwithstanding questions about the medications he was on. In cross-examination the applicant sought to deflect criticism of his account by suggesting that he was mistaken, or Dr Raeside was mistaken, or that he had not provided such a history or it was the result of his focussing on other issues.249 454 The history the applicant gave about his reasons for ceasing his employment at Roxby Downs in 2008 was misleading and inaccurate.250 The applicant was challenged as to whether he needed to drive past the Woomera Detention Centre to travel to Roxby Downs. In any event, the applicant’s evidence in chief was plainly wrong. He was dismissed after returning a positive drug test for opioids, amphetamines and methylamphetamines.251 455 I accept the applicant attempted suicide once during detention. This was the occasion in August 2003 when he overdosed on Tramadol. However, there is no documentary evidence of a second overdose. I do not accept there was a second suicide attempt, nor do I accept the applicant’s speculation in cross-examination that maybe Dr Raeside had misunderstood him on this topic.252 I am not prepared to accept that explanation as probable given the litany of incorrect statements made by the applicant in evidence. The occurrence of a second overdose was significant to Dr Raeside’s opinion.253 243 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 3). 244 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 8). 245 Exhibit A1534 pp 3, 7, Exhibit A1479 p 5, T 1107-1110. 246 Exhibit A1479 p 5. 247 T 1185. 248 T 1107-1110. 249 T 1088-1089. 250 T 1028-1032, 1038-1040. 251 Exhibit A1543 p 33, T 753, 1053-1054, 1061. 252 T 1665. 253 T 6164. -- 107 of 647 -- [2025] SASC 59 Stanley J 104 456 I also do not accept that he was admitted to hospital as a result of a suicide attempt and had his stomach pumped. Neither claim is true. These allegations were included in the first, second and third statements of claim but were excised from the applicant’s subsequent pleading. The applicant accepted these events did not occur. He could not explain how these allegations came to be made. He denied an attempt to exaggerate the seriousness of the overdose. 254 457 The applicant’s claim that he took between ten and 12 painkillers every day is not consistent with the contemporaneous medical records. Dr Kapur’s evidence, which I will come to later in these reasons was that the applicant received small doses under supervision. The Tramadol was administered at a low dose with a minimal risk of dependency.255 Dr Henderson’s evidence, which I will also come to later, is that all prescriptions the applicant received in detention for pain relief were appropriate and consistent with good clinical practice.256 458 The applicant’s account to Dr Raeside that he was fired after two or three weeks on each occasion he obtained factory work prior to going to Roxby Downs was untrue. He gave evidence that he did not mean by this statement that he was fired after two to three weeks on each occasion. He only meant that he was dismissed on a few occasions. I find his evidence inexplicable. 459 Notably when he saw Dr Raeside in 2010 he omitted to mention the self- harm incident during the protest held on 6 February 2003. This also undermines the applicant’s case that this incident was an important event in proving his claim he had suffered psychiatric injury at Baxter by February 2003. 460 In 2017 the applicant told Dr Raeside: • He continued to be prescribed Zoloft 100mg in the morning;257 • He had been suffering from a persistent and ongoing depressed mood;258 and • He was struggling with sleep, usually waking after a couple of hours two or three times a night.259 461 The applicant’s account of his use of Zoloft in 2017 was false. The applicant admitted under cross-examination that he may have mentioned Zoloft to Dr Raeside but was not taking it at that time. He said this was because he was hiding his OxyContin use. He attempted to qualify this by saying that while he told Dr Raeside he was getting a prescription for Zoloft from the pharmacy, he did not tell him that he actually was taking it every morning. The applicant rejected the 254 T 1662-1667. 255 Exhibit 1.3TP1752 p 3. 256 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement p 3 lines 11-17). 257 Exhibit A583 (Report of Dr Raeside 23 August 2017 p 4). 258 Exhibit A583 (Report of Dr Raeside 23 August 2017 p 4). 259 Exhibit A583 (Report of Dr Raeside 23 August 2017 p 4),T 1210.20. -- 108 of 647 -- [2025] SASC 59 Stanley J 105 proposition that in saying this he intended Dr Raeside to understand that he was taking Zoloft every day. He said Dr Raeside knew of his medical history and could easily see what he was or was not taking.260 I find that the applicant deliberately misled Dr Raeside. 462 The applicant’s report to Dr Raeside of a persistent and ongoing depressed mood and sleep disturbance was inconsistent with the history he provided to Warinilla, as documented in the DASA records. The history he gave to DASA was of a significant improvement in his mood since he had ceased OxyContin. Additionally, on a regular basis throughout 2017 he also told DASA his sleep was stable.261 463 His explanation for these inconsistencies was that he was telling Dr Raeside of his situation in the broad sense of his life over the previous six or seven years while his history to Warinilla was focussed on his specific experiences of withdrawing from OxyContin use. He said he told DASA his sleep was improving as he was using Suboxone by that time and he was getting four to six hours sleep a night.262 I do not accept that explanation. It is inconsistent with what Dr Raeside recorded the applicant telling him. He contradicted this history to Dr Raeside by giving evidence that after the visits to Warinilla finished, his symptoms increased.263 The applicant further attempted to explain the tension between his history to Dr Raeside and the DASA records by maintaining in his evidence that his mood fluctuated over the period he was attending at Warinilla. There is no record of such a complaint. 464 The applicant further claimed that the DASA records had been cut and pasted from one attendance to the next. I do not accept this evidence. The DASA notes do not provide any support for the applicant’s claim. They have the appearance of contemporaneous entries. 465 In 2021 the applicant told Dr Raeside: • He was being prescribed Zoloft and on doctor’s advice, he had recently halved the dose to 50 mg in the morning due to problems sleeping; and • He had clear, unpleasant memories, particularly of Baxter that came to him perhaps five or six times a week. He thought this might be associated with reducing his Zoloft dose. 466 The applicant accepted that what he told Dr Raeside about halving this dose of Zoloft was untrue. He denied intending to deceive Dr Raeside or that he had done so for the purpose of assisting his case. He said that had he intended to do that, there were many more potent medications he could have mentioned to 260 T 1216-1217. 261 T 1208-1210. 262 T 1213.23. 263 T 1238. -- 109 of 647 -- [2025] SASC 59 Stanley J 106 strengthen his case.264 Apart from perhaps trying it once, I do not accept that the applicant ever took Zoloft. 467 As the applicant was not taking Zoloft, it cannot be that halving the dosage caused him to experience clear unpleasant memories of Baxter. The applicant thought that he might have said this to Dr Raeside because his mind was not working properly. He said this caused him to forget important factors in his condition. He denied that this was an invention intended to improve his prospects in the litigation.265 I do not accept his evidence in relation to this matter. 468 The history given by the applicant to Dr Raeside concerning his experiences since his release from detention in 2005 is inaccurate in many respects. I find that the inaccuracies are the result of the applicant’s deliberate attempts to deceive Dr Raeside for the purpose of enhancing his prospects of success in this litigation. Examples of his misleading history are his repeated claims he was taking antidepressant medication and statements concerning the reason he was dismissed from employment at Roxby Downs in 2008. I find he also provided grossly exaggerated accounts of the intermittent nature of his post–detention employment, his sporting interests, his appetite, his sleep, his mood and his social avoidance. These misleading statements to Dr Raeside are to be contrasted with accounts he gave to DASA, his evidence at trial, and evidence of objective circumstances. The history given by the applicant to Dr Raeside also omitted relevant matters such as his overseas travel, the extent of his use of Lyrica and his failure to reveal the use of OxyContin. Even when he did disclose to Dr Raeside that he was using OxyContin he failed to provide an accurate account of the circumstances and extent of his addiction. History given to Dr Schirripa 469 The applicant saw Dr Schirripa three times between 2013 and 2020. The histories he gave to Dr Schirripa were inconsistent with the evidence he gave at trial, the Summary of Evidence and incorrect in many other respects. 470 For example, in 2013 he told Dr Schirripa: • Of the incident where a shark took two men during the boat journey to Australia, though he did not witness this occur;266 • He was treated with antidepressants and sleeping tablets which he has continued to take since leaving detention;267 • He takes the antidepressant Sertraline (Zoloft) 100mg at night;268 264 T 1262. 265 T 1264-1265. 266 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 3). 267 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 11). 268 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 6). -- 110 of 647 -- [2025] SASC 59 Stanley J 107 • He only used OxyContin for a few months in 2008 when he had a problem with his back while working at the mines;269 • He stopped work at Roxby Downs because of having to pass Woomera detention centre and because the single accommodation room they gave him reminded him of detention;270 and • He started smoking cannabis in detention. He would smoke about three to four times a week, he then cut down his use.271 471 The applicant did not mention to Dr Raeside the shark attack during the boat journey to Australia, nor was it included in his Outline of Evidence dated 28 August 2018.272 It was not opened on and the applicant did not give evidence- in-chief about this incident. He explained his failure to tell Dr Raeside of this incident on the basis that he had forgotten about it.273 I do not accept his evidence in this regard. I am unable to find this occurred. If it had I do not accept the applicant could have forgotten. 472 On his own evidence the applicants statements to Dr Schirripa about his use of Zoloft and OxyContin were untrue. His exculpatory explanations274 were unconvincing. 473 I do not accept that he was forced to cease employment at Roxby Downs because of his triggering experiences driving past Woomera. Rather, he was dismissed after returning a positive drug test for opioids, amphetamines and methylamphetamines.275 In any event, it was not necessary for the applicant to drive past Woomera when travelling from Adelaide to Roxby Downs. 474 In cross-examination the applicant accepted that it was probably true he was smoking marijuana every day while in Baxter as opposed to three or four times a week. 276 475 There were further consultations with Dr Schirripa in 2018 and 2020 during which the applicant provided a further false and misleading history of his use of Zoloft and OxyContin. History given to Mr McInerney 476 The applicant also misled Mr McInerney by telling him falsehoods about his employment and drug usage. As he did with Dr Schirripa and Dr Raeside he lied about the reason for ceasing his employment at Roxby Downs in 2008. He also 269 T 1127-1129. 270 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 5). 271 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 6). 272 Exhibit R14. 273 T 1117-1118. 274 T 1127-1129. 275 Exhibit A1543 p 33, T 753, 1053-1054, 1061. 276 T 1856.7-26. -- 111 of 647 -- [2025] SASC 59 Stanley J 108 concealed his OxyContin addiction at least until February 2011. The evidence establishes that the applicant was using OxyContin from the time of his first consultation with Mr McInerney in November 2008. By 2011 the applicant was taking three to four OxyContin tablets a day.277 The applicant also gave evidence of a consultation with Mr McInerney on 12 March 2009. The applicant said that Mr McInerney was so concerned at his presentation that he drove the applicant to the RAH. 278 He said that during the course of the journey there was a discussion with Mr McInerney and he decided not to go to the RAH and Mr McInerney drove him to the MHS. Mr McInerney’s evidence, which I will come to later in these reasons, is that he has no recollection of driving the applicant to the RAH, of the discussion, or of dropping off the applicant at the MHS.279 I find this did not occur. The applicant also used Mr McInerney to attempt to obtain a disability support pension.280 477 The applicant’s accounts of his use of Zoloft to Dr Raeside and Dr Schirripa, as well as to Mr McInerney, and his own solicitors were false and misleading. These inaccurate accounts were repeated in the Outline of Evidence281 and in his opening.282 The applicant offered no plausible explanation for these false statements. Outline of Evidence 478 The applicant gave evidence about the Outline of Evidence dated 28 August 2018 prepared by his solicitors, with his assistance. The applicant understood that the document reflected the evidence that he was proposing to give to the Court in 2019 when the trial was originally due to commence. In the course of giving his evidence the applicant abandoned large parts of the Outline of Evidence as wrong. In my view, this document could not have been produced without the active participation of the applicant. I do not accept the applicant’s evidence that the false statements contained in it were the sole fault of his solicitors. There are too many for that claim to be plausible. For example: 479 The applicant was taken to paragraphs 19 and 20 of the Outline of Evidence which provide: 19. He converted to Zoroastrianism just prior to fleeing Iran. He was awarded a conversion certificate but did not keep a copy of the certificate because it was not safe to carry one in Tehran. 20. In order to obtain the certificate certifying his conversion, he had to attend meetings and go to the temple. The certificate was issued by a senior member of the Zoroastrianism community. 277 T 1058-1059, 1061, 1078. 278 T 817.24-33. 279 T 5994.25-5995.13. 280 Exhibit A573, T 823, 833, 1266-1267. 281 Exhibit R14 at [206]. 282 T 307-308. -- 112 of 647 -- [2025] SASC 59 Stanley J 109 480 The applicant said this was incorrect. He had not obtained a certificate of conversion. He said he must have made a mistake. 481 The applicant was taken to paragraphs 21 and 22 which provide: 21. In 1999, a work colleague found one of his Zoroastrian books and reported him to his manager. His manager then called him into the office and informed on him to the Government. He was taken into police custody for three days and then to Evin Prison, a large jail in Iran reserved for people who commit religious and political crimes. 22. While in custody, he was questioned over his religion but later released. A few weeks later, the police attended at his workplace and found his note book which he had kept. His workplace was ordered to dismiss him and he was taken back to Evin Prison. 482 The applicant said he was not taken to Evin Prison but to a place next to Evin Prison which was overseen by Evin Prison. He said the order of the events set out in these paragraphs is jumbled. He gave evidence that it is not correct that he was taken into custody twice. In cross-examination he said he was taken into custody once only. 483 Paragraphs 23 to 26 provide: 23. When he arrived at Evin Prison, he was blindfolded and beaten and kicked for 20 minutes by guards. 24. He was interrogated and beaten on the first day of being imprisoned on five or six occasions at 1-2 hourly intervals. 25. During the interrogation, he was asked about Zoroastrianism and how many people had converted and about his girlfriend Shiva. He was asked to inform and give names and places. 26. Between interrogations, he was kept in solitary confinement. The room was only one metre by one metre which meant that he could not lie down. There was a small hold in the door for light. There was no toilet in the room so when he needed to use the toilet, he had to alert a guard who would escort him outside to the toilet. He was given a little food and he was handcuffed when taken from his cell. On his second day of imprisonment, he was interrogated and beaten two or three times. 484 In cross-examination, he was then taken to his evidence-in-chief concerning these events. That evidence is not consistent with the contents of these paragraphs of the Outline of Evidence. The applicant said that at least his statement that he was beaten was correct. 485 Paragraphs 27 to 32 provide: 27. On day three the prison boss came into his cell and said that he could go home but that they would control him and that he had to bring Shiva to them for questioning. He was also required to take police to the place of worship in Yazd. -- 113 of 647 -- [2025] SASC 59 Stanley J 110 28. Upon his release, the guards in the prison took him to his work and then home. He was told that he had to call police if he wanted to leave the house, that he had to appear in Court in 10 days before the Security Council of Iran and the hearing will determine if he went to prison. 29. He was afraid that the punishment for his crime would be the death sentence or at the least, 20 to 25 years in prison. He contacted his uncle and told him his predicament. His uncle recommended that he leave the country. 30. He telephoned Shiva and told her that he had to leave Iran. 31. He was picked up by his uncle in a car and taken to a farm where he stayed for approximately 20 days. His uncle organised a passport and travel arrangements. From there, his uncle took him to a friend’s house which was approximately a 10 hour journey by car. He had to hide in the back seat. At one point, he had to get out of the car one kilometre prior to a check and then proceed on foot past the police check point for a further kilometre at which point his uncle picked him up again in the car. He stayed at his uncle’s friend’s house for two or three weeks. His uncle knew someone at the airport who was a pilot and was able to get him a false passport. His uncle paid his costs to travel to Malaysia. 32. After his uncle organised his passport and transport, he travelled back to Tehran airport and flew from Tehran to Malaysia. When he left Iran, he was told to go to Kuala Lumpur as it was the best place find people smugglers. 486 The applicant said there were a lot of mistakes in these paragraphs. The reference to the pilot is wrong. It was not the pilot who provided him with a false passport. He said the pilot facilitated his exit through passport and customs checkpoints. 487 The applicant said that he was not picked up by his uncle but by his uncle’s friend and the arrangements for his false passport and travel documents were organised by that friend. 488 In giving evidence describing his escape from Iran, the applicant said that while he initially went to Turkey, he did not stay in Turkey because he was following the advice of the people smuggler to travel to Kuala Lumpur. Yet his earlier evidence was that he only contacted the people smuggler when he was in Malaysia. 489 Paragraph 104 provides: 104. He spent around two months and ten days in the Management Unit from 1 January to 11 March 2003.283 283 The Outline of Evidence was provided to Dr Raeside in 2018. The corresponding letter of instruction to Dr Raeside dated 7 December 2018 seeks to clarify this aspect of the Outline of Evidence so as to identify a correction to paragraph 104 that the applicant was actually “detained with 13 other detainees suspected of having lit the fires in the Management Unit from 1 - ? [sic] January 2003 and then in the Blue Three Compound until 5 March 2003…and then back to the Management Unit until 11 March 2003”. -- 114 of 647 -- [2025] SASC 59 Stanley J 111 490 Paragraphs 140 and 141 provide that in August 2003: 140. He collapsed from the overdose while watching soccer with some friends. The detainees had to resuscitate him. He was taken to the Management Unit following the suicide attempt and placed on High Risk Watch. 141. He was strip searched two to three times during the five days that he spent in the Management Unit. 491 Contrary to these paragraphs, the applicant conceded that he was not in the Management Unit between 6 January and 10 February 2003, for two months at the beginning of 2003, or from 8 August to 15 August 2003.284 However, 11 August 2003 was the incident where the applicant overdosed. He thought that he might have been taken to the Management Unit after the attempted overdose. He is not sure. Accordingly, he is not sure whether he was strip-searched during this period, but if he was taken to the Management Unit he thought that must have happened because whenever anyone was taken to the Management Unit they were strip- searched. Whatever the truth of that allegation I am satisfied the applicant was not held in the Management Unit for any period between 8 August and 15 August 2003. 492 The applicant was also taken to paragraphs 162 and 163 of the Outline of Evidence which provide: 162. He was involved in the disturbance in 2004 where a group of detainees tried to stop a guard taking a detainee who was on hunger strike to the Management Unit. He was placed in the Management Unit for 10 days following that disturbance. 163. There was an incident in the Management Unit during this period when two DSOs came into his room and handcuffed him whilst another guard kicked him in the back. This aggravated his pre-existing back pain. 493 The applicant said this was wrong. He was not taken to the Management Unit. It was Abdul Amir who had gone on a hunger strike and then taken off his clothes. This applicant said this was a misunderstanding. He also conceded that the alleged incident where he was kicked in the back did not occur in the Management Unit, he said this happened when they took him to Blue 3.285 494 In summary, the applicant resiled from the contents of his Outline of Evidence when giving evidence insofar as he asserted that he had not received a certificate when he converted to Zoroastrianism,286 that he had not been taken to Evin Prison,287 that he had only been taken into custody once by the secret police,288 and as to the duration and frequency of his time in the Management Unit.289 284 T 1297-1298. 285 T 1300-1301. 286 T 1283. 287 T 1283-1284. 288 T 1285. 289 Exhibit R14 at [101], [125], [141] [193]-[195], [206], [207], T 1297-1298. -- 115 of 647 -- [2025] SASC 59 Stanley J 112 Applicant’s affidavits 495 The applicant filed three affidavits affirmed 21 December 2018, 25 January 2019290 and 28 January 2021. He was cross-examined on the alterations made across the three affidavits and other inaccuracies. 496 At paragraph 92 of his first affidavit the applicant said that when he was held in the Management Unit at Curtin he suffered feelings of shock and devastation over the failure of his appeal to the Federal Court.291 I reject the applicant’s evidence. As the applicant confirmed in cross-examination the appeal had not yet been decided.292 497 While in Curtin the applicant complained of testicular pain. On 2 May 2002 he was taken to Derby Hospital where surgery was performed. The applicant gave evidence that upon being returned to Curtin after surgery he was placed in India compound. He also described this compound interchangeably as a Management Unit.293 498 Paragraphs 94 and 95 of the applicant’s second affidavit provide: 94. I was also concerned because I had been told that if I was going to be deported I would be sent to the Management Unit first. I thought that this was maybe why they had put me there. I was not able to speak or understand English very well, but I told the officers I was going to kill myself. After I said this, two guards and one nurse began to check on me every thirty minutes day and night. About (5) or (6) times each day I was ordered to take my clothes off. The nurse and guard then checked all of my body. I am not sure what the reason was for this. Usually either the nurse or guard was a female. This caused me distress and embarrassment for cultural reasons. It also made me so angry, that I told them that if they continued to do this, I would kill myself. 95. I wanted to leave the Management Unit. I asked the guards to let me go back to the camp saying that I would get my friends to look after me, but they refused to move on. I asked three times. I then asked for a male nurse to examine my wound instead of a female nurse and they refused. Then, I asked for a razor so I could shave. When they gave me the razor, I broke it to use the blade to cut myself. The guards caught me and took it off me. I was moving so slowly because of my wound that I was not able to cut myself in time. 499 The applicant insisted in his evidence that this occurred.294 He said that the events set out in paragraphs 94 and 95 of his second affidavit were true even if the sequence of events in the affidavit might be wrong. However, events of this nature either occurred or they did not. I am unable to accept the applicant’s account of these events as true. I am not satisfied they occurred. There are a number of features of this evidence. If he had threatened to kill himself, I expect some documentary record would have been made. None can be found. I also consider 290 Exhibit 1.3TP16. 291 T 1471-1475. 292 T 1471.13-1475.33. 293 T 1423. 294 T 1434-1439. -- 116 of 647 -- [2025] SASC 59 Stanley J 113 that if this was true, rather than being released back into the compound the next day,295 he would have been kept in India or placed in the Management Unit for further observation. The applicant gave evidence that a day or so after being released back into Bravo Compound he travelled to Perth to receive a decision from the Full Federal Court. 500 The applicant’s third affidavit altered paragraphs 94 and 95 as follows (emphasis added): 94. …About (5) or (6) times each that day I was ordered to take my clothes off… 95. I wanted to leave the Management Unit. I asked the guards to let me go back to the camp saying that I would get my friends to look after me, but they refused to move on. I asked three times. I then asked for a male nurse to examine my wound instead of a female nurse and they refused. Then, I asked for a razor so I could shave. When they gave me the razor, I broke it to use the blade to cut myself. The guards caught me and took it off me. I was moving so slowly because of my wound that I was not able to cut myself in time. 501 With the alteration to paragraph 94 identified, the applicant maintained that he was strip-searched five or six times or maybe more between 7:00 p.m. until midnight on 2 May, and then again on 3 May before he was released.296 I do not accept the applicant’s repeated allegation of being subjected to multiple strip- searches while in the Management Unit at Curtin. It is implausible. If this had occurred, it would have required a conspiracy of silence by numerous ACM detention officers. I am satisfied this did not occur. 502 The applicant was cross-examined at length about the alteration to paragraph 95 in his third affidavit. I reject the claim in his second affidavit that he attempted to use a razor to cut himself but the DSOs caught him because he was moving so slowly due to his wound and stopped him cutting himself. In his evidence he said that he may have been confused about when this happened but insisted this occurred notwithstanding that this allegation had been deleted in this third affidavit. 503 It was put to the applicant that the incident with the razor in paragraph 95 of the second affidavit was replaced by a similar incident with a razor as described in paragraph 98 of his third affidavit. In paragraph 98 of his third affidavit the applicant stated that he threatened to cut himself when he was back in the compound following the trip to Perth because the nurse was refusing to give him pain relief medication.297 He suggested it was possible that there were two separate incidents with a razor around this time in Curtin. 504 In his evidence he said that upon his return to Curtin he was offered pain relief medication but declined to take it, because he did not need it. He said that 295 T 1434-1435. 296 T 1444-1445. 297 T 1463-1468. -- 117 of 647 -- [2025] SASC 59 Stanley J 114 he was given a prescription for Panadeine Forte by the doctor. He was given two tablets but despite repeated requests he was not given any more. I do not accept his evidence. I cannot accept a nurse would refuse his request for prescribed medication. 505 In cross-examination the applicant conceded that, contrary to paragraph 96 of his second affidavit, he did not spend three days in the Management Unit either upon his return from the Derby Hospital or upon his return from the Federal Court hearing in Perth.298 In fact, he accepted the proposition that he was never put in the Management Unit for three consecutive days while at Curtin. 299 This is also contrary to the first sentence of paragraph 82 of the Outline of Evidence. 506 In paragraph 96 of his third affidavit the applicant claimed that he lied to the MHT in order to secure his release from the Management Unit. But during his evidence he accepted that he had no interactions with the MHT while he was in the Management Unit. He explained that the lie was in completing a form from the MHT asserting that he was fine to go and would behave himself in future.300 I reject his evidence that he lied on the form about his true mental state. Prior to his surgery in Derby the applicant had not complained of any difficulties about his mental health to any mental health staff at Curtin. 507 In the applicant’s second affidavit he alleged he was placed in the Management Unit about two days after his suicide attempt on 11 August 2003.301 This is a slightly different allegation to the one made in paragraph 140 of the Outline of Evidence where the applicant appears to claim he was taken to the Management Unit immediately after his suicide attempt. Neither allegation is consistent with ACM’s records.302 He claims that he was then released on 15 August. There is no record of this. He said he was strip-searched two to three times over a five-day period. I am satisfied none of this occurred. He was not placed in the Management Unit following the overdose of 11 August 2003 and he was not strip-searched. There is no documentary evidence to support these allegations. Examples of unreliable evidence or omissions about specific events 508 The evidence satisfies me that on a number of occasions the applicant was prepared to make false representations or omit to disclose adverse events to various people and institutions when it was to his advantage. Examples of such representations or omissions are as follows. 298 T 1456-1458. 299 T 1458.18-22. 300 T 1479.3-27. 301 Exhibit 1.3TP16 at [152]. 302 Exhibit A1120. -- 118 of 647 -- [2025] SASC 59 Stanley J 115 Arrival in Australia 509 It is clear that upon his arrival to Australia in 2000 the applicant thought that it was justifiable to lie or embellish aspects of his accounts of his flight from Iran and the reasons for it to support his application for a protection visa. He considered his fear and the uncertain circumstances in which he found himself, was sufficient justification to do so.303 510 On 6 January 2001 the applicant was interviewed by an officer of DIMIA, using an interpreter, in relation to his application for a protection visa. He gave a vivid description of the circumstances which led to him fleeing Iran and seeking asylum. In particular, he described his escape from the secret police, the Ettela’at, as follows:304 When the officer found these books he showed them to Haj Hossein. While he was doing this I jumped out of the window and ran towards the main road. I paid a private car to take me to my friend’s house. I was in a lot of pain and I passed out. My friend called a friend who was a doctor. I was told that my friend would take me somewhere to hide. I gave my uncle’s telephone number to my friend. My uncle told him not to contact him again and that he would contact us. A day later my uncle called him and gave him a telephone number of someone who worked in a hospital. He asked my friend to contact him through that person and not directly. He was afraid that he might be monitored because of my problems with the authorities. We learnt through my uncle’s contact at the hospital that Haj Hossein had told my mother that if I did not return after 24 hours that they would issue an execution order against me. My mother collapsed and was taken to hospital. Two days later that contact called my friend and told him to go to Isfahan while he arranged for my departure from Iran. 511 This was untrue. The next paragraph of the statement refers to the applicant flying out of Mehrabad Airport. This is not what the applicant told the interviewer. He said he truthfully recounted flying out of Bandar Abbas Airport. The applicant cannot explain how this error occurred.305 Yet in a separate form completed the same day he is recorded as saying he left Iran from Mehrabad airport. In cross- examination he explained this saying that Mehrabad was one of the airports he used. This made no sense. He then fell back on a claim that the interpreter told him to say he departed from Mehrabad airport as this would be better for him.306 I consider this evidence is implausible. There is no basis for an interpreter to provide the applicant with such obviously false advice. I do not accept this evidence. 512 At the time the applicant made this statement he said he was concerned he would be deported to Iran and face the prospect of imprisonment or execution. I am dubious about the latter part of this claim. There are aspects of his account about how and why he left Iran that he admits is false or which seems implausible. However, I am prepared to accept that his state of mind was highly anxious. I am prepared to find that he feared being deported to Iran and make due allowance for 303 T 1367.16-1368.31, 1369.13-1370.1. 304 Exhibit A630. 305 T 374. 306 T 1913. -- 119 of 647 -- [2025] SASC 59 Stanley J 116 his fear in evaluating his evidence. However, allowing for his apprehensions does not explain the discrepancies in his initial statement to DIMIA and the explanations given for this evidence. 513 As detailed earlier in these reasons, the applicant made a statutory declaration in support of his TPV application on 14 March 2005. At trial he denied aspects of its contents. He said the statutory declaration was put in front of him and he signed it and that at the time his English was poor. The applicant was otherwise unable to explain the reference in the statutory declaration to the video of the Shah of Iran and the copy of Satanic Verses which he said were found in his house by the security police. He denied that he said this when he made the statutory declaration in 2005. The applicant declined to answer the question of whether he signed the statutory declaration knowing it to be false. 514 I found his explanations for these false statements were unconvincing.307 Management Unit 515 The applicant said he was able to remember every small detail of the detention experience, especially his time in the Management Unit. Yet the evidence he gave of the occasions he was in the Management Unit was wrong. I do not accept that claims he made as to the frequency and duration of times he was placed in the Management Unit are explained on the basis of a failure of memory. Moreover, given the centrality of his time in the Management Unit to his case, his failure to mention it when he initially saw Mr McInerney and Dr Raeside undermines his credit in giving evidence of the severe effect on him of his experience in the Management Unit. When the applicant mentioned the Management Unit to Dr Schirripa he told him that he had been placed in it four times.308 This was not true. The applicant’s case in relation to the Management Unit and the frequency with which he was placed in it evolved over time. Notwithstanding that he was placed in the Management Unit on only two occasions, in 2017 he alleged that he had been placed in the Management Unit on 10 occasions, the longest being 10 days. By the final version of the Statement of Claim, the pleading in relation to the Management Unit was confused. He maintained the allegation that he had been placed in the Management Unit on at least 10 separate occasions.309 However, in the same pleading he had reduced his claim to three occasions, only one of which was untrue.310 516 Further, contrary to the evidence of the applicant, the documentary records of his stay in the Management Unit in March 2003 establish that he did occasionally request that he be allowed to return to his room from the exercise yard. His evidence that he would not have made such a request cannot be accepted 307 T 1276-1277, 1280-1281. 308 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 4). 309 8ASoC at [22.1.37]. 310 8ASoC at [34]. -- 120 of 647 -- [2025] SASC 59 Stanley J 117 given the documentary records which I prefer over the applicant’s evidence. There is no plausible reason why ACM detention staff would fabricate such an entry. Overdose 517 Following the overdose incident on 11 August 2003 the applicant does not remember being examined by the medical team when he was in the recreation room. Nor does he recall medical people attending him hourly for the first four hours after the incident. He said he was confused and hallucinating but he thought that a nurse attended upon him 45 minutes after he fainted, took his blood pressure and asked how many tablets he had taken. He denied walking around the compound the following afternoon, yet he recalls receiving visitors and going to the nurses’ station and speaking to them about the incident. He gave evidence he may have gone to the canteen with a friend to get a drink. 518 Despite having little recollection of this event311 he insisted he recalled understating the number of tablets he took for fear of being taken to the Management Unit. The applicant also insisted that when he took the overdose he intended to commit suicide and refrained from reporting symptoms of mental illness because he feared being placed in the Management Unit. Yet, as has been said, the applicant also alleged that the overdose of Tramadol in August 2003 led to him being taken to the Management Unit and strip-searched.312 He further said it resulted in him being hospitalised at the Port Augusta Hospital where his stomach was pumped. He was not taken to the Port Augusta Hospital and his stomach was not pumped. Release from detention 519 The applicant’s counsel opened on the basis that in April 2005 the applicant was released from Baxter with no support except for some temporary accommodation arranged for him in Port Augusta.313 520 Subsequently, he conceded that, in addition to the provision of accommodation in Port Augusta, his travel to Adelaide was arranged and paid for by DIMIA, an appointment was made for him at Centrelink on the day of his arrival in Adelaide, where he was given some money to meet his immediate needs. Centrelink payments commenced a fortnight later. He was referred to the MHS and STTARS.314 Housing Trust 521 In February 2013 the psychologist Mr Zeitz wrote a letter to the Housing Trust in support of the applicant’s wish to move to better accommodation, explaining that he had an eight-month-old baby and his one-bedroom unit was now too small. Larger accommodation was needed to facilitate the baby’s health and 311 T 1302, 1304, 1709. 312 T 1298-1299. 313 T 306, 707-709. 314 T 1022-1027. -- 121 of 647 -- [2025] SASC 59 Stanley J 118 development. This information can only have been provided to Mr Zeitz by the applicant. It was completely untrue.315 In July 2013 the applicant also induced a general practitioner Dr Staridas to write to the Housing Trust seeking larger accommodation because he had an eight-month-old baby.316 The applicant sought to explain this by claiming that he must have been hallucinating.317 I do not accept this evidence. Travel to the United States 522 The applicant gave evidence of his degree of distress and disability during 2010. The applicant spoke to Dr Raeside about this when he saw him in November 2010 but made no mention of travelling to the United States that year until it was put to him in cross-examination. He sought to explain that at this time his life had taken a “turn for the worst” and he could not find employment. He thought that he would move to the US permanently. His evidence in that regard was either contradicted by Centrelink records or, if true, involved an attempt to mislead and deceive Centrelink. I am satisfied his conduct in this regard was motivated by an intention to advance his own financial interests. His attempts to resist that conclusion were unconvincing.318 I reject the applicant’s claim that Centrelink told him it would continue to support him financially while he moved to the US and established himself. Dubai trip 523 In 2013 the applicant travelled to Dubai where he met his wife. He gave evidence that he was in a miserable state and scarcely left the hotel room. His evidence in this regard was substantially corroborated by Mrs Saadat. Despite Mrs Saadat’s attempts at corroboration, I find his evidence is contradicted by photographs taken at the time.319 There is evidence of the applicant participating in a number of tourist activities such as going to the Ski Dubai Snow Park320 going sightseeing near the old city,321 driving on sand dunes,322 and camel riding out in the desert.323 524 The applicant first saw Dr Schirripa the day after he returned from Dubai. While he gave a history of travelling to Indonesia the previous year to get married, he omitted to tell Dr Schirripa of the holiday he had just been on with his wife in Dubai. 315 Exhibit A1606, T 847-848, 1143-1144. 316 Exhibit A1556 at [2], [4], [7], T 1140-1142. 317 T 1141-1142, 1145. 318 Exhibit A1550 at [3], T 1064-1067, 1071. 319 Exhibit R11. 320 T 1133. 321 T 1135-1136. 322 T 1137-1138. 323 T 1164. -- 122 of 647 -- [2025] SASC 59 Stanley J 119 Domestic violence incident 525 There is also the evidence the applicant gave that he sought to mislead the police about threatening his wife with a knife, going so far as to accuse her of attacking him.324 OxyContin and other drug use 526 At trial, the applicant gave false evidence as to the circumstances in which he obtained OxyContin. He initially said that he obtained OxyContin from Dr Zuvela in increasing doses325 and all from legitimate sources.326 Later in his evidence it emerged he had not in fact obtained any OxyContin from Dr Zuvela but instead obtained small doses illegally in 2007.327 As I have found, the applicants first prescription for OxyContin was in April 2008. It was obtained from Dr Lockwood at Roxby Downs.328 527 The applicant also claimed that he became addicted to opioids in Baxter but subsequently abandoned that allegation. His claims in relation to his opioid addiction underwent a number of mutations. The first alleged he became addicted in detention due to prescribing practices. He then amended this to developing an addiction in detention due to prescribing practices and weekly top ups from other detainees. Finally, in 2019 he abandoned any allegation of addiction in detention and instead alleged that his OxyContin addiction commenced in 2008 as a result of him self-medicating to relieve the symptoms of his psychiatric injury. In fact, after his release from detention when he sought OxyContin, he claimed it was for relief of pain due to a lower back complaint. There was no medical record of him ever claiming that he needed OxyContin to treat his psychiatric symptoms. 528 The applicant gave evidence that he had not used drugs in Iran.329 He further gave evidence that he could not remember saying that he occasionally smoked half a gram of opium while in Iran.330 However, the DASA records have an entry for a consultation with the applicant on 25 February 2016 where the applicant said he occasionally used opium while in Iran.331 I find that this disclosure to DASA was true. There is no reason to doubt the accuracy of the record and no reason to doubt the accuracy of what he reported to DASA, given it was an admission against interest. 529 The evidence supports a finding that after leaving detention he commenced using Tramadol regularly for back pain, became addicted to it, commenced the use 324 T 1256. 325 T 751. 326 T 818. 327 T 1045-1046. 328 T 1041-1043. 329 T 348.18-21, 1205.26-28. 330 T 1205.29-1206.1. 331 Exhibit A1558 at p 76. -- 123 of 647 -- [2025] SASC 59 Stanley J 120 of OxyContin in 2007 and became severely addicted by no later than 2008 and remained so until 2014 at the earliest. 530 As another example, when the applicant applied to Centrelink for a disability support pension in July 2011, he claimed in his application that he was taking Zoloft.332 As I have found this claim was false. He sought to explain this on the basis of his inadequate English but that is contradicted by inter alia the history he gave to Dr Raeside in 2010 concerning his use of Zoloft.333 Conclusion on the applicant’s reliability and credit 531 The applicant submits that his demeanour was flat and largely unreactive when giving evidence. He submits he repeatedly had difficulty understanding and answering questions. On the few occasions he displayed some reaction it was irritation. There were times that he required breaks. He gave evidence of operating on little sleep and under particular stressors including an incident that occurred at his home on 29 April 2021. He submits that in giving evidence he was “going through the motions”.334 532 I must make allowance for the risk that his evidence was affected by tiredness and the stress that inevitably is the consequence of giving evidence over such a long period. The applicant gave evidence for 31 sitting days. He gave evidence through an interpreter. He was extensively cross-examined by three senior counsel who had access to voluminous documents covering the entirety of his detention and much of his post detention life. The applicant submits that giving this evidence required him to recall and recount, to the best of his ability, a multitude of events that occurred over more than 20 years ago, including more than four years in detention, and almost every part of his life since. He submits it was a momentous task and that it was unlikely that any unsophisticated personal injury litigant had been subjected to such an ordeal in giving evidence in South Australia. 533 On approximately 18 of those sitting days he had worked a four-hour shift at his place of employment commencing at 5:00 a.m. before coming to court. While I observed little by way of overt signs of exhaustion while he gave evidence, I must consider the possibility that his testimony was adversely affected on this basis. 534 The applicant submits that in assessing his reliability and credit the Court should take into account that English is his second language. He submits that during his evidence, notwithstanding the assistance of qualified interpreters, there were numerous difficulties in relation to the questions asked and his answers. He submits that where inconsistencies exist in statements and affidavits prepared prior to the trial, the Court should bear in mind that they were taken by a solicitor without 332 Exhibit R1588A pp 13-38 at .0487 to .0512. 333 T 328-329. 334 Applicant’s Written Submissions (FDN 681) at [18]. -- 124 of 647 -- [2025] SASC 59 Stanley J 121 the aid of an interpreter. Likewise, he submits the Court should accept that the applicant left the preparation of his statements of claim to his legal advisors. 535 I reject the submission that the discrepancies in the applicant’s evidence can be explained by the fact that pleadings, witness statements and affidavits were prepared by solicitors without the assistance of an interpreter. It was apparent, as the applicant conceded, he had a good grasp of English. While giving evidence he would sometimes answer questions before they could be interpreted. 536 I accept that the applicant did not draft the statements of claim. They were drafted by his lawyers. However, I do not accept that they were prepared on any basis other than the applicant’s instructions. I am not persuaded that a solicitor would put forward pleadings, witness statements or affidavits if there was a suspicion the applicant did not understand or agree with its contents. 537 The applicant’s case relies heavily on the Court’s acceptance of him as a witness of truth. An example of this reliance is the allegation that the Commonwealth breached its duty of care to him by reason of its failure to screen him for torture and trauma, particularly at the time of his transfer to Baxter, and to treat him for the effects of having suffered torture and trauma in Iran. That allegation depends on proof of torture in Iran suffered by the applicant at the hands of the secret police. The difficulty confronting the applicant’s case is the finding that his uncorroborated evidence has not been proved to be accurate or reliable. 538 The uncontradicted evidence of the applicant of his treatment at the hands of the Ettela’at, which he alleged precipitated his flight from Iran and his claim for asylum in Australia, does not prove these allegations. As I have said, the applicant’s description of his escape from Iran to Australia was riddled with inconsistencies. The applicant said he fled Iran in about 25 October 2000 and arrived in Darwin after the boat he was in was intercepted by the Australian Navy at Ashmore Reef on 22 December 2000.335 Yet in describing his journey he said he was in Malaysia for three months, then went to Jakarta, and from there to Bali where he said he stayed for four months.336 He remembers two ferry journeys337 but he would have had to have caught at least four ferries in order to travel to Lombok which is the place from which he says he set out by boat for Australia. His account of his journey from Iran to Australia was confusing and unconvincing. 539 The rule in Blatch v Archer338 is that evidence is to be weighed according to the proof which is in the power of one side to produce and in the power of the other party to refute. The Commonwealth and the third parties had no capacity to contradict the applicant’s allegations of torture and trauma at the hands of the religious police in Iran. They were necessarily limited to cross-examination which tested this evidence. All they could do was poke holes in the applicant’s account 335 Exhibit A630, T1891. 336 T 357.13-34. 337 T 1895. 338 (1774) 98 ER 969 at 970. -- 125 of 647 -- [2025] SASC 59 Stanley J 122 of these events. They did so effectively by exposing the contradictions in the applicant’s account of these events such that I cannot rely upon his evidence of being tortured in Iran. 540 Accordingly, it does not follow, as the applicant submits, that his evidence in this regard was never really contested or contradicted and so should be accepted, and a finding made that he fled Iran in fear for his life due to religious persecution and torture by the Iranian authorities. 541 The applicant contends that it was apparent from his demeanour that he was giving evidence honestly as best he could. He admitted having given a false account to DIMIA in some respects of his escape from Iran. He admitted that while addicted to OxyContin he told many lies to doctors and others in order to obtain the drug. He admitted being violent towards his wife and uncaring towards his stepson and to other conduct such as incidents of road rage which reflected poorly upon him. Nonetheless he submits that the Court should find he was sincere in his evidence and did his best to give accurate, truthful and reliable evidence.339 542 I reject his submission that it was apparent from his demeanour that he was giving his evidence honestly and as best he could. I consider his demeanour to be an insufficient basis for accepting his testimony given the established evidence of his dishonesty. To adopt the observation of Atkin LJ, cited in Fox v Percy,340 an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour. 543 I also do not accept the applicant’s submission that, because he admitted to fabricating his account of escaping from the secret police by jumping from a window in the statutory declaration he made in support of his application for a TPV, the Court should accept the balance of his evidence. Like other inaccurate statements he made and evidence he gave, that submission might have had some attraction but for the myriad of unreliable statements made by the applicant over many years as set out above, which form the basis for the Court’s inability to rely upon the applicant’s evidence for the purposes of making findings of fact. 544 While the applicant submits that his evidence is a reliable basis for making findings of fact, he conceded there are examples in his evidence where his version of events changed when compared with previous versions. Nonetheless, he submits that the Court should accept those events occurred even if it cannot be satisfied when they occurred. He submits that discrepancies of that kind should not undermine his credibility to the extent of not relying upon his evidence as a sound basis for making findings of fact.341 545 I do not accept this submission. Again, in isolation the submission would have some appeal. I would hesitate to reject the evidence of any witness where the 339 Applicant’s Written Submissions (FDN 681) at [186]. 340 [2003] HCA 22 at [30], (2003) 214 CLR 118 at 129. 341 Applicant’s Written Submissions (FDN 681) at [188]. -- 126 of 647 -- [2025] SASC 59 Stanley J 123 only criticism is that he or she erred in identifying the date upon which a particular event occurred when giving evidence many years after the event. But that is not this case. Examples of this problem include the submission that the Court should find that the applicant was placed in the Management Unit in December 2002 notwithstanding the absence of any documentary record that this occurred; the applicant’s account of how his back was injured by the guard, Navid which was contrary to the video of his removal from Red 3 to Blue 3; and the threat of self- harm with a razor blade while in the Management Unit at Curtin, which in the absence of any documentary support for this claim, given he seems to have abandoned this allegation, I do not accept occurred. 546 The applicant’s evidence fails to explain why the Court should make such findings. In my view the absence of such documentary corroboration excludes such findings first, where the evidence establishes that the use of the Management Unit was well documented second, where the content of the video depicting the transfer to Blue 3 is contrary to his evidence and third, where he deleted reference to threatening self-harm with a razor blade while in the Management Unit at Curtin in his third affidavit. 547 Further, the applicant submits that while his allegations in his pre-trial evidence and statements of claim concerning the time he spent in the Management Unit were conceded to be inaccurate, this does not detract from the fact that he was placed in the Management Unit in January 2003 and March 2003, and that they were undoubtedly traumatic experiences he was likely to remember. 548 I am unable to accept much of the applicant’s submissions as to his credit and reliability. For the reasons set out above, I find the applicant’s evidence consisted of a litany of false and exaggerated claims. I find the applicant to be an unreliable witness. He was forced to make many concessions when it became apparent that his evidence in relation to particular matters was untenable. The applicant made too many inaccurate claims about critical and important matters material to his claim. I am unable to accept that the explanation for so much of his evidence that is inaccurate is explicable on the basis of a failing memory. 549 As such, in making findings of fact I approach the applicant’s evidence with a high degree of caution. It is apparent that he was prepared to make false and knowingly misleading statements and exaggerated and inaccurate statements when it suited his purpose. While he conceded that this has occurred on some occasions I do not accept that those are the only occasions. In doing so I remind myself that the reliability of his evidence depends not only on whether he has attempted to recount truthfully his recollection of events occurring many years, if not decades ago, but whether his recollection has been affected by the effluxion of time and his opioid addiction. 550 I have given careful consideration to all these matters in assessing his credit and reliability. However, in the end, the applicant’s evidence is so riddled with significant claims and assertions which I cannot accept as true, that I find myself -- 127 of 647 -- [2025] SASC 59 Stanley J 124 unable to rely on his testimony, standing alone, in making findings of fact. I am only able to rely on the applicant’s evidence for making many findings of fact critical to his case where those findings are supported by reliable corroboration, either documentary or by other witnesses whose evidence I accept, where his evidence is unchallenged or consistent with objectively established facts and the apparent logic of events, or where it involves an admission against interest. 551 There is another important aspect to the caution that I have exercised in making findings of fact based on the evidence of the applicant. The need for corroboration before I am prepared to make findings based on the applicant’s evidence is not met by evidence from other detainees that they had similar experiences to those described in evidence by the applicant. The claim brought by the applicant is for damages for psychiatric injury suffered as a result of the negligence of the Commonwealth. It is a personal claim. To the extent that I require corroboration of his evidence to make findings of fact, corroboration is not provided in that way. Corroboration is provided by evidence from another person, such as one or more of the detainee witnesses, that they observed the conduct which the applicant complains was inflicted on him. The evidence of the applicant fails to identify specific DIMIA, ACM or G4S personnel whose acts or omissions provide the foundation for his claim. The evidence suggests that over the period of the applicant’s detention there were dozens if not hundreds of such personnel working in Curtin and Baxter. Even accepting the evidence of other detainee witnesses that a detention officer or officers behaved towards them, as the applicant alleged detention officers behaved towards him, does not provide corroboration of the applicant’s evidence. Proof that one person acted or failed to act in a particular way is not proof that another person or persons acted or failed to act in the same way with respect to the applicant. While I might be disposed to accept as corroborative, evidence that a particular detention officer behaved towards another detainee as the applicant alleges he behaved towards him, evidence that one or more detention officers conducted themselves in a particular way does not prove inferentially that other detention officers conducted themselves in the same way. There is no basis for relying on such evidence as evidence of propensity. The Commonwealth has no propensity. Only its individual employees and agents, including in particular, the employees and agents of ACM and G4S, can have a propensity. But the evidence does not establish any particular propensity on the part of any particular detention officer. 552 There is a further significant aspect to the applicant’s unreliability and lack of credit. It makes the assessment of the psychiatric evidence difficult and problematic. That is because a psychiatrist, in undertaking an assessment for medico-legal purposes, relies on the accuracy of the history obtained, and the claimant’s presentation, including signs and reports of symptoms. 553 In a claim for damages for personal injury the evidence of the applicant, and whether that evidence is accepted by the trier of fact, is often critical to the success or otherwise of the applicant’s claim. This is particularly so in cases involving -- 128 of 647 -- [2025] SASC 59 Stanley J 125 psychiatric injuries.342 Additionally, in such cases, the opinions of medical experts, and the question of whether those opinions should be accepted, are often also heavily dependent upon the court’s acceptance of the applicant’s account.343 The opinion of any particular expert is usually only as good as the underlying history upon which it is based.344 554 Accordingly, in a case of pure psychiatric harm the applicant’s evidence is crucial. In Collings v Amaroo Pty Ltd & Worker’s Compensation Board of Queensland345 McPherson JA said:346 A plaintiff who is guilty of dishonesty or misstatements to his legal advisors, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth. 555 This observation of McPherson JA applies particularly to the applicant’s case. As was explained by Dr Clarke, whose evidence I will come to later in these reasons, the task of making findings of fact in relation to a multiplicity of incidents and events over many years, occurring many years ago, where the applicant’s credit and reliability has been fundamentally impugned, is extremely difficult.347 In this case the difficulties created by the applicant’s lack of credit is compounded by the delay in this matter coming to trial. The delay in these proceedings results in the Court being unable to have confidence in the reliability of the applicant’s statements to experts, and his evidence of his mental state since 2010. The deficiencies occasioned by the delay have been made more serious by the applicant’s challenge to the accuracy and reliability of the contemporaneous documentary evidence and his consequential contention that the Court should rely almost entirely on his evidence. This is a proposition I cannot accept. APPLICANT’S CORROBORATIVE LAY WITNESSES Mahnaz Saadat 556 Mrs Mahnaz Saadat and the applicant were married in 2012. It was her second marriage. She has a son from her first marriage. That marriage was from 1999 to 2008. Since Mrs Saadat arrived in Australia she and the applicant have lived under the same roof, however, she considers they are separated. She said separation occurred in 2016. Mrs Saadat’s son has lived with them since 2015. 557 Mrs Saadat was born in Isfahan, Iran on 21 March 1976. Her father was the joint owner and manager of a transport company. The other part owner was her maternal uncle. Her mother was a housewife. Mrs Saadat has two brothers and 342 Tame v New South Wales [2002] HCA 35, (2002) 211 CLR 317; Hegarty v Queensland Ambulance Service [2007] QCA 366. 343 Whisprun Pty Ltd v Dixon [2003] HCA 48 at [60], (2003) 77 ALJR 1598 at 1609. 344 Rowe v Transport Accident Commission [2017] VSCA 377 at [89], (2017) MVR 195 at 219. 345 [1997] QCA 224. 346 [1997] QCA 224 at [7]. 347 T 8410-8414. -- 129 of 647 -- [2025] SASC 59 Stanley J 126 two sisters. One brother, Mohammed Saadat, who is a year older, was a close friend of the applicant. They are first cousins. 558 Mrs Saadat completed high school. She attended university for five years. She studied mathematics. She wanted to be a teacher but there was discrimination in favour of men for teaching positions, so she undertook a further two years’ study to become a hairdresser. She opened her own salon in 2001. It was a successful business. She opened a second salon in 2008. 559 The two Saadat families were close notwithstanding that the applicant’s family lived in Tehran and she lived in Isfahan. As a child, Mrs Saadat was particularly close to the applicant’s sister and younger brother. The two families would spend school holidays, long weekends and Nowruz348 together. This was mostly in Isfahan but sometimes elsewhere in Iran. When there was a party in Isfahan the applicant’s family would frequently come from Tehran. When they were in Isfahan the applicant’s family would stay with Mrs Saadat’s family. 560 Mrs Saadat and the applicant became friends. She frequently went out with him and her brother and cousin. She did not observe the applicant drinking, smoking or doing drugs. She was unaware of him getting into trouble with the authorities before 2000. 561 After the applicant graduated from high school he completed two years of national service and then went to university for two years to obtain an advanced diploma. Mrs Saadat said she did not know which university he attended but she thought it was in Tehran. 562 She considered the applicant was clever with a high IQ. He helped her brother with technical computer issues. She and the applicant studied together. She considered him good at maths although he went into a different field of study. 563 She said the applicant’s great interest was football. He belonged to a soccer club and played soccer competitively and socially. He attended professional matches as a spectator. He also played tennis and swam. He was a safe driver. He liked music. His concentration and appetite were good. 564 She said that as a young man the applicant was polite, clean, humorous and cheerful. He would look after himself and his clothes. He was honest, patient and a hard worker. He was a bit shy. 565 Mrs Saadat never saw the applicant angry in Iran. He did not swear. He never raised his voice to his father. He was respectful and polite towards women. She never saw any signs of anxiety. She considered him goal oriented. After university his father found him work in his factory where he undertook drafting 348 Persian New Year. -- 130 of 647 -- [2025] SASC 59 Stanley J 127 with the AutoCAD. He had a position of responsibility in the company. He earned a good income and was buying a car. He worked long hours. 566 She said the applicant’s family was well off. They had a chauffeur. The applicant never seemed short of money. He seemed happy and normal. 567 From the time Mrs Saadat was a small girl until she was in her twenties she saw the applicant two or three months a year. The only exception was the two years the applicant spent doing military service. Apart from her brothers there was no young man she knew better. She said that once the applicant had employment he wanted to go out more with Mrs Saadat as friends. She said they liked each other but they could not go out together without risking arrest. Over time she developed romantic feelings for the applicant. She believed these were reciprocated. However, she said these feelings never went anywhere because of the opposition of the applicant’s father to any romantic relationship between them unless they made the commitment symbolised by Mahram. Mrs Saadat said the applicant’s father was very religious and strict about such things. Neither the applicant nor Mrs Saadat were prepared to do this at that stage of their lives, so while Mrs Saadat thought that some future for them together was possible, that did not occur before the applicant fled Iran. 568 [REDACTED] 569 Around [2000] she was aware that the applicant was talking to her brother and the applicant’s brother about becoming a Zoroastrian. She said that in the last few years before he fled Iran the applicant identified as a Zoroastrian. As far as she was aware the applicant was not religious before this. He did not attend mosque or pray daily. He did not observe Ramadan. The applicant was hostile to Islam. 570 Mrs Saadat had also identified as a Zoroastrian since her last year of high school. [REDACTED] She said [she and the applicant] did talk about Zoroastrianism in private. These discussions also included the applicant’s brother. As she grew older her interest in religion waned. Mrs Saadat said that she still is reluctant to publicly embrace Zoroastrianism for fear that it may affect her ability to return to Iran. 571 Mrs Saadat remembers the applicant’s father dying of cancer and his brother being killed in a motor vehicle accident a few months later. In the period between the applicant’s brother’s death and his departure from Iran, she saw him only a few times. She said the applicant’s mother put a stop to their relationship. 572 Prior to the death of his father, Mrs Saadat had no concern about the applicant’s mental health. She was unaware of him having any physical problems. 573 Mrs Saadat said the applicant was very upset at the death of his father and his brother but he remained strong. He continued to work and socialise. He shared responsibility with her father for organising the funerals which occurred within -- 131 of 647 -- [2025] SASC 59 Stanley J 128 one or two days of their deaths. They organised the traditional ceremonies of mourning on the third, seventh and fortieth days following each death. 574 In the middle of 2000 the applicant vanished. Mrs Saadat did not hear of him leaving for a while, but eventually she learned through her family that he had fled Iran. Mrs Saadat heard that the applicant had left because he had been arrested by the Ettela’at and that he was talking about religion. 575 Mrs Saadat said that in 2000 it was understood that to be arrested by the Ettela’at was very dangerous. A person could be tortured or just disappear. 576 Mrs Saadat had no further contact with the applicant until around 2012. She contacted him on Facebook. They subsequently spoke on the telephone. The applicant sent her romantic messages. This continued for something like eight to 12 months. He asked if she would like to get married and live abroad. She accepted his proposal. She said they were in love. 577 At that time Mrs Saadat did not know a lot about the applicant’s circumstances in Australia. She understood he was working in a mine. She knew nothing about his physical or mental health. In 2012 they travelled separately to Indonesia where they married. They were there four weeks. The wedding took place in the first two weeks. She said the applicant seemed stressed and anxious. She thought this might have been because this was the first time he had seen her in a long time. He spent extensive periods in the bathroom. He would get anxious for no reason. He was reluctant to leave the hotel. He complained about being tired and not feeling well. His sleeping seemed disturbed. She described jerking movements he made while in bed. He would talk to himself. This behaviour continued when she joined him in Australia in 2013. 578 Mrs Saadat understood that when the applicant returned to Australia after the wedding he applied for a visa on her behalf. She said they were in frequent contact until they met in Dubai in 2013. 579 Mrs Saadat described the applicant in Dubai as being very unwell and all over the place mentally. He complained that his body ached. He had a runny nose and was distressed. There were a number of tour trips that he declined to take. 580 The trip to Dubai was for two weeks. Mrs Saadat asked the applicant to stay longer but he said he had to go as he had an appointment. 581 Mrs Saadat said it got so bad that at one stage she packed her bag and left the hotel because she could not cope any longer with the applicant’s lack of energy, being tired and indifferent. However, she said this was not a serious argument. Nevertheless she could not understand why he agreed to come to Dubai to see her and yet not pay her attention once there. 582 Mrs Saadat said that during the trip to Dubai they went to the Australian Embassy but they were refused admission. The applicant spoke to the people at -- 132 of 647 -- [2025] SASC 59 Stanley J 129 the Embassy but she could not understand because at that time her English was poor. 583 During the trip photographs were taken so that she could show her family and friends, but also to send to the Embassy as evidence of their marriage being genuine. 584 Following the Dubai trip Mrs Saadat had doubts about their relationship, but she was reassured by the messages the applicant sent once he was back in Australia apologising and explaining that he was very unwell in Dubai. Mrs Saadat was concerned not to go through another failed relationship. 585 In 2013 Mrs Saadat obtained her visa, but she did not move to Australia immediately. She came to Australia some two or three months later. It was the applicant who suggested she wait. She was initially unable to bring her son because his father would not agree. At this stage he was aged about eight. His father said that Mrs Saadat had to go to Australia and be sure that things would be satisfactory for their son before he would agree to him moving. 586 When Mrs Saadat arrived in Australia in August 2013 the applicant was living at the unit in Brooklyn Park. It was very small with a cramped bedroom, living room and kitchen. There was no internet. There was an ongoing problem with plumbing and sewerage rising up through the toilet. The neighbours were noisy. 587 Mrs Saadat said that when she first arrived in Australia she had trouble communicating in English. She could not understand what people were saying to her and could not read English. She said this was a bit stressful. Some aspects of life in Australia were unfamiliar, such as houses, shops, food and clothes. It was hard because she had left her son behind, but she had anticipated these difficulties and tried to be strong. It helped that she knew that eventually she could bring her son to Australia. 588 Mrs Saadat described a party that was given to welcome her shortly after her arrival. The guests included a number of former detainees. She was told a story about how funny the applicant had been in the early period in detention. 589 Mrs Saadat commenced an English language course some months after she arrived in Australia and found employment at Cibo in February 2014.349 This was night work. She would get home in the early hours of the morning. She worked 30 to 35 hours per week except for a short period after her son moved to Australia. She undertook this employment for two years before obtaining work as a hairdresser. She has worked as a hairdresser ever since. In addition to her employment in that role, she does a little private work at home for friends and members of her community. She does this when the applicant is not at home. Mrs Saadat said that when she came to Australia she was confronted unexpectedly 349 T 2175.5-7. -- 133 of 647 -- [2025] SASC 59 Stanley J 130 with a situation where there was little money and the applicant was unemployed. As a result, she had to use her savings to support them and obtain work as soon as she could. 590 Mrs Saadat was shocked to discover that the applicant was unemployed and in dire financial circumstances. They argued about money and accommodation and his lack of motivation to work. He complained to her of muscle pain and told her that mentally he was totally shattered. He told her he could not concentrate. He frequently slept in front of the television. She said he continued to spend long periods in the bathroom talking to himself. He explained that his psychologist had told him to talk to himself in the mirror. He was angry and aggressive. He was going to the doctor a lot but would not permit her to accompany him. However, on some occasions she did accompany him when he consulted doctors, but she was with him only once or twice in the consulting room. She could not understand what was being said because of her poor English skills. Sometimes the applicant would leave the doctor’s rooms without obtaining medication and he seemed angry. She did not think this unusual because in Iran it was not uncommon to be unable to obtain medication. After a few months Mrs Saadat realised that the applicant was doctor shopping for OxyContin. 591 Once Mrs Saadat realised that the applicant was addicted to opioids she took active steps to get him to treat his addiction. She confronted him, telling him that rather than keeping him alive, OxyContin was slowly destroying him and was poisonous. She threatened to expose his addiction to his family. She painted a picture of a future they could enjoy together if he could overcome his addiction. She undertook research for treatment and sought advice from her brother as to the steps she could take. She learned that the applicant had previously been treated at Warinilla. He went back in 2014. She supervised who he was seeing, checking his phone and bank account. She tried to cut him off from some of his friends who would supply him with OxyContin. She described the toll on both of them trying to overcome his addiction. She suffered from depression. She spent increasing time caring for him. She said it took about a year or more for him to overcome the addiction. Even then, she realised he was struggling to avoid relapsing. Overcoming his addiction meant that he did not have the stress of trying to obtain the drugs, but this did not mean his anger or mood improved. She said he had not been cured. She described him now as still being anxious and stressed. She said he does not like to go out. There is no improvement in his temper and he is angry every day. His motivation has not increased. If anything, his memory has deteriorated. His concentration has not improved. He is no happier. He spends even more time sleeping in the laundry. He still tosses and turns when asleep. There has been no improvement in his social life. His appetite has not improved. Their relationship is no better. She said he avoids contact with Mrs Saadat’s friends when they visit. They do not go out together. 592 Mrs Saadat said the applicant’s condition was worse when he was not using OxyContin. When he was using it his condition was better for 30 to 60 minutes but then he reverted to a worse condition. In 2013 and 2014 when the applicant -- 134 of 647 -- [2025] SASC 59 Stanley J 131 was not able to obtain OxyContin he was very nervous and angry, talking to himself. 593 In October 2014 Mrs Saadat and the applicant moved to a townhouse at Renown Park. Downstairs was a living room, laundry and a kitchen. Upstairs were three small bedrooms and a bathroom. Not long after they moved in the applicant commenced sleeping in the laundry. Mrs Saadat described the applicant as living in the laundry. She said he would sleep in the laundry two or three times a week. If he was not sleeping in the laundry he would sleep in the living room in front of the television. 594 At Renown Park Mrs Saadat did all the cooking and most of the cleaning. She did the laundry, although later when the applicant obtained work he would wash his work clothes. They would hang out what they washed. Mrs Saadat designed the garden and she did the gardening. The applicant mowed the lawn but she had to pester him to do so. It would take an hour to mow the lawn. Mrs Saadat did the household shopping. Sometimes the applicant would help her bring it in from the car. Mrs Saadat would spend five hours a week cooking. She would spend between 7-10 hours each week cleaning. She would spend three hours doing the laundry. The applicant would spend one hour on his laundry. 595 She said that her son, Mobin, came to Australia in June or July of 2015. He was nine or 10 years old. Initially Mobin and the applicant got on well but their relationship quickly deteriorated. During the first few months the applicant and Mobin would kick the soccer ball around at a nearby park. This stopped after the applicant injured his knee and shin playing.350 Mobin told Mrs Saadat that the applicant was not normal. More recently, when Mobin has brought friends to the house, the applicant has become upset. Mobin tries to bring his girlfriend into the house without the applicant knowing. The applicant refuses to acknowledge Mobin’s friends when they visit. Mrs Saadat said that the relationship between the applicant and Mobin is now very poor or non-existent. 596 When Mrs Saadat’s son moved in the amount of time she spent cooking increased a little, as did the time for cleaning. She spent four hours doing the laundry. She spent three or four hours doing the household shopping. 597 Mrs Saadat said that in late 2015 the applicant only had two friends, Roberto Goodarzi and Aref. They were former detainees. He saw them sporadically. Mrs Saadat discouraged contact with Aref as she considered him to be a negative influence on the applicant. She thought that while the applicant had a few friends, he did not want to socialise. He did not like being in a group or going out with others. On the other hand he was very stressed and liked to find an excuse to get out of the house by himself. She said this occurred frequently when she and the 350 T 2066-2067. -- 135 of 647 -- [2025] SASC 59 Stanley J 132 applicant had argued after she had invited people over. The applicant has problems with memory. 598 [REDACTED] When she fell pregnant the applicant was happy initially, but that changed and then she suffered a miscarriage. The miscarriage occurred towards the end of her employment with Cibo in 2016. 599 It is unnecessary to descend into the detail of the circumstances of the miscarriage. For the purposes of this judgment it is sufficient to find that the miscarriage was difficult, painful and required Mrs Saadat to spend two weeks at home. She thought that the applicant was relieved when she lost the baby. The applicant did not provide her with any physical comfort or emotional support during those two weeks. She was left to manage by herself. She said the applicant became very depressed. 600 Mrs Saadat described the incident which occurred on 3 October 2018 where she confronted the applicant in the kitchen at Renown Park accusing him of taking money from her credit card for gambling. This spiralled into an argument which culminated in the applicant brandishing a kitchen knife he grabbed from the sink. This was witnessed by Mobin. The police were called. As a result, an intervention order was made. The applicant lived with his friend Roberto for about a week. The intervention order was varied to permit him to return home. 601 Mrs Saadat said the applicant has worked at Korvest and B&R Enclosures, as well as some shorter-term jobs. He worked seven to 10-hour shifts and would return home tired. He did not take holidays. 602 Mrs Saadat said that after the applicant’s friend Aref died the applicant was really upset, more so than when his father or his brother died. He became even more isolated. For a year or two afterwards he would watch a clip of Aref on his phone. 603 Mrs Saadat said that in 2018 the applicant undertook some university studies for a month or two. He would spend time in the laundry working on his assignments but it was apparent to her that he lacked concentration and was not as bright as he had been in Iran. 604 Mrs Saadat said that the applicant has smoked ever since she has been in Australia which has been a real issue for her. He spends $150 to $200 per week on cigarettes. She said she is aware that since she has been in Australia the applicant has drunk alcohol but he does not do so now. He might have one or two glasses per year. She said that gambling has not been an issue for him since the incident in October 2018. 605 She said the applicant has not played soccer for a team since she has been in Australia. -- 136 of 647 -- [2025] SASC 59 Stanley J 133 606 She described the applicant’s driving. She said he speeds and has incurred fines and been disqualified. She said he is very intense and can become angry with other road users. She described an incident where he wanted to chase another car but she dissuaded him from doing so. She is annoyed by the waste of money caused by the fines he incurs. 607 Mrs Saadat described a holiday she organised to Queensland for her son to go to Waterworld and for the applicant to catch up with a friend in Brisbane. They stayed with the friend. The applicant was reluctant to go and did not enjoy himself. He spent most of his time at his friend’s house watching movies. 608 Mrs Saadat said she has seen the applicant taking Zoloft and Lyrica. She said he is still taking Lyrica. She is also aware he takes Suboxone. 609 In December 2019 Mrs Saadat and the applicant purchased their present house at Reid Avenue, Magill. It was her initiative. It has a large garage and during the warmer months the applicant largely lives in the garage. In the colder months he predominantly sleeps in the television room. 610 Mrs Saadat said the applicant continues to have problems sleeping. He will walk around at night in the garage or the living room, watch soccer, or drink coffee and smoke. He wants to be alone. He will talk to himself. He has almost no appetite. He will not go out. The applicant does not look after himself the way he did in Iran. He does not clean his teeth or wash his hair or clean up his mess. 611 Mrs Saadat described an incident on 29 April 2021 after the trial had started. They had an argument and the applicant became very angry and aggressive. She threatened to call the police, following which he calmed down. 612 Mrs Saadat said now at Magill she spends about seven hours each week cooking for the three of them. Cleaning the house takes somewhere between seven to 10 hours each week. She spends one and a half to two hours each week cleaning the garage. She does the laundry except for the applicant’s work clothes. That takes an hour or two. The applicant assists with none of this except cleaning his own work clothes. She does the gardening and the household shopping, although the applicant mows the lawn. 613 Notwithstanding their separation, Mrs Saadat said that she has no intention to leave the applicant. She feared that if she did so he would kill himself.351 She said nothing gives him pleasure. 614 She said that she had purchased a car in their joint names. She had given the applicant the car on the basis he would pay for it by instalments, but when they purchased the house he said he could not afford to do so. 351 T 2103-2104. -- 137 of 647 -- [2025] SASC 59 Stanley J 134 615 Mrs Saadat said that if the applicant’s claim for damages is successful she expects him to repay the debt he owes her. Otherwise she has no expectation of any financial benefit from this litigation 616 Mrs Saadat said she has spoken to the applicant about the case. Inconsistencies in Mrs Saadat’s Evidence 617 Notwithstanding the terms of an Outline of Evidence prepared for her in August 2018 and her two affidavits of 22 and 28 January 2021, Mrs Saadat denied that the applicant had assaulted her and made her so frightened she would sometimes sleep in her car. She denied saying that in Iran the applicant began to identify as Christian. She sought to explain the inconsistencies between the documents and her evidence on the basis that at the time she had limited skills in reading English. Her reading was not as proficient as her speaking English. She also said that she did not have an interpreter. She claimed that she told the lawyers that there were some interpreting errors which were corrected and then she signed the affidavits. In fact, the second affidavit reflects amendments and additions made to the first affidavit after Mrs Saadat spoke with the applicant’s solicitor, Mr Byrne. Later she said that in early June 2021 the affidavits were read to her and she corrected them. 618 Further, notwithstanding the photographic evidence of the trips taken by the applicant and Mrs Saadat to Indonesia in 2012 and Dubai in 2013, she did not mention in either of her affidavits that the applicant was happy at times during those trips. She said that for 90 percent of these trips the applicant was unhappy. I am not prepared to accept her evidence in this regard. The proposition that the photographic evidence only captured the applicant during the 10 per cent of the time he was happy, was only advanced by Mrs Saadat in her evidence, after she had been confronted with the photographic evidence of the applicant clearly enjoying himself. I considered her evidence in this regard to be disingenuous. 619 In her second affidavit, Mrs Saadat said that their Magill residence was purchased in 2020 for $640,000. The mortgage debt securing the borrowings is about $580,000. Mortgage payments are about $600 per week. She asserts that it is a struggle to make those payments. She said that the mortgage repayments are largely met out of the applicant’s salary and she meets the household expenses from her earnings. While for some time she operated a joint account in order to control the applicant’s expenditure, their finances are now separate. The credit card is under her name. In cross-examination, she insisted that by herself she has the capacity to cover the debt on the house because of property she owns in Iran. However, she conceded that she could not afford the mortgage payments without the applicant’s contributions. -- 138 of 647 -- [2025] SASC 59 Stanley J 135 Corroboration of the applicant’s evidence 620 The first thing to observe about the evidence of Mrs Saadat is that she can provide no corroborative evidence of the applicant’s account of his time in detention at Curtin or Baxter. 621 I formed an unfavourable assessment of Mrs Saadat as a witness. There were a number of features of her evidence which I found unsatisfactory. 622 First, Mrs Saadat gave inconsistent evidence concerning the applicant’s alleged difficulties with the religious authorities in Iran. In examination-in-chief she gave evidence of the trouble he was in with the religious authorities,352 but in cross-examination she was unable to explain what she meant in that regard.353 Then Mrs Saadat said she had not heard of the applicant having any problems with the authorities before he left Iran.354 623 Second, I do not accept her evidence that she did not know the university the applicant attended in Iran. That seems implausible given the nature of their relationship at that time as she described it in evidence. 624 Third, I also doubt her evidence of travelling with the applicant to Indonesia in November 2012 for a four-week holiday during the course of which they were married. Photographic evidence of that trip355 depicts them enjoying themselves and apparently happy. However, in her evidence Mrs Saadat was at pains to portray the applicant at this time as stressed, anxious, tired and confining himself to the hotel bedroom for most of the holiday. She gave evidence that he did not leave the hotel for a period of 10 days or so.356 As I said earlier, I find it difficult to reconcile her evidence with the photos. 625 I formed a similar impression in relation to Mrs Saadat’s evidence concerning the subsequent trip she and the applicant took to Dubai in 2013. She gave evidence that during the 14 days of their holiday the applicant appeared sick and “all over the place mentally,”357 and suffered from body aches and chills. She claimed he left the hotel only four or five times.358 However, photos of them again depict a happy couple obviously enjoying themselves. Mrs Saadat’s attempt in the course of her evidence to undermine the probative weight of the photographs by claiming that the applicant only participated in enjoyable activities begrudgingly is unconvincing. 626 While I acknowledge that the applicant was addicted to OxyContin during this time, that does not detract from what I consider to be the plain evidence of him 352 T 1986.5-6. 353 T 2203-2205.7. 354 T 2198.2, 2204.26. 355 Exhibit 1.3TP30. 356 T 2011.5-2017.5. 357 T 2017.29. 358 T 2017.26-2022.3. -- 139 of 647 -- [2025] SASC 59 Stanley J 136 having a good time, contrary to the portrait of unrelieved misery her oral evidence sought to convey. Acknowledging that, I am prepared to accept that Mrs Saadat found the applicant’s conduct and presentation at various stages during these trips to be troubling and of concern to her. 627 Fourth, I also found Mrs Saadat’s evidence about the applicant’s drug taking unsatisfactory. She gave evidence that the last time the applicant took OxyContin was in 2014,359 but the applicant’s own evidence and the documentary records support a finding that it was in 2016 or 2017. While I accept that this discrepancy could be explained by the applicant’s attempts to conceal his drug use from Mrs Saadat, she also gave evidence of knowing that the applicant had taken Zoloft. However, she was unable to substantiate that claim. She had not seen him take Zoloft and he had not told her that he had done so.360 I do not regard her evidence of the applicant taking Zoloft as credible. Her evidence is incapable of contradicting the pharmaceutical records that show the applicant did not fill a prescription for Zoloft, despite obtaining prescriptions for it on numerous occasions. 628 Fifth, the applicant’s OxyContin addiction is also relevant to other evidence given by Mrs Saadat which I treat with some caution. I am prepared to accept that at times during the period the applicant was addicted to OxyContin his behaviour was erratic, frightening and occasionally violent. I accept this was caused by his drug addiction and that it resulted in an intervention order being made against the applicant. But Mrs Saadat’s evidence is that the applicant has remained anxious, stressed, short-tempered and largely antisocial since 2014, notwithstanding him apparently ceasing to abuse OxyContin. There is evidence that the applicant developed a gambling habit which no doubt was a source of tension between he and Mrs Saadat. However, I find it difficult to accept her evidence that she subsequently separated from the applicant “spiritually” while still living together.361 Mrs Saadat gave evidence that she and the applicant will divorce362 yet, almost in the same breath, she gave evidence that she will stay with him.363 Certainly, there is no evidence of any steps taken by either of them to obtain a divorce. The fact is Mrs Saadat and the applicant purchased a house in Magill in 2019. This is some years after the “separation” which Mrs Saadat dated to 2016 or 2017.364 I cannot accept that there has been any separation in a meaningful sense. It is inconsistent with the applicant and Mrs Saadat undertaking such a significant financial commitment as the purchase of a house subsequent to separating. As a result I also discount Mrs Saadat’s evidence of separate sleeping arrangements and constant arguments.365 While it is trite to observe that human relationships are complex, I am hesitant to accept her evidence that they are separated and intend to 359 T 2045.31. 360 T 2119.2. 361 T 2005.2-8, 2102.37. 362 T 2103.21. 363 T 2104.7. 364 T 2102.37. 365 T 2027.4, 2036.20, 2087.21, 2119.12. -- 140 of 647 -- [2025] SASC 59 Stanley J 137 divorce. Even assuming the truth of the claims that they sleep in separate bedrooms and argue constantly, that is not evidence that necessarily establishes the end of a marriage, particularly where neither party gave evidence of having taken any steps to obtain a divorce. The fact is, Mrs Saadat has a financial interest in the outcome of this litigation. While the relationship is volatile and has been punctuated by occasional outbursts of anger and threats of violence, I infer that Mrs Saadat has no present intention of leaving the applicant despite her claim that they are separated. On the contrary she gave evidence that she will not leave him.366 629 Sixth, Mrs Saadat gave evidence that she did not understand why the Magill property is held as tenants in common rather than joint tenants.367 She denied purchasing the property as tenants in common on the understanding that she would have a half share in the property. I treat her evidence in this regard with considerable caution. I consider it unlikely that the acquisition of the property on this basis occurred without her understanding that this was its legal effect. 630 Seventh, I also doubt Mrs Saadat’s denial of the statements in her affidavits of 22 and 28 January 2021 and her witness statement of August 2018 that the applicant had assaulted her and left her so frightened she would sometimes sleep in her car. 631 Eighth, I am also dissatisfied with Mrs Saadat’s evidence concerning her interaction with Dr Raeside. She disputed Dr Raeside’s evidence that she and her son had seen Mr McInerney368 notwithstanding Mr McInerney’s evidence that she had consulted him. Further, she contradicted Dr Raeside’s evidence that the applicant wept and that he had a good relationship with her son.369 632 Ninth, I also have cause to doubt the reliability of those aspects of Mrs Saadat’s evidence referred to earlier in this section which are inconsistent with contemporaneous documentary evidence or written statements she has given for the purpose of this litigation. 633 Finally, I am further troubled by evasive evidence Mrs Saadat gave concerning matters I would expect her to recall with some precision such as the year she left high school,370 the date of her first marriage,371 the date of her wedding to the applicant372 and the date she arrived in Australia.373 I was left with the impression that Mrs Saadat was hedging her evidence out of concern that she might inadvertently say something contrary to the applicant’s interests in these proceedings. Plainly she understood that her evidence was relevant to the 366 T 2104.7, 2163-2164. 367 T 2227-2230. 368 T 2233.12. 369 T 2102.17. 370 T 1237.26. 371 T 2008.3. 372 T 2208.18. 373 T 2023.18. -- 141 of 647 -- [2025] SASC 59 Stanley J 138 applicant’s claim for damages, which is a matter in which she has a shared financial interest while she and the applicant are married. 634 Due to these reservations I am only prepared to rely upon Mrs Saadat’s evidence, particularly her evidence concerning the applicant in the period since she migrated to Australia, where it is independently corroborated, consistent with incontrovertible facts or contrary to the applicant’s interests. Shahin Shahrooei 635 Mr Shahin Shahrooei was born on 27 July 1977 in Iran. He came to Australia claiming asylum in April 2001. He was 23 years of age. He was detained pursuant to the Migration Act at Woomera until 11 April 2003 when he was transferred to Baxter. 636 Mr Shahrooei gave evidence that when he came to Australia from Iran he spent a few months in Indonesia. He travelled on a fake passport. He travelled to Indonesia from Malaysia by plane. He was on an island. He went to Jakarta and then Surabaya where he took a boat to Australia. In Indonesia he paid a bribe to police who demanded one when they inspected his false passport. 637 Mr Shahrooei said that when he arrived at Baxter there was no medical assessment or examination conducted. Each day a nurse came to the nurses’ station to dispense medication to detainees. He said when he arrived he was on painkillers. A short time later he was given some tablets to keep him calm. 638 Mr Shahrooei does not recall being seen by a psychiatrist when he was at Baxter. On one occasion he saw a psychologist. He was prescribed Tramadol for his pain. At Baxter he asked for treatment for his injured ankle on a number of occasions, as he did in relation to his tooth. He has no recollection of refusing to see an orthopaedic surgeon. He said he took an overdose once. 639 Mr Shahrooei spoke of the prevalent attitude in Iran to mental illness. He said it was taboo. He said to have a mental illness is to be considered as ‘literally crazy’. Conditions at Baxter 640 Mr Shahrooei gave evidence that detainees were subject to frequent random room searches and head counts. Searches would be conducted in a disrespectful manner which Mr Shahrooei found humiliating and upsetting. DSOs would walk over detainees’ bedding and clothing, throw things around the room and create a mess. Things would be thrown outside. Mr Shahrooei then had to clean up his room. 641 Mr Shahrooei said that at Baxter DSOs told him that he was going to be deported. To him this risk seemed very real as other detainees were being deported at that time. He specifically remembers Reza being taken from his room in the -- 142 of 647 -- [2025] SASC 59 Stanley J 139 early hours of the morning so he could be deported. He described having difficulty sleeping for fear that the DSOs would come for them in the night. 642 Mr Shahrooei recalls that in Baxter he had case managers. He could not remember their names other than Libby Hogarth. He thought that they were employed by DIMIA. He understood their role was to help with his visa applications and rejections. 643 Mr Shahrooei said that at Baxter if detainees had a complaint they could only take it to the DSOs. If they wanted to see their case manager they had to ask the DSO. They could also complain to one of the visiting priests. If they needed medical treatment they would speak to a DSO and complete a form. If they saw a nurse in the compound they might speak directly to her. There was no opportunity to directly approach a doctor. An appointment had to be made. The only people Mr Shahrooei felt comfortable discussing his mental health with were the priests. 644 Mr Shahrooei complained that the food they were served at Baxter was terrible. They were mostly served chicken which was badly cooked to the point it was inedible. He survived on toast with jam. However, Mr Shahrooei said the food improved from mid-2004. There was more variety and choice. 645 Mr Shahrooei loved to play soccer. However, the DSOs would sometimes refuse to give detainees the soccer ball. Depriving them of a game was used as a form of punishment after some incident. Once Mr Shahrooei requested a boxing bag but this was not provided. Apart from a short period while in Blue 3, Mr Shahrooei did have access to television. Once Mr Shahrooei asked a DSO to videotape a soccer game for him. 646 In detention Mr Shahrooei did very little. Detainees sat around talking or watching television. Most detainees slept during the day because of the heat. At night it was cooler. Blue 3 647 When he was transferred to Baxter he was placed in Blue 3. He said that in this compound he could only see the interior of the compound and the sky and he had no view of the surrounding landscape. This was different from Woomera where detainees could see the surrounding scrub through the chain wire fences. The accommodation at Baxter was also different from Woomera. Each detainee had their own room with an ensuite bathroom. In Woomera the facilities were shared. 648 Mr Shahrooei said that Blue 3 was used as an observation compound where troublemakers were accommodated. There was a denial of privileges in Blue 3. Detainees could not visit other compounds or receive visitors from other compounds. Detainees could not perform work to earn money to purchase phone cards in order to make telephone calls. There was no access to books or newspapers. Mr Shahrooei requested a Farsi/English dictionary. This request was -- 143 of 647 -- [2025] SASC 59 Stanley J 140 refused. While in Blue 3, detainees could not attend education classes. He was not told he was entitled to an education pack. He asked an officer and a case manager if he could undertake a course of study but nothing came of this. In fact, Mr Shahrooei said the officer laughed in his face. Mr Shahrooei felt as though he was in gaol in Blue 3 and said it was very depressing. Mr Shahrooei witnessed detainees in Blue 3 self-harming. 649 Mr Shahrooei met the applicant when they were in Blue 3. They became close friends. He observed the applicant spending a lot of time sitting in his room, isolating himself. Mr Shahrooei and the applicant were together in Blue 3 for only a matter of months. 650 Mr Shahrooei described an incident which occurred in Blue 3 on 24 April 2003 during a church service in the mess when the DSOs interrupted the service to conduct a search. He and other detainees objected. By this time he had converted to Christianity. DSOs with riot shields and batons came and herded Mr Shahrooei and other detainees into a corner of the yard while they conducted the search. Some detainees protested and a number of those involved in the protest were taken to the Management Unit. At some time a screwdriver without a handle was discovered during a search of Mr Shahrooei’s room. He had stolen this tool from a maintenance worker. He is not sure whether it was in the search conducted on this occasion, that the screwdriver was found. White 1 651 Mr Shahrooei was moved from Blue 3 to White 1. Mr Shahrooei gave evidence that he only spent a short period of time in White 1 and he was later moved to Red 1. 652 Once Mr Shahrooei was transferred to White 1 he was able to visit the applicant. The applicant was in White 3. There was a system for visiting other compounds which required detainees to complete a form which had to be approved. Detainees were required to identify on the form who they wished to visit. Once detainees were visiting a detainee in another compound, however, they could visit others in that same compound. 653 Mr Shahrooei said he would see the applicant in his room in White 3. They bonded over their mutual interest in soccer. Mr Shahrooei said that at this time there were days when the applicant was alright, happy and chatty, but there were also days when he isolated himself in his room, sitting in the dark in the corner. The majority of the time the applicant was sitting in the dark in the corner of his room. This was not normal even though the applicant was naturally quiet. Mr Shahrooei worried about him. When he was like this Mr Shahrooei left him alone. He gave evidence that in the period November 2004 to March 2005 he visited the applicant in White 3 on 48 occasions. Mr Shahrooei did not see the applicant working in Baxter. -- 144 of 647 -- [2025] SASC 59 Stanley J 141 654 Mr Shahrooei said there were marijuana users in Baxter. He did not see the applicant smoking marijuana. However, he was aware that the applicant would go to the room in White 1 where marijuana was being smoked. When he was in Blue 3 he saw the applicant under the influence of some type of drug. Mr Shahrooei was aware of a detainee and of DSOs who were able to supply drugs to other detainees. 655 Mr Shahrooei referred to an incident on 29 September 2003 where he was in pain from an infected tooth and missed his medication. He went to the officer’s station to see whether the nurse could come back and provide him with pain killing medication. When this was refused he picked up a plastic chair and smashed it into the office window. DSOs came and seized him, twisting one arm behind his back and the other arm behind his head and picking him up by the belt of his pants. He was taken to the Management Unit. 656 He thought he was in Baxter for less than a year before he saw a dentist in Port Augusta who extracted the tooth. 657 There was another incident on the same day where Mr Shahrooei self-harmed by administering small cuts on his shin. He said that cutting himself seemed to release his stress. After self-harming he was taken to the Management Unit. He observed the same thing happening to other detainees who self-harmed. 658 Once he was taken to Whyalla Hospital. The DSOs allowed him to wear a hoodie and place a jacket over the handcuffs he was wearing. When he was in the reception area they took his hood off. He said there were children who recoiled. 659 Mr Shahrooei said that all the detainees in Blue 3 were unhappy and sad and did not have any hope. This was also true in White 1. In detention Mr Shahrooei sometimes behaved badly in response to what he considered to be unfair treatment meted out to him by the DSOs. He felt provoked by conduct which he found humiliating and dehumanising. On a few occasions he complained to ACM or DIMIA officers about this treatment. He also wrote to the United Nations, as did his father. Management Unit 660 Mr Shahrooei said he was placed in the Management Unit at Baxter on two occasions. He said that when taken to the Management Unit he was strip-searched then placed in a room with nothing in it but a mattress which was very dirty and malodorous. There were two CCTV cameras in the room. Detainees were monitored when in the bathroom. 661 When he was in the Management Unit the DSOs would control the temperature of the room and the lighting. They would adjust the temperature or turn on the lights to aggravate detainees and cause them discomfort. Once detainees were placed in the Management Unit they would only be given a blanket -- 145 of 647 -- [2025] SASC 59 Stanley J 142 for good behaviour. DSOs would come to the room when detainees were asleep and wake them. 662 Mr Shahrooei said that when detainees were released from the Management Unit they would be left alone for a few days to enable them to get back to normal. That was his experience. Applicant’s overdose 663 Mr Shahrooei described an incident where he said the applicant suffered an overdose. The applicant was in his room. Mr Shahrooei went to get him to come to the television room to watch a soccer game. The two of them were sitting next to each other on chairs. Suddenly the applicant started shaking. Another detainee put a shoe or something similar in the applicant’s mouth to stop him from biting his tongue. The applicant fell to the ground. DSOs came and Mr Shahrooei returned to his room. Release from detention 664 In August 2003 Mr Shahrooei applied to the Federal Court for an injunction to restrain the Commonwealth from deporting him to Iran. 665 In October 2003 Mr Shahrooei was notified that an application for a further review of his application for a protection visa would not be referred to the Minister. He felt that this was the end for him. He had nowhere else to go. At that time he was not provided any counselling or support. He was released from Baxter in September 2005. 666 After his release from Baxter, Mr Shahrooei avoided contact with former detainees. He saw the applicant after his release only on three occasions between 2005 and 2008. On that first occasion, the applicant’s beard was untidy; he did not appear to be in a good state of mind. He could not make eye contact and was hunched over. Mr Shahrooei thought he was pretending to be happy to see him. He kept talking about detention. On the second occasion Mr Shahrooei saw the applicant post detention, he thought he needed psychiatric help. He suggested they should both seek it. He thought this was late 2005. He looked worse than on the first occasion. When he last saw the applicant, he was still talking about detention. 667 Mr Shahrooei has brought his own claim for damages against the Commonwealth. He has retained the same lawyers as the applicant. Mr Shahrooei has co-operated with the applicant’s lawyers in the conduct of the applicant’s case. 668 Mr Shahrooei accepted that he has no medical training. He did not know precisely what medication the applicant was taking. He did not know the reasons the applicant was taking medication.374 He freely admitted that during his period in detention he had been involved in violent incidents of physical assault and 374 T 2456. -- 146 of 647 -- [2025] SASC 59 Stanley J 143 property damage. At the time he was upset and angry at his treatment in detention. He still considers it unfair which is why he is seeking compensation.375 669 Mr Shahrooei accepts that he was in White 1 from 17 January 2004 until 9 June 2004, from 11 June 2004 until 13 October 2004, from 15 November 2004 until 6 December 2004, and finally from 11 January 2005 until his release in September 2005.376 He also accepts that at times during this same period, psychologists and counsellors visited the compounds and that at some stage activity co-ordinators were in White 1.377 He accepts that he did have access to newspapers, including occasionally the Persian Herald.378 On occasions he played backgammon with other detainees. He was once offered an excursion to a swimming pool in 2005 but declined. He conceded it is possible that other excursions from Baxter were available from time to time, if not offered to him, but he has no memory of it now.379 He accepts that once Iranians started to be released from detention the attitude of the DSOs improved. Mr Shahrooei dates this from January 2005.380 Corroboration of the applicant’s evidence 670 Unsurprisingly, Mr Shahrooei found himself unable to answer many questions because of failings of memory. As he was deposing to events of 15 to 20 years ago, it would have been notable if he did not experience difficulty in recalling the detail of those events. An example of this is his denial that he was examined medically by a nurse upon his initial arrival at Baxter.381 In cross- examination Mr Shahrooei denied undergoing a medical examination upon arrival at Baxter. I accept his earlier admission as deposed to in his affidavit of 16 January 2019 that he had. 382 He made this admission at a time closer to the event. His attempts to explain away the effect of his affidavit i.e. that ‘medical’ was a reference to a pat wanting search, I found unconvincing. Contrary to his evidence, I find that such an examination occurred. 671 On the other hand, at times he eschewed giving answers that he might have thought would have been helpful to the applicant. Importantly, however, I cannot accept all of the evidence he gave by way of observations of the applicant which were led in an attempt to corroborate the applicant’s claims of self-isolation and depression. 375 T 2458-2460. 376 T 2472-2473. 377 T 2477. 378 T 2478-2480. 379 T 2481-2484. 380 T 2492. 381 T 2341. 382 Exhibit 1.3TP66 at [31]. -- 147 of 647 -- [2025] SASC 59 Stanley J 144 672 Mr Shahrooei and the applicant were both detained at Baxter at the same time between 11 April 2003 and 27 April 2005. They were only in the same compound, namely, Blue 3, between April 2003 and September 2003. 673 Mr Shahrooei gave evidence that, after September 2003 until the applicant was released from detention in April 2005, he would visit the applicant’s compound from time to time. It is apparent that Mr Shahrooei had limited opportunities to observe the applicant, particularly in the period after September 2003. 674 G4S analysed Mr Shahrooei’s attendances on the applicant’s compound for the period 22 January 2004 to 23 April 2005. The applicant produced a comparable analysis which included six additional visits totalling 63 visits over that period. The analysis set out in each of these schedules identifies the potential for Mr Shahrooei and the applicant to have spent time together in the applicant’s compound. They cannot establish that they did spend all or any of that time in each other’s company. Nonetheless, I am prepared to accept that during this period there were a number of occasions when they saw and spoke to each other given I am prepared to rely to some extent on Mr Shahrooei’s evidence. However, I am not in a position to make any finding as to how many occasions of that kind there were, other than to find that there were no more than 63 such occasions. 675 Mr Shahrooei said that he often observed the applicant sitting in his room in the dark with the door shut.383 He went and sat with him. On these occasions the applicant was not communicative. Later in his evidence he said that this only occurred on a couple of occasions.384 I find that these incidents described by Mr Shahrooei occurred only on a couple of occasions. His evidence in this regard sought to correct his earlier evidence. After that, he would knock on the applicant’s door and if he was sitting in the dark he would shut the door and leave him alone. This happened frequently. He said this occurred on more than 95 per cent of the occasions he visited the applicant.385 On other occasions he would speak to the applicant in his compound. He described the applicant on those occasions as “normal”.386 There were other occasions where the applicant was outside his room but not talkative. Mr Shahrooei thought this unusual. He conceded his memory of some things had faded.387 I am unable to rely wholly on Mr Shahrooei’s evidence in this regard as he was confused as to the compound in which he visited the applicant. He thought the applicant was in White 2 when these events supposedly occurred, when in fact, he was in White 3.388 676 Nonetheless, I accept that Mr Shahrooei’s evidence does provide some limited corroboration of the applicant’s account of self-isolation. However, 383 T 2350.12. 384 T 2455, 2488. 385 T 2499. 386 T 2434. 387 T 2453. 388 T 2488.33. -- 148 of 647 -- [2025] SASC 59 Stanley J 145 Mr Shahrooei’s evidence in this regard must be balanced against the other observations recorded by DSOs in that period from April 2003 to April 2005 and his evidence of the applicant making inter-compound visits. Some of that evidence corroborates Mr Shahrooei’s evidence of his observations and interactions with the applicant, but much of the documentary evidence contradicts the evidence of the applicant staying secluded and withdrawn in his room. Mr Shahrooei’s evidence that he frequently visited the applicant and that on more than 95 per cent of those occasions he found the applicant alone in his room in the dark cannot be reconciled with the contemporaneous observations of the applicant made by various DSOs and recorded in the movement logs. I find that while the applicant spent time in his room isolated and alone, between 2003 and 2005 the applicant frequently went on inter-compound visits and was socially and functionally engaged. This is inconsistent with Mr Shahrooei’s evidence that the applicant was depressed throughout this period.389 Ali Namavar 677 Mr Ali Namavar was born on 23 September 1977 in Bandar Abbas in southern Iran. He completed high school in about 1995 and attended the Maritime University after which he obtained a position as an able seaman working for the Islamic Republic of Iran Shipping Line, a government-owned company. On 23 February 2002 Mr Namavar jumped ship at Port Lincoln. He was detained at the Villawood detention centre on 27 February 2002 until he was transferred to Baxter on 24 September 2002. He was eventually released on 16 September 2004. 678 In Iran he was awarded a degree in business management from Tehran University in 1993. Somehow he obtained a certificate from the university for the purposes of placing it before the RRT. He cannot recall how he did this. 679 Mr Namavar gave some evidence about public attitudes and understanding of particular institutions in Iran in the year 2000. He said Evin Prison was a very hard prison for political prisoners. Ettela’at was the internal security organisation. It focussed on opponents of the regime. It was believed the Ettela’at tortured such people. In Iran at that time, converting from Islam was considered apostasy. It could result in the person’s execution. 680 Mr Namavar said that he did not discuss mental illness in Iran but there were psychiatrists and hospitals where people with mental illness were treated. Arrival at Baxter 681 Mr Namavar was transferred from Villawood to Baxter by a commercial flight from Sydney to Adelaide accompanied by two officers of DIMIA. He was transferred in Adelaide to a van and driven to Baxter. 389 T 2499-2501. -- 149 of 647 -- [2025] SASC 59 Stanley J 146 682 He said he was not examined medically, nor subject to a MHA upon his arrival. He said that upon arrival he was handcuffed, strip-searched and taken to the Management Unit. 683 In his amended Outline of Evidence dated 22 January 2021 Mr Namavar said that upon his arrival at Baxter he was put in the Management Unit for five weeks.390 But in evidence-in-chief he said he was in the Management Unit for two or three days.391 Later he amended this to five days.392 Mr Namavar denies deliberately exaggerating his evidence in his witness statement concerning the period of time he spent in the Management Unit upon arrival. He accepts that the statement was incorrect but insists that it was a mistake in the Outline of Evidence.393 It is difficult to accept that he could have mistaken, to that extent, the length of time he spent in the Management Unit. In any event, I find that upon his arrival at Baxter he was not placed in the Management Unit at all.394 Contemporaneous records of ACM evidence that Mr Namavar, upon his arrival at Baxter, was processed and then allocated accommodation in Red 1 which was a residential compound and given dinner.395 I do not accept he was merely mistaken when giving this evidence. It is not something about which I consider he could be mistaken. 684 Mr Namavar did not know the applicant before he was sent to Baxter. Conditions at Baxter 685 Mr Namavar’s first impression of Baxter was that it was like a prison. He was deeply embarrassed by strip-searches. He said this impacted him mentally. Restrictions on his movements within Baxter affected him. Observing the rough handling of detainees by DSOs adversely affected him. The closed nature of the compounds affected him. The use of numbers rather than names by the DSOs felt dehumanising. He observed that even in a zoo, animals have names. However, he accepts that during the G4S period it was possible some DSOs addressed him by his name.396 686 Mr Namavar saw two detainees being removed in the middle of the night. He was led to believe by DSOs that they were being deported. He said this made sleep difficult. He was afraid he would be next. He described living in a nightmare. 687 Mr Namavar said that the food served at Baxter was of poor quality. It was mostly chicken. It was not cooked properly. There was still blood in it. However, 390 Exhibit 1.3TP73 at [19]. 391 T 2528.38-2529.2. 392 T 2669.20-35. 393 T 2670. 394 Exhibits R1710 and 1.3TP71. 395 Exhibit 1.3TP71. 396 T 2679. -- 150 of 647 -- [2025] SASC 59 Stanley J 147 during the G4S period the food became more varied. There was pasta, fish, soup, salad and fruit. 688 In detention he was not given any education about the signs of mental illness nor the treatment that was available for people who suffered mental illness. However, he admitted to understanding the expertise of psychiatrists when he was in Iran. 689 Mr Namavar said he was not offered any excursions while in Baxter. Neither was he aware of other detainees in his compound being invited to undertake excursions. He was unaware of education classes being offered. He insists that he did not attend education classes at Baxter. He maintained this position notwithstanding an entry in an ACM document suggesting that he attended two advanced English classes in 2003.397 In addition he maintained that he did not perform any work at Baxter notwithstanding the documentary evidence suggesting otherwise. He denies the signature on the document is his.398 I am unable to resolve the true position in relation to this matter. 690 In the last six months of his detention, however, he did become aware that Australian newspapers were being provided. He was not aware of any Farsi language newspapers being provided. He was unaware of any library at Baxter. He said he was not provided with any books in Farsi. 691 He said the only sport that was permitted was soccer but Detainees did not play soccer often. He cannot recall soccer being played in the last 18 months of his period in detention. He said that detainees could send letters but they had to pay for the envelope and the stamp. Detainees did not have access to email. Compound movements 692 There is some inconsistency in Mr Namavar’s evidence of the compounds where he was accommodated during his time in Baxter. The evidence supports a finding that he was initially accommodated in Red 1 until the fires in late December 2002. As a result of the second fire he was admitted to the Port Augusta Hospital. Upon discharge he was placed in Red 2. On 31 December 2002 he was transferred to Red 3.399 On 22 January 2003 he was transferred to Blue 3.400 On 10 February 2003 he returned to Red 3.401 On 5 April 2003 he was placed in the Management Unit. On 15 April 2003 he was transferred to Blue 3 upon his release from the Management Unit.402 He was transferred to White 1 in September 2003. He remained there until he was released from Baxter on 16 September 2004.403 However, there is some confusion in the evidence over some of these dates and 397 Exhibit 1.3TP74, T 2672-2673. 398 Exhibit 1.3TP75, T 2673-2675. 399 Exhibit 1.3TP72. 400 Exhibit A875. 401 Exhibit A927. 402 Exhibit R1710. 403 T 2533. -- 151 of 647 -- [2025] SASC 59 Stanley J 148 whether at some time he may have been placed briefly in Red 2 and White 2.404 In the end this probably does not matter. It is not surprising that nearly 20 years after these events Mr Namavar had some difficulty recalling the precise movements from compound to compound during his detention at Baxter. Red 1 693 He said that after his release from the Management Unit upon arrival at Baxter he was placed in Red 1. He said he met the applicant soon after. When Mr Namavar was first placed in Red 1 after his arrival at Baxter he said he was shocked that within the compound the only external view he had was the sky. I am sceptical about this aspect of his evidence. I can understand how the configuration of the compound, which obstructed detainees’ views of the surrounding landscape to the horizon, could prove disorienting over time, but I doubt that the initial exposure to the setting of the compound would have the immediate shock effect described by Mr Namavar. 694 Mr Namavar describes the detainees as depressed and upset. He said they kept mostly to themselves. It was very quiet. Most of the detainees in Red 1 slept during the day. For a matter of some weeks he continued to sleep during the night but gradually he adapted to sleeping during the day. 695 Mr Namavar said that in Red 1 there was access to telephones but detainees required a phone card to make calls. Sometimes phones were not working. 696 Mr Namavar described detainees who were so disturbed they would knock their heads against the walls. He saw other detainees doing this once or twice a week. In addition, he said there were outbreaks of vandalism and property damage by detainees. They would smash plastic chairs and break lights. They would self- harm by cutting themselves. Mr Namavar observed that people who engaged in acts of self-harm were sent to the Management Unit. 697 On one occasion in Red 1 he resorted to knocking his head against the wall due to his treatment by the DSOs. This occurred after he had missed the nurse distributing medication in the morning because he was asleep. When he woke he went to speak to the officers about obtaining his medication. He said they made him wait four and a half hours without giving him his medication. He was on Zoloft and Endep at the time. This was when he started knocking his head against the wall. He threatened to smash the place. He said he was placed in the Management Unit for 10 days after this. 698 Mr Namavar was in Red 1 in late December 2002 when the two fires occurred. During the second fire he collapsed from smoke inhalation and was taken to the Port Augusta Hospital. He spent two nights in hospital. He was surrounded by DSOs in the hospital. He was handcuffed on his trip back from the 404 T 2654. -- 152 of 647 -- [2025] SASC 59 Stanley J 149 hospital. Mr Namavar said that he felt deeply ashamed, and like a criminal when he was seen in public wearing handcuffs. 699 Mr Namavar was not interviewed in relation to the cause of the fires. The little property he owned was destroyed in the second fire. He was left with only the clothes he was standing in. 700 After his discharge from the Port Augusta Hospital he said he spent one or two days in the Management Unit. He denies that upon his return from hospital he was placed into Red 2. I do not accept his evidence. It is contrary to the documentary evidence which I accept.405 Mr Namavar said that after this he was moved to Red 3 where he remained until 22 January 2003. Red 3 – 22 January 2003 701 Mr Namavar said that in Red 3 there was a gap in the enclosure that allowed detainees to see out of the compound. For a while in Red 3 detainees were not permitted visitors. There was nothing to do. The applicant was with Mr Namavar in Red 3. 702 Mr Namavar cannot recall a search of his room on the night of 21 January 2003 when a number of detainees were in his room and a red cigarette lighter was found and confiscated. This was a matter of significant concern at that time given the fires had occurred less than a month earlier. No one admitted that it belonged to them but no one was sent to the Management Unit, notwithstanding that possession of a cigarette lighter was contrary to the rules following the fires. Blue 3 – 22 January 2003 703 On 22 January 2003 Mr Namavar, along with another 13 detainees, was transferred to Blue 3 where he remained until 10 February 2003. The applicant was with him through this move. The transfer from Red 3 to Blue 3 occurred without warning. He said DSOs came and searched him and searched his room. He said he was strip-searched before he entered Blue 3. He said he found the strip- searches very uncomfortable. On each occasion his shirt was removed but not his shorts. However, in cross-examination he agreed that he was not visibly naked to any other detainees while the search was conducted.406 704 He said he has no recollection of being told that the reason the 14 detainees were being sent to Blue 3 was that they were suspected of being involved in starting the December fires or planning future fires.407 Nonetheless, I am satisfied he understood this was the reason for the transfer. He conceded as much.408 ACM documents record that these measures were taken because of suspicion these 405 Exhibit 1.3TP72. 406 T 2647-2648. 407 T 2647. 408 T 2550.9-13. -- 153 of 647 -- [2025] SASC 59 Stanley J 150 detainees were involved in lighting the fires.409 It seems difficult to accept they were not informed that this was the case. 705 Mr Namavar said that in Blue 3 there were no telephone calls, no visits, and no access to computers, books or newspapers. Room searches were routine. They could go from once a week or thereabouts to twice a day. He said room searches were disruptive and conducted without respect for detainees or their possessions. Things were thrown around by DSOs and detainees were then left to clean up the room. Things could be left on the floor or outside. He had to wait outside with two DSOs while another two DSOs conducted the search. The DSOs would not take their shoes off for the search. 706 On 6 February 2003 there was an incident where a number of detainees engaged in acts of self-harm. Mr Namavar said the self-harm incident was not pre-planned. His involvement commenced with him confronting DSOs saying, “If the phones don’t get turned on we all are going to hurt ourselves, fuck your face.” He then demanded to see DIMIA officers or they would all hurt themselves. He stood in front of his room and used a razor blade to cut his chest. He had seen other detainees begin cutting themselves before he joined in. He said he was very angry and was shouting. All of the detainees in the compound were out in the yard participating. The DSOs stood around observing. They did not intervene. He described blood everywhere. He said it was like a movie. The incident lasted somewhere between 10 and 15 minutes before the protestors surrendered their razor blades on condition that no one was to be sent to the Management Unit. Nurses then tended to their wounds but Mr Namavar refused treatment. 707 Mr Namavar said there was a brief hunger strike in Blue 3 which he and the applicant joined. Mr Namavar described frequently asking to see a psychologist but nothing happened. The DSOs would not respond to questions or requests. They would just shout at detainees. 708 Mr Namavar said the absence of visiting rights to other compounds was disturbing because detainees wanted to know what was happening to each other so they could check on each other’s welfare, and sometimes so they could smoke marijuana. Red 3 – 10 February 2003 709 On 10 February 2003 Mr Namavar was again shifted to Red 3, along with the applicant. He said things improved after they were moved into Red 3. Room searches decreased. Privileges were reinstated. They were able to make phone calls and visit other compounds. 710 Mr Namavar described the incident where the applicant and Reza were digging a hole in an attempt to escape in March 2003. He said that the distance 409 Exhibit A877. -- 154 of 647 -- [2025] SASC 59 Stanley J 151 involved meant they would have had to dig for 150 years. He said he could not understand why they did it and that only a crazy person would try. 711 This is an example of Mr Namavar exaggerating for effect in his evidence. The applicant said it was an attempt to escape and his description of the excavation does not establish it was impossible for a tunnel to have been dug to a point beyond the security fence. 712 Mr Namavar said that in around March or April 2003 he became aware of offers to return to Iran. He refused to consider the offer. 713 On 5 April 2003 there was a confrontation between Mr Namavar and a female DSO during which he threatened to “smash the compound”. This occurred when DSOs had refused to give him medication he needed which he had missed when the nurses were dispensing medication earlier in the day. He said that when nurses came into the compound to dispense medication, if detainees were not at the station, their number would be announced and if the detainee did not attend immediately, they would not receive their medication. Mr Namavar was prescribed Endep. He said he was not given any instructions as to taking it. He was not told whether it was important if a dose was missed. Mr Namavar asked for medication which was not provided. He was angry and told the DSO he had had enough of everything. When the DSO asked why he was angry he refused to explain. He thought this was because he thought the DSOs were toying with him. They knew why he was angry. He said he was not in a good situation mentally. He told the DSOs he wanted to break everything. He was taken to the Management Unit. Management Unit – 5 April 2003 714 Mr Namavar said he might have been seen by people in the Management Unit but he does not recall anyone being introduced as a psychologist or a mental health nurse. He does not recall being seen by a doctor in the Management Unit for the flu. He said he was in the Management Unit until 15 April 2003. He said he was not given any explanation for why he was kept in the Management Unit for that period. 715 Mr Namavar said the room in the Management Unit had floor space measuring two metres by three metres. There was only a mattress on the floor. There was no window except a small opening low in the door through which meals were delivered. It had a metal flap which was controlled from outside. He only had two sessions outdoors daily in the small compound for five minutes each. He was a smoker. There was nothing to read in the Management Unit. He had no control over the air conditioning. DSOs would come and supervise him taking his medication. He would try and complain over the intercom in his room. Sometimes there would be no response. The light was on in his room day and night. He was given a pillow, a sheet and a very thin blanket. The bedding was clean. To sleep he had to hold the pillow over his head. There was no communication with other detainees in the Management Unit. -- 155 of 647 -- [2025] SASC 59 Stanley J 152 716 Mr Namavar said the DSO in charge of the Management Unit was Navid. He described him as being rough. He said Navid would place him in handcuffs and use them like a leash to drag him around. Mr Namavar observed him putting his knee into the back of other detainees, rubbing their faces on the concrete or the lawn. He said this occurred in front of the applicant, but the applicant did not give evidence of this occurring in the Management Unit and the applicant was not in the Management Unit in April 2003. 717 Mr Namavar described an incident when he observed Navid putting his knee in the back of a detainee, Jafar. This occurred when Mr Namavar had been in the Management Unit courtyard having a cigarette. There was some incident which resulted in him being returned to his room. He said he witnessed this assault as he went along the corridor. 718 Mr Namavar’s experience of the Management Unit left him afraid and in shock. It made him sick. He said each time he was in the Management Unit he came out feeling worse. On the last occasion he was in there the nurses had to increase his Zoloft intake as a result. 719 Later in May 2003 Mr Namavar was interviewed by Terrina Wallis about the incident in the Management Unit where he said he saw the DSO Navid assault Jafar. Blue 3 – 15 April 2003 720 When Mr Namavar left the Management Unit on 15 April 2003 he signed a behaviour management plan. He said he did not read it before signing. He was taken to Blue 3. The applicant was in Blue 3 at the time. They discussed the circumstances of Mr Namavar’s stay in the Management Unit. He told the applicant that there was no explanation for why he was there. 721 I find his evidence in this regard is disingenuous. He clearly understood why he was placed in the Management Unit. He was placed in the Management Unit after he had threatened to “smash the compound” and “break everything”. He said he was angry and not in a good situation mentally. When Mr Namavar returned to Blue 3 he was restricted from visiting other compounds or receiving visitors for three or four weeks. 722 Mr Namavar was present at a church service on 24 April 2003. The service was presided over by a Catholic priest, Father Bourke. He said the service was interrupted by 20 or 30 DSOs in riot gear who removed a few of the detainees, and searched them and all the rooms. Mr Namavar said the reason for this was never explained. 723 I consider that the evidence does not support a finding that the applicant was present at this church service. In any event, I consider Mr Namavar, who was present, was not owed an explanation for what occurred. From time to time ACM, and later, G4S personnel undertook searches for legitimate purposes. The evidence -- 156 of 647 -- [2025] SASC 59 Stanley J 153 does not establish that the search conducted on this occasion was unreasonable or illegitimate. 724 Mr Namavar described the incident in the recreation room of Blue 3 on 11 August 2003 where the applicant fell off his chair, frothing at the mouth, with his eyes rolled back and his limbs shaking. When this occurred Mr Namavar did not render any assistance. He kept watching the football on the television. DSOs came and they called the nurses. He said after about five or six minutes the applicant was moved to the front of the office. He said he deliberately refrained from rendering assistance to the applicant because he understood from earlier events that the applicant wanted to die. In the days leading up to this incident the applicant and Mr Namavar were at the nurses’ station when the applicant stole about 20 tablets. The applicant also asked Mr Namavar for tablets. Mr Namavar gave him some even though he had been stockpiling them for the purpose of his own suicide. The day before the applicant’s overdose the applicant embraced Mr Namavar for a few minutes and said goodbye. He had tears in his eyes. Curiously the applicant did not mention this incident. I do not accept it occurred. I consider it is another example of Mr Namavar being prepared to embellish his evidence to assist the applicant’s claim. 725 Mr Namavar saw the applicant three or four days later. He said the applicant was sad and depressed. He was upset that he was not dead. However, he gave evidence that the applicant became better. After the applicant’s attempted overdose 726 In September 2003 Mr Namavar was transferred to White 1. The applicant did not accompany him there. 727 Mr Namavar said that throughout the entire period he was in Baxter, from September 2002 to September 2004, the applicant was a sad and depressed person who spent much of his time sitting alone in his room staring at the wall. He said that over time, the applicant got worse. He said that the applicant did not want to talk to other people, stopped coming to meals at the mess and asked others to bring food to him. Mr Namavar said he never saw the applicant smiling or laughing except when he was smoking marijuana. The applicant grew his beard and did not pay any attention to his appearance. A couple of times after the overdosing incident the applicant asked him for tablets. Mr Namavar had none to give him. 728 Mr Namavar said that in January 2004, when G4S took over management of Baxter from ACM, the only thing that changed was the uniforms. When Mr Namavar visited the applicant in White 1 commonly the applicant was smoking marijuana. He said there were occasions when DSOs would open the door and see detainees, including Mr Namavar, smoking a bong, close the door and walk away. However, there were also occasions when they would search Mr Namavar’s room, find the bong and confiscate it. This also happened in White 2. In August 2004 a bong was discovered by DSOs in Mr Namavar’s room which was confiscated. Police came and interviewed him. -- 157 of 647 -- [2025] SASC 59 Stanley J 154 729 Mr Namavar said he was permitted to keep a cat during the G4S period. Food and a vaccination were supplied by G4S. He wanted to take the cat with him upon his release but the DSOs would not permit it. 730 In April 2004 Mr Namavar was upset because he had run out of cigarettes. He threw chairs and destroyed some of the centre’s property. He was not punished for this. In fact, arrangements were made for him to obtain cigarettes from the canteen. 731 Mr Namavar confirmed he does not have any medical training, qualifications or training in mental health. He did not know what medication the applicant was taking while he was in Baxter. Post detention 732 When Mr Namavar was released from detention he said he was only given about one and a half hours’ notice. He was not given any medical records or medication. 733 After the applicant was released from detention Mr Namavar saw him on a number of occasions from 2005 to 2007. The applicant was living variously at Marion, Richmond and Henley Beach during this period. Mr Namavar said when he saw the applicant there was little change from his demeanour in detention. He was still sad and depressed. He did not want to go out or see people. He would not attend weddings or community events. He was still sitting in a dark room staring at the wall. If anything, he seemed to Mr Namavar, to have become worse over time. After the applicant’s release from detention Mr Namavar did not observe any occasion that the applicant seemed to enjoy. I do not accept that from the moment of his release from detention the applicant was miserable and depressed. It is contrary to the documentary evidence of his last year or so in detention and the histories he gave Dr Raeside, Dr Schirripa and Mr McInerney of the months after his release. Corroboration of the applicant’s evidence 734 I am not prepared to rely upon the evidence of Mr Namavar as corroborating the applicant’s evidence, except to the extent that Mr Namavar’s evidence was unchallenged or consistent with contemporaneous documents, objective facts, or the evidence of other detainee witnesses whose evidence, generally or in relation to a specific matter, I am prepared to accept. In addition, there are further grounds not to rely on Mr Namavar’s evidence from September 2003 to September 2004. 735 From September 2003 to September 2004 Mr Namavar was in White 1. The applicant was not resident in White 1. During this period he was in White 3. Mr Namavar said that during the period from September 2003 to September 2004 he generally went on inter-compound visits on a weekly basis. Those visits were mostly to White 2 or sometimes Red 1 but not White 3. In the last year of Mr Namavar’s detention he would see the applicant in his room in White 3 or when -- 158 of 647 -- [2025] SASC 59 Stanley J 155 the applicant visited him in White 1. Sometimes they would run into each other in White 2. Mr Namavar agreed that in the last six months of his period in detention most of his compound visits were to White 2 rather than White 3. 736 Accordingly, Mr Namavar’s opportunity to observe the applicant from September 2003 until September 2004 was very limited.410 However, he said the opportunity had occurred occasionally when the applicant was in White 2 or White 3 compound. 737 G4S undertook analysis of the attendances by Mr Namavar on the applicant’s compound in the period from 19 January 2004 until 15 September 2004. The same qualifications and limitations identified in relation to the comparable analysis conducted in relation to Mr Shahrooei and the applicant applies to this analysis by G4S of the occasions of Mr Namavar’s attendance on the applicant’s compound. It shows there were 21 visits in that period. That represents the maximum potential for any encounters between Mr Namavar and the applicant on those occasions. I am only able to find that it was possible that on some or all of those occasions Mr Namavar may have encountered the applicant and had the opportunity to observe and speak with him. I am unable to make any findings as to the occasions that occurred. His evidence does not support a finding that during the period September 2003 to September 2004 the applicant was sequestered in his room in White 3. 738 I do not accept Mr Namavar’s evidence that the applicant was always depressed and his depression was always getting worse.411 This evidence of the applicant as a picture of abject misery is contradicted by the contemporaneous documentary evidence. I do not accept Mr Namavar’s evidence as accurate. That makes it difficult to know the extent, if any, I can rely on it. That difficultly is compounded by the fact that I do not find him to have been an impressive witness. Nonetheless, I accept that there were times in the period from January 2003 until Mr Namvar’s release in September 2004 when Mr Namavar observed the applicant who appeared to be unhappy and uncommunicative. However, I do not accept that this was always the case, or even for most of the time. 739 This evidence indicates the limited opportunity Mr Namavar had to see the applicant and the unreliability of his evidence in this regard. His claim to have seen the applicant in White 1 contradicts the applicant’s case that he was confined to his room in White 3. Mr Namavar accepted that his recollection of his time in Baxter has faded.412 740 Mr Namavar accepts that his memory of events in Baxter has faded with the passage of time. However, he remembers some things from that time very clearly. Unsurprisingly, Mr Namavar’s evidence suffered from the difficulty that inevitably attends any attempt to recall events from 15 to 20 years ago. I glean 410 T 2533.12-18. 411 T 2599-2603, 2608-2609. 412 T 2638.1. -- 159 of 647 -- [2025] SASC 59 Stanley J 156 from his evidence and demeanour that he remains angry with the Commonwealth and the third parties over the circumstances and conditions of his detention at Baxter. I am not satisfied that generally he was endeavouring to do his best to accurately recall those events about which he gave evidence. I do not accept some of his evidence where he struggled to be precise about some events and their timing. There were a number of aspects of his evidence that I found unsatisfactory and which are difficult to explain merely as the result of flawed memory due to the effluxion of time. In the circumstances, after making appropriate allowance for the difficulties outlined above, I am not prepared to act upon his evidence, unless I have indicated otherwise. 741 I reject his evidence that from before the fires to September 2004 the applicant’s symptoms of depression continuously worsened.413 Again, this evidence is inconsistent with the evidence of the contemporaneous documents. 742 Much of Mr Namavar’s evidence concerned his own experience at Baxter rather than observations he made of the applicant. Overwhelmingly, this evidence was irrelevant to the issues I have to decide. Shokrollah Paparzadeh 743 Mr Paparzadeh was born in the city of Khuzestan in Iran on 22 October 1967. He grew up in the city of Ahwaz. He undertook university studies and military service in Tehran after which he returned to Ahwaz. 744 Mr Paparzadeh gave evidence about Iran. He said that in Iran Islamic apostates were liable to be put to death. In Iran people did not usually talk about mental illness. He also said that in Iran it was very rare to see another man naked. This included immediate family members. 745 In 2000 he travelled to Australia via Malaysia and Indonesia. He caught a boat from Indonesia to Australia. During his travels to Australia he paid a bribe to customs officials in Indonesia. He described that the boat trip was frightening as the seas were heavy, he could not swim and the boat was not in a good condition. They were in the boat for seven days. He arrived in Australia on 20 December 2000. He met the applicant on the customs boat that intercepted their boat at sea. He said the applicant appeared to be young and healthy. Curtin 746 Mr Paparzadeh was admitted to the Curtin Detention Centre on 22 December 2000. His claim for asylum was rejected. He brought unsuccessful appeals against the decision to reject his claim for asylum. 747 Mr Paparzadeh believed that the applicant was also detained at Curtin during his time there. Mr Paparzadeh was put in Charlie compound. He said that night 413 T 2599-2609. -- 160 of 647 -- [2025] SASC 59 Stanley J 157 the detainees were addressed by Mr Wallis. He thought the applicant was part of the group. He said Mr Wallis told them that they were not welcome in Australia. 748 Mr Paparzadeh described the appearance of Curtin as being comparable to the depictions of prisoner of war camps in films set in Germany during the second world war. The fence surrounding the camp was topped with razor wire. He said the climate was very hot and humid with lots of heavy rain. There were many insects. During the winter it could get very cold. 749 After three or four weeks he was moved to another compound. He described this as an open camp. The applicant was moved to a different compound. Some time later Mr Paparzadeh was transferred back to Charlie. He went on a hunger strike. He was then moved to India compound. 750 Mr Paparzadeh said the manager at Curtin, Mr Wallis, spoke to the new detainees in English. He cannot recall whether there was an interpreter. He thought he had to rely on one of the detainees to interpret. He does not recall Mr Wallis referring to a document while he was speaking. Mr Wallis explained what was to happen given the detainees had entered Australia illegally. Mr Paparzadeh insists that Mr Wallis said they were not welcome in Australia. He does not recall Mr Wallis saying their claims for asylum would be assessed and if they were rejected the detainees would face deportation.414 751 Mr Paparzadeh accepted that when he arrived at Curtin he barely knew the applicant. He spent little time with him in Curtin.415 752 He said that at Curtin, India, and later Hotel compounds, served the same function that the Management Unit performed at Baxter. After he was released from India Mr Paparzadeh was transferred back to the open camp. In the open camp he had access to telephones and television. There was an area for playing soccer or cricket. Conditions at Curtin 753 Mr Paparzadeh said sometimes DSOs would prevent the detainees from watching news programs. He thought this was to prevent the detainees from hearing news about what was happening in other detention centres. Sometimes televisions would be damaged by detainees rioting or protesting. Frequently after the television was broken it would take some time before it was replaced. 754 Mr Paparzadeh recalled detainees could write letters in Curtin. He said there was an English class but he only attended it once or twice. He said he could not continue because he felt sick. He said they were not provided with books or newspapers in Farsi. There might have been access to some newspapers in English in the officers’ rooms. 414 T 3189-3191. 415 T 3193-3194. -- 161 of 647 -- [2025] SASC 59 Stanley J 158 755 Mr Paparzadeh described the toilets as filthy. He said that in hot weather there were insects and the toilets emitted a bad smell. The toilets would get blocked and they would have to wait a long time for them to be fixed. 756 Mr Paparzadeh recalled that some months after he arrived in Curtin a priest visited the detention centre, but he did not see Mr Paparzadeh. 757 Mr Paparzadeh said that most of the time he was at Curtin, DSOs would address him by his number rather than his name. 758 At Curtin there were head counts and room searches. He said DSOs ignored requests to remove their boots before they came into the room. They would make a mess and leave. 759 At Curtin there were queues for meals three times a day. Mr Paparzadeh recalled the food was mincemeat and rice and chicken and rice. He said detainees might wait for 45 to 60 minutes in the sun. He said there could be shorter queues to use the phones or to purchase items from the shop. 760 Mr Paparzadeh said he saw a psychiatrist or a psychologist once or twice while at Curtin. However, later in his evidence he said he doubted ever seeing a psychiatrist while he was in detention.416 Incidents at Curtin 761 Mr Paparzadeh recalled a detainee, Abdul Amir, self-harming by cutting his chest with a razor blade. He said there were also disturbed detainees who would climb up a tree or onto the roof of a donga. In one incident DSOs taunted a detainee until he jumped from the roof. One detainee climbed the fence and got caught in the razor wire. 762 Mr Paparzadeh described an incident at Curtin where there was a confrontation between a large group of Afghans and a smaller group of Iranian men. He thought the applicant was involved. He said it commenced with an argument between two Iranians and an Afghan while detainees were queueing to purchase food from the shop. This escalated into a massive fight involving maybe up to 100 Afghans and 15 to 20 Iranians. The Afghans tore limbs from trees and used chairs as weapons. An Iranian named Olam was struck on the head and fell to the ground unconscious. The Iranians took shelter in the telephone area. 763 He said DSOs in riot gear stood outside the area behind the fence observing. The riot lasted for one and a half to two hours. The Afghans were throwing things at the Iranians, abusing and threatening them. After one and a half to two hours the DSOs entered the compound, regained control and shepherded the Iranians from the area to the television room. He said it was very frightening. 416 T 3128. -- 162 of 647 -- [2025] SASC 59 Stanley J 159 764 Mr Paparzadeh said that while he was at Curtin he engaged in a number of hunger strikes. He could not remember if he went on a hunger strike on 17 March 2001 at Curtin. However, he denied that if he did it was to support a demand that he be provided with a room to himself.417 He said when he was on the hunger strikes he saw a nurse and a doctor but could not remember seeing a psychologist. He said the nurses and a doctor told him that if he continued to not eat and drink he risked doing long-term damage to his vital organs. He said to one of the nurses that his case manager had told him that his situation was hopeless. He referred to the Irish hunger striker Bobby Sands.418 765 Mr Paparzadeh insisted that the main reason he went on hunger strikes in detention was because of the circumstances that existed in the detention centre. He conceded that part of it might also have been to bring his plight to the attention of the authorities to persuade them to let him stay in Australia. He cannot remember in March 2001 demanding that unless he saw the manager at Curtin, Mr Wallis, and achieved a satisfactory outcome from such a meeting he would continue his hunger strike. However, he went on to deny that the purpose of the hunger strikes was to get something he wanted. He said that hunger strikes were evidence of his loss of control.419 766 On 15 May 2001 Mr Paparzadeh told a nurse that he had been on a hunger strike since the beginning of that month. He was put into the India compound. He does not remember speaking to a nurse a few days later and demanding to see Di Miller, a DIMIA officer, or ending his hunger strike and meeting her.420 767 Mr Paparzadeh described the appearance of the rooms in India and Hotel in Curtin. He said the dimensions of the rooms in India were 2.5 x 3 x 3 metres. The rooms in Hotel were slightly larger. In India the only furnishing in the room was a mattress on the floor. Detainees were unable to control the temperature inside the rooms. If a detainee needed to go to the toilet he would have to ask an officer to accompany him. In each room the lights were on permanently. Detainees could not control the brightness of the light. In the rooms in India compound there was a camera, although he does not think there was one in Hotel compound. He was placed in India on a number of occasions. Detainees were allowed out of their rooms for 10 to 15 minutes per day. He said there was nothing to do or read. 768 Mr Paparzadeh said that sometimes when he was on a hunger strike he was not put into India or Hotel but was checked in his room by a nurse. He said he went on a hunger strike on 28 occasions for a total of more than 100 days.421 769 Following a riot at Curtin in April 2002 Mr Paparzadeh was interviewed by the AFP and then removed from Curtin to Broome gaol. In July 2002 he went on 417 T 3235, 3240. 418 T 3240-3242. 419 T 3242-3244. 420 T 3244-3245. 421 T 3246-3247. -- 163 of 647 -- [2025] SASC 59 Stanley J 160 a hunger strike to protest the conditions at Curtin which he considered were worse than the conditions at Broome gaol. He denied that he wished to return to Broome gaol. He cannot recall being told in August 2002 that mental health services were available and how they might benefit him.422 770 In January 2002 Mr Paparzadeh attempted suicide by drinking detergent outside the DIMIA office. He said he provided DSOs with a suicide note written in Farsi. He described it as a will. This was the culmination of a hunger strike for two to three days. He said after drinking the detergent he went back to his room. DSOs came to his room and forcibly removed him to the medical centre. He could not remember if this occurred after he refused assistance from DSOs outside the DIMIA office. He was then taken to Derby Hospital and admitted for a night. Tests were conducted and he was discharged and returned to India compound. He said he went on a hunger strike for another three days. 771 After that incident he thought he saw a psychologist and later a nurse. He does not recall telling the psychologist the reason he tried to kill himself was because a letter he wrote to the Minister four days earlier had not been sent.423 772 Mr Paparzadeh said that while at Curtin he was not provided with any education about mental illness, informed about the signs and symptoms of mental illness, advised of the assistance available if he was suffering from mental illness or offered any form of counselling after the rejection of his asylum claims or following the riot with the Afghans. 773 Mr Paparzadeh accepted that he was not close to the applicant at Curtin. Nonetheless he said he knew him from the customs boat and saw him around the detention centre.424 He said that from their arrival at Curtin the applicant’s appearance deteriorated. He first noticed this after two to three months at Curtin. He was not happy and looked sad and did not look after himself. He became secluded and stayed in his room most of the time. Mr Paparzadeh described the applicant as losing hope. He thought he became depressed. He was not interested in conversation. He said the applicant continued to deteriorate gradually. Things got worse after the rejection of his asylum claim. He said the applicant never improved. 774 On 5 September 2002 Mr Paparzadeh was transferred to Port Hedland Detention Centre. Baxter 775 Mr Paparzadeh was transferred from Port Hedland to Baxter on 13 February 2003. He said when he arrived in Baxter he was placed in the Management Unit. He said he asked why he was placed there. He was told that every new arrival was 422 T 3248-3249. 423 T 3232-3233. 424 T 3194-3195. -- 164 of 647 -- [2025] SASC 59 Stanley J 161 put there for two to three days. He said he was beaten while handcuffed, his clothes were taken and he was thrown in the room. He said he was not given a medical examination or asked questions about his mental health or previous suicide attempts upon his arrival at Baxter. However, it emerged that there had been an altercation with some DSOs upon his arrival. On Mr Paparzadeh’s evidence, this was provoked by the DSOs hitting him first while he was still handcuffed. He accepts that he was placed in the Management Unit and later a nurse tried to interview him but he refused to answer any questions.425 For the four days he was in the Management Unit he refused to eat, drink or speak. He said he was in shock because of what had happened upon his arrival. He said the nurse just checked his blood-sugar levels. This was only two weeks after he had attempted suicide at Port Hedland.426 776 He said the nurse might have attended upon him the following day but he would not tell them anything about himself other than that he was on a hunger strike. He said the nurse returned on the third day to speak with him but he again refused to talk. On the fourth day he started eating and drinking after he was informed that he would be transferred from the Management Unit to Blue 3.427 Conditions at Baxter 777 Mr Paparzadeh said there were no organised activities at Baxter. He said there were no classes, computers, or books in Farsi, although there may have been a Farsi newspaper that circulated. There was little to do other than walk between compounds accompanied by DSOs. He said sometimes when detainees wanted to go from one compound to another they were prevented from doing so with the DSOs falsely telling them that there was not a DSO available to accompany them. 778 One activity that was available was the gym. Mr Paparzadeh said he attended nearly every day. He did not see the applicant in the gym. He did not remember any sports being played other than table tennis. He did not recall the applicant playing table tennis. There was a pool table which he used once or twice. Again, he did not see the applicant play pool. Mr Paparzadeh was not aware of the availability of excursions outside Baxter. 779 Mr Paparzadeh said the DSOs at Baxter would sometimes address him by name and sometimes by number. There were room searches conducted every fortnight. Detainees would have to leave their room while the DSOs entered wearing shoes or boots and made a mess. Every morning a head count was conducted. DSOs would knock on doors and detainees would have to come from their rooms. 780 Mr Paparzadeh recalled that at Baxter there was a DSO, Navid. He said that in the Management Unit Navid refused to allow him to come out of his room for a 425 T 3203-3205. 426 T 3203-3205. 427 T 3228-3229. -- 165 of 647 -- [2025] SASC 59 Stanley J 162 break. Mr Paparzadeh thought Navid did this deliberately to cause him stress. He said Navid was from Iran but he was Baha’i and did not like other Iranians. Navid and a detainee, Mehrdad, had a fight. Navid used his baton to hit Mehrdad while he was on the ground. This occurred on the day of the church service on 24 April 2003. Mehrdad made a complaint to an Australian senator following which, three or four weeks later, Navid and another DSO were removed. 781 Mr Paparzadeh said there was no education about signs of mental illness and no information concerning services available for mental ill-health at Baxter. He was unaware of anyone who was a case manager to monitor detainees’ health. After he was informed about the rejection of his application for special leave to appeal to the High Court he was not provided with any counselling or assistance. He said there was a lady who was a counsellor but that she did not help much. He spoke to her once for five or 10 minutes and perhaps on another occasion. Mr Paparzadeh saw her in an office. He was brought there by a DSO. He was not clear about the reason he was seeing her or whether she was in fact a counsellor. 782 Mr Paparzadeh said there was a greater variety in the food at Baxter than at Curtin, but that it was like prison food. 783 In the mornings Mr Paparzadeh would go for walks around the detention centre in the company of one or two other detainees and two officers. He recalls that at Baxter there were activities officers. 784 Mr Paparzadeh said he attended English language classes at Port Hedland conducted by a nun. He thinks he may have attended English classes once or twice at Baxter. Management Unit 785 Mr Paparzadeh was detained in the Management Unit at Baxter from 13 February to 18 February 2003 and from 5 March to 11 March 2003. Mr Paparzadeh said he was also detained in the Management Unit from 24 April to 2 May 2003, but later said that he thought the longest he was detained in the Management Unit was five or six days.428 He thought that the applicant might have been in the Management Unit at the same time as him on at least one of these occasions. He thought it may have been the time in March 2003. Mr Paparzadeh also thought that he was also placed in the Management Unit at Baxter on another three or four occasions. He thought the first time he saw the applicant at Baxter was in the Management Unit. He said the applicant asked him what he was doing there. 786 Mr Paparzadeh said that in the Management Unit the detainees were unable to control the heating and cooling or the lighting in their rooms. He recalls being very cold and asking for a blanket which was not provided. The light was on permanently. There were cameras in each room. Detainees were allowed out only 428 T 3155. -- 166 of 647 -- [2025] SASC 59 Stanley J 163 for 10 to 15 minutes per day. They were able to walk around in a small yard. There was nothing to do. There was nothing to read or watch. Food would be brought to their rooms. This affected his mental health. Most of the time he was in the Management Unit he would be on a hunger strike. He would stop eating and drinking. He felt worthless. He said that it was a condition of his release from the Management Unit that he had to sign an undertaking to be on good behaviour. 787 Mr Paparzadeh considered that Baxter was worse than Curtin. He could not see out of the compound. He said that unlike in Curtin, if you were the only detainee in the Management Unit they would not leave the door to your room open. He described one incident when he was detained in the Management Unit and it was his turn to be released from his room for a short break but the DSO refused to do so. He said he started banging his head against the wall in protest because he was angry and anxious. 788 When Mr Paparzadeh saw the applicant again in March 2003 he appeared to be in a worse state than when he went to Port Hedland in September 2002. He said the applicant remained secluded and spent most of his time in his room. He appeared completely destroyed. He was not the same person Mr Paparzadeh had met on the customs boat. He seemed like an old man. He described the applicant as getting worse day by day at Baxter. He said the applicant had no visitors. Blue 3 789 Upon his release from the Management Unit he was transferred to Blue 3. There he again saw the applicant. Mr Paparzadeh described Blue 3 as being very restrictive. He said there was nothing to do. There was no shop, phone, visitors, or freedom to visit other compounds. He recalls there was an incident where detainees broke glass and made demands about being permitted to telephone family members. One or two months later these restrictions were lifted. A television was installed. 790 Mr Paparzadeh recalls that at one point the detainees were informed that an agreement had been entered into between the governments of Iran and Australia. He cannot remember when this occurred. He recalls that if any detainee signed up they would be given $2,000 for voluntarily returning to Iran. If they did not accept they would be forcibly deported. 791 Mr Paparzadeh recalls attending a church service at Baxter in April 2003. There were two priests. One was Father Bourke. After 10 or 15 minutes the service was interrupted by armed DSOs wearing helmets, body armour and carrying batons. The DSOs said they were conducting a search for a mobile phone. They strip-searched the detainees. Mr Paparzadeh refused to undress and he was handcuffed and taken to the Management Unit. He said he was in the Management Unit for about three days. He also said that he went on a hunger strike with two other detainees while in the Management Unit in April 2003. He does not remember at that time seeing two psychologists, Amanda Harris and Tony Napper. He denies Mr Napper asked for permission to arrange medical checks. On the -- 167 of 647 -- [2025] SASC 59 Stanley J 164 contrary, he said DSOs would forcibly restrain him so that various tests could be conducted.429 792 Mr Paparzadeh described the incident in August 2003 when he, the applicant and others were watching a soccer game on television in the recreation room in Blue 3. He said the game ended in a draw and the applicant returned to his room. But there was a penalty shootout and Mr Paparzadeh went to the applicant’s room to bring him back to watch. He said they were watching the game when the applicant fell to the floor from his chair. Others in the room went to his assistance. Something was put in the applicant’s mouth so he could breathe. The applicant was shaking and Mr Paparzadeh could see the whites of his eyes. A DSO came almost immediately. Mr Paparzadeh thought he was the person who told the DSO what had occurred. Within 10 or 15 minutes a nurse arrived and took over treating the applicant from other detainees. After this the applicant regained consciousness he returned to his room. He thought other detainees helped the applicant to return to his room.430 793 After this incident there were deportations of detainees from Blue 3. One of the deportees was Mr Paparzadeh’s friend Reza. This occurred in the early hours of the morning. Mr Paparzadeh tried to wake up other detainees to prevent the deportations occurring. He said there were a lot of DSOs in the compound while the deportations occurred. Later that night Mr Paparzadeh saw the applicant who appeared shaken and scared. Following Reza’s departure detainees were anxious that they might be next to be deported. White 3 794 At some point Mr Paparzadeh was transferred to White 3 along with the applicant. 795 Mr Paparzadeh said he was concerned about the applicant because he had attempted suicide, but he could not get close to the applicant because he locked himself in his room. 796 He did not observe any improvement in the applicant throughout the period Mr Paparzadeh was at Baxter. On the contrary, he observed that the applicant continued to deteriorate. 797 Mr Paparzadeh was aware of the availability of marijuana at Baxter. He did not use it. He said that there was a DSO named Michael who told him he had provided a report to management about the use of marijuana in Baxter. Michael’s manager asked him to amend his report to remove any reference to marijuana use. 429 T 3250. 430 T 3197-3198. -- 168 of 647 -- [2025] SASC 59 Stanley J 165 798 Mr Paparzadeh did not notice any change in the way in which the detention centre at Baxter was managed following the transfer of management from ACM to G4S. 799 He has no recollection of being offered the chance to attend a shopping excursion in May 2004.431 800 During 2004 while at Baxter Mr Paparzadeh would work out at the gym usually twice daily. He would go to bed and get up early. He said he rarely went on inter-compound visits. 801 Throughout the period in 2004 until he was released from detention he received approximately 37 visits from members of a refugee support group. They helped him cope with life in detention. He enjoyed these visits which helped to break up the monotony of detention. Post detention 802 Mr Paparzadeh was released from detention in October 2004. He thought that he learned that the applicant had also been released from detention in April 2005 but cannot remember how he heard this. About six months later Mr Paparzadeh visited the applicant at a house he was occupying at Ascot Park. He said he spoke to him for only 10 or 15 minutes outside the house. The applicant did not invite him in. The applicant did not look good. Mr Paparzadeh described him as appearing older and destroyed. There had been no improvement since he had last seen him in Baxter. 803 Following this, Mr Paparzadeh went to Roxby Downs for work. In about 2008 he saw the applicant at Roxby Downs. They were both working for Spotless as cleaners. The applicant was living in a house with five or six others. Mr Paparzadeh visited the house daily for about three weeks. He said if the applicant was not at work he would be in his room. He did not eat with the others. He took food into his room. He would smoke and watch television. The applicant did not socialise with the other occupants of the house. Mr Paparzadeh would see the applicant at work every day. They were busy so were not able to talk much, but even at work breaks he did not converse much. Mr Paparzadeh observed the applicant appeared to prefer to be on his own. After about two to three months the applicant was dismissed. 804 Mr Paparzadeh recalls that at Roxby Downs the applicant had an argument with the landlord and a difficult relationship with one of the Iranians who lived in the house. Mr Paparzadeh thought that the applicant stayed in his room to avoid arguments with this man. Following his dismissal the applicant left Roxby Downs and Mr Paparzadeh did not see him again until the applicant went to Western Australia. Mr Paparzadeh continued working at Roxby Downs until 2017. He remembers the applicant returning to Roxby Downs once or twice until he obtained 431 T 3264. -- 169 of 647 -- [2025] SASC 59 Stanley J 166 further employment. By this time Mr Paparzadeh was not working for Spotless. He was working for a contractor who did refining. Mr Paparzadeh saw very little of the applicant. He thought he was unchanged from 2008. 805 After this Mr Paparzadeh said he only saw the applicant once when the applicant was in the car arguing with his wife, and once after Aref died which he thought was in 2018. He said that by then the applicant was in a very bad way. The applicant had found Aref’s body. The applicant, Roberto and a church group organised Aref’s funeral. Mr Paparzadeh and the applicant arranged for Aref’s body to be repatriated to Iran. Since then he has seen the applicant once or twice a year, although they speak on the phone more frequently. The applicant came to his house but only stayed for 20 or 30 minutes. He refused invitations to stay for dinner. Mr Paparzadeh thought he last saw the applicant in 2020. He has not seen any sign of improvement in the applicant since he left Baxter. He would occasionally give the applicant money. He has not seen the applicant play soccer since he was in Baxter. When he last saw him the applicant appeared to have aged. He had lost weight, was unshaven and had dark circles under his eyes. 806 Mr Paparzadeh accepted that he has no medical training or qualifications in mental health. He accepted that the most time he spent with the applicant in detention was while they were in Blue 3 at Baxter. He said he did not spend time with the applicant in the Management Unit. He did not see much of the applicant in White 3 as the applicant stayed in his room. Even in Blue 3 the applicant spent a lot of time in his room during the day. He only saw the applicant when the applicant left his room. Mr Paparzadeh slept at night and was awake during the day.432 807 Mr Paparzadeh acknowledged that he is also bringing an action against the Commonwealth using the same solicitors as the applicant. He said he is giving evidence freely and without compulsion. Mr Paparzadeh admitted he is very angry with the Commonwealth about what happened to him in detention. He thinks detention will affect him for the rest of his life due to the loss of his physical and mental health. Nonetheless, he insisted that he gave evidence only of what actually happened.433 808 Mr Paparzadeh said he keeps in touch with some former detainees now through texts, Facebook and WhatsApp. Presently he is only in touch with the applicant and one other detainee. 809 Since Mr Paparzadeh’s release from detention he has visited Iran on three occasions in 2011, 2014 and 2017. He travelled on an Iranian passport which he obtained from the Iranian Embassy in Australia in 2010. He said on each occasion he visited Iran he did not experience any difficulty with the authorities while in the 432 T 3195-3197. 433 T 3199-3201. -- 170 of 647 -- [2025] SASC 59 Stanley J 167 country or when leaving. He has not disclosed to Iranian authorities his conversion to Christianity. Corroboration of the applicant’s evidence 810 I formed the impression that, as he freely admitted, Mr Paparzadeh remains angry with the Commonwealth which he blames for destroying his physical and mental health. It is clear that for much of the time he spent in detention he was in conflict with the authorities, regularly resorting to hunger strikes. I find that his anger influences his recollection of events as a result of which he attributes the conduct of detention centre personnel to malign and malevolent motives. That is not to say that I reject evidence of bad behaviour on the part of some of those personnel, but in assessing Mr Paparzadeh’s evidence I am conscious that much of his evidence must be assessed through the prism of his anger. Understandably, given the effluxion of time, he had difficulties in remembering the timing and particulars of some events, the subject of his evidence, whether in examination-in- chief or cross-examination. I accept that in giving evidence he found it difficult to recollect events and incidents that were painful and he found the experience of reliving them disturbing and upsetting. I was also left with the impression that he occasionally claimed not to remember events when it was uncongenial for him to do so. 811 I found the evidence of Mr Paparzadeh to be of limited assistance. I have serious reservations in relying on his evidence. I cannot accept his account of his arrival at Baxter. I do not accept that he was told every new arrival was placed in the Management Unit for two to three days. I do not accept this allegation as it is untrue. In any event much of his evidence was focussed on his experience rather than his observations of the applicant’s experience, and much of that evidence concerned events at Curtin rather than Baxter. Even then, he gave evidence that he spent very little time with the applicant at Curtin.434 Interestingly, he said that at Curtin the applicant was in his room most of the time435 but this was not what the applicant claimed in his evidence. Unsurprisingly, much of Mr Paparzadeh’s evidence concerning the applicant at Baxter was very general in nature. Mr Paparzadeh was detained in Baxter from 13 February 2003 until 6 October 2004. His evidence was that he had relatively little interaction with the applicant at Baxter.436 The most Mr Paparzadeh saw of the applicant at Baxter was at the time he was in Blue 3 in 2003.437 Even then, he only saw the applicant when he was coming to or going from his room. He is uncertain whether he was ever in the applicant’s room, but if that did occur it was only on one occasion.438 Nonetheless, he gave evidence that the applicant would often stay in his room. I am prepared to accept that there were periods the applicant spent in his room at Baxter but 434 T 3194.24-26. 435 T 3131.2-3. 436 T 3196.24-37. 437 T 3195.6. 438 T 3196. -- 171 of 647 -- [2025] SASC 59 Stanley J 168 Mr Paparzadeh’s opportunity to assess the length or frequency of such stays must be treated with considerable caution. 812 First, Mr Paparzadeh was an early riser, who would go for a walk in the morning and go to bed early,439 so his observations of the applicant being in his room at such times is of little, if any, significance in assessing the applicant’s mental health. Second, such evidence is obviously general in nature, depends upon recollection of events long ago, and as I have said must be assessed through the prism of Mr Paparzadeh’s interest in the outcome of this litigation. 813 Like Mr Shahrooei and Mr Namavar, I do not accept Mr Paparzadeh’s evidence that the applicant was always getting worse in Baxter and always in his room.440 814 While Mr Paparzadeh gave evidence of the overdose incident on 11 August 2003, he had little memory of the surrounding details. My impression was that he had little memory of the applicant at Baxter and his evidence was informed by a strong sense of animosity and resentment towards the Commonwealth, ACM and G4S. This was illustrated by his claim that the ACM staff used the temperature controls in the Management Unit as a form of deliberate torture of detainees. Further, his evidence of his observations of the applicant after the overdose incident stands in stark contrast to the contemporaneous documents recording the observations and interactions of DSOs with the applicant, which I accept. 815 His evidence of his observations of the applicant at Roxby Downs441 are broadly consistent with the applicant’s evidence but throws no light on the question of what the cause of the applicant’s seclusion in his room at Roxby Downs was given the evidence of his illicit drug use. Alex Sovi (formerly Ali Reihizadeh) 816 Mr Alex Sovi was born in Iran on 2 October 1968. He was named Ali Reihizadeh. He arrived in Australia by boat in November 2000. Mr Sovi was detained at Curtin and Baxter. He was detained at Curtin from 9 November 2000 until 22 September 2002 when, along with other detainees including the applicant, he was transferred to Baxter. He was still detained in Baxter when the applicant was released from detention in April 2005. 817 He was brought to Curtin with 70 other people. He was initially placed in Echo compound with about 30 people. 818 Mr Sovi agreed that he knew the applicant from Curtin but said they only became friends after the fires in Baxter.442 439 T 3197, 3255. 440 T 3157-3158, 3162. 441 T 3180-3181. 442 T 3341-3343. -- 172 of 647 -- [2025] SASC 59 Stanley J 169 Curtin 819 Shortly after they arrived at Curtin Mr Wallis addressed them. There was a Farsi interpreter. Mr Sovi said Mr Wallis told them they were not refugees and he was going to send them back. 820 In the first seven months he was at Curtin Mr Sovi was moved from Echo to Foxtrot and then to Hotel. 821 Mr Sovi described the physical appearance of Curtin and Foxtrot compound. He recalls the red dirt, dongas with a number of rooms with two bunk beds in each room accommodating four men. The dimensions of each room were 2.5 x 2.5 m. The compound was enclosed within wire fences. There were three public toilets and four showers. 822 Mr Sovi described a secure compound called Hotel. Detainees were locked in the donga 24 hours per day. There were no toilet facilities within the donga. If a detainee needed to go to the toilet they had to knock on the door and attract the attention of a DSO to accompany them. The windows to the bedrooms had black plastic to prevent detainees from seeing out. 823 Later, Mr Sovi was placed in India. He said this was similar to Hotel. There were four rooms. Each room had only a mattress on the floor. The room was illuminated all day and all night. There was a camera in each room. Outside the main compound there was no access to newspapers, radio or television. 824 After seven months Mr Sovi was transferred to the main compound. This was Bravo. The dongas were much larger. There were between seven and 12 people in a room. Again, there were no toilets or showers inside the dongas. The toilets were filthy. Detainees had to queue to use them. During the wet season there was a lot of mud. It was almost impossible to keep it out of the donga. 825 Mr Sovi experienced difficulty sleeping at night. He said many detainees stayed up during the night and made noise. Within the detention centre at Curtin there were frequent arguments and occasional fights. Meals were served in the mess. Detainees had to queue for meals. Detainees were served chicken and rice nearly every day. He said the chicken was of poor quality. It was oily and often not cooked properly. Sometimes the chicken was rotten and he would not eat. 826 Mr Sovi said there was nothing to do in the main compound except watch television. There was a small television in the recreation room. There were no computers. He said there were English language classes. Mr Sovi attended 10 or 15 classes. His English was not great but sufficient for him to be employed as an interpreter. He spoke Farsi and Arabic. He would work eight hours per day. He assisted non-English speakers in communicating with the DSOs. He would work at the main gate. His English improved through this work. Generally he thought the DSOs tried to accommodate detainees’ requests, but that was not always true. -- 173 of 647 -- [2025] SASC 59 Stanley J 170 Some DSOs would insult detainees. Some detainees would insult the DSOs. He said DSOs would refer to detainees by number rather than name. 827 Mr Sovi was not sure whether he saw detainees harm themselves at Curtin. Certainly, he saw this occur at Baxter. There were hunger strikes at Curtin. The hunger strikers were placed in India. Some detainees sewed their lips together. Some climbed trees and threatened to hang themselves. There was fighting between detainees and between detainees and DSOs. He recalls seeing DSOs using batons and tear gas against detainees. He saw detainees throwing rocks at DSOs. He described the incident in April 2002 when the detainees took control of the detention centre and occupied it for a few days. He said people were happy and there was a sense of freedom in the absence of DSOs. 828 Mr Sovi said he did not consult a counsellor, psychologist or psychiatrist at Curtin. He said there was a medical centre at Curtin. Detainees could made an appointment to see a doctor by approaching a DSO at the centre. There was a nurse working in the medical centre. It was a small donga. It was about four or five metres in length. Mr Sovi also worked in the medical centre as an interpreter. 829 At Curtin there were head counts each morning. Sometimes there were searches of the dongas. Mr Sovi said detainees would be ordered out of their donga and DSOs would go in. They would not remove their shoes or boots. They left the dongas in a mess. Detainees would complain, particularly because the DSOs would bring dirt onto the floor where detainees prayed. 830 Mr Sovi recalls being strip-searched at Curtin. 831 Mr Sovi was unaware that there were counsellors available at Curtin to assist detainees if they were having trouble with sleep or were stressed or anxious. He was unaware of group therapy classes. He was also unaware of the presence of a psychiatrist, Mr Bilboe, in Curtin in early 2002.443 832 Mr Sovi said that he did not really know the applicant while in Curtin. He gave evidence of the behaviour of DSOs. He said that most officers behaved decently towards detainees and offered what assistance they could. Some detainees were angry and frustrated from time to time and in those circumstances occasionally insults would fly from both sides. Mr Sovi observed confrontations between detainees in the main compound at Curtin. He also witnessed fights between detainees and DSOs. He described riots with rocks being thrown by detainees at DSOs and DSOs responding with teargas. Baxter 833 On 22 September 2002 Mr Sovi was transferred from Curtin to Baxter. He thought the applicant was transferred at the same time. He said that upon his 443 T 3327-3328. -- 174 of 647 -- [2025] SASC 59 Stanley J 171 arrival at Baxter he did not undergo a medical assessment and no one asked him about his mental health. 834 At Baxter Mr Sovi was detained in Red 1, Blue 3, Red 3, and White 1. The applicant was in Red 3, Blue 3, Red 2, White 3 and Blue 2. He gave contradictory evidence concerning the applicant being in Red 1. Mr Sovi gave evidence of observing the applicant at Baxter. He described him mostly spending time in his room. He said that when the applicant took food to his room he looked “upset”. 835 The applicant was also in Red 1. They would see each other there. Detainees in Red 1 were able to visit other compounds. Mr Sovi said there was a limit on the number of detainees who could undertake visits. If a detainee wanted to visit another compound they had to complete a request form. There might have been 10 people allowed out each night. Often more than 10 people wanted to undertake a compound visit. He said it was important that a detainee registered early if they wanted to undertake a visit. 836 Mr Sovi described Baxter as a very bad place because of the environment. He said there were small compounds and detainees could not see anything outside except the sky. There was one exception to this where detainees could see a fence. He said it was a suffocating atmosphere. If detainees visited the gym or friends there had to be a DSO accompanying them. Mr Sovi said he did not attend the gym much while he was in Red 1. He has no recollection of attending music classes at Baxter.444 837 Mr Sovi said he received letters and visits from church people and people from refugee support organisations. 838 Mr Sovi said at Baxter searches were conducted regularly each week. He said the only time he was strip-searched was when he was in the Management Unit. 839 Mr Sovi recalled that even in Red 1 the applicant spent most of his time in his room. He said he ate his meals in his room and appeared upset. 840 Mr Sovi gave evidence about the two fires in Red 1 that occurred shortly after Christmas in 2002. Detainees suffered from smoke inhalation. He said the second fire was larger than the first. 841 Mr Sovi thought he was transferred to Red 3 after the fires in December 2002. He denied being told by a DSO that he was suspected of lighting the fires. He said that after the fires, many detainees were on high alert and nervous that there would be further fires. Consequently they made preparations for this risk by packing bags.445 444 T 3356. 445 T 3330-3331. -- 175 of 647 -- [2025] SASC 59 Stanley J 172 842 He also recalled being transferred at some time from Red 3 to Blue 3. He said his wrists were tied and he was transported by a van. Upon his arrival at Blue 3, he was searched. Management Unit 843 Mr Sovi said he was placed in the Management Unit at Baxter at least once. However, his memory of his period of confinement in the Management Unit at Baxter was unclear. He gave evidence initially that he was detained in the Management Unit for nearly three weeks in April 2003. He thought this was the only occasion he was detained in the Management Unit. However, later he said he might also have been detained in the Management Unit in January 2003. He believed his placement in the Management Unit was because he was suspected of being amongst the group who started the fires, or who it was feared would start another fire. He said he was put in the Management Unit with others who were also under suspicion. There were about 12 or 13 of them. He was uncertain as to whether the applicant was in the Management Unit with him at the same time. However, he thought that the applicant was in the Management Unit at the same time as him on at least one occasion.446 844 Mr Sovi said the Management Unit was a form of solitary confinement. Detainees were in a small room with only a mattress on the floor. There was a camera. It was air conditioned and often cold. He had a blanket. Detainees were taken out of the room once a day for 5-10 minutes to smoke a cigarette. Detainees’ meals were served in the room. Blue 3 845 Mr Sovi’s evidence was vague as to which compound he was in from time to time and when he was transferred from one compound to another. At some point after the fires he was placed in Blue 3. He said this may have been after he was released from the Management Unit in April 2003. However, it is apparent Mr Sovi was present in Blue 3 in February 2003 as he recalled there was an incident in Blue 3 on 6 February 2003 where several detainees self-harmed by cutting themselves with razor blades. He gave evidence that this incident was provoked by the restrictions imposed in Blue 3, including in particular, denial of access to phones. 846 Mr Sovi said Blue 3 was very restrictive. He said there was nothing to do. There were no books but thought there might have been newspapers. Detainees were unable to use the telephones, nor could they visit other compounds. 847 Mr Sovi denied that he engaged in an act of self-harm along with other detainees notwithstanding that allegation being made in his Statement of Claim in his action against the Commonwealth in the District Court of South Australia.447 He said he negotiated with the DSOs and the detainees agreed they would stop 446 T 3328-3329, 3342-3344. 447 Exhibit 1.3TP105, T 3347-3348. -- 176 of 647 -- [2025] SASC 59 Stanley J 173 cutting themselves, hand over the razor blades and allow the nurse to treat them if they would not be sent to the Management Unit. A few days later they were transferred to another compound. He thought this was Red 3. Mr Sovi accepted, on the basis of being shown a behaviour management plan, that he was transferred from Blue 3 to Red 3 on 10 February 2003.448 In the new compound the restrictions were eased. Detainees could make phone calls and visit other compounds. 848 Mr Sovi said he did not see a doctor, counsellor, psychologist or psychiatrist while he was in Blue 3. Mr Sovi recalled three detainees being deported while he was in Blue 3. 849 Mr Sovi also said that after he was released from the Management Unit in April 2003 he was transferred back to Blue 3 where he remained until October 2003. During that period the restrictions that had previously applied in Blue 3 were relaxed. He thought he was able to start visiting other compounds. The television was improved. Phone calls were permitted. He was given work one day a week as a cleaner.449 850 He also recalled an incident when he and a number of other detainees were in a room at Baxter and a search was conducted which discovered a cigarette lighter in the room. All the occupants of the room denied it belonged to them. This was shortly before the incident where a number of detainees cut themselves. 851 Mr Sovi also recalled an incident where a religious service being conducted by Father Bourke was interrupted by DSOs who conducted searches of detainees and their rooms. Applicant’s escape attempt 852 Mr Sovi recalled the occasion in March 2003 when the applicant and Reza were digging a tunnel from under Reza’s room in an attempt to escape. He was aware for a period of 10 days or two weeks that the applicant and Reza were digging the hole, and in fact he assisted them. He gave them some advice about the length of the tunnel that was necessary. He gave evidence that the undertaking was impossible, that they could not get out of Baxter digging this tunnel although in the same breath he said they needed only to dig a few metres, perhaps 10 metres, to escape.450 He remembers Reza being caught. The applicant then turned himself in. Mr Sovi said he thought this was not something a mentally healthy person would do. He was put in the Management Unit. Mr Sovi could not understand why the applicant would have done this. The Management Unit was a horrible place. Mr Sovi said the applicant was in the Management Unit for a week or two after which he returned to Red 3. 448 T 3335-3336. 450 T 3302.16-27. -- 177 of 647 -- [2025] SASC 59 Stanley J 174 853 Contrary to the opinion evidence Mr Sovi gave, which I reject, I find that digging the hole was not necessarily symptomatic of a mental illness. Obviously Mr Sovi was not qualified to give expert evidence. The evidence does not establish that the exercise was self-evidently futile or that it would inevitably have led to the applicant and Reza being placed in the Management Unit. While it seems the AFP might have formed this view, that was not a view shared by either Mr Wallis or Mr Burns, whose evidence I will come to. While they were discovered, that was not unavoidable, or at least, need not have been something they recognised as hopeless. 854 Accordingly, Mr Sovi’s evidence that he thought the applicant mentally unwell because he confessed to his role in digging the hole with Reza and that he did not talk much, is not necessarily evidence of a psychiatric illness. 855 Mr Sovi conceded it is possible he was then transferred to White 1.451 The applicant moved to White 3. Mr Sovi considered that the applicant deteriorated mentally while he was at Baxter. He said the applicant withdrew into himself and talked very little and took an overdose. He observed that as time went by the applicant lost weight and he did not shave. 856 Mr Sovi said after he moved to White 1 from Blue 3 in October 2003 restrictions were eased. He was able to visit other compounds and visited the applicant. He is unsure whether the applicant visited him, but he might have done so. He recalls that they kept in touch. After the fires he recalls seeing the applicant frequently.452 857 He said the applicant often appeared to be under the influence of drugs. Mr Sovi was concerned by the applicant’s ingestion of drugs. He warned him that they could kill him but the applicant responded that he did not care. On one occasion he asked Mr Sovi to obtain drugs for him from the nurse. 858 Mr Sovi said marijuana was being smoked in some of the compounds. After October 2003 he said he visited the applicant in his room where he would be sitting on the floor and sometimes smoking. Others would join the applicant. Mr Sovi described the applicant’s reaction when he visited him as “just normal”.453 859 Towards the end of his time in detention, Mr Sovi had two consultations with a woman who he understood to be a psychologist. He wanted help to relieve his anxiety and relax. He said she did not help much and that he did not trust her because she wore a G4S uniform. He considered she was only going to do what G4S wanted. He said the psychologist did not refer him to a psychiatrist. He does recall DIMIA allocating a case manager to him but said they were concerned only with his immigration status. 451 T 3304. 452 T 3353-3354. 453 T 3309.13-15. -- 178 of 647 -- [2025] SASC 59 Stanley J 175 860 After the change in management from ACM to G4S, Mr Sovi did not notice any change in the behaviour of the DSOs. He said some of them were good people but they were constrained by company policies. Some of the DSOs told him that they thought he was a criminal. He said DSOs always addressed him by his number rather than his name. When one DSO spoke to another DSO about a detainee they would refer to the detainee’s number. 861 Mr Sovi recalled that at one point during his time in Baxter, DIMIA announced that anyone who volunteered to be deported would be given $1,000. The detainees were told that if they did not voluntarily return, they would be forcibly deported. 862 Mr Sovi recalled at least one occasion at Baxter where he went on an excursion to Port Augusta to the town swimming pool. He thought he also went to Port Augusta for a shopping expedition on one occasion. This was towards the end of his period in detention. He does not recall any fishing excursions mentioned by Mr Burns. He does not recall any education classes at Baxter. He thought there might have been a library where books could be borrowed and read but he did not use it. He only remembers reading one book at Baxter which was in English. He has no recollection of Farsi newspapers being available at Baxter, but there were newspapers available in English. 863 Mr Sovi gave evidence that towards the end of his detention at Baxter everyone, including the applicant, were “kind of happy”.454 He thought that there was some improvement in the applicant’s mental health. He said this was because detainees came to believe that they were going to be released from detention. Post detention 864 Following Mr Sovi’s release from detention, he went to Melbourne where he stayed about a year before travelling to Adelaide. In Adelaide he contacted the applicant. He went to his unit and found the applicant worse than when he was in detention. The unit was a mess. The applicant was unhappy and left Mr Sovi with the impression that he did not want to see him. He had lost weight and was unshaven. 865 In cross-examination, Mr Sovi acknowledged that he had his own claim against the Commonwealth relating to his time in detention and that he had instructed the same solicitors as the applicant. He agreed that he was giving evidence at the trial voluntarily. 866 I consider Mr Sovi was trying his best to assist the Court by recalling accurately the events about which he gave evidence. However, he laboured under the difficulties that inevitably accompany the lengthy effluxion of time which had occurred between these events occurring and him giving evidence. He particularly struggled with recalling the periods of time and the sequence of his movements 454 T 3322.10-20. -- 179 of 647 -- [2025] SASC 59 Stanley J 176 from one compound to another, whether at Curtin or Baxter. He has no clear recollection of whether he was detained in the Management Unit at Baxter on more than one occasion. He is confused about movements from one compound to another. Accordingly, I do not rely upon his evidence about when many events occurred. I also treat with considerable caution his evidence of observations of the applicant made at various times. 867 In considering his evidence, I also make due allowance for the fact that he was testifying by AVL. This occasionally caused difficulty in understanding the answers he was giving to questions. Corroboration of the applicant’s evidence 868 Mr Sovi provided some corroboration of the applicant’s evidence of the conditions that existed at Curtin and Baxter. 869 Much of Mr Sovi’s evidence was vague and, unsurprisingly, unreliable concerning timing. He was wrong about being in the Management Unit for three weeks in January 2003. I consider he was deliberately evasive about the reasons for his transfer along with others to Blue 3 after the fires in late December 2002. I am satisfied he knew they were suspected of involvement in lighting the fires and/or planning to light more fires. 870 There were features of Mr Sovi’s evidence that created concern for the accuracy and reliability of his testimony. In cross-examination he contradicted his witness statement which alleged that he first came to know the applicant after the fires in Baxter when they were detained together in the Management Unit in January 2003. This did not occur. In a similar vein, he repudiated the plea in paragraph 22 of his own Statement of Claim (Revision 4) in his District Court action where he alleged that on 6 February 2003 he cut himself while in Blue 3. 871 Mr Sovi gave evidence that from October 2003 he kept in contact with the applicant through inter-compound visits.455 That is consistent with the evidence of the movement logs. The evidence of contact between Mr Sovi and the applicant in the latter part of their detention at Baxter is not entirely clear. He was unclear whether he was detained in White 1 during the period from January 2004 to April 2005. He seemed to think wrongly that during this period the applicant was in White 2. While I accept that in the G4S period there was contact between the applicant and Mr Sovi, the evidence on this topic is vague and provides an insecure foundation for making findings of fact. Certainly there were times when Mr Sovi visited White 2 and he conceded the possibility that he may have seen the applicant on those occasions when the applicant was also visiting White 2. He may also have seen the applicant when the applicant visited White 1. However, he was not sure about any of this.456 Mr Sovi had no recollection of the applicant moving to Blue 2. Nonetheless he insisted that he visited the applicant’s room many times, 455 T 3307.20. 456 T 3354.5. -- 180 of 647 -- [2025] SASC 59 Stanley J 177 either before the fires, after the fires or when they were in Blue 3. This evidence demonstrates that Mr Sovi had no clear recollection of the time period in which he visited the applicant and the applicant’s room. Given the effluxion of time that is hardly surprising. Much of Mr Sovi’s evidence placed these meetings occurring during the ACM period. Accordingly, his evidence about the applicant’s demeanour in his own room does not evidence the applicant’s demeanour during the G4S period. I accept that Mr Sovi could not clearly recall where or when he saw the applicant or even that they lived in separate compounds during the G4S period. I am necessarily reliant upon the documentary evidence to provide a basis for finding the extent of Mr Sovi’s contact with the applicant. That contact occurred largely when both Mr Sovi and the applicant were visiting White 2 or when the applicant was visiting Mr Sovi in White 1. The available documents evidence very limited occasions on which Mr Sovi visited the applicant’s home compounds of White 3 and Blue 2 when the applicant was there. The available documentary evidence supports a finding that the applicant and Mr Sovi were often in White 1 at the same time. That does not necessarily mean that they saw each other or spoke, but it is possible that they did so. 872 What is important is Mr Sovi’s evidence that towards the end of his time in detention the applicant and “everyone” was “kind of happy”.457 I am satisfied that during this period in 2004 and 2005 there was an improved mood at Baxter generally amongst the detainees, and specifically in the case of the applicant. This was particularly so in the period January to April 2005. Conclusion on corroboration of the applicant’s evidence 873 Overall, I am only prepared to rely on the evidence of the other detainees, Mr Shahrooei, Mr Namavar and Mr Paparzadeh to a limited extent given that they said that their observations and interactions with the applicant in Baxter was that he was uniformly depressed, isolated and socially disengaged. Their evidence in that regard is so inconsistent with the objective documentary evidence that I cannot rely on it. The objective evidence of the observations made and recorded of the applicant in Baxter by staff of DIMIA, ACM and G4S cannot be reconciled with the detainee evidence. I cannot accept the proposition that the explanation for the inconsistency between the detainee evidence and the documentary evidence is that detention centre staff did not see the applicant when he was depressed and secluded in his room and only saw him when his mood was relatively good. That is not the tenor of the detainee evidence. Their evidence was that the applicant was almost uniformly sad, depressed and socially disengaged except when he was using marijuana. 874 I should make clear that in addressing the detainee evidence I accept that Mr Sovi’s evidence stands somewhat apart from the other detainee evidence in that he gave evidence of the applicant being in good spirits for long periods in 2004 and 2005. His evidence in that regard stands in contrast to the other detainees and 457 T 3322.10-20. -- 181 of 647 -- [2025] SASC 59 Stanley J 178 is consistent with the documentary evidence. Rather than corroborating the applicant’s evidence it undermines it. 875 Importantly, Mr Sovi’s evidence provides no support for the applicant’s claim that he was dejected and despondent during the G4S period. On the contrary, I considered the evidence supports the finding that the applicant’s mental health and outlook varied from time to time depending on his circumstances and his assessment of his prospects of obtaining a visa, avoiding deportation and being released into the Australian community. I find that his mood lifted in March 2004 as a result of an application made on his behalf to the United Nations High Commission for Refugees.458 The applicant understood that so long as that application remained undecided he would not be deported.459 As it transpired a decision on that application was still pending when the applicant was released from detention in April 2005.460 876 Notwithstanding the applicant’s lack of credit and reliability, he submits that the Court can accept his account of the critical events in detention at Curtin and Baxter because of the corroborative witnesses, namely, his wife, Mr Shahrooei, Mr Namavar, Mr Paparzadeh and Mr Sovi. As I have said, for various reasons, the evidence of these witnesses provides only limited corroboration of the applicant’s evidence. The evidence of each of these witnesses must be evaluated by reference to the intrinsic credibility and reliability of the particular aspects of the evidence of each of them, as well as the extent to which each of these witnesses might have been capable of corroborating the evidence of the other witnesses and evaluated against the background of the contemporaneous observations made of the applicant over the period in detention, particularly from 11 August 2003 to 27 April 2005. 877 I do not accept the submission that the applicant’s evidence was corroborated by the evidence of his wife and the detainee witnesses for the reasons set out earlier. In relation to detention and post detention events I prefer to rely upon the contemporaneous documentary evidence as a basis for making findings of fact where that evidence is inconsistent with the evidence of the detainee witnesses. In addition for the reasons I have explained I also have some hesitation in accepting the evidence of Mrs Saadat. THE APPLICANT’S LAY WITNESSES – MEDICAL Damien McInerney 878 Mr Damien McInerney is a retired psychologist. He has a Bachelor of Arts majoring in Psychology and a Masters Degree in Clinical Psychology. He was not called as an expert witness. From 2003 until 2017 he practiced as a psychologist at the Migrant Health Service (MHS) except for a period of six months when he entered private practice. 458 Exhibit A204, T 2447-2451. 459 T 1868-1869. 460 T 1868-1869. -- 182 of 647 -- [2025] SASC 59 Stanley J 179 879 He visited Baxter once during the early years of his practice. His visit was confined to the visitors’ centre. He observed long corridors without windows. There were DSOs sitting in a glassed-in box. There were a series of gates and sallyports. From within the centre there was no view of the landscape outside the centre’s high walls. 880 Mr McInerney treated the applicant in the course of his practice at the MHS. The applicant consulted him over a period from 24 November 2008 to 8 April 2014. 881 Mr McInerney considered he enjoyed a good therapeutic relationship with the applicant. He clearly remembered that the applicant developed a dependency on OxyContin. 882 Mr McInerney took a history from the applicant at their first consultation on 24 November 2008. The applicant told Mr McInerney he was a refugee from Iran. He said he had spent five years in immigration detention. He said he spent two years at Curtin and three years at Baxter and was released in 2005. He obtained a permanent protection visa in July 2007, but at that stage he was ineligible to obtain Australian citizenship. He described being happy and doing well after his release from detention, but in 2006 his health deteriorated. Initially he had planned to obtain Australian recognition for his engineering degree but this had not occurred. He described obtaining work at Roxby Downs where he hoped to forget the various traumas he had suffered. He described his symptoms at the time as including poor sleep, including difficulty falling asleep and waking suddenly. He described having nightmares about his time in detention with flashbacks and a sense of despair. 883 The applicant told Mr McInerney that he came to Australia as a 26-year-old graduate, healthy in mind and body. He told him that by November 2008 he had developed a stomach ulcer as a result of taking too much pain relief medication in detention. He told Mr McInerney he had hundreds of tablets prescribed by a doctor to keep him quiet and calm and control his persistent headaches. He said he had left Roxby Downs in September 2008 because it reminded him too much of detention and he was unable to work. The applicant told Mr McInerney he was currently homeless and staying with a friend. He had been to the Housing Trust and was told he could sleep in his car. He said that on his release from detention he had worked in a factory for a while. He had been in a car accident when he ran a red light due to being distracted. He complained of negative thoughts. He described having wasted five years with no support. He described his social isolation. He reported that he briefly had a girlfriend but had been unable to sustain the relationship because of his social withdrawal. 884 The applicant described Curtin to Mr McInerney. He said there were 3,000 people detained there with only five showers, one dining room, one television room, and constant threats of deportation. There was fighting every day. -- 183 of 647 -- [2025] SASC 59 Stanley J 180 885 The applicant missed two appointments with Mr McInerney in December 2008. 886 On 12 January 2009 the applicant presented looking tired and harassed. He reported having lost six kilograms in weight. He felt pressured to attend work skills training. He complained that all he did there was sit in front of a computer screen searching for job vacancies. He said he would be more gainfully employed doing those tasks from home. 887 The applicant failed to attend an appointment on 16 January 2009, but saw Mr McInerney on 20 January 2009 where he gave a history of having recently been hospitalised with stomach bleeding which he attributed to excessive medication. He was advised to reduce his use of Tramadol and Valium. 888 The applicant failed to attend an appointment on 3 February 2009. Mr McInerney interviewed him on 10 February 2009 when he gave a history of being in Coober Pedy and Roxby Downs unsuccessfully searching for work. He seemed more positive and was making plans for the future and putting the past behind him. He said he would deal with memories of the past as they arose. He had been playing indoor soccer which he enjoyed very much. 889 Mr McInerney saw the applicant on 16 February 2009. The applicant told him he had chosen to move on with his life and to cease using medications. He reported that at Baxter he had been taking up to 15 tablets a day which had resulted in a perforated gastric ulcer requiring surgery. Now he had reduced his medication to one and a half tablets per day. He was walking, going to the beach, playing indoor soccer, watching television and going to the movies. He was intending to enrol at TAFE. He hoped to obtain employment by the end of March. 890 On 19 February 2009 the applicant attended on Mr McInerney with a friend who acted as his interpreter. The applicant reported his difficulty in distancing himself from his thoughts. 891 The applicant saw Mr McInerney on 12 March 2009 when he complained of severe depression and morbid ideations. He was referred to Assessment and Crisis Intervention Service at the RAH. At this stage Mr McInerney was very concerned about him. Mr McInerney made a note that the applicant was taken to hospital but he has no recollection of driving the applicant there as was alleged by the applicant. Neither does he have any memory that during the course of the journey there was a discussion between them as a result of which the applicant decided not to go to the RAH and they drove back to the MHS. 892 Mr McInerney saw the applicant on 19 March 2009 where he seemed more settled. He had been prescribed Zoloft and reported symptoms of dizziness and a lack of appetite. -- 184 of 647 -- [2025] SASC 59 Stanley J 181 893 On 24 March 2009 the applicant attended an unscheduled interview with Mr McInerney. He reported that he had been evicted from his friend’s home and was now homeless. 894 The applicant did not attend appointments on 26 March, 3 April, 20 April, 27 April, 14 May 2009 and 26 May 2009. 895 On 4 June 2009 Mr McInerney conducted a home visit on the applicant at his one-bedroom unit at Brooklyn Park. He found the applicant to be happy and positive. The unit was clean, tidy and functional. The applicant said he had done some work training and had been offered a factory job with the potential for promotion to undertake professional design work. He had an interview with SATAC about having his engineering qualifications from Iran recognised in Australia. 896 In contrast to his oral evidence, the applicant told Mr McInerney of his history of two and a half years travel from Iran through Turkey, Malaysia and Indonesia to Darwin. He said he had been at sea for 25 days. Nonetheless he felt optimistic in relation to the future. He had now passed his citizenship test. 897 The applicant cancelled an appointment for 11 September 2009. 898 Mr McInerney saw the applicant on 14 October 2010 when the applicant complained of poor sleep, days without purpose, being short tempered and depressed with negative moods, feeling hopeless and helpless. He had intrusive negative thoughts. He had separated from his girlfriend because of his anger. He described plans to swim and exercise. He also planned to go to the movies. 899 The applicant failed to attend an appointment on 28 October 2010. 900 The applicant telephoned Mr McInerney on 17 February 2011. He was very distressed and had left a letter at reception. He advised that he had been doctor shopping to obtain OxyContin which was a prescribed medication. As a result, the prescriptions had been cancelled. He expressed suicidal ideation. He reported he had been placed on a methadone program. Arrangements were made for Mr McInerney to see the applicant at his home the following day. The applicant told Mr McInerney he was very upset about the withdrawal of the prescription. He said he disliked having to get methadone daily from the pharmacy. 901 On 18 February 2011 Mr McInerney again visited the applicant at home. The applicant appeared calm and lucid, was well-groomed and looked well physically. He engaged in conversation. He described being upset that he could no longer obtain OxyContin. He said it helped to calm him. While body pain was not a problem, he was disturbed by his mental agitation. 902 The applicant failed to attend an appointment on 24 February 2011. Mr McInerney was unable to get in touch with him. -- 185 of 647 -- [2025] SASC 59 Stanley J 182 903 Mr McInerney saw the applicant at his home on 4 March 2011. The applicant appeared calm and aware. He had decided not to undertake the methadone program. He had completed three rounds of a relaxation program which had reduced his anxiety levels but brought on memories of his youth and incidents in which he had disappointed his father. The applicant reported that notwithstanding his sadness and huge anxiety he believed he could live a full and rich life. 904 The applicant did not attend an appointment with Mr McInerney on 17 March 2011. 905 Mr McInerney interviewed the applicant on 29 June 2011. He reported that he had been working at Roxby Downs for two months. He said he had been suffering from intrusive thoughts, nightmares, negative emotions, hopelessness and an inability to make decisions. The accommodation at Roxby Downs had reminded him of Baxter. Mr McInerney undertook a three-minute breathing exercise with him but the applicant stopped after two and a half minutes as he reported becoming overwhelmed by traumatic memories. 906 The applicant attended on Mr McInerney on 13 July 2011 complaining that he was very depressed with no interest in anything, feeling agitated and hopeless. 907 The applicant did not attend another appointment on 27 July 2011. 908 On 10 September 2011 Mr McInerney administered a Post-traumatic Diagnostic Scale (PDS) test. This was completed by Mr McInerney based on the information he obtained from the applicant. 909 The applicant told him of an incident at Baxter when he was assaulted while handcuffed with a knee in his back which pushed him to the floor. He described being imprisoned and spending five years in detention. He described being placed in solitary confinement and being kept under constant surveillance. He reported being at risk of deportation. These events had occurred more than five years earlier. 910 Mr McInerney thought that he administered the PDS test as a result of a request by the applicant’s solicitors that he provide a medico-legal report. He agreed that the PDS test relied upon the subjective response of the applicant. He agreed that when assessing the results of such a test it is necessary to take account of the possibility that, in the context of a compensation claim, the respondent to the test might exaggerate his or her symptoms.461 911 On 16 July 2013 the applicant again saw Mr McInerney. He reported he had married his cousin. He described this as an antidote to loneliness. He said they had met up in Indonesia in November 2012 and married at the Embassy. Her application for a visa had been granted a month earlier and he was making 461 T 5981-5984. -- 186 of 647 -- [2025] SASC 59 Stanley J 183 preparations for her arrival. He said she was a beautician. He also told Mr McInerney he had decided to go to university and study civil engineering. 912 The applicant said that he was prescribed Zoloft but he was agitated. He told him he was involved in a long court process and there was a possibility of no or low settlement. He said his present Housing Trust accommodation was unsuitable. He reported that he was also taking Tramadol and Temazepam. 913 Mr McInerney had a note of a further interview which is also recorded as occurring on 16 July 2013. This seems unlikely. Mr McInerney recorded in his notes that the applicant reported his wife had now obtained a visa and was due to arrive in Australia on 5 August. 914 Mr McInerney saw the applicant on 30 July 2013. He recorded the applicant being very excited in anticipation of his wife’s arrival. He was getting ready, preparing the house. He said that he had halved his intake of Zoloft to 50 milligrams. He still had intrusive thoughts in relation to the future. He said his claim was returning to Court on 13 August. He was seeking financial advice. He reported having completed the two-month foundation course and four to five months of a surveying course at Flinders University. 915 The applicant saw Mr McInerney on 15 August 2013 after his wife had arrived in Australia. He reported he was socially avoidant. He was taking his wife to meet friends. She was undertaking a beautician’s course at TAFE. He complained of being upset and having angry feelings but he had managed to keep them under control. There was a problem with noisy neighbours. He said that his claim was back in Court that day but he had not heard anything. 916 The applicant saw Mr McInerney on 17 September 2013 and he reported that he and his wife were arguing. She was undertaking English classes. She wanted to obtain her driver’s licence. This had made him angry. He was arguing with the Housing Trust seeking new accommodation because his wife had been abused by tenants in the neighbouring unit. She felt very unsafe. 917 The applicant saw Mr McInerney on 15 October 2013. He was still complaining about housing problems and his wife being frightened by their neighbours. 918 On 31 January 2014 the applicant consulted Mr McInerney. He reported that he was now doing factory work. He said the noise from tenants upstairs was unbearable. He reported problems in his marriage in December. His wife complained that she could not tolerate his anger and she was thinking of returning to Iran. However he said their relationship had improved with better communication and more quality time. He reported that his anger had abated now that he had employment, with purpose in life, more money and an increase in self- esteem. -- 187 of 647 -- [2025] SASC 59 Stanley J 184 919 The applicant saw Mr McInerney on 8 April 2014 when he reported he was again having problems with his wife. She was now working two or three days doing the same job he had previously done at Cibo. She was working four and a half hour shifts doing packing work. Somebody had sent her a message with a photoshopped image of a woman alleging that the applicant had a girlfriend. This had occurred about 10 days earlier. The applicant reported he had no knowledge of who could have done this. He was very distressed. He said that his court case would be finished by 5 May. He had previously been in court on 27 February. 920 I consider Mr McInerney did his best to assist the Court but he was trying to recall events from about 10 years ago and was very reliant upon the contents of his notes and his working practices at the time. Nonetheless I generally accept his evidence. Mehdi Abiyat 921 Mr Mehdi Abiyat is a psychologist. He was born in Iran and qualified as a psychologist there. He practiced in Iran as a psychologist until he came to Australia as a refugee in 2000. After his release from immigration detention, he undertook further studies in Australia and obtained a degree in psychology from the University of Adelaide in 2009. He was registered to practice as a psychologist in 2009 and has been in private practice since that time. He has treated a large number of patients who were in detention. They consulted him for mental health problems, including depression and depressive type illnesses. He was not called as an expert witness. 922 The applicant was referred to Mr Abiyat by his treating general practitioner, Dr Zuvela, in March 2018. Mr Abiyat saw the applicant on 11, 18 and 24 April 2018. After that the applicant failed to attend appointments.462 923 At his first consultation, the applicant was given a Depression Anxiety Stress Scale test (DASS) to complete in his own time. This is a self-assessment tool which measures depression, anxiety and stress. The applicant completed the DASS and reported extremely severe levels of depression, anxiety and stress. The applicant also completed a document recording his emotions. He described impaired concentration and negative thoughts. The impaired concentration made it difficult for him to focus on tasks. He reported being involved in soccer. He also complained of a lack of energy. Mr Abiyat observed that the applicant did not make good eye contact, that his train of thought was negative, and that he felt angry. 924 Mr Abiyat accepted that in the period in which he practiced as a psychologist in Iran between 1993 and 2000 the government had an extensive mental health policy and there were many psychologists and psychiatrists practicing in Iran. 462 A579 at p14. -- 188 of 647 -- [2025] SASC 59 Stanley J 185 They tended to practice in the larger cities. Nonetheless, his evidence is that there was a cultural reluctance to consult psychologists or psychiatrists in Iran. 925 Mr Abiyat provisionally diagnosed the applicant as suffering from depression when he treated him. 926 I generally accepted Mr Abiyat’s evidence, although I preferred the evidence of the psychiatrists in relation to diagnosis of any depressive illness. Dr Behzad Shroff 927 Dr Shroff is a general practitioner who has practiced in Port Augusta since the 1980s. In 2004 and 2005 he was contracted by IHMS to provide medical services at Baxter. In accordance with this contract he attended Baxter from Monday to Friday each week. He would see about 10 patients each day. He made handwritten notes of each consultation. Dr Shroff was not called as an expert witness. 928 Dr Shroff did not meet or speak with Dr Andrew Frukacz, the psychiatrist who visited Baxter every few weeks. He said he had very limited meetings or discussions with the psychologists from PSS. He recalled these happened on rare occasions. Referrals either from Dr Shroff to the psychologist or from the psychologist to Dr Shroff would be arranged through nurses. He does recall one incident where he went with the psychologist to a room occupied by a detainee who seemed in distress. He spoke by telephone to a psychiatric registrar at the RAH concerning whether the RAH had a bed available and whether he should make an order under the Mental Health Act for the detention of the patient. 929 Dr Shroff referred patients to psychologists and psychiatrists. He said a referral to a psychiatrist or psychologist would depend upon the severity of the patient’s presentation as well as the availability of the specialist. Often he would refer a patient to both. Sometimes he prescribed antidepressants for detainees without referring the patient either to a psychiatrist or a psychologist. If the patient did not respond to that treatment then he referred them to a psychologist or psychiatrist. Whether he referred a patient to the psychiatrist or the psychologist might depend upon when that specialist was next due to visit Baxter. 930 On 28 February 2005 the applicant consulted Dr Shroff with a history of not being able to sleep. The applicant reported that he was much better generally on Endep 25463 and was working as a chef in the kitchen. Dr Shroff prescribed a course of Endep 25 nightly without any referral to a psychologist or psychiatrist.464 931 While I accept Dr Shroff’s evidence of his practices and his consultation with the applicant, I found his evidence to be of limited assistance. While I am satisfied he was trying his best to assist the Court, understandably he had difficulty recalling 463 25 milligrams. 464 T 4269-4270. -- 189 of 647 -- [2025] SASC 59 Stanley J 186 events and practices that occurred 16 or 17 years ago. Nonetheless I find that after the consultation of 28 February 2005 and the prescription of Endep 25 the applicant did not consult Dr Shroff again before his release two months later. THE APPLICANT’S LAY WITNESSES – SYSTEMS CASE Harold Bilboe 932 Mr Harold Bilboe is a registered psychologist. He was employed as a psychologist by ACM from October 2000 until 5 February 2002. He predominantly worked at Woomera. He was employed at Curtin from 9 January 2002 to 5 February 2002. He did not give evidence as an expert witness. 933 Mr Bilboe has no recollection of meeting or treating the applicant during the time that he was employed at Curtin. 934 Mr Bilboe recalled Curtin was a remote and very isolated facility surrounded by bush. The compound was surrounded by high fences with razor wire. 935 Mr Bilboe had an office which had thin walls providing little privacy. There were observation rooms near the administrative office. Mr Bilboe could not remember the name of the rooms, but recalled they were used for at risk detainees. He said there were small cells containing nothing but suicide mattresses. The occupants wore suicide smocks. 936 Mr Bilboe worked with a mental health nurse. He said he was not informed of any procedures or protocols for the provision of psychological services but was left to his own devices. He said there was no psychiatrist at Curtin or on call at Derby or Broome. However, Mr Bilboe accepted that there is evidence in Mr Paparzadeh’s medical notes that a psychiatrist could have been contacted for a telephone consultation.465 This would have been arranged by the mental health nurse. 937 Mr Bilboe, along with the mental health nurse and an ACM officer in charge of security, formed the HRAT at Curtin. Part of Mr Bilboe’s work was to assess detainees to see if they were at risk of harming themselves or others. If a detainee was assessed as high risk they would be removed to an observation room, placed in a suicide smock and kept under observation until they were assessed as no longer posing a high risk. Mr Bilboe would visit the detainees in the observation rooms daily. A detainee at high risk would be assessed by him to determine whether the cause of the risk that he or she posed was the result of mental illness, or was a protest against the circumstances in which the detainee found himself or herself and was an attempt to achieve a desired outcome. 938 The HRAT would try to mitigate risk. He said it was an intervention program, not a therapy program. Whether a detainee required treatment would be assessed 465 Exhibits 1.3TP165, T 4549-4550. -- 190 of 647 -- [2025] SASC 59 Stanley J 187 once they were removed to a safer environment where they were monitored and the issue of diagnosis and treatment could be considered. 939 Mr Bilboe said that where detainees who were assessed as being at high risk of harm were considered to suffer from a mental illness, they would be treated by counselling, drugs, or referral to the psychologist and/or psychiatrist. Where the high risk behaviour was considered to be protest related they would not be prescribed medication, but they would be counselled and monitored until they were assessed as no longer posing a high risk of harm. Mr Bilboe recalled that detainees, whether suffering a mental illness or not, were stressed by the environment in which they were living and the indeterminate length of their detention. 940 Both Mr Bilboe and the mental health nurse would visit the compounds each day. The nurse would dispense medication to the detainees while Mr Bilboe would conduct an atmosphere check to assess the mood in the compounds. He said he would try and identify any detainee who appeared to need help, or to see a particular detainee whose circumstances had been brought to his attention by a DSO, the nurse or another detainee. 941 Mr Bilboe observed that some of the detainees slept mostly during the day and were awake most of the night. As a result, he would sometimes not see those detainees who were sleeping. 942 During his walks Mr Bilboe noted that detainees generally sat around their donga doing little apart from talking, smoking and playing boardgames. He saw dejected people, some of whom displayed concerning behaviour. 943 Mr Bilboe said he would try and explain the visa application process to detainees and to prepare them for the possibility that their applications might be unsuccessful. He asked to be notified when there was a detainee who was about to receive an immigration decision so that he could provide support in case it was a negative outcome. 944 Mr Bilboe said there was a television in the common area. He did not notice any meaningful activities for detainees. The educational program for adults was limited to English language classes. 945 Mr Bilboe recalled that the dongas were overcrowded and the toilets and showers were basic and often broken or blocked. Things took a long time to fix. 946 Mr Bilboe noted that DSOs and staff addressed detainees by their number rather than their name when talking to them. He was directed by ACM to use detainees’ numbers when calling them over the loudspeaker. 947 He recalled an incident at Curtin where he saw a detainee protest where a group of adult males dug shallow graves and lay in them in the sun. -- 191 of 647 -- [2025] SASC 59 Stanley J 188 948 Mr Bilboe said he was unaware of any procedures or programs for the early detection or prevention of mental health issues. 949 However, he accepted that there were group therapy sessions that he conducted during the month he worked at Curtin.466 During that month the MHT dealt with issues including the ingestion of toxic substances, mass voluntary starvation, sleeping problems, high levels of stress and threats of self-harm. Topics covered during the group therapy sessions included stress management, conflict resolution, anger management, and depression. 950 I found Mr Bilboe’s evidence of limited assistance. He was at Curtin for a period of about four weeks. He had no recollection of the applicant. He did not visit Baxter. While he attempted to give truthful evidence of what occurred during that period, he was handicapped by the unreliability of his memory. Nonetheless, he did provide some corroboration of the evidence of other witnesses who described the conditions at Curtin. Father Paul Bourke 951 Father Paul Bourke is a Catholic priest. In 2002 he commenced ministering to detainees in Baxter. Father Bourke had no contact with the applicant at Baxter. 952 On 12 July 2002, along with other religious advocates who were concerned with the mandatory detention of asylum seekers at Baxter, he was provided with a tour of the Baxter detention centre before it opened. 953 Father Bourke observed that the facilities at Baxter were new. The living quarters and kitchen area were clean. He was struck by the absence of windows looking out from the compounds which prevented detainees from having any view beyond the confines of their compound other than the sky. Approximately two months after Baxter opened arrangements were made with DIMIA and ACM for Father Bourke and other religious advocates to attend at Baxter periodically to provide religious services and pastoral care for detainees. He visited Baxter frequently between 2002 and 2005. On his visits he would see as many as 70 detainees or as few as one. 954 Father Bourke said that he initially said Mass in the compounds but later this occurred in the visitors’ centre. Entry to Baxter was through the visitors’ centre which had a high level of security. There were substantial restrictions on what could be brought into Baxter. Altar wine was considered to be contraband. The regime for entry to Baxter seemed to change frequently. He said this was a source of frustration. There were often delays in being processed which he said was irritating for him and others trying to enter the detention centre to conduct services and provide pastoral care, and embarrassing for DSOs who had to perform this function in this way. He thought the processing of him and others was unnecessary for security reasons given that with the passage of time DSOs knew him and other 466 Exhibit 1.3TP164, T 4543-4545. -- 192 of 647 -- [2025] SASC 59 Stanley J 189 religious who visited regularly very well. However, he accepted this had no impact on detainees.467 955 Father Bourke understood that detainees were transported by bus to the visitors’ centre to celebrate Mass, although later they may have walked to the visitors’ centre from their compound. 956 After Mass or other religious services conducted by Father Bourke he would speak individually with detainees. From a very early stage in his visits to Baxter Father Bourke was struck by the degree and extent of mental health problems he observed. This became a matter of such concern that he commenced keeping a diary in which he recorded, inter alia, his observations about the mental state of detainees. 957 Through his ministry Father Bourke was familiar with the signs and symptoms of mental illness. He said examples of such signs at Baxter included a detainee scratching a hole in his jeans during the course of a Mass; scarring from cuts to wrists and arms; one detainee who appeared to be psychosomatically blind for two or three years before his sight spontaneously returned; and extreme mood swings from detainees who said they were being medicated with sedatives and tranquilisers. Father Bourke observed many detainees walking around “like zombies”, with blank expressions. He described them as catatonic. He observed widespread sadness, despondency, depression, anger and desperation. He noted some fluctuation in the existence and severity of symptoms of mental illness. He consistently observed detainees who appeared depressed and hopeless. However, this was not true of all detainees or all the time. His evidence was based on his general impression of detainees who were sad and angry for all sorts of reasons. 958 Due to his concerns, Father Bourke took up an advocacy role writing to various ministers in the Commonwealth Government expressing his concerns about the conditions of detainees at Baxter. From time to time he met with representatives of G4S and DIMIA. He was part of community liaison meetings which in 2004 became community reference committee meetings. He said that committee brought officers of DIMIA and G4S together with concerned members of the community. He said he ended up being the only community voice on this committee. At the committee meetings Father Bourke raised concerns about how depressed detainees were. Notwithstanding that many of the DIMIA, ACM and G4S personnel were well intentioned and exceptionally kind, Father Bourke considered that the management committee meetings achieved little by way of meaningful reform to the conditions applicable at Baxter. There were some issues that were not allowed to be raised at these meetings, such as punitive mistreatment of detainees. 467 T 3652. -- 193 of 647 -- [2025] SASC 59 Stanley J 190 959 Father Bourke also recalled being shown food that was being served to detainees which he described as putrid. 960 He also gave evidence about events after the fires in December 2002 when he tried to contact detainees who had been placed in the Management Unit. He said his requests for access to these detainees was refused. He agreed that after the fires in December 2002 there was an increase in security at Baxter. He said some detainees might have said to him that they had been placed in the Management Unit because they were suspected of being involved in starting the fire. He thought some of these detainees were kept in high security conditions for months. While this occurred he was unable to obtain access to them. He considered this unnecessary from a security perspective. 961 Father Bourke recalled that some detainees were placed in the Management Unit in April 2003 as they were suspected of planning to incite unrest in the centre at Easter. He said those detainees went on hunger strikes. 962 In April 2003 there was also an incident where a service being conducted in Blue 3 was interrupted by DSOs in riot gear who shepherded the detainees, Father Bourke and other religious advocates out to a corner of the compound where they were required to wait while searches were conducted of detainees’ rooms. About a week later a prayer service in Blue 3 was interrupted by a DSO who required Father Bourke and the other religious attending to proceed to the DSOs’ office in the compound. 963 Father Bourke acknowledged that there were many DSOs who were well intentioned, friendly and treated him and detainees respectfully, but they were constrained by the policies of DIMIA or ACM and G4S. 964 Father Bourke was uncertain as to which compounds he visited at Baxter over the course of his time there. He does not think he visited every compound. 965 When G4S assumed management of Baxter most of the DSOs employed by G4S were the same people employed by ACM. After the changeover, detainees reported to Father Bourke that the food improved. Certainly, early in the period of the new management under G4S there was a detectable change in the behaviour and attitude of DSOs. He noted a more relaxed mood amongst detainees. 966 He recalled there was a classical music concert conducted at Baxter in February 2004 which was attended by detainees and members of the organisation Rural Australians for Refugees (RAR). 967 Father Bourke considered that a relevant factor contributing to detainees’ frustration and desperation was not knowing how long they would be in detention. 968 Father Bourke said that other factors that contributed to detainees’ unhappiness, despair and sense of hopelessness, apart from uncertainty as to the -- 194 of 647 -- [2025] SASC 59 Stanley J 191 length of the period of detention, was the lack of freedom, the lack of consistent rules, and not being able to look out of the compound to the surrounding landscape. 969 Father Bourke said that while these conditions improved at Baxter with G4S assuming management, this did not last. 970 I accept Father Bourke as a witness of truth. I consider that in giving evidence he was doing his best to recall events and recount these events accurately. However, he was quite candid that, given the effluxion of time, much of his evidence relied upon the accuracy of the record of events contained in his diaries. He had difficulty retrieving detailed memories of events 20 years ago, but he was confident that his diary entries accurately recorded the events with which they were concerned. He was angry and passionate about what he considered was the harm done to vulnerable detainees subjected to lengthy periods in mandatory detention at Baxter, and the conditions of that detention. None of that detracted from my preparedness to rely upon the accuracy of his evidence of his observations and interactions with those detainees. I accept his description of many of them displaying signs and symptoms that he considered consistent with generic mental illness, despair and hopelessness. However, I exercise some caution in accepting Father Bourke’s evidence of the causes of these signs and symptoms as it necessarily relied upon either hearsay evidence or speculation on his part. In any event, his evidence did not refer to the applicant. He did not suggest he had spoken with or observed the applicant on any occasion he visited Baxter. For that reason his evidence was of little assistance in making findings of fact. Marie Anne Saracino 971 Ms Saracino was a visitor to Baxter. Between 2002 and 2005 she provided moral support to detainees out of a sense of social justice. She said that the fence surrounding Baxter was a double layer fence. Compounds were built so that they were enclosed and facing inwards. The compound Ms Saracino visited had approximately 40 rooms around a lawned area. There was a recreation room with a table tennis table. The compound was comfortable but was configured so that all the rooms and windows faced the central lawn area and you could not see outside the compound. All you could see were the surrounding buildings, the lawn area and the sky. She visited Red 1 and the Management Unit. She remembers seeing a stainless steel base of the beds in the solitary confinement unit. When Baxter opened, Ms Saracino visited detainees in the visitors’ centre. She said movement in Baxter was restricted both by the nature of the design of the detention centre, divided as it was into compounds, and the rules. She said that the whole of each compound was enclosed. Everything at Baxter was separated by locked doors. She thought it claustrophobic. Detainees were bussed from their compound to the visitors’ centre for visits. 972 Ms Saracino said the procedures for visits were cumbersome. Once a visitor had signed in at the visitors’ centre they had to be given permission to move into the visit area. This necessitated any visitor waiting until all visitors had arrived. -- 195 of 647 -- [2025] SASC 59 Stanley J 192 At the visitors’ centre Ms Saracino was asked the name of the detainee she was visiting. In addition would be asked for the detainee’s number. She heard DSOs at Baxter address detainees by number instead of their name. Visitors would be searched for contraband. Some gifts such as tea or dates would be confiscated, although they might be given to detainees later. 973 Ms Saracino said it could take 15 minutes or more to be admitted into the visitors’ centre. Detainees were often late to their meetings which reduced the time that could be spent with them. There was a DSO in the visitors’ area who would observe the visits. 974 Ms Saracino described an incident in the visitors’ centre when two DSOs entered the room dressed in riot gear, approached the detainee Ms Saracino was visiting, restrained him and took him away. She said that the detainee was asking the DSOs repeatedly what was happening but they did not respond. 975 Ms Saracino said that for the first two or three months detainees were in Baxter they seemed hopeful, but as time went by that optimism evaporated and their mental health appeared to deteriorate. She thought some of the detainees appeared visibly unwell with yellow eyes and grey skin. They were stooped and would not make eye contact. Ms Saracino saw detainees rocking incessantly in their chairs. She observed the legs of some detainees shaking apparently uncontrollably. Many held their hands together in an apparent effort to prevent shaking. Some had holes in their lips from having sewn them together. One detainee told Ms Saracino that he had recently swallowed shampoo. 976 Ms Saracino described an incident where she was trying to contact a detainee by telephone in Red 1. She knew that phone calls were stopped at 10:00 p.m. so she rang many times before then but the line was always engaged until she finally succeeded in getting through at 9:50 p.m. The DSO who answered the phone refused to take the phone to the detainee to allow her to speak to him because, as the DSO told her, by the time he got to the detainee’s room it would be 10:00 p.m. He also refused to inform the detainee that she had called. 977 Ms Saracino referred to a detainee complaining to her that DSOs would strip- search him and search his room. On these occasions he sounded shaken. 978 During the last six months that she visited Baxter she noticed that detainees were finally allowed to walk to the visitors’ centre rather than being brought by bus. 979 Ms Saracino said that she has no medical or psychiatric qualifications.468 She accepted she has never worked in a prison or immigration detention facility. The 468 T 3547. -- 196 of 647 -- [2025] SASC 59 Stanley J 193 first time she was in a high security environment was when she visited Baxter before it opened. She has never seen a solitary confinement cell in a prison.469 980 It is apparent that Ms Saracino confused Red 1 and the Management Unit. 981 Ms Saracino is opposed to asylum seekers being held in mandatory detention. She never met the applicant.470 982 Ms Saracino’s evidence was of limited assistance. I accept her evidence as credible and reliable as far as it went, but the matters she deposed to were of only marginal relevance to the issues I have to decide. David Wright 983 Mr David Wright is a solicitor. Twenty years ago he was an officer in the Salvation Army at Port Augusta. He had previously been a member of the Victorian Police Force. At Port Augusta he was a prison chaplain. 984 Before Baxter opened he was given a guided tour of the detention centre. He observed that from within Baxter there were no views of the outside world. He could only see the interiors of the compound and the sky. 985 He was given approval by DIMIA to undertake Christian ministry work at Baxter. He was also invited to attend meetings with IDAG. He visited Baxter on a weekly basis during most of 2003. 986 In the course of this work he was granted permission to visit a male detainee who was being held in the Management Unit. He observed the room in the Management Unit had a bed and toilet with no toilet door, and CCTV cameras. He said detainees were held in isolation in the Management Unit. They were let out for maybe one hour each day. Detainees in one compound were segregated from detainees in other compounds. They could not see detainees in other compounds. Mr Wright explained that he understood the Management Unit was a place where detainees who may have harmed themselves were taken for observation and treatment. 987 Mr Wright complained of the obstructive and time-consuming processes adopted by the detention centre staff in admitting him and other religious advocates when undertaking their regular visits to Baxter. 988 He said on his visits he heard DSOs addressing detainees by number rather than by name. 989 Mr Wright gave evidence of observing female DSOs in the Management Unit supervising detainees in their cells by CCTV even when the detainee was 469 T 3548-3549. 470 T 3549-3550. -- 197 of 647 -- [2025] SASC 59 Stanley J 194 showering or using the toilet. Mr Wright recalled raising this at a meeting with IDAG at which Mr Wallis was present. 990 Mr Wright observed that there was nothing for detainees to do at Baxter. He and other visitors would bring books or magazines for detainees but they were not permitted to read them. The televisions within the centre were frequently broken. 991 During his time at Baxter Mr Wright considered the mood of detainees often deteriorated and security staff became increasingly hardened. He attended various meetings with IDAG, DIMIA and ACM representatives at which he raised his concerns over these issues. There would be discussions concerning surveillance, medical and health concerns and other general concerns about the conditions at Baxter including excessive cuffing and an incident of violence towards a detainee, and the need for increases in social and educational opportunities for detainees. 992 In particular, he recalled a meeting on 2 May 2003 at which there was discussion, inter alia, about education and social opportunities and the treatment of detainees; the disruption of religious services by DSOs; and the use of management cells as a pre-emptive measure for predicted bad behaviour. 993 Mr Wright has never met the applicant. 994 Like Ms Saracino, I found Mr Wright’s evidence of limited assistance. I accept his evidence as credible and reliable as far as it went, but the matters he deposed to were of only marginal relevance to the issues I have to decide. Bobbi Sawyer 995 In 2001 Ms Bobbi Sawyer was the manager of country services for Child and Adolescent Mental Health Service. In that capacity she visited Baxter on some 25 occasions over the course of a year beginning in 2003. On those occasions she visited the family compounds only, except for one occasion where she went to one of the men’s compounds. She did not meet or know the applicant. She described an incident where a child detainee had to identify himself to a DSO by his number. She also described the difficulties and delays experienced in obtaining access to detainees at Baxter due to the method of admitting visitors to the detention centre. She described the appearance of Baxter, in particular the enclosure of the compounds which prevented any view of the outside except the sky. 996 She also described an incident in a family compound where she observed a father and a son who appeared still and silent with the father lying in bed and the child staring into space making pyramid shapes with his hands. 997 Without being critical in the slightest of Ms Sawyer’s evidence, it was of limited assistance. It merely corroborated the evidence given by other ‘systems’ witnesses. There is no evidence that she spoke with or observed the applicant. -- 198 of 647 -- [2025] SASC 59 Stanley J 195 Dr Jonathan Phillips 998 Dr Jonathan Phillips is a psychiatrist. He has been practising as a psychiatrist since 1973. He has held various positions in the RANZCP, including President for a term commencing in 1999. He was elected Chair of the Committee of Presidents of the Australian Medical Colleges in around 2002 and served as convener of the Specialist Medical Review Council from 2001 to 2012. In around 2001 he was appointed as Director of Mental Health and Chief Psychiatrist for South Australia. In the course of his role as Director of Mental Health in South Australia he had various dealings with IDAG in the early 2000s relating to the mental health of immigration detainees at Baxter. In particular, he had repeated contact with Professor Minas of IDAG with a view to negotiating better conditions for the detention of asylum seekers. He did not give evidence of speaking with, observing, treating or advising on the treatment of the applicant. His evidence was confined to his views concerning Baxter and his dealings with IDAG. He did not give evidence as an expert witness. 999 Dr Phillips attended a meeting of IDAG in Canberra on 25 June 2001. During the course of that meeting he advised IDAG that, in his view, detainees may not have much awareness of psychology and the potential for mental illness. This was because it was well-known in psychiatry that many Middle Eastern cultures lacked such awareness. He thought this pertinent because many detainees were from the Middle East. At this meeting he made an offer on behalf of the RANZCP to provide assistance to DIMIA in relation to the treatment of detainees; continuing supervision and education for staff within detention centres; assistance in development of harm minimisation and suicide prevention programs; and research into the mental health needs of detainees. During this meeting Dr Phillips told IDAG that the RANZCP was willing to conduct research into the effects of immigration detention on mental health and to assist with the development of services for immigration detainees. It was intended to offer the Commonwealth government relevant assistance to monitor mental disorders within the immigration detention environment and to assist with the development of appropriate programs of management. 1000 He discussed these issues over a period of some four years from June 2001 until at least April 2005. This culminated in the development of DIMIA protocols to guide access to specialist mental health services by immigration detainees within Baxter. 1001 These negotiations were underpinned by his awareness that immigration detainees had an unusually high rate of mental disorder which could be experienced in multiple ways, but particularly through the development of mood disorders and psychophysiological disturbances. 1002 In his capacity of Director of Mental Health in South Australia Dr Phillips visited Baxter on two occasions. He observed that Baxter had been constructed in an isolated environment with high gaol-type fencing and security at the entry point. -- 199 of 647 -- [2025] SASC 59 Stanley J 196 It consisted of several compounds, each surrounding a recreational field to form an enclosure. There was no obvious horizon or view into the surrounding countryside. He visited the Management Unit. He noted that detainees held within the Management Unit were effectively in solitary confinement. 1003 Dr Phillips said that it was well recognised in the psychiatric profession by the early part of the decade 2000-2010 that solitary confinement of persons with mental health problems was deleterious to their mental health. 1004 During a visit to Baxter Dr Phillips also inspected the medical centre. He noted that there was no special provision for the safe assessment of persons with acute mental health problems. He considered this contrary to the practice that was adopted in correctional facilities throughout Australia at that time where provision was made within their medical facilities for the safe and humane management of persons suffering mental disorders, particularly acute onset mental disorders of the kind identified in the Diagnostic and Statistical Manual of Psychiatric Disorders. The practice at that time was to provide a quiet and safe space for the disturbed person in order to allow time for medical assessment and triage. Dr Phillips said it was normal practice at that time to facilitate rapid transfer of persons with significant mental health problems to the relevant State mental health service under appropriate guard where necessary. 1005 An abiding memory of Dr Phillips’ was the number of detainees sitting or milling around at Baxter with nothing to do. This was of concern because, by that time, it was recognised that the lack of organised meaningful activity could be a trigger for persons to decompensate psychologically, and for the development of a variety of mental health problems, including mood disorders, self-harming behaviour and anger. 1006 While Dr Phillips was Director of Mental Health in South Australia numerous detainees held at Baxter suffered such a significant mental health disturbance that they needed transfer to Glenside Psychiatric Hospital. The State of South Australia made special provision to treat such patients at Glenside. This was the subject of the protocol entered into between the State of South Australia and DIMIA. 1007 I found Dr Phillips’ evidence to be of limited assistance in making findings of fact. He neither observed or treated the applicant during his detention at Baxter. While I accept his observations of Baxter, particularly as they related to psychiatry, his evidence, while necessarily expressed generally rather than specifically, was concerned with the treatment of detainees with significant mental health problems. For reasons I will explain, I find that the applicant very rarely complained of or exhibited significant mental health symptoms during his detention at Baxter. In addition, he rarely complained of non significant mental health problems. -- 200 of 647 -- [2025] SASC 59 Stanley J 197 IDAG 1008 In 2001 DIMIA created an advisory body in relation to immigration detention centres, namely, the Immigration Detention Advisory Group. Its role was, as its title suggests, to advise the Minister and DIMIA in relation to the operation and administration of immigration detention centres. Advice was sought in relation to the health of detainees, their physical safety and security, and the physical safety and security of detention centre staff. It had no power to implement or enforce its recommendations. It developed a focus, inter alia, on the problems presented by long-term detainees such as self-harm, difficult to manage detainees, and the establishment of Health Advisory Panels (HAP).471 It comprised eminent persons from a variety of backgrounds, all distinguished in their respective fields. It did not include personnel involved in the management and security of immigration detention centres. Its role was not that of an independent monitor.472 1009 IDAG and various of its members visited Baxter on a number of occasions, namely, 18 April 2002,473 September 2002,474 14 January 2003 to 16 January 2003475 31 July 2003476 and 16 December 2004.477 Members of IDAG were favourably impressed with the Baxter facility when they visited on 18 April 2002. They described it as a thoughtfully designed centre providing high levels of amenity and security.478 This visit occurred before detainees had been transferred to Baxter. By its visit in September 2002 detainees were in Baxter. 1010 It is unclear how many further visits IDAG undertook to Baxter in the period before the applicant’s release from detention. There may have been other visits. 1011 The Court heard evidence from two members, Professor Minas and Air Marshal Funnell. 1012 There was no evidence that any member of IDAG met with or observed the applicant while he was at Curtin or Baxter or at any other time. Professor Harry Minas 1013 Professor Harry Minas is a clinical psychiatrist. He did not give evidence as an expert witness. He was appointed as a member of IDAG in early 2001. When IDAG was established mandatory detention of asylum seekers had been in operation for over a decade. Professor Minas is a critic of the policy of mandatory detention. Nonetheless as part of IDAG Professor Minas operated within the existing policy framework. IDAG gave advice to the Minister on changes that 471 Subsequently the focus shifted to the creation of a single HAP rather than the establishment of HAPs for each detention centre. 472 T 4052.28-31. 473 T 4120. 474 T 4388. 475 Exhibit A102. 476 T 4340. 477 Exhibit A107. 478 Exhibit A153 pp 114. -- 201 of 647 -- [2025] SASC 59 Stanley J 198 could be made to the system of mandatory detention which would improve the conditions of detention. 1014 Professor Minas and the other members of IDAG had a particular interest in the mental health of detainees. Shortly after his appointment Professor Minas recommended that research should be undertaken into the effects of long-term immigration detention on detainees’ mental health. He was aware of the existence of studies suggesting that prisoners incarcerated in gaols suffered adverse mental health. He considered there was a real risk that long-term detainees in immigration detention centres might suffer the same adverse consequences, if not worse, given the indeterminate length of immigration detention; the fact that administrative detention was not the result of the commission of a crime; and because of the sense of unfairness experienced by long-term detainees in immigration detention due to that fact. 1015 Meetings of IDAG were conducted in accordance with an agenda. Extensive minutes were taken. These documents were provided to DIMIA. There were instances when members of IDAG disagreed and times when DIMIA queried whether views were those of IDAG or merely one or more of its members. 1016 Professor Minas attended a meeting of IDAG in Canberra in June 2001. Dr Phillips also attended this meeting. Dr Phillips represented the RANZCP. He gave a presentation to IDAG of RANZCP’s concerns in relation to the impact of long-term detention on the mental health of detainees. His opinions were shared by Professor Minas. Dr Phillips indicated that the RANZCP was prepared to provide clinical psychiatric assistance to detainees and to undertake research into the impact of long-term detention on detainees’ mental health on a pro bono basis. Professor Minas was unaware of the Minister or DIMIA accepting this offer of assistance from the RANZCP. 1017 In June 2001 the Parliamentary Joint Committee of Foreign Affairs, Defence and Trade recommended to the government that DIMIA conduct a review of the adequacy of psychological services provided to detainees. IDAG agreed with that recommendation. The Committee also recommended that appropriate community organisations, including religious and welfare groups, be given greater access to detention centres. IDAG agreed in principle with that recommendation. 1018 Professor Minas considered that administrative detention did not necessarily require detention in a detention centre but could occur in the community in appropriate circumstances. 1019 Professor Minas said IDAG was interested in investigating the more targeted use of case management for detainees who suffered from depression and anxiety. IDAG also developed a proposal for the establishment of Health Advisory Panels with a group of medical practitioners with backgrounds in multicultural communications, general practitioners, psychologists, psychiatrists and others, who would provide independent medical advice to the Minister. There was an -- 202 of 647 -- [2025] SASC 59 Stanley J 199 identified need for a program of mental health assessments of all persons in detention. However, the detention services contract did not provide for such assessments. Professor Minas recalled IDAG’s proposal was agreed in principle by Minister Ruddock. However, the Minister’s approval was subject to the level of health services provided to detainees not vastly exceeding that available to rural and regional Australia. Notwithstanding Professor Minas’ view that the Health Advisory Panel was needed as a matter of urgency, it was subject to lengthy investigation and frequent discussion for a number of years before it was eventually established in 2006, after the applicant had been released from detention. 1020 Professor Minas accepts that in 2002 ACM was prepared to facilitate the establishment of a Health Advisory Panel, but that this was put on hold by DIMIA.479 1021 Professor Minas was a joint author of an article in the Medical Journal of Australia which identified the need for a national mental health policy which addressed, inter alia, the specific needs of refugees.480 The article expressed the view that the current immigration policy of prolonged detention of asylum seekers was causing harm to their mental health. Because of the problems of psychiatric harm being suffered by long-term detainees, IDAG explored alternative forms of administrative detention other than detention in immigration detention centres. Professor Minas considered that improvements to the conditions in detention centres could only go so far. The very fact of detention for long periods risked causing mental harm to detainees irrespective of how good the conditions of detention. An example of an alternative approach was the Woomera housing project which involved placing families or women and children into community housing under the supervision of ACM personnel. However, this was not an option for medium or high risk detainees. 1022 In the course of his work with IDAG Professor Minas visited Baxter on a number of occasions. He visited Baxter in April 2002 before it opened, again in January 2003 after the fires, and on 16 December 2004 when a number of detainees staged a protest on a roof. Professor Minas accepts that none of these visits occurred at a time when Baxter was operating normally.481 1023 Professor Minas said IDAG was initially positive about Baxter. It appeared to be a better environment for detainees and the IDAG members who inspected it were favourably impressed by the medical centre, the kitchen and food preparation areas, the educational facilities and the outdoor amenities. The design of Baxter was informed by security considerations. In this context Baxter was designed to permit better management and separation of detainees. This was to prevent the reoccurrence of some of the problems that had occurred at Woomera. 479 T 4110. 480 T 4021-4025. 481 T 4083. -- 203 of 647 -- [2025] SASC 59 Stanley J 200 1024 IDAG hoped Baxter would produce better outcomes for detainees in terms of their mental health. Professor Minas said that in 2002, before it opened, Baxter appeared to have adequate security but was reasonably open, allowing for detainees to move about the centre and use the facilities that were provided such as the gym and library, and permit excursions from the centre, particularly for children and families. Detainees could cultivate interests and obtain some relief from the sense of being incarcerated. However, Professor Minas gave evidence that by January 2003 it was apparent that this optimism was not realised. 1025 In June 2002 IDAG put to the Minister a proposal to remove long-term detainees from detention centres and release them into the Australian community if they had demonstrated good behaviour during their time in detention. The government did not adopt this proposal. 1026 In 2002 Professor Minas was aware of a widespread belief in the psychiatric profession that no psychiatrist should be involved in the detention system. This was not a view shared by Professor Minas. This attitude reduced the number of available psychiatrists who were prepared to work in detention centres. He said to do so risked ostracism by the wider profession. By 2005 Professor Phillips, on behalf of the RANZCP, declined to put forward any nominations for the Health Advisory Panel. 1027 By 2002 Professor Minas understood that the detainee population was shrinking but becoming more difficult to manage because of the influence on detainees of the length of time they had been in detention, their growing certainty that they would not be granted a protection visa, and that most came from countries where removal action, while not impossible, was difficult and resource intensive, as a result of which removal would not happen quickly. 1028 In September 2002 there was a further visit to Baxter. Following this visit the subgroup reported that IDAG had moved from its previously held position of not segregating difficult cases. The subgroup reported that the visit drove home the necessity of separation, given the duty of care for the majority of detainees required they not be placed in circumstances where they were constantly afraid of, or physically threatened, and in some cases physically assaulted, by other detainees. 1029 After an IDAG teleconference on 10 January 2003, Mr Hodges, the Chair of IDAG, proposed that a compound in Baxter should be set aside for the more difficult to manage detainees. At that stage there was a concern that activist groups were planning further protests at Baxter over Easter. IDAG accepted that a different approach had to be taken with difficult and disruptive detainees. This would result in them losing entitlements to some amenities, privileges or facilities that other detainees had available, even if this might have adversely affected their mental health. Another member of IDAG, Paris Aristotle requested that the next meeting consider more dynamic management practices for the detention centres, -- 204 of 647 -- [2025] SASC 59 Stanley J 201 rather than responding to crises by increased security.482 Mr Aristotle expressed concern about the escalation of violence by detainees. Professor Minas suggested that research should be undertaken as to the reasons individuals might undertake disruptive actions. 1030 On 14 and 15 January 2003 the IDAG sub-group of Air Marshal Funnell, Professor Minas and Mr Aristotle visited Baxter. The report of the visit dated 22 January 2003 was drafted by Air Marshal Funnell.483 Its contents were agreed with Professor Minas and Mr Aristotle. The report was subsequently adopted by IDAG. Professor Minas could not recall what discussions, if any, took place with ACM management concerning the findings and conclusions set out in the subgroup’s report. 1031 The report made trenchant criticisms of the management of Baxter by ACM. It was expressed in intemperate terms. IDAG said Baxter was excellent infrastructure used poorly by ACM, who seemed to be paranoid about escapes with a consequent over-emphasis on physical security.484 The report referred to what had happened at Baxter as a “travesty”.485 They said that the ACM staff at Baxter, from the centre manager down, were not an impressive group. Further, they said that it was beyond the wit of ACM to manage Baxter so as to provide an excellent environment for those held in administrative detention. There were specific criticisms made of the closed nature of the compound or, as they described it, the “claustrophobic nature” of the compounds, seen as an outcome of the approach taken by ACM to security. 1032 In giving evidence Professor Minas appeared to be uncomfortable with the language and tone of the report and objected to some of the language Air Marshal Funnell had deployed.486 He did not think that they put to the ACM centre manager the proposition that the program of activities was essentially a sham. He accepts that there might have been perfectly reasonable explanations for the observations made by the subgroup that led to the finding of a “sham”. Likewise, there might have been quite reasonable explanations for other adverse conclusions. 1033 The 22 January 2003 report487 also criticised the ACM staff. The basis of that criticism was the absence of any motivated interaction by staff with detainees. The report described that there was no encouragement to use facilities. There was no evidence of any real interest in the welfare of the detainees. The subgroup formed the view that efforts by the DIMIA business manager at Baxter were frustrated by ACM centre management, particularly after ACM was unsuccessful in obtaining a contract renewal. 482 Exhibit A153, pp 163-165. 483 Exhibit A102. 484 Exhibit A102. 485 Exhibit A102. 486 T 4132.11-17. 487 Exhibit A102. -- 205 of 647 -- [2025] SASC 59 Stanley J 202 1034 Professor Minas said that one of the conspicuous features of the visit in January 2003 was the absence of detainees from outdoor areas. Many detainees just stayed in their accommodation. He thought there was very little interaction between ACM staff and detainees. Accessing the gym was difficult because of the need to travel between the compound and the gym by bus. Professor Minas thought that the lack of interaction between ACM staff and detainees made it harder to monitor their mental health. They visited the gym on a number of occasions and did not see any detainees using it. However, he conceded this was at a time when the facility was locked down following the fires.488 1035 IDAG considered there were advantages in terminating the contractual relationships with ACM and G4S and bringing the management of the detention centres back into the public sector. It was apparent the government was not interested in doing so. IDAG also suggested that the new contract for managing Australia’s detention centres should be finalised and a new service provider should take over from ACM as soon as possible. DIMIA advised that transition to new management would not occur before Easter 2003.489 1036 At their meeting which occurred on 29 and 30 January 2003 IDAG recommended that a taskforce be established to work with long-term detainees in reaching realistic decisions on their future.490 Mr Aristotle suggested that getting more people to return home might require some other incentive or initiative. He suggested that DIMIA look at the option of having different groups undertake counselling to get people to return. DIMIA advised that the Department already had teams of people travelling around detention centres counselling detainees about their options.491 The subgroup was concerned by events including fires, hunger strikes and protest riots at Baxter and Woomera. There was concern that if the circumstances which produced these events were not addressed the situation at Baxter could escalate to violence against staff. IDAG considered that the causes of these disturbances were complex and required further investigation. Professor Minas was unaware of such investigations being undertaken. 1037 On 4 February 2004 discussions occurred regarding the establishment of the HAP.492 Professor Minas gave evidence that the establishment of the HAP was discussed by IDAG as early as June 2001.493 It’s creation was delayed by DIMIA from October 2002 due to the impending change in management at Baxter and the other detention centres. As events transpired a HAP was not established during the time the applicant was detained at Baxter. 1038 In December 2004 DIMIA requested a population wide assessment of the mental health status and needs of detainees. Data was obtained of the number of 488 T 4130. 489 Exhibit A153 p 190. 490 Exhibit A153 p 192. 491 Exhibit A153 p 191. 492 Exhibit A153 p 357. 493 Exhibit A153 p 45, T 4020. -- 206 of 647 -- [2025] SASC 59 Stanley J 203 detainees at Baxter who were receiving psychotropic medication for depression, anxiety and other psychiatric problems. There was a substantial proportion of detainees on antidepressants or anti-anxiety medication. By that time a specialist psychological and mental health service, PSS, had been providing psychological counselling services for almost 12 months. However, due to resource levels, PSS had not been able to undertake a MHA of the entire detainee population; detailed assessment of special needs groups, including long-term detainees; and ongoing follow up of at risk and other special needs detainees. Both the Minister and DIMIA at various periods from 2001 to 2005 emphasised in discussions with Professor Minas that a primary reason for detention in detention centres was to deter people traffickers and asylum seekers from coming to Australia. DIMIA did advise Professor Minas that its focus was on devising strategies and enhancing protective factors within immigration detention to ensure, as far as possible, negative impacts were minimised and detainees were properly cared for while in detention. This was reflected in the modification of the IDS and the subsequent establishment of a HAP. 1039 Professor Minas recalled that there were improvements at Baxter. After G4S took over the centre was opened up so that people in compounds could see outside of the detention centre. He said efforts were made to improve the library and various other facilities. 1040 Professor Minas said IDAG identified one of the difficulties with undertaking longitudinal research on the effects of long-term detention on the mental health of detainees was the time and cost involved and the lack of interest on the part of DIMIA and the Minister in undertaking such research. Professor Minas thought it would take two to three years and cost around $7 million. He considered it would have been unethical and impractical to conduct such research surreptitiously. 1041 IDAG considered that it should have been possible within the detention centres to promote better mental health through the provision of excursions, activities and services; to recognise the development of mental health problems among detainees; to respond in a timely manner to the development of such problems; and to provide such mental health treatment and care that was necessary to deal with those problems. IDAG considered this was not occurring when it met in April 2005. 1042 Professor Minas emphasised that the fact of mandatory detention itself caused harm to some detainees’ mental health, as a consequence of which ameliorative measures would have limited utility until the individual was removed from that harmful environment either by release into the community or by returning to his or her country of origin. 1043 IDAG considered that the level of provision of psychological and counselling services at Baxter was inadequate. The frequency and regularity of the attendance of a psychiatrist at Baxter was insufficient. -- 207 of 647 -- [2025] SASC 59 Stanley J 204 1044 Professor Minas conceded that, in the period 2001 to 2005, much of the material published in relation to mandatory detention was not subject to rigorous peer review or undertaken with the cooperation of DIMIA, meaning anecdotes substituted for reliable research based data. This called into question the reliability of what was often highly contested anecdotal evidence. Many detainees’ perceptions were clouded by the impact of the situation in which they found themselves, resulting in distortion or exaggeration of the facts. This meant great care needed to be taken in conducting research relying on reports from detainees or refugee advocates opposed to the policy of mandatory detention. Research necessary to investigate properly any causal connection between aspects of detention and the incidents of mental illness required very sophisticated research design and very careful data collection.494 1045 Professor Minas conceded that no one on IDAG had experience in the operation of a detention centre or the assessment of security issues around immigration detention centres or prisons. He considered that Major General Warren Glenny had a particular interest in security issues, but when pressed he resiled from that view.495 1046 At the time Professor Minas joined IDAG he was not provided with any briefing as to the contractual relationship between DIMIA and ACM although he thought that when G4S took over he may have been provided with information about the new contractual arrangements. He understood that the ACM contract provided that the IDS were subject to a series of principles supporting care and security. This obliged ACM to meet a duty of care in relation to detainees and to prevent their escape and this created a degree of tension between the two objectives. Professor Minas understood there were financial penalties imposed by the contract if detainees escaped. There was an exception in the contract from compliance with detention standards if to do so would compromise the security and good order of the detention centre. 1047 IDAG considered that greater authority should have been given to DIMIA business managers for operational decisions in detention centres. This became a term of the contract with G4S. In 2003 IDAG recommended the construction of a playing oval at Baxter. A briefing paper prepared for IDAG by DIMIA in January 2004 identified some of the pros and cons of this recommendation. It suggested that a Centre Emergency Response Team (CERT) would need to be provided for the duration of detainees’ transport to and from the oval, as well as the playing time. Professor Minas thought this was unlikely to be necessary. He thought that DIMIA’s emphasis on security prevailing over other considerations was occasionally excessive. 1048 Professor Minas considered that there were two essential features of the detention system, namely, deprivation of personal liberty and coercive control. On 494 T 4086-4090. 495 T 4094-4095, 4097-4098. -- 208 of 647 -- [2025] SASC 59 Stanley J 205 a long-term basis both of these features posed considerable risk to the mental health of detainees. Yet from time to time considerations of security predominated in policy and operational decisions. It was these features of government policy which informed the terms of the detention services contract. Professor Minas accepts that the government and the service providers could only provide services for detainees. It was a matter for detainees whether they availed themselves of those services.496 However, in Professor Minas’ view, if detainees were not utilising the services available, that may have required an investigation into the reasons why that was not happening.497 By October 2004 G4S and DIMIA were considering what could be done to provide detainees with meaningful activities, programs and excursions. 1049 Professor Minas considered that even asylum seekers living in the community on TPVs were at risk of harm to their mental health due to the uncertainty concerning their future. He referred to studies undertaken by the European Union which indicated that even in countries where there is no mandatory detention, the degree of mental ill-health on the part of asylum seekers who live in the community was still higher than the average in the rest of that community. He thought this could be due to stress factors to which they were subject in their country of origin, during their departure and journey to a safe haven, and as a result of the uncertainty of living in a new community, with language barriers, where they were unable to be joined by family members. 1050 Professor Minas emphasised that while there were limits to what could be done to reduce the risk of mental harm for long-term detainees where the risk was posed by the fact of detention itself, it was necessary to recognise that there is a baseline need for psychologists and nurses sufficient to enable a proper assessment of the detainee population to ensure that the requisite mental health care is provided. That was a function of government policy. 1051 Professor Minas qualified his evidence in cross-examination concerning the need for security where detainees misbehave. He observed that there was a risk of a positive feedback loop where a detainee who is angry and frustrated by the length of detention and its conditions engages in some destructive or self destructive behaviour, leading to the conditions of his detention being made harsher and more onerous, resulting in a further deterioration of the detainee’s mental ill health. 1052 Professor Minas recalled there was a divergence of views within IDAG as to whether, as a matter of policy, the Commonwealth and DIMIA should have been providing the level of resources needed to care properly for detainees’ mental health, or whether those resources should have been constrained by reference to the availability of mental health services in rural and regional Australia and amongst Aboriginal communities. 496 T 4171-4172. 497 T 4198-4199. -- 209 of 647 -- [2025] SASC 59 Stanley J 206 1053 I found Professor Minas to be an impressive witness. His presentation in the witness box was highly professional. His answers were direct, responsive and considered. He demonstrated a relatively accurate recollection of events that occurred 15 to 20 years ago. However, some of those recollections were inaccurate, which he readily conceded when confronted with documentary evidence that contradicted his memory. In giving his evidence he did not hesitate or prevaricate and accepted responsibility for conclusions and judgments made, to which on reflection, he would no longer adhere. He was frank and forthright about how views and conclusions he formed at that time were informed by his opposition, as a matter of principle, to the government’s policy of mandatory detention of asylum seekers. That being said, much of his evidence reflected the contents of contemporaneous documents. I am generally prepared to rely upon his evidence in making findings of fact. However as a witness he was called by the applicant in support of his unpleaded systems case. Professor Minas neither spoke with nor observed the applicant. Accordingly, his evidence was of limited assistance in evaluating the applicant’s cause of action in negligence. Nonetheless his evidence did support the proposition that long-term indeterminate detention per se ran the real risk of causing psychiatric injury. Retired Air Marshal Ray Funnell 1054 Mr Ray Funnell was a member of IDAG from its inception in early 2001. He continued in that role until after the applicant’s release from immigration detention at Baxter. The process within IDAG was that reports and recommendations by individual members or subgroups of IDAG would not become the recommendations of IDAG until those recommendations had been approved and adopted by the whole group. 1055 In 2001 he visited Curtin. He visited again after it reopened in 2010. By then, Curtin was a different detention facility. It was larger, it was set up differently and it was managed differently. Detainees were involved in a large aquaculture project. They were growing their own vegetables. They were doing their own landscaping and doing volunteer work in Derby. There were sporting events. The position was a vast improvement from 2001. Mr Funnell could not recall the category of detainees placed in Curtin after it reopened in 2010. 1056 Mr Funnell visited Baxter on a number of occasions. The first visit was in April 2002 before Baxter commenced operation. Like Professor Minas, he was favourably impressed by Baxter on this visit. However, he had concerns about the Management Unit. He felt the rooms were unsuited to housing detainees who were distressed and in danger of self-harm or suicide. IDAG recommended to the Minister that such detainees be placed in quarantine rooms at the medical centre rather than the Management Unit. As early as March 2002 Mr Funnell had a concern about the capacity of detainees to communicate with activists outside the perimeter fencing of the detention centre. -- 210 of 647 -- [2025] SASC 59 Stanley J 207 1057 In June 2002 Mr Funnell drafted a letter for the chairman of IDAG, Mr Hodges, to send to the Minister addressing steps that the government might take to deal with the problem of long-term detainees who had been judged not to be refugees but for whom there was no place to resettle. At an early stage IDAG considered that any person who had been in detention for more than 90 days was classified as a long-term detainee. Ninety days was considered appropriate in that it represented a sufficient time for the department to make a decision in relation to the individual’s application for asylum. IDAG was proposing to the Minister that these detainees could be placed into community care under certain criteria and conditions. The Minister’s response to this recommendation was unreceptive. 1058 IDAG was also concerned with providing detainees with greater autonomy in detention, particularly in the case of families where it was thought important that the parents be able to make decisions in relation to their children. 1059 IDAG was of the view that the residential housing projects should have been adjusted to include fathers as well as mothers and children. DIMIA did not share this view. 1060 Mr Funnell next visited Baxter in July 2002. He had high hopes for the use of Baxter as a purpose-built immigration detention facility. It lacked the confronting image of razor or barbed wire fencing. He accepts that Baxter was designed so that detainees would not be able to see or hear activists who approached the perimeter fencing. At that time he considered this a positive feature of Baxter’s design. Following his visit a query was raised with DIMIA about the need for dynamic activities to prevent detainees being bored. This was a recurring theme in IDAG’s work. 1061 Mr Funnell next visited Baxter in September 2002. By then the centre had commenced operation. He considered that the centre had bedded down well. He noted the lack of external views from the compounds. It was suggested that mesh might be used to open the view from the compounds. IDAG recommended that ACM organise excursions for adult male detainees. IDAG considered that excursions and meaningful activities were important to the maintenance of the mental health of detainees. Mr Funnell accepted that eligibility for excursions would depend on a security assessment. He also accepted there was a gym which was popular with men and women. 1062 IDAG wanted research undertaken into the effect of long-term detention upon the mental health of detainees. Even without having conducted this research IDAG was concerned that the long-term detention of detainees in a harsh and foreign environment would have a deleterious effect. IDAG’s work was directed to ameliorating that effect. The Minister was not agreeable to funding a long-term academic project in relation to the effect of long-term detention on the mental health of detainees as it was expected that such research would only confirm that immigration detention is a risk factor to mental health. -- 211 of 647 -- [2025] SASC 59 Stanley J 208 1063 IDAG considered that if detainees were happier they would be more easily managed. IDAG recommended the establishment of a Health Advisory Panel to monitor the health services being provided to detainees by the service provider. As discussed earlier, it took a long time for this to be established. 1064 Like Professor Minas, Mr Funnell accepted that by September 2002 IDAG had moved from its previously held position of not segregating difficult cases. From this point onwards IDAG recommended that there be established, as a matter of urgency, a separate facility for violent, non-compliant detainees who required the equivalent of correctional detention. It was considered that one of the compounds of Baxter should be used for this purpose. DIMIA advised IDAG that this was being done following the fires.498 IDAG was briefed on the proposed installation of hardened transportable buildings for compounds in Baxter.499 By the time of the subgroup’s visit to Baxter in January 2003 this had not occurred and the subgroup again recommended DIMIA and ACM should do so. 1065 After the September 2002 visit Mr Funnell prepared a report for IDAG on the situation at Baxter recommending a program of excursions be developed for adult detainees, but it appears the report was not endorsed by IDAG at its meeting in October 2002 in the absence of Mr Funnell. 1066 Mr Funnell next visited Baxter in mid-January 2003 shortly after the fires which had occurred in late December 2002. On 10 January 2003 before the visit there was a teleconference during which Mr Funnell was briefed on the situation at Baxter following the fires and the concerns regarding further disturbances at Easter. Following this January visit Mr Funnell drafted a report dated 22 January 2003 which he provided to Professor Minas and Mr Aristotle. That draft was revised and, once agreed by the subgroup, presented to IDAG. As I discussed in Professor Minas evidence, the report was highly critical of ACM and what Mr Funnell viewed as an overemphasis on physical security in the operation and structure of Baxter. He said Baxter could have provided an excellent environment for those being held in administrative detention but that was not being achieved. As a result, the subgroup considered that the sooner ACM was replaced by a new service provider the better. Like Professor Minas, Mr Funnell gave evidence that the terms of the contract between DIMIA and ACM made security a paramount concern. 1067 Mr Funnell accepted that the underlying assumption of the ACM contract and the detention standards was that the detainee population would be compliant. But by early 2002 it was apparent that the complex nature of detainees’ cases together with increasing non-compliance made it difficult to manage detainees in sub- optimal facilities. A design feature of Baxter was the creation of different, smaller compounds which allowed securing smaller groups in different compounds to make management easier. While this was canvassed in internal DIMIA 498 Exhibit A153 p 191 499 Exhibit A153 p 193. -- 212 of 647 -- [2025] SASC 59 Stanley J 209 documents, Mr Funnell has no recollection of IDAG considering this to be a design feature of Baxter. On the contrary, IDAG became concerned about the obstacles to free movement of detainees within Baxter. 1068 As has already been discussed in Professor Minas’ evidence, Mr Funnell described the activities program at Baxter as being essentially a sham. This was because there was so little utilisation by detainees of the activities offered. By comparison with other detention centres, Mr Funnell considered that Baxter was eerie due to the lack of movement in and around the compound. Detainees stayed in their rooms. DSOs stayed at their stations. He noted that there may have been more human activity evident in the compounds on his previous visit. He thought insufficient effort was being made by ACM personnel to engage detainees by walking around the compounds and talking with them to find out what was going on and what was disturbing them. This was in contrast to the local DIMIA manager, Mr Wallis, who was out in the compounds talking to detainees. Mr Funnell was also concerned about the ability of the ACM manager at Baxter to frustrate the efforts of Mr Wallis. 1069 Mr Funnell visited Baxter again on 31 July and 1 August 2003. He formed the general impression of a calm and settled environment. On 31 July he visited every compound and it was noted that the mood and morale of detainees was good, including in the high risk compound.500 Changes had occurred for the better but had not gone far enough. He considered there was still an overemphasis on security but he hoped that this emphasis might change with a new set of detention principles applicable to the new contractor. Nonetheless, compounds were still fully enclosed, detainees had very little freedom of movement within the facility, excursions were infrequent, and the authority of the onsite DIMIA manager was still excessively circumscribed. Still, Mr Funnell had a much more favourable view of Baxter in July 2003 than he had formed in January 2003. He rejected the suggestion that the explanation for the unfavourable impression formed in January 2003, by comparison with the favourable impressions formed in September 2002 and July 2003, was the fires in late December 2002 and their aftermath. He did not resile from his criticism of ACM’s management at that time.501 1070 Mr Funnell undertook a further visit to Baxter in December 2003. By December 2003 the fear that had existed at the time of the fires had settled down and detainees were generally calm, if frustrated and despondent. He thought that detainees had finally recognised that disruptive and destructive behaviour did not serve their interest and was ultimately futile. There was a proposal to construct a sporting oval at Baxter. Mr Funnell said IDAG supported the proposal. He thought it would be a positive benefit to detainees and the atmosphere at Baxter generally. Neither he nor IDAG considered it posed any security threat. By this time the compounds had been opened up so that the views of the surrounding 500 Exhibit 1.3TP159. 501 T 4499-4501. -- 213 of 647 -- [2025] SASC 59 Stanley J 210 countryside were no longer obscured. He accepted this change was a result of the improved atmosphere within Baxter.502 1071 A case management model was being tested at Baxter at this time. Case managers would speak to detainees. They were involved in managing each detainee’s case for asylum in Australia. This engagement with detainees allowed them to assess how they were living their life in detention. IDAG observed that some detainees would respond favourably because of case management, but there would be a core of detainees who would not. The focus of case management needed to be counselling detainees regarding their removal options503. 1072 By December 2004 IDAG members visiting Baxter thought that security procedures at the centre appeared to be poor. They noted that there were too many people passing through without appropriate clearance. 1073 Mr Funnell’s experience was that there were often diametrically opposed views of particular events depending on whether you were talking to detainees or DIMIA and ACM staff. 1074 There was ongoing discussion between IDAG and DIMIA about the difficulties of managing the detainee population because of those factors I mentioned earlier when discussing Professor Minas’ evidence. These are the length of time they had spent in detention, their growing certainty that they would not get a visa, and the realisation that they came from countries where removal, while not impossible, was difficult and it was expected that if it did occur, it would not occur quickly. These were the characteristics shared by those detainees engaged in protests, arson and group self-harm, including hunger strikes. That was not necessarily a view shared by Mr Funnell. However, DIMIA officials expressed the view that the risk of self-harming amongst this group was more likely because of an assumption that such behaviour would assist in getting what the detainees wanted. 1075 IDAG’s primary concern was that there be an appropriate environment for those in administrative detention. At the time of the visit in September 2002 Mr Funnell still had a favourable view of ACM’s management of Baxter, albeit he thought there was room for improvement. That had changed by the visit in January 2003. While Mr Funnell accepted that following the fires in December 2002 security needed to increase, he considered that when he visited Baxter in January 2003 there was an overemphasis on security. 1076 Mr Funnell considered that the performance of ACM deteriorated after they failed to secure a renewal of their contract with DIMIA. 1077 Mr Funnell identified a number of features of inappropriate management by ACM. They included the claustrophobic nature of the enclosed compounds which 502 T 4503. 503 Exhibit A153 p 197. -- 214 of 647 -- [2025] SASC 59 Stanley J 211 the sub-group had recommended should be rectified by the use of mesh instead of metal panels, but this had not occurred by January 2003. However, he accepts that the sub-group’s recommendation may not have been adopted by IDAG before the January 2003 visit and that the enclosed nature of the compound was a design feature incorporated in Baxter’s construction, a feature not within the control of ACM. 1078 A further feature of inappropriate ACM management identified by Mr Funnell was the program of activities which he described in his report of 22 January 2003 as a sham. An example of this was the gym which appeared not to be utilised. He explained that this description of the program of activities reflected the fact that for one reason or another detainees were not attending these activities, and that management discouraged the use of facilities such as the gym by requiring detainees who wished to attend the gym to travel by bus. He could not recall whether he made any enquiries to ascertain why the use of the gym had declined since he observed its popularity in September 2002. He rejected the suggestion that the explanation for the observations he made during the January 2003 visit was the increased security measures that had been adopted in the wake of the fires that occurred three weeks earlier.504 1079 Further examples of inappropriate ACM management identified by Mr Funnell were the restrictions on movement by detainees between compounds and the lack of interaction between DSOs and detainees. Mr Funnell accepted that these features observed in January 2003 might have been explained by the changed atmosphere in Baxter in the immediate aftermath of the fires.505 1080 Mr Funnell also accepted that his observation that ACM management at Baxter appeared to want to see out the remaining term of its contract with a minimum of expenditure is merely an impression he formed without recourse to any evidence of actual expenditure. 1081 I formed a generally favourable view of Mr Funnell. I consider he did his best to assist the Court but he felt an understandable need to defend the work of IDAG and his contribution to it. Like every witness in this trial who is giving evidence of events of 15 to 20 years ago, he sometimes struggled to remember the specifics of events as they occurred and views that were held, at least, without recourse to documents that refreshed his memory. Like Professor Minas many of the conclusions and opinions he formed were based on the acceptance of information and opinions provided to him by others in circumstances where there was a limited, if any, capacity to test that information and those opinions. Much of what he was told was plainly hearsay. I do not say that as a criticism of the methodology adopted by him and the other members of IDAG in undertaking their work. I accept that in the course of his visits to Baxter he spoke with DIMIA and ACM staff as well as detainees. He recognised the inconsistency that sometimes 504 T 4479. 505 T 4488, 4490. -- 215 of 647 -- [2025] SASC 59 Stanley J 212 existed in their viewpoints and made allowance for this. I accept the evidence of his observations, but I do not necessarily accept all the conclusions he formed any more than I accept the opinions of Professor Minas. I will refer shortly to aspects of his evidence I do not accept. Importantly, like Professor Minas, Mr Funnell was called as a witness in support of the unpleaded systems case. He neither spoke with nor observed the applicant. Accordingly, his evidence was of limited relevance in considering the applicant’s negligence action. Consideration of IDAG Witnesses 1082 IDAG is not expressly referred to in 8ASoC. However, the applicant pleads a duty owed by the Commonwealth to act on expert advice in relation to recommendations about the premises and manner of detention at Baxter506, and a breach of that duty in failing to act upon the advice of mental health experts.507 It is unclear whether the plea implies that IDAG was a mental health expert. Clearly, Professor Minas is a psychiatrist. In any event, the Minister was under no obligation to adopt or act on any recommendation made by IDAG. In fact, on a number of occasions, in the exercise of his or her discretion, the Minister did not do so. Further, the pleading fails to identify with any particularity, a specific failure of the Minister to act on a recommendation made by IDAG. What constituted an IDAG recommendation was not clearly defined. Certainly, there was a view that only a recommendation adopted by a full meeting of the IDAG was a recommendation carrying the authority of IDAG. In any event, recommendations made by IDAG as to how the physical infrastructure and the operation of Baxter could be improved do not establish the relevant standard of care to be observed by the Commonwealth. 1083 8ASoC makes no reference to the HAP. There is no direct allegation against the Commonwealth concerning the failure to establish the HAP. Accordingly, it is not relevant to the applicant’s claim or any liability on the part of the Commonwealth. In any event, the applicant has not established that the operation of a HAP would have improved any mental health condition of a detainee and, more particularly, the applicant. 1084 In my view, IDAG’s report of 22 January 2003 was unbalanced and failed to recognise the context of the circumstances that existed at the time of the IDAG visit. The visit occurred just over a fortnight after the fires which had caused extensive damage to the detention centre at Baxter. 1085 There was no recognition of the security clamp down that was in existence following the fires. There was also no appreciation that the design of the infrastructure was not the responsibility of ACM. Further, the criticism that the activities program was a “sham” was based upon the absence of any detainees in the gym when IDAG visited. They failed to recognise that this stood in stark contrast to observations made when Baxter had been visited by IDAG in 506 8ASoC [26.11]. 507 8ASoC [32.10.11]. -- 216 of 647 -- [2025] SASC 59 Stanley J 213 September 2002 and that the explanation for the lack of use of the gym was the changed security environment resulting from the fires and the apprehension of further attacks on the physical infrastructure, other detainees, and DIMIA or ACM personnel. 1086 Professor Minas said in his evidence that IDAG considered that long-term, indeterminate detention was a risk factor for mental health.508 This was apparently accepted by the Minister.509 However, long-term detention being a risk factor does not prove that all long-term detainees suffered psychiatric injury as a result. More importantly, it does not prove that the applicant did so. 1087 The visits by the IDAG subgroup provided very limited corroboration of the evidence of the applicant. I find that some detainees told IDAG they had a preference for their previous detention centres whether Woomera, Port Hedland or Curtin to Baxter. This was because they afforded greater freedom of movement within the particular detention centre. Some detainees complained of a lack of excursions and meaningful activities. However, there was no evidence that the applicant was amongst these detainees. Given the findings I have made about the reliability of the applicant’s evidence, I am not in a position to accept his evidence that these were particular problems for him. Even if I did, I am not satisfied that any of these factors contributed to any depressive symptoms beyond the contribution to a sense of depression from the mere fact of detention, the length and indeterminate nature of detention, the rejection of his appeals from the refusal of his application for a protection visa and his fear of deportation, both of himself and others. 1088 Professor Minas gave evidence that a substantial proportion of the Baxter detainee population were on antidepressants or anti-anxiety medication. However, this is not evidence that proves detainees at Baxter, or more particularly the applicant, were suffering from a diagnosable psychiatric injury. Dr Shroff said Endep was used at a non-therapeutic dosage which would assist with sleep problems. As will be seen, this view was shared by another witness, Dr Henderson. That did not necessarily prove that Endep was being prescribed to treat depression. Certainly not in the applicant’s case. 1089 While Professor Minas gave evidence that increasing freedom of movement within Baxter and the provision of visits, excursions and amenities, such as access to a gym, organised sports, visits and excursions might ameliorate the effects of long-term detention, he acknowledged that it was a matter for detainees whether they participated in such activities. Neither DIMIA, ACM or G4S could mandate participation. 1090 There is no connection between any IDAG recommendations and the applicant himself. The IDAG evidence is not relevant to the applicant. 508 T 4168-4169. 509 Exhibits A107, A153 at pp 573-574. -- 217 of 647 -- [2025] SASC 59 Stanley J 214 Reviews – Lay Witnesses Dr Michael Bollen 1091 Dr Michael Bollen is a retired medical practitioner. In 2001 he and his son, Dr Christopher Bollen, were employees of BMP Health Consulting Pty Ltd (BMP). BMP conducted the business of health care management consulting. It reviewed a wide range of health and health related services and provided advice in relation to improving their performance. In 2001 BMP was retained by DIMIA to conduct a review of health services at immigration detention centres and processing centres. The review was conducted in October and November 2001 and the report (the Bollen report) was provided in December 2001.510 In the course of preparing the report, Dr Michael Bollen visited Curtin Detention Centre. 1092 One of the terms of reference of the Bollen Report was to determine whether DIMIA had made the right judgments about the level of health care available within the detention centre, vis-à-vis what could be accessed outside the centre and to clarify what that level would mean in practice. Dr Bollen understood that to involve a comparison between the level of health care available within Curtin compared with the level of health care available in Derby and the surrounding area. 1093 In his report, Dr Bollen found that doctors working in medical centres in immigration detention relied upon nurses to triage detainees who were seeking health care. Given the disproportionate prevalence of mental illness among long-term detainees, Dr Bollen considered a well-trained psychiatric nurse was required in order to make the provision of health care more proficient. 1094 When Dr Bollen visited Curtin, the medical centre was in a state of disarray. There were no doors on the centre. There was a process of rebuilding taking place and he recommended that once that had been completed there should be a further inspection of the facilities. 1095 He considered that there was a problem with recruitment and retention of medical staff at remote locations like Curtin. This reflected the experience of most rural communities. Dr Bollen noted that video-conferencing was being trialled for psychiatric diagnosis and management given the difficulty of getting qualified psychiatrists to visit Curtin and other remote locations. However he recommended that a range of specialist health care consultants should be engaged and funded to provide readily available telephone advice to centre medical staff. 1096 Dr Bollen recommended that incentives would need to be offered to attract and retain medical staff at remote locations such as Curtin. Those incentives would include housing, opportunities for spousal employment, significant funding arrangements and opportunities for children. 510 Exhibit A151. -- 218 of 647 -- [2025] SASC 59 Stanley J 215 1097 In the course of preparing his report Dr Bollen interviewed DIMIA and ACM staff at each of the detention centres. He also reviewed documents. 1098 I accept Dr Bollen’s evidence as reliable, but it was confined to his assessment of the medical needs of Curtin. There is no evidence that he ever saw or spoke to the applicant at Curtin. He did not visit Baxter. Accordingly, his evidence was of very little assistance in making findings of fact in relation to the applicant’s claim. Professor Richard Harding 1099 Professor Richard Harding is a retired academic whose field of study is law, criminology and penology. From 2000 to 2008 he was the Inspector of Custodial Services for Western Australia. He did not give evidence in the capacity of an expert. 1100 On 25 June 2001 he accompanied Dr Sev Ozdowski and a team from the Human Rights and Equal Opportunities Commission (HREOC) on a visit to Curtin. 1101 Professor Harding spent about nine hours at Curtin speaking with detainees, and DIMIA and ACM officers, including Mr Wallis. He made various observations and heard complaints from detainees concerning the conditions of their detention. 1102 He said his visit left him with an unfavourable opinion of those conditions. Subsequent to his visit he made speeches criticising those conditions and advocated for changes to those conditions. 1103 Professor Harding considered that the appearance of Curtin was consistent with that of a minimum security facility in the scheme of corrections. The perimeter fencing was not topped with razor wire. There were no high concrete walls. 1104 Before Professor Harding arrived at Curtin, detainees had been informed of the visit of the HREOC team. They were gathering upon their arrival. 1105 During the morning, Professor Harding saw a detainee climb a tree, put a rope around his neck and demand to speak to Dr Ozdowski. Many other detainees were shouting. He thought they were trying to draw his attention to conditions in Curtin. 1106 During their visit, Dr Ozdowski and Professor Harding were accompanied by Grant Cummins, the ACM centre manager, Chris Birtwhistle, the ACM operations manager, Greg Wallis, the DIMIA manager, and his deputy, Terrina Willie. However, there were times when Professor Harding was able to walk through the detention centre unaccompanied and interact freely with detainees. He said he spoke to about 200 detainees. They were not aggressive. -- 219 of 647 -- [2025] SASC 59 Stanley J 216 1107 Professor Harding described Curtin as a sprawling facility consisting of a hotch-potch of dongas and huts, including staff accommodation. The outdoor areas were exposed with minimal shade, with some trees and a few small shade-cloth areas. Mr Cummins provided the HREOC team and Professor Harding with a briefing paper. Professor Harding was informed the staff operated on a fly-in / fly-out basis. Custodial staff were flown to the centre for six-week rotations. Each staff member worked a 12-hour shift, six days on and one off, for a period of 44 days. Generally, custodial staff were drawn from both correctional and detention backgrounds. 1108 Professor Harding heard DSOs address detainees by their number rather than their name. The accommodation dongas had signs identifying their occupants by number rather than name. However, he was told that the staff were making some efforts to address detainees by name rather than number. 1109 During this visit, Professor Harding entered a crowded donga occupied by Muslim detainees. Before entering, he removed his shoes. He said this was very appreciated, but the effect was spoiled by DSOs following him in tramping through with their boots. He was told by a detainee that DSOs walking with their boots through dongas where Muslims had to pray was very distressing. 1110 Professor Harding considered the atmosphere was highly polarised between DSOs and detainees. However, he did not appear to have given any consideration to the general circumstances in Curtin at the time and the difficulty of controlling a non-compliant detainee population. He accepted that a difference between a prisoner and an immigration detainee is that the prisoner has an incentive to remain compliant in order to maintain a possible release date, unlike a detainee who is detained indefinitely and has no incentive of that kind.511 After a riot in a prison it is expected that security levels will be tightened pending an investigation to identify the perpetrators. That may result in prisoners who had no involvement suffering the consequences. That is because the increase in security levels is necessary to protect the safety of everyone by reasserting control of the prison. 1111 Professor Harding said after the riots in April and June of 2001 the management at Curtin had to reassess the assumption that the Curtin population would be compliant.512 The system of immigration detention denied the opportunity to reduce frustrations and tensions in a prison environment by releasing prisoners. There was no discretion to permit the release of detainees except where they were granted a visa. 1112 Professor Harding visited the medical centre at Curtin which he found very basic. Medical services were limited and there was inadequate privacy. There was no purpose-built dental surgery and limited optical and ophthalmological services. Dental services were provided every six weeks and were confined to tooth 511 T 3510. 512 T 3522-3524. -- 220 of 647 -- [2025] SASC 59 Stanley J 217 removal. Professor Harding said that a DIMIA official justified the poor medical services provided at Curtin by saying that, as medical and dental services were sparse for the local indigenous population in the Derby and Fitzroy Valley area, it was a matter of Commonwealth policy that they should be no better for detainees. Further, Professor Harding insisted that a DIMIA or ACM officer stated that it was not politically acceptable to create a Rolls Royce health system in Curtin while the health facilities and amenities in Derby and the Fitzroy Valley were pretty basic.513 1113 Professor Harding was shown an observation area which had three very basic cells with a mattress on the floor. He said they were filthy and there were no toilet or shower facilities. They were mostly used for management problems and “at risk” detainees. He was told that there was a more secure 10 cell unit elsewhere to keep hunger strikers and detainees exhibiting behavioural problems under observation. 1114 Professor Harding saw western-style toilets which apparently were predominantly being used by detainees who were unfamiliar with such facilities, as they were accustomed to squat toilets. The toilets were in a poor hygienic condition. Some of them were broken. There were showers but some of them were also broken. Professor Harding was told by DIMIA and ACM officers that detainees deliberately made the toilets unusable. 1115 He thought there was a paucity of recreational facilities. He could not identify any designated recreation area such as a soccer field or basketball court. He could not find a library. He did not see a playground for children of the sort depicted in photographs attached to the briefing paper. 1116 Professor Harding described an education area focused on English language learning. He was unimpressed by the quality of the teaching. He thought much of the children’s time was occupied in revision and homework. He remarked to Mr Wallis that the contractors were being paid for services that they were not delivering. Mr Wallis responded stating that there was really little or nothing that could be done when services were being delivered in remote locations. 1117 Professor Harding accepted that he had limited opportunity to view the teaching being provided to children. He visited the classroom twice that day for periods of up to 30 minutes. He has no qualifications as a primary or high school teacher or a teacher of English as a second language. He acknowledged that his view was impressionistic.514 1118 Professor Harding thought communication with the outside world was extremely difficult as there were four telephones for a population of 849 detainees. 513 T 3489. 514 T 3492-3493. -- 221 of 647 -- [2025] SASC 59 Stanley J 218 1119 Professor Harding thought there was terrible overcrowding. He visited one donga that had 18 people living in it. In another, parents had to sleep on the floor. 1120 There was a shop, but it was small and open for only two and half hours each week. Only five or six people were let in at any one time. There was minimal stock. 1121 Detainees complained to Professor Harding that separation detention went on much too long; the dongas were grossly overcrowded; the toilets and washing machines were often broken; dental services were primitive; and there were no optometry services. 1122 Professor Harding expressed the view that administrative detention is intended to be less onerous than criminal detention, but the atmosphere at Curtin was repressive, with many distressed and emotionally vulnerable people herded together in the middle of nowhere without adequate support. 1123 Professor Harding’s evidence was criticised by the Commonwealth and ACM on the basis that he had not previously, or for that matter since, been to Curtin; uncritically accepted allegations made by detainees; regarded explanations and statements of DIMIA or ACM personnel with scepticism; formed opinions on the basis of anecdote and brief observation, taken out of context; did not make allowance for the fact that, by reason of the HREOC visit, this was not a normal day at Curtin; did not actually speak to 200 detainees, but rather people who purported to speak on behalf of large groups of detainees; and was relying on his memory of events that occurred more than 20 years ago. 1124 Professor Harding said he was told by a detainee that after making complaints to him the detainee was threatened by Mr Wallis who said: “You bastard, I’ll get you for this”. The professor said he confronted Mr Wallis about this allegation and he responded by saying that it was a joke. It was put to Professor Harding that this conversation with Mr Wallis had not occurred515 and a submission was put that I should reject his evidence in this regard. I do not accept this submission. There is no reason to find that Professor Harding concocted this conversation. While I accept that his experience in visiting Curtin had left Professor Harding disturbed and concerned, which prompted his subsequent advocacy for changes to conditions there, I cannot accept that he would fabricate the account he gave of this incident. It follows that I reject Mr Wallis’ evidence denying the occurrence of this conversation. 1125 Professor Harding reported a remark made by a DSO in relation to detainees climbing trees and making demands, saying that if ACM agreed to such demands they would have a tree full of such people. Professor Harding considered this reflected a derogatory, disrespectful attitude towards detainees. Yet, there is no 515 T 3485-3486. -- 222 of 647 -- [2025] SASC 59 Stanley J 219 evidence he gave any consideration to whether that reflected an aberrant individual attitude rather than a reflection of general policy and practice. 1126 Professor Harding noted that claims made to him about the crowded nature of the accommodation and the filthy state of the observation cells were confirmed by visual inspection. He said he tried to adopt an objective view of the situation.516 He considered the facilities available at the medical centre to be unacceptable. He felt able to form such a judgment, notwithstanding that he had no medical qualifications, on the basis of his experience as a prison inspector.517 1127 Professor Harding had no recollection of being told, by way of an explanation for members of the consultative committee being handpicked, that an election of certain detainees to the consultative committee caused friction amongst detainees.518 1128 Professor Harding denied being hostile to a system of mandatory detention of unauthorised boat arrivals. He agreed that a system for controlling refugee immigration and for holding refugees in some kind of detention system while their claims are processed, is acceptable so long as their cases were dealt with properly and accountably.519 1129 He accepted that in various media appearances in the years following his visit to Curtin he has described the facilities there as being like a concentration camp or gulag and that detainees were not being treated like criminals, but like vermin. He said that this last remark was a spontaneous reaction during the course of an interview when he was shown a video of a DSO saying that he wanted to “fucking squirt” detainees in their face.520 He said his remark was a product of his shocked reaction to what he saw and heard.521 He accepted he also gave a media interview in which he referenced the conversation with Mr Wallis about “getting” a detainee who had made a complaint to Professor Harding, saying that if that had occurred in the prison system he would have charged Mr Wallis with a criminal offence. He acknowledged that he failed to repeat Mr Wallis’ claim to him that this was said as a joke.522 He explained these references as being grounded in the fact that asylum seekers were being detained in a harsh, remote location where it was difficult to communicate with the outside world and there was a lack of rights and very poor conditions. He referred to the fact, that notwithstanding these media 516 T 3484. 517 T 3482. 518 T 3495; The detainee consultative committee was a meeting of detainees and management where detainees could raise issues. I address the work of the detainee consultative committee in Mr Burns’ evidence. 519 T 3496. 520 T 3496-3497. 521 T 3527. 522 T 3499-3500. -- 223 of 647 -- [2025] SASC 59 Stanley J 220 statements, he was retained by the Commonwealth government in 2006 and 2007 to advise the government on immigration detention conditions.523 1130 Professor Harding agreed that one of the challenges for those managing immigration detention centres in trying to secure compliance from the detainee population, is that unlike prisoners in gaol, detainees had no idea of the length of their period of detention. This made the task of managing them more difficult. He conceded that detainees’ frustration may have been exacerbated by promises made to them by people smugglers that they would only be in immigration detention for a short period of time.524 1131 Professor Harding said that a problem for correctional administrators is predicting with reasonable accuracy the numbers and characteristics of future prison populations so as to determine infrastructure requirements. He accepted that if there was a 400 percent increase in the year to 30 June 2000 in the number of asylum seekers arriving by boat, that would be unprecedented, not only in relation to detention centres but for correctional services as well. The prison system would not be able to cope with such an increase. Temporary measures would be required to address the problem. Other initiatives would be required such as releasing prisoners on bail or on parole. However, such measures were unavailable to those managing immigration detention centres given the policy of mandatory detention while detainees brought challenges to the rejection of claims to asylum. Accepting that this surge in arrivals led to the reopening of Curtin in 1999 after it had been decommissioned in 1995, that provided some explanation for the nature and state of the accommodation observed by Professor Harding. He accepted that his observations represented a snapshot.525 1132 Professor Harding referred to the Woolf Report in relation to prison riots in the UK which identified the cause of those riots being found in failures in management in relation to physical conditions, program conditions and general equity in dealing with the prison population. 1133 Professor Harding said that the conduct of guards in conducting searches and leaving a cell in a mess was unacceptable and only provoked resentment on the part of prisoners. However, he agreed that the level of freedom or the level of privileges which an individual prisoner in the correctional system has is a function of their security rating and the institution in which they are imprisoned.526 Prison administrations use intelligence from various sources to identify what is happening or may happen within the prison population and depending on the terms of the intelligence that might result in random unannounced searches of cells for contraband.527 He agreed that the element of surprise in conducting a search is 523 T 3500-3501. 524 T 3511. 525 T 3516-3517. 526 T 3505.17-21. 527 T 3509.12-21. -- 224 of 647 -- [2025] SASC 59 Stanley J 221 essential.528 He considered there is no justification for group punishment in prisons, but lockdowns which are not considered punishment actually reduce the amenity of all prisoners whether they have done something wrong or not. In the prison system this is not characterised as punishment, but as stabilising the situation.529 1134 I consider that Professor Harding’s evidence provides a snapshot of the situation at Curtin as he found it on 25 June 2001. Plainly, he formed a negative view of the conditions that existed at Curtin at that time. That led to his subsequent advocacy for reform of the system of mandatory detention as it operated at that time. Some of that advocacy lacked the objectivity that would have been expected of an expert witness. However, Professor Harding was not called as an expert witness. Nonetheless, I am generally prepared to accept his evidence of the observations he made of the conditions at Curtin in June 2001. I also accept that his observations and views were informed by his experience as the Inspector of Prisons in Western Australia, a position he had occupied for about one year at the time of his visit to Curtin. However, I consider some of his views failed to make due allowance for some of the circumstances that had produced the situation at Curtin at that time, namely, the unprecedented increase in the numbers of detainees subject to the regime of mandatory detention in 1999/2000. 1135 I also accept in broad, the criticisms made of Professor Harding’s evidence by the Commonwealth and supported by ACM. But those criticisms are germane to Professor Harding’s views and opinions rather than his observations. Broadly, I am prepared to accept the reliability of those observations. However, they do not really advance the applicant’s case. Professor Harding’s observations are confined to Curtin and were made some 15 months prior to the applicant’s transfer to Baxter. They are confined to a single visit only for a day. As he acknowledged, being part of the HREOC delegation may have influenced the behaviour of detainees in terms of what he heard and observed. There is no evidence of Professor Harding observing, or speaking with, the applicant. Michael Palmer 1136 Mr Michael Palmer is a distinguished former Commissioner of the AFP and, before that, Commissioner of the Northern Territory Police, Fire and Emergency Services Agency. He worked in policing for nearly 40 years. After his retirement from policing he held the position of Inspector of Transport Security with the Commonwealth government, a position created in the wake of the Bali bombings. He has extensive experience in security and prisons. 1137 In 2005 he was appointed by the Minister for Immigration and Multicultural and Indigenous Affairs to conduct an inquiry into the circumstances of the 528 T 3509.22-27. 529 T 3450-3451. -- 225 of 647 -- [2025] SASC 59 Stanley J 222 immigration detention of a mentally ill Australian citizen, Cornelia Rau. Ms Rau was detained at Baxter for approximately four months. 1138 Mr Palmer conducted the inquiry with the assistance of a number of other persons including a psychiatrist, Dr Chaplow. 1139 I excluded the parts of the report that addressed the detention and treatment of Ms Rau. I have confined my consideration to the aspects of the report concerned with Baxter. The report’s consideration of the situation at Baxter was necessarily confined to the G4S period. 1140 In addition to addressing the circumstances that resulted in Ms Rau’s unlawful detention, Mr Palmer’s report contains observations, general findings, opinions and recommendations in relation to the conditions of operation of immigration detention at Baxter. Substantial parts of the report identify failures in the diagnosis and treatment of mental ill health suffered by detainees. The report is critical of DIMIA and G4S. The report was admitted530 as a business record of the Commonwealth pursuant to s 53 of the Evidence Act 1929 (SA) (Evidence Act). Accordingly, in determining the evidentiary weight, if any, to be afforded to the report, the Court must apply the rubric enshrined in s 53(3) of the Evidence Act, which provides: For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters. The relevant findings of Mr Palmer’s report were: 1. The detainee population required a much higher level of mental health care than the Australian community. The infrequency of the consulting psychiatrist’s visits to Baxter constituted a serious shortcoming. Expert mental health opinion was that more frequent, regular visits – together with a sufficient number and structure of mental health-trained nurses, psychologists and primary practitioners who initially assess and triage for mental illness – would have allowed a more effective clinical system of care. 2. The lack of any focussed mechanism for external accountability and professional review of standards and arrangements for the delivery of health services was a significant omission in the arrangements entered into by DIMIA. 3. The infrastructure and operations at Baxter did not allow the Commonwealth’s policy expectations for the environment for immigration detainees to be realised. Structural modifications were 530 Subject to my ruling made 29 November 2021. The report was not admitted in full. -- 226 of 647 -- [2025] SASC 59 Stanley J 223 needed, and greater flexibility should have been allowed in the care and management of detainees and the treatment of problems associated with mental health. 4. The systems and processes at Baxter that derived from the detention services contract made it impossible to deliver the desired policy outcomes. The problems resulted from a mix of poor procedures and processes; an excessive focus on auditing compliance with performance measures that often provided little information about the outcomes actually being delivered; limited management flexibility; and lack of oversight by executive management in Canberra. 5. While detainees were critical of a number of aspects of life in Baxter, those interviewed by Mr Palmer did not complain of poor or malicious treatment. For them, the worst punishment was the open ended nature of detention and the fact of detention itself. Everything was done for them and they felt useless. 6. Baxter was built in a hurry to redress the problems of Woomera. It consisted of nine separate self-contained and secure residential compounds of various sizes, where the doors of the rooms opened onto a large grassy courtyard with shade structures and open areas for activities such as soccer and volleyball. Access to the steel fence was gained only through controlled gates. There was a smaller, more secure area called the Management Unit that accommodated up to 10 detainees and was designed to separate dangerous and disruptive detainees when necessary. 7. Each of the compounds at Baxter had a purpose. At the time of the report White compound was for single male detainees. Blue compound was for families, although it was also used to accommodate single males for their protection when they might be victimised by detainees in White compound and for accommodating single women. Red 1 was established in the first half of 2003 and used by G4S in early 2004 when it took over from ACM to provide a ‘step-down’ facility as an alternative to the Management Unit for less disruptive situations. It had a B-side and an A-side which had greater and lesser restrictions and which both opened onto an internal compound. 8. There had been violent episodes in which detainees had destroyed property, threatened other detainees, and engaged in attention-seeking behaviour, including self-harm. Such detainees could be a danger to themselves as well as to others, and their behaviour could prejudice the proper and peaceful operation of the facility. Until it was safe for them to return to their compound, they needed to be isolated from other detainees and supervised to ensure that they did not harm themselves. -- 227 of 647 -- [2025] SASC 59 Stanley J 224 The purpose of the Management Unit was to deal with such extreme situations and to contain disruptive or self-harming behaviour. 9. The Baxter facility was established from a low base and continued to evolve as G4S and DIMIA introduced improvements. The basic planning principles for Baxter changed because it was built to cope with a large number of detainees. As a consequence of the Commonwealth government’s immigration detention policy, the flood of unlawful immigrants became a trickle. Many of the compounds at Baxter were empty. The profile of detainees also changed, with many being long- term detainees. That presented challenges for DIMIA in attempting to adjust processes and procedures for health care and related services, and staff training to deal with the new environment. This was not always successful. 10. The location of Baxter, about 300 kilometres north of Adelaide and 10 kilometres south-west of Port Augusta in a semi-arid, remote location, presented difficulties for DIMIA and G4S. Nonetheless, efforts to establish an appropriate environment for detainees were made. Baxter, although confined, provided for detainees access to a gymnasium, an education centre and library, and a canteen, and, in every residential compound, unrestricted access to telephones with international dialling capacity. Detainees were also relatively free to move around the facility and visit detainees in other compounds. In addition, there were barbeque facilities and a large grassed area with shade structures in each compound. 11. The rooms were simple but clean; they were air-conditioned and heated and had their own facilities, with hot and cold running water. In each residential compound there was a dining room that catered for single sitting meals for all detainees in the compound. There was also a laundry, plus two recreation rooms with cable television, table tennis tables and pool tables. The officers’ station was staffed 24-hours a day, and there was a first aid station and multi-purpose room for interviews and meetings. 12. Baxter had a medical centre, and services were available onsite 24- hours a day, seven days a week. General practitioners, psychologists and counsellors were available every day, and arrangements existed for facilitating access to specialist medical care when necessary. As in the community, appointments had to be made for specialist services. A male general practitioner from Port Augusta was on call 24-hours a day, and a female general practitioner was also available. 13. Mr Palmer concluded that Baxter operations and initiatives were hampered by: -- 228 of 647 -- [2025] SASC 59 Stanley J 225 • poor procedures and processes; • an excessive focus on auditing compliance, with misdirected performance measures – to the exclusion of even noticing the tragic outcomes that were actually being delivered; • a lack of executive management oversight and concern from Canberra; • convoluted and ineffective health care arrangements; • inadequate and inappropriate training; • a lack of clarity about responsibilities and accountabilities; • ineffective and unclear clinical pathways to external specialist health services; and • a lack of understanding of detainees’ needs. 14. In 2005 there was an enduring tension between containment and care at Baxter with the emphasis on containment. Mr Palmer thought this unsurprising when given some 60 per cent of the former ACM staff were absorbed by G4S. This slowed the process of cultural change. 15. Baxter was a correction style facility. It was constructed to remedy the detention problems experienced at Woomera. Its appearance was severe, surrounded by a strong, high steel picket fence inside which was a perimeter fence topped with electrified wires. It looked like a prison. In many ways the activities that occurred in Baxter were similar to those in any Australian correctional institution. It was effective in its purpose of containment. 16. The detention services contract provided that detainees should be able to access a level, standard and timeliness of health services broadly consistent with that available in the Australian community, taking into account the special needs of the detainee population. Mr Palmer considered that this failed to recognise that the detainee population had specific needs that differentiated it from the broader Australian community, particularly in relation to mental health care. 17. The detention environment at Baxter had the potential to adversely affect the health and welfare of detainees. The significantly higher incidence of mental illness among the detainee population attested to this. 18. At Baxter Red 1 and the Management Unit were for behaviour management. The objective was to manage the behaviour and move -- 229 of 647 -- [2025] SASC 59 Stanley J 226 the detainee back to their compound as soon as they no longer presented a threat to others or themselves. These were special facilities and the arrangements for them differed from the normal living arrangements in Blue and White compounds. A behaviour management plan was prepared for detainees in Red 1 and the Management Unit. It specified required behaviour and the privileges available to the detainee as they progressed through a weekly regime. Those operating procedures were prepared when the contract with G4S was signed in February 2004 and reflected strict correctional perspectives, attitudes and rules. 19. During 2004 G4S and DIMIA realised that the rigid, step-by-step behaviour management protocols were becoming increasingly inappropriate and were potentially damaging to an immigration detention environment. Some of the requirements defied common sense: for example, in week 1 a detainee was allowed access to books; in the following week the detainee was allowed to have reading glasses. This was a demonstration of the focus on process at the expense of common sense. 20. When it became clear that use of the Management Unit was leading to undesirable outcomes, contrary to policy objectives and defying common sense, the G4S general manager at Baxter issued a directive to G4S staff that no detainee was to be placed in the Management Unit without his personal signed authority. This resulted in the Management Unit remaining empty most of the time. 21. There was a lack of clear responsibility for case management and a lack of provision for executive management oversight. No case manager was assigned continuous responsibility for a particular detainee or group of detainees. Case managers were changed with apparently little consideration of what impact this might have had on detainees. There was no cohesive ‘cradle-to-grave’ case management to provide continuity and ensure consistency and dignity in the way detainees were treated. 22. The Management Unit had 10 single rooms, a dining and recreation room, and a television room. The rooms were air-conditioned and heated and had their own ensuites, but they were bare facilities that provided an environment where a detainee would not find assistance from their surroundings if they were contemplating self-harm. Consequently, there were no curtains or shower curtains, and there was continuous video surveillance of the rooms, with the camera angled such that a person showering or using the toilet could not be seen. Further, there was no complete view into the shower or the toilet from the window. -- 230 of 647 -- [2025] SASC 59 Stanley J 227 23. Arrangements for checking on detainees in Red 1 and the Management Unit were consistent with requirements. There was no evidence of improper behaviour by DSOs. 24. The Management Unit was not a suitable place in which to confine a person in detention because it did not meet the Muirhead standards established by the Royal Commission into Aboriginal Deaths in Custody. There was inadequate opportunity for interaction between people accommodated there and the detention environment was non- therapeutic in nature. 25. The structural arrangements at Baxter were more suited to a correctional regime. It became increasingly obvious that the facilities were inadequate for dealing effectively with the challenges presented by immigration detention and the requisite nature of the detention environment. 26. While it was true that within the compounds detainees could not see the horizon, when they became free to move between compounds that was no longer the case. 27. At Baxter in 2005 medical and psychiatric services for the detainee population were provided by three subcontractors to G4S: IHMS providing nursing and psychiatric services; PSS providing psychology and counselling services; and Carlton Medical Service providing general practitioner services under subcontract to IHMS. The psychiatric service was provided by a consultant psychiatrist to IHMS on a fly-in, fly-out basis. 28. Interpersonal relationships at Baxter between DIMIA staff, G4S, IHMS and PSS were good. The psychiatrist, who was based in New South Wales, attended Baxter less frequently than the contractual arrangement of every six weeks. He visited between six and eight weeks, with the length of time between visits varying significantly. The shortest gap was four weeks and the longest 14 weeks. 29. Given the higher levels of morbidity among detainees, provision of mental health services at Baxter was inadequate. 30. Baxter was not geared to the assessment and treatment of the mentally ill. Its remote location made access by clinicians and support services very difficult. People needing assessment and treatment were referred to Glenside. 31. Baxter was unsatisfactory for accommodating the recovery needs of people with mental illness who might not have needed inpatient care or who returned from inpatient assessment and treatment but needed -- 231 of 647 -- [2025] SASC 59 Stanley J 228 follow up and support. There was no suitable place at Baxter to promote and sustain the recovery of such detainees. 32. The detainee population was a needy cohort that required a much higher level of mental health care than that required by the Australian community as a whole. The infrequency of the consulting psychiatrist’s visits to Baxter was a serious shortcoming. The provision of psychiatric services was inadequate. As a consequence of a lack of continuity in psychiatric care, detainees at Baxter were vulnerable and exposed to a heightened risk of mental illness. 1141 The report contains a number of findings in relation to Baxter, particularly concerning its capacity to assess and treat the mental ill health of detainees. For example, the report found: Baxter is not geared to the assessment and treatment of the mentally ill. … Baxter was not planned to deal with the high level of morbidity that characterises detainee populations, and the current arrangements do not and can not facilitate the treatment and recovery of mentally ill people. 1142 These opinions are not, on Mr Palmer’s own admission, within his professional expertise or experience. I accept that these opinions must be informed either by the opinions of Dr Chaplow or some other person or persons. Dr Chaplow was not called to give evidence before me. 1143 Mr Palmer and his team interviewed DIMIA and G4S staff, contractors engaged by GSL, medical practitioners who visited Baxter, as well as people from advocacy groups and religious and non-profit organisations whose members visited Baxter. 1144 Mr Palmer’s findings were the product of the opinions of the medical practitioners with whom he spoke, interviews with staff and detainees at Baxter, as well as his own observations informed by his life experience. The detainees Mr Palmer spoke with did not complain of poor or malicious treatment by G4S officers. 1145 Mr Palmer found that the contract between DIMIA and G4S was very compliance driven and rigid with many quantitative measures that had to be satisfied, or G4S would be exposed to the risk of incurring penalties under the contractual provisions. He found this inhibited the capacity of G4S to exercise discretion and respond to actual events as they unfolded. 1146 It appeared to Mr Palmer that G4S were implementing improvements to Baxter. Some of the complaints Mr Palmer received were founded on misunderstandings. An example was the complaint about maggots in the food. It transpired that this was the result of detainees taking food to their rooms where it -- 232 of 647 -- [2025] SASC 59 Stanley J 229 was kept without refrigeration and became flyblown. This led to a prohibition on that practice. 1147 Mr Palmer noted evidence of detainees “shifting the clock” in order to be able to talk by telephone with friends and family in their homeland. This meant they might stay awake until late into the night and then sleep during the day. As a result they might miss visits, which they blamed on the DSOs rather than their own habits. Likewise, complaints about the food reflected the cultural differences amongst the detainee population. There was a clash of tastes. 1148 Mr Palmer noted that G4S had attempted initiatives to improve the quality of detention for detainees, including town visits for shopping, picnics and visits to the swimming pool. He noted that both G4S and DIMIA officers at Baxter experienced delays in obtaining responses from DIMIA in Canberra which, in turn, delayed necessary reforms and adversely affected the welfare of detainees. Attempts by G4S to improve performance management were frustrated by DIMIA’s insistence upon compliance with quantitative measurements in the contract. 1149 I found Mr Palmer to be an impressive witness. Like many other witnesses, he struggled to recall events of so long ago and was reliant upon the terms of his report. On the other hand there was little, if any, challenge to his evidence notwithstanding that he was not called as an expert witness. While I am prepared to rely upon his evidence in making findings of fact, it does not follow necessarily that I accept every finding contained in his report. It is apparent both from the terms of his report and from his witness statement that many of the findings made by him were based on the acceptance of information and opinions provided to him by others in circumstances where there was limited, if any, capacity to test that information and those opinions. Much of what he was told was plainly hearsay. Nonetheless, he concluded that, in a number of instances, information conveyed and opinions expressed to him involved the distortion or misapprehension of the applicable circumstances. At best, his experience at Baxter was in the last months of the applicant’s detention. It may have been that he only went to Baxter after the applicant had been released. 1150 His evidence did not relate specifically to the applicant’s experience at Baxer or the allegations of negligent acts or omissions by the Commonwealth which caused him injury, loss or damage. 1151 Like Professor Minas and Mr Funnell, Mr Palmer was called as a witness in support of the unpleaded systems case. He did not speak with or see the applicant. However, his evidence was helpful in proof of the general circumstances at Baxter at the time of his visit. -- 233 of 647 -- [2025] SASC 59 Stanley J 230 The Falconer Report 1152 In 2003 a report (Falconer Report)531 was commissioned by DIMIA into the adequacy and appropriateness of health services, including mental health services, at Baxter. The report was prepared by Dr Tony Falconer. Dr Falconer found that the health and counselling procedures provided at Baxter were adequate and comparable to community standards. He thought they were appropriate to the current needs of detainees and appeared to be properly implemented. He thought that the existing procedures for detainees accessing health services enabled timely management of their health issues. 1153 Further, he considered that in most cases the referrals to external services were organised in a timely fashion, appropriately recorded and appropriately followed up. He reported that there appeared to be a clear understanding amongst both DIMIA and ACM staff concerning the broad range of primary health care services required within Baxter and a clear understanding about the level of external health care that would need to be accessed outside Baxter. 1154 In relation to detainees with mental health needs, Dr Falconer considered there was a need to include a specific inquiry about previous exposure to trauma or torture when screening detainees upon their reception into Baxter. However, he considered that mental health care and counselling services needed within Baxter were available, adequate, timely and appropriate to the needs of detainees. 1155 However, he considered there was a need for diversional activities at Baxter to address mental health issues associated with the long-term detention of detainees. 1156 Dr Falconer found that health care needs met the requirements of all relevant Commonwealth and State mental health Acts. He considered that the mental health care and counselling services needed within Baxter were available including the appropriate mix of mental health staff, their qualifications and range of skills. 1157 There is an obvious difference in the picture of the nature and adequacy of the mental health facilities at Baxter, and especially the mental health facilities, found in the Falconer and Palmer reports. I do not think that difference can be explained by the timing of those reports. In my view, while the Falconer report was written in 2003 and the Palmer report in 2005, the conclusions reached cannot be explained on the basis that the contents of the reports reflect changes in the conditions that existed at those times. The evidence does not support as a satisfactory explanation a deterioration in the provision of mental health services at Baxter between 2003 and 2005. I find it difficult to make any conclusive finding that prefers one opinion over the other. That is not particularly problematic, however, as, for reasons I have already explained, the contents of those reports do not relate specifically to the applicant’s case against the Commonwealth. 531 Exhibit A617. -- 234 of 647 -- [2025] SASC 59 Stanley J 231 The Health Advisory Panel 1158 The applicant was critical of the failure to establish a Health Advisory Panel at Baxter before the applicant’s release and deficiencies identified in the Reports. 1159 The difficulty with the applicant’s submission is that his criticism must be understood as part of a systems case. It is not tethered to any breach of duty which was causally related to any alleged psychiatric injury suffered by the applicant. 1160 In any event there is no evidence that if a Health Advisory Panel had been established earlier, or the result would have been the discovery of material deficiencies in the level and nature of mental health services being provided at Baxter. In the end, there is no foundation for concluding that the earlier establishment of a Health Advisory Panel would necessarily have made any real difference to the applicant. Reviews – Expert Evidence Dr Chris Henderson 1161 Dr Chris Henderson is a former general practitioner. He retired in 2016 after about 38 years in practice. He practiced the former in the former Rhodesia, South Africa and Saudi Arabia. He spent 10 years in a remote general practice in the north-west of Western Australia. He was a prison doctor for seven years. He worked in managerial positions both as the director of a public health clinic in Tasmania and as the Director of Prison Health Services in Western Australia. He has experience conducting audits of prisons and detention centres including Baxter. Dr Henderson did not visit Curtin. His first visit to Baxter was in June 2005 after the applicant had been released. Dr Henderson did not examine or assess the applicant. 1162 Dr Henderson prepared a report dated 26 July 2018532 in relation to these proceedings and a witness statement of 4 February 2022.533 1163 Dr Henderson commenced an audit of the health facilities at Baxter in June 2005, some two months after the applicant was released. He conducted that review with a psychiatrist, Dr Stephen Allnutt, and a registered nurse, Mr Gary Forrest. He visited Baxter for this purpose in June and August 2005. In conducting the audit, Dr Henderson focussed on the provision of general medicine in the medical clinic while Dr Allnutt focussed on the provision of mental health services. In preparing the audit, he spoke to Dr Shroff, administrators, nursing staff, DIMIA and G4S personnel, and three detainees. The final audit report was delivered in January 2006.534 The audit report presented to DIMIA had been edited by Mr Keith Hamburger of Knowledge Consulting. 532 Exhibit A561 (Report of Dr Henderson 26 July 2018). 533 Exhibit A562. 534 Exhibit A568. -- 235 of 647 -- [2025] SASC 59 Stanley J 232 1164 Dr Henderson gave evidence that the Baxter health facility consisted of a small nursing station with four beds and rooms for consulting, staff and administration. Nursing staff were present at the facility seven days a week, 24 hours per day. He noted there is a public hospital at Port Augusta which was a 15-minute drive from Baxter. 1165 He said some pharmacy supplies were held in the facility, but routine medication was supplied by the pharmacist in Port Augusta. If a doctor required medication not on the Pharmaceutical Benefits Scheme (PBS) schedule then permission was required to obtain it. Pathology and imaging tests were outsourced. Detainees were transported to an external facility, such as the Port Augusta Hospital, if care could not be provided on site. 1166 In Dr Henderson’s opinion, Baxter’s relative isolation presented problems in attracting, recruiting and retaining quality staff. He speculated that it may have compromised the delivery of health services, and it had a bearing on the level of specialised psychiatric service available to the detainee population in Baxter. He understood that a single psychiatrist, Dr Frukacz, visited Baxter from Bathurst every six to eight weeks and saw 10 to 15 patients per visit. 1167 Dr Henderson considered the Bollen report in 2001 and the Falconer report in 2003 were not the kind of independent audits of medical centres which should have been undertaken. The Bollen report was conducted before Baxter opened. It did not consider Baxter. The Falconer report was not undertaken by a specialist in mental health treatment. Its focus was whether the health services provided at Baxter conformed to the requirements of the service contract between the Commonwealth and ACM. 1168 Dr Henderson observed that while DIMIA and G4S did audit the health services regularly, they did so only against the contract provisions. They did not conduct audits which constituted the sort of in-depth clinical audit done by an external auditor. He said this should have been done earlier than June 2005. 1169 Dr Henderson considered that a high standard of health care in a remote location generally requires expenditure in excess of that which is required in a metropolitan setting. 1170 Dr Henderson considered detention imposed unusual stress on the physical and mental resilience of detainees. The adverse impact of detention is not so much on the physical health of detainees but on their mental health. 1171 He said general practitioners often see patients whose symptoms are the result of stress. These presentations are psychosomatic and are best treated by accurate diagnosis, minimal investigation and reassurance or, if indicated, psychological care. He considered a large number of health problems have a psychosomatic basis, and as such, should be treated in a different way from those with underlying pathology. However, where psychosomatic complaints persisted -- 236 of 647 -- [2025] SASC 59 Stanley J 233 health staff in a detention centre should have been alerted to the possibility of more serious mental health problems. 1172 Dr Henderson considered that the facilities for providing physical healthcare at Baxter were appropriate for the population of detainees. However, he said this was not the case for the provision of mental health care.535 1173 Dr Henderson asserted that Baxter was not a community representative of the general population. Accordingly, to base the provision of health care needed at Baxter on that which is found in the general population was flawed. Rather, it was necessary to provide healthcare that recognised the special needs of the detainee population at Baxter given the unusually large proportion of serious mental health problems that existed. The level, acuity and complexity of mental illness at Baxter exceeded what a general practitioner would normally be expected to manage. In Dr Henderson’s view placing general practitioners in effective clinical control of patients at Baxter, with very limited specialist oversight, exceeded the limits of safe care. 1174 Dr Henderson utilised a common yardstick of health service activity, namely, Occasions of Service (OOS). This measured interaction on separate days, i.e. ignoring more than one daily contact. During the applicant’s detention at Curtin he had one contact every four days (153 OOS over 622 days) and at Baxter he had one contact every 10 days (84 OOS over 911 days). 1175 In Dr Henderson’s opinion this frequency of contact indicated that the applicant had good access to health services, certainly in comparison with a rural health setting. He found nothing in the applicant’s medical notes to indicate he was not able to be seen when needed. In his opinion the applicant was provided with adequate access to the health service.536 1176 The applicant was reviewed numerous times by the mental health nurses and HRAT at Baxter. He consistently denied suicidal intent and asserted he had no mental health issues. He was assessed as being euthymic and pleasant with appropriate affect. However, Dr Henderson considered it might be significant that the applicant was seen by a medical officer after a self-harm attempt in February 2003 and was assessed as having severe stress with insomnia. At the time the applicant was on antidepressants which were prescribed periodically, with good effect, throughout the rest of his time in detention. The applicant suffered from insomnia for most of his time in detention. Dr Henderson considered it was treated appropriately and was improved by prescribing a course of antidepressants.537 535 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement p 4, lines 11-12). 536 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement p 4 line 10). 537 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement p 3 lines 3-4). -- 237 of 647 -- [2025] SASC 59 Stanley J 234 1177 In Dr Henderson’s opinion the applicant’s physical medical problems, i.e. groin pain, indigestion, sinus and ear problems, back pain, wrist injury, and toothache, were all investigated, diagnosed and treated appropriately. 1178 In addition, Dr Henderson considered that the applicant’s insomnia was treated appropriately.538 He said it appeared his insomnia improved with the use of antidepressants. The prescription of antidepressants to alleviate insomnia was not evidence necessarily of him suffering depression. Dr Henderson considered that the applicant was effectively concealing his mental health problems from the medical staff at Baxter. He thought the applicant’s persistent symptoms of insomnia should have resulted in his referral for a formal psychiatric assessment. 1179 He exhibited signs of psychological stress in respect of his chronic insomnia, behavioural disturbance and self-harm. He responded to antidepressant medication, albeit in low doses, but did not take it continuously as a matter of personal choice. Dr Henderson acknowledged that while the applicant always appeared to have no mental health issues and declared he was fine and not suicidal, this did not exclude the existence of an underlying mental illness. 1180 He contended a formal psychiatric assessment should have been done because some of his symptoms and complaints, including persistent chronic insomnia, are features of mental illness. The applicant was in an environment known to be stressful. Those stressors were lengthy detention and visa refusal, and seclusion in the Management Unit and high security compounds. While this was the result of behavioural disturbance, namely, lighting fires and attempting to escape, Dr Henderson believed this also resulted from self-harm attempts. He said these were well recognised factors which could precipitate mental illness. That they might have been a protest against the conditions under which the applicant was detained did not exclude them being signs and symptoms of mental illness. However, Dr Henderson erred in believing that the applicant was in fact placed in the Management Unit or a high security compound as a result of self-harm incidents in February and August 2003. 1181 Dr Henderson gave evidence that in order to recruit appropriately trained and qualified medical staff to remote areas it was necessary to provide a financial incentive. Even if recruited, medical staff tended not to stay for much longer than about 18 months. This often reflected the practice of offering short-term contracts. 1182 He accepted that the presentation of patients with mental illness differed from individual to individual, depending on their degree of resilience. The assessment of a patient’s mental health needs in remote Australia was often undertaken by a general practitioner. In assessing their mental health complaints, the general practitioner would have to consider the social circumstances of the patient.539 538 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement p 3). 539 T 5738-5739. -- 238 of 647 -- [2025] SASC 59 Stanley J 235 1183 Dr Henderson agreed that detention uncertainty had the potential to negatively impact on the mental health of detainees.540 1184 Dr Henderson opined that the mental health care at Baxter was inadequate because of the complexity of mental health problems experienced by detainees which exceeded what a general practitioner could be expected to manage. This opinion was based on a discussion with Dr Shroff, who only commenced at Baxter in 2004, and a submission by the Alliance of Professionals Concerned about the Health of Asylum Seekers and their Children made to HREOC before Baxter opened in 2002. It was also based on the contents of the judgment of Finn J in S v Secretary.541 This was a judgment concerned with detainees other than the applicant. 1185 Dr Henderson accepted that some of the references in his audit report could not support the propositions for which they were cited because they dealt with periods earlier or later than the events considered in the audit report.542 1186 In preparing the audit report, Dr Henderson suggested that consideration should be given to abandoning the preparation of health care plans for fit, healthy male detainees. He believed this category represented the majority of male detainees at Baxter. His view in this regard was confined to screening for physical health problems. This opinion was based on a discussion with a nurse at Baxter. 1187 Dr Henderson gave evidence that he was told by Dr Shroff that 80 per cent of adult male detainees presenting to him at Baxter suffered mental health problems. However, there was no written record of the 80 per cent figure and he subsequently resiled from this evidence. He accepted that it would be more accurate to say that most of the patients presenting to Dr Shroff at Baxter had mental health issues.543 Yet, he accepts that his discussions with Dr Shroff did not provide a foundation for a conclusion that there was an unusually high proportion of serious psychiatric cases at Baxter.544 Rather, his opinion that an unusually large proportion of patients at Baxter had serious mental health problems was based on his acceptance of a peer reviewed journal.545 1188 Dr Henderson was also of the view that the case load of serious mental health conditions in Baxter exceeded the situation in the Australian community. He considered that a weekly case load for a general practitioner at Baxter of 20 to 30 patients with mental illness was quite high. Dr Henderson considered that the high percentage of patients seen by Dr Shroff with mental health problems permitted him to infer that there was a higher rate of mental health problems in the detainee 540 Exhibit A581 p 7, T 5803.29-5804.22. 541 [2005] FCA 549, (2005) 143 FCR 217. 542 T 5769-5770. 543 T 5813-5815. 544 T 5844. 545 T 5828-5829. -- 239 of 647 -- [2025] SASC 59 Stanley J 236 population than in the general population. This inference really was impressionistic rather than empirical. It lacked a statistical basis.546 1189 Dr Henderson’s view that an external clinical audit should have been conducted at Baxter would have depended on the Commonwealth deciding that this should occur and funding it. 1190 Dr Henderson’s view that the provision of mental health services at Baxter was inadequate was reinforced by the contents of the PSS report in 2004.547 1191 In May 2004 G4S commissioned Ms Hinton and Paul Flanagan of PSS to provide a review of psychological, mental health and counselling services in the detention centres under the management of G4S. PSS was the service provider for psychological and other services retained by G4S for the purposes of meeting the contractual obligations it owed to the Commonwealth. PSS reported that they assessed the level of demand for counselling and psychological services exceeded the funding pursuant to the contract between G4S and DIMIA.548 The PSS report identified a number of mental health services that were not being provided by PSS due to the constraints of the service level ratio. That service level ratio was calculated on data provided to G4S prior to the commencement of the contract. It became apparent to G4S in late 2003 that the service level was well below the ACM service level which was still being performed at that time. PSS identified that due to the demands of mental health services and the need to ensure an adequate minimal level of mental health services for detainees, PSS was then providing services well in excess of the contracted service ratio. As at the time of the PSS report, it was currently providing services at a ratio of around 0.50 in order to meet basic demand. 1192 Neither Ms Hinton nor Mr Flanagan, or for that matter anyone else from PSS, was called to give evidence. 1193 When undertaking the audit in 2005 Dr Henderson was told by nursing staff that they had not been trained to treat psychiatric problems. They reported that historically there were not enough counsellors, but the situation had improved. Nurses complained that half their time was spent on administration or writing reports rather than treating patients. Nurses reported being burnt out. This was consistent with the PSS report in 2004 which noted that the health centre was under resourced. However, the evidence did not go so far as to establish that the systematic criticisms of the health facilities at Baxter caused or contributed to any psychiatric injury the applicant may have suffered. 1194 Dr Henderson is an experienced general practitioner. I was generally impressed by his evidence which I mostly accept. The qualification in that regard is because his evidence was largely concerned with systemic matters although he 546 T 5835.2-5836.20, 5870.19-25, 5872.37. 547 Exhibit A448. 548 Exhibit A448. -- 240 of 647 -- [2025] SASC 59 Stanley J 237 did give evidence specifically about the applicant. He gave evidence on the basis of the audit he conducted in June 2005 into the health facilities at Baxter. The audit was not concerned with the applicant who had been released from detention two months earlier. Insofar as he concluded that the mental health services at Baxter were inadequate he was not specifically addressing the services provided to the applicant. Dr Henderson’s opinions based on his audit are not relevant to the applicant’s claim except to the extent that he addresses the applicant’s situation. What is conspicuously absent from his criticisms of the health services at Baxter is any nexus between those criticisms and any psychiatric injury the applicant is alleged to have suffered as a result of the pleaded breaches of duty owed to him by the Commonwealth. 1195 Considering the situation of the applicant retrospectively in the report he authored for these proceedings, he found that the applicant enjoyed good access to health services. Nonetheless, he concluded that the applicant should have undergone formal psychiatric assessment on the basis of his chronic insomnia, notwithstanding the absence of any complaint of depression or other mental health issues and the medical staff’s assessment of the applicant as being euthymic and pleasant with appropriate effect. Despite his conclusion he accepted that the applicant was treated appropriately for insomnia. 1196 In my view, while Dr Henderson considered that referring the applicant for a formal psychiatric assessment would have been consistent with best practice given his chronic insomnia, I do not accept that the failure to do so breached the Commonwealth’s duty of care in circumstances where his insomnia was being properly treated and the applicant made few complaints of symptoms that could have been ascribed to mental ill health. In any event, for reasons I have explained elsewhere, I find that even if the staff of the health service had referred the applicant for a form of psychiatric assessment, he would not have agreed to undergo such an assessment. 1197 Generally, on matters of psychiatric opinion, where Dr Henderson’s opinion differs from the opinions of Dr Schirripa and Dr Clarke, I prefer their views over the view of a general practitioner. I will expand on the evidence of Dr Schirripa and Dr Clarke later in these reasons. Amanda Gordon 1198 Ms Amanda Gordon is a clinical psychologist. She has practiced as a clinical psychologist for more than 30 years. Her academic qualification is a Bachelor of Arts (Psychology) (Hons) from the University of Adelaide conferred in 1978. She was an adjunct Associate Professor in Clinical Psychology at the University of Canberra. She was the founding chair of the Refugee Issues and Psychology Interest Group of the Australian Psychological Society. She is an honorary fellow of the Society and was on the Board of Directors of the Society from 2001 to 2004, and president of the Society from 2004 to 2008. -- 241 of 647 -- [2025] SASC 59 Stanley J 238 1199 In 2006 she was appointed to the Detention Health Expert Advisory Group. In that capacity she first visited Baxter. However, this visit occurred after the transfer of all the detainee population. 1200 Ms Gordon did not assess the applicant. She provided a report dated 21 September 2018 and a witness statement was prepared dated 7 February 2022 to supplement that report. 1201 It was Ms Gordon’s opinion that the length of time a detainee spent in detention increased mental health problems. The longer the period of detention the greater the risk to a detainee’s mental health. Ms Gordon said that the length of detention had a close correlation with the development or exacerbation of depressive conditions. Ms Gordon was of the opinion that the immigration detention environment had a traumatising effect on detainees. Features of the external environment at Baxter were risk factors to the mental health of detainees. She said the behavioural displays of self-harm and physical violence were often suggestive of psychiatric disturbance or manifestations of severe disturbance. The physical conditions at Baxter were not conducive to good mental health and wellbeing. She considered the conditions of detention at centres such as Baxter risked further traumatising detainees who had escaped torture and trauma to seek asylum in Australia. The restrictive environment of detention centres with barbed wire fences and uniformed DSOs risked triggering memories of past trauma in detainees. Baxter exhibited all those environmental risk factors, i.e. its remoteness, barbed wire, separate compounds and uniformed DSOs. 1202 Ms Gordon expressed the opinion that detainees with mental health problems needed supportive relationships, but that few of these existed within immigration detention. She considered the level of mental illness was much higher in Baxter than in the general community. Ms Gordon understood that in 2005 more than 20 per cent of the detainee population at Baxter were on prescribed antidepressants. She said the number of self-harming incidents at Baxter was significantly greater than in the general Australian population. 1203 Ms Gordon gave evidence that the medical records from Baxter revealed factors suggestive of severe psychological disturbance amongst the detainee population, namely, distress, hunger strikes and other forms of self-harm, suicide attempts and violence. Ms Gordon considered this evidenced the high level of mental illness amongst the detainee population in Baxter. 1204 Ms Gordon was critical of diagnoses being made by registered nurses without special training in psychiatric or mental health nursing. She thought this was inappropriate. She said good practice would have been that once triage had been done, further evaluation and assessment of detainees should have been undertaken by a psychiatrist or clinical psychologist. The employment of professional mental health staff on short-term contracts had the effect that there was no opportunity to take a long-term view of detainees’ needs, or develop the rapport required for proper diagnosis and intervention. She thought that as a consequence, the health -- 242 of 647 -- [2025] SASC 59 Stanley J 239 services at Baxter during the applicant’s time in detention were inadequate to meet his needs. However, she had difficulty in identifying the nature of his needs. 1205 Ms Gordon considered the inappropriate management of self-harm risks caused subsequent harm to the mental health of detainees. While she was asked to make certain assumptions for the purpose of giving evidence, Ms Gordon also based some of her opinions on anecdotal and hearsay accounts of events and conditions at Baxter. 1206 Ms Gordon thought detainees threatening self-harm, particularly those with mental health diagnoses including depression, were often unclear as to the behaviours they needed to adopt in order to be returned from Red 1 or the Management Unit to their own compound. 1207 Ms Gordon considered the Commonwealth did not manage self-harm in Baxter appropriately. She said it ignored the advice of experts that the detention environment itself placed great stress on mentally ill and self-harming detainees who should have been removed from that environment. She said it responded inappropriately to self-harm by utilising behaviour management techniques rather than medical interventions. It mistook self-harm due to mental illness as disruptive behaviour warranting behavioural management. 1208 Ms Gordon gave evidence that traumatised detainees were not provided with a safe place in which to grieve their losses of family, sometimes left behind in danger; and become productive. She considered this would have facilitated positive mental health outcomes. 1209 Ms Gordon considered that the conditions of detention were likely to cause or contribute to mental illness among detainees. She thought that while supportive relationships are the key to mental health functioning, few of these existed at Baxter. The absence of supportive relationships at Baxter was likely to cause an increase in detainees’ distress. In her opinion the detention environment at Baxter had no benefits in providing a sense of purpose to detainees. 1210 Ms Gordon said the system at Baxter perpetuated itself as the clinical judgments made by nurses of mental health or illness of detainees were not easily challenged. The mental health demands of the detainee population were beyond the capacity of any general practitioner to manage effectively. A general practitioner needs supervision from a psychiatrist to ensure proper care. The use of the Management Unit for self-harm placed an emotional toll on detainees in that environment which was damaging. The inappropriate management of self-harm risked causing subsequent harm to the mental health of detainees. She said the psychiatric services at Baxter were inadequate. As a consequence of the lack of continuity in psychiatric care, detainees at Baxter were vulnerable and exposed to a heightened risk of mental illness. While a detainee threatening self-harm required frequent and regular surveillance, this should have occurred in a supportive and helpful way rather than in circumstances that made a vulnerable -- 243 of 647 -- [2025] SASC 59 Stanley J 240 detainee feel worse. Where detainees feared the use of the Management Unit, its therapeutic effectiveness was greatly reduced. She said this was likely to lead to detainees under reporting psychological illness for fear of being placed there. Ms Gordon was of the opinion that this was what occurred at Baxter. 1211 Ms Gordon said practices such as calling detainees by number rather than name and separating detainees from their support structures posed real risks to their mental health. 1212 Ms Gordon was of the view that the protest on 6 February 2003 which resulted in the applicant self-harming with a razor blade, cutting himself over 40 times to the chest and abdomen, and his attempt to dig a tunnel in March 2003, should have prompted concern about his mental health and resulted in a referral for a psychological or psychiatric review. This did not occur, notwithstanding notes being made in the Management Unit that the applicant appeared quite drained and exhausted. Outside the detention environment, such behaviour would have prompted further psychiatric or psychological assessment. She considered that in the circumstances his treatment was inadequate. 1213 Ms Gordon said that given the inadequacy of the mental health staff at Baxter, it was foreseeable that detainees would fall through the gaps and not receive the treatment they required, particularly if they had lost all hope and were content to be left alone. This risked their mental health needs being overlooked by the overstretched staff. 1214 Ms Gordon accepted that the following matters could have had an adverse psychological impact on detainees: • being held in immigration detention awaiting the outcome of visa applications; • the boat journey itself and the reasons why a person fled their homeland and sought asylum in another country, leaving their family behind; • the absence of freedom and the loss of control over a detainee’s everyday life; • the anxiety around the fear that a detainee’s claim for asylum might be rejected and he or she deported; and • the open ended length of detention. 1215 Ms Gordon accepted that the inability to remove one or more of these stressors made therapeutic treatment more difficult. She accepted that the significance of research undertaken by Professor Eagar and published in 2010 she relied on was that it was the first large-scale research in Australia of the effect of long-term detention on immigration detainees which was not based on anecdotal evidence or small samples. It identified the deterioration in the mental health of -- 244 of 647 -- [2025] SASC 59 Stanley J 241 detainees held beyond six months in detention. While detainees who had their visa applications rejected and had exhausted their rights of appeal had no hope in immigration detention, that did not preclude some meaningful activity being provided for them which could foster some sense of engagement.549 1216 Ms Gordon considered that a detainee who was suffering mental illness and engaged in self-harm or suicide attempts should have been removed from the environment of Baxter. While she had no direct experience of what was occurring at Baxter in the period 2003 to 2004 concerning the use of the Management Unit and the behavioural rather than medical response to self-harm on the part of detainees, she was informed by other psychologists of the use of the Management Unit in that regard.550 1217 She accepted that her opinion as to the inadequacy of the mental health services at Baxter in the period 2003 to 2004 was dependent upon the accuracy of particular assumptions she was asked to make. She has no direct knowledge of the practices at Baxter in this period. She was reliant upon what she was told or read.551 1218 Ms Gordon considered that in deciding whether to refer a detainee for a mental health review it would be reasonable to rely on observations recorded by non-medical staff at Baxter that the person was not withdrawn, was generally speaking and interacting socially on a regular basis, and was engaged in work, sport and recreational activities.552 1219 Significantly, she was of the opinion that it was not detention per se which was so damaging to the mental health of detainees, but it was the length of time in detention and its indefinite character which did the most harm. 1220 In forming the opinion that, between 2000 and 2010, detainees with mental health problems were placed in an increasingly restricted environment, Ms Gordon did not know that, after G4S assumed management control of Baxter in January 2004, it adopted a policy of using the Management Unit significantly less than had occurred previously. 1221 Ms Gordon accepted that she has no training as a psychiatrist. Nonetheless, she considered she is qualified to express an opinion as to the adequacy of psychiatric services available at Baxter.553 1222 Ms Gordon considered that if a detainee had been in detention for a period in excess of 20 months without a MHA, one should have been performed. 549 T 6083-6090. 550 T 6092-6093. 551 T 6097-6098. 552 T 6103. 553 T 6124-6125. -- 245 of 647 -- [2025] SASC 59 Stanley J 242 1223 While Ms Gordon read through her report and witness statement and adopted their contents, the witness statement of 7 February 2022554 was prepared by the applicant’s solicitors after a conference with Ms Gordon. 1224 Ms Gordon has rarely provided expert reports for use in Court. This was reflected in her evidence concerning the contents of her witness statement of 7 February 2022. The statement which had been prepared by the applicant’s solicitors identified certain factual assumptions which, if correct, supported opinions expressed by Ms Gordon in her report of 21 September 2018. 1225 Under cross-examination, however, she asserted that certain assumptions she made for the purposes of expressing her expert opinion concerned matters she knew to be factually true. She contended that the terms of the report as drafted by the applicant’s solicitors did not reflect her understanding that identified “assumptions” in her 2018 report are facts established by scientific research.555 1226 In my view, Ms Gordon’s evidence is of limited assistance in this matter. Her opinions are based on assumptions that depend upon the reliability of the applicant’s evidence. As I have said, the applicant’s evidence is not a reliable basis for making findings of fact or forming the foundation for an opinion. Further, Ms Gordon’s opinions were put at a high level of generality. Her evidence was largely concerned with the impact of immigration detention on detainees generally rather than the applicant specifically. Whatever might be the validity of her opinions as broad generalisations they are not evidence which prove the specific acts or omissions of the Commonwealth crucial to the success of the applicant’s claim. The applicant’s claim is a personal claim. The Court is concerned with what happened to him rather than the experience of detainees generally. In addition, some aspects of Ms Gordon’s evidence do not assist the applicant’s case, in particular, her evidence that the most damaging feature of immigration detention to a detainee was its length of time and its indefinite nature. Those features of detention are not causative of a loss which sounds in damages. 1227 In making findings of fact in relation to the existence and cause of any recognisable psychiatric injury suffered by the applicant, I prefer the evidence of the psychiatrists Dr Schirripa, Dr Clarke and to some extent Dr Raeside which I will come to in due course in preference to Ms Gordon, whose expertise is in the field of psychology rather than psychiatry. COMMONWEALTH’S LAY WITNESSES Greg Wallis 1228 Greg Wallis was employed by DIMIA as its detention centre manager at Curtin from 1 September 1999 to 5 July 2002, and at Baxter from 15 July 2002 to 3 October 2003. His role at both Curtin and Baxter was supervisory. It was to ensure that the detention service provider, ACM, complied with its contractual 554 Exhibit A572. 555 T 6071-6073. -- 246 of 647 -- [2025] SASC 59 Stanley J 243 obligations and observed the IDS. To this end, he maintained an open line of communication with the ACM detention centre managers at both centres in order to address any issues concerning compliance with the contract. 1229 One of ACM’s key obligations was to ensure detainees detained under the Act were prevented from escaping. In addition, Mr Wallis’ role included supervising ACM’s compliance with the outcome standards relating to the quality of care and the quality of life expected in the detention facilities at all times, except where it was demonstrated that the security and good order of the detention facility would otherwise be compromised. 1230 His role also involved facilitating access to detainees by lawyers and departmental officials; responding to requests from DIMIA for information about individual issues, and managing concerns raised by detainees in respect of their detention in the centre. Individual complaints from detainees were varied and related to welfare, inadequate health services, applications for visas, missing property, mistreatment by DSOs, and inadequate food services. 1231 Mr Wallis had a team of employees working under his direction at Curtin and Baxter. They had a role in dealing with detainees who were seeking asylum in Australia by pursuing applications for protection visas. However, they had no role in processing or deciding those applications. They would communicate with detainees in relation to the application process and its outcome. 1232 Mr Wallis dealt directly with the detention centre manager appointed by ACM at Curtin and Baxter. He would regularly meet not just with the DIMIA personnel located in the detention centre but also with the DSOs employed by ACM who he would encounter on his daily walks through the centre. He said this afforded him an opportunity to observe and speak with detainees as well as DSOs. 1233 In addition, Mr Wallis would report formally and informally to DIMIA in Canberra. Formal written reports would be produced on a monthly basis, but he said there were also more frequent telephone communications with Canberra. 1234 Mr Wallis said that where detainees made complaints to him, he would conduct or authorise an investigation by other DIMIA staff at the detention centre. If he thought it necessary, he could ask DIMIA in Canberra to appoint an expert to conduct an independent review of a particular situation in the detention centre. 1235 At each detention centre there were counsellors and psychologists employed by ACM. Many detainees were frustrated and angry about the length of time spent in detention. Frequently they had unrealistic expectations concerning the length of time they were to be detained. 1236 Health and medical facilities were provided by ACM in accordance with the detention services agreement and the IDS which specified that the standard of care available to detainees was to conform to the standard of medical care available in the Australian community. To that end, ACM employed general and mental health -- 247 of 647 -- [2025] SASC 59 Stanley J 244 nurses, counsellors and a psychologist, and arranged for a psychiatrist to visit on a regular basis. 1237 Mr Wallis gave extensive evidence about the facilities at Curtin and Baxter and the operation of those detention centres. Curtin 1238 Mr Wallis said that Curtin was recommissioned in late 1999 as there were increased numbers of people arriving in Australia by boat. DIMIA required additional facilities to hold unauthorised boat arrivals. However, the numbers of arrivals continued to fluctuate and large numbers continued to arrive. Those arrivals were spread across the immigration detention system in Australia, including Curtin. 1239 Curtin is 48 kilometres from Derby and 200 kilometres from Broome. The site Curtin occupied was approximately 4.76 hectares. 1240 Mr Wallis oversaw the expansion of Curtin in 1999 to accommodate up to 1,200 detainees. Although Curtin did accommodate that number for a period, this was before the applicant arrived. 1241 Curtin was divided into accommodation compounds and a large shared space known as Golf compound which housed facilities including the kitchen, dining hall, food storage facilities, two ablution blocks and education and recreational facilities. There was also an administrative area which housed the health facilities and offices for DIMIA and ACM staff. 1242 He said telephones were available for use in Golf. There was a bank of telephone boxes. The telephones were installed by Telstra and detainees were required to buy telephone cards to use them. The accommodation compounds were built over time, but they were completed by early 2000, before the applicant arrived. The way the accommodation compounds were used changed over time. Different categories of people were housed in various compounds for various reasons. On occasion, secure compounds were established for specific groups, for example to make a secure place for single women. 1243 Generally, the accommodation in each compound was the same. They were made up of demountable buildings, colloquially called dongas, split into four rooms. Generally each room, except for the larger dormitory style rooms, had one bunk bed consisting of two single beds. 1244 Mr Wallis gave evidence about the compounds at Curtin. He described India as a very small compound, utilised more as a ‘time out space’. He said it could also be used by detainees who needed monitoring for health reasons, if they needed intensive counselling or needed to be watched closely. Mr Wallis denied it was a space to place detainees in response to negative behaviour. He said it was generally only used for short periods. -- 248 of 647 -- [2025] SASC 59 Stanley J 245 1245 Mr Wallis recalled that if a detainee requested to be moved out of their normal accommodation for a period of time out, with their agreement and the agreement of the health services team, they could be placed in India. While this was a secure compound, if a detainee was accommodated in there of their own volition they would generally be allowed to return to their normal accommodation on request. It was necessarily a secure compound because if left unsecure it opened into the administration compound in which DIMIA and ACM staff worked and this posed safety concerns. He said India was different from the other compounds in that the detainee could not lock the door to their bedroom and each room contained a single bed or mattress, not a bunk bed as was the case in general compounds. Otherwise, the rooms were the same as the other accommodation areas. 1246 Mr Wallis said Hotel Compound was used to manage detainees who posed a threat to the good order of the centre, other detainees or staff. He said detainees in Hotel were temporarily separated for management purposes, not for punishment. Hotel was air-conditioned, had lights and access to natural light. The configuration of the rooms was the same as in all other accommodation areas, although there were some necessary differences to reflect the purpose of the compound, such as the use of clear perspex in windows rather than glass. There was one ablution block, which included laundry facilities. There was a walkway between the two accommodation buildings that was enclosed and secure. He said there were no CCTV cameras installed in Hotel, or anywhere else at Curtin. 1247 Mr Wallis said apart from having secure compounds from time to time for specific reasons, the accommodation compounds were open to each other and movement occurred freely both between all of the compounds and between the dining hall, recreation and education areas. Detainees could also freely access the health centre during business hours. 1248 He said that after the riot in April 2001 changes were made to the security arrangements at Curtin. More security staff were in the compound. There was less movement between compounds. A curfew was imposed. Efforts were made to get the detention centre back to normal as quickly as possible. Efforts were made to rebuild relationships with the detainees. 1249 Mr Wallis said there were various grounds in Curtin which were used recreationally including tennis courts, volleyball courts, table tennis tables, children’s play equipment and multiple grassed areas, on the latter of which detainees played soccer. There were shaded areas for sitting and talking. Additionally, some detainees planted vegetable gardens. Tending to these was an outdoor activity and they could also eat the products of their work. Mr Wallis said up to 100 detainees played both volleyball and soccer each day, with large numbers also being involved in basketball, badminton, cricket, table tennis and tennis. 1250 Mr Wallis also described other recreational facilities available to detainees included a computer room and recreation rooms containing televisions and videos. -- 249 of 647 -- [2025] SASC 59 Stanley J 246 Further, copies of the West Australian newspaper were delivered each day and a centre newsletter was circulated in English, Farsi and Arabic. Detainees could also receive foreign newspapers through the post. From April 2002, 10 foreign language newspapers were delivered to Curtin monthly. 1251 Mr Wallis described the dining hall as being a large room, with a servery at one end which could accommodate between 100 and 150 people in a sitting. The main dining hall was open for breakfast lunch and dinner, seven days a week, during the following times: 0730 hours to 0900 hours, 1200 hours to 1400 hours and 1730 hours to 2000 hours. 1252 He said tables and red plastic chairs were used to set up the space as a dining hall, but the tables and chairs could also be packed away and the space used for other purposes. There was also a bench that had toasters on it for use during meals. Next to the toasters was a cold water drinking fountain which was available for use by the detainees at meal times. The industrial kitchen was used to produce three meals a day for all detainees. The food from that kitchen was served from the servery in the dining room. Detainees could work in the kitchen preparing the food and earn ‘points’ in doing so. 1253 The two ablution blocks in Golf were installed and commissioned in June 2001 after the accommodation compounds were built to reduce wait time and congestion in the existing ablution and shower facilities. Each block held 12 showers, 12 toilets, 12 urinals and 12 basins which were available to the detainees at all times, other than when part or all of the facilities were being cleaned. 1254 Mr Wallis said that when a detainee first arrived at Curtin they would be fed and then undergo a medical assessment. Following this they would be informed that under the Migration Act they had to be held in detention while their claims for asylum were processed. This would be done through an interpreter. Mr Wallis denied telling Iranians that they were unlikely to be accepted as refugees and they should voluntarily return to Iran. Detainees were informed that they had arrived in Australia unlawfully, that they had no legal right to be in Australia and, as a consequence of this, the Migration Act required they be held in detention while their claims were processed. At any time they could elect to return to their countries of origin. If their claims were unsuccessful then they would be returned to their countries of origin. 1255 Mr Wallis gave evidence about the medical facilities available to detainees at Curtin. He recalled the medical centre was located in the administrative compound and operated on a 24-hour basis. The medical centre included an assessment room with a bed, sink and general medical equipment; a consultation room; a storage room for medical supplies; and an area where people could converse with medical staff. -- 250 of 647 -- [2025] SASC 59 Stanley J 247 1256 Mr Wallis recalled the medical officer at Curtin was a general practitioner from Derby who, by late 2001 had been at Curtin for almost two years and had considerable experience working with refugees in Hong Kong. He said there was also a dedicated Health Services Manager (HSM) who was both a registered nurse and midwife. Nurses were rostered on 24 hours a day, seven days a week. There were 10 nurses employed by ACM at any one time in Curtin, including the HSM. This included at least one full time psychiatric nurse. Dentists were provided by the local health services. 1257 He gave evidence that general health awareness was provided to detainees by medical staff on an ongoing basis to provide education in personal hygiene, diet and hydration. A health awareness program for all detainees was implemented with educational videos and presentations. He said these were available as a presentation in the dominant languages spoken in Curtin and for which onsite interpreters were available. Formal health education forums for specific groups were provided monthly. These included education about hydration, the heat, and sleep hygiene. 1258 Mr Wallis recalled each detainee was subject to a standard mental health questionnaire as part of normal reception procedure. Initial assessments, including an analysis of the questionnaire, were conducted by medical centre nursing staff. If mental health intervention was required, a referral would initially go to a mental health nurse. 1259 Mr Wallis said MHAs were also conducted on an as needs basis when detainees presented or if they were referred because they were exhibiting signs of distress. North West Mental Health Services (NWMHS) accepted referrals from Curtin as required. There was telephone access for the NWMHS, or the option of transfer to Graylands Hospital in Perth. 1260 Mr Wallis said detainees could access medical services in Curtin by either attending the medical centre on their own initiative, a course which Mr Wallis thought the vast majority of detainees adopted, or by approaching an ACM staff member in the compounds. The medical staff were able to provide a mobile health team to attend in a compound if required. 1261 Mr Wallis recalled Derby's population was around 5,000 and had a 100-bed regional hospital that was normally staffed by five medical officers. Derby Hospital had a number of visiting specialists including an ENT surgeon, an ophthalmologist, a cardiologist, and a general physician. Radiological services were provided at Derby Hospital. The state chest clinic reported on the films and identified the detainees that required following up. 1262 Mr Wallis said DIMIA had its own interpreters on site acting mainly in relation to immigration matters. ACM also had its own interpreters on site acting mainly in relation to medical, welfare and property services. On occasions, -- 251 of 647 -- [2025] SASC 59 Stanley J 248 medical staff accessed the telephone interpreter service which was available 24 hours a day. 1263 In May 2001 Mr Wallis wrote to DIMIA in Canberra to advise that due to the length of time Curtin had been operational, there was now a need for additional infrastructure. He informed DIMIA that more room was needed to accommodate the newly appointed psychologist as the existing medical centre clinic was not big enough. He recommended the purchase of a three-bedroom transportable house for this purpose. 1264 Mr Wallis also informed DIMIA that 275 adults were attending the language and life skills classes which were run each afternoon. There was so much uptake in these classes in 2001 that the additional resources were required, namely, morning adult education classes; space for eight additional computers; a small library; facilities for individual self-directed learning; and counsellors’ rooms. Mr Wallis also recommended the provision of a further building, which occurred. 1265 In early 2001 there were three qualified teachers providing classes in Curtin. There were 180 hours of rostered education in Curtin each week. By October 2001 adults were also able to undertake classes in English, maths, computer knowledge, sewing, music tuition, art, gardening and Australian life. Mr Wallis recalls that there was an excellent uptake in these classes and though the numbers varied, there were up to 179 students enrolled in the English classes at that time. The English classes were held Monday to Friday between 9:00 a.m. and 3:00 p.m. 1266 The buildings where the education and welfare programs were held were grouped around a concrete paved assembly area. This area housed a staff room and two classrooms, a shop, a welfare room and a women’s room. 1267 DIMIA suggested that ACM develop strategies aimed at encouraging detainees to participate in programs and activities. Mr Wallis stated that by mid- 2001, in addition to the regular classes, men's therapy classes were available, along with competitive soccer. There was an increase in the number of interpreters in the centre. 1268 Mr Wallis recalled a committee was established for Curtin where representatives from the detainee population met with members of ACM, DIMIA, medical staff and catering staff once a fortnight, usually Wednesday at 2:00 p.m. The purpose of the committee was to discuss requests and complaints from the detainees. Further, it was a vehicle to circulate information through the detainee representatives to other detainees. 1269 Mr Wallis denied there was any strategy to make the environment at Curtin so unpleasant that detainees would decide to return voluntarily to their countries of origin. 1270 While he accepted that there were some lapses by ACM in its contractual performance, Mr Wallis considered that generally ACM managed Curtin -- 252 of 647 -- [2025] SASC 59 Stanley J 249 reasonably well. He said the riot at Curtin in April 2002 was brought under control by ACM staff within six or seven hours, although there were further disturbances over the next few days, particularly involving Iranian and Afghan men who opposed ACM officers returning to their compound. 1271 After the riot there were complaints by detainees of being unable to sleep. There were also complaints of tooth pain. There were difficulties in arranging dentists to attend at Curtin to provide necessary dental care. 1272 Mr Wallis emphasised that at Curtin it was ACM’s responsibility to manage the detainees and DIMIA’s responsibility to make detainees understand the legal framework within which they were detained and their options for leaving detention. 1273 Mr Wallis spoke of an incident where, during a visit by the HREOC to Curtin in June 2001, he was approached by a detainee making a complaint about conditions. Mr Wallis denied saying to him, “You bastard, I will get you for this”.556 He also denied saying later that day to Professor Harding, that, “it was only a joke”.557 1274 Mr Wallis accepted that there was tension at Curtin between some detainees and some DSOs.558 Mr Wallis conceded that it was possible he declined to answer some questions asked by Professor Harding during his visit on the basis that he was not an officer of the Commonwealth.559 1275 Mr Wallis denied that at Curtin there were no meaningful activities for detainees, that dongas were overcrowded, that toilets and showers were broken or blocked and took a long time to repair, and that DSOs referred to detainees by their number rather than name.560 1276 Mr Wallis agreed that there was an incident on one occasion at Curtin where detainees dug shallow graves and lay in them.561 1277 He said there were complaints about the infrequency of visits by a psychologist, the lack of education classes, the filthy condition of the ablution block, and the use by DSOs at Curtin of detainees’ numbers rather than names. Mr Wallis said that where there were problems, he reported them to Canberra and took them up with ACM management at Curtin and later at Baxter where similar complaints were made. 1278 Mr Wallis said that after receipt of the Knowledge Consulting report in February 2001 there was a change in the operation of Curtin from management of 556 T 7342.26-32. 557 T 7343.5-15. 558 T 7343.16-25. 559 T 7346.10-20. 560 T 7348.34-7329.15. 561 T 7350.18-21. -- 253 of 647 -- [2025] SASC 59 Stanley J 250 detainees on the basis of an assumption that the detainee population was compliant, to management of detainees on the assumption that they were non-compliant. This followed the breakout of detainees at Curtin and other detention centres in June 2000. Baxter - management 1279 Mr Wallis said Baxter was located on Old Whyalla Road approximately 12 kilometres southwest of the Port Augusta township and commenced operation on 6 September 2002. 1280 When DIMIA opened Baxter in 2002 Mr Wallis was appointed as the DIMIA manager. Detainees from Curtin, including the applicant, were transferred to Baxter in September 2002. He said a policy was adopted of undertaking a security risk assessment in respect of each detainee transferred to Baxter which categorised each detainee as being high, medium or low security risk. 1281 The DIMIA employees at Baxter comprised a manager, a number of assistant managers who were allocated specific tasks and an administrative team usually comprising three officers. 1282 ACM was responsible for the provision of all day to day services and activities to detainees. It was also responsible to DIMIA for the provision of these services. These services included welfare, health, including mental health, maintenance and cleaning, catering, security, and educational and recreational services. 1283 He said DIMIA was responsible for ensuring access to religious providers, the Red Cross, the United Nations High Commissioner for Refugees (UNHCR), embassies, education, calls home, and repatriation. 1284 Mr Wallis’ day to day responsibilities at Baxter included providing support to the assistant managers, having daily contact with DIMIA in Canberra, managing DIMIA’s activities in the centre, ensuring that the welfare of the detainees was provided for by ACM or DIMIA and providing a contact point for local and state government agencies regarding detainees access to services. 1285 Mr Wallis said he was in contact with DIMIA in Canberra on an almost daily basis at Baxter. He generally contacted Mr Greg Kelly who was the Director of Detention Operations and was the person to whom he would escalate any concerns about ACM's performance or any other issues that arose. Alternatively, Mr Wallis also spoke with Ms Christine McPaul in contract management or Mr Steve Davis, the First Assistant Secretary of the Unauthorised Arrivals and Detention Division, depending on the issue at hand. 1286 Both Mr Kelly and Mr Wallis would receive various reports from ACM. These reports included ‘situational reports’ which would provide detail about unfolding incidents that were occurring. Mr Wallis would provide Mr Kelly with -- 254 of 647 -- [2025] SASC 59 Stanley J 251 local information and his perspective on those incidents. Additionally, he would receive reports regarding any incidents that occurred in Baxter, be they major or minor, and a daily report on the number of detainees. 1287 Mr Wallis said he attended a daily operations meeting with ACM management. The ACM Manager and the operations manager usually attended the meeting. He said this was an informal meeting held at the start of each day covering anything of moment for that day and any occurrences from overnight that were of concern. 1288 In addition to the daily meetings, Mr Wallis attended a weekly meeting which included ACM’s heads of the various facility management roles including catering, operations, facilities and health. This meeting was minuted by ACM and would cover general issues regarding Baxter and its operation. He said the health aspect to this meeting was presented at a very general level. General contractual issues which could not be resolved quickly or involved more serious or broader issues would be raised in Mr Wallis’ report to detention operations to be taken up at higher levels of the ACM hierarchy and / or to the contract operations group meeting. 1289 Mr Wallis was aware that ACM medical staff also held a daily meeting, but he did not attend. He said if there was a specific issue concerning a detainee, a case conference would be held. This would involve the health staff and DIMIA would be included if there was any logistical element to the matter, for example if the detainee had to be transferred off site. The DIMIA case manager would attend in this instance. 1290 Mr Wallis’ approval or, in his absence the rostered manager’s approval, would be sought for all detainee transfers offsite. This was due to the requirements of the Migration Act to ensure the receiving facility was a ‘place of detention’ and on occasion, to transfer the detainee into the charge of an ACM officer. Administrative transfers off site occurred regularly and for different purposes. It could be an emergency medical transfer, a soccer game or a planned medical appointment. Medical transfers were facilitated on the medical advice provided to Mr Wallis. 1291 Part of Mr Wallis’ role was to monitor the delivery of health services in terms of their compliance with the requirements of the contract. Any departure from the contract or any other issue concerning the delivery of health services would be brought to his attention by an assistant manager or by detainees. 1292 As the manager of Baxter, Mr Wallis received copies of each incident report generated by ACM. These were faxed to him daily. ACM had a policy that specified what they would report to DIMIA in incident reports. The ACM operating procedures stated that ACM would report all incidents or occurrences that threatened or disrupted the good order, safety and security of the facility, or the health, safety and welfare of those within the facility. -- 255 of 647 -- [2025] SASC 59 Stanley J 252 1293 This included: • critical incidents: defined as incidents or events which critically affected the good order and security of the facility or where there was serious injury or threat to life; • major incidents: defined as incidents or events which seriously affected the good order or security of the facility, the welfare of detainees or which threatened the success of escorts, transfers, or removal activities, including issues relating to the health of detainees; and • minor incidents: defined as incidents or events which affected the same issues as major incidents, but to a lesser degree, including issues relating to the health of detainees. 1294 Mr Wallis also received other incident reports, including when a detainee was placed in the Management Unit. 1295 Mr Wallis said each of these incident reports were critically examined and analysed by him or one of the assistant managers familiar with either the detainee or the circumstances surrounding the incident in question. If there were issues requiring clarification or follow-up, these were taken up with ACM. 1296 Mr Wallis said he wrote a monthly report regarding the daily operations of Baxter to inform head office in Canberra of the situation on the ground. This was entitled the ‘Business Manager Monthly Report’ and it commented on the performance of ACM against each of the relevant IDS. ACM’s service delivery in Baxter was required to meet the quality levels established in the IDS. These standards set out ACM’s obligations to meet the individual care needs of detainees in a culturally appropriate way while at the same time providing safe and secure detention. His reports were forwarded to the detention operations section of DIMIA. 1297 Mr Wallis recalled that health concerns about detainees were brought to his attention in a variety of ways. He said he received a report each day authored by ACM’s Health Services Coordinator called the ‘Daily Update Report’. This report dealt with current health issues of the detainees. A detainee remained on this report, and Mr Wallis was updated as to their situation, until the issue was resolved. He provided a copy of the report to the detention operations team in Canberra. 1298 Mr Wallis recalled that Baxter received regular visits by various external groups including visits from the Commonwealth Ombudsman, Red Cross, HREOC and various Parliamentary bodies, including joint standing committees on migration and the Human Rights Sub−Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade. -- 256 of 647 -- [2025] SASC 59 Stanley J 253 1299 Mr Wallis said DIMIA undertook performance management of the contract with ACM. He recalled that the DIMIA assistant managers each audited a particular aspect of the contract. These aspects included property, the delivery and quality of food, recreation, the management plans for detainees, and their health. Mr Wallis said he and the assistant managers closely monitored these aspects to ensure the level of staff in the health centre was contractually compliant. 1300 Additionally, Mr Wallis said there was also a DIMIA contract management team in Canberra. This team received the information compiled by the Baxter Assistant Managers on the ground. That information was supplemented with their own auditing processes which were undertaken approximately quarterly where they would come out to Baxter and undertake a multi-day audit against the IDS. 1301 Mr Wallis was aware that the contract management team in Canberra would have monthly meetings with ACM in either Sydney or Canberra but he was not involved in these meetings. 1302 Mr Wallis gave evidence that case managers for detainees were introduced in Baxter in early 2003 in response to recommendations put to the Minister by IDAG. 1303 Mr Wallis recalled that the purpose of case management was to more effectively inform detainees about the process in which they were engaged and to improve the flow of information and dialogue with detainees, including enabling DIMIA to ensure that all information about rights and entitlements had been communicated to detainees in a way they could understand. 1304 Mr Wallis said there was a points system at Baxter for detainees similar to that at Curtin. Detainees were able to engage in work activity for which they would receive points according to the amount of work undertaken. The points could then be used to buy items at the canteen such as additional toiletries, stamps, suitcases, phone cards, chocolate, soft drink, or cigarettes. This system was established to attempt to encourage involvement in activities. Baxter - layout and facilities 1305 Mr Wallis said Baxter had a capacity to house a total of 1,217 detainees. During his time at Baxter, the detainee population in Baxter fluctuated between 200 to 300 detainees. Mr Wallis said Baxter was a purpose-built immigration detention facility divided into nine residential compounds. Red 1, 2 and 3, Blue 1, 2 and 3, and White 1, 2 and 3. He recalled White 3 and Red 3 permitted a view to the landscape beyond the detention centre. That view could be closed. 1306 Mr Wallis said Baxter’s common areas included an education centre, a visitors centre, gym, kitchen, canteen and interview centre. There was also a community garden which was tended to by some of the detainees. -- 257 of 647 -- [2025] SASC 59 Stanley J 254 1307 Mr Wallis described the visitors centre as being a large indoor open space with tables and chairs for the visitors and detainees to move freely about in. He said there were also private rooms and a grassed outdoor area, which contained a large tree in it. He said visits were arranged through ACM by appointment. 42 hours of visiting time were provided for each week in the visitors’ centre. Visiting time was available seven days per week with two sessions per day available, one during the day and one during the evening. 1308 Mr Wallis described a designated building which contained up to 12 interview rooms where detainees could meet their legal representatives in private. 1309 He said recreational facilities were on offer seven days per week. These activities included gym, Tae Bo, Pilates, gardening, video and bingo nights, gymnastics, indoor cricket, indoor soccer and volleyball. He said certain sporting activities such as soccer and volleyball took place outside of the facility, mainly in Whyalla and Port Pirie. He said the residential compounds were supplied with footballs, soccer balls, tennis balls, dumbbells, playing cards, board games and badminton rackets. 1310 By July 2002 when Mr Wallis transferred to Baxter he was aware of plans to use the gym building as a multi-purpose indoor sports area that also permitted movies to be shown and discos and religious ceremonies to be conducted. It was expected that excursions would also be arranged for detainees. ACM provided DIMIA with reports on the excursions they were providing.562 1311 In October 2002 Mr Wallis was reporting to Canberra that ACM were not implementing a program of family excursions. Complaints about closed compounds were rectified where that could be done. 1312 Mr Wallis said the compounds were also supplied with Australian daily newspapers and certain foreign newspapers including Persian and Arabic newspapers on a weekly basis. Access was available to books and films in a variety of languages including Farsi and Arabic. 1313 Mr Wallis said each single resident of a compound was accommodated in a single room with an ensuite bathroom. Each ensuite room was fitted with a double bunk, a small reading table, clothes storage and a chair. He said most rooms had a single bunk, except family rooms had a double lower and single upper bunk. All rooms were air conditioned and heated. Detainees were permitted to have their own televisions, VCRs, DVDs, stereo systems and computers in their accommodation. Detainees were permitted to have gardens within the compound. 1314 Mr Wallis said each residential compound had a recreation room with table tennis tables and pool tables. There was also a dining area equipped with Austar cable television, a fridge, a drinks dispenser, an ice machine and a toaster. He also 562 T 7354-7356. -- 258 of 647 -- [2025] SASC 59 Stanley J 255 recalled there was a laundry with hot and cold-water facilities. He said each residential compound also had a nurses’ station and a station which was attended 24 hours per day by a member of ACM. 1315 Mr Wallis said there were two telephones in each compound which operated using phone cards and two cordless phones for incoming phone calls for detainees. Each compound contained a post box and a complaints box for the attention of DIMIA. Information relating to the complaints procedures and the role and procedures of the HREOC and the Commonwealth Ombudsman were prominently displayed in a number of languages in each compound, including Farsi. 1316 Mr Wallis said that there were religious services and prayer meetings arranged for a number of faiths and all detainees were permitted to the free exercise of their faith. 1317 Mr Wallis recalled that Blue 3 was a physically smaller than the other compounds, but that the design, fit out and facilities were the same. There were some minor physical changes made to Blue 3 in 2003. Items which could be used as weapons were removed and unused rooms were locked. Otherwise, full access to the compound facilities was permitted. However, on a number of occasions there were restrictions put in place in Blue 3. These included restrictions on telephone usage, inter-compound visits, and movements around the centre. This meant detainees were unable to work for points outside of the compound or attend religious services in the visitors’ centre. 1318 Mr Wallis recalled that Red 1 was extensively refurbished following the fires of December 2002 and, from that point, was more robust in its design so as to minimise injury and property damage from self-harm attempts, or violent or abusive behaviour. 1319 He said that in the first half of 2003 Red 1 was developed as a ‘step-down’ facility for use in conjunction with, or as an alternative to the Management Unit. Mr Wallis described Red 1 as having a ‘B’ side which was more restrictive, and an ‘A’ side which was less restrictive. Both sides opened into the same internal area. Detainees experienced a progressively less restrictive regime as they moved from the Management Unit to Red 1 B and then to Red 1 A. While in Red 1, detainees moved through a flexible four-stage program during which they followed an agreed individual management plan. The objective of the use of Red 1 was to manage behaviour and move the detainee back to their compound as soon as they no longer presented a threat to others or themselves. 1320 Mr Wallis described Red 1 as consisting of ‘hardened’ facilities such as fixed steel chairs in the recreation rooms and perspex covering for the television. The accommodation rooms in Red 1 had a peephole fitted to the doors, viewing from the outside in, and provision to turn the lights on from the outside for the purpose of observation. The rooms were single occupancy, hardened to prevent damage and fire, and contained a bathroom and toilet. There were no cameras in the room -- 259 of 647 -- [2025] SASC 59 Stanley J 256 and the ensuites were not able to be viewed from the peephole or window. He said there was a blue light in each unit, operated on a time delay switch from the outside for observation by a DSO. There was no capacity for leaving the light on in the units during the night. He recalled that the detainees could turn it off at will from within the room. 1321 Mr Wallis said that detainees in Red 1 compound had access to visits by and phone calls to DIMIA, legal, consular, religious and Australian Red Cross representatives. They also had access to public scrutiny bodies, such as the Commonwealth Ombudsman and HREOC. He recalled that other social visits were organised according to individual circumstances. 1322 Mr Wallis said that while in their rooms, detainees could contact the DSOs on duty at any time, via an intercom facility and that access to medical care was available at all times. 1323 Mr Wallis described the Management Unit as a self−contained compound comprising 10 accommodation rooms, an officers' observation area, a dining area containing a kitchenette, a television and recreation room, and two enclosed exercise yards. He described each accommodation room as containing a bed, an open doorway leading to a small bathroom, and a CCTV camera which observed and recorded the detainee’s movement inside the room and part of the showering area. They were fitted with a frosted glass window which allowed natural light into the room, individually air conditioned and heated, and at night a blue low- level light was turned on to allow for visual observation of the detainee which did not significantly illuminate the room. The Management Unit was subject to 24- hour CCTV surveillance. 1324 He said the Management Unit was used to house a detainee if that detainee was assessed as requiring a higher level of observation for their own self−protection, violence towards others, being under threat by others or upon the detainee's own request. The Management Unit was used as an option of last resort. If a detainee was going to be placed in the Management Unit, Mr Wallis would be advised and could raise concerns regarding the appropriateness of this action. ACM was required to have a justification for each placement into the Management Unit. 1325 Mr Wallis recalled that when a detainee was placed in the Management Unit, a management plan was developed by the Management Unit Review Team (MURT), which included counsellors and psychologists. The purpose of the management plan was to help the detainee work through any issues, to focus on the behaviour in question, and to provide appropriate support for their return to normal activities. The detainees were asked to endorse the management plan as an indication of their understanding and ownership of the objectives as set out in the plan. -- 260 of 647 -- [2025] SASC 59 Stanley J 257 1326 Mr Wallis said that whenever a detainee was in the Management Unit, he would be involved in daily review meetings. The MURT met each day a detainee was held in the Management Unit. This meeting included the ACM manager and health professionals, including counsellors, a psychologist and any other person involved in the plan of that detainee. He said they would discuss their management, with a focus on the detainee leaving the Management Unit. 1327 Mr Wallis said detainees had at least two periods per day outside of their rooms for recreational purposes. He also recalled that DSOs would deliver educational packs to detainees upon request every two to three days. He said that meals were delivered to the unit at each mealtime and ordinarily consumed by detainees in the dining room. Mr Wallis said the officers' station was equipped with a cordless phone and detainees were permitted to take personal telephone calls in their rooms or in the exercise yards. He also said detainees had access to sporting equipment in the exercise yard. They were also permitted to smoke in the exercise yard. 1328 Mr Wallis said he routinely attended the Management Unit on each day when it was in use. There were also some beds in the medical clinic and detainees would stay there overnight if that was appropriate. He said detainees who would otherwise have stayed overnight at the medical clinic but could not do so because they posed a security risk, would also stay in the Management Unit. 1329 Mr Wallis said that detainees placed in the Management Unit would receive behaviour management plans which outlined the changes in behaviour necessary to obtain their release from the Management Unit. 1330 Mr Wallis described how food was provided to detainees at Baxter not subject to restrictive detention. He said the lunch and dinner meals were prepared in a common kitchen and delivered to the residential compounds. The meals were then served to other residents by detainees allocated that task who earned points for this work activity. The meals could be eaten in the common recreation area or in the outdoor eating area. He said that on occasion, food was consumed in the detainees' rooms, but this was not encouraged for food safety reasons. 1331 Mr Wallis said breakfast cereals, bread, margarine, condiments, coffee, tea and cordial were available at any time in the dining rooms. He said meals were adapted to the detainees’ cultural and religious requirements. He gave the example that all meat provided to the detainees was Halal and during Ramadan the kitchen extended its hours of operation in order to provide midnight meals for people who wished to partake in that religious observation. He said detainees who required special diets were provided with appropriate meals. 1332 Mr Wallis said sufficient quantities of food were usually available to enable leftovers to be refrigerated allowing the detainees to reheat and consume this food at any time. Microwave ovens were provided to enable detainees to reheat refrigerated food or to make other snacks. -- 261 of 647 -- [2025] SASC 59 Stanley J 258 Baxter – medical facilities 1333 Mr Wallis gave evidence about the medical facilities and procedures at Baxter. He described the Baxter health centre as having five long units arranged in a pentagon with gaps at two corners for access to the centre of the pentagon. He said all rooms opened off the central space apart from the entrance from the outside to the waiting room. He thought the health centre was air conditioned. 1334 Mr Wallis said the health centre was a fully equipped medical centre which comprised consultation rooms, a one-bed isolation room; a one-bed first aid bay; a four-bed low dependency ward; a well-stocked pharmacy; a waiting room; a utilities room; a stock room; and a secretarial office. 1335 He said the doctor’s consulting room contained a diagnostic set, including blood pressure monitors, an auroscope and ophthalmoscope, and an x-ray viewing box in addition to the usual supply of items associated with a general practitioner’s room. 1336 Mr Wallis recalled that the triage room was fully equipped for resuscitation, including nebulisers. The low dependency four bed ward could provide IV therapy, post−operative monitoring, and asthma and diabetic management. The health centre was also able to conduct electro cardiograph monitoring. 1337 Mr Wallis said the health centre employed between five and six nurses. At any one time there were three general nurses on duty during the day and two at night. A nurse was involved in the daily rounds to the compounds, which included medication rounds, described below. He recalled that the health centre had two full time counsellors, one of which was assigned to families and children. 1338 He said each nurses’ station in every compound was attended by a nurse for a specified period seven days a week. Detainees were able to attend at the nurses’ station for treatment and advice. The nurse identified those detainees requiring attention in the health centre and arranged for them to be transferred. 1339 Mr Wallis said that in addition to the nurse in each compound at a set time every day, the nurses would also visit the compounds twice a day to dispense medicine required by detainees. He said this procedure was directed to controlling the use of prescription medications by the detainees to prevent hoarding of medications. If a medical issue arose in a compound during a time when no nurse was present and the matter was urgent, ACM staff would call the health centre who would send a team of medical staff down to the compound in a dedicated vehicle with dedicated emergency equipment. The medical team would assess the detainee in situ and, if warranted, would transport the detainee back to the health centre or arrange for transport to a hospital in Port Augusta or Adelaide. If the medical issue was not urgent, the DSOs would call the health centre and relay the issue to the health staff. If so advised, the DSO could transport the detainee to the health centre. -- 262 of 647 -- [2025] SASC 59 Stanley J 259 1340 Mr Wallis said the health centre had a qualified psychologist on duty Monday to Friday. The psychologist held consultations with detainees as required. Notes were taken of these consultations which were held and maintained by the psychologists. 1341 Mr Wallis recalled that there was a Mental Health Team (MHT) comprising a psychologist, the counsellors and at least one mental health nurse, supported by a general practitioner and where appropriate, other mental health practitioners. The team prepared and implemented counselling programs for detainees requiring their intervention. 1342 Mr Wallis recalled that general practitioners practising in Port Augusta were engaged to visit Baxter and a four-hour clinic was conducted each weekday. General practitioners were on call 24 hours of each day of the week. He said the role of the visiting general practitioner at Baxter involved: • holding daily clinics to consult with detainees in need of medical care; • liaising with ACM and third-party medical service providers, including hospital and other visiting medical specialists; and • liaising with the HSM at Baxter to discuss the case management of detainees who may be of concern to medical staff. 1343 Mr Wallis said consultation clinics were generally held Monday to Friday. Nurses made assessments of those detainees consulting them as to whether a consultation with a general practitioner was required. Detainees who wished to see the general practitioner would ordinarily consult with a nurse at first instance. The nursing staff would then assess the medical situation of all detainees who required consultations with the general practitioner, and arrange appointments for detainees to see the general practitioner in order of priority, depending on the seriousness of their medical condition. A nurse would ordinarily attend all consultations held by the general practitioner and liaise with other nursing staff if further medical treatment or monitoring was required. 1344 Mr Wallis recalled that specialists operating out of the Port Augusta Hospital were utilised when considered appropriate by the health centre staff. Similarly, the Emergency Department at the Port Augusta Hospital was utilised when necessary and appropriate. A nurse would make the decision whether to call the general practitioner or send the detainee to hospital if an issue arose requiring hospital or emergency admission. 1345 Additionally, Mr Wallis said a psychiatrist attended at Baxter every four to six weeks. The medical staff would, prior to the date of the psychiatrist’s attendance, prepare a list of the detainees it was considered the psychiatrist should assess. Mr Wallis said the psychiatrist was available to discuss concerns held by staff about a detainee's presentation at any time by telephone. If outside psychiatric -- 263 of 647 -- [2025] SASC 59 Stanley J 260 mental health services were required, more particularly for inpatient services, the psychiatrist could attend to this in consultation with the admitting facility which was usually Glenside but also the RAH. This type of in-house admission could also be recommended by other mental health professionals or the general practitioner. If a detainee was to transfer to an inpatient psychiatric hospital, Mr Wallis would be asked to authorise the transfer. In providing his authorisation for these transfers, Mr Wallis would be made aware of why the detainee was being transferred and who was recommending the move. Usually, through the daily reports, Mr Wallis would already be aware of any medical or psychiatric issues that were current for the cohort of detainees, when his authorisation was eventually sought. 1346 Mr Wallis said a physiotherapist attended at Baxter each week. Dental care was provided by dentists practising in Port Augusta. 1347 Mr Wallis recalled Baxter had a specific protocol to manage detainees who were assessed as being at risk of self-harm. If a detainee was identified as being at risk, the protocol was enacted. 1348 Mr Wallis said staff who worked with detainees at Baxter were trained to recognise and respond to warning signs and risk factors of potential suicide and self-harm. Mr Wallis recalls that all detention staff received two weeks training, including training provided by the medical staff. Assessment of the detainees’ physical and mental health began from the time of their initial reception. Once the initial assessment was carried out, detention staff were briefed as to the detainee's health including any history of self-harm or suicide attempts and / or history of any physical or emotional abuse. Mr Wallis said that in the later years of the applicant’s detention staff also received annual training about identifying signs of risk such as apparent withdrawal, depression, agitation, aggression, projected hopelessness, anxiety, unfavourable detention decisions and interactions with others in the compound. 1349 Mr Wallis said he doubted the accuracy of complaints made by detainees to Mr Hodges of IDAG that 85 per cent of detainees in December 2002 were taking sleeping tablets or antidepressants. Security and incidents 1350 Mr Wallis gave evidence that Baxter was designed to avoid some of the problems experienced at other detention centres. The overall design was one to reduce, if not eliminate the risk of self-harm. He said one aspect of this was through the bullnose verandas which covered all of the walkways in the rectangle that was each compound. This prevented detainees from climbing up and over the exterior of the compound and denied access to the barbed wire fences on the perimeter of the facility. Another aspect of this was to have smaller, self−contained compounds. The thinking behind this was to allow the staff to develop relationships with the detainees making changes in their behaviour easier to observe. This additionally allowed for visibility of the entire compound at one -- 264 of 647 -- [2025] SASC 59 Stanley J 261 time permitting a full line of sight, which was also another mechanism employed to reduce self-harm. Further, the smaller compounds allowed the mixture of detainees to be moved around to ensure there was a harmonious relationship between the detainees. It allowed there to be a dedicated family compound and a compound dedicated to particular religious groups. As a general rule, single males were not accommodated in the same residential compounds as families with children. 1351 He said restraints in the nature of plastic flexi cuffs were available for use by ACM staff as a last resort. If used, an incident report was created. Generally, transfers around Baxter were undertaken without restraints, but these decisions were ACM risk assessment decisions. Mr Wallis recalled that when high risk detainees were taken outside the detention centre ACM would handcuff them. Both high risk and medium risk detainees were excluded from participating in excursions during Mr Wallis’ tenure at Baxter. 1352 Mr Wallis said ACM had a usual practice of searching detainees rooms from time to time. There was an established protocol for room searches. The detainees were advised that a search was to be conducted. The protocol required that a minimum of two ACM staff conducted each search. 1353 Mr Wallis said ACM staff did not perform strip-searches unless they were specifically authorised. Mr Wallis says these were performed rarely. Conversely, ‘pat searches’ of detainees did not need to be authorised by DIMIA and could be undertaken if ACM was looking for contraband material. 1354 Mr Wallis said at Baxter there were incidents where detainees would demand medication and healthcare from medical staff when the staff had assessed that this was not needed. Mr Wallis did not consider it was his role to second-guess the medical staff over such issues. Mr Wallis considered that the medical staff were highly qualified and competent to undertake the assessments required and to satisfy the health needs of detainees. 1355 Mr Wallis recalled that there were a number of hunger strikes. He considered that the strikers were doing so in an attempt to obtain visas. He said it was explained to such detainees that hunger strikes would not improve the prospects of their claims for asylum succeeding. 1356 Mr Wallis said welfare staff would be informed whenever a detainee was to be given news of an adverse tribunal or court decision. Detainees were asked whether they wanted to speak to a counsellor. The medical team were also alerted in case their intervention was needed. 1357 Mr Wallis said that during his time at Baxter there were some incidents where ACM DSOs did not treat detainees in a culturally sensitive manner. There were occasional disputes over the allocation of points for work, but he said these problems were investigated and generally easily resolved. -- 265 of 647 -- [2025] SASC 59 Stanley J 262 1358 At the time of the December 2002 fires Mr Wallis was on leave. He returned from holidays a few days later. There was a suspicion that the fires were lit by detainees with the applicant being one of the suspects. Mr Wallis recalled that the AFP conducted an investigation. The applicant was amongst the detainees transferred to Blue 3 on 22 January 2003 in the aftermath of the fires. While this was a decision made by ACM, Mr Wallis supported the decision. Upon admission to Blue 3 they were strip-searched. Mr Wallis said that the strip-searches were authorised and that there were stringent requirements for undertaking strip- searches. He denied that the applicant had ever been strip-searched five or six times in a single day. 1359 Mr Wallis said that in Blue 3 at this time detainees were isolated from the detainees in other compounds and had their privileges restricted. They were unable to make or receive telephone calls, perform work for points outside of the compound, attend education classes,563 undertake inter-compound visits or receive visitors. They were subject to more frequent room searches. 1360 Mr Wallis considered that after the fires there were legitimate security reasons for blocking access to telephone calls for a time. This was to prevent communication from outside the detention centre which might have encouraged or facilitated further fires. 1361 In the months following the fires Mr Wallis considered that there was a heightened emphasis on security at Baxter because of a concern that there could be further fires or other disturbances. The need for additional security measures in the wake of the fires led to some tension between DIMIA and ACM over the timing of the relaxation of these additional security measures. Mr Wallis said DIMIA deferred to ACM in relation to these decisions given ACM was the security expert. The need to increase security also led to a diversion of resources away from other activities such as excursions, inter compound visits and education programs. Some of the restrictions applying to detainees in Blue 3 were removed in March 2003. 1362 Mr Wallis said that after the fires in December 2002 he relied upon ACM’s expertise in security in deciding which detainees should be placed in the Management Unit or higher security compounds. 1363 However, concern remained about the prospect of protests being conducted at Baxter over Easter 2003. Extensive contingency planning was done to prepare for this risk. That included a high-level inter-agency meeting at Adelaide on 14 March 2003. Those protests did not eventuate and after Easter further restrictions applicable to Blue 3 were lifted. 1364 Mr Wallis recalled the incident in March 2003 where a tunnel was discovered which had been dug from within a cabin near a perimeter fence. It had been dug 563 However, Mr Wallis said education packs were made available to the detainees in Blue 3 if they wished to study. -- 266 of 647 -- [2025] SASC 59 Stanley J 263 by the applicant and his friend, Reza, although Mr Wallis could not recall the identity of the detainees involved. Mr Wallis regarded it as a genuine escape attempt. He considered that the discovery of the tunnel was a sufficient basis for ACM to classify them as high risk detainees. He said that while he tended to defer to ACM in relation to security decisions, he might have nonetheless queried on a daily basis whether it was necessary to keep any detainee in the Management Unit. 1365 In 2003 some of the perimeter compounds’ fencing was reconstructed to provide external views from within those compounds. Due to the nature of the construction of some of the compounds this was not possible in every compound. 1366 Some time in January 2003 Mr Wallis learned that ACM’s tender for the new detention centre’s management contract was unsuccessful and that ACM would be replaced as the manager of immigration detention centres later in 2003 or early 2004. DIMIA was concerned that ACM, for the remainder of the performance of its contract, would not maintain the standards prescribed by the IDS. This required Mr Wallis to focus more on monitoring ACM and its performance during this transition period. He said this reinforced the increased focus on security resulting from the fires and the imperative of preventing any further fires. Later on 21 January 2003, as a result of receipt of intelligence, searches were conducted in various rooms which discovered a variety of means of lighting fires. This search was undertaken because of a concern that an attempt would be made to ignite more fires. 1367 In June 2003 Mr Wallis received a report from a mental health nurse at Baxter that the mental health staff resources at Baxter were inadequate for the demand that existed given the mental health of detainees. She reported that the mental health centre at Baxter was grossly understaffed. Mr Wallis relayed this information to DIMIA in Canberra. Following this, an audit of the mental health services at Baxter was commissioned by DIMIA. The audit was conducted by Dr Falconer (the Falconer Report). Mr Wallis saw a draft report prepared by Dr Falconer in September 2003. Mr Wallis said he did not complain to Mr Burns or anyone from ACM that the number of mental health staff at Baxter was inadequate. 1368 Mr Wallis noted that the longer people stayed in detention, the greater the increase in the number of self-harm incidents. Those involved in self-harm incidents included a large number or Iranians. He thought self-harm was inflicted by detainees in the belief that they could force the government to allow them to remain in Australia. 1369 I found Mr Wallis to be somewhat defensive in giving his evidence. This was unsurprising given that his evidence was frequently subject to robust challenge. As a consequence, he reiterated on a number of occasions that his actions were dictated by the provisions of the Migration Act. Nonetheless, I consider he was prepared to make concessions where appropriate. Importantly, I do not consider that his evidence was tailored to defending the conduct of DIMIA -- 267 of 647 -- [2025] SASC 59 Stanley J 264 or ACM or its officers and employees from criticism or attack. On the contrary, it was apparent from contemporaneous documents that Mr Wallis made criticisms of the conduct of ACM in his reports to senior officers of DIMIA in Canberra where he considered ACM was in breach of its contractual obligations. A consistent feature of his evidence was his inability to remember many events during his time at Curtin and Baxter approximately 20 years ago. I am satisfied that such gaps in his memory were genuine and that he did his best to recall events from that time. It was apparent that his memory could be prompted by recourse to contemporary documents and he readily conceded that events recorded in such documents must have occurred as recorded, notwithstanding his inability to recall them in giving his evidence at trial. 1370 I am prepared to rely upon his evidence, although in doing so I exercise the caution necessary given the frailties of memory. I specifically reject an attack on his credit concerning the removal of a female detainee to Iran while her father was in the Management Unit. While I do not doubt she was deported in these circumstances, it was put to Mr Wallis by the applicant’s counsel that he had arranged for the daughter’s deportation and removal from Baxter, where her father was also detained, while he was in the Management Unit and without informing him of what had occurred until she had been returned to Iran. I am satisfied this was not the result of any decision made by Mr Wallis. Moreover, I reject any suggestion that his conduct in this matter reflected mala fides on his part. I am satisfied that he was merely doing his job. 1371 It is apparent that a number of the former detainee witnesses harbour some animosity towards Mr Wallis. That may have coloured their evidence, particularly concerning his conduct. I consider that their views result from them coming to regard Mr Wallis as the face of DIMIA and transferring onto him their frustration and anger at the refusal of the Commonwealth government to recognise their claims for asylum. In my view, Mr Wallis had a difficult job to perform and he went about it conscientiously, acting in accordance with his own understanding of the requirements of his position and the expectations of DIMIA as to how those requirements should be performed. 1372 I qualify my findings in relation to Mr Wallis in one respect. As I have said earlier, I accept the evidence of Professor Harding as to his conversation with Mr Wallis during his visit to Curtin, where he said that Mr Wallis had explained that he was joking when he made an apparently threatening remark to a detainee who had complained to Professor Harding about conditions at Curtin. I reject Mr Wallis’ denial that either conversation occurred. I cannot accept that Professor Harding imagined this occurring or fabricated the story. It is implicit in Professor Harding’s evidence of the conversation he had with Mr Wallis concerning the earlier exchange with the detainee, namely, that it was a joke, that the conversation must have occurred. I reject the submission that it is impossible to make a finding on this topic and that if the comment was made in jest, it does not carry the significance that Professor Harding or the applicant seeks to attach to it. The difficulty with that submission is that Mr Wallis denied that he was joking when -- 268 of 647 -- [2025] SASC 59 Stanley J 265 he spoke to the detainee involved.564 Mr Wallis’ denial of the conversations results either from an absence of recollection or embarrassment at his own conduct. I am unable to find which explanation applies. If the former, that reflects on his reliability to a small degree and the accuracy of his recollection of relevant events, albeit of a conversation which occurred more than 20 years ago and, particularly if it was intended as a joke, may not have been especially memorable for Mr Wallis. If the latter, that redounds on his credit, but I am not prepared to reject the rest of his testimony on this basis because I otherwise formed a favourable impression as to Mr Wallis’ credit for the reasons explained above. In the circumstances, I am not prepared to reject the entirety of his evidence which I otherwise consider credible. 1373 I should add one further observation in relation to Mr Wallis’ evidence. During a luncheon adjournment while he was giving I observed outside the courtroom an incident where Mr Wallis was confronted by a man in the street who acted in an aggressive manner and accused Mr Wallis of being a criminal. I did not recognise the other man. I was concerned that Mr Wallis may have been upset and intimidated by this incident. After the luncheon adjournment I raised the incident with counsel. Counsel for the Commonwealth, after speaking to Mr Wallis, sought an adjournment for the rest of the day as Mr Wallis had informed him he was shaken by the incident. Senior counsel for the applicant informed me that the applicant had no knowledge of the incident or the identity of the man involved. When Mr Wallis resumed his evidence the next day he appeared unperturbed. He did not make any further mention of the incident. I have not given any weight to this incident in my assessment of Mr Wallis’ evidence. ACM’s LAY WITNESSES Stephen Monaghan 1374 Stephen Monaghan was an employee of ACM at Baxter. He has a background in nursing. He commenced in general nursing but transferred to psychiatric nursing in the mid-1990s. He commenced employment at Baxter in about September 2002. He was called by ACM as a lay witness and provided a witness statement.565 1375 While he was employed at Baxter as a mental health nurse he also performed general nursing duties. In December 2002 he was appointed as the Health Services Coordinator at Baxter. He remained in this position until he ceased employment at about the same time as ACM’s contract expired. He stayed on for about a fortnight at the commencement of the G4S period. 1376 In his role as Health Services Coordinator he reported to the ACM centre manager, Mr Christopher Burns. Mr Monaghan recalled that they had a good working relationship. While he occupied the position of Health Services 564 T 7342.26-7343.15. 565 Exhibit 1.3TP1742. -- 269 of 647 -- [2025] SASC 59 Stanley J 266 Coordinator, all the health services staff at Baxter reported to him. He recalled that a number of nurses and health related employees were flown in from various locations. He said there was also a psychiatrist who flew in to visit detainees on a periodic basis. 1377 Mr Monaghan recalled that nurses were required to go down to the smaller health clinics in each compound daily, opening them up to dispense medicine and provide care. He also recalled mental health nurses and counsellors were required to go around the compounds and talk to detainees daily. He said that some of the detainees were not willing to meaningfully engage with the mental health nurses and counsellors. He said DSOs were advised by him to be alert to any “withdrawal” or “depressive” type symptoms being displayed by detainees and to bring them to his attention. 1378 Mr Monaghan gave evidence about the differences between the role of registered nurses and mental health nurses at Baxter. He said that registered nurses would generally attend the compounds, dispense medication, dress wounds, check blood sugar, check blood pressure and so forth. On the other hand, he said mental health nurses would generally attend with the counsellor or the psychologist on site and complete mental state examinations of any detainee who had already been identified as needing mental health intervention. He said that the mental health nurses at Baxter were generally registered nurses who had done further study to become a mental health nurse.566 1379 When Mr Monaghan conducted a mental health assessment, he would determine whether that detainee needed to be referred to a doctor. The doctor then had the authority to refer detainees to a psychologist and to see a psychiatrist for further assessment or treatment. 1380 Mr Monaghan said that the longer detainees were in detention, the more vulnerable they were to developing mental health issues. He recalled asking the mental health team to keep a closer eye on detainees who had been in detention for longer than a year. However, he conceded that he could not recall any formalised process for routinely monitoring detainees in this category. He said if they were identified as someone that needed further follow-up this would occur. He explained that with the amount of work and number of detainees they had to manage they were reliant to a degree upon concerns being raised by officers, detainees themselves, friends of the detainees or other staff.567 He agreed that to cope with the large number of detainees at the centre, the mental health team utilised a triaging process. This helped ensure resources were not wasted on people who were mentally well. He agreed that, for example, someone who was playing soccer in the compound every day, exhibiting appropriate social interaction with 566 T 7504. 567 T 7574. -- 270 of 647 -- [2025] SASC 59 Stanley J 267 friends on a regular basis and being pleasant with officers would not come to the attention of health staff as someone who required investigation and follow up.568 1381 Mr Monaghan gave evidence about the induction process for detainees upon their arrival at Baxter. While he was the health services manager he was not involved in the process of inducting new detainees into Baxter or completing any initial health assessments, but he oversaw the staff that did. He agreed that the majority of detainees arriving at Baxter in 2003 were transfers from another detention centre. 1382 Mr Monaghan agreed that the only documentation the Baxter health staff would have had to rely upon at the time of transfer were the clinical notes from Curtin and any intake screening documents.569 He said that while the detainee’s clinical notes would be transferred to Baxter with the detainee, this did not necessarily occur simultaneously. He thought there may have been a time delay between the detainees arriving at Baxter and the medical staff gaining access to their clinical notes.570 1383 Mr Monaghan could not recall the exact types of reception medical screening documents which were completed upon arrival. 1384 Mr Monaghan gave evidence about screening detainees for torture and trauma at Baxter. He agreed that there was no process within the mental health team for assessing whether or not a detainee had been subjected to torture and trauma before coming to Australia upon arrival at Baxter. He was unsure how DIMIA would have done that assessment. He assumed that any questions about torture and trauma would have been asked when a detainee first arrived in Australia. He said those assessments would have depended upon whether the detainee was forthcoming with that type of information. He agreed that when assessing detainees upon their arrival at Baxter staff relied upon the clinical assessments which had been conducted by DIMIA or the initial intake staff when the detainee had first arrived in Australia. However, Mr Monaghan also said that health staff were not privy to any of the background information that detainees may have told DIMIA for the purposes of facilitating their visa process. 1385 Mr Monaghan said that to his knowledge none of the ACM mental health nurses or registered nurses had any specialised training in torture and trauma. He thought that the psychiatrist may have been able to treat detainees with torture and trauma. He recalled that STTARS attended Baxter in 2003 to provide an educational session to staff about treating torture and trauma. He said STAARS indicated they could not attend Baxter to do any counselling for torture or trauma onsite.571 568 T 7515. 569 T 7552. 570 T 7551-7552. 571 T 7794. -- 271 of 647 -- [2025] SASC 59 Stanley J 268 1386 Mr Monaghan recalled that detainees at Baxter self-harmed, and that sometimes this would occur shortly after they received news of a negative visa decision. He said they had a practice of keeping a close eye on detainees around this time, as DIMIA would often advise them in advance of a negative decision being handed down. 1387 Mr Monaghan gave evidence about the Management Unit at Baxter. Mr Monaghan recalled that upon admission detainees were pat searched and swiped with a metal wand. He was not aware of any strip-searching being carried out prior to entry to the Management Unit but acknowledged that this would not have been handled by health staff in any event. He recalled the rooms were necessarily sparse, with high windows covered with mesh and observation cameras. He said the unit had a central common area which included a TV and that there was also a small outdoor yard available to detainees. 1388 Mr Monaghan gave evidence about staffing at Baxter. He agreed there were periods of time where there were no counsellors employed at Bater. But he said that during this time the psychologist was available and the counsellor’s role was not as important as the mental health nurses and psychologists.572 He did not recall ever being informed that staff at Baxter had concerns that the mental health team at Baxter was understaffed.573 1389 Mr Monaghan recalled that it was difficult to retain staff long term at Baxter. On a number of occasions, he had a negative reaction from others because of his employment at Baxter. He recalled the view was that by working at a detention centre, you were in effect assisting DIMIA to implement a very harsh immigration policy, and it was wrong to be part of implementing that policy. He linked this attitude to problems with staff retention. Mr Monaghan agreed that the high turnover of staff made it much more difficult to provide continuity of care for detainees. 1390 During his time at Baxter Mr Monaghan thought that DIMIA had about eight to 10 employees on site. The DIMIA manager was Mr Wallis. They worked together closely. Each morning there were meetings with the DIMIA employees and other ACM managers to keep DIMIA up to date about what was happening in the detention centre. DIMIA staff would question him about issues relating to the provision of health services to detainees. 1391 Mr Monaghan was asked to review a copy of the applicant’s medical records. After undertaking this review, he gave evidence that the applicant’s encounters with the Management Unit related to his potential involvement in the fires in December 2002, his involvement in a group self-harm protest incident in February 2003 and his involvement in digging a hole in April 2003. I note aspects of this evidence are erroneous in that there is no record the applicant was placed in the 572 T 7582. 573 T 7583. -- 272 of 647 -- [2025] SASC 59 Stanley J 269 Management Unit in February 2003 and the hole digging incident occurred in March 2003 rather than April. 1392 Mr Monaghan noted that after the possible overdose in August 2003 the applicant was observed by medical staff rather than being transferred to the Management Unit. 1393 Mr Monaghan was aware that the Management Unit was designed to house detainees who required closer supervision as well as having a management purpose. It was the only unit in Baxter where a detainee at risk of self-harm could be accommodated. 574 1394 Mr Monaghan confirmed that he supervised Nurse Diane Rarity, and had occasion to directly observe her performing her duties, including conducting mental health assessments. He recalled being satisfied, as her supervisor, that she was a competent psychiatric nurse. 1395 Mr Monaghan gave evidence about the applicant’s overdose attempt on 11 August 2003. He had no independent recollection of the incident and was reliant upon the documentation provided to him. Mr Monaghan was shown an ACM Incident Follow-Up Report dated 10 August 2003.575 The report was authored by the Centre Shift Manager Martin Moore. It states: On 10 August 2003…Health Services Manager Steve Monehan [sic] attended the facility to conduct an audit on the medications and found that 15 x TRAMAL tablets were indeed missing…Mr Monehan [sic] states that the medication that is missing is “Low Risk” of overdose of any person attempting to take an overdose would have to take a “High proportion” of this drug to have any adverse reaction and would not be life threatening. Mr Monehan [sic] also stated that if any one person was to take the missing 15 tablets they “MAY” suffer slight respiratory depression… 1396 Mr Monaghan said he did not recall giving this advice.576 He said the advice would have been given on the basis of what was known about the medication. He said he would have been guided by the MIMS manual which is a pharmaceutical manual that advises on the appropriate dosages and potential side effects. He agreed that he would have connected the theft of the Tramal tablets with the applicant’s overdose attempt the following day. He understood from his review of the applicant’s medical records that the applicant reported having taken five tablets and denied being in possession of any further tablets. He agreed that the discrepancy between the missing tablets and the amount the applicant reported he had taken might have given rise to the possibility that the applicant had under- reported the amount of medication he had taken. He also agreed that in assessing the applicant after the overdose it would have been important to ascertain whether the applicant had experienced any recent stressful events. He also said that the applicant’s High Court rejection on 8 August 2003 would have been relevant 574 T 7527-7528. 575 Exhibit 1.3TP1741. 576 T 7500. -- 273 of 647 -- [2025] SASC 59 Stanley J 270 information when conducting such an assessment. He agreed that the only way the person conducting the assessment could have known about the rejection was if they were informed by DIMIA or the applicant. He conceded it was possible that the health services were not advised about the applicant’s High Court rejection on 8 August 2003. 1397 I found Mr Monaghan’s evidence to be of some, albeit limited assistance. He did not give evidence of knowing, observing or interacting with the applicant. In many respects he was wholly reliant on the documentary evidence he had been provided with when giving evidence. Much of his evidence corroborated the evidence of other ACM witnesses and was not specific to the circumstances of the applicant. While I am satisfied he was trying his best to assist the Court, understandably he had difficulty recalling events and practices that occurred so long ago. 1398 However, I am generally prepared to rely on his evidence where relevant in making findings of fact. His evidence does not support a finding that the failure to undertake a full MHA upon transfer to Baxter was a breach of the Commonwealth’s duty of care to the applicant. I will return to this. Diane Rarity 1399 Diane Rarity was employed as a psychiatric nurse at Baxter from December 2002 to December 2003. Ms Rarity provided a witness statement577 to ACM for the purpose of these proceedings which was supplemented by oral evidence. She did not give evidence as an expert witness. 1400 Ms Rarity gave evidence that corroborated other evidence I heard about Baxter, including inter alia, detainees’ complaints of insomnia, the layout of the Management Unit, her observations of the behaviour of detainees, incidents that occurred when medicine was dispensed in the compounds and the performance of mental state assessments and dispensing medication. Ms Rarity also gave evidence that she clearly recalled the applicant from her time at Baxter. 1401 Ms Rarity described the process of screening a detainee who was being placed at Baxter. She said she would interview the detainee to ascertain whether there was any history of mental illness, torture and trauma or physical health problems, and seek information about previous employment and family. She said detainees were screened for previous psychological problems or symptoms and drug and alcohol use. They were also questioned about their social and employment history, and the life they had left behind. 1402 Ms Rarity gave evidence that welfare checks were undertaken by a psychiatric nurse. She said they involved checking the mood of the detainee, asking if they had any physical issues and if so, arranging for treatment, asking if they had any mental health issues, asking if they had any suicidal thoughts or 577 Exhibit 1.3TP1743. -- 274 of 647 -- [2025] SASC 59 Stanley J 271 thoughts of self-harm. She said she was seeking to determine whether the detainee was safe and well. 1403 Ms Rarity also described the process of triaging detainees who exhibited symptoms of psychiatric illness for review by the visiting psychiatrist. Priority was given to those detainees who had signs of psychiatric injury. 1404 Ms Rarity would conduct regular compound visits. If she observed anything of significance in relation to a detainee she would make a note in the detainee’s progress notes. She would also record positive interactions with detainees and anything significant described by other detainees concerning a person who was thought to be at risk. She undertook what she described as psycho education with detainees during these compound visits. 1405 Ms Rarity also described how members of the mental health team would visit compounds on a daily basis for the purposes of identifying detainees who might have been exhibiting signs of psychiatric illness or whose circumstances might have suggested that they were at risk of doing so. This was in addition to assessing and treating detainees who were referred to the mental health team. For example, a member of the mental health team might see a detainee who had received an adverse visa decision. A review might result in a referral to a GP or a psychiatrist. If detainees appeared distressed they would be subject to daily welfare checks. She said the mental health team did not simply rely upon a detainee’s denial of self- harm or suicide. If they appeared sufficiently distressed the detainee would be referred to the psychiatrist and the GP for immediate treatment. 1406 Ms Rarity said the mental health team met daily to conduct a handover briefing, canvassing any concerns that had arisen during the previous shift. She also gave evidence that in the medical file kept for a detainee general medical notes were mixed with mental health notes. She conceded that this made it more difficult to isolate information relevant to a detainee’s mental health. 1407 Ms Rarity was aware that the applicant, like many detainees, suffered from insomnia. She gave evidence that this was a widespread problem directly related to the hot climate. Ms Rarity said advice on good sleep hygiene was given to detainees who complained of insomnia. 1408 Ms Rarity gave evidence that she was trained in undertaking a mental state examination which includes observation and consideration of the applicant’s appearance, behaviour, cooperation, eye contact and mood. She said a mental state examination forms part of a mental health assessment.578 A mental health assessment considers a patient’s past history, whether that included any symptoms of psychiatric illness, family history, visits to general practitioners and psychiatrists, physical health, drug and alcohol use, employment history, social history, housing situation, appearance and behaviour, mood, affect, any signs of 578 T 7662. -- 275 of 647 -- [2025] SASC 59 Stanley J 272 thought disorder, sleep patterns, diet, ability to describe circumstances and situations, any evidence of perceptual disturbance, hallucinations, experience of delusions or hearing voices, evidence of insight, speech, signs of cognitive problems, orientation in time and place, evidence of self neglect, and whether there is any need for referral to a psychologist or psychiatrist. She gave evidence that conducting assessments considering these criteria was the approach she adopted at Baxter. 1409 Ms Rarity said placement of a detainee in the Management Unit for mental health reasons was based on a joint decision of the HRAT team, the GP, psychiatric nurses and, if applicable, the visiting psychiatrist. A detainee placed in the Management Unit for mental health reasons could only be released on a decision by the HRAT team. If a detainee was placed in the Management Unit for security purposes, Ms Rarity had no involvement in the decision for the placement or release of that detainee. Ms Rarity said she was unable to override a security decision. The mental health inquiries made while a detainee was in the Management Unit would be more in-depth if the detainee was on HRAT. 1410 She said that the applicant was not in the Management Unit for mental health reasons in early January 2003. 1411 In the course of giving her evidence Ms Rarity was at pains to emphasise the highly pressured nature of the work she undertook at Baxter. She said she was frequently pressed for time. She volunteered that many of the medical file entries she made were not comprehensive or to the standard she would have recorded had she had more time to do so. She said the physical conditions under which she worked were difficult and exhausting. It was very hot. The workload was substantial. 1412 Ms Rarity gave evidence that the first time she saw the applicant was on 2 January 2003 when she interviewed the applicant in the Management Unit. She considered the applicant spoke reasonably good English. 1413 Ms Rarity said that on 2 January 2003 she did not have time to undertake a full comprehensive mental health assessment. She also did not have his medical file. She said she conducted a welfare check. However, she also referred to having conducted a mental state examination on this occasion. She did not consider a comprehensive mental health assessment was necessary as the applicant had not been placed in the Management Unit for mental health reasons. She noted that the applicant was euthymic i.e. displaying a normal, tranquil mood. Ms Rarity recorded that the applicant stated he had no physical or mental health issues and denied any thoughts of self-harm or suicide. She recorded the applicant telling her that he had no physical or mental health issues and that he denied any thought of self-harm or suicide. 1414 Ms Rarity said the conversation on 2 January 2003 was brief. There was not much time to establish rapport. She suspected that the applicant would have been -- 276 of 647 -- [2025] SASC 59 Stanley J 273 careful about what he said on this occasion. She was wearing an ACM uniform which may have affected the extent to which detainees were prepared to confide in her. She accepted that a lack of continuity of care could have been an obstacle to the free flow of information between health centre staff and detainees. Ms Rarity said that if she had been aware on 2 January 2003 that the applicant had not undergone a comprehensive mental health assessment and been properly screened for torture and trauma in the two years he had been in detention she would have referred him to the psychologist for review. 1415 Ms Rarity saw him the following day, 3 January 2003 in the Management Unit. She undertook a welfare check and a mental state examination. She said a comprehensive mental health assessment was not required at that time. Ms Rarity noted that the applicant appeared euthymic, his effect was appropriate and there was no evidence of any formal thought disorder, although he appeared drained and exhausted. Ms Rarity said that given the weather conditions and the extreme heat everyone in Baxter appeared drained and exhausted. She considered he was not a threat to himself or others. He also reported to her on this occasion that he was experiencing pain in his testicles. 1416 Ms Rarity agreed that she would have been interested to know how long the applicant had spent outside his room in the Management Unit when conducting welfare checks on the applicant in early January 2003. 1417 She said that when the applicant was released from the Management Unit in January 2003 he was not acutely unwell. If he had been he would have been referred to a psychiatrist or the medical officer. On the contrary, he described feeling fine and doing ok. There did not appear any reason at that stage to refer him for further assessment or treatment. He was followed up to check on his wellbeing physically and mentally. She considered the applicant was doing okay mentally. 1418 Ms Rarity described attending the B3 compound on 6 February 2003. She was confronted with a group of male detainees including the applicant, who had cut themselves multiple times using a razor blade. Her evidence was that these men were screaming and abusive. She recalled some were more seriously injured than others. They appeared to be angry about restrictions on phone calls. The medical staff needed the assistance of security personnel in order to treat the injured. The medical staff were concerned that the detainees might still have been in possession of razor blades which could have been used to attack them. Multiple lacerations had been inflicted to the applicant’s body. Cuts to his chest and abdomen had been made using a razor blade. She treated him for his wounds after the protest. There was only one superficial cut which required steristrips. 1419 The applicant told Ms Rarity that he had no intention of committing suicide or inflicting further injury. He told her he was protesting to attract the attention of the authorities in Baxter. At the time she made a note recording that the applicant had no intention to kill himself and denied suicidal ideation. She did not conduct -- 277 of 647 -- [2025] SASC 59 Stanley J 274 a mental health assessment. Her focus was treating the physical injuries with which the detainees presented. There was no time to perform a comprehensive mental health assessment. It was an emergency response. She undertook a welfare check on the applicant. The plan was for him to be reviewed by a registered nurse. She did not have access to the applicant’s medical file on 6 February before she responded to the emergency call. She could not recall whether the applicant told her that this was the first occasion on which he had self-harmed. However, given that she assessed him as not being at risk of suicide or further self-harm, she did not recommend he undergo a full mental health assessment at the time. She said if a decision had been made on 6 February 2003 to refer the applicant for a full mental health assessment that would have been performed either by one of the mental health team nurses, the psychologist or the GP. 1420 On 6 March 2003 Ms Rarity saw the applicant in the Management Unit after he was found digging the tunnel. He had been placed in the Management Unit as he was considered to be an escape risk at that time. She understood the applicant was not placed in the Management Unit in March 2003 for mental health or HRAT reasons. She performed a mental state examination and a welfare check. She considered there was nothing unusual about his presentation. She noted that his mental state appeared settled and he had no further physical complaints, and had no ideas of self-harm or of suicide. He complained of not sleeping and wanted a prescription for sleeping pills, and to see the doctor. Ms Rarity made an appointment for him in two weeks’ time which was the earliest available appointment. She did not consider that a referral to a psychiatrist was needed at that time. 1421 Ms Rarity conceded that when assessing the applicant in March 2003 she was unaware that Dr Ojah had previously identified him as suffering from severe stress. She was also unaware that the applicant had been in detention for two years and one month and had not undergone any torture or trauma screening. Ms Rarity gave evidence that had she known these things, she would have recommended in the applicant’s treatment plan that he ought to undergo a full mental health assessment. She said a plan for review would have then been formulated after a team discussion. She would have referred him to a psychologist and discussed him at the next HRAT meeting. 1422 From 6 to 8 March 2003 while the applicant was in the Management Unit Ms Rarity saw him on a daily basis. She recalled performing a mental state examination but did not observe anything unusual. On 9, 10 and 11 March 2003 Ms Boxall, a psychiatric nurse from the MHT, saw the applicant while he was in the Management Unit. Ms Rarity did not consider that placement in the Management Unit for nine-and-a-half days in March 2003 was an extensive period.579 In deciding what constituted an extensive period of time in the Management Unit, such that a full mental health assessment ought to be undertaken Ms Rarity said regard would have been had to the detainee’s 579 T 7769.26. -- 278 of 647 -- [2025] SASC 59 Stanley J 275 presentation. In the applicant’s case he did not present in 2003 as someone who was acutely mentally unstable. Ms Rarity did not consider that during this time in the Management Unit the applicant posed an immediate threat to himself or others. He was in the Management Unit for security reasons. 1423 Ms Rarity gave evidence about the conditions in the Management Unit. She said that during extremely hot weather the air conditioner would sometimes struggle to maintain a comfortable level of coolness. I address this topic in greater detail elsewhere in these reasons. 1424 Despite her attempts, she found it difficult to establish rapport with the applicant. Ms Rarity remembers the applicant being angry and abusive on numerous occasions. 1425 I formed the impression that Ms Rarity was a conscientious professional who felt that at Baxter she was unable on many occasions to perform in accordance with the high standards she expected of herself. Understandably, like so many witnesses, she had difficulty recalling some incidents that occurred during her time at Baxter. That said, I am of the view that she was doing her best to give evidence as accurately as her memory permitted, without regard to whether that may have reflected adversely on her. 1426 I consider she endeavoured to recount as accurately and extensively as possible the events she observed. I found Ms Rarity to be a credible witness. I am generally prepared to rely on her evidence in making findings of fact. Gerald McCormack 1427 Gerald McCormack was the general manager of detention services for ACM in the period November 2000 to October 2002. In this role, he reported to the ACM Managing Director Mr Kevin Lewis. He was based in ACM’s Sydney office and oversaw the operation of ACM’s immigration detention centres. He received regular written reports from each detention centre manager. He visited all of the detention centres regularly, including Baxter shortly before it was commissioned in 2002. 1428 Mr McCormack gave two witness statements in this action.580 His evidence predominately concerned the operational management and procedures employed in ACM’s detention centres. These included procedures related to self-harm and security issues. He also gave evidence about the relationship between ACM and DIMIA, and various oversight mechanisms. This included reference to monthly meetings with DIMIA known as Contract Operations Group (COG) meetings, IDAG quarterly certificates and detention centre reviews. He did not interact with or recall the applicant. 580 Exhibits 1.3TP1758, 1.3TP1759. -- 279 of 647 -- [2025] SASC 59 Stanley J 276 1429 Mr McCormack is an elderly gentleman who had considerable difficulty in remembering the detail of events during his period employed by ACM. His answer to many questions was that he could not remember. He gave me no reason to think otherwise. I am prepared to accept his evidence to the limited extent that he was able to recall relevant events from so long ago. 1430 In his approach to the performance of his duties with ACM it was apparent that he had viewed self-harming behaviour by detainees as manipulative and motivated solely by an intention to pressure DIMIA into providing them with a protection visa. 1431 I was left with the impression he was dismissive of any suggestion that self- harming by detainees was the product of mental illness. Keith Fyfe 1432 Keith Fyfe is a registered nurse. He currently works as a clinical nurse specialist in mental health at the Kurrajong Tweed mental health unit, connected to the Tweed Hospital. At the time of his employment in immigration detention with ACM, he had a Bachelor of Nursing, which included a mental health component. He has since undertaken a Graduate Diploma in Mental Health Nursing but did not have this qualification when he was working in immigration detention. He does not have any specific training in torture and trauma and did not receive such training at the time. 1433 Mr Fyfe gave a witness statement.581 He gave evidence about his position with ACM, his recollections about the health services available at Baxter and his interactions with DIMIA. He did not give expert evidence. 1434 Mr Fyfe commenced employment at Curtin in October 1999 as a registered nurse. He recalled that due to an increase in detainees he was given the position of health services manager (HSM) on site in late 1999. He then worked at Woomera on four or five occasions between 2000 and 2003. During this period, he also worked as a fly-in fly-out worker at Curtin582 between 27 July and 30 August 2000, and for a further period in February 2001. All but one of his visits were as the HSM. 1435 In late 2002, Mr Fyfe worked at Baxter as a registered nurse for six weeks. At that time, Ms Tracie Parkes was the HSM. During this period, he temporarily assumed the position of Acting HSM when Ms Parkes went on leave. 1436 After Woomera closed in 2003, Mr Fyfe took up a position at a correctional facility prior to returning to Baxter in November 2003, where he remained during the transition period after G4S commenced operation of Baxter. During that time, he was responsible for the administration of health services, while also performing 581 Exhibit 1.3TP1762. 582 T 8337. -- 280 of 647 -- [2025] SASC 59 Stanley J 277 nursing duties when required. In March 2004, he was the Acting HSM at Baxter. He was not, at any time, employed at Baxter as a mental health nurse. 1437 When Mr Fyfe was working as a registered nurse, the HSM Manager was his line manager. When he was the HSM, his line manager was the Executive Health Service Officer, Mr Shaun Finnigan, based at the ACM head office. As HSM, Mr Fyfe reported daily to the centre manager. He discussed any more difficult clinical matters with his line manager, who was a clinician based in Sydney. The centre manager was not a clinician. During the ACM period all general health staff, including psychologists, reported to Mr Fyfe regarding clinical matters when he was acting as the HSM. 1438 As HSM at Baxter, both during the ACM period and the G4S period, Mr Fyfe was required to complete many reports for DIMIA, including a monthly report. The monthly report recorded the number of general practitioner appointments; nurse attendances on individual detainees; and medications issued at Baxter during the month. At least in March 2004, records of psychiatric attendances on detainees were being kept by PSS, the company to which psychology and counselling services had been subcontracted. 1439 During his time working at Baxter, Mr Fyfe did not have any interaction with the Health Services Coordinator, Mr Steven Monaghan, apart from one or two phone conversations. Although Mr Monaghan initially worked as a mental health nurse from September 2002 until he was promoted in December 2003, Mr Fyfe had no recollection of working alongside him. 1440 When Mr Fyfe occupied the HSM position at Baxter, he was physically located in the medical centre. He recalled interacting with all of the nurses on duty at the same time as him on a daily basis, as well as with the practitioners who visited and consulted at Baxter, and the psychologist. In addition to his managerial duties, he would also perform some nursing duties as required. Generally, this occurred on a daily basis. 1441 Mr Fyfe recalled that when performing nursing functions, he would discuss different detainees about whom staff had expressed concerns. This would include collaboration between the medical staff and the psychologists and psychiatric nurses. He asserted there were no confidentiality issues, and the two branches were able to freely discuss the wellbeing of any particular detainee. 1442 Mr Fyfe said that every detainee was given an initial clinical assessment upon their first arrival at a detention centre. Detainees that had been transferred from one centre to another would be given an additional assessment upon arrival at the second centre if clinically indicated. He recalled that if a detainee was being transferred to another centre, all of their medical information would be sent to the new centre so that the clinical team were prepared and the required medication for any individual coming into their care was available. -- 281 of 647 -- [2025] SASC 59 Stanley J 278 1443 Mr Fyfe recalled that nurses at Baxter, both in the G4S and ACM periods, went into compounds to dispense medications to detainees at least twice a day, usually in the morning and late afternoon. When they did so, they also paid attention to the mood and behaviour of the detainees that they interacted with. They had a holistic view of every detainee. They understood that many detainees could be in a situational crisis that needed to be identified quickly. Medical staff would also visit detainees in the Management Unit at least twice a day. 1444 The only detainees that would be observed by medical staff in the context of administering medication would be those who were receiving the medication. Due to the unusual sleeping schedule of many detainees, a number of detainees would be sleeping during the morning medication visit. It would be recorded if a detainee was not presenting for their medication. There were some forms of medication that were, in effect, discretionary for a detainee, and others that were required to be taken daily and were more important if missed. Examples of discretionary medication, known as “PRN”, ranged from Panadol to Glyceryl Trinitrate spray for chest pain. If someone was on essential medication, the staff would either wake the detainee or provide the medication to them in the evening. 1445 The medical staff would also go out and interact with families and children in the detainee population on a very regular basis, including by having coffee, breakfast and lunch with them. Children and families were a priority for health staff and counsellors, in particular unaccompanied minors. Baxter had dedicated nurses and midwives to look after women and children. If it was safe to do so, medical staff would also interact with detainees in the all-male compounds in the same way. Mr Fyfe said the visits were partly motivated by the need to break down any “us and them” perception that the detainees might have had. If any concerns were noted during these visits, they would be recorded and put on the medical file. If it was necessary to see a detainee in their room, a DSO would attend with the medical staff member. 1446 Mr Fyfe said it was often during these interactions that detainees would approach medical staff to ask for assistance. It was common for individual detainees who were not feeling well, either mentally or physically, to approach the nurse on duty or in the compounds for an appointment, a conversation or follow- up care. If a detainee self-reported any mental health concerns, this would be followed up by staff on the same day by speaking to the detainee. These assessments would be conducted with the visiting psychiatrist if they were at Baxter. 1447 Mr Fyfe said mental state examinations could be undertaken formally by a psychiatrist, but also informally by nurses when they visited the compounds. If the nurses observed any concerning behaviours or moods in detainees, a health assessment would be carried out, the nurses would liaise with security officers to gather information to get a clearer picture, and the matter would then be referred to psychology for further assessments. If necessary, the matter would then be referred to the medical team who could then make a referral to the psychiatrist. -- 282 of 647 -- [2025] SASC 59 Stanley J 279 There were also many occasions when nurses were sufficiently concerned to refer matters directly to the medical team, although the psychology team would still be consulted. He said the approach would be tailored to each individual situation. 1448 Mr Fyfe recalled physical handwritten medical records were kept in the health centre at Baxter. If medical staff visited a detainee in the compound, they would generally write their notes in the compounds and then bring them back to the health centre to put on the physical file. He said this documentation was particularly important at Baxter due to the multi-disciplinary nature of the team. Every interaction with detainees was recorded in as much detail as the clinician saw fit. There was no centralised record of detainees who had been diagnosed with a mental illness, but records were kept if any detainee presented with an acute mental illness, and this was always followed up. Mr Fyfe said that the psychology team kept good records of who they had seen and the frequency with which they were seen. 1449 When G4S took over management of Baxter, medical services were subcontracted out to IHMS, and psychology and counselling services were subcontracted to PSS. Mr Fyfe said the nature of the duties performed by the nursing and medical staff at Baxter in the G4S period was essentially the same as in the ACM period. He recalled that clinical duties remained the same after the transition.583 1450 During Mr Fyfe’s first period at Baxter, there were a number of GPs from a local clinic in Port Augusta who attended the detention centre. Mr Fyfe said a psychiatrist, Dr Andrew Frukacz, visited once a month. There was one psychologist, at least one counsellor, and about 10 nurses. Mr Fyfe was unable to recall how many of the nurses had specific mental health qualifications but noted that all nurses undertook training in mental health as part of their studies. In general, Mr Fyfe estimated that six to eight nurses would have worked during the day, and between two to four would have worked at night. He said these staffing levels remained the same during his second period at Baxter. However, levels reduced once the contractors took over. In March 2004, there were 245 general practitioner appointments, 661 nurse attendances on individual detainees, and 70 dentist appointments at Baxter. 1451 There were no DIMIA employees working directly in health services in the detention centres. To Mr Fyfe’s knowledge none of the DIMIA employees on site at Curtin or Baxter had any medical qualifications. 1452 As HSM Mr Fyfe did not play any particular role in recruiting health staff, as he was only there for a short period. He was, however, aware that there were often difficulties at Baxter recruiting and retaining permanent staff in the health centre, and a number of fly-in fly-out staff were used. Mr Fyfe said he insisted on 583 T 8322. -- 283 of 647 -- [2025] SASC 59 Stanley J 280 using fly-in fly-out workers because he was aware that the local community would be left without proper clinical coverage if nurses were recruited from the local hospital. 1453 During Mr Fyfe’s later period at Baxter, during the transition from ACM to G4S, he was much busier with administration. He spent less time in the compounds or doing general nursing duties due to the pressure to complete the transition smoothly. However, there were less detainees in the compound. The number of medical staff at Baxter did not change despite the decrease in the number of detainees. This meant that the staff had more time to spend with the detainees. During this period, the health team’s days were generally fully taken up with their daily duties of seeing the detainees in the Management Unit, administering medication, and attending on detainees that had been referred to the health team. 1454 Mr Fyfe does not recall stress in the workplace being an issue. However, he agreed that the work at Baxter was high pressure. He said there was pressure from DIMIA to keep very clear clinical records and respond to any complaints very quickly. The team also had a significant workload that they had to deal with every day. He said from time to time the work was exhausting. 1455 When the psychiatrist Dr Frukacz attended at Baxter, Mr Fyfe would personally go to the compounds with him.584 He recalled a conversation with Dr Frukacz on one such visit during his first period at Baxter in which Dr Frukacz expressed concern that the detainees could not see the horizon from within the compounds. Although Mr Fyfe gave evidence that some compounds at Baxter had fencing that included mesh panels or a type of fencing that was transparent, he agreed that this was damaging to mental health, particularly the longer a detainee remained there.585 1456 Mr Fyfe said Baxter was different from Curtin in that apart from the difficulty of detainees seeing out of their compound during the ACM period, they were not able to freely move between compounds as occurred at Curtin. If detainees wanted to go to another area in the facility, they would have to go on a bus escorted by detention officers. Several detainees complained to Mr Fyfe about this increased restriction. 1457 If Mr Fyfe had any concerns about aspects of the facility which were affecting detainee health, including the fencing or lack of views within the compounds, he could have raised them with either his supervisor in Sydney, the detention centre manager, or at the daily morning meeting that was held with staff from DIMIA. However, Mr Fyfe regarded fencing issues as being related to security and separate from his role as a clinician. 584 T 8314. 585 T 8340-8342. -- 284 of 647 -- [2025] SASC 59 Stanley J 281 1458 Over his time at Baxter and other detention centres, Mr Fyfe observed that mental health of the detainees who remained in detention appeared to be deteriorating. When he returned to Baxter in November 2003, there were fewer detainees than there had been earlier. He recalled that at that time many applications for visas were being granted and rejected.586 A large proportion of the remaining detainees were Sunni Mandaeans, or Christian Iranians. There were still some children within the population. It was at this time that he noticed an increase in mental illness. He agreed that about a quarter of the population was suffering mental illness. He thought that this was much higher than would be observed in the general community.587 As more people were being discharged from Baxter, he observed that those left behind were clearly becoming more helpless and hopeless. In particular, Mr Fyfe observed that the frequency of soccer games was decreasing, a lot of negative conversations were being had, and detainee’s positive future plans were being set aside. By November 2003 most, if not all, of the detainees at Baxter had been in detention for more than two years. Mr Fyfe recalled a specific conversation in which he asked a detainee what he could do to lift their spirits, and the detainee responded with words to the effect of “Give me a visa”. This type of response from detainees was common. 1459 Mr Fyfe said there were five ways that mental health issues could be raised with health staff: • self-reporting by detainees; • reports from clinical or health staff; • reports from other detainees; • concerns raised with the health team by detention officers; and • concerns raised with the health team by DIMIA staff. 1460 In addition, Mr Fyfe recalled that at Baxter there was a system by which every detainee underwent a clinical assessment at least once a month. He said that records would have been kept of these assessments. The clinical assessments were holistic and included a basic mental state exam, including recording the presentation, mood and affect of the detainee. Mr Fyfe expected that MHAs would be conducted over time following arrival, once the detainee had settled in.588 He acknowledged that he may have been confusing Baxter with another detention centre,589 but stated that this would have been a desirable system.590 586 T 8364-8365. 587 T 8367. 588 T 8362. 589 T 8352-8354. 590 T 8377. -- 285 of 647 -- [2025] SASC 59 Stanley J 282 1461 On many occasions at both Curtin and Baxter, Mr Fyfe had detention officers report concerns to him about detainee behaviour that might indicate mental health problems. He personally ran training sessions for the DSOs at Curtin to identify behaviours that might indicate a detainee was at risk of self-harm or suicide. He did not provide any training for detainees on how to recognise signs or symptoms of mental illness.591 To Mr Fyfe’s knowledge, no such training was provided at Baxter.592 However, he had dealt with many of the security staff at Baxter previously and he knew from experience that they were vigilant in flagging any individual whose mental or physical health was of concern. All of the clinical staff had qualifications in mental health as part of their studies.593 1462 All staff who worked for ACM had training in the HRAT system which imposed a duty on all staff to report any concerns to clinical staff. While some employees did over-report, every reported concern was followed up. When G4S took over, this became the Suicide and Self-Harm (SASH) system, which was essentially the same. Under both systems, DSOs were directed to look for certain behaviour in detainees indicative of a risk of mental ill health, including self- neglect, not attending meals, not attending for medication, or someone who was generally having a flat, hopeless, helpless day. Every report under these systems would be considered at regular meetings. There would be a discussion whether to continue to investigate each matter. Any relevant documentation would be considered, including the notes of DSOs concerning the behaviour of detainees. From time to time, DSOs would also report that a detainee was not socialising. Particular attention would be paid to whether such behaviour was unusual for the individual detainee. 1463 Mr Fyfe described HRAT as a committee comprised of representatives from programs, allied health, security, clinical and DIMIA personnel. He recalled that upon referral, HRAT would assess the detainee and determine the care required. This included transferring a detainee to the Management Unit to be closely monitored. He recalls that nurses visited the Management Unit to assess detainees at least twice a day, though HRAT had the capacity to schedule additional observations if required. HRAT also determined whether a detainee required observation, and if so, the frequency of those observations. 1464 Mr Fyfe gave evidence that a number of detainees had altered sleep patterns. Particularly in Curtin where it was hotter, detainees would sleep during the day and active at night. This was particularly evident during Ramadan, and was common for the men. This would be taken into account in assessing whether a detainee was withdrawn. General Practitioners would often prescribe detainees Endep if they were having problems with sleep. 591 T 8338. 592 T 8315-8316. 593 T 8325. -- 286 of 647 -- [2025] SASC 59 Stanley J 283 1465 Other stressors that staff were trained to look for were bereavement, close friends being deported, and visa rejections. Individuals going through a visa rejection would be watched closely and counselled both before and in particular, after the decision. If a detainee engaged in self-harm, this would require immediate action. 1466 Staff were also trained to recognise if a detainee might have overdosed on medication, although Mr Fyfe cannot recall this ever happening as medications were so tightly controlled. Such an incident would be investigated, including an investigation into the clinician responsible for the medication. Mr Fyfe said that every pill dispensed was recorded. 1467 Mr Fyfe cannot recall illicit drug use by detainees being reported to him or having occurred. However, he would have considered the use of illicit drugs by detainees to have been a security issue rather than an indicator of a depressive episode or a crisis episode.594 1468 DIMIA staff frequently interacted with detainees in the compound and would report to Mr Fyfe if they had a concern about any given detainee. They had access to all the medical records of the individual detainees and would seek clarification from him about records on an almost daily basis. Often clarification was sought for the purpose of reporting to Canberra. DIMIA employees would occasionally query the type or amount of medication that was prescribed to a detainee, despite not being clinically trained. From time to time, this was a source of frustration for Mr Fyfe. 1469 I accept Mr Fyfe as a credible and reliable witness. I consider that he did his best to give evidence that was accurate and considered. However, his evidence did not include any relevant observations of the applicant. To that extent, I found his evidence of limited assistance. Maureen Hanly 1470 Between July 2000 and January 2003 Maureen Hanly was the Senior Health Services Manager (HSM) in GEO Group’s Corporate Office. Her expertise is in the field of health policy. She was hired by the GEO Group to assist with the drafting of policies for the provision of health services at detention centres across Australia, including Baxter. 1471 Ms Hanly gave a witness statement dated 7 June 2022.595 She gave evidence about her role in the GEO Group, Baxter’s medical services, the mental health issues present at Baxter, staffing issues and her interactions with DIMIA. 1472 The policies were intended for use by all of the GEO Group entities that were involved with detention centre operations, including ACM. The policies were to 594 T 8348. 595 Exhibit 1.3TP1751. -- 287 of 647 -- [2025] SASC 59 Stanley J 284 be used across all facilities. However, if a refinement was required because of a local procedural arrangement, local procedures were also able to be developed. As an example of how this might work in practice, Ms Hanly said that overarching expectations regarding the management of medication would generally be contained in the GEO Group policy. However, if specific details as to how medication was managed and administered were required, those would be developed by way of a local operating procedure which would be put in place by the HSM at the respective centre. 1473 Given the time that has passed since drafting the policies, Ms Hanly had some difficulties remembering specifics of the process. She gave evidence that in the course of developing these policies she may have looked at parts of the contract between the Commonwealth and ACM, to ensure that contractual requirements were contained within the policy content. She assumed that, in doing so, she would have been aware of the IDS. She said she was aware when drafting the policies that ACM was required to provide detention services “to a certain standard”. To the extent that the policies reflected contractual requirements, this would have been a reflection of Ms Hanly’s reading of the contract. She did not have any legal qualifications. 1474 After the policies were drafted by Ms Hanly’s team, they were reviewed by the executive director for Health Services, Mr Shaun Finnigan and sometimes others. Ms Hanly described the policies as being dynamic and recalled ACM could provide feedback and advice on improvements or changes that could be made. Liaising with staff about this and updating policies was part of Ms Hanly’s role. Ms Hanly said she may have also had opportunities to raise any suggested changes with DIMIA directly in meetings. However, she said that she would not necessarily have picked up a phone and made a suggestion. Ms Hanly also gave evidence that, on occasion, she would have had discussions with Health Service Managers about the policies and how they would be implemented locally. She stated that either herself or Ms Janelle Mulholland, the HSM who worked for the Detention Services Head Office, would have been the first contact for advice about policy implementation. 1475 During her time working for the GEO Group, Ms Hanly was based in Sydney and not physically at Baxter. She did, however, visit Baxter on a couple of occasions for short periods, including for the initial set up of the health clinic. She was involved in the initial set up because of her experience both in the practical provision of health services as well as the development of health policy and systems. 1476 Ms Hanly was unable to recall what stage the setup of the clinic was at when she visited, however she recalled the health centre and its design, including the variety of consultation rooms, and working with the HSM at the time. Ms Hanly was of the view that the clinic, once fully completed and stocked, was set up to provide the health services that practically could be provided on site to detainees. Had there been any issues with the clinic at the time of Ms Hanly’s visit, those -- 288 of 647 -- [2025] SASC 59 Stanley J 285 would have been escalated up the management chain. Ms Hanly was unable to recall whether she had escalated any issues. 1477 Ms Hanly confirmed that all health staff that were onsite at the detention centres were either employed or contracted by ACM. Her recollection was that none of the DIMIA staff on site were health specialists. Accordingly, the GEO Group advised DIMIA on the implementation of onsite health services. However, in turn, DIMIA had to agree on the nature and quantity of services to be provided on site. She recalled that DIMIA made the ultimate decisions as to the services provided on site. 1478 Ms Hanly said that in the lead-up to Baxter being operational, there would have been planning arrangements put in place to determine what staff levels would be needed at Baxter, including health staff. This was done by the detention services team, and Ms Hanly could not recall whether she was involved in the process. 1479 Ms Hanly understood that the standard of health services provided in detention centres was contractually required by DIMIA to be of a community equivalent standard, i.e., comparable to that which was available to the general community. Her understanding was that DIMIA did not want to create a public perception that detainees were being provided with services in excess of those available to the general public. The policies she helped draft were guided by the requirement to provide services to meet the community standard. Ms Hanly could not recall if the standard ought to have been interpreted in relation to the location of the services, in which case the level of services offered at Baxter would have been equivalent to the services provided to the local community in and around Port Augusta, as opposed to Adelaide. She was unable to recall whether this standard of health services would have included preventative mental health programs; providing education regarding mental health services or mental illness; providing a regular full MHA by a psychiatric nurse on a three or six monthly basis; or the provision of mental health questionnaires, from time to time, to detainees. The policies did not require that there must be a permanent psychiatrist on site. 1480 Ms Hanly did not give evidence of any specific complaints voiced by her during her time at GEO regarding the location or design of Baxter. Ms Hanly considered at the time that neither the design or the physical conditions at Baxter were matters that would prevent ACM from providing health services in that location. Ms Hanly said she would have raised any such concerns at the time, because any such obstacles would have prevented ACM from fulfilling their obligations. 1481 I accept Ms Hanly as a credible and reliable witness. However, her evidence was not connected to the circumstances and experience of the applicant. To that extent it was of limited utility. -- 289 of 647 -- [2025] SASC 59 Stanley J 286 Christopher Burns 1482 Christopher Burns was the Centre Manager at Baxter from November 2002596 to October 2003.597 Mr Burns commenced his career in 1987 working as a prison officer at Mt Eden Prison in Auckland, New Zealand. He remained in that role for 12 years.598 He commenced his employment with ACM in 2001 as a senior manager in a remand centre in Auckland. He then came to Australia to undertake a secondment with ACM as the Centre Manager at Maribyrnong Immigration and Detention Centre before commencing at Baxter in November 2002.599 He was employed at Baxter until October 2003. He is no longer employed by ACM. He gave a witness statement.600 1483 Given the passage of time, there were some significant gaps in Mr Burns’ memory and, despite his best efforts, he was unable to give evidence in relation to a number of matters. 1484 In his role as Centre Manager at Baxter, Mr Burns was responsible for overseeing its day to day operations. He was the most senior ACM employee on site.601 He did not have any dealings with members of the ACM board and was not a part of ACM’s senior executive team.602 He did not have authority in his role to make decisions under the general services contract that governed all detention centres.603 If Mr Burns required guidance in performing his duties, he would report up the chain and seek clarification. He could also seek guidance from the national operations manager, Mr Peter Macintosh. Generally, Mr Burns would refer operational-type matters to Mr Macintosh.604 Mr Burns did not make any substantial changes to the operation of Baxter during his time there.605 1485 At Baxter, Mr Burns’ main contact with DIMIA was Mr Wallis. He only had a few communications with persons higher up within DIMIA.606 He recalled having bi-weekly meetings with Mr Wallis wherein Mr Wallis would raise issues with him.607 1486 During Mr Burns’ time at Baxter, he had access to ACM’s contracts with the Commonwealth as part of the performance of his role. This included the Detention Services Agreement. However the agreement was not a document that he consulted day-to-day in discharging his duties as the manager of Baxter.608 His main reason 596 T 8133. 597 T 8273-8274. 598 T 8115. 599 T 8116. 600 Exhibit 1.3TP1761. 601 T 8120. 602 T 8120. 603 T 8121. 604 T 8120. 605 T 8183. 606 T 8120-8121. 607 T 8235. 608 T 8123. -- 290 of 647 -- [2025] SASC 59 Stanley J 287 for consulting the agreement was to understand the measure that was applied in DIMIA’s quarterly reviews assessing ACM’s performance.609 1487 When Mr Burns arrived at Baxter he was not told anything about the makeup of the detainee population in terms of any individual detainee’s period of detention. However, he was aware that most of the detainees that were at Baxter had come from Curtin and that the vast majority were single men.610 1488 Upon his arrival at Baxter he understood that ACM could suffer financial penalties if a detainee escaped. He considered the financial consequences to be important, although he was also concerned about the risk that an escaped detainee could pose to the community.611 While he appreciated that detainees were not criminals, he was concerned because he did not know them or anything about them.612 He recalled an occasion where a detainee escaped from escorting staff in Port Augusta and climbed onto a church roof. This incident had increased his concern.613 1489 Mr Burns would try and be on-site at Baxter and visit at least one compound each day. He recalled that generally, on Saturday mornings he would visit all of the compounds.614 In the course of those visits, he was able to observe DSOs performing their roles, including interacting with detainees.615 He remembered seeing detainees out in the compound playing soccer, rather than being in their rooms616 and recalled having conversations with detainees and working with them to address their concerns.617 1490 Mr Burns estimated that approximately 25 to 35 per cent of DSOs were fly in fly out workers.618 1491 Mr Burns recalled detainees were restrained where circumstances indicated that the person was an immediate threat to themselves, others, the centre, property or the security and good order of Baxter and that threat showed no sign of subsiding, or a detainee was consistently non-compliant with orders and directions”.619 1492 Providing detainees with activities to keep them active was a priority for ACM.620 Mr Burns focused on complying with the contractual obligations to provide programs, education and activities. He worked with the providers and the 609 T 8125. 610 T 8136. 611 T 8137. 612 T 8137-8138. 613 T 8299. 614 T 8114. 615 T 8115. 616 T 8259 617 T 8283-8284. 618 T 8150. 619 T 8200. 620 T 8139. -- 291 of 647 -- [2025] SASC 59 Stanley J 288 detainee services manager to identify what courses should be offered.621 He recalled the detention services manager was in charge of keeping records about programs and attendances by detainees. Mr Burns was not aware of which individuals participated in programs, although he was provided with overall figures.622 1493 Mr Burns gave evidence that activities were intended to keep detainees busy and relieve monotony more than to improve their mental health.623 He recalled detainees would spend the majority of their time confined to their compounds.624 The compounds were staffed by DSOs, and there was constant CCTV surveillance.625 He did not consider that detainees being kept confined to their compounds might have had a deleterious effect on them.626 He denied that ACM reduced its provision of medical services, programs, activities or education during the transition period to G4S.627 1494 He said the sleeping schedules of detainees tended to vary, with detainees being active all evening and sleeping all day during Ramadan, and at other times being active during the day and sleeping in the evenings. In the summer, it was not unusual for detainees to stay up at night. Mr Burns could not recall if these habits were considered when setting the timetable for activities at Baxter.628 1495 When detainees were moved within the facility, they would generally travel in a vehicle. If a vehicle was not available, they would be escorted on foot. Detainees began to be taken on foot in response to complaints that having to wait for a vehicle to take them to the visitors’ centre resulted in detainees missing some or all of their visit.629 1496 Mr Burns recalled that DIMIA requested ACM conduct excursions out of Baxter.630 He was aware that ACM were required to provide excursions to detainees.631 Each excursion was assessed on an individual basis to determine the number of staff required to accompany the detainees.632 He remembers excursions did take place, including fishing trips, shopping trips and trips into Whyalla.633 Families went on these excursions. Mr Burns could not recall whether this included fathers, or whether it was only mothers and children.634 621 T 8187. 622 T 8187-8188. 623 T 8140. 624 T 8183. 625 T 8186. 626 T 8144. 627 T 8245-8246. 628 T 8146. 629 T 8180. 630 T 8184. 631 T 8178. 632 T 8141. 633 T 8140. 634 T 8140-8141. -- 292 of 647 -- [2025] SASC 59 Stanley J 289 1497 In November 2002, single men were not being offered excursions. Mr Burns could not recall the reasons for this. He recalled single men began going on fishing excursions after Easter of 2003.635 This is not consistent with the evidence of Mr Sovi. Mr Burns understood that those who went on these excursions enjoyed them.636 1498 He said before Christmas 2002, detainees were permitted to visit each other in their respective compounds.637 1499 Mr Burns regularly attended Detainee Consultative Committee meetings. If he did not attend, he would review the minutes.638 Examples of the issues raised by detainees at these meetings included: • the cost of telephone cards;639 • the lack of Persian newspapers provided to Iranian detainees;640 • centre manager visits to the compounds;641 • use of the gym at night-time and;642 • excursions.643 1500 Unless detainees had their own money, they were only able to obtain money by doing paid work in Baxter. Mr Burns could not remember how much they were paid.644 1501 Mr Burns gave evidence that detainees were sometimes deported or repatriated in the middle of the night. This was done based on a timeline set by DIMIA and in accordance with DIMIA instructions. Mr Burns did not think that detainees were deported during the night to minimise the chance of other detainees interfering with their removal.645 1502 Mr Burns recalled the DSOs at Baxter were required or asked to note any behavioural changes in the detainee population. If such observations were made, DSOs would report them to their supervisor or manager who would then report the matter to the health team and ask them to undertake an assessment.646 635 T 8151. 636 T 8244. 637 T 8186. 638 T 8178. 639 T 8175. 640 T 8175-8176. 641 T 8176. 642 T 8177. 643 T 8176, 8178. 644 T 8175. 645 T 8233-8234. 646 T 8115. -- 293 of 647 -- [2025] SASC 59 Stanley J 290 1503 DSOs were also required to generate incident reports if they saw something that they believed was unusual. Those incident reports were provided to Mr Burns who would read them and report them to the senior executive team. Mr Burns could not recall whether every incident report was reported to senior executives.647 1504 Mr Burns accepted that ACM staff were responsible for reporting on-the- ground issues with detainees as they unfolded. This was practical because there were far more ACM staff than DIMIA staff. As a result, ACM rather than DIMIA staff were much better placed to detect issues with detainees when they arose. If ACM staff observed an issue with a detainee but did not report it, then DIMIA would be unlikely to become aware of it. He recalled there being a degree of cooperative informal liaison about these issues between ACM and DIMIA officers at Baxter.648 1505 Mr Burns did not access detainees’ medical records. These were dealt with by the Health Centre Manager. He understood that DIMIA could access any on site information they wanted.649 1506 The prevention of mental ill-health was a factor that was important in Mr Burns’ management of Baxter. He was unable to recall whether there was a specific program aimed at preventative mental health care. However, he remembered mental health staff were on-site and would attend to detainees as required.650 1507 Mr Burns said that, if he had received a report raising concerns about the mental health of detainees, he would raise it with the National Health Services Manager.651 He could not remember whether counselling was made available to recipients of adverse visa decisions, but he imagined that if DIMIA had informed him of an impending adverse visa decision, he would have had health services follow up that detainee.652 1508 Mr Burns recalled many mental health nurses at Baxter were rotational staff on six-week contracts. However, ACM preferred full-time mental health nurses and psychologists for consistency. Full-time staff were sought to enable a therapeutic relationship to be established between medical staff and detainees, but also because they were less expensive.653 1509 Mr Burns gave evidence that interactions with detainees should have been noted on the detainee’s case management plan and medical file by the medical team. He appreciated that this kind of recordkeeping was vital given that at least some of the health team was on rotation and given that there was a frequent 647 T 8126. 648 T 8128-8129. 649 T 8294. 650 T 8149, 8242. 651 T 8253-8254. 652 T 8232-8233. 653 T 8149-8150. -- 294 of 647 -- [2025] SASC 59 Stanley J 291 turnover in staff.654 He considered that the health team was responsible for collecting data about the mental health of detainees and putting it in a form that could be easily analysed so the full picture of mental health at Baxter could be established.655 1510 Mr Burns occasionally visited the health centre. He would receive information from Mr Monaghan about the health services and the need for health services at Baxter.656 He met the doctors working at Baxter and recalled they came from a clinic in Port Augusta.657 1511 Mr Burns was on site for the very first fire which occurred on 27 December 2002. He recalled this fire was believed to have been caused by a faulty air- conditioner.658 However, he was absent on leave when the larger fire occurred on 29 December 2002. He was advised of the fire at about 1:30 a.m. on 29 December 2002 and left Adelaide to return to Baxter at about 6:00 a.m.659 1512 He recalled that the second fire substantially engulfed Red 1 and the detainees who had been accommodated there were moved to Red 2. Then there were further fires in Red 2.660 1513 Mr Burns gave evidence that a running log of events compiled by supervisors and DSOs noted that on 30 December 2002 the applicant had been seen with a cigarette lighter. This was one of the grounds for suspecting the applicant was involved in lighting the fires.661 1514 The log did not record that a lighter was confiscated from the applicant. Mr Burns could not understand why the lighter was not confiscated. He considered this incident warranted further investigation to try and ascertain the applicant’s potential involvement in the fires.662 The applicant was not the only detainee identified as possessing a lighter around the time of the fires. Mr Burns conceded that more than the mere possession of a lighter would have been required to reasonably suspect that a particular person lit any of the fires.663 1515 He recalled that following the fires a significant operational response was required and, as a consequence, DIMIA refocussed and became more interested in good order and security to prevent any further incident of that kind.664 654 T 8265-8266. 655 T 8262. 656 T 8253. 657 T 8256-8257. 658 T 8151-8152. 659 T 8152. 660 T 8152-8153. 661 T 8158-8159. 662 T 8159-8160. 663 T 8160-8163. 664 T 8146, 8300. -- 295 of 647 -- [2025] SASC 59 Stanley J 292 1516 Mr Burns acknowledged that other detainees would have been suspects, including a particular detainee who a nurse was told by other detainees had a major role in the starting of the fires and had a lighter, and a detainee who admitted in the hearing of three detention officers that he lit the fires and was proud of it.665 1517 On 31 December 2002, following the fires, Mr Burns requested authorisation for a strip-search of around 100 detainees based on his suspicions. This strip-search was authorised by DIMIA.666 Mr Burns thought the strip-search was aimed at preventing further fires from occurring by confiscating any items that could be used to light a fire.667 Mr Burns accepted that the documentary evidence shows the applicant was identified as a strip-search candidate because he had previously been found with a lighter, and because he had been identified as a target by DSOs. Mr Burns vaguely recalled the applicant was also suspected because his room was not destroyed by the fire. 1518 On 1 January 2003, the applicant was placed in the Management Unit in relation to the fires. This was authorised by Mr Burns. He could not recall what information he relied on but thought that it may have come to him via an incident report or an intel report.668 1519 From 1 January 2003, the applicant was classified by ACM as a high risk detainee.669 Mr Burns agreed that high risk detainees were subject to several head counts at night in hours of darkness, would be handcuffed whenever they left the centre, and could not go on any excursions.670 High risk detainees could not leave the centre without a minimum of three accompanying DSOs and the use of mechanical restraints.671 Internally, high risk detainees had to be escorted by one officer at all times. High risk detainees were not permitted to visit other compounds, or attend education or any other activities if other detainees who were not high risk were present.672 1520 Mr Burns was aware the applicant denied any involvement in the fires.673 He recalled that within a day or two the Australian Federal Police, state police and a number of agencies were on site investigating the fires and conducting interviews with a number of detainees. Mr Burns was not privy to the information gathered during these interviews and did not know what the police found during their investigation.674 His recollection was that no detainees were ever charged with lighting any of the fires.675 665 T 8164. 666 T 8152. 667 T 8154-8155. 668 T 8155. 669 T 8173. 670 T 8195-8196. 671 T 8276, 8278. 672 T 8278. 673 T 8170. 674 T 8170. 675 T 8170. -- 296 of 647 -- [2025] SASC 59 Stanley J 293 1521 On 9 January 2003, the first detainee consultative committee meeting following the fires was held. Mr Wallis attended the meeting with Mr Burns.676 Mr Burns thought it was likely he spoke to Mr Wallis about what message to send to the detainees, given that this was the first opportunity to speak to the committee following the fires.677 During this meeting Mr Wallis emphasised that the past events caused some things to be put on hold or delayed.678 1522 On 21 or 22 January 2003, the applicant and the other detainees in Red 3 were moved to Blue 3 because they were all suspected of having lit the fires.679 This decision was based on information Mr Burns cannot now recall.680 1523 Mr Burns accepted detainees in Blue 3 at this time were denied telephone calls and visits.681 He recalled that phone calls were denied for security reasons. ACM received intelligence that there may be trouble over Easter 2003. There were concerns about the detainees in Blue 3 communicating with people outside Baxter, based on a previous incident at Woomera where members of the public assisted about 40 detainees to escape.682 1524 Mr Burns said detainees in Blue 3 at this time were also denied access to the gym and education classes.683 No educational programs were brought into Blue 3 for the detainees but they were provided with self-paced education packs.684 The detainees could not go on excursions, as it was ACM’s policy that they did not take high risk detainees outside Baxter.685 1525 Mr Burns’ said his primary consideration in making these decisions in relation to the applicant was maintaining a safe and secure facility.686 1526 On 6 February 2003, 14 detainees were involved in a self-harming incident in Blue 3.687 Mr Burns was not surprised that the detainees engaged in self-harm, although he was concerned by that behaviour. He thought that the detainees were trying to get his attention because they were frustrated.688 This was not the first act of self-harm Mr Burns had witnessed at Baxter.689 1527 Mr Burns could not clearly recall what he did following the incident, but said he would have consulted with the health team to find a way forward.690 He could 676 T 8178-8179. 677 T 8179. 678 T 8180. 679 T 8171. 680 T 8172. 681 T 8173. 682 T 8189. 683 T 8173. 684 T 8273. 685 T 8188-8189. 686 T 8173. 687 T 8190. 688 T 8174. 689 T 8174. 690 T 8174-8175. -- 297 of 647 -- [2025] SASC 59 Stanley J 294 not recall whether he went into Blue 3 at the time of the incident or shortly after, however he did see the detainees in Blue 3 after they had harmed themselves.691 At some stage, he met with the detainees in Blue 3 to discuss their demand for access to telephones. He thought this meeting might have happened after the self-harm incident.692 Mr Burns recalled that DIMIA refused to speak to the detainees and he stepped in to negotiate a resolution.693 1528 The men involved in this incident were transferred to Red 3 on 10 February 2003.694 A Behaviour Management Plan was signed by both Mr Burns and the applicant on 10 February 2003. It required the applicant to be of good behaviour on his return to Red 3, including no further acts of self-harm. Mr Burns agreed non-compliance with the plan could have resulted in a loss of privileges and removal from Red 3. Mr Burns agreed the only restriction placed on the applicant after 10 February 2003 was that he was confined to the compound. He was permitted to have phone calls again.695 1529 Mr Burns gave evidence in relation to the hole digging incident. He saw the hole. He vaguely remembers it being about two metres deep and about a metre in diameter. The applicant was in the recreation room in Red 3 when the hole was discovered in Reza’s room under the floorboards. The applicant volunteered that he had been digging the hole with Reza.696 He recalled the hole had been dug using a metal bar and some serving spoons.697 1530 The applicant was placed in the Management Unit on 5 March 2003 in response to the hole digging incident. Mr Burns deemed him to be a security risk at that time. He considered that if the applicant was motivated to dig a hole, then he may be motivated to do other impermissible things.698 1531 The placement of the applicant in the Management Unit was made pending a referral to the Australian Federal Police for investigation. It was expected the AFP would interview the applicant. Mr Burns did not have a plan beyond the police interviewing the applicant.699 1532 Mr Burns denied that he was punishing the applicant. He said he believed there was good reason to keep him in the Management Unit.700 He was concerned about placing the applicant in a compound because two detainees at Baxter had previously escaped from their compound and gone over the wall.701 He felt that 691 T 8190. 692 T 8174. 693 Exhibit 1.3TP1761 at [48H]. 694 T 8190. 695 T 8190-8191. 696 T 8196. 697 T 8223. 698 T 8196-8197. 699 T 8198-8199. 700 T 8199. 701 T 8197. -- 298 of 647 -- [2025] SASC 59 Stanley J 295 the Management Unit was the safest option in the circumstances.702 Mr Burns said the investigation report into the escape of those two detainees identified that the compound fence alarms were turned off by the control room operator and two incorrect head counts were performed. Mr Burns said that these two factors seemed to facilitate that escape.703 However, he ultimately conceded that his memory of these events was flawed. This escape actually occurred on 9 March 2003, four days after the applicant was placed in the Management Unit. Accordingly, the escape could not have provided a reason to place the applicant in the Management Unit.704 1533 The AFP concluded that it was impossible for the detainees to have actually tunnelled out of the facility and, therefore, no action was necessary. Mr Burns agreed that it would have been “a tall ask” for the detainees to have escaped this way but he was not sure it was impossible.705 1534 The applicant was eventually released from the Management Unit and transferred to Blue 3.706 1535 Mr Burns was responsible for ensuring that policies were followed in the Management Unit.707 As centre manager, he took a close interest in what went on in the Management Unit. He recalled inspecting it from time to time. 708 1536 Mr Burns agreed there was an ACM policy which stipulated detainees in the Management Unit were to be allowed adequate supervised exercise periods scheduled on a daily basis. These were to be as often as possible, but for not less than two one-hour periods per day, at least one of which, where practicable, was in daylight hours.709 Mr Burns appreciated that it would have been a very unpleasant experience to spend any length of time locked in one of the Management Unit rooms.710 Mr Burns denied that detainees were put in the Management Unit for punishment.711 He said the mental wellbeing of detainees in the Management Unit was of concern to him.712 1537 Mr Burns said a record of activities was kept for all detainees in the Management Unit, primarily to ensure that detainees, believed to be at risk from themselves, were being regularly observed by staff.713 It was noted when detainees exited their rooms and when they returned.714 Mr Burns accepted that, given the 702 T 8198. 703 T 8231. 704 T 8230-8232. 705 T 8222. 706 T 8197. 707 T 8199. 708 T 8201-8202. 709 T 8200. 710 T 8202. 711 T 8218. 712 T 8239-8240. 713 T 8202. 714 T 8207-8208. -- 299 of 647 -- [2025] SASC 59 Stanley J 296 apparent failure to record the applicant’s return to his cell on several occasions, he could not deny that the applicant was only allowed out of his room for two or three 10-15 minute periods each day. Mr Burns agreed if the applicant had refused an offer for an exercise period, that should have been recorded.715 1538 Mr Burns said the air conditioning in the Management Unit was controlled by the DSOs. He said there would be no operational reason for them controlling the air conditioning unit to make it so cold as to be uncomfortable for detainees.716 1539 The MURT would visit detainees in the Management Unit. Mr Burns gave evidence he would have expected detainees to raise any complaints in that forum. He did not consider that the detainees would have been deterred from raising complaints by the fact that DSOs would be in control as soon as the MURT left.717 1540 Mr Burns could not recall detainees in the Management Unit being provided with any programs, activities or education. He said that unless detainees were a danger to the people who would come to teach or provide activities, there was no operational reason for these programs being withheld. 718 1541 Mr Burns said that the information he relied upon to make decisions about the applicant and his time in the Management Unit would have been recorded in the incident reports or the information provided by Intel.719 1542 Mr Burns recalled detainee behaviour management plans outlining the steps that a detainee had to comply with to be eligible for release from the Management Unit were prepared for each detainee in the Management Unit. Mr Burns insisted on these plans being generated and created for each detainee.720 1543 Mr Burns could not recall whether there were detainee behaviour management plans put in place for the applicant when he was in the Management Unit in January or March 2003 but agreed there should have been.721 1544 Mr Burns recalled that one of the purposes of the detainee behaviour management plan was to give the detainee an idea of how and when he might be released from the Management Unit. The plan identified steps that were achievable, fair and consistent so that a detainee would not be faced with an indefinite period in the Management Unit. He accepted that in March 2003, the applicant could only have been told that he was going to be kept in the 715 T 8204, 8207-8215. 716 T 8215-8216. 717 T 8216. 718 T 8218. 719 T 8218-8219. 720 T 8224-8225. 721 T 8225. -- 300 of 647 -- [2025] SASC 59 Stanley J 297 Management Unit until the AFP had concluded its investigation. Mr Burns said the applicant could not have known when that would be.722 1545 On 5 September 2003 there was a risk assessment meeting concerning the applicant. Mr Burns recalled this was a part of the high risk detainee review process. The notes from this meeting set out a brief history including “a long list of escapes”. Mr Burns was not sure how this information was disclosed at the meeting.723 Other than the hole digging incident, Mr Burns was not certain what information was relied on during this meeting but assumed that information would have been shared by the Intel manager during the meeting. He conceded that a record of such information should have existed. 1546 I accept Mr Burns as a credible witness. Understandably, his recollection has deteriorated with the passage of time. I make due allowance for this in assessing his evidence and the extent to which I am able to rely on it in making factual findings. Nevertheless, I am of the view that he did his best to give evidence accurately, as his memory permitted, without regard to whether it may have reflected adversely on ACM or The Commonwealth. I am satisfied that by the time he gave evidence he had no reason to protect the reputation of ACM or DIMIA. While he was clearly mistaken in thinking that part of the rationale for placing the applicant in the Management Unit in March 2003 was a previous escape, I do not consider this was an attempt by Mr Burns to mislead. Rather, it was the understandable difficulty in giving evidence of events that had occurred 20 years earlier. This mistake did not reflect on his credit. It did reflect on his reliability for which I have made appropriate allowance by scrutinising closely the content of his evidence and the other evidence which I accept reflected the relevant events that occurred during Mr Burns’ time at Baxter. G4S’ LAY WITNESSES Peter Saxon 1547 Mr Saxon was employed by G4S as General Manager at Baxter from October 2004 until after the applicant’s release from detention. He provided two witness statements dated 5 April 2021724 and 28 June 2022.725 1548 Mr Saxon’s role was to oversee the day-to-day operations at Baxter. As part of his daily duties, he viewed incident reports and Suicide and Self Harm (SASH) reports on the ISIS database. He also visited at least one accommodation compound every day. It was also part of his duties to ensure that the subcontractors, PSS and IHMS, were adequately trained and did their job to an appropriate 722 T 8230. 723 T 8194-8195. 724 Exhibit 2.4TP1786. 725 Exhibit 2.4TP1787. -- 301 of 647 -- [2025] SASC 59 Stanley J 298 standard. He recalled that G4S was responsible for any mistakes made by the contractors.726 1549 Mr Saxon gave evidence about the relationship between DIMIA and G4S during his time at Baxter. His recollection is that there were about 10 DIMIA representatives employed at Baxter on any given weekday. He recalled that DIMIA was involved in the day-to-day operations at Baxter and was able to veto any decisions made about detainee care. Three of these 10 employees were appointed as monitors who inspected the service delivery of G4S five days a week. G4S staff were also audited by DIMIA on a quarterly basis and any breach of the IDS could have resulted in a fine. Mr Saxon accepted that DIMIA relied on G4S staff to make the right decisions in undertaking their duties.727 1550 Mr Saxon gave evidence about a number of different types of meetings which occurred at varying frequencies, including the monthly meetings with DIMIA representatives. One of the purposes of these meetings was to discuss any action DIMIA required G4S to undertake. He gave evidence of the process of any medical issue of concern received by IHMS or PSS. Mr Saxon also described case management meetings at which the welfare of all individual detainees were discussed and care plans developed.728 The case manager, Ms Shirley Ellison organised these meeting and prepared the care plans for each detainee at Baxter. Mr Saxon also recalled participating in detainee delegate meetings. These meetings were held monthly and a DIMIA representative was always present. Each compound sent a detainee delegate to raise any concerns. He recalled the topics discussed were usually broad, not relating to any specific detainee. There was no evidence of the applicant being discussed at any meeting attended by Mr Saxon. 1551 Mr Saxon recalled having difficulties with Ms Kaye Kannis, the DIMIA General Manager at Baxter. In cross-examination he was taken to criticisms or complaints documented by Ms Kannis at the time. Mr Saxon gave evidence he operated differently from the bureaucratic way of reporting which Ms Kannis adopted by taking her concerns or complaints to the G4S head office in Canberra.729 He said he made discretionary decisions on a daily basis and that some decisions had to be made instantaneously. 1552 Mr Saxon was aware that some detainees missed meals by not getting up early. This resulted in a direction to put extra bread and spreads into the compounds each morning. Mr Saxon recalled eating the same food that was being served to the detainees. 726 T 8966. 727 T 8937. 728 T 8955-8957. 729 T 8937. -- 302 of 647 -- [2025] SASC 59 Stanley J 299 1553 Mr Saxon accepted that illicit drugs were a cause of concern in Baxter. He said it was obvious that marijuana was being smoked in the compounds. However, he denied there was a policy of turning a blind eye to such behaviour. 1554 Mr Saxon gave evidence about DIMIA officers’ interactions with detainees. His evidence was that DSOs were trained to treat everybody with respect. Offensive behaviour by DSOs, such as racist or offensive language, would be brought to his attention by DIMIA or the Duty Operations Coordinator. He also recalled that detainees could report any incident to DIMIA. 1555 Mr Saxon was shown a document prepared by Ms Ellison which suggested that, when a special needs detainee was identified, an interview for a full case history should be conducted and a care plan specifically designed. Monthly reviews of the care plan from the case management review team would then follow. Mr Saxon was unable to provide an explanation for the absence of records of this kind relating to the applicant.730 1556 Mr Saxon recalled that the frequency of excursions for single men depended on their security risk but, he said this could have been addressed with extra staff.731 Approval for excursions would also be based on the atmosphere of the detention centre at the time. More DSOs would have enabled more detainee excursions and interactions with officers.732 1557 Mr Saxon disagreed that there were inadequate staff numbers at Baxter,733 but conceded that staff numbers were inadequate to implement a complete visual observation of all detainees.734 He said it would have been impossible to achieve such a staffing level. Mr Saxon maintained that staffing was adequate during times of stress, such as protests or hunger strikes as it was possible to bring additional staff from other centres such as Villawood, or fly in officers from Sydney and Melbourne.735 This also occurred with subcontractors such as IHMS and PSS, as they were able to bring extra staff in times of protests or when there were high numbers of detainees on SASH.736 A minimum of two officers was maintained per compound. 1558 Mr Saxon recalled experiencing some difficulties as a manager in changing the attitude of the DSOs employed during the ACM period to reflect the G4S culture.737 He said G4S had a softer approach compared to ACM’s firmer approach. Mr Saxon gave the example that DSOs were accustomed to placing detainees in the Management Unit for the slightest breach, which did not happen 730 T 9018. 731 T 8993. 732 T 9025. 733 T 8988. 734 T 8986. 735 T 9019. 736 T 9020. 737 T 9023. -- 303 of 647 -- [2025] SASC 59 Stanley J 300 in the G4S period.738 As another example, he said that during the handover period G4S staff were instructed to release detainees placed in the Management Unit by ACM staff. 1559 Mr Saxon had difficulties remembering some things, even when directed to his own statements. He gave evidence of not being able to recall certain allegations, particularly about record keeping or complaints. Mr Saxon testified about the differences between the approaches of G4S and ACM, the accountability of subcontractors and staffing levels. I accept Mr Saxon as a reliable witness in relation to events during his time at Baxter from October 2004 to April 2005. However, his evidence was of limited assistance as he did not give evidence of observations of, or interactions with, the applicant. Tanya Horner 1560 Ms Horner worked at Baxter during both the ACM and G4S periods. She commenced employment with ACM in October 2002 as a DSO and continued on in this role when G4S took over management of Baxter in January 2004. Between 2005 and 2007 she transitioned to an administrative support role. In this role she worked in the DIMIA building at Baxter but remained employed by G4S. She did not report to any DIMIA employees during her time at Baxter. 1561 Ms Horner was called to give evidence by the G4S third parties and provided two witness statements dated 5 April 2021739 and 27 June 2022.740 1562 Ms Horner did not have any independent recollection of the applicant. Her evidence related to inter alia DSO duties, detainee behaviour, the transition from ACM to G4S and record keeping. 1563 Ms Horner said she often worked the night shift, which commenced at 6:30 p.m. and finished at 6:30 a.m. Ms Horner’s said her duties as a DSO included undertaking at least five welfare checks on detainees daily. These were recorded at 8:00 a.m., 12:00 p.m., 5:00 p.m., 8:00 p.m. and midnight. Ms Horner said that during these checks DSOs were required to sight and speak to every detainee, check they were okay and mark their names off once they had been seen. She said if a detainee was absent from their compound, a reason for the absence had to be documented. 1564 Ms Horner was also required to complete hourly walks around the compound she had been assigned to; log detainee movements in and out of that compound; write case notes on detainees; supervise mealtimes in the dining room; supervise the dispensing of medication; conduct room searches; and escort contractors or visitors onsite. She said her duties and responsibilities as a DSO were the same during both the ACM and G4S periods. Ms Horner considered the ACM and G4S 738 T 9023. 739 Exhibit 2.4TP1781. 740 Exhibit 2.4TP1782. -- 304 of 647 -- [2025] SASC 59 Stanley J 301 employees and contractors to be the eyes and ears on the ground in Baxter, in comparison to the DIMIA staff who were primarily focused on immigration- related issues. 1565 From early 2003 Ms Horner worked in the transport and escort team. Thereafter she estimated that she spent a quarter of her time in transport and three- quarters in the compounds. 1566 Ms Horner also said one of her duties was to endeavour to hold meaningful conversations with her allocated detainees. She said this involved approaching a detainee to start a conversation. If a detainee did not respond or gave a non- committal reply, she would notify her supervisor. She said that an interpreter was not usually used for these conversations as a lot of the detainees had very good English. 1567 Ms Horner worked in every accommodation compound at Baxter apart from White 3 and the Management Unit. She disagreed with the contention that detainees were only able to see the sky from within Baxter. She said that the Blue and White compounds and the Red 3 compound had views of the hills. She also recalled that some compounds, including Red 3 and White 3 had mesh panel fencing which was transparent. 1568 She recalled that most of the regular compounds had the capacity to hold 80 detainees but thought Blue 3, White 3 and Red 3 held less. She said that over the course of the G4S period, the total number of detainees held at Baxter declined. 1569 Ms Horner recalled she worked some shifts in Blue 3 during at least the first half of 2003. However, she could not recall whether she worked in Blue 3 when it contained the detainees suspected of involvement in lighting the December 2002 fires. 1570 Ms Horner gave evidence about room searches. She recalled that she would conduct a random room search about three times a day, searching one room at a time. She said searches usually lasted about 20 to 30 minutes and involved the use of metal detectors. She said they were looking for anything which could be used by a detainee to self-harm or cause harm to others. Ms Horner denied that room searches involved emptying the room and putting all the detainees’ belongings outside the room. She denied ever witnessing this occurring. 1571 Ms Horner said she was required to take a six-week training course with ACM in about October 2002, shortly after Baxter opened. She said this happened off site. When G4S took over management she was required to complete more training which occurred on-site at Baxter. 1572 Ms Horner said that staff were trained to identify and report behavioural changes and distress in detainees. She said DSOs would be alert to signs such as self-harm threats, withdrawal from activities, detainees isolating themselves in their rooms and changes to a detainee’s physical appearance. At times, Ms Horner -- 305 of 647 -- [2025] SASC 59 Stanley J 302 would respond to information received from other detainees about the welfare of another detainee. Ms Horner said staff training in this regard was the same across both the ACM and G4S periods.741 1573 However, Ms Horner said it was not part of her role to determine whether a detainee’s behaviour ought to be classified as a security risk, or a self-harm risk. She said she was not given any training on how to interpret a detainee’s behaviour so that she could determine whether that behaviour was a sign of mental illness.742 1574 Ms Horner said that if she thought there was an indication a detainee was at risk of self-harm or suicide she would contact her supervisor immediately by telephone. If her supervisor could not attend, a social worker or the health centre would be contacted. Ms Horner said the chain of command would be the supervisor in the first instance, then the manager, followed by the case manager Shirley Ellison or DIMIA. Ms Horner did not witness any detainees self-harm but on occasion attended to detainees after this had occurred. 1575 Ms Horner said that during the G4S period if a detainee was on suicide and self-harm watch (SASH) she would be informed verbally at ‘muster’ and given SASH observation forms to fill out. 1576 Ms Horner recalled that while she personally had a good rapport with most detainees, there were some who were regularly violent towards staff at Baxter. She gave the example of detainees throwing food at the officers’ station. She said this did not occur during any of her shifts but that she saw evidence of this having occurred afterwards. 1577 Ms Horner said if it was just one detainee acting out an officer on duty in the compound would call them over the PA system in an attempt to identify the issue and resolve it before it escalated. If this was not possible a manager was then contacted. She said that if the incident escalated, or involved multiple detainees, the compound would be put in lockdown. Officers would enter the compound wearing knee pads, shin pads, chest plates, helmets, shields and batons and remove the detainees who were behaving aggressively. 1578 Ms Horner said that all concerns for a detainee’s behaviour or welfare were recorded in case notes. She thought that these were handwritten during the ACM period and electronic during the G4S period. She said the log of case notes was kept in the officers’ station and each detainee had an individual file. Ms Horner recalled that case notes were required to be done weekly or when there was concern about a detainee. She said there was a set day when case notes had to be written, and if she happened to be allocated to a compound on that set day, she was still required to write the case notes. She said that within a detainee’s file, all of the case notes were kept together dating back to their arrival. 741 T 8833. 742 T 8843-8844. -- 306 of 647 -- [2025] SASC 59 Stanley J 303 1579 However, later in her evidence Ms Horner clarified that while she was required to write case notes once a week, the number of case notes placed on a detainee’s file in a week would vary. She agreed that it was a requirement that at least two case notes were recorded every seven days. She thought that this was a requirement in both the ACM and G4S’ periods. She did not recall the task of writing case notes to be less onerous under G4S than it was under ACM. 1580 Ms Horner was shown case notes pertaining to the applicant, none of which were authored by her. She was unable to explain why the applicant’s case notes showed a number of periods where case notes were not made weekly, including a time where six weeks elapsed between entries. Ms Horner agreed this was contrary to policy. She could not recall whether this ever happened in the compounds where she worked. 1581 When asked about her approach to taking case notes, Ms Horner said that while she would not always record detainee movements in and out of their rooms, she would have recorded if a detainee had not left their room in three days. She said it was normal for a lot of detainees to stay in their room all day, only coming out for a while in the evening. However, if a detainee had not come out of their room for a period of time or had not been seen in the dining room, she would have contacted the supervisor and recorded a case note.743 Ms Horner agreed that detainees would often stay in their rooms until mid or late afternoon or evening.744 1582 Ms Horner gave evidence about detainee movements around Baxter. She denied that high risk detainees were handcuffed during ordinary movements out of the compound and when going to appointments. She said detainees would only be handcuffed if they were being removed by DSOs from a compound. She said detainees were removed from compounds for their safety, if they were arguing, or if they were not following procedure. Ms Horner was unable to recall if she was given a written direction during the ACM period which stated that high risk detainees had to be handcuffed whenever they were moved. 745 1583 Ms Horner said that if a detainee wanted to use the gym a verbal request would be made at the officers’ station. She said there were rostered times for access to the gym so that families and single men would not be attending the gym at the same time. 1584 Ms Horner recalled that during the ACM period detainees were escorted to the gym or the visitors centre in a van. Ms Horner agreed that at times there were delays with escort vans arriving. She said that during the G4S period, unless a detainee was classified as high risk they were able to walk between their compound and other compounds. 743 T 8829. 744 T 8856. 745 T 8840-8841. -- 307 of 647 -- [2025] SASC 59 Stanley J 304 1585 Ms Horner said that low and medium-risk detainees were offered excursions outside Baxter. This included families and single men. She said high risk detainees were not offered excursions. She recalled that the process for conducting excursions was the same across both the ACM and G4S periods. 1586 Ms Horner gave evidence about the differences between ACM and G4S’ management of Baxter. She noted some cosmetic differences such as G4S installing a better gym, providing more options for detainees in the canteen and the staff uniform colour being different. On a more fundamental level she considered that ACM took a more regimented, correctional approach to management. She gave the example of their respective responses to the annual protests over Easter each year. She said that ACM was prepared for the protests and enforced rules strictly if detainees misbehaved, including removing detainees who were not behaving. She said G4S’ approach was to negotiate with detainees and offer detainees additional privileges or food if they did not misbehave. 1587 I accept Ms Horner as a credible and reliable witness. I consider that in giving evidence she was doing her best to recall events of 15 to 20 years ago, including the particulars of her role as a DSO during both the ACM and G4S periods. I accept at times, like other witnesses, she was defensive concerning her role as a DSO, and that her recollections reflected her specific work practices. Her evidence was largely consistent with the documentary evidence of the procedures surrounding case notes and the practice of daily welfare checks. Having said that, I obtained only moderate assistance from her evidence. Ms Horner offered no specific recollections of the applicant. While I consider Ms Horner did her best to answer questions relating to the applicant, she was only ever able to draw upon her general recollections of proper procedure and usual practices, and her interpretation of the records she was presented with. She was not able to give evidence of what actually occurred in relation to the applicant. George Rooks 1588 Mr George Rooks was not called to give evidence. However, his statement dated 18 May 2021 was admitted into evidence without objection.746 Mr Rooks commenced employment with G4S in 2006 in the Canberra head office. He assumed a deputy director role in 2007. In mid-2009, Mr Rooks took over the role of Detention Services Director. He left G4S in 2015. He was not employed by G4S during the applicant’s time in detention. He has never met or interacted with the applicant. 1589 In his role at G4S during the period of the Detention Services Contract between G4S and DIMIA, Mr Rooks was involved in the process of ongoing document archiving at all of the detention centres during the period they were operational. He also supervised and assisted with the process of closing Baxter in 746 Exhibit 2.4TP1794. -- 308 of 647 -- [2025] SASC 59 Stanley J 305 2007. Mr Rooks’ statement provides details of the archiving process at Baxter under G4S management both before and after its closure. 1590 Before the closure, Mr Rooks attended Baxter in person at least every quarter to conduct an internal audit of operations and procedures, which included archiving, and ensuring compliance. During this period, G4S engaged in the ongoing archiving of hard copy documents including, but not limited to, documents such as daily occurrence logs, Management Unit logs, transport and escort logs, incident reports, telephone interpreting registers, and property registers. 1591 Mr Rooks said the archiving process was as follows: 1. Documents kept in the G4S administration and other offices were packed into cardboard boxes by G4S staff at Baxter when the cabinets became full and/or the documents were no longer needed; 2. Documents of a similar nature were grouped together in boxes; 3. G4S staff gave each box a number with a Baxter prefix, such as BX- 001, by writing on the outside of the box with a permanent marker; 4. Individual Excel files were created to record the documents in each box on a spreadsheet (the register), a hard copy of which was retained in the relevant box; and 5. Once a box was full, it was taken to a large, secure open office in Baxter near the Compliance Officer’s office, which was sometimes used as a conference room (the storage space). 1592 Mr Rooks said he first visited Baxter in 2006. He estimated that there were around 100 or more boxes of documents in storage at that time. When he visited Baxter each quarter to undertake a compliance audit, he supervised the audit of the archive process and the boxes of documents in the storage space. He said he would direct the Compliance Officer at Baxter to select a sample of around five boxes in the storage space and check that the documents in the box and the G4S box number were accurately described in the relevant register. 1593 Mr Rooks said he understood that this process commenced shortly after G4S took over at Baxter in January 2004 and occurred at least once per month. He also understood that all of the archived boxes remained in the storage space until the closure of Baxter. He could not recall whether a copy of each register was also provided to DIMIA electronically. 1594 Mr Rooks said that in around early 2007 DIMIA notified him Baxter would be closing in about four months. The timing of the closure was confirmed by DIMIA about a month later. Thereafter Mr Rooks became heavily involved in the closure process, including archiving at Baxter. He said that when Baxter closed, -- 309 of 647 -- [2025] SASC 59 Stanley J 306 all documents were transferred to DIMIA by G4S pursuant to arrangements that had been agreed between G4S and DIMIA in 2007. The transfer was effected by a physical handover of the documents. 1595 Mr Rooks said in the lead up to Baxter’s closure, all remaining documents that had not already been archived were collected from Baxter, packed into boxes according to the archive process, and placed in the storage space together with the boxes from the pre-closure archiving. Mr Rooks estimated that the total number of boxes in the storage space exceeded 200. DIMIA then prepared labels according to their own document management system. The DIMIA labels were given to G4S in consecutive order and placed on the boxes by G4S officers. The physical copy of each register was updated to include a record of the relevant DIMIA label number affiliated with each box. 1596 Mr Rooks said G4S also prepared a document which recorded all of the DIMIA label numbers and the corresponding G4S box number. This document, together with the registers, was created to provide DIMIA with an accurate record of its archived documents. Mr Rooks directed G4S Baxter staff to provide DIMIA with an electronic copy of the registers and the DIMIA label record. 1597 Mr Rooks said that upon completion of the closure archiving process by G4S, DIMIA staff reviewed the boxes in the storage space and checked the DIMIA label, G4S box number and the documents in the boxes against the relevant register. Mr Rooks recalled that after this process, and before the boxes were transported off site, a DIMIA representative signed a document confirming that the files had been handed over. Mr Rooks understood that DIMIA then arranged for the boxes to be transported to a DIMIA storage facility. 1598 Mr Rooks said this document transfer process occurred in the days after detainees had left Baxter, and before all of the transportable buildings were deconstructed. He said some essential G4S staff remained on site after all detainees had been transferred to account for things such as G4S equipment and to ensure site security. 1599 Mr Rooks said no documents held at Baxter were kept by G4S other than G4S’ internal financial, management and employee documentation. Mr Rooks understood that the Commonwealth owned all of the documents and G4S were required to return the documents upon the closure of Baxter. 1600 The evidence given by Mr Rooks considered the chain of documentary evidence. I have no reason to doubt his evidence and it was unchallenged. Having said that, his evidence is not materially relevant to the issues to be decided in this case. THE PSYCHIATRIC EVIDENCE - APPLICANT 1601 This is a claim for pure psychiatric harm. In order to succeed, the applicant must prove, inter alia, that he suffered a recognisable psychiatric injury. The -- 310 of 647 -- [2025] SASC 59 Stanley J 307 applicant can only recover for a recognisable psychiatric injury, not for emotional distress.747 In Tame v New South Wales748 Hayne J considered the distinction between a recognisable psychiatric injury and emotional distress.749 The distinction between the two is recognised in psychiatry but the distinction is one of degree, not kind. He said psychiatric injury cannot yet be correlated, in every case, with abnormality of physiological or biochemical brain function. Objectively verifiable proof of a psychiatric illness is not, or at least is not always, possible. Often, the patient’s reporting of subjective matters such as thought processes and the like is critical to diagnosis. Much turns on identifying the basis upon which the distinction between compensable psychiatric injury and non-compensable mental distress is to be made. Because the point of distinction is to be found on a spectrum, little attention has been given to identifying the basis upon which the distinction is to be made, as a result courts appear to have been content to defer to the way in which psychiatrists distinguish between the two. 1602 Hayne J identified the problem as being not just one of articulating appropriate and relevant criteria for distinguishing compensable conditions from non-compensable. He said that while a psychiatrist is concerned to deal with a patient according to that patient’s history and presentation, rather than by reference to some objective inquiry into the truth of that history and presentation, there exists an imperfect fit between the questions of ultimate concern to the law and those of concern to the clinician. A psychiatrist treating a patient is concerned to look backwards only for the purpose of identifying present and future treatment. Determining the cause of an existing condition is important to the discipline of psychiatry only for the light it sheds on future treatment. But for a legal system which assigns responsibility only if there is fault, the focus on cause is critical to the task of determining liability.750 1603 Accordingly, in deciding whether a claimant has proved that they suffered a recognisable psychiatric injury, expert psychiatric evidence is critical. In turn, expert opinion relies on the accuracy of the factual assumptions upon which the opinion is based.751 1604 In a case of pure psychiatric harm, the importance of the factual history provided to the psychiatrist is fundamental, as is the applicant’s account to a psychiatrist of his thought processes, emotional responses and moods.752 1605 Accordingly, the applicant’s credit and reliability are crucial. 1606 In Whisprun Pty Ltd v Dixon753 the High Court held that where a medical opinion is premised on the acceptance of the patient’s account of his or her history 747 Tame v New South Wales [2002] HCA 35 at [193] and [285], (2002) 211 CLR 317 at 381-382 and 414. 748 [2002] HCA 35, (2002) 211 CLR 317. 749 Tame v New South Wales [2002] HCA 35 at [285]-[294], (2002) 211 CLR 317 at 414-417. 750 Tame v New South Wales [2002] HCA 35 at [294], (2002) 211 CLR 317 at 416. 751 Ramsay v Watson (1961) 108 CLR 642 at 648-649. 752 Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at [74]. 753 [2003] HCA 48 at [60], (2003) 77 ALJR 1598 at 1609. -- 311 of 647 -- [2025] SASC 59 Stanley J 308 and complaints, the opinion is contingent on the patient suffering from problems based on the history of which he or she complains. If this factual basis is removed there is nothing in the medical reports to give any support for the opinions expressed. More recently, in Dasreef Pty Ltd v Hawchar754 Heydon J reaffirmed the proof of assumption rule saying it is a fundamental principle of the law that an expert’s opinion is irrelevant if based upon certain assumptions which are not ultimately proved in evidence.755 1607 The position was succinctly explained by the Victorian Court of Appeal in Petrovic v Victorian WorkCover Authority in the following terms:756 As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff's proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff's account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based. [citations omitted]. 1608 A fundamental flaw in the applicant’s case is the unreliability of his evidence. 1609 The applicant called Dr Craig Raeside and Professor Jon Jureidini as psychiatric experts. In response the Commonwealth called Dr Michael Schirripa. The ACM third parties relied upon Dr Michael Clarke and Dr Dilip Kapur. The G4S third parties did not call any psychiatric experts. Dr Raeside 1610 Dr Craig Raeside is a forensic psychiatrist. He saw the applicant for medico- legal purposes. He first interviewed the applicant on 2 November 2010. Subsequently he saw him on 16 August 2017, 31 October 2018757 and 13 January 2021. He provided 10 medico-legal reports dated 21 June 2011; 18 February 2015; 23 August 2017; 14 December 2018; 8 January 2019; 1 February 2021; 7 July 2021; 7 December 2021; 14 March 2022 and 15 March 2022. 1611 Dr Raeside emphasises that diagnosing the applicant depends upon history taking and mental state examination, but overwhelmingly on the history. He said it is important in reaching a diagnosis to adopt a longitudinal view rather than focusing on a snapshot of his condition at any particular time, but the validity of any diagnostic opinion depends upon the accuracy of the history and the factual 754 [2011] HCA 21, (2011) 243 CLR 588. 755 Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [89], (2011) 243 CLR 588 at 621 citing Eric Preston Pty Ltd v Euroz Securities Ltd [2011] FCAFC 11 at [171]. 756 [2018] VSCA 243 at [74]. 757 On page 2 of Dr Raeside’s report of 14 December 2018 he refers to seeing the applicant on 21 October 2018 and 31 October 2018. I understand he saw him only on the one occasion. I cannot establish on which of the two dates the interview occurred. -- 312 of 647 -- [2025] SASC 59 Stanley J 309 assumptions upon which the diagnosis is based. He said that in conducting a medico-legal assessment the history provided by the patient is very important. Necessarily that depends upon the accuracy of the history obtained, but in addition to a history, a psychiatrist undertaking an assessment for medico-legal purposes must rely on a patient’s presentation and his or her signs and reports of symptoms. This forms part of a mental state examination. In arriving at a diagnosis, a psychiatrist is concerned with whether a patient’s reaction to a stressor or stressors produces significant distress or impairment in his or her social and occupational functioning. A diagnosis depends on the severity and persistence of symptoms. Report of 21 June 2011 1612 When the applicant first saw Dr Raeside on 2 November 2010 he presented as a neatly dressed and groomed man who appeared reactive in mood without any features of depression or undue anxiety. He did not display any psychotic features. 1613 Dr Raeside took a comprehensive history from the applicant. He considered the applicant spoke reasonably good English. The applicant said he was born in Tehran. He said his younger brother and father were killed in a motor vehicle accident which occurred some two years before he left Iran for Australia. He said while he was able to adjust reasonably well to their deaths, it was hard for his mother. This was only made worse when he left Iran. The applicant told Dr Raeside that he had not suffered any psychiatric symptoms in Iran and that there was no history of psychiatric illness in his family. 1614 He reported that he was a good student. Following high school he attended a college for two years undertaking a course in civil engineering and attempted to go to university. 1615 The applicant told Dr Raeside that for about two years before his departure he was in a relationship with a girl who introduced him to Zoroastrianism. This led to his conversion from Islam and his subsequent problems. He told Dr Raeside that they worked together drawing maps. After two to three meetings she introduced him to some other Zoroastrians. They were similar to priests. They gave him a book and took him to a temple. Subsequently, the book was discovered in his office and the religious police interrogated him. He was kept in custody for two days and told that he could not attend university or work until they called again. 1616 The applicant told Dr Raeside that his uncle knew someone in the intelligence service and attempted to explain the situation. However, his uncle advised him that it was best for him to leave Iran immediately. He obtained a passport and flew to Malaysia, where he remained for four weeks and then travelled to Indonesia where he stayed for two months. He came to Australia by boat together with 150 other passengers on a small vessel. He said they were at sea for nine days. He recalled that the captain of the boat was only 12 years old. During the voyage they ran out of food and water. Apparently when they were intercepted by the Australian Navy they were heading the wrong way out into the Indian Ocean. -- 313 of 647 -- [2025] SASC 59 Stanley J 310 1617 Dr Raeside noted that following the applicant’s arrival in Darwin on 22 December 2000 he was transferred to Curtin on 23 December 2000 where he remained until he was transferred to Baxter on 22 September 2002. 1618 The applicant reported to Dr Raeside that his depression did not start initially. During the first couple of years in Curtin he went through the process of applying for a TPV. His application was rejected and he brought a number of appeals. Despite these difficulties he told Dr Raeside that it was not until he was in Baxter that his mood began to change between 2002 and 2005. He thought Baxter was worse than Curtin as it was a closed detention centre. He spent most of his time in his room. He said he did not sleep well, often sleeping during the day and only eating once a day. He said he disliked talking to anybody and would generally spend time in his room and close the door. He said that even if his family telephoned, he preferred not to answer as he found it difficult. Immigration officials told him that once his appeals had been exhausted he only had one choice which was to sign the paper and go home. He said that during his five years in detention he lost everything. 1619 He reported to Dr Raeside that he became suicidal. He said that on one occasion he took 25 to 30 Tramadol tablets and was taken to the Port Augusta Hospital where he had his stomach pumped. On a second occasion he took another overdose but the nurse in the detention centre helped him and he did not require hospitalisation. The applicant told Dr Raeside that during that time in detention he was prescribed Zoloft and another antidepressant, Amitriptyline, together with the minor tranquilisers Diazepam and Temazepam. The applicant told Dr Raeside that eventually he was granted a TPV on ministerial approval and released from detention in April 2005. He was uncertain why this occurred at that time as initially he had been told upon his arrival in Australia that he was not accepted as a refugee. But in 2005 the same application based on his religious persecution was accepted. 1620 Dr Raeside noted the various documentation provided to him contained what appeared to be two conflicting accounts of the applicant while he was in detention at Baxter. There was a description of behavioural disturbance with him allegedly involved in lighting fires with other detainees at the end of 2002 and the beginning of 2003. In February 2003 he was noted to have inflicted superficial lacerations to his chest during a protest. Around the same time he was noted to have stress and insomnia. It was also noted that he had been prescribed with a different antidepressant, Luvox, and subsequently commenced on Amitriptyline and continued with minor tranquilisers. 1621 In January 2003 he was noted to be “real aggressive” which was said to be “not out of character for him”. From time to time he was noted to be non-compliant with staff and he became upset on one occasion when the nurse would not give him Valium. A nurse observed him take a bottle of medication from the medical centre. -- 314 of 647 -- [2025] SASC 59 Stanley J 311 1622 However, during 2003 there were also entries in management plans and incident reports that recorded the applicant had no mental health issues at that time. Several days after he allegedly took an overdose of Tramadol in August 2003 it was noted that he said he was well and in good spirits and did not require any further assistance from the MHT at that time. 1623 Dr Raeside noted officer entries throughout 2003 generally described him in positive terms, being in good spirits considering his circumstances, joking and friendly with officers. He was observed to remain respectful and polite to officers, in good spirits, with no unusual behavioural patterns. But, they also noted the applicant as being up and down with his moods, very happy, and smiling one minute then next moody and staying in his room. He was noted to be interacting well with detainees and officers and was generally easy going and light-hearted in his manner within the compound. He was observed to socialise well with other detainees. 1624 However, Dr Raeside noted an entry on 24 August 2003 which recorded that though the applicant had been happy of late, a close friend, who he had been digging a tunnel with, was deported. There was no description of any significant depression following the deportation. 1625 In his first report Dr Raeside diagnosed the applicant as having a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood while in detention. In making this diagnosis Dr Raeside noted the above discrepancies, with the applicant apparently appearing happy and sociable at times in detention, yet at the same time being treated with antidepressant and anti-anxiety medication. In the midst of the applicant apparently being in good spirits, he also took at least one overdose. Behavioural problems, in Dr Raeside’s view, appeared to have been an ongoing concern, particularly soon after he was transferred to Baxter. Dr Raeside also found the documentation difficult to reconcile with the applicant’s reports of being socially withdrawn and staying primarily in his room feeling depressed. 1626 Dr Raeside considered this diagnosis to be essentially a reactive depressive and anxiety state secondary to significant stress, which in his case appeared to be the ongoing detention and uncertainty about the future. Dr Raeside considered it interesting that the applicant did not attribute the onset of his depressive and anxiety symptoms to his failed applications for a TPV, which took most of the first two years in detention to be rejected, but notwithstanding the temporal association he seemed to attribute it to the conditions in Baxter. 1627 The applicant told Dr Raeside that after his release he was good for the first five months during which he tried to find work and interacted with the community. However, he reported that subsequently, memories of his detention returned and he was unable to continue with his university studies which he had been doing for four months. He was able to get some factory work but was unable to maintain this employment. Subsequently, he went to Roxby Downs where things went well initially, but he was also unable to continue that employment because memories of -- 315 of 647 -- [2025] SASC 59 Stanley J 312 the detention centre affected him and he could not work. He told Dr Raeside he resigned from this job in 2008. 1628 He reported to Dr Raeside that since stopping work in 2008 his mood had deteriorated. He had lost weight, he felt anxious in public and spent most of his time sitting at home except to attend at Centrelink or go shopping. He said he saw a psychologist through the Migrant Health Service but decided to stop attending. 1629 In detention the applicant said he had a small hole in his stomach which Dr Raeside thought might describe an inguinal hernia. The applicant referred to stomach pains from taking too many pain killers including Tramadol and Panadeine Forte. When asked the applicant could not provide Dr Raeside with any particular reason why he was taking such strong analgesics apart from needing “something to relax”. He told Dr Raeside that he did not know they were painkillers at the time but took them regularly, perhaps 10-12 a day, as the doctors “just gave them to me”. He also reported being prescribed Zoloft for depression, although Dr Raeside had seen no medical records to confirm that. 1630 Following his release from detention in 2005 the applicant said he continued to have stomach pains as a result of which he underwent surgery at the Royal Adelaide Hospital in March 2007. The applicant suggested some complication by which he got air in his lungs, which suggested to Dr Raeside the possibility of a ruptured oesophagus or some other complication of which he was unaware. However, since the surgery, the applicant said that sometimes he felt epigastric pain, but this was variable, often associated with whether he was upset, angry or sad. 1631 The applicant also reported to Dr Raeside that he suffered a back injury in 2004 when a detention officer came into his room, handcuffed him and another officer kicked the applicant in the back. Following his release from detention the applicant saw a general practitioner. He told Dr Raeside an x-ray was performed but the applicant was unsure if it showed any abnormalities. Nevertheless he complained that the pain continued to come and go. Dr Raeside noted the applicant seemed to described right sciatic pain radiating down the back of his right leg. The applicant said this caused problems while working in the mines, although during the first two or three months he had no particular difficulty, but subsequently the depression and pain got worse. He persisted but was unable to continue working. 1632 He told Dr Raeside that he continues to take 100 mg Zoloft each day. He said he occasionally took 10 mg of Temazepam for sleep at night, as well as 200- 300 mg Tramadol every few days for his various pain symptoms. 1633 The applicant gave Dr Raeside a history of smoking about 15 cigarettes a day in his early 20s. He told him that while in Baxter he occasionally used marijuana to help him relax, perhaps every week or two during 2004 and then daily until he was released. Subsequent to his release he has smoked marijuana only once or twice. He told Dr Raeside he drank alcohol sparingly, two or three times a week, -- 316 of 647 -- [2025] SASC 59 Stanley J 313 usually a light beer, but generally he avoided excessive alcohol because it upset his stomach. 1634 While Dr Raeside diagnosed the applicant with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood he thought it possible that at times the severity of the symptoms might have reached the level of a Major Depressive Episode. He thought it apparent from the applicant’s history that he attempted to make efforts to integrate into the community but felt unable to continue. While the reason for this was not exactly clear, the associated symptoms with depression and anxiety were viewed by Dr Raeside to be consistent with the applicant’s attribution of his depression and anxiety to the conditions at Baxter. 1635 Dr Raeside considered that the combination of depressive anxiety symptoms the applicant was suffering in November 2010 were likely to significantly impair his working capacity, in terms of obtaining work, maintaining work, and dealing with the various stressors that he was likely to experience in interpersonal settings in the workplace. Dr Raeside said disturbed sleep, poor energy, concentration and motivation were all likely to be significant barriers to him obtaining meaningful employment. Report of 18 February 2015 1636 Dr Raeside provided a further medico-legal report on 18 February 2015. He did not interview the applicant for the purposes of this report. However, he was provided with a chronology of the applicant’s time in detention at both Curtin and Baxter. He was asked to assume that after the early period of the applicant’s detention, there was substantial conflict, self-harming behaviour, suicide attempts and escape attempts. He was also asked to assume that in the last two years of his period of detention the applicant gave up, stayed in his room and barely socialised. While this created the impression that he was compliant, his depression did not abate. 1637 Dr Raeside considered that there was no indication that the applicant developed any mental illness in Curtin. He said that was consistent with the contemporaneous medical records from Curtin. He noted that the applicant had told him in 2010 that his mood changed after he was transferred to Baxter and that he found the closed nature of Baxter more oppressive than Curtin which led him to isolate himself in his room. Dr Raeside also referred to the applicant having told him in 2010 that he became suicidal and took an overdose requiring treatment at the Port Augusta Hospital and that a further overdose was treated at Baxter without any hospital attendance. Dr Raeside noted again that some of the history set out in the documentation was at odds with some of what he was told by the applicant in 2010. 1638 Dr Raeside recorded a history in this report that the applicant basically gave up and went through the motions while remaining depressed. However, he could not have obtained this history from the applicant in 2015 as the applicant was not interviewed by Dr Raeside at this time. I will return to this when I consider -- 317 of 647 -- [2025] SASC 59 Stanley J 314 Dr Raeside’s 2018 report. He said that account was consistent with the applicant’s insomnia, repeated self-harm attempts, deliberate overdoses, irritability and aggression, difficulty with compliance with direction and medication, and other similar behavioural issues. 1639 Dr Raeside also considered that the prescription of antidepressant medication and sleeping tablets during the applicant’s time in Baxter was consistent with him suffering from depression and being treated for it. Nonetheless, in his 2015 report he adhered to his earlier opinion that the applicant had a Chronic Adjustment Disorder with Depressed Mood rather than a more severe Major Depressive Disorder. He considered that the failure to refer the applicant to a psychologist evidenced him not receiving a reasonable standard of care with respect to his mental health. 1640 Dr Raeside thought that the staff must have considered the applicant to be suffering a depressive illness given the prescription of antidepressant medication throughout his time in Baxter. While he recognised that it could be argued that these drugs were prescribed primarily to help the applicant sleep, he noted that the applicant was also prescribed Diazepam and Temazepam which may well have been prescribed for that purpose. Consequently, the addition of an antidepressant as well as the sleeping tablets would support the notion that the applicant was depressed and the medical staff recognised this. Given his diagnosis of a Chronic Adjustment Disorder with Depressed Mood, rather than a more severe Major Depressive disorder, he said that treatment with medication might be considered reasonable. Had the applicant been in the community and continued to suffer behavioural and emotional difficulties, then Dr Raeside would have expected that the applicant would have been referred to a psychologist under a mental healthcare plan. Had he not responded to such treatment then a referral to a psychiatrist would have been reasonable. He considered that while there was no indication the applicant was suffering any mental illness in Curtin, his experiences in detention there may have rendered him more vulnerable to his subsequent experience in Baxter. Dr Raeside considered that the applicant’s detention in Baxter would have been a substantial cause of the development and persistence of his ongoing mental health issues. Report of 23 August 2017 1641 Dr Raeside next saw the applicant on 16 August 2017. Dr Raeside took a further history, and produced a further medico-legal report dated 23 August 2017. The applicant told Dr Raeside he was now married and had an 11-year-old stepson. He said he lived with his family in a Housing SA townhouse in Renown Park. He told Dr Raeside that his wife is his cousin from Iran. He said they connected on Facebook, the applicant having not had any contact with her family since he had come to Australia. He said he went to Jakarta to see her a few times and then went to Dubai where he saw her and her mother. After a few visits they decided to get married. He said she works as a hairdresser and that her English is good. The applicant told Dr Raeside that their relationship was not particularly good, which -- 318 of 647 -- [2025] SASC 59 Stanley J 315 he attributed to his life not being very good. He said they had frequent arguments, mostly concerning sex, which she wanted more frequently than him. He explained that medication made it difficult, which left him with a low libido. He tried ceasing the medication but that made no difference. In addition, his wife wanted to go out, but he preferred to stay home. While he was happy for her to go out by herself, he was uncomfortable in social settings and large groups. At times he accompanied her shopping but after one or two hours he wanted to come home. He said at times they would argue in public and police had been called. He described having a reasonably good relationship with his stepson but, again, there were difficulties when he wanted to go outside with the applicant and play but the applicant preferred to stay inside. He told Dr Raeside this also became a source of friction between the applicant and his wife. 1642 The applicant told Dr Raeside he tried to deal with these tensions by going for a drive for one or two hours to get away by himself, but this only provided temporary relief from their problems. They had discussed divorce, but then had spoken with other people who encouraged them to try and make it work. 1643 The applicant said that these problems in his marriage had caused him further depressive symptoms. He blamed himself for the problems in his marriage. 1644 He told Dr Raeside he continued to suffer a persistent depressed mood and struggled with sleep. His weight fluctuated and he continued to avoid social encounters. Most of the time he stayed at home by himself in his room. Nonetheless, he still had a few friends who he contacted from time to time. These were friends from Baxter. 1645 The applicant told Dr Raeside that he continued to be prescribed Zoloft 100 mg daily. At times he also took 150mg of Lyrica for back pain. He repeated his earlier assertion that this was the result of an injury that he had suffered at Baxter when a DSO had kneed him in the back. He said that after he left detention he began taking OxyContin regularly until 2009 by which stage he became dependent upon it. He subsequently obtained it from various doctors. This was the first time the applicant had mentioned OxyContin to Dr Raeside. He told Dr Raeside that eventually he went to Drug and Alcohol Services and was put on Suboxone. He said he had not used OxyContin for the previous three years and was still taking 16 mg of Suboxone a day. 1646 The applicant told Dr Raeside that he had been seeing a psychologist, Mr McInerney, following his release from detention until 2015. He said he had ceased consulting Mr McInerney because he did not feel it was making any difference. 1647 The applicant said that in the intervening period since he last saw Dr Raeside he had been working on an irregular basis, initially as a machine operator. In 2011 he obtained work for Spotless Laundry at Roxby Downs for four months. He reported that being close to Woomera brought back bad memories. In addition, he -- 319 of 647 -- [2025] SASC 59 Stanley J 316 disliked the hot conditions and returned to Adelaide where he was unemployed for two years. He said that at the end of 2013 he obtained work with Korvest as a machine operator and sheet metal worker involving folding, cutting and shipment of orders. However, he reported that he was made redundant after a few months when the company moved to Asia. He said he registered with a number of job agencies but was only able to obtain on-call work for a few days here and there. He said that since May 2017 he had been unemployed and in receipt of Newstart Allowance. He reported that when he was able to find work all would go well for a few months but then he would be unable to control himself, becoming irritable, aggressive and argumentative. This would lead to him resigning or being dismissed. He recognised that it was his fault and he struggled to enjoy things. In addition, he told Dr Raeside that Zoloft affected him when he was working. He sometimes felt dizzy. 1648 Dr Raeside considered that by 2017 the applicant’s condition had been chronic for many years and he appeared to have failed to respond to psychological treatment and antidepressant medication. This led him to conclude that the applicant’s prognosis was poor and that his condition was likely to persist indefinitely irrespective of any further treatment. He said this was likely to prevent the applicant maintaining permanent employment. Report of 14 December 2018 1649 Dr Raeside next saw the applicant on 31 October 2018. He provided a further medico-legal report on 14 December 2018. For the purpose of this report the applicant’s solicitors provided Dr Raeside with various documents including a 28- page Outline of Evidence purporting to be the evidence the applicant would give at trial, a 112-page chronology, an additional chronology of the applicant’s medical drug and event history in detention and a complete set of the applicant’s ACM and IHMS medical progress notes. The letter of instruction sent by the applicant’s solicitors to Dr Raeside of 7 December 2018 made clear to Dr Raeside that he was asked to assume the Outline of Evidence was accurate. In the event of contradiction or inconsistency between the Outline of Evidence and the earlier histories Dr Raeside had obtained from the applicant, he was asked to accept the version of events in the Outline of Evidence over those histories. I note in that regard that notwithstanding that Dr Raeside had interviewed the applicant on 31 October 2018, he was not provided with the Outline of Evidence until after 7 December 2018. Accordingly, Dr Raeside did not have an opportunity to take a history from the applicant by reference to the contents of the Outline of Evidence before providing his opinion of 14 December 2018. 1650 The Outline of Evidence required Dr Raeside to accept both factual assumptions and subjective accounts. The factual assumptions Dr Raeside was required to accept included; descriptions of events in Iran concerning the applicant’s interaction with the Iranian secret police, his interrogation and torture, his escape and flight from Iran; reference to the Management Unit; the applicant’s capacity for employment from 2005 to 2008 and his use of antidepressant -- 320 of 647 -- [2025] SASC 59 Stanley J 317 medication. Dr Raeside was asked to assume various assertions concerning the applicant’s mental and emotional state in Curtin, his state of mind at various times in Baxter, such as when he participated in a protest in February 2003 involving cutting himself, when he took an overdose of Tramadol in August 2003 and again in 2005 and 2008 subsequent to his release from Baxter. 1651 The assumptions contained in the Outline of Evidence caused Dr Raeside to change his opinions concerning the applicant’s mental state on arrival in Australia and his transfer to Baxter. Under cross-examination Dr Raeside agreed that he had not been told by the applicant in his initial interview in 2010 of the beatings at the hands of the secret police in Iran.758 The account given in the Outline of Evidence concerning the applicant’s experiences at Curtin were totally different from the history he had obtained from the applicant in 2010.759 He also accepted that in 2013 Dr Schirripa had obtained the same history from the applicant that he had given Dr Raeside in 2010, namely, that the applicant had not suffered symptoms of depression at Curtin.760 1652 The Outline of Evidence identified five occasions the applicant was placed in the Management Unit, namely, early January 2003, February 2003, March 2003, August 2003 and in 2004. 761 This was wrong, but Dr Raeside assumed this to be true for the purposes of the preparation of his opinion of 14 December 2018. 1653 Dr Raeside was asked to assume that from May 2004 onwards the applicant started to withdraw from activities such as playing soccer, and stayed in his room and watched movies, he did not speak to visitors and left his room only to eat. That led to Dr Raeside considering that the applicant’s impairment of social functioning was more severe than he had previously thought. 1654 Prior to receipt of the Outline of Evidence Dr Raeside took a further history from the applicant in 2018. He told Dr Raeside that he and his wife had separated about six months earlier due to lots of arguments. They then resided in different parts of the house. The applicant also told Dr Raeside that about two weeks prior he had been arrested following an argument with her. He was the subject of an intervention order and bail conditions which prevented him from returning to the family home or contacting his wife and stepson. He had been charged with assault. 1655 The applicant told Dr Raeside that his mental state had worsened over recent years, aggravated by domestic arguments which deteriorated until he finally lost control resulting in his wife calling the police. He told Dr Raeside that stuff from the detention centre kept coming into his mind; that he would like to just sit by 758 T 6191. 759 T 6196. 760 T 6197. 761 The corresponding letter of instruction dated 7 December 2018 seeks to clarify this aspect of the Outline of Evidence so as to identify a correction to paragraph 104 that the applicant was actually “detained with 13 other detainees suspected of having lit the fires in the Management Unit from 1 - ? [sic] January 2003 and then in the Blue Three Compound until 5 March 2003…and then back to the Management Unit until 11 March 2003”. In any event, this is still inconsistent with the documentary evidence. -- 321 of 647 -- [2025] SASC 59 Stanley J 318 himself; that he suffered lots of things in the Management Unit; had arguments with the DSOs and that it was still in his mind. This was the first time the applicant mentioned the Management Unit to Dr Raeside. Dr Raeside thought that this may have been triggered by him being placed in the police cells. 1656 The applicant told Dr Raeside that one of his friends from detention died in 2017. He caught up with some former detainees at the funeral. He had not been in contact with them since his release. He did not talk much with them. He said his depression had been worsening in recent times, particularly the last six months. He told Dr Raeside he had some suicidal thoughts after the death of his friend but these passed and he had no actual intention to take his own life. His depression had been at its worst between 2010 and 2012. He wanted to be in a quiet place and not go outside. He could not watch a movie for more than five or six minutes without thinking about detention. He said he was able to remember every small detail of that experience, especially his time in the Management Unit. He told Dr Raeside of being strip-searched by DSOs, placed in isolation with a camera and only let outside for four or five minutes every 24 hours. 1657 He told Dr Raeside he had been thinking more about his life since he came to Australia nearly 20 years earlier. He said nothing had changed, not one positive thing. He had become optimistic after he married and was quite happy for a few months until his relationship with his wife deteriorated and his marriage effectively ended. This made him feel worse again. He attributed his marriage problems to his behaviour. 1658 He reported that he had enrolled in a TAFE course the previous year but could not concentrate and stopped attending. He said he was sleeping poorly and often going to bed late. His appetite was poor. He had difficulties with concentration. 1659 As he had done in earlier reports, Dr Raeside noted the conflict in accounts of the applicant’s time in Baxter. While there were clear descriptions of behavioural disturbance in late 2002 and into 2003, there were also entries that he was not exhibiting mental health issues and in fact, particularly later, he was described in positive terms. Dr Raeside noted in this report that the applicant had previously explained that by this stage he had given up and was going through the motions while remaining depressed and that this may not have been obvious to others. However, I note that it is unclear whether the history of the applicant having ‘given up’ originated from the applicant reporting this to Dr Raeside in a conventional sense or the applicant’s solicitors including it in a question for the purposes of Dr Raeside’s 2015 report. The fourth question put to Dr Raeside for the purposes of his 18 February 2015 report was: I enclose a chronology prepared by our firm of our client’s period of determination in both the Curtin and Baxter detention centres. I note based on the records and your discussions with my client that there are conflicting reports of my client’s mood and state of wellbeing particularly towards the latter stages of his period of detention. After the early period of my client’s detention where there was substantial conflict, self-harming behaviour, suicide attempts, and escape, reports of problems begin to decline and some of the reports then -- 322 of 647 -- [2025] SASC 59 Stanley J 319 conflict in relation to my client’s mood and in the latter two years of my client’s period of detention. My client’s instructions are that he effectively gave up towards the latter stages of his period of detention and stayed in his room and barely socialised. He would have been seen as compliant and quiet by detention centre staff, but his depression never abated. Assuming the above to be the case, could you please provide me with an opinion of whether or not you consider there were any failures of care by the Commonwealth and/or detention centre providers during my client’s period of detention in Baxter? 1660 Dr Raeside again attempted to reconcile these discrepancies and noted that many of the applicant’s behavioural issues were consistent with manifestations of an underlying depressive illness although there was no indication that this was a severe depressive illness. 1661 In this report, Dr Raeside adhered to his earlier diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Raeside reiterated his opinion that apart from the prescription of antidepressants there was no indication that the applicant received any ongoing psychological therapy let alone any psychiatric assessment while in Baxter. He reiterated his view that he should have been screened upon his arrival at Baxter and later referred under a mental health care plan to a psychologist or psychiatrist. However, in relation to the former, Dr Raeside accepted that by September 2002, when the applicant arrived at Baxter, a mental health screening would likely not have found that the applicant was suffering a mental illness at that time.762 1662 Dr Raeside noted that in the Outline of Evidence the applicant set out the circumstances that caused him to flee Iran and described the stressful voyage to Australia. Notwithstanding these traumatic events, Dr Raeside considered there was no clear evidence the applicant developed a mental illness prior to his detention. However, in his opinion, these experiences would have rendered him more vulnerable to subsequently developing a mental illness. Accordingly, he departed from his earlier opinion and considered that the applicant was of less than normal fortitude when he was placed in detention. Relying upon the Outline of Evidence and other materials, he altered his earlier opinion, now opining that he suspected the applicant already had an Adjustment Disorder with Mixed Anxiety and Depressed Mood prior to his arrival at Baxter. Accordingly, he considered that it would have been reasonable for the applicant’s mental health to have been assessed upon his transfer to Baxter as his previous experiences would have been highly likely to have caused recognisable symptoms of depression and anxiety. At the very least, he considered this should have revealed his vulnerability to developing an actual psychiatric illness. He opined that by the time he saw the mental health nurse in March 2003 the applicant should have been diagnosed as suffering from an Adjustment Disorder. This is so even if the applicant did not personally report many of his symptoms as there were signs of depression and anxiety evident by that time. 762 T 6275. -- 323 of 647 -- [2025] SASC 59 Stanley J 320 1663 Dr Raeside thought the applicant’s general appearance and behaviour by the end of his time in detention appeared to be more positive, and he was probably not suffering from an Adjustment Disorder at the time of his release from detention. However, the chronic nature of his condition did not mean it was present all the time. Rather, it came and went in response to his reaction to adverse and stressful circumstances and his underlying vulnerabilities. Further, Dr Raeside considered it possible the applicant had developed better coping mechanisms by the latter stages of detention. 1664 Dr Raeside considered that when he saw the applicant in October 2018 he had an Adjustment Disorder with Depressed Mood as a result of his ongoing stress in the community, not the least being his marriage breakdown and the other factors relevant to his time in detention. Report of 8 January 2019 1665 Dr Raeside provided a further short supplementary report dated 8 January 2019 without further interviewing the applicant. In it he set out his view that, while the applicant’s mental illness did not cause his subsequent opioid dependence, it was a significant contributing factor. However, other factors, including chronic pain, were also substantial factors. This opinion depends on acceptance of the applicant suffering a psychiatric illness in Baxter. Report of 1 February 2021 1666 Dr Raeside next saw the applicant on 13 January 2021. He provided a further medico-legal report dated 1 February 2021. At the interview he told Dr Raeside that he had recently halved his dose of Zoloft to 50 mg in the morning due to problems sleeping, as well as disturbing dreams. He told Dr Raeside that this seemed to help. 1667 The applicant told Dr Raeside that he was suffering ongoing back pain that interfered with his work. He was taking Lyrica 150mg to relieve the pain. He told Dr Raeside that as long as he had no arguments with his wife or friends he felt reasonably settled, but little things could set him off. When he saw friends, he stayed no longer than 20 minutes. He was still socially avoidant. The applicant reported continuing difficulties with his sleep. However, his appetite had improved, while concentration remained poor. 1668 He said that recently he had been thinking increasingly about his time in detention. He described clear memories, particularly about his time in Baxter. He referred mainly to general memories of detention, but two particular memories stood out. The first was being pressured to sign a document agreeing to be returned to Iran and the other was seeing two friends deported. He said that was a very bad time, that every night at midnight the officers would come and take someone. He also described difficulty in the Management Unit for a couple of days when he was only allowed to smoke for five minutes a day, and the air conditioner was turned -- 324 of 647 -- [2025] SASC 59 Stanley J 321 so low he was cold but was not given a blanket. Dr Raeside presumed this was to prevent self-harm. 1669 Dr Raeside reported that after his interview with the applicant he had the opportunity to speak to the applicant’s wife. She described to him depressive symptoms that were more severe than those mentioned by the applicant. She said he was depressed all the time and spent most of his time at home in the garage. She said they remained married but separated. She described the applicant as being very angry and always grumpy, contrary to what the applicant told Dr Raeside. She reported that he did not eat much and that he had lost a lot of weight. 1670 Dr Raeside considered that at the time of this report the applicant had an Adjustment Disorder with Depressed Mood. He thought this was consistent with the applicant’s symptoms being variable depending on the stressors he was experiencing and his ongoing underlying vulnerability. 1671 While Dr Raeside accepted an Adjustment Disorder would not be considered a permanent impairment, he thought that the applicant’s underlying vulnerability was permanent and that he would likely remain with ongoing social impairments. Report of 7 July 2021 1672 Dr Raeside provided a further medico-legal report on 7 July 2021. In requesting this report the applicant’s solicitors asked him to consider notes made by Mr McInerney when the applicant consulted him and a copy of a questionnaire the applicant had completed in April 2018 when he saw the psychologist Mr Abiyat. He was also asked to provide a response to the medico-legal report of ACM’s psychiatric expert Dr Michael Clarke, who disagreed with Dr Raeside’s diagnosis of Chronic Adjustment Disorder with Depressed Mood. Dr Clarke did so on the basis that such a diagnosis is not persistent or chronic. Dr Raeside accepted that diagnostically, according to DSM-5, Dr Clarke’s reasons for rejecting a diagnosis of Chronic Adjustment Disorder were correct. Dr Raeside said his opinion was based on the cumulative and sequential stressors that the applicant had experienced since detention. Upon review Dr Raeside said he believed it would be more appropriate to diagnose the applicant as suffering from a Persistent Depressive Disorder. 1673 Dr Raeside remained of the view that the availability of psychiatric services at Baxter were not commensurate with the services available in the community. He rejected the suggestion that he had overestimated the potential value of psychiatric treatment for the applicant while he was at Baxter. At the very least, Dr Raeside considered that early and effective treatment could have reduced the severity of his initial symptoms and reduced his vulnerability to subsequent stressors in the community. 1674 Dr Raeside said that other than a change in his diagnostic terminology from Chronic Adjustment Disorder with Depressed Mood to a Persistent Depressive Disorder he continued to express his previous opinions. This diagnosis was made -- 325 of 647 -- [2025] SASC 59 Stanley J 322 based on the history provided to him, as well as the symptoms recorded by Mr McInerney in his clinical notes. Report of 7 December 2021 1675 On 26 November 2021 the applicant’s solicitors wrote to Dr Raeside seeking a conference to discuss whether his opinions remained the same in light of evidence given by the applicant.763 This letter attached a 32-page Summary of Evidence dated 26 November 2021 (Summary of Evidence), summarising evidence given at trial concerning the applicant’s detention in Baxter and his medical condition during and after detention. The letter requested that Dr Raeside assume the general accuracy of the Summary of Evidence and identified various aspects of the evidence which differed from the history previously obtained by Dr Raeside from the applicant. Those aspects were the death of the applicant’s father; the circumstances of his boat journey to Australia; his smoking; his overdose in August 2003; his back injury from being kneed by a DSO; his completion of the visa process; his marriage; his sexual dysfunction; his abuse of OxyContin; his use of Zoloft; his dismissal from employment; his reason for leaving Roxby Downs; and his mood, sleep and appetite. Dr Raeside was asked to assume the accuracy of the evidence given by the applicant at trial in preference to the history he had obtained when interviewing the applicant previously.764 1676 The applicant’s solicitors provided Dr Raeside with a letter of instruction dated 3 December 2021. Relying on the Summary of Evidence, Dr Raeside produced a further medico-legal report of 7 December 2021. In that report he changed his opinions. Specifically, he considered that, assuming the Summary of Evidence to be accurate, the applicant’s depressive symptoms were more severe and protracted than he had previously been led to believe. He considered that the applicant’s depression commenced in Curtin and persisted and worsened in Baxter. He also considered that the Summary of Evidence suggested a more difficult and traumatic boat journey to Australia than he had previously noted. He also obtained from the Summary of Evidence extensive complaints by the applicant in relation to the Management Unit. Dr Raeside referred again to the August 2003 overdose, characterising it as an overdose with lethal intent, seemingly out of fear of being returned to the Management Unit. Dr Raeside also noted that the overdose occurred two days after a High Court rejection of his special leave application. 1677 Dr Raeside referred to explanations provided by the applicant to explain his presentation to DSOs and his denial of any health problems for fear he might be returned to the Management Unit. He thought the Summary of Evidence suggested that the applicant was always depressed during his last six months of detention. I do not accept this opinion which is contrary to extensive contemporaneous evidence of the applicant’s positive mood during this period. 763 Exhibit 2.4TP587. 764 Exhibit 2.4TP587. -- 326 of 647 -- [2025] SASC 59 Stanley J 323 1678 Dr Raeside also thought that since his release the applicant appeared to have remained impaired. This opinion suffers from a false premise and is inconsistent with the original history obtained by Dr Raeside in 2010. 1679 On the basis of the Summary of Evidence he considered that the applicant had also been suffering from a Major Depressive Disorder at times during his detention, although he could not identify when that occurred given the initial Chronic Adjustment Disorder with Depressed Mood and then the Persistent Depressive Disorder from which the applicant suffered. Dr Raeside considered that the applicant’s depression did not exclude an ability to superficially engage with DSOs and others by smiling, joking and laughing. If this occurred for brief periods of time, and in specific circumstances, it was not inconsistent with his diagnosis, but suggested that although the disorders were present at that time, the severity was not so profound as to prevent this occurring. 1680 Relying on the Summary of Evidence Dr Raeside considered that the applicant’s depression was not simply associated with being detained and having his freedom limited but also related to a variety of factors in the detention experience beginning in Curtin and persisting and worsening in Baxter. In particular, feelings of hopelessness, helplessness, humiliation, degradation, potential sudden removal and deportation without warning were particularly potent in the development of his depressive illness. Dr Raeside thought the persistence of his depressive symptoms since his release from detention pointed to those symptoms not simply being due to his detention. Dr Raeside considered that the abuse of OxyContin was an aggravating and perpetuating factor but the applicant’s experiences in detention probably led to his susceptibility to become dependent upon the medication. 1681 Dr Raeside’s ultimate diagnosis at the time of this report was that the applicant continued to have a Persistent Depressive Disorder but remains particularly vulnerable to episodes of Major Depressive Disorder. Reports of 14 March 2022 and 15 March 2022 1682 Dr Raeside provided two further reports of 14 March 2022 and 15 March 2022. These reports are in response to the opinions set out in the report of the Commonwealth’s psychiatric expert Dr Michael Schirripa dated 23 February 2022. In particular, they relate to Dr Schirripa’s comments concerning the diagnosis of Persistent Depressive Disorder. Dr Raeside concludes that, notwithstanding Dr Schirripa’s criticism of his diagnosis of Persistent Depressive Disorder, he adhered to that diagnosis on the basis of the facts he had been asked to assume. However, he qualified his opinion on the basis that if those assumed facts changed, he would be prepared to review his opinion. Diagnosis by Dr Raeside 1683 In the course of giving his evidence Dr Raeside qualified the diagnosis he made of the applicant from his 7 July 2021 report onwards. In that report he found -- 327 of 647 -- [2025] SASC 59 Stanley J 324 that it was more appropriate to diagnose the applicant as having a Persistent Depressive Disorder, rather than an Adjustment Disorder with Depressed Mood. Dr Raeside explained that he still considered the applicant’s symptoms to be consistent with a diagnosis of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood which is recurrent and fluctuating depending on the stressors in the applicant’s life.765 He then said that if he was required to exclude that diagnosis because of the length of time, his diagnosis would be a Persistent Depressive Disorder. His evidence was that sometimes people and their situations fall between categorical diagnostic systems. He said it is only the constraint of the categorical approach in DSM-5 that caused him to change his diagnosis, but he still favours a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. 1684 Dr Raeside said that a stressor is not required for a diagnosis of Persistent Depressive Disorder. Common features of that diagnosis are a flatness of aspect and loss of self-esteem. He considered that generally a person’s presentation does not fluctuate. Yet the absence of some of these symptoms does not exclude the diagnosis of Persistent Depressive Disorder. However, in Dr Raeside’s view the applicant has had a long-standing depressive and anxiety disorder that primarily has been related to stress and trauma throughout his recent life, including in Iran, that persists, and is likely to persist, throughout his life.766 Dr Raeside also considers that the applicant’s failure to seek psychiatric treatment does not exclude him suffering mental illness. 1685 At trial Dr Raeside considered that the applicant’s condition had become persistent in recent years, but he nonetheless held to the view that an Adjustment Disorder can persist over many years when there are ongoing new or recurrent stressors perpetuating the condition. Dr Raeside expressed the opinion that though a person can react adversely to a particular event or events which are subjectively distressing, this does not justify the diagnosis of a mental illness unless that distress persists and impairs their function. 1686 Under cross-examination Dr Raeside rejected the proposition that he was unable to distinguish between the impact of the fact of detention itself, as opposed to the impact of the conditions and events which the applicant was exposed to in detention, in determining the cause of the applicant’s vulnerability to suffering a depressive illness. 767 1687 Dr Raeside was also cross-examined about the relevance and significance of various observations made by DSOs in the period from 30 July 2003 until 4 January 2004. It is unnecessary to set out the detail of those observations. It is sufficient to note that Dr Raeside accepted that the evidence of those observations over that period of nearly six months, does not support the assumption Dr Raeside 765 T 6227.7-10 766 T 6227.13-23. 767 T 6297. -- 328 of 647 -- [2025] SASC 59 Stanley J 325 was asked to make for the purposes of the preparation of his 18 February 2015 report, that the applicant had given up and was constantly depressed and mostly staying in his room.768 1688 On the contrary, Dr Raeside accepted that if the observations recorded by DSOs are accurate descriptions of the applicant’s level of functioning and affect, he agreed that the applicant was not suffering an Adjustment Disorder during that period.769 Generally those observations consisted of the applicant presenting positively, joking with officers, being polite, regularly visiting other compounds, interacting with other detainees, being talkative, appearing happy and upbeat, playing pool, playing cards and smiling. 1689 However, there are also observations of him staying in his room, being quiet, keeping to himself, spending most of the day in bed, being very reserved and visiting the nurse. It is notable that this period included the rejection of his application for special leave to appeal to the High Court and the attempted overdose in August 2003. But Dr Raeside accepted that if a psychiatrist had seen the applicant in the days following the attempted overdose in August 2003 and they had been told by the applicant that he had not attempted to kill himself, the psychiatrist would likely have assessed him as not needing to be seen again.770 1690 Allowing for the applicant’s evidence that his depression never abated in detention, if that is true, Dr Raeside accepted that during this period he may have felt depressed but not to a level that was clinically significant.771 1691 However, Dr Raeside also considered that the Memorandum of Understanding between the governments of Iran and Australia reached around March 2003 that allowed for the forced deportation of Iranian detainees would have been one further stressor for the applicant.772 1692 Dr Raeside rejected the proposition that the absence of complaints of symptoms of mental ill health while the applicant was in the Management Unit excludes the possibility that nonetheless he was suffering from symptoms of a mental illness. He countered that in his experience it was not uncommon for prisoners not to complain in these situations for fear that they would be kept longer in those environments.773 1693 When seen by a general practitioner on 7 January 2003 following the fires and his placement in the Management Unit, the applicant complained of insomnia. Dr Raeside accepted that while insomnia is a symptom of depressive illness, it is not necessarily evidence that the applicant was suffering a depressive illness at that 768 T 6316. 769 T 6342. 770 T 6385-6387. 771 T 6343 773 T 6351-6352. -- 329 of 647 -- [2025] SASC 59 Stanley J 326 time.774 Further, Dr Raeside accepted that the applicant’s treatment with antidepressants is also consistent with him being treated for insomnia.775 1694 Dr Raeside maintained under cross-examination that though the self-harm incident of 6 February 2003 was a form of protest, it was also a product of an underlying mental health problem on the part of the applicant. Dr Raeside took the view that the 6 February incident should have prompted some investigation by medical or nursing staff.776 In Dr Raeside’s opinion the prescription of antidepressants to treat the applicant following the self-harming incident was an appropriate response but the treating general practitioner should have referred the applicant to a psychiatrist.777 1695 Dr Raeside considered the applicant’s evidence suggested that he was always depressed during his last six months in detention. As I have said, I do not accept his opinion which is contrary to extensive contemporaneous evidence of the applicant’s positive mood during this period. Dr Raeside was taken through the G4S care notes pertaining to the applicant for the period from early February 2004 to April 2005 made by DSOs. These care notes do not support a conclusion that the applicant’s social functioning was impaired in this period. They showed him going on regular inter-compound visits, chatting with DSOs, appearing happy, eating in the mess, mixing with others, speaking on the phone, going to education, working in the kitchen, watching television and videos, taking an interest in his grooming and personal appearance and making friends. Dr Raeside accepted that these observations are consistent with the applicant functioning socially without impairment. Dr Raeside thought that by this time the applicant appeared to have adapted to his situation. 1696 During that period between January 2004 and April 2005 the applicant visited other compounds on somewhere between 219 and 279 occasions over 464 days. Further, between 16 November 2004 and 27 April 2005, which is a period of 169 days, the applicant worked in the kitchen on 158 days. In addition, during the second half of 2004 there was a marked decrease in his attendances at the medical centre. 1697 Dr Raeside accepted that the observations made by Mr Namavar and Mr Shahrooei that the applicant appeared depressed and isolated on occasions when one or both of them visited him in his compound on 25 February, 15 March, 17 April and 31 July 2004 do not necessarily evidence that the applicant was depressed throughout the whole of those months.778 Dr Raeside agreed that this evidence did not establish a diagnosis of an Adjustment Disorder.779 774 T 6354. 776 T 6361-6366. 777 T 6368. 778 T 6480.23, 6482-6483. 779 T 6479-6480. -- 330 of 647 -- [2025] SASC 59 Stanley J 327 1698 Dr Raeside accepted the dosage of Endep that was prescribed for the applicant at Baxter suggests that it was being prescribed to treat insomnia and back pain rather than depression.780 Dr Raeside agreed the applicant ceased to use Endep from early July 2004 until late February 2005. He used it on some five occasions in March 2005. He accepted the applicant did not use it again until after he was released from detention in April 2005. 1699 It was put to Dr Raeside that the length of time the applicant gave evidence in this trial, particularly after having already worked for four hours before attending court, demonstrated a functional ability inconsistent with the existence of a recognisable psychiatric illness.781 Dr Raeside seemed to accept this proposition. 1700 In re-examination Dr Raeside said that his opinion that the observations recorded in the DSO logs of their observations of the applicant indicate that the applicant was not suffering from a depressive illness, was based exclusively on the recorded observations he was taken to. He said that evidence was uninformed by the assumptions he was asked to make of the self-harm incident in February 2003, the attempted escape in March 2003 and the attempted suicide by overdose in August 2003. Dr Raeside said that those events were consistent with the applicant suffering emotional distress. Even accepting the evidence of the observations of the applicant made by DSOs, Dr Raeside still considered it possible that the applicant could have had an Adjustment Disorder with Depressed Mood even if he was able to function normally, at least to some degree, including undertaking inter- compound visits, frequently associated with marijuana use, and performing menial employment. 1701 Nonetheless, Dr Raeside gave evidence that assuming the correctness of the Summary of Evidence subject to some qualifications regarding the evidence of Mr Namavar and Mr Shahrooei, he continued to hold the opinions set out in his report of 7 December 2021, that the applicant not only suffered a Persistent Depressive Disorder during his detention, but also suffered from a Major Depressive Disorder at times on top of the initial Adjustment Disorder. This Persistent Depressive Disorder continued following the applicant’s release from detention. At times after his release the applicant also episodically suffered a Major Depressive Disorder. Dr Raeside further considered, again dependant upon the assumptions he was being asked to accept, that the applicant was suffering from a Chronic Adjustment Disorder with Depressed Mood in the first half of 2004. Further, he gave evidence that depending on which assumptions he was asked to make and the accuracy of those assumptions, in respect of events in the latter half of 2004 and during 2005, the applicant may have been suffering a Chronic Adjustment Disorder with Depressed Mood during that period as well.782 780 T 6498. 781 T 6508-6509. 782 T 6558-6560. -- 331 of 647 -- [2025] SASC 59 Stanley J 328 1702 Dr Raeside is an impressive witness. I found him to be objective, thoughtful and considered. However, it does not follow that I accept all of his evidence. On the contrary, I consider that many of his opinions suffer from the reliance he was asked to place on the Outline of Evidence and Summary of Evidence. Many of the assumptions he was asked to make were not established by the evidence. That deprived his opinions of the requisite foundation for proof in accordance with the principle in Ramsay v Watson783 and Dasreef v Hawchar.784 Reliance upon the Outline of Evidence and Summary of Evidence 1703 As discussed earlier, for the purposes of providing a further medico-legal report in 2018, Dr Raeside was provided with, and asked to assume the correctness of, the matters set out in the applicant’s Outline of Evidence785 in preference to the history he had previously obtained from the applicant during the course of various interviews. 1704 Dr Raeside’s opinions are central to the applicant’s case. The reliance on the Outline of Evidence786 notwithstanding any inconsistency between the it and the earlier histories Dr Raeside had taken from the applicant poses difficulties for the applicant’s case. Those clinical assessments were conducted by the orthodox process that accorded with Dr Raeside’s training, experience and professionally accepted medical standards. 1705 Similarly, for the purposes of his December 2021 Report Dr Raeside was provided with the Summary of Evidence dated 26 November 2021. Dr Raeside was asked to opine by assuming the “general accuracy” of the Summary of Evidence.787 What that means is unclear and can only be a matter of speculation. In any event, the weight Dr Raeside gave to these assumptions is unknown. This unorthodox approach undermined the reliance I would usually have placed on his opinion evidence. 1706 Again, he was told that some of the applicant’s evidence differed from the histories he had previously obtained and was asked to assume that the applicant’s evidence as contained in the Summary of Evidence, rather than the histories taken by him, was correct. As such, in providing his opinion in his report of 7 December 2021, Dr Raeside disregarded the history he took from the applicant in 2010, 2017 and 2018 where it contradicted matters set out in the Summary of Evidence. 1707 The difficulty presented by this approach is that by inviting an expert to read a document, such as the Summary of Evidence, and then to express an opinion on the assumption that the contents of the document are accurate, fails to disclose the 783 Ramsay v Watson (1961) 108 CLR 642 at 648-649. 784 Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [89], (2011) 243 CLR 588 at 621 citing Eric Preston Pty Ltd v Euroz Securities Ltd [2011] FCAFC 11 at [171]. 785 Exhibit R14. 786 Exhibit R14. 787 Exhibit 2.4TP587. -- 332 of 647 -- [2025] SASC 59 Stanley J 329 particular evidence that is the factual foundation for the opinion.788 The Court is left to speculate as to what particular facts set out in the Summary of Evidence Dr Raeside relied upon in forming his opinion. This approach, far from being orthodox, offends the proof of assumption rule. 1708 As was pointed out by King CJ in The Queen v Fowler:789 The course which was sought to be adopted in the present case of asking the opinion of the witness as to the possible mental condition of the accused at the time of the alleged crime, based not upon assumed facts, but upon a reading of the whole of the evidence and the accused's account of his drug ingestion, is not acceptable and such evidence cannot be admissible. It involves the expert in making his own unstated findings of fact and his own interpretation of them. The jury might arrive at different conclusions of fact and a different interpretation of the facts. Clearly a witness cannot be permitted to express his findings and interpretations of fact, and there would therefore be no way by which the jury could know whether the opinion could stand in the light of the jury's view of the facts. 1709 In Arnotts Ltd v Trade Practices Commission790 an expert economist, Dr Williams, was called to give opinion evidence at trial on the basis of the evidence that he had heard when present in court for most of the evidence and having read the transcript of those occasions where he was absent. The trial judge upheld an objection to the admission of Dr Williams’ evidence. The Full Court of the Federal Court dismissed an appeal on the basis that his expert opinion depended upon his evaluation of the whole of the evidence known to him. But Dr Williams did not identify the particular facts upon which he based his opinions nor his processes of reasoning. The Full Court held that assuming Dr Williams had regard to the whole of the evidence given to that stage of the trial, nonetheless there was no way of knowing what parts of that evidence he accepted as correct or what weight he gave to particular aspects of it. 1710 The proof of assumption rule finds clear expression in the frequently cited passage of Heydon JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles791 in following Fowler and Arnotts.792 The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd; Paric v John Holland (Constructions) Pty Ltd. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved. 788 Hillier v Lucas (2000) 81 SASR 451 at 494-495 per Lander J and 523 per Bleby J. 789 (1985) 39 SASR 440 at 443. 790 (1990) 24 FCR 313 at 349. 791 [2001] NSWCA 305 at [64], (2001) 52 NSWLR 705 at 731-732. 792 [2001] NSWCA 305 at [70] and [74]-[78], (2001) 52 NSWLR 705 at 734, 736-739. -- 333 of 647 -- [2025] SASC 59 Stanley J 330 1711 The Summary of Evidence provided to Dr Raeside in 2021 did not provide a clear and accurate account of the applicant’s evidence. Rather than being a summary of the evidence, it is a condensed version of the applicant’s evidence in chief with selected excerpts from the cross-examination, but only where that evidence might be fairly characterised as supportive. It is silent about significant aspects of the evidence that had been led in the trial as at November 2021. It did not include much by way of summary of the cross-examination or any evidence unhelpful to the applicant’s case. It made only fleeting reference to the contemporaneous documents. Many aspects of the Summary of Evidence cannot be relied upon as they are irrelevant, unreliable and/or inaccurate. 1712 Apart from factual inaccuracies contained in the Summary of Evidence, Dr Raeside’s reliance upon the contents of the summary presented other problems of proof or relevance, or an unbalanced impression of what happened to the applicant in detention. 1713 The Summary of Evidence also contained contradictory factual assumptions such as the applicant believing that raising mental health issues would adversely affect his visa application, alongside an assumption that had he been aware that counsellors were available to help him, he would have used them. 1714 Similarly, the Summary of Evidence asserted that the applicant considered there was no one at Curtin he could talk to about mental health issues. This was factually incorrect. Again, claims by the applicant that there was no one at the detention centre whom he could trust to talk to belies the assumption contained in the Summary of Evidence that had the applicant been aware that counsellors were there to help him he would have used them. 1715 The Summary of Evidence was prepared after the applicant had concluded his evidence yet it contained many factual assumptions that had been addressed in cross-examination without any reference being made to contrary evidence. An example was the statement that on 22 January 2003 the applicant and 13 other detainees suspected of involvement in lighting the fires were transferred from Red 3 to Blue 3 during which the applicant was forced to the floor by a DSO who placed his knee into the applicant’s back, causing him back pain. Yet video of the transfer did not support this account. Further, the Summary of Evidence made no reference to the objective medical records which failed to record any complaint by the applicant to any medical personnel about alleged back pain for months thereafter. 1716 Another example is the statement in the Summary of Evidence that the air conditioner in the Management Unit was permanently operating and the room was very cold. Yet the applicant gave evidence that he requested the air conditioner be turned on and off on occasions and that ACM officers complied with this request. 1717 In the Summary of Evidence Dr Raeside was asked to assume that the applicant would undertake visits to other compounds to socialise with friends. Yet -- 334 of 647 -- [2025] SASC 59 Stanley J 331 he was also asked to assume, as detailed in the Summary of Evidence, that in the last six months the applicant spent in detention he was always depressed, largely stayed in his room and did not engage in activities most of the time. That indicated to Dr Raeside that the applicant’s depressive symptoms were more severe and protracted than he had previously been led to believe. Dr Raeside tried to make sense of this inconsistent information. As a result, Dr Raeside considered the applicant experienced significant social impairment in function during the last six months of his period in detention. This was one of the factors which caused him to change his diagnosis from Adjustment Disorder with Depression and Anxiety to Persistent Depressive Disorder. As I have found, the premise of Dr Raeside’s opinion was not proved. 1718 Finally, the Summary of Evidence asked Dr Raeside to assume that subsequent to the overdose in August 2003 the applicant was confined to his room, sitting and staring at the walls, unwilling or unable to interact with his friends. This was despite there being an extensive body of documentary evidence of the applicant’s mood, demeanour, social interaction and work during the months from August to December 2003 which presented observations of the applicant which were inconsistent with the factual assumptions Dr Raeside was being instructed to make. 1719 It can be seen that the factual foundation for Dr Raeside’s ultimate opinion was the factual assumptions set out in the Summary of Evidence. These factual assumptions relied in most part upon the applicant’s evidence-in-chief. As I have explained I am not able to rely upon that evidence unless corroborated by evidence whose accuracy I accept. 1720 Dr Raeside acknowledged that his opinion was dependent upon the accuracy of the applicant’s subjective account of his mood, depressive and anxiety levels, work capacity, level of social engagement, sleep patterns, concentration, irritability and aggression, appetite and the efficacy of drugs prescribed for psychological symptoms.793 1721 The problem posed by the applicant’s approach to eliciting expert evidence relying upon the Outline of Evidence and Summary of Evidence is that it did not involve Dr Raeside assuming specific and expressly identified facts and opining on that basis. Where, as here, the Summary of Evidence is misleading due to its selectivity, inaccuracies, omissions and denial of the history Dr Raeside obtained by the conventional approach to the formation of expert opinion, the Court cannot make findings in reliance on Dr Raeside’s reports, at least from 14 December 2018, when he was asked to assume the accuracy of the Outline of Evidence in preference to the history he had obtained from the applicant. 1722 The acceptance of Dr Raeside’s opinions depends upon the proof of assumption rule. Insofar as those opinions rely upon a history given by the 793 T 6145-6188. -- 335 of 647 -- [2025] SASC 59 Stanley J 332 applicant or provided to Dr Raeside by way of the Outline of Evidence or Summary of Evidence, I am not able to make findings of fact in many cases based on those histories, given these matters and the unreliability of the applicant’s uncorroborated evidence. The only basis upon which a psychiatrist can choose between multiple potential causes of a psychiatric injury is by reliance on the history provided. If the history is partial and unreliable the task of unravelling those potential causes in order to identify what events were or were not actually causative of a diagnosed psychiatric injury is made virtually impossible. 1723 Ultimately Dr Raeside’s opinions are undermined by his reliance upon the history and assumptions that depend upon the applicant’s account of events which, absent reliable corroboration, I am unable to accept as a proper basis for making findings of fact. This renders substantial parts of Dr Raeside’s opinion largely irrelevant, based as it is on the applicant’s unreliable evidence. Professor Jureidini 1724 Professor Jon Jureidini is a psychiatrist with a particular interest in the mental health of immigration detainees. He is a member of the RANZCP Standing Asylum Seekers and Refugees Mental Health Committee. In the course of his practice he visited Baxter about a dozen times, including during the period of the applicant’s detention there. While he is principally a child psychiatrist he has treated and assessed more than a dozen adult male detainees. 1725 Professor Jureidini was called to give evidence in support of the applicant’s unpleaded systems case. He had not treated the applicant. While that would not necessarily cause me to reject his evidence, in this case, along with other factors, which I will explain, this has caused me to place little reliance upon his evidence in making findings of fact in relation to the applicant. 1726 Professor Jureidini prepared two reports dated 25 May 2018794 and 9 February 2022.795 He prepared his reports on the basis of information set out in various documents provided to him by the applicant’s solicitors, including the applicant’s Statement of Claim, a documentary chronology and the Summary of Evidence.796 1727 Professor Jureidini gave lengthy oral evidence. He was cross-examined extensively. 1728 Professor Jureidini is highly critical of the system of mandatory detention for unauthorised maritime arrivals claiming asylum in Australia. His trenchant opposition to the system of mandatory detention informed his evidence, which generally lacked the independence and objectivity that courts expect of expert witnesses. Much of his evidence constituted a form of advocacy in favour of the abandonment by the Commonwealth of the system of mandatory detention. I have 794 Exhibit A547. 795 Exhibit A548. 796 The Summary of Evidence was only provided to Professor Jureidini for the purpose of the preparation of his report of 9 February 2022. -- 336 of 647 -- [2025] SASC 59 Stanley J 333 taken this into account in assessing his evidence. Nonetheless, much of his evidence either expressly or impliedly supported a finding that the psychiatric injury he considered the applicant suffered was the result of the fact of the applicant’s indeterminate detention over nearly four and a half years. His opinion in that regard was unhelpful to the applicant’s case. It is consistent with the evidence of Dr Clarke which I generally accept for reasons I will explain later. Professor Jureidini left me with the impression he considered that the only effective treatment was the applicant’s release from immigration detention. 1729 Professor Jureidini was of the opinion that the circumstances and place of detention at Baxter placed detainees at risk of injury to their mental health. He considered that detention was harmful to the mental health of detainees, that harsh conditions of detention exacerbated this harm, and that long-term detention was likely to increase this harm further. In his view, the circumstances and place of detention at Baxter caused psychiatric injury to many detainees. 1730 Those circumstances were high levels of surveillance; gross restriction of movement; confinement to a single compound; the omnipresent threat of the Management Unit; multiple layers of razor wire; the intrusiveness of the security systems, both physical in terms of cameras and interpersonal in terms of DSOs intruding into people’s rooms to conduct head counts at all hours of the day or night; the bureaucratic difficulties faced by people for whom English frequently was not their first language; the geographical isolation of Baxter; an environment where so many damaged individuals were detained and where that damage was perpetuated; and the physical structure of the facility which deprived detainees of a view of the outside landscape, confining their view to the sky. Apart from the indefinite nature of detention, there were other stressors, including, in particular, anxiety about the outcome of a detainee’s claim for asylum. He described this as a toxic environment. Again, many of these factors, if causative, do not sound in damages. 1731 Professor Jureidini considered that the operation of the system of mandatory immigration detention involved a breach of the human rights of detainees. 1732 He also considered that psychiatric injury was a direct and predictable consequence of the enactment of indefinite mandatory detention based on an overly punitive model of custodial care. He said many detainees who suffered psychiatric illness as a result of their detention did not recover upon being released and granted a permanent protection visa. One of the consequences of indefinite detention was that some detainees had given up. He explained that over time in detention, detainees lost hope and developed habits of passivity and isolation as a result. While detainees who had given up did not cause detention authorities problems, this development in their condition indicated they had suffered permanent psychiatric harm. Professor Jureidini considered that by the end of the applicant’s time at Baxter he had given up. The circumstances that caused detainees to give up made treatment ineffective because the toxic environment in detention continued to damage those detainees. Further, those who had given up -- 337 of 647 -- [2025] SASC 59 Stanley J 334 had poorer prognoses upon release from detention compared to those who were released before they had given up. 1733 Professor Jureidini adopted a three-phase construct to explain the transition in detainees’ mental health. The first phase is when the detainee is initially detained and his or her claim for asylum is being processed. The detainee is hopeful and optimistic and generally cooperative. The second phase occurs as the level of frustration increases. The detainee can become angry and engage in bouts of protest. This can involve self-harm, attempted suicide and the destruction of property. For example, self-harm may be a manifestation not only of protest but of underlying mental illness. Professor Jureidini described the third phase as the “given up” phase. The detainee withdraws into a quiescent state of hopelessness which can be mistaken by the authorities as evidence that his or her mental health has improved when in fact the opposite is the case. The detainee is overcome by the hopelessness of the situation and gives up. Professor Jureidini emphasised that this construct is not strictly linear with a detainee moving serially from the first phase to the third phase. There can be movement backwards and forwards along the continuum. 1734 Professor Jureidini rejected the hypothesis that, merely because the applicant spent time visiting other compounds and working in the kitchen, this conduct excluded him suffering a mental illness or having reached the given up phase.797 On the other hand, he considered the pattern of the applicant’s work in the kitchen in the last six months he was in detention provides some evidence that his mental health was improving. He said that while the evidence is equivocal whether the applicant had reached the given up phase by this time, he could not exclude it. This is to be weighed against the evidence that since his release from detention he has continued to suffer from serious mental illness while still being able to maintain employment.798 Nonetheless, even if the applicant had not reached the given up phase, Professor Jureidini considered this does not exclude him having suffered mental illness.799 1735 Under cross-examination Professor Jureidini conceded that the given up phase was a category of his own invention and not a recognisable psychiatric diagnostic classification. It is not a condition recognised by the DSM-5. In any event, he eventually accepted that the evidence of the observations made of the applicant by the end of 2003 and the beginning of 2004 did not support a conclusion that the applicant had “given up”.800 1736 Professor Jureidini said that, in addition to the very circumstances of immigration detention, detention in the Management Unit risked further detriment to detainees given its conditions. Those conditions included a lack of fresh air; confinement in a small cell for 23 hours a day; a metal door with a small opening 797 T 5626-5627. 798 T 5623-5624. 799 T 5626. 800 T 5521. -- 338 of 647 -- [2025] SASC 59 Stanley J 335 for meal delivery, which was opened and shut from the corridor; cameras covering all angles of the accommodation, including toilet and shower facilities; no access to personal belongings, reading materials, writing materials, radio, television, telephones, or other detainees; and fluorescent lighting which was never turned off. It is Professor Jureidini’s opinion that time spent in the Management Unit was tantamount to solitary confinement. He considered the time the applicant spent in the Management Unit is highly likely to have had a significant detrimental effect on his mental health. Professor Jureidini did not visit the Management Unit at Baxter. 1737 Professor Jureidini considered that signs of psychiatric illness in the detainee population at Baxter was evidenced by high levels of self-harm; high levels of prescription of psychotropic medication; violence; suicide attempts; and altered states of consciousness. 1738 Professor Jureidini was of the opinion there was no safe place within the detention environment at Baxter where distressed individuals could withdraw. The medical facility was difficult to access and provided an unsympathetic environment for anyone experiencing significant distress. He considered there was a lack of proper case management. 1739 Professor Jureidini gave evidence that Baxter lacked a sophisticated medical response to distress and psychiatric symptoms with which detainees presented. This was reflected in the failure to respond to the applicant’s symptoms of psychiatric illness. Professor Jureidini considered that there is no evidence of anybody at Baxter properly understanding the applicant’s perspective or helping him to make sense of his experience. He said an important part of protecting a person such as the applicant from the worst long-term effects of indefinite detention is to have that experience understood and validated. By way of contrast, he said the staff at Baxter seemed to have been too ready to accept superficial positive reports about the applicant’s wellbeing. The medical records document the applicant as being “in good spirits”, “joking and friendly”, and having “no unusual behaviour or patterns”, “no evidence of suicidal thinking”, and “no mental health issues”. Professor Jureidini contended that such assessments represent a superficial acceptance by ACM and G4S of the applicant’s dismissive response to what he experienced as unhelpful interventions by nursing and other staff. He said an experienced mental health clinician would not have accepted such statements at face value, but would have investigated what might be leading a detainee to minimise their distress. Professor Jureidini is dismissive of the evidence of the applicant being in good spirits while in detention at Baxter.801 I was left with the impression that his tendency to dismiss these observations is a product of his default position which is that long-term detention was likely to result in the detainee suffering mental harm. 801 T 5514-5516. -- 339 of 647 -- [2025] SASC 59 Stanley J 336 1740 Professor Jureidini considered that during the period of the applicant’s detention at Baxter, the medical services, and in particular, the psychiatric services, were inadequate, particularly given the harmful effects of detention and the prevalence of mental illness amongst long-term detainees. Professor Jureidini said the only possible treatment for the applicant’s mental illness was to remove him to a more suitable place of detention. It might have been that release was the only treatment that the applicant was prepared to undertake. 1741 Professor Jureidini said the applicant’s condition and circumstances in detention have to be assessed against a background that, in the 17 years since his release from detention, he has continued to experience psychiatric ill health. In the absence of any other plausible cause, the obvious explanation is the damage done to him in detention. 1742 Professor Jureidini considered that there was an extensive and serious level of psychiatric damage suffered by the detainee population. This conclusion is based on an extrapolation from a study of an opportunity sample of the detainee population.802 He considered the level of mental illness amongst detainees was well above the average of the Australian population. 1743 Under cross-examination Professor Jureidini was not prepared to reject the events of August 2003 as being a genuine suicide attempt.803 For reasons I explain elsewhere I accept Professor Jureidini’s evidence that the overdose was a genuine suicide attempt. 1744 Without specifying a diagnosis of psychiatric injury suffered by the applicant, whether an Adjustment Disorder, a Persistent Depressive Disorder or any other recognisable psychiatric injury, Professor Jureidini’s evidence was that the applicant was suffering mental harm and distress in detention. In his oral evidence he sought to resile from his opinion that this was a result of his long-term indeterminate detention, the treatment for which was to remove the applicant from mandatory detention, which he described as toxic.804 This was a position he had set out in a number of articles and papers he had authored.805 Rather, Professor Jureidini sought to focus on the conditions of detention rather than the fact of detention and that detention has to be more than just indefinite and restrictive in order to damage detainees.806 I was left with the impression that Professor Jureidini tailored some of his evidence in ways calculated to assist the applicant’s claim. 802 Zachary Steel et al, ‘Psychiatric Status of Asylum Seeker Families Held for a Protracted Period in a Remote Detention Centre in Australia’ (2004) 28(6) Australian and New Zealand Journal of Public Health 527, admitted as Exhibit A560. 803 T 5495-5500. 804 Exhibit A547 (Report of Professor Jureidini 25 May 2018) p 10, T 5447-5450, 5454. 805 Exhibits R556, R557, R558. 806 T 5447- 5448. -- 340 of 647 -- [2025] SASC 59 Stanley J 337 1745 This was highlighted most starkly when he was cross-examined about an article he had co-authored807 in which it was written: We fully endorse the need for detainees to have access to the highest quality psychiatric care (albeit generally for iatrogenic distress caused directly by the policy of detention.) 1746 Having agreed that “iatrogenic” meant “caused by medical examination or treatment… or investigation,”808 Professor Jureidini sought to distance himself from these remarks in the article he had co-authored. He initially claimed that the term was used “semi-metaphorically, to refer to the damage being done by the way in which the detention policy is enacted”. Ultimately, he repudiated the contents of the article in the following terms:809 Q That’s not what is written there though, is it. It is “iatrogenic distress caused directly by the policy of detention.” A Okay, so what – I don’t – I mean, I am a co-author of this piece, I probably didn’t write that sentence. My view is that it should refer to – I mean, there is certainly a problem from a psychiatric point of view about having indefinite mandatory detention, I’m not denying the importance of that and the potential damage that does. But that is less significant in my view than the way in which that policy was implemented. That is not what that sentence says, I agree. But you know, I can’t be held responsible for – I mean, I can be held responsible because I am a co-author, but it doesn’t accurately reflect my point of view. Q You are happy to put your name to it though. A Yeah, I was, but I am trying to differentiate my point of view from what is written there. 1747 This was a clear attempt by Professor Jureidini to explain a shift in his opinion in order to support the applicant’s case that the harm and distress he assumed he suffered was caused by alterable conditions of detention as opposed to the fact of detention per se. This attempt was also at odds with Professor Jureidini’s earlier opinion that the appropriate treatment for the applicant was removal from mandatory detention rather than an alteration in the conditions of his detention. 1748 While Professor Jureidini considered mandatory detention risked causing mental illness in detainees, his evidence was pitched at a high level of generality which did not engage with the particular circumstances of the applicant. His evidence focussed on his concerns for the mental health of detainees generally, divorced from counterbalancing considerations based on the need to ensure the security, safety and good order of Baxter. For example, he was of the view that the authorities at Baxter could not take any action in respect of detainees suspected of involvement in lighting the fires in December 2002 until a finding against them was made by a Court. I accept that there were features of the security regime in 807 Exhibit R551 page 979. 808 T 5582.34. 809 T 5583.20-37. -- 341 of 647 -- [2025] SASC 59 Stanley J 338 Baxter which made the applicant frustrated, distressed and angry from time to time, but that does not prove a causal connection between specific aspects of the security regime at Baxter and Professor Jureidini’s opinion of the evidence and cause of psychiatric injury allegedly suffered by the applicant. Nor does it prove that the imposition by the Commonwealth of various security measures was unreasonable. 1749 I obtained very limited assistance from Professor Jureidini’s evidence. THE PSYCHIATRIC EVIDENCE - COMMONWEALTH Dr Schirripa 1750 Dr Michael Schirripa is a clinical psychiatrist. He has been in private practice as a consultant psychiatrist since 2008. He has a particular interest in mood disorders. He was retained by the Commonwealth. He interviewed the applicant on 25 March 2013, 22 June 2018 and 24 July 2020. He prepared medico-legal reports dated 8 April 2013, 18 July 2018, 24 August 2020, 28 January 2021 and 23 February 2022.810 Report of 8 April 2013 1751 On 25 March 2013 the applicant attended an interview with Dr Schirripa for the purposes of the preparation of a medico-legal report requested by the Commonwealth. The applicant told Dr Schirripa that in November 2012 he had married his first cousin in Indonesia and he was awaiting her arrival in Australia. 1752 The applicant told Dr Schirripa that he fled Iran in 2000 due to his fear that he would be executed or severely persecuted and subject to 25 years imprisonment because of his interest in converting from Islam to the Zoroastrian faith. He said when this was discovered by the religious police he was taken into custody for three days, interrogated and beaten for two days. The applicant told Dr Schirripa that fortunately his uncle knew someone who was able to secure his release but he was told that he was in big trouble and had to leave Iran as soon as possible. The applicant told Dr Schirripa that it was hard for him to leave his mother and sister in Iran but it was too much of a risk to stay. He said that it was very hard but he explained to them the need to flee Iran and left. 1753 The applicant told Dr Schirripa that his uncle secured him a false passport and he found someone in immigration and was able to fly to Malaysia where he remained for a few months. In Malaysia he said he contacted a people smuggler who arranged for him to travel to Australia from Indonesia. He said that in Indonesia he ran out of money after paying a people smuggler $1,500 but “then he was gone”. The applicant said he had to bribe the police in Indonesia as he had no passport. He was told by the people smuggler that when he arrived in Australia he would be subject to health checks and asked a few questions. He would then be sent to a city where he would be free to work but would be subject to a nightly curfew. The people smuggler did not mention that he would be placed in a 810 Exhibits R1659, R1660, R1661, R1662, R1663. -- 342 of 647 -- [2025] SASC 59 Stanley J 339 detention centre. He was told that the processing of his application for a visa would take 45 days. After two months he boarded a boat carrying about 120 people to Australia. 1754 The applicant also told Dr Schirripa that the people smuggler told him the journey to Australia would take 35 hours. In fact he said that they got lost in the ocean and the journey took 29 days. He described this as a very hard experience. There were over 100 Iraqis and only five Iranians. On the first day there was a fight between them, although he did not participate. There were lots of children on board and after a few days there was no food or water. He told Dr Schirripa that two Iraqis were taken by sharks, although he did not actually see this occur. He said that eventually there was nothing, just a little bit of water between five or six. He had trouble sleeping on the boat, claiming that he might have had only 10 hours sleep in total over the 29 days of the journey. He told Dr Schirripa they would sleep in shifts of around 10 to 15 minutes. 1755 The applicant described being intercepted at sea by the Australian navy and taken to Darwin where he remained for 10 days before being transferred to Curtin. He described the first few months at Curtin as normal and good. However, there were 2,000 detainees in Curtin and there was fighting between them, but he said it was not “so bad” as he thought he would get a visa within a few months. 1756 The applicant told Dr Schirripa that he had no mental problems in Curtin. He did suffer a hernia injury while he was playing soccer and he underwent a surgical repair. 1757 After he had been in Curtin for about two years he heard that the Australian government was saying that Iranian asylum seekers had no chance of obtaining a visa. Nonetheless he still had hope. 1758 The applicant told Dr Schirripa that he was transferred to Baxter. He said that for the first few months it was good. In Baxter he had a single room rather than sleeping in a large compound and the Iranians and Iraqis were separated. He said this was better than Curtin. 1759 The applicant told Dr Schirripa that he was in Baxter when his visa application was rejected and his only chance was intervention by the Minister, which was very hard. It put him under pressure. He found out that some other detainees were deported from other detention centres and this worried him. He had problems sleeping. He said sometimes he had nightmares and could not communicate with his fellow detainees. He saw a doctor and was given sleeping tablets and antidepressants. He took these but he felt like he became addicted. Without the tablets he could not talk to the other detainees. He slept during the day and might wake up around 6:00 p.m. and see the medical person, get his tablets, sit in the room and watch television. He said that was all there was to his life in Baxter. -- 343 of 647 -- [2025] SASC 59 Stanley J 340 1760 He told Dr Schirripa that in 2003 he started to take a lot of tablets. He would take a sleeping tablet at night and an antidepressant such as Amitriptyline. He would also take Tramadol and Panadeine Forte for back pain. After a friend, who had been with him in Curtin and Baxter was deported, he had nightmares where DSOs would come and catch him and return him to Iran where they would “hang me and beat me”. He described people from Immigration coming and telling the detainees that they had two choices, they could have $2,000 and return to Iran or stay at Baxter in detention forever. He felt he had no chance and only coped by taking tablets which allowed him to sleep for a few hours. The applicant told Dr Schirripa that at one point he was taken to the Management Unit because of a fire in Baxter. He said he was placed in isolation. He told Dr Schirripa that he was placed in the Management Unit on four occasions. He said he was in there initially for 10 days and then for two to four days at a time. He said the second time he was sent to the Management Unit was because of another fire. He said “all the people together started the fire”. He described having problems with the DSOs who told him that he did not have any chance, that he should go back to his country and that Australia did not need people from the Middle East. The applicant described arguing with the DSOs and protesting. He described using a razor to cut himself on a few occasions because they put him in the Management Unit and did not permit him to have any contact with his family. He said he was denied visits to other compounds and no shopping was allowed. As a result, the detainees staged a protest in which he cut himself with a razor. After a few days they “came into the compound and said, ‘Okay, you can have contact with your family’, they also brought in a TV”. 1761 Upon his release from detention, he described being socially isolated and having difficulties concentrating which prevented him from completing a foundation course at Flinders University. He said after six months all of his memories of detention returned. While he took tablets, he could not work and resigned from employment. He developed a stomach ulcer but continued to take antidepressants and sleeping tablets. In 2009 he obtained work at Roxby Downs. He told Dr Schirripa that Roxby was quite close to Woomera and when he passed the detention centre he felt bad. In addition, at Roxby Downs he was provided with a single room which was very like the rooms at Baxter. As a result he could only work there for five months. He said he continued to take tablets for depression and sleep but he would get angry on occasions, argue with his boss and supervisors, so he resigned and returned to Adelaide. By the time he saw Dr Schirripa in March 2013 he had been mostly staying at home living on Centrelink. He referred to a further episode of work at Roxby Downs in 2011. He only lasted two months when all his problems returned, namely, memories of the detention centre where he was beaten by the DSOs with a baton and handcuffed. He also said he tried to go back to work after this but could not work because of problems and tablets. 1762 The applicant told Dr Schirripa that he did not like going out into the community and preferred to stay at home alone. The applicant told Dr Schirripa -- 344 of 647 -- [2025] SASC 59 Stanley J 341 that since leaving detention his main problem was the abdominal surgery. He said his mood was variable. He might have one week where he was very good. He reported some days bad things came into his memory but other days he is hopeful about the future being bright. He had been very aggressive since his time in detention. 1763 The applicant told Dr Schirripa that he had a girlfriend in 2006 but because of his mood he argued with her and they broke up. He said that he did not try to get another girlfriend after that. He said his mood was variable though and every day was different. Sometimes he went to the library to read books but could only manage it for 20 minutes. He said he felt like fighting with people but tried to control himself. He said his mood could change. He said: “I can be good and go out and then I get to a busy place and lots of memories come to me, I don’t have a normal life”. 1764 He told Dr Schirripa he was taking Zoloft. He said that he smoked cigarettes and occasionally drank alcohol, but only two or three beers a week. He said he started smoking cannabis at Baxter. The applicant also told him that while he continued to use marijuana after his release from detention, by the time he saw Dr Schirripa in 2013 he had stopped and did not use any other illicit substances. He said that in 2008 he took OxyContin for a few months for his back but no longer did so. 1765 The applicant told Dr Schirripa that he had no prior history of psychiatric symptoms before arriving in Australia. 1766 Dr Schirripa conducted a review of the clinical notes he was provided from the applicant’s time at Baxter. Those notes record, inter alia, that: • On 30 December 2002 the applicant collapsed in the compound due to smoke inhalation but appeared to recover quickly. • On 28 January 2003 the applicant became verbally aggressive towards staff. • On 7 February 2003 the applicant said he was suffering from severe stress and loss of sleep following a “mini protest” the day before. He had superficial lacerations on his chest, was assessed as having “severe stress” and prescribed a Benzodiazepine. It was noted his lacerations did not need stitching. • In early 2003 he was prescribed sedating antidepressant medication Fluvoxamine at night. • On 27 February 2003 the applicant wanted a sleeping pill, indicating that he spent a lot of time at night thinking rather than sleeping. -- 345 of 647 -- [2025] SASC 59 Stanley J 342 • On 28 February 2003 and 6 March 2003 he was again requesting sleeping medication. It was noted that his mental state appeared settled with no intention to self-harm or suicide. He presented in the same way on the next two days. 1767 Dr Schirripa recorded that the entries for April, May, June and July 2003 did not indicate the presence of a mental illness. 1768 Dr Schirripa noted an entry from 11 August 2003 records that the applicant was found in his room supine on the floor and appeared confused, looking around and uncooperative. The entry records he was allowed to return to his room and notes he reported feeling better. The note records that it appeared the applicant took five tablets as he “wanted to sleep”. The applicant denied any self-harm or suicidal intent. He was placed on close observations and appeared to improve. He was reviewed by a psychiatric nurse who found no evidence of a mental illness or of self-harm ideation. 1769 Dr Schirripa considered the incident of 11 August 2003 was not a genuine suicide attempt. He said that if it was a genuine suicide attempt he would have considered the applicant to be more disturbed at that time than he thought him to be. 1770 For reasons I have explained elsewhere I consider this was a genuine suicide attempt. Accordingly, I consider that the applicant was more disturbed than Dr Schirripa assumed. 1771 However, that does not alter my assessment of his evidence. 1772 No one explored with Dr Schirripa the question of how much more disturbed he would have considered the applicant to be in August 2003 on the assumption that the overdose was a deliberate attempt at suicide. 1773 While the applicant was more disturbed than Dr Schirripa assumed, I do not consider that leads to a conclusion that his opinions more broadly must be altered except to accept that in August 2003 the applicant was suffering a psychiatric illness from which he recovered over the ensuing months. 1774 That is consistent with the entries during September, October, November and December 2003 which Dr Schirripa considered did not indicate the presence of a mental illness. 1775 Dr Schirripa noted that an incident report of 27 February 2003 referred to the applicant, along with other detainees, as being suspected of lighting the fires in late December 2002 and early January 2003. A further incident report of 28 February 2003 recorded that the applicant had stolen a bottle of pills while the night nurse was distracted. Another incident report of 5 March 2003 recorded that the applicant and another detainee were involved in digging a hole in an attempt to escape. -- 346 of 647 -- [2025] SASC 59 Stanley J 343 1776 On 16 February 2004 the applicant presented with a complaint that he had problems sleeping. He was prescribed Endep. Notes record that on 24 February 2005 the applicant was again complaining of not sleeping very well “four-six hours a night”. He was asking for a further prescription for Endep. He was also complaining of back pain. He was prescribed sleeping medication and Tramadol. 1777 Dr Schirripa opined in this report that he could not see any current evidence that the applicant suffered from any psychiatric condition. He said that it appeared that when the applicant was in immigration detention there were periods where he suffered from insomnia and had occasional angry outbursts, but he could not see any other evidence the applicant suffered from a psychiatric condition while in detention. He said isolated symptoms such as these are not automatically tantamount to a mental illness. It appeared to Dr Schirripa that the applicant experienced some periods of distress and frustration that led to superficial self- harm on occasions, but again he did not believe that this evidenced a psychiatric illness. 1778 Accordingly, he considered that the applicant did not suffer from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought that the applicant’s mental healthcare needs were appropriately managed while in immigration detention. He did not believe the applicant required treatment with a specialist psychiatrist while he was in detention. Report of 18 July 2018 1779 Dr Schirripa next saw the applicant on 22 June 2018. He provided a further medico-legal report of 18 July 2018. 1780 Dr Schirripa recorded the applicant describing his psychiatric symptoms at that time. He told him that while he forgot about everything he felt good, but when the memories of detention returned it all changed. The applicant described having lots of “lost chances”. He referred to an application to study at TAFE which he did for a month and stopped. When he tried to study, memories returned and he could not continue. He described memories of being isolated and tortured in the camp. He described DSOs handcuffing him, taking him away and strip-searching him. He described the very bad living conditions at Curtin. 1781 When asked to elaborate on his current difficulties he said that he had domestic problems with his partner. He did not want to go out. When he did so he provoked arguments and they would return home. As a consequence he was not asked out anymore. When he and his partner argued his stepson would support his mother which caused arguments with his stepson as well. He said these could become quite aggressive and police had been involved at times. When asked about the arguments he said that he was the problem. His wife and stepson expected him to spend time with them but he isolated himself as he preferred to be alone. His wife was concerned about him and worried that he had “someone else on the side”. He said that he became frustrated, angry and plagued by memories from the past. -- 347 of 647 -- [2025] SASC 59 Stanley J 344 He told Dr Schirripa this caused road rage where he swears and gets into arguments with other drivers, so he tries to avoid going out at all. 1782 The applicant described his sleep as being interrupted two or three times a night. He told Dr Schirripa he slept only four hours each night. His appetite was stable. His mood changed frequently and he became frustrated, angry and argumentative. He said his mood changed depending on the environment. He denied any suicidal ideation. Dr Schirripa recorded the applicant denied experiencing any other symptoms of depression or anxiety and did not describe any other psychiatric symptoms. 1783 The applicant provided a history of being kicked in the back by a DSO at Baxter when there was a fire. He said he was prescribed Tramadol and Panadeine Forte for this pain. After his release he was placed on OxyContin for five or six years. He said he took OxyContin between 2007 and 2013. He said he took seven to eight tablets a day. He later said he stopped using OxyContin in 2014. He described the effect of OxyContin as making him more relaxed and stopping him from thinking of things. 1784 The applicant told Dr Schirripa that he did not think about his future. He said he was stuck in the past and kept thinking about the five years he was in detention. He said he could not think of anything else. He told Dr Schirripa that he wished he had never come to Australia. 1785 Dr Schirripa recorded that during the interview the applicant did not appear visibly distressed, agitated or tearful. He appeared quite solemn and flat in terms of his mood and affect with little variability or reactivity. Dr Schirripa could detect no evidence of psychotic symptoms or suicidal ideation. The applicant was not angry or irritable. 1786 Dr Schirripa expressed the opinion that during the time the applicant was in detention he was primarily assessed and managed by general practitioners and mental health nurses when the need arose. This level of treatment, in Dr Schirripa’s view, was far more commensurate with usual community standards during the period 2000-2005, given the presentation of the applicant. 1787 Dr Schirripa observed that the long-term use of OxyContin, especially overuse, can potentially lead to the development of mental health difficulties such as depressed mood and anxiety. He considered that the applicant’s condition and his presentation had not changed significantly since he saw him in 2013. In his view the applicant did not describe psychiatric symptoms of sufficient intensity or clinical significance to warrant any specific diagnosis. He felt that the applicant did not describe pervasive core symptoms of significant depression or anxiety. Report of 24 August 2020 1788 Dr Schirripa last saw the applicant on 24 July 2020. He provided a further medico-legal report dated 24 August 2020. In his report, Dr Schirripa recorded -- 348 of 647 -- [2025] SASC 59 Stanley J 345 the applicant describing his progress since their last interview on 22 June 2018. The applicant told him that he tries to forget everything and for a short time he feels good but sometimes it comes back to him. He told Dr Schirripa that the thoughts about detention which would come back to him were mainly about the last three years in Baxter. He said he felt under pressure as there were threats that he was to be deported. Sometimes he also thought about the distress of other detainees. He said “I think of some things, mostly though these things are not very clear now; some things are clear”. In the last two years he said that as long as he was working he felt good. Sometimes he liked to be alone, to watch television or something on his phone. He enjoyed that. However, sometimes he argued with his partner over small things. He said he did not know why. He said they had a bad argument the previous year and the police came and he spent one night in custody. He described his mood as being up and down; sometimes very good, sometimes upset, sometimes very happy. 1789 Dr Schirripa noted the applicant did not describe sustained symptoms of significant depression. Nor did he describe any significant insomnia or sleep disturbances. He also did not report any appetite or weight disturbances. 1790 Dr Schirripa considered the applicant did not describe any specific anxiety symptoms. The applicant said that he sometimes worried generally about his future and the future of his relationship with his partner. He described arguments over how he spent his money, such as cigarettes. He reported finding it hard to control his temper. 1791 The applicant explained that he was working in a factory in Wingfield as a machine operator. He liked the job and described the supervisor as a very good man, and his other workmates as very good people. He said he was very happy working there. 1792 Dr Schirripa described the applicant as being quite reactive in the interview. He was not distressed, tearful or anxious. He described the applicant’s presentation as being serious and solemn. 1793 In assessing the applicant Dr Schirripa remained of the opinion that the applicant was not suffering from any psychiatric disorder such as a mood disorder or an anxiety disorder. He considered the applicant had shown the capacity to adapt over the years, referring to his finding and maintaining fulltime employment and his maintenance of a long-term relationship with his partner of eight years, notwithstanding the conflicts he described. Dr Schirripa considered these things showed signs of psychological health and the ability to adapt to stress. Report of 28 January 2021 1794 Dr Schirripa provided a further medico-legal report of 28 January 2021. This was not the result of a further interview with the applicant. It involved a review of various documents including clinical notes from Curtin and Baxter and medico- legal reports. -- 349 of 647 -- [2025] SASC 59 Stanley J 346 1795 Dr Schirripa thought the clinical notes did not indicate the presence of psychiatric symptoms when the applicant arrived at Baxter in September 2002. He noted that on 27 February 2003 the applicant complained of sleep problems as he was ruminating and had headaches for which he was prescribed Temazepam. He noted that on 6 March 2003, while in the Management Unit, the record shows the applicant was “pleasant” and requested further sleeping medication from the psychiatric nurse. His mental state appeared settled. There was no self-harm or suicidal ideation. An appointment was made for him to see the general practitioner. Dr Schirripa noted that on 7 March 2003 the applicant had no new complaints except he wanted sleeping medication and he was given Restavit. The psychiatric nurse also noted that he denied any psychiatric or mental health issues. The notes record him being pleasant on approach. He was to be reviewed daily while in the Management Unit. Dr Schirripa considered that the further entries made on 8, 9, 10 and 11 March 2003 did not describe the presence of a psychiatric illness. 1796 Dr Schirripa observed, as he had done in his 2013 report that the clinical notes in August 2003 indicated there were concerns about a possible medication overdose. Dr Schirripa noted the applicant was recorded as claiming he had taken “two tablets two hours ago”. He was observed by DSOs every five minutes and by a nurse every half hour. He appeared cooperative and settled. He was then observed to be resting comfortably following this. On 12 August 2003 he was recorded as reporting no self-harm or suicidal intent in relation to the events of 11 August 2003. He was recorded as stating he had taken five tablets as he “just wanted to sleep”. He was noted to be eating and drinking as per usual. He remained on high risk observations. His mental state appeared stable on 14 and 15 August 2003. He was removed from high risk observations on 15 August 2003. Dr Schirripa considered there were no other documented incidents from August 2003 that suggested the presence of a psychiatric illness. 1797 In this report Dr Schirripa expressed the opinion that there is no documented evidence that the applicant met the diagnostic criteria for any specific psychiatric illness while he was in Curtin. He considered that the medical notes did not document any psychiatric issues or symptoms. He acknowledged that the applicant appeared to experience a brief and transient sleep disturbance but there was no documented evidence he suffered from any psychiatric disturbance when he arrived at Baxter. 1798 In Dr Schirripa’s opinion there was no documented evidence that would indicate that a specialist psychiatric assessment of the applicant was required upon arrival at Baxter, in March 2003 or August 2003. He considered the clinical notes did not describe the presence of a psychiatric illness in March or August 2003, despite the apparent ingestion of an excessive quantity of medication in August. Dr Schirripa contended that there was no clear evidence of suicidal ideation at the time the ingestion occurred and that the applicant was managed appropriately by the health staff at the time. Accordingly, in his view, there was no requirement for a psychiatric assessment. -- 350 of 647 -- [2025] SASC 59 Stanley J 347 1799 Further, Dr Schirripa was of the opinion that there was no documented evidence by which the applicant would have qualified for a diagnosis of opiate dependence during his period of detention in Baxter or at the time of his release. However, Dr Schirripa did consider that the applicant developed an opiate dependence after his release from Baxter. Report of 23 February 2022 1800 Dr Schirripa’s final report is dated 23 February 2022. Like his previous report, this was not based on a further interview with the applicant. Rather, Dr Schirripa’s opinion was sought by reference to a review of more recent psychiatric reports of Dr Clarke, Dr Raeside, the Summary of Evidence and the transcript of the applicant’s evidence. In particular he was asked to address Dr Raeside’s change of diagnosis from Adjustment Disorder with Mixed Depression and Anxiety to a Persistent Depressive Disorder. 1801 In this report, Dr Schirripa expressed the opinion that the applicant did not have a Persistent Depressive Disorder at any time in immigration detention, upon his release from detention or since. 1802 Dr Schirripa excluded a diagnosis of Persistent Depressive Disorder for a number of reasons. First, because of the absence of factors which would put him at risk of developing such a disorder. Namely, a family history of mood disorders a history of trauma or loss during the applicant’s developmental years in Iran. Second, because the applicant’s dominant emotional state is anger and resentment in relation to his period in detention. The applicant did not describe a two-year period of depression with depressive mood symptoms as required by DSM-5 for a diagnosis of Persistent Depressive Disorder. The applicant conceptualised his detention experience as an injustice perpetrated upon him by the Australian government, suggesting that he deserved better treatment than he received. He reasoned that this is not the sense of self or the world that is usually experienced by a person with a Persistent Depressive Disorder. He said such individuals have the opposite presentation. They are convinced that they are inherently bad or destructive and, accordingly, deserve adverse treatment because they do not deserve or warrant any better treatment. It is as though the individual’s “emotional thermostat” has been chronically set to “cold”. This was not the clinical impression Dr Schirripa formed from his observations of the affect displayed by the applicant. He noted that in the applicant’s evidence he accepted that he had significant fluctuations in his mood state, even when in detention. Oral Evidence 1803 During cross-examination Dr Schirripa accepted that research in the psychiatric profession indicated by 2002 that asylum seekers were a group particularly vulnerable to mental illness. He also accepted that the research from 1998 onwards found the existence of evidence of higher rates of mental illness among people in detention than in the broader Australian community. However, in his view, the literature identified some methodological flaws in the studies, -- 351 of 647 -- [2025] SASC 59 Stanley J 348 particularly the small numbers of the cohorts in the study and that the cohorts were self-selecting.811 1804 Dr Schirripa accepted that in obtaining a history from the applicant, for whom English was a second language, care had to be taken to ensure there was no misunderstanding in taking the history.812 In addition, he accepted allowance had to be made for the fact that primarily he was interviewing the applicant in 2013 about events that occurred in 2000 to 2005.813 1805 Dr Schirripa was taken to his notes of his interview with the applicant. Those notes had been made at the time of the interview. Dr Schirripa agreed that the harrowing nature of the applicant’s journey to Australia would have been a risk factor rendering him vulnerable to mental illness.814 Other stressors considered by Dr Schirripa at the time he interviewed the applicant in 2013 were the longer period he spent in detention than he had been led to expect by the people smuggler, the rejection of his application for asylum and the unsuccessful reviews of that decision. 1806 The applicant told Dr Schirripa in 2013 that he had no mental health problems in Curtin. Dr Schirripa agreed he accepted that statement at face value. He did not question the applicant further about any mental health problem or symptoms at Curtin in 2013. 1807 Dr Schirripa accepted that if the applicant suffered chronic pain during his time in detention, that made him vulnerable to developing a diagnosable pain disorder, or if he was suffering from such a disorder, chronic pain could have exacerbated his symptoms.815 1808 Dr Schirripa accepted that the lack of sleep as a result of being in the Management Unit could have increased the applicant’s sense of agitation and anxiety. He also agreed that distress could be increased if the applicant considered that he had been unfairly accused of lighting a fire which resulted in him being placed in the Management Unit without proper process.816 1809 Dr Schirripa was cross-examined about various records he did not refer to in his reports. For example, in his 2013 report he did not refer to entries made in the progress notes during the time the applicant was in the Management Unit following the fires in late December 2002. He said that he felt these notes did not add anything to his overall assessment. 1810 Further, a progress note on 16 January 2003 recorded the applicant was not sleeping, had problems thinking too much and felt depressed. Dr Schirripa did not 811 T 6659-6668. 812 T 6672-6674. 813 T 6696. 814 T 6683 – 6684. 815 T 6700. 816 T 6706-6707. -- 352 of 647 -- [2025] SASC 59 Stanley J 349 refer to this in his reports. He accepted that there was also a risk to the applicant’s mental health from invasive room searches in which the applicant’s possessions were thrown out of his room and left for him to retrieve; being placed in handcuffs and transferred to Blue 3 compound because he was suspected, wrongfully in the applicant’s view, of lighting the fires; being restricted in Blue 3 from using telephones, receiving visitors or leaving the compound; not being able to see outside the compound; and being guarded by DSOs who referred to him by number rather than name. These were further matters not referred to by Dr Schirripa in his reports. 1811 Dr Schirripa also did not refer to the applicant’s complaints of stress and headaches in his reports. Progress notes record that the applicant presented to the doctor on 7 and 14 February 2003 complaining of stress and headaches in addition to his ongoing complaints of insomnia, and that Dr Ojah diagnosed the applicant with ‘extreme stress’. Dr Schirripa agreed that extreme stress is an observation rather than a psychiatric diagnosis. 1812 Dr Schirripa agreed that lengthy periods of insomnia can lead to mental illness.817 1813 Dr Schirripa maintained the views expressed in his reports regarding the self- harming incident occurring on 6 February 2003, where the applicant used a razor blade to cut his chest about 40 times. His opinion was that this event was not indicative of a mental illness, rather it was a protest. 1814 Dr Schirripa considered that the escape attempt involving the digging of a hole under the cabin floor by the applicant and Reza was evidence of the applicant not thinking clearly. Dr Schirripa agreed the applicant’s subsequent placement in the Management Unit for nine days could have precipitated mental illness.818 The restrictions, denial of privileges and daily room searches in Blue 3 after his release from the Management Unit could have affected his mental state.819 Dr Schirripa considered that the applicant’s knowledge that he was the subject of an investigation by the AFP in relation to the fires and the escape attempt is likely to have been a stressor.820 1815 Dr Schirripa was also asked about other stressors. He agreed the prospect of deportation which arose in late March 2003 following the signing of a MOU between the governments of Australia and Iran would have been a stressor for the applicant. As would DSOs taunting him about the prospect of being deported to Iran.821 He accepted that if the applicant was taken in handcuffs to the Port Augusta Hospital on 1 July 2003 this would have been a further possible stressor. It was put to Dr Schirripa that on 18 July 2003, 4 August 2003, and 7 August 2003 the 817 T 6720. 818 T 6727-6728. 819 T 6738. 820 T 6755. 821 T 6729-6731, 6737-6738. -- 353 of 647 -- [2025] SASC 59 Stanley J 350 applicant refused to attend appointments made for him to consult a specialist in relation to his wrist injury in order to avoid the experience of being handcuffed again.822 Dr Schirripa accepted that this behaviour indicated that the applicant was mentally affected by the experience of being handcuffed.823 In addition, he agreed the refusal of the applicant’s application for special leave to appeal on 8 August 2003 would also have been a substantial stressor. Dr Schirripa conceded it was potentially foreseeable these events could have led to self-harm.824 1816 Against this background, Dr Schirripa was asked to assume that on 11 August 2003 the applicant genuinely attempted to kill himself by taking an overdose. On this assumption, Dr Schirripa accepted that it was possible that he was suffering a mental illness at that time and had been masking that illness for the preceding four months.825 While Dr Schirripa accepted that was a possibility, he did not concede it was probable. On the contrary, I find that it is an ex post facto hypothesis that is contrary to the contemporaneous evidence. As I have said elsewhere, in my view the psychiatric injury suffered by the applicant in August 2003 resulted from the rejection of his application for special leave to appeal to the High Court with the potential consequences for him of the exhaustion of his appeal rights. 1817 Dr Schirripa was cross-examined about his discussion of the medical entries relating to the overdose incident on 11 August 2003 in his report of 8 April 2013. He noted the records show that the applicant was found in his room supine on the floor, appearing confused, looking around and uncooperative. The applicant was allowed to return to his room where he felt better, was reviewed in relation to the incident by the psychiatric nurse and there was no evidence of a mental illness or self-harm ideation. Dr Schirripa agreed he did not refer in his report to other entries made on that occasion that the applicant was “++ hot and clammy” with ashen skin, that he physically withdrew from being touched, that he had an “aggressive withdrawal” and refused to grip the nurse’s hands. 1818 Ultimately, Dr Schirripa maintained his opinion that the incident of 11 August 2003 was not a genuine suicide attempt. As discussed earlier if he had considered it was a failed but genuine attempt to kill himself, Dr Schirripa would have considered the applicant to be more psychiatrically disturbed than he thought him to be.826 1819 The diagnostic criteria for the existence of an Adjustment Disorder is the development of emotional or behavioural symptoms that are clinically significant as evidenced either by marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and cultural factors. Dr Schirripa gave evidence that the necessary condition for the diagnosis of an Adjustment Disorder was marked distress that is out of proportion to the 822 T 6771-6772. 823 T 6772-6773. 824 T 6731. 825 T 6773-6777. 826 T 6731-6732. -- 354 of 647 -- [2025] SASC 59 Stanley J 351 severity or intensity of the stressor. During cross-examination he accepted that this was not the only or the necessary diagnostic criterion. Dr Schirripa agreed that a diagnosis involves a subjective clinical judgment and can involve a process of excluding other possible diagnoses. However, he said that evaluating whether the applicant suffered significant impairment in functioning was very difficult in the detention environment where functional capacities were reduced to a rudimentary level.827 1820 Dr Schirripa agreed the notes made by Mr McInerney of his consultation with the applicant in November 2008 could be evidence of mental illness. Dr Schirripa thought that the applicant’s experience in detention was a possible cause of that illness, but said there were other causal factors such as homelessness and difficulties finding and retaining employment. Dr Schirripa was not prepared to accept that the most likely cause of any illness the applicant was suffering in November 2008 was the conditions of his detention. He supported this view by observing that the applicant reported he was well when he left detention and three- and-a-half years later he complained of a deterioration or worsening of his symptoms only over the period since 2006.828 1821 Dr Schirripa accepted that the applicant’s history and presentation to him in 2013 was consistent with impaired social functioning. In addition, he agreed that he obtained a history of functional impairment, such as an inability to concentrate on his studies because of memories of detention, his inability to hold down employment and aspects of his work at Roxby Downs which reminded him of the detention centre.829 1822 Dr Schirripa conceded that when he saw the applicant in 2018 he reported that his condition had not changed much since 2013 and it was “quite terrible”, but that this aspect of his history did not appear in his 2018 report. He also accepted that he failed to record that the applicant provided a history of his loss of employment following an argument with his supervisor. This could have been evidence of impaired occupational functioning.830 1823 Dr Schirripa agreed the applicant’s history of becoming quite aggressive with his wife and having relationship difficulties due to disagreements about their social life were possible signs of functional impairment.831 1824 Dr Schirripa accepted that the conditions the applicant described at Curtin would be a stressor.832 He agreed a loss of appetite and weight, a disrupted sleeping pattern and insomnia could indicate the existence of mental health problems.833 The applicant’s description of being stuck in the past and unable to think of the 827 T 6724-6750. 828 T 6781-6785. 829 T 6790-6792. 830 T 6804-6807. 831 T 6811. 832 T 6818. 833 T 6818. -- 355 of 647 -- [2025] SASC 59 Stanley J 352 future could be a feature of a depressive disorder.834 He said poor concentration and low self esteem can be features of a depressive disorder.835 1825 Dr Schirripa in his 2018 report opined that long-term use of OxyContin, especially overuse, can potentially lead to the development of mental health difficulties such as depressed mood and anxiety. On the other hand, he did not observe, although he accepted it is the case, that a pre-existing mental illness can itself lead to opioid abuse. He accepted that if the applicant had a pre-existing mental health condition before using OxyContin and continued to experience symptoms after he ceased using OxyContin, that would suggest that OxyContin was not the cause of his mental ill health.836 I accept Dr Schirripa’s evidence in this regard. However, his evidence is hypothetical. The hypothesis is false. 1826 Dr Schirripa was asked about the analogy he made that patients with a diagnosis of a Persistent Depressive Disorder presented with an emotional thermostat “set to artic” all the time. He accepted that DSM-5 does not require such a presentation in order to diagnose a depressive disorder. He agreed angry outbursts and a depressive mood state can be features of a Persistent Depressive Disorder although some individuals emphasise somatic complaints of pain rather than reporting feelings of sadness. It is possible that stress or life events can precipitate a Persistent Depressive Disorder.837 1827 Dr Schirripa accepted that the degree to which Persistent Depressive Disorder impacts social and occupational functioning is likely to vary widely. Functioning may appear normal but requires markedly increased efforts. He agreed someone suffering from depression or an Adjustment Disorder may present as apparently normal.838 1828 Dr Schirripa accepted that the applicant’s friend Aref’s death in 2017 would have been a significant event in the applicant’s emotional life, notwithstanding his failure to mention it when he saw Dr Schirripa a year later.839 1829 Dr Schirripa agreed that a person suffering from anxiety and depression has a greater likelihood of opioid misuse. He agreed opioids are used in an attempt to improve mood.840 1830 Dr Schirripa could not explain why he omitted from his 2020 report the history obtained from the applicant of his arguments and anger in his relationship with his wife. 841 834 T 6821-6822. 835 T 824-6825. 836 T 6831-6833. 837 T 6834-6842. 838 T 6846-6848. 839 T 6848-6849. 840 T 6853-6854. 841 T 6863-6865. -- 356 of 647 -- [2025] SASC 59 Stanley J 353 1831 Dr Schirripa agreed the applicant told him that his mood was variable but he did not explore with him the extent to which he was feeling good or feeling depressed.842 1832 Dr Schirripa accepted that the history given by the applicant of avoiding contact with his wife to prevent him becoming angry and arguing indicated avoidance behaviour. He could not explain why he failed to refer to this in his 2020 report.843 1833 Dr Schirripa agreed that in 2020 he obtained a history from the applicant similar to that given to Dr Raeside in 2018 of ongoing intrusive and unpleasant thoughts of detention and the impact that he thought this had on his life together with the ongoing friction in his relationship with his wife.844 1834 Dr Schirripa accepted that the health assessment of the applicant undertaken by STTARS on 14 June 2005 which recorded the applicant reporting poor memory, feelings of confusion, not being able to relax, being angry and irritable and feeling helpless were symptoms of distress apparent only a few weeks after his release from detention. However, he said this was contrary to Dr Raeside’s evidence that these complaints were not indicative of mental illness.845 Dr Schirripa further accepted that the record of the applicant’s presentation to STTARS in October and November 2008 when he described being troubled by mental health problems for which he was seeking psychological help, symptoms of anger, sadness, bad dreams, nightmares and sleep disturbance, could be symptoms of a diagnosable mental illness. However Dr Schirripa said that on the basis of the PBS records, he would not have attributed those symptoms to a substance abuse disorder at that time.846 Though, he did note the applicant was obtaining OxyContin from other sources since 2007. 1835 Dr Schirripa accepted that given the report of the applicant’s presentation to Dr Raeside in 2018 he would have concluded that the applicant was suffering a mental illness at that time. However, he said that was not the applicant’s presentation to him when he saw him in 2020.847 He also accepted that the applicant’s psychiatric illness, had it existed, would have been a significant contributing factor to his subsequent opioid dependence.848 1836 In 2020 Dr Schirripa thought that the applicant was adapting to his circumstances. He thought this was particularly apparent from the applicant’s employment and the continuation of his marriage. He did not obtain a history of the applicant and his wife separating for six months. On the contrary, his impression was that they were trying to work it out and that things were getting 842 T 6866.22-27. 843 T 6873-6875. 844 T 6880. 845 T 6244-6245. 846 T 6880-6884. 847 T 6888. 848 T 6884-6888. -- 357 of 647 -- [2025] SASC 59 Stanley J 354 better.849 By the time Dr Raeside saw the applicant in January 2021 Dr Schirripa accepted that the history at that time pointed to the existence of significant marital problems indicating an impairment in their relationship. The description of the applicant as being depressed all the time given by his wife in early 2021 was, in Dr Schirripa’s opinion, significant. It was indicative of him suffering from depression. The history and observations of the applicant’s wife provided to Dr Raeside were accepted by Dr Schirripa as indicative of a depressive illness.850 1837 In the preparation of his report of 23 February 2022 Dr Schirripa was provided with a transcript of the applicant’s evidence as well as the Summary of Evidence. He gave evidence that he took those materials into consideration in forming his opinion without making any assumptions as to whether the applicant’s evidence was correct factually.851 However, he did observe what he described as discrepancies in the histories given to him and Dr Raeside by the applicant, the applicant’s evidence in the transcript, and the Summary of Evidence. Dr Schirripa did not consider whether the applicant’s evidence provided a foundation for doubting whether he had obtained a full and complete history from the applicant in the course of his interviews.852 Nor did he base his opinion on an assumption that the Summary of Evidence was substantially correct. Yet, Dr Schirripa accepted that in his final report, in answering the questions posed, he did not have regard to either the Summary of Evidence or the transcript of the applicant’s evidence in reaching his final opinion.853 1838 Dr Schirripa observed that a Persistent Depressive Disorder cannot be diagnosed if the symptoms experienced are better accounted for by the effects of substance use or abuse. He said that Dr Raeside’s opinion failed to address this issue. But Dr Schirripa did not explore this issue either, notwithstanding the PBS prescribing history for the applicant which indicated the abuse of OxyContin between 2008 and 2014. Dr Schirripa said he did not explore the question of OxyContin use because he had not made a psychiatric diagnosis. Nonetheless, he accepted that there was a need to consider whether the use of opioids by the applicant in 2013 might have affected the history that he had obtained from the applicant. He accepted that this was a possibility.854 1839 In his 23 February 2022 report Dr Schirripa relied inter alia on criterion H in the definition of Persistent Depressive Disorder in the DSM-5 for excluding that diagnosis. In doing so he formulated a definition of ‘clinically significant distress’ to mean that the individual seeks out specific treatment such as antidepressant medication. He noted that the applicant had not claimed to have taken such medication. But he accepted during cross-examination that ‘clinically significant 849 T 6893-6894. 850 T 6989-6902. 851 T 6939. 852 T 6943. 853 T 6951.32-6952.2. 854 T 6952-6957. -- 358 of 647 -- [2025] SASC 59 Stanley J 355 distress’ is not defined in DSM-5 to mean that the individual seeks out specific treatment.855 1840 Dr Schirripa also accepted that the absence of risk factors pointing to a diagnosis of Persistent Depressive Disorder such as childhood risk factors, stressors in adulthood, and family members with Persistent Depressive Disorder would not necessarily exclude that diagnosis.856 1841 Dr Schirripa accepted that detainees were a group potentially vulnerable to mental ill health.857 He agreed that factors which would create a real risk of injury to the mental health of detainees included hunger strikes, breakouts, confining detainees in their rooms for long periods, and denying access to phones, faxes, post and visitors. Anxiety about the wellbeing of family members who had been left behind was a further risk factor.858 Dr Schirripa also accepted that prolonged detention was a risk factor for the mental health of some but not all detainees.859 1842 Dr Schirripa agreed that, where detainees presented consistently with a diagnosis of Major Depressive Disorder, the severity of that disorder closely related to pre-existing risk factors such as pre-migration exposure to trauma or personal predisposition to depression. A sense of injustice and anger about the conditions of detention can co-exist with a Major Depressive Disorder.860 1843 Dr Schirripa did not consider that in September 2002 when the applicant was transferred from Curtin to Baxter that he should have been the subject of an assessment by a psychiatrist given that he had not been in detention for 24 months.861 In any event, Dr Schirripa considered that if an assessment should have been undertaken it would have been sufficient for that to have been done by a general practitioner.862 1844 Dr Schirripa disagreed with the criticism Dr Raeside made of Ms Rarity’s reliance upon the applicant’s description of his symptoms in early 2003 rather than focusing on his level of functioning and his underlying vulnerability.863 1845 Dr Schirripa accepted that the notes made by DSOs in 2004 and 2005 recording their observations of the applicant, by themselves, were not necessarily 855 T 6957-6958. 856 T 6963-6964. 857 T 6987. 858 T 6991-6992. 859 T 6996-6997. 860 T 6992-6993. 861 Dr Schirripa was taken to an article by Green and Eagar in the Medical Journal of Australia concerning a study undertaken in 2005 and 2006 that reported that unauthorised boat arrivals showed a significantly higher rate of mental health problems than other categories of detainees and that time in detention was a significant additional effect. T 7012. That article was the subject of an objection. At the time I admitted it de bene esse. I subsequently upheld the objection and excluded the article. 862 T 7018-7019. 863 T 7023. -- 359 of 647 -- [2025] SASC 59 Stanley J 356 inconsistent with him suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood at that time.864 Assessment of Dr Schirripa’s evidence 1846 Dr Schirripa had the opportunity to interview the applicant and assess him over a number of years between 2013 and 2020. He was able to take a history from the applicant and performed a mental state examination in accordance with the orthodox approach. While he was provided with the Summary of Evidence, he was not required to accept it as accurate. I consider he had a tendency sometimes to downplay some of the applicant’s complaints such as the suicide attempt in August 2003, complaints of stress, headaches and difficulties sleeping. For example, as I said, he failed to mention in his first report a progress note made on 16 January 2003 recording a complaint by the applicant that he was thinking too much and felt depressed. Dr Schirripa accepted that there was a risk to the applicant’s mental health from other potential stressors that he did not refer to expressly, namely, invasive room searches, being placed in handcuffs, strip- searching, being denied the use of telephones or receiving visitors, being transferred to Blue 3 after the fires, being confined to that compound, being guarded by DSOs who referred to him by number rather than name, and the threat he faced of deportation once he learned of the MOU with Iran. I do not think these were deliberate omissions. He also accepted that if the drug overdose in August 2003 was a genuine suicide attempt, that indicated to him that it was possible the applicant was suffering a mental illness at that time which had been masked for the preceding four months. In my view this evidenced an open-minded and thoughtful consideration of the available evidence. Dr Schirripa was prepared to review his opinions and alter them if he considered it justified. Dr Schirripa’s evidence did not demonstrate a rigid, unthinking adherence to his original opinions where consideration of new or additional information caused him to reflect upon the validity of his initial view. In fact, I consider that his preparedness to make concessions went too far as a result of his acceptance that the applicant might have had a mental illness in August 2003 if the suicide attempt was genuine. This led him to consider that the applicant’s presentation in April, May, June and July 2003 may have been the result of a mental illness during that period that had been masked. However, I do not consider this proposition was justified. While I have found that the applicant did suffer an Adjustment Disorder at that time it was a reaction to the High Court’s decision of 8 August 2003 which exhausted his appeal rights. I do not consider it was the result of events that occurred in the preceding months that had somehow been masked. Even if they were, they did not evidence a breach of the Commonwealth’s duty of care. I consider Dr Schirripa was reasonably objective in the formulation of his opinions. However, to the extent that there were inconsistencies between his views and the opinions of Dr Clarke, I prefer those of Dr Clarke. 864 T 7026.16-22. -- 360 of 647 -- [2025] SASC 59 Stanley J 357 THE EXPERT EVIDENCE - ACM Dr Dilip Kapur 1847 Dr Dilip Kapur is a pain medicine physician. He has specialist training and registration in pain medicine and has training and expert experience in the use and effects of pain management drugs, withdrawal from those drugs, and how pain management drugs may be used or misused and abused. Although Dr Kapur is not an addiction medicine specialist, he does have knowledge and experience in the risk of addiction and consequences of addiction for the pain management drugs that he works with. Within his pain medicine practice he manages some addiction problems specifically relating to pain medication, predominantly opioids. 1848 Dr Kapur prepared two reports in relation to this matter dated 5 December 2018 and 26 October 2020.865 Within those reports, he expressed opinions about the incident on 11 August 2003 in which the applicant allegedly overdosed on Tramadol. Overdose 1849 Dr Kapur gave evidence that it is possible for a person to overdose on Tramadol. He defined overdose as meaning a dose substantially above the therapeutic dose at a level that is likely to cause harm to the person that has taken it.866 In his first report, Dr Kapur gave evidence about the adverse effects of taking two or five Tramadol tablets as compared to the adverse effects of taking 30 Tramadol tablets. He assumed that the tablets being taken were 50mg slow- release tablets. 1850 At trial, Dr Kapur gave evidence that he remained uncertain as to exactly what dose may have been taken by the applicant, noting that in a more recent affidavit that he considered in the preparation of his second report, the applicant indicated he had taken 150mg tablets rather than 50mg. Dr Kapur indicated that the usual prescribed dose for the applicant would have been three 50mg slow- release tablets taken over a 24-hour period. 1851 Assuming that the applicant had been taking the tablets as prescribed, Dr Kapur said that, had the applicant taken a large dose of Tramadol, he would have expected the unpleasant effects of nausea and dysphoria to have been prominent and quite prolonged. A dose of 15 50mg Tramadol tablets would have been a substantially excessive dose for the applicant. In those circumstances, Dr Kapur would not have expected the applicant to suffer only modest effects over a relatively short period. Instead, he would have expected that peak Tramadol levels would have occurred some hours after the incident, and the applicant would have been much more unwell and for a longer period. 865 Exhibits 1.3TP1752, 1.3TP1754 866 T 7839.33-38. -- 361 of 647 -- [2025] SASC 59 Stanley J 358 1852 Dr Kapur gave evidence that a dose of two tablets would have been unlikely to trigger the incident on 11 August 2003. If this incident was attributable to Tramadol effects, it would need to have been from a higher dose. He said a single dose of five tablets (250mg) would likely have given rise to a transient episode of adverse effects. Although Dr Kapur conceded in cross-examination that most persons would be unlikely to come to significant harm with an immediate dose of 250mg of Tramadol, he maintained that he considered the applicant’s response to have been consistent with a dose of five tablets.867 1853 Dr Kapur said that the consumption of an overdose of Tramadol would not normally trigger a generalised seizure without that being preceded by a prodromal phase in which muscles start to jerk with involuntary movements. He stated that he had not seen any direct witness accounts of the applicant’s alleged seizure and had only been able to see second-hand accounts that were recorded by Baxter staff. He noted that the incident may have been incorrectly interpreted as a seizure, noting that seizures are quite difficult for laypersons to specifically diagnose. The applicant’s return to normal cognition, or relatively normal cognition, was unusually rapid if he did experience a generalised seizure against the background of potential delirium caused by a drug overdose.868 1854 Dr Kapur was of the opinion that observations of the applicant being conscious but nonresponsive, with poor orientation appearing confused and frightened, refusing touch and physically withdrawing, and giving a verbal response only after 30 minutes, could potentially be consistent with him having taken a dose of five 50mg tablets of Tramadol. While the symptoms would not be inconsistent with him having taken 10 to 15 tablets, the applicant’s recovery within an hour to be orientated and awake, observation stable, pupils equal and reacting, verbally communicating, and saying he was feeling much better, would be inconsistent with that dose of slow-release tablets. However, Dr Kapur said if the applicant had taken the tablets earlier in the evening, that might change his opinion, as the applicant would have reached a peak level of Tramadol at around 11:00 pm to midnight.869 1855 Dr Kapur also noted that the observation of a nurse, who saw the applicant on 11 August 2003, that his pupils were dilated is inconsistent with him having taken 15 to 30 Tramadol tablets, as such a dose would usually result in a constriction of the pupils rather than dilation. In cross-examination, Dr Kapur conceded that the applicant’s pupils did decrease in size over a period of nearly four hours to 4 to 5mm and that this might be consistent with a 400mg dose of Tramadol.870 However, if Dr Kapur assumed that the applicant commenced taking the tablets at 5 or 6:00 p.m., the peak of myosis would have occurred 867 T 7840-7842. 868 T 7841. 869 T 7846. 870 T 7845, 7857. -- 362 of 647 -- [2025] SASC 59 Stanley J 359 approximately 10 hours later, which would be much later than Dr Kapur would have expected for such a dose.871 1856 Dr Kapur stated that the applicant’s description of himself as having a loss of memory, not being fully conscious, nor fully awake to see what was going on, suffering headache, nausea, wanting to vomit, having visual difficulties and feeling confused and dizzy, could be consistent with an overdose of Tramadol. However, with regard to the applicant’s report that he did not have much memory for the next few days, Dr Kapur observed that it would be unusual for altered cognition and memory to remain impaired for several days.872 OxyContin addiction 1857 Dr Kapur also gave evidence in relation to the applicant’s OxyContin addiction. Dr Kapur stated that a person who has an addiction to OxyContin, such as the applicant, would experience withdrawal symptoms within 24 hours. He said the common symptoms of OxyContin withdrawal include anxiety, insomnia or sleep disturbance, anger, aggression, irritability, agitation, nausea, loss of appetite, memory and concentration problems, with memory difficulties being secondary to the loss of concentration and focus, and low mood. 1858 Dr Kapur stated that symptoms in a patient giving a history of depressed mood, aggression, irritability, anxiety and sleep problems could be attributable to an addiction to OxyContin. However, he said individuals suffering from mental illness are also more likely to misuse opioids. Dr Kapur noted that he had not been provided with medical records to explain how the applicant had come to be prescribed such a high dose of OxyContin in 2008 and, accordingly, he was unable to express an opinion as to whether the applicant’s opioid abuse was caused by a pre-existing mental illness. 1859 Dr Kapur stated that opioid abuse can be difficult to detect, and even a doctor experienced in dealing with opioids may find it difficult to detect that a person is taking opioids except through specific urine or blood testing. 1860 He also noted that individuals with opioid addictions often engage in doctor shopping, and that a person who has been addicted to OxyContin is at very high risk of relapse to the same or related substances, with that risk being increased where the addiction was very serious over a number of years. These individuals are also at risk of substituting a different substance for one to which they are addicted. 1861 Dr Kapur noted that the applicant has been using the anti-epileptic agent pregabalin, also known as Lyrica, which is generally prescribed for neuropathic pain. Lyrica has sedating effects, meaning it will make users feel sleepy and relaxed. Dr Kapur gave evidence that these effects have led to the development of 871 T 7857-7860. 872 T 7844. -- 363 of 647 -- [2025] SASC 59 Stanley J 360 patterns of abuse and misuse of Lyrica. Lyrica has some side-effects, including memory impairment, concentration difficulties, fatigue, suicidal thoughts, and consequential impacts such as withdrawing from friends and family and not being interested in engaging in normal activities. Similar to OxyContin, Lyrica use can only be identified by specialised blood or urine testing. 1862 Ultimately, Dr Kapur was of the opinion that the available medical information does not support a contention that the applicant’s opioid addiction arose during his detention at Baxter. He said that while the applicant was provided access to Tramadol and Capadex, these are both low potency opioids, particularly at the dosages prescribed to the applicant. Dr Kapur concluded that the applicant’s opioid dependency commenced after his release from detention. Marijuana use 1863 In his 2018 report Dr Kapur considered the applicant’s history of cannabis use might have been more extensive than he volunteered to external parties. However, he conceded during cross-examination that the applicant’s positive drug tests on 15 May 2017 and 26 June 2017 can only show that it is likely that, at least in the previous week, he had taken cannabis. Considering the result of a negative urinalysis test on 21 September 2017, Dr Kapur said that the applicant’s statement that his cannabis use was rare and he had last used the substance two months prior, may not be reliable. He said people who are misusing substances are often not honest about their intake.873 1864 During cross-examination by the Commonwealth Dr Kapur agreed that withdrawal symptoms related to marijuana usage include irritability and aggression. However, in cross-examination by the applicant Dr Kapur said that irritability and aggression may also be explained by violent people being more disposed to use marijuana and that it is difficult to know whether they are withdrawal symptoms or late effects of the drug, as it is difficult to determine when the effects of marijuana have ceased.874 1865 Ultimately, Dr Kapur clarified that he was not suggesting that the applicant’s mental state symptoms following treatment for his OxyContin addiction were attributable to marijuana use.875 Physical pain 1866 Finally, Dr Kapur gave evidence regarding the physical pain reported by the applicant. 1867 Apart from the pain from his teeth, hernia and testicles, the applicant’s symptoms of pain appeared to Dr Kapur, having reviewed the applicant’s progress 873 T 7863-7865. 874 T 7861-7863. 875 T 7865. -- 364 of 647 -- [2025] SASC 59 Stanley J 361 notes at Curtin and Baxter throughout his detention period, to have psychosomatic components, consistent with Dr Henderson’s views. 1868 In his second report, after reviewing the applicant’s Curtin records again, Dr Kapur expressed the opinion that it is contestable whether the symptoms the applicant presented with were of any significance, and in particular that it seems unlikely that any of the conditions can reasonably have been characterised as representing a chronic pain presentation. Dr Kapur stated that many of the applicant’s complaints were common burdens for individuals in the general population and, as such, they were not especially different from the sort of complaints made by patients in the general community. Although Dr Kapur agreed that despite the fact the applicant was experiencing these symptoms in a peculiar setting, he maintained they were not especially unusual presentations or diagnoses. In addition, Dr Kapur thought it appropriate to note that the applicant had access to medical treatment within the detention centre. He thought that this access was often better than the access other people living in remote Australia might have for similar conditions. 1869 Dr Kapur rejected the suggestion the applicant did not have a tooth extracted after complaining of dental pain. Dr Kapur said that, based on the Curtin progress notes, it appeared his tooth had been extracted.876 1870 Dr Kapur thought that the applicant’s issues with testicular pain were of modest duration and appeared to improve, with the exception of some subacute symptoms following his surgery in May 2002. Dr Kapur explained he came to this conclusion, in part, because the applicant appeared to be quite active while in Curtin. If the applicant had continuing and problematic pain following his hernia and testicular surgery, it would be unusual for him to be able to participate in sporting activities. It was not obvious to Dr Kapur that the applicant had suffered any significant loss of physical function due to pain. He also could not find any indication that persistent back pain was a problem for the applicant. 1871 Dr Kapur conceded that if the applicant had experienced severe unrelieved pain that was not dealt with once identified, that could cause a mood disturbance.877 1872 I was impressed by Dr Kapur’s evidence. I thought he was careful and professional in expressing his opinions. I generally accepted his evidence. Dr Clarke 1873 Dr Michael Clarke has worked as a general adult psychiatrist in both public and private sectors since 1993. In addition to clinical work, he has regularly provided medico-legal opinions, including conducting independent MHAs of claimants for compensation.878 876 T 7868-7869. 877 T 7852. 878 T 8389. -- 365 of 647 -- [2025] SASC 59 Stanley J 362 1874 Dr Clarke provided four reports in relation to this matter dated 4 December 2018, 3 November 2020, 19 March 2021 and 15 March 2022. 879 In preparing those reports, he was provided with extensive documentation from ACM, including the reports of other experts, various witness summaries, contemporaneous detention records and the Summary of Evidence. He did not interview the applicant. 4 December 2018 report 1875 In his 2018 report, Dr Clarke opined that there was no evidence the applicant suffered from a serious or persistent mental disorder at Baxter which required psychiatric intervention. He considered the contemporaneous recorded observations were not suggestive of the applicant suffering severe or prolonged depression, anxiety, or a possible psychotic disorder with associated thought disorder and delusional ideas.880 He disagreed with Dr Raeside’s opinion that the applicant developed a Chronic Adjustment Disorder at Baxter.881 1876 Dr Clarke gave evidence that a chronic diagnosis can only be made when a person is suffering significant and persistent psychiatric symptoms which cause significant impairment of functioning or marked distress in excess of what would be expected from exposure to the stressor. While Dr Clarke had no doubt that the applicant experienced periods of non-severe depression and anxiety while he was at Baxter, he considered it questionable whether the applicant’s reaction was in excess of what would be expected in the circumstances.882 Dr Clarke considered that any depression and anxiety the applicant did experience was largely reactive to his fundamental circumstances of prolonged detention, and therefore fluctuated.883 1877 Dr Clarke did not consider that the incidents involving the applicant on 6 February and 11 August 2003 were indicative of the applicant suffering a serious psychiatric illness requiring review by a psychiatrist.884 He considered it likely that the applicant was experiencing emotional distress when he exhibited these self- harm behaviours. Dr Clarke considered there was a temporal relationship between the applicant learning of the failure of his visa application and the overdose a few days later on 11 August 2003. He did not consider that there was evidence to suggest that this reaction was part of a sustained mental illness.885 Dr Schirripa also noted that the applicant acknowledged to him that his behaviour during the 6 February 2003 incident was part of a protest and an attempt to achieve a desired outcome.886 879 Exhibits 1.3TP1764, 1.3TP1767, 1.3TP1769, 1.3TP1771. 880 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 pp 2-3) 881 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 7), T 8423-8425. 882 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 7), T 8423-8425. 883 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 pp 7-8). 884 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 8). 885 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 11). 886 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 8). -- 366 of 647 -- [2025] SASC 59 Stanley J 363 1878 Additionally, Dr Clarke did not consider there to be any evidence of a “given up syndrome” as described by Professor Jureidini. He accepted that the applicant may have felt resigned to and somewhat defeated by his prolonged detention but did not agree that there was evidence that he was suffering from a serious mental illness.887 Instead, he considered it likely that the applicant became more accepting of his detention with time and tried to make the best of his situation by engaging in social interaction and other activities while perhaps holding some hope that he would be released into the community, as ultimately occurred.888 1879 Dr Clarke did not consider that the applicant’s reporting of insomnia necessarily required intervention by a psychiatrist. He stated that insomnia is a common condition usually managed by a general practitioner. He also noted that the applicant was prescribed Benzodiazepines when he first reported insomnia in January 2003, and that his repeated complaints of insomnia may have been motivated by a desire to be given Benzodiazepines for the non-specific actions of the drugs which could provide a feeling of detachment from his circumstances. He did not consider that the applicant’s complaints of insomnia could accurately be described as relentless. Dr Clarke also noted that the applicant was described as having a sleeping pattern of socialising and watching movies during the night and sleeping during the day and, accordingly, he may have had difficulties when trying to adopt a different sleeping pattern.889 Dr Clarke gave evidence that Dr Ojah took appropriate measures to treat the applicant’s complaints of insomnia, recommending he start learning sleep hygiene and try Diazepam.890 1880 However, when giving evidence Dr Clarke accepted that without a comprehensive MHA there would have been no way to know that the applicant’s insomnia was not a symptom of mental illness.891 Although Dr Clarke conceded that the applicant’s insomnia may have been associated with stress, he considered that removing that stress for him would have been difficult.892 He also conceded that advice could have been sought from a psychiatrist, but he was of the view that they would probably consider insomnia to be understandable in the circumstances.893 1881 Given the applicant’s presentation, Dr Clarke considered that the prescription of medication was appropriate. He thought that there was suitable caution exercised in relation to ongoing prescriptions of Benzodiazepines, noting the risk of addiction. He said that Endep is commonly used to assist sleep as it does not have the same potential for addiction, and possibly has a mild antidepressant effect. He considered the dose prescribed to the applicant was consistent with its use being to aid sleep rather than as treatment for a depressive disorder which would have 887 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 pp 9-10). 888 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 7). 889 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 9). 890 T 8500. 891 T 8513. 892 T 8501. 893 T 8502-8503. -- 367 of 647 -- [2025] SASC 59 Stanley J 364 required a significantly higher dose. Dr Clarke did not consider the prescription of Luvox after the applicant complained of feeling depressed to be inappropriate, but noted that it would not have appeared particularly useful and was not continued.894 He did not consider that the applicant took excessive medication for any length of time.895 Dr Clarke considered it unlikely that a psychiatrist would have been able to prescribe any alternative medications which would have provided significantly greater benefit without risking potentially serious side- effects.896 1882 Dr Clarke considered that if the applicant was significantly depressed at any point in his detention, this would have been observable to others and his ability to engage positively with staff, socialise with other detainees, and be involved in activity in the kitchen would have been impacted.897 He considered that the applicant’s care notes and movement records did not demonstrate that any periods of depression and anxiety he may have experienced seriously and persistently affected his functioning. Rather, they indicated that for much of the period of his detention, the applicant was motivated enough to be working and socialising and was engaged in activity and interaction, at one point being described as a “social butterfly”.898 Dr Clarke gave evidence that while such observations would not completely exclude a diagnosis of clinical depression, they did make such a diagnosis much less likely and any depressive illness, less severe.899 Though DSM- 5 states that impairment, including for a Major Depressive Disorder, can be very mild and potentially unobservable to others, Dr Clarke considered that this would be ‘unusual’.900 While there were some periods where the applicant was not observed by the DSOs for some time, for example in August 2003 before his overdose, Dr Clarke considered that this would merely reflect the applicant having a “fluctuating” mental state that was particularly bad at the time of his alleged suicide attempt.901 1883 Having regard to the applicant’s medical history, the self-harm incident involving the applicant on 6 February 2003, the overdose incident on 11 August 2003, the objectively observable conduct and behaviour of the applicant at Baxter, and the applicant’s repeated denial of any mental illness or any suicidal intent, it was Dr Clarke’s view that it was not clinically necessary for the applicant to be reviewed by a psychiatrist during his time in Baxter.902 He said that the applicant’s mental health care needs were appropriately managed and he did not require treatment by a specialist psychiatrist while he was in detention.903 894 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 pp 3-4). 895 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 9). 896 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 3). 897 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 pp 7, 9-10). 898 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 7), T 8423-8425. 899 T 8625. 900 T8617-8618. 901 T8611-8612. 902 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 3). 903 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 6). -- 368 of 647 -- [2025] SASC 59 Stanley J 365 1884 Dr Clarke considered that the applicant received reasonable basic treatment, and said he thought that it probably would have been difficult to provide him with hope during his prolonged detention.904 1885 Dr Clarke did not consider that the applicant developed an opiate addiction during his detention in Baxter.905 He noted that there were no records which indicated the applicant was regularly using Panadeine and Tramadol in the latter part of his detention in Baxter. 1886 Dr Clarke considered it likely that most, if not all clinicians who had contact with the applicant during his detention would have considered that the best treatment would have been for him to be in an environment that he found more acceptable.906 He considered that mental health services would have had limited benefit due to the fundamental effects of his prolonged detention.907 He said that little could be done to ease the pain for long-term detainees. He considered that leaving the detention centre environment would have been the most effective treatment for them.908 He thought it likely that the applicant would have had profound feelings of helplessness related to his lengthy detention. He did not consider that any depression or anxiety the applicant was suffering could have been relieved by a psychiatrist or other mental health provider because it was reactive to his fundamental circumstances of prolonged detention.909 1887 Dr Clarke considered the Management Unit would have been the most appropriate way of managing detainees displaying disturbed or unsettled behaviour, consistent with the accepted form of management of patients in acute mental health settings who are acutely unwell or who otherwise pose a risk to themselves or others due to psychiatric illness.910 1888 Dr Clarke did not consider that dealing with detainees who are a security risk and confining detainees who are distressed and/or suicidal were necessarily mutually exclusive functions. Dr Clarke observed that while the applicant was at times distressed, there were no reports of him being acutely suicidal. However, Dr Clarke noted that there were concerns about him posing a security risk.911 1889 Dr Clarke was not of the opinion that the applicant’s marijuana use during detention had any major negative effect on his mental health. However, he considered his use of the drug following his release appears to have had a negative effect.912 904 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 10). 905 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 4). 906 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 10). 907 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 11). 908 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 11). 909 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 8). 910 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 pp 7-8). 911 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 10). 912 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 5). -- 369 of 647 -- [2025] SASC 59 Stanley J 366 1890 Dr Clarke considered that the applicant’s extensive use of OxyContin was likely to have had serious negative effects on his mental health and functioning. He said OxyContin use is likely to have affected the applicant’s alertness, focus and ability to engage. He also noted that there are concerns that regular use of opiate analgesics can sensitise a person to pain. He considered that with regular use, the applicant would have been addicted to OxyContin and without a continual supply, he would likely have experienced withdrawal effects with associated physical effects as well as depression and anxiety. He said that the considerable time spent by the applicant doctor shopping in an attempt to obtain prescriptions would also have prevented him from engaging in more productive activities.913 He agreed that long-term over-use of OxyContin can lead to the development of mental difficulties such as depressed mood and anxiety.914 3 November 2020 report 1891 For the purposes of his 2020 report Dr Clarke was provided with inter alia; the applicant’s fifth Statement of Claim (5SOC), further expert reports, the applicant’s affidavits and the Outlines of Evidence for various witnesses, including the applicant. Dr Clarke was asked to assume that a number of pleas within 5SOC were disputed, or at least not admitted, by the ACM third parties. 1892 Dr Clarke maintained the opinions expressed in his earlier report. He did not doubt there were times when the applicant was angry, fearful and despondent but did not consider that the applicant suffered a Chronic Adjustment Disorder during his time at Baxter. Nor did he consider that there was any evidence the applicant was suffering from a Chronic Adjustment Disorder upon his release from Baxter.915 He also noted that Dr Raeside’s more recent diagnosis of an Adjustment Disorder with Depressed Mood in his 2018 report was made in the context of other stressors in the applicant’s life at this time, including a relationship breakdown. 916 1893 Dr Clarke considered that Dr Raeside overstated the severity of the applicant’s psychological problems during his time at Baxter in his reports of 14 December 2018 and 8 January 2019. Dr Clarke considered the applicant displayed an understandable response to the stress that he was experiencing.917 He agreed with Dr Schirripa’s view that just because an individual experiences psychological distress in distressing circumstances, such as experiences of immigration detention, this does not automatically mean they suffer from a mental illness. He considered that adapting to stress is not a mental illness.918 1894 Dr Clarke also considered that Dr Raeside had overstated the value of psychiatric intervention, including measures such as written material and 913 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 5). 914 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 6). 915 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 4). 916 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 15). 917 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 13). 918 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 15). -- 370 of 647 -- [2025] SASC 59 Stanley J 367 education. Dr Clarke considered these would have been of very limited value in the detention setting.919 1895 Dr Clarke considered that some of the signs and symptoms pleaded by the applicant indicated the possibility of the applicant suffering a mental illness, or possibly a vulnerability to the development of a mental illness.920 1896 Dr Clarke considered the following stressors pleaded by the applicant were likely to have been common to many detainees held at Curtin: • pre-detention experiences of arrest, torture, persecution, fear of persecution and a traumatic journey to Australia;921 • being alone in detention, separated from family and friends and unable to speak English;922 • the mere fact of detention itself;923 • the uncertainty of the length and outcome of a Visa application and therefore indefinite nature of detention;924 and • The constant fear of being returned to Iran.925 1897 He also considered that similar stressors would likely have been common to detainees at Baxter due to them being associated with, and fundamental to immigration detention in Australia at that time, as well as the likely background of those who were placed in detention.926 Dr Clarke considered it highly likely that, if a mental illness had been diagnosed, its main contributors would have been the abovementioned aspects of his detention.927 1898 Dr Clarke considered that the applicant would have been of less than normal fortitude upon his arrival at Baxter as a result of the significant stress he experienced when fleeing Iran, when journeying to Australia and during his detention in Curtin. When giving evidence, Dr Clarke accepted that, in the ideal world, a comprehensive MHA should have been undertaken shortly after the applicant’s arrival at Baxter.928 He also conceded that an assessment of the applicant upon his arrival at Baxter would not have been adequate to identify him as a torture and trauma victim, and it would have been preferable for those alleged 919 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 13). 920 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 3). 921 5SOC 20.1.1. 922 5SOC 20.1.2. - 9235SOC 20.1.3. - 924 5SOC 20.1.4. 925 5SOC 20.1.6. - 926 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 3). 927 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 8). 928 T 8471, 8484. -- 371 of 647 -- [2025] SASC 59 Stanley J 368 features of the applicant’s history to be known.929 However, he also considered that it could have been assumed without specific assessment that the applicant was vulnerable to mental illness.930 I accept Dr Clarke’s evidence that, assuming the applicant was vulnerable to developing a mental illness while at Baxter, he doubted that the applicant could have been practically assessed for that vulnerability and any assessment of his condition would have disclosed the existence of such a vulnerability and that, in any event, no specific treatment was available to address such vulnerability.931 Dr Clarke also thought that any screening assessment upon arrival for such vulnerability would have been of questionable utility due to the detention setting. 932 He considered that given this setting, as opposed to a clinical setting, it was appropriate that the detainee population be observed as they went about their normal activities and informed about the facilities available to them if they were feeling unwell. As far as Dr Clarke was aware this is what occurred at Baxter. 1899 Dr Clarke considered that a progress note from Curtin933 stating the applicant had expressed concerns to a nurse about “prison life” and stress in August 2002 would not necessarily have raised any concerns, or warranted any follow up upon the applicant’s arrival at Baxter. The record from Curtin also noted that the applicant had agreed he would present himself and seek help as required. 1900 Dr Clarke also considered that the usefulness of any psychiatric assessment on arrival at Baxter would have depended on the applicant’s willingness to accurately describe his fears and symptoms. Noting the applicant’s statements in his affidavits as to his alleged deliberate concealment of his true mental health from medical staff at Baxter, Dr Clarke doubted whether the applicant would have been able and willing to openly discuss his fears and symptoms.934 He considered it likely that the applicant would have approached any intervention from a skilled psychiatric clinician with anger and suspicion, and that it would have been very difficult to build any rapport so as to make a full and comprehensive clinical assessment, no matter the length of time allowed for such a process.935 1901 Dr Clarke disagreed with Dr Raeside’s criticism that the medical staff at Baxter had placed too much weight on the applicant’s “reduction or non- production of symptoms” rather than recognising the greater picture of his overall behaviour, presentation, vulnerability and development of a mental illness. Dr Clarke considered it was appropriate for staff to rely on lack of symptoms when determining the state of the applicant’s mental health.936 He noted that, if anything, the observations recorded in the applicant’s Care Note History from 5 July 2004 929 T 8455-8456. 930 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 6). 931 Exhibit 1.3 TP 1767 (Report of Dr Clarke of 3 November 2020 p 5). 932 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 5). 933 Exhibit A697. 934 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 6). 935 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 pp 8-9). 936 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 11). -- 372 of 647 -- [2025] SASC 59 Stanley J 369 until his release indicate that his mental health improved during 2004 and in 2005 prior to his release.937 1902 Dr Clarke disagreed that the applicant did not receive treatment or medication for any mental illness, or vulnerability to mental illness, during his time at Baxter. Dr Clarke noted that the applicant’s medical records show he was treated with medication for more than just insomnia, although that was his main presenting symptom. The applicant also received antidepressant medication at times, which Dr Clarke thought indicated a recognition that mood fluctuation can contribute to complaints of insomnia.938 He maintained his view that the applicant was assessed by medical and nursing staff for psychiatric injury and was prescribed medication as appropriate.939 1903 Dr Clarke disagreed that outward displays of anger and abuse towards mental health staff and others by the applicant should necessarily have been identified as indicative of mental illness as pleaded by the applicant.940 In outlining this opinion he referred to: • the applicant’s verbal abuse of a nurse on 9 February 2003;941 • a DSO’s allegation that the applicant assaulted him on 15 April 2003;942 • the applicant’s refusal to attend a doctor’s clinic for an appointment on 18 July 2003;943 and • the applicant not attending a medical appointment on 16 April 2004.944 1904 I accept Dr Clarke’s evidence. Dr Clarke noted that anger and irritability in a person can indicate a mental illness where a person behaves very differently and is, for example, irritable, angry and abusive towards family or in other settings over situations that do not warrant such a response. In those situations, the person often retains insight and regrets their actions. However, Dr Clarke was of the view that in the applicant’s case there were no other apparent additional signs of mental illness and he was simply in a situation which made him angry. He considered that the applicant was likely to have seen staff of the detention facility as agents of the government who he considered to be unjustly and unfairly detaining him.945 1905 Dr Clarke thought the applicant’s self-harming behaviours were not always associated with suicidal intent.946 He noted that the applicant denied that he was 937 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 pp 2-3). 938 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 4). 939 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 4). 940 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 3-4). 941 5SOC 22.2.16. 942 5SOC 22.2.31. 943 5SOC 22.2.35. 944 5SOC 22.2.45, Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 4). 945 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 11). 946 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 16). -- 373 of 647 -- [2025] SASC 59 Stanley J 370 suicidal at the time of his overdose on 11 August 2003. He reiterated that he considered this event to be reactive to the High Court’s rejection of the applicant’s special leave application. He did not consider this incident required a review by a psychiatrist. He considered that even if one had been conducted at that time it would have had little effect.947 Dr Clarke also noted that clinical opinion regarding any action that should or should not have been taken in response to the events of 11 August 2003 is brought into question if the applicant’s evidence cannot be relied upon.948 1906 Dr Clarke considered it is normal for humans, even if they are not psychiatrically unwell, to have depressive or sad feelings from time to time. He said that an individual the subject of long-term indeterminate immigration detention would experience such depressive feelings, but that would not necessarily, in and of itself, amount to the suffering of a diagnosable mental illness.949 1907 Dr Clarke said such depressive feelings would cross the line into being a diagnosable mental illness where the persistence and severity of the depressive feelings impact on the person in their day-to-day life, as well as their reactivity to their environment. For example, an individual with a diagnosable mental illness might not gain any joy, interest or pleasure from activities, and their energy to carry out activities, socialise and work would be impacted over a prolonged period.950 1908 Dr Clarke considered that even if the applicant were found to have suffered from a mental illness, it was not possible or realistic that all of the stressors as alleged by the applicant could have been removed. Dr Clarke referred to stressors such as the fact of detention, the uncertainty of the length of detention, outcomes of visa applications, the physical environment and atmosphere at Baxter, the dismissal of the applicant’s appeal to the Full Federal Court in January 2003 and his fear of deportation.951 1909 Dr Clarke considered that no amount of counselling or treatment could have diminished these factors and would have instead risked minimising the problems faced by the applicant. He thought the effectiveness of medication would have been limited to sedating the applicant or otherwise bringing about some emotional numbness.952 Dr Clarke considered more thorough, targeted and regular psychiatric assessments, and review by an experienced psychiatrist would not have 947 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 16). 948 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 17). 949 T 8426. 950 T 8426-8428. 951 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 7). I note the applicant’s appeal to the Full Federal Court was actually dismissed in May 2002 see Exhibit A680. 952 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 7). -- 374 of 647 -- [2025] SASC 59 Stanley J 371 resulted in a meaningful improvement in his mental health either at Baxter or subsequently.953 1910 Having considered the witness outlines provided to him, Dr Clarke considered that the general approach to the applicant at Baxter was reasonable under the circumstances. Assuming that numerous other detainees at Baxter were also indicating highly stressed behaviours, he considered it would have been important to distinguish between a relatively normal response to such stress and the presentation of a more serious mental illness.954 Dr Clarke considered that Ms Rarity had an entirely reasonable and appropriate approach to the care of detainees, including the applicant, given the difficulties staff faced in providing care. He considered Ms Rarity showed an appropriate understanding of the assessment of more severe mental illness, and that symptoms such as insomnia and self-harm did not necessarily indicate that detainees were suffering from significant mental illness.955 1911 In forming an opinion about the conditions and services available at Baxter Dr Clarke considered the witness statements of Mr Burns, Mr Monaghan, Ms Rarity, Ms Hanley and Mr Fyfe. In particular, he noted that: • the protests and riots at Baxter along with the threat of a mass breakout in Easter 2003 resulted in a need for heightened security; • while the Management Unit was not a particularly pleasant place, it included an area for detainees to socialise and accordingly, any sense of isolation that may have occurred was limited; • appropriate assessment and referral to psychiatric assessment was available if thought necessary, and the applicant did not present in a way that indicated that he required additional psychiatric assessment; • when detainees did see a psychiatrist, there seemed to be no appreciable benefit to the detainees’ mental health; • DIMIA had chosen to position Baxter at a poor location and it was not realistic to expect staff to have provided a therapeutic environment to detainees in that setting; and • it would not have been possible to separate therapeutic intervention from the broader context of the detention experience.956 1912 Dr Clarke considered that there may have been some advantages to discussing mental health with long-term detainees and ensuring that they were able 953 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 8). 954 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 11). 955 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 pp 10-11). 956 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 12-13). -- 375 of 647 -- [2025] SASC 59 Stanley J 372 to discuss their feelings openly and safely. However, he also considered that the fundamental factors impacting on the emotional wellbeing of long-term detainees were the unremovable stressors discussed above. He considered that without being able to change those stressors instruction and education would likely have had minimal impact.957 1913 Dr Clarke did not consider that briefings to all staff, including medical staff, at Baxter on each and every detainee’s personal circumstances relating to that detainee’s history of arrest, escape from his or her homeland, and previous medical history was feasible, practical or useful. He was of the view that it would not be possible for all staff to retain such information and find it useful in any interactions they had with the detainees. Rather, that information would have been of value when specifically addressing a particular detainee’s mental health.958 1914 Dr Clarke disagreed with Dr Raeside’s view that many of the staff at Baxter felt a sense of helplessness about the limitations of what they could do for detainees. He thought this opinion was conjecture without specific evidence available to reach this conclusion. 959 1915 Dr Clarke expressed the view that, while the applicant may have found many aspects of heightened security at Baxter distressing, such as periods in the Management Unit as well as close observation and searches, not all aspects of his treatment listed by him as contributing to his distress and trauma could be seen as part of heightened security. That included his allegations of being treated roughly and taunted by DSOs. While Dr Clarke considered these incidents to be significant, he did not think they were the predominant cause of the distress the applicant was experiencing during his time in Baxter, especially in the first year.960 In particular, Dr Clarke noted that the applicant was not placed in isolation for a prolonged period. He considered it unlikely that this alone would have resulted in any lasting mental illness or contribution to such illness.961 19 March 2021 report 1916 In March 2021, Dr Clarke was asked to provide a further report in response to the following additional reports: • Report of Dr Tony Davis dated 10 November 2020; • Reports of Professor Harvey Whiteford dated 14 and 18 January 2021; • Report of Dr Michael Schirripa dated 28 January 2021; and 957 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 pp 4-5). 958 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 pp 7-8). 959 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 pp 14). 960 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 9). 961 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 8). -- 376 of 647 -- [2025] SASC 59 Stanley J 373 • Report of Dr Craig Raeside dated 1 February 2021. 1917 As Dr Davis and Professor Whiteford ultimately were not called to give evidence, I exclude from consideration of Dr Clarke’s report his opinions based on Dr Davis and Professor Whiteford. 1918 Dr Clarke endorsed the views of Dr Schirripa as expressed in his report of 28 January 2021. He agreed that the applicant’s presentation did not warrant a psychiatric diagnosis at any time during his detention at Baxter. 1919 Dr Clarke found Dr Raeside’s opinion as to the applicant’s ongoing injury confusing. Dr Raeside assessed the applicant as having an Adjustment Disorder with Depressed Mood as at the date of assessment on 13 January 2021. Dr Raeside went on to opine that the applicant has an underlying vulnerability which is likely to be permanent, an ongoing social impairment and an underlying psychological vulnerability which was aggravated by his detention experience. Dr Clarke could not reconcile this opinion with the criteria in DSM-5 for an Adjustment Disorder which provides that once the significant identifiable stressors have passed, the condition is expected to settle within six months. He did not agree that the applicant could still be suffering from an Adjustment Disorder arising from his experiences at Baxter nearly 16 years after leaving the facility.962 1920 Dr Clarke considered Dr Raeside’s suggestion that the applicant’s vulnerability to react to other stressors in his life was exaggerated by his detention experience to be an unmeasurable and contentious proposition. He considered it would not have been possible to gauge how the applicant’s detention experience affected his ability to cope with day-to-day stress over recent years. He also noted that, in his experience of medicolegal psychiatry, he had not seen an increase in psychological vulnerability being used as the basis for a compensation claim.963 1921 Dr Clarke also disagreed with Dr Raeside’s comparison of the treatment of mental health in immigration detention and prison settings. Dr Clarke considered there are major differences between the two which would render any such comparisons invalid. He referred to the fact that unlike a prison setting in which there is a known term of imprisonment and reasons for such imprisonment, the applicant’s immigration detention was of indefinite duration in a different cultural setting.964 1922 Dr Clarke maintained his earlier opinion that the applicant did not require additional psychiatric assessment and treatment. He considered that the applicant’s main focus was on being released from detention, and a psychiatrist or psychologist could not have influenced that. By way of contrast, in a prison setting, a therapist could be seen as removed from the process of imprisonment and, accordingly, there would be a greater chance of a successful therapeutic 962 Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 2-3). 963 Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 3). 964 Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 3). -- 377 of 647 -- [2025] SASC 59 Stanley J 374 relationship being established.965 He also reiterated that the applicant appeared to be angry and mistrusted staff at Baxter. He considered it likely the applicant would have seen any person attempting to establish a therapeutic relationship with him as an agent of the authorities responsible for his detention.966 1923 Dr Clarke also gave evidence that he did not consider that the same care could be provided in immigration detention as in an institutionalised mental health facility without building an institutionalised mental health facility inside the detention centre. He thought this was impractical. Instead, it would have been more practical to section detainees to a dedicated mental institution if they were unwell enough to require it. It was Dr Clarke’s understanding that this was what happened at Baxter.967 Dr Clarke doubted whether any symptoms of mental illness suffered by the applicant would have been serious enough to warrant him being placed in a specific psychiatric hospital.968 1924 Dr Clarke noted that the applicant told Dr Raeside that his ongoing focus is on his experiences in detention. Dr Clarke agreed with Dr Raeside’s assessment that the applicant’s involvement in this compensation claim and the associated assessments are likely to have contributed to this focus. Dr Clarke took this further, saying that he also considered the applicant’s claim in itself would have adversely affected his mental state.969 15 March 2022 report 1925 For the purposes of his final report, Dr Clarke was asked to consider further reports of Dr Raeside and Dr Schirripa, their accompanying briefing materials and a revised witness statement of Mr McInerney. He was also asked to rely upon a document prepared by solicitors for ACM entitled “Revised Specific Assumptions – Mr Saadat’s physical and mental health history in detention and thereafter.” 1926 Dr Clarke disagreed with Dr Raeside’s diagnosis of a Persistent Depressive Disorder in his report of 7 July 2021. He considered that the recorded observations of the applicant were inconsistent with him having suffered a persistent depressed mood which is a requirement for such a diagnosis. Dr Clarke did not consider it was appropriate to make this diagnosis based on a retrospective report by the applicant of a depressed mood considering the contemporaneous observations of staff970 did not depict an impairment of the applicant’s general affect and functioning. Additionally, Dr Clarke noted that a Persistent Depressive Disorder diagnosis is not usually made when a person is reportedly depressed within a setting of significant and ongoing stress.971 Dr Clarke said that the diagnosis in such a circumstance would usually be an Adjustment Disorder. He reiterated that while 965 Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 3). 966 Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 3). 967 T 8408-8409. 968 T 8496. 969 Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 2). 970 T 8420. 971 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 2). -- 378 of 647 -- [2025] SASC 59 Stanley J 375 that diagnosis may have been applicable at certain times during the applicant’s detention, there was a lack of evidence that the applicant suffered a persistent and clinically significant depressed mood. 1927 Dr Clarke also disagreed with Dr Raeside’s diagnosis of a “double depression”. Dr Clarke considered this concept to be an outdated idea which implied there were two separate mechanisms contributing to the applicant’s experience of depression rather than what would seem more likely to be the exacerbation of a single condition. Additionally, Dr Clarke noted that this diagnosis appeared to have been based on the Summary of Evidence which he considered to lack balance and to be an unsound basis on which to make a clinical diagnosis.972 1928 Dr Clarke considered that the Summary of Evidence, taken at face value, suggested that the applicant was suffering a more persistent and severely depressed mood compared to that which was indicated by the documents he had reviewed. However, having considered ACM’s revised assumptions and the contemporaneous notes of Baxter staff, Dr Clarke considered the Summary of Evidence provided to Dr Raeside was presented uncritically and without the additional information obtained in cross-examination.973 1929 As an example, Dr Clarke noted that although the Summary of Evidence stated that the applicant “slashed” himself on 6 February 2003, the applicant did not use this word when giving evidence and acknowledged that the cuts were largely superficial.974 Dr Clarke considered that the use of the word “slash” was an exaggeration of what actually occurred.975 Dr Clarke believed that the applicant’s actions were part of a dramatic and desperate attempt to gain attention for the detainees’ plight. He did not believe that the applicant’s own emotional state had prompted his actions, as might have been reflected in self-harm outside of the protest context.976 1930 Dr Clarke considered that a diagnosis based upon the Summary of Evidence was about four or five steps away from a clinical assessment given that it had been prepared by a non-clinician in a legal setting. Dr Clarke said that if he had been asked to make a diagnosis on the basis of such a summary, he would have declined to do so due to its unreliability.977 While Dr Clarke thought it entirely conventional for medico-legal experts to form opinions on the basis of assumptions, he considered it does not necessarily follow that the opinion formed is actually valid.978 972 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 6). 973 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 4). 974 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 4). 975 T 8534. 976 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 4). 977 T 8398-8399. 978 T 8354. -- 379 of 647 -- [2025] SASC 59 Stanley J 376 1931 Dr Clarke referred to the applicant’s evidence that while he appeared happy, he was actually “dead inside”. Dr Clarke did not consider that a significant and Persistent Depressive Disorder requiring clinical intervention could be covered up.979 Dr Clarke said that the applicant’s mood could not have been so fluctuating that he was frequently recorded as appearing in good spirits while observed by staff but was in fact depressed.980 1932 The applicant and other detainees gave evidence that the applicant became socially withdrawn and was often in his darkened room during the day, including in the last six months of his detention. Dr Clarke thought that rather than this behaviour being evidence of social withdrawal, it was consistent with the revised assumption he had been provided with that the applicant and other detainees would stay up most of the night and sleep during the day.981 1933 Dr Clarke considered that the level of mental health services at Baxter exceeded the standard generally available to the Australian community noting that members of the general community often complain about difficulties in accessing mental health treatment.982 However, Dr Clarke accepted that the location of Baxter played a part in the difficulties the facility faced in attracting staff.983 He also conceded that the standard of care in detention would have been different in that individuals would not have been able to obtain independent and confidential care from a health professional of their choice.984 1934 However, Dr Clarke also maintained his earlier opinion that, even if a greater level of psychiatric treatment had been warranted, no amount of psychiatric treatment could have overcome the applicant’s two main issues; the fact of his detention and his fear of being returned to Iran. While Dr Clarke conceded that the applicant’s mental state may have been improved if he had been granted greater freedoms within Baxter, was not referred to by number and not handcuffed, he considered that any improvement would have been slight. 985 Dr Clarke agreed that the more stressors that were removed, the less likely the applicant would have been to suffer a significant mental illness.986 However, in any case, the central problem of the applicant’s detention would have remained and could not have been ameliorated.987 1935 Dr Clarke also considered the applicant’s anger about his continued detention and his distrust of the staff at Baxter were two insurmountable obstacles in the provision of effective psychiatric treatment. He thought the applicant would have been unlikely to be open with a psychiatrist or psychologist if he feared it would 979 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 4-5). 980 T 8615. 981 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 5). 982 T 8409-8410,8477. 983 T 8476. 984 T 8487, T 8593-8594. 985 T8680-8685. 986 T 8687. 987 T 8684. -- 380 of 647 -- [2025] SASC 59 Stanley J 377 have negatively impacted on his visa prospects.988 Dr Clarke also considered that even if psychiatric intervention could have provided the applicant with some benefit, in order for it to be effective, the applicant would have needed to have confidence in the psychotherapeutic process.989 1936 Dr Clarke also gave evidence that there was no suggestion the applicant would have been amenable to education about mental health.990 He recalled the applicant at some point denying the existence of mental health education programs, despite them being made available to detainees. Dr Clarke considered that might indicate the applicant had no interest in such education whatsoever. Additionally, he did not consider that the applicant, particularly towards the end of his detention, would have exhibited sufficient need to prompt staff to discuss with him mental health literacy.991 1937 Dr Clarke said that theoretically and ideally, a program should have been put in place to try to improve mental health literacy.992 However, low mental health literacy is not easy to reverse and cannot simply be overcome with a quick intervention education program.993 1938 Dr Clarke reiterated that he considered the response to the applicant’s overdose was appropriate and consistent with current clinical practice. While the applicant acknowledged that he had taken a quantity of non-prescribed medication and it appeared to have an adverse effect on him, Dr Clarke considered it was appropriate for staff to rely on his report in determining the actions required. He noted that the contemporaneous observations of staff consistently state that the applicant regained composure and was able to stand and walk to his room within five minutes of the apparent medical event. He considered that it would be appropriate to assume that the applicant’s report of having only taken five tablets was approximately correct. He also considered it reasonable for staff to accept the applicant’s denial of having suicidal intent, thereby limiting the intervention and allowing him to return to his room.994 Dr Clarke was not convinced either way as to whether the August 2003 incident was a genuine suicide attempt.995 He said if he had been consulted in the immediate aftermath of the incident, he would have taken the same approach as the Baxter staff did.996 1939 Dr Clarke considered that, while it was appropriate that the applicant was encouraged to be medically assessed, it was also appropriate for staff to accept his refusal to submit to an assessment.997 When giving evidence he explained that 988 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 7). 989 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 7). 990 T 8515. 991 T 8531. 992 T 8484. 993 T 8473-8474. 994 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 8), T 8549 – 8551. 995 T 8549-8551. 996 T 8726. 997 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 8). -- 381 of 647 -- [2025] SASC 59 Stanley J 378 clinicians are required to respond to such events sensitively and not punitively or in a way that disregards a patient’s wishes. He considered the response of staff to be in keeping with what occurs in clinical practice.998 He also noted, based on contemporaneous observations, that the applicant appeared to be back to his normal self a few days later.999 He accepted that, ideally, staff at Baxter would have gone through the applicant’s notes to understand what had happened to him since his arrival, but he questioned whether the resources would have been available to do so.1000 1940 Dr Clarke considered that the applicant’s involvement in this prolonged compensation claim has maintained his focus on his detention experiences and is likely to have been a powerful disincentive to a more adaptive adjustment.1001 Dr Clarke considered that the applicant’s presentation in court during the trial was inconsistent with Dr Raeside’s assertions that he continued to suffer an ongoing depressive illness. In Dr Clarke’s opinion, it would not have been possible for the applicant to provide extended periods of evidence over 31 days, whilst also maintaining employment out of court hours if he had been suffering from such an illness.1002 Dr Clarke considered that such a “phenomenal feat” would require more determination than could possibly be mustered with a serious mental illness and, had the applicant been suffering from such an illness, he would not have been able to continue.1003 1941 Additionally, Dr Clarke was of the opinion that, post detention, the applicant’s opioid addiction likely accounted for significant dysfunction due to the effects of the drug itself, efforts to obtain OxyContin, and the effects of withdrawal when it was not available.1004 Dr Clarke considered that it would be difficult to find that the applicant’s drug addiction was a result of his mental health.1005 Further, he considered that the applicant’s continual usage of OxyContin would have prevented the applicant from better adjusting and dealing in more adaptive ways to establishing his life in Australia.1006 Management Unit 1942 Dr Clarke accepted that being isolated in the Management Unit may have added to the applicant’s distress. However, he considered that such placement may have been important for reasons of monitoring and safety.1007 He did not consider that such isolation would have caused lasting damage to a person’s mental 998 T 8554. 999 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 8). 1000 T 8561. 1001 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 6). 1002 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 6). 1003 T 8704-8705. 1004 Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 5). 1005 T 8413-8414. 1006 T 8701. 1007 T 8509-8510. -- 382 of 647 -- [2025] SASC 59 Stanley J 379 health.1008 However, he agreed the isolation was not ideal and ought to have been used very prudently.1009 1943 Dr Clarke considered that the conditions of the Management Unit, as alleged by the applicant could have had an impact on his mental health. He considered that the longer a person was in the Management Unit the greater the potential risk of serious harm.1010 He agreed that the use of isolation and segregation for suicidal detainees had the potential, depending on the whole nature of the environment, to be harmful. Further, he agreed that the use of isolation cells for suicidal detainees could have been a humiliating and degrading experience.1011 He also accepted that there was evidence which supported the contention that there was a correlation between increased risk of suicide and the use of isolation cells. 1012 However, there was no evidence that the applicant was ever put in the Management Unit for health reasons. 1944 Dr Clarke considered the applicant’s placement in the Management Unit could have been triggering as a result of the trauma he allegedly suffered in Iran. However, he considered that this, in itself, did not mean that the applicant’s placement in the Management Unit under very different circumstances was inappropriate.1013 He accepted that given his alleged history, the Management Unit could have had a greater effect on the applicant. However, Dr Clarke did not consider this would have meant his placement in the Management Unit should have been prevented.1014 1945 Dr Clarke considered that any ongoing effects of the Management Unit could have been assessed by observing the applicant’s day-to-day conduct.1015 While he accepted that prolonged placement in the Management Unit may have deterred detainees in the Management Unit openly disclosing mental health concerns, he considered that would not necessarily have meant that it was impossible to assess what was occurring.1016 1946 Dr Clarke considered that seclusion and restraint is used even in well- resourced specialist mental health in-patient facilities as a way of managing behavioural disturbance, including the risk of self-harm.1017 However, he agreed the standard for the use of isolation in mental health facilities is that it be used for the for the minimum duration possible and only in circumstances where the patient presents an immediate threat to either themself or others.1018 1008 T 8511. 1009 T 8509-8510. 1010 T 8584-8585. 1011 T 8590. 1012 T 8592. 1013 T 8459. 1014 T 8512. 1015 T 8591-8592. 1016 T 8601. 1017 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 8). 1018 T 8510. -- 383 of 647 -- [2025] SASC 59 Stanley J 380 1947 Dr Clarke did not say a full MHA should have been performed on the applicant in the aftermath of the hole-digging incident. He thought that the applicant was obviously feeling desperate and a comprehensive inquiry in addition to whatever questions were asked of him at the time would not have been necessary.1019 Had the applicant indicated that his mental health was poor, Dr Clarke would have expected that would trigger some extra inquiry and assessment, while also understanding that the applicant was desperate. He did not consider that such a response would necessarily warrant a referral for treatment.1020 Torture and trauma 1948 Dr Clarke was cross-examined on the topic of torture and trauma. Dr Clarke accepted that a regime which facilitated screening for torture and trauma, including screening and assessment tools, coupled with a comprehensive MHA on induction, with regular reviews of that process at six-monthly and then three-monthly intervals would have been beneficial at Baxter. 1949 However, Dr Clarke considered that the applicant, throughout the histories he provided, had downplayed the events in Iran, which did not appear to be a particularly major issue for him. Dr Clarke did not consider that significant emphasis should have been placed on those experiences when the applicant was focusing on other matters, such as his detention.1021 1950 Dr Clarke also considered that such screening could have been abused by detainees hoping that there may be some advantage in exaggerating their mental suffering.1022 He noted that screening tools rely on self-reporting which can be contaminated by overstatement and understatement.1023 Although Dr Clarke accepted that by 2014 screening tools such as the Harvard Trauma Questionnaire, the Health of the Nation Outcome Scale and the Kessler 10 were standard tests used in immigration detention in Australia, he queried the utility of the information obtained in this setting. Dr Clarke rejected the idea that these instruments could be used to compare or track changes in a detainee’s health. Dr Clarke considered that it would only track marked changes in the detainee’s responses to the form.1024 Reliance on the applicant’s evidence 1951 Dr Clarke gave evidence of the difficulties psychiatrists face when diagnosing or forming opinions many years removed from the events relevant to those diagnoses or opinions. He said that the task of assessment from a psychiatric perspective may well be impossible after so much time has elapsed.1025 Making a diagnosis after the event requires a judgment entirely based on the history provided 1019 T 8583-8584. 1020 T 8585-8587. 1021 T 8458. 1022 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 5). 1023 T 8463, 8465-8468. 1024 T 8463-8465. 1025 T 8410-8413, 8707-8708, 8724-8725. -- 384 of 647 -- [2025] SASC 59 Stanley J 381 by the patient and the assessment of contemporaneous records.1026 This matter is necessarily focused on the applicant’s mental state from 2000 to the trial, with particular focus on his mental state in the period from September 2002 to April 2005. Dr Clarke considered that the applicant’s ability to report his previous mental state was reduced and became increasingly less reliable. He said it was perhaps distorted in the retelling.1027 He considered this was an important factor in this case, coupled with the added problem of relying upon evidence adduced in the context of compensation.1028 He considered that an individual’s account of their own history can also be biased by self-interest in a compensation setting, even assuming that an applicant is a reliable historian doing their best to provide an accurate recollection. He agreed that if an applicant were actively omitting information or lying and distorting aspects of their history, that would render the history totally unreliable. 1952 Dr Clarke considered that it would be very difficult to provide a probable opinion on causation because the applicant had changed aspects of the history he reported over time on multiple occasions. He said that while it might be possible to provide an answer, that answer would have to be qualified in terms of identifying what the opinion is based upon.1029 1953 Dr Clarke assumed the reports of DSOs were consistent, roughly contemporaneous and an accurate reflection of what was observed. He also noted that there were multiple entries from different observers over a period of time.1030 Dr Clarke said that while some caution needed to be taken in the interpretation of the DSO’s notes, he considered that the number and breadth of different entries, the different people contributing to those entries, and the fairly simple matters of detailing movement, could be taken overall to reveal enough about the applicant’s general functioning and mental state to indicate that he was managing reasonably well.1031 1954 While Dr Clarke thought that several observations of the applicant by his friends following his release may have raised questions and concerns about his mental health, he considered that such evidence should be balanced with other, inconsistent evidence including Mr McInerney’s notes and Dr Schirripa’s assessments.1032 Additionally, he considered there was also a possibility that these observations could be explained by the applicant’s abuse of opiates.1033 1026 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 7). 1027 T 8411-8412. 1028 T 8707-8711. 1029 T 8412-8413. 1030 T 8606-8610 1031 T 8651-8652. 1032 T 8689-8692. 1033 T 8705-8706. -- 385 of 647 -- [2025] SASC 59 Stanley J 382 Assessment of Dr Clarke’s evidence 1955 I found Dr Clarke to be an impressive witness. I consider his opinions compelling. Although he was prepared to concede that in an ideal world the applicant’s treatment at Baxter could have been different, he emphasised that there were sound reasons to doubt whether the applicant would have engaged with those measures. Further, much of the applicant’s cross-examination of Dr Clarke was conducted on the basis of hypotheses such as the applicant divulging his alleged poor mental state to the staff at Baxter at various earlier times, which were not proved. 1956 In the end I generally prefer Dr Clarke’s evidence over the evidence of the other psychiatric witnesses where their opinions diverge. While I accept Dr Clarke’s evidence that ideally it would have been preferable for the applicant to have undergone a comprehensive MHA at the time of his transfer to Baxter for reasons I will come to I do not consider the failure to do so rendered the Commonwealth liable to the applicant in damages. 1957 While Dr Clarke did not have the opportunity to examine the applicant at any stage, I consider that his approach of relying on contemporaneous notes in forming his opinions was appropriate, given the lengthy effluxion of time since the applicant’s detention and his unreliability as a historian. I also think Dr Clarke’s criticisms of the Summary of Evidence are justified on the basis of those notes. Given the inconsistencies he noted between the Summary of Evidence and the contemporaneous documents I am satisfied it was a valid approach on his part not to rely on the Summary of Evidence in forming his opinions. 1958 The applicant criticised the methodology adopted by Dr Clarke in forming his opinion. He criticised Dr Clarke for questioning the assumptions set out in the Summary of Evidence. I do not accept this criticism. 1959 This criticism is only relevant to Dr Clarke’s last report of 15 March 2022. After the applicant’s solicitors had provided the Summary of Evidence to Dr Raeside on 26 November 2021, ACM’s solicitors provided Dr Clarke with the Summary of Evidence and the document entitled “Revised and Specific Assumptions”, which provided a series of assumptions in relation to the applicant’s physical and mental health history in Baxter and post detention. The preparation of the Revised and Specific Assumptions document was responsive to the applicant’s use of the Summary of Evidence, and for that matter the Outline of Evidence. ACM’s solicitors asked Dr Clarke to review his previous reports of 4 December 2018, 3 November 2020 and 19 March 2021 and have regard to a number of documents, including the most recent reports of Dr Raeside, Dr Schirripa, the Summary of Evidence and the Revised and Specific Assumptions. Dr Clarke was asked to the extent there was, or may be, any inconsistency or logical tension between the events recited in the Summary of Evidence and the Revised and Specific Assumptions, that he give the revised assumptions at least equal weight as the Summary of Evidence in forming his -- 386 of 647 -- [2025] SASC 59 Stanley J 383 opinion. He was also asked to consider any conflict between the evidence of the applicant and other detainees, and observations made of the applicant in Baxter and recorded in the contemporaneous documents. 1960 In preparing his final report he did as he was asked and identified what he considered to be inconsistencies between the Summary of Evidence and the Revised and Specific Assumptions. That led him to the conclusion that the Summary of Evidence lacked balance. He adjusted his opinion accordingly. He said that he may not have given the Summary of Evidence and the revised assumptions equal weight in preparing his reports but did not completely ignore the Summary of Evidence when answering questions.1034 However, in formulating his opinion Dr Clarke was not under any obligation to adhere strictly to assumptions which he considered to be inconsistent with other evidence in the matter, given the terms of his instructions from ACM’s solicitors. Otherwise, he was placed in the difficult position of having to form his opinions on the basis of conflicting assumptions. 1961 In deciding whether a claimant has proved he or she suffered a recognisable psychiatric injury, expert psychiatric evidence is critical. That expert opinion relies on the accuracy of the factual assumptions upon which the opinion is based.1035 1962 Once Dr Clarke was provided with a counter set of assumptions from those in the Summary of Evidence, he had to make sense of the factual foundations he was to rely upon in forming his opinion. He identified the assumptions he relied upon. What matters is proof of those Revised and Specific Assumptions. If not proved that would undermine the validity of Dr Clarke’s opinion as set out in his final report and his evidence. I am satisfied they have been established. 1963 Consistently throughout all of his reports, Dr Clarke maintained his opinion that the applicant did not suffer a chronic or serious mental health condition during his time at Baxter.1036 He also considered that there was no indication of the applicant having developed a mental illness at Curtin. He observed the medical notes from Curtin do not mention the applicant complaining of mental health issues.1037 Dr Clarke also noted several times throughout his reports that Dr Schirripa had the advantage of examining the applicant in 2013, 2018 and July 2020 and, on all occasions, did not consider that the applicant was suffering from a recognisable psychiatric condition.1038 1034 T 8549. 1035 Ramsay v Watson (1961) 108 CLR 642 at 648-649. 1036 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 2-3), Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 4), Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 2), Exhibit 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 9). 1037 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 6). 1038 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 15), Exhibit 1.3TP1769 (Report of Dr Clarke 19 March 2021 p 2). -- 387 of 647 -- [2025] SASC 59 Stanley J 384 CONSIDERATION OF THE EXPERT EVIDENCE 1964 The applicant submits that the evidence of Dr Schirripa and Dr Clarke should be rejected because of their failure to explain or diagnose the pervasive level of dysfunction suffered by the applicant. I do not accept this submission. It depends on acceptance of the applicant’s evidence for the years before his marriage and the evidence of the applicant and Mrs Saadat for the years since in circumstances where I am not prepared to rely on his evidence and significant aspects of her evidence. Even where I am prepared to accept their evidence, the difficulty confronting the success of the applicant’s claim is that I cannot exclude his symptoms and dysfunction being explained by his addiction to OxyContin and other drugs of dependence, namely, Tramadol and Lyrica. OxyContin and these other mood-altering drugs affect a person’s capacity to function socially and at work, impairs concentration and sleep, and can cause aggression and irritability.1039 Dr Raeside’s diagnosis and opinion in his first report was based on these complaints. 1965 In that regard, I do not accept Dr Raeside’s opinion that the applicant’s OxyContin addiction is explained as resulting from his depressive illness. It is apparent from an analysis of the applicant’s presentations and complaints that the applicant started using OxyContin to relieve symptoms of back pain. That is the history he gave Dr Schirripa in 2013.1040 That history was only abandoned in 2019 in favour of an allegation of some causal nexus with his alleged psychiatric illness from 2008 onwards. But the contemporaneous documentary evidence points to the applicant’s addiction to OxyContin resulting from the need to relieve symptoms of back pain. So much is clear from the history the applicant gave to DASA on 30 June 20111041 and 14 May 20141042 and to the MHS on 16 February 20111043 and in his claim for a Disability Support Pension to the Department of Human Services on 22 July 2011.1044 1966 Dr Raeside said that the applicant’s OxyContin use was an aggravating and perpetuating factor of his depressive symptoms but his vulnerabilities probably led to his susceptibility to become dependent upon OxyContin. I am not entirely clear what Dr Raeside means by the applicant’s ‘vulnerabilities’. Nevertheless, what led to the applicant becoming dependent on OxyContin, as I have found, was a search for relief from back pain he alleged he has suffered since his time in detention. The allegation that his OxyContin addiction was in some way causally related to his alleged psychiatric injury is a case of recent invention, insofar as the concept of recent is relative in this case. 1039 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 5); Exhibit 1.3TP1752 (Report of Dr Kapur 5 December 2018 p 13,14). 1040 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 pp 4, 7). 1041 Exhibit A1558 pp 9-10 at .0011 to .0012, T 1103. 1042 Exhibit A1558 pp 53-55 at .0055 to .0057, T 1194. 1043 Exhibit A1585. 1044 Exhibit R1588A pp 13-38 at .0487 to .0512. -- 388 of 647 -- [2025] SASC 59 Stanley J 385 1967 This is not a case where the Court has wholly preferred the expert opinion of one psychiatrist over the other psychiatric witnesses. To a greater or lesser extent I have been assisted by the evidence of each of Dr Raeside, Professor Jureidini, Dr Schirripa and Dr Clarke. I have accepted some but not all of the opinions of each of the psychiatric witnesses. That said, I have found the most assistance from the evidence of Dr Clarke and the least assistance from the evidence of Professor Jureidini. 1968 I find Dr Clarke’s evidence and reports are considered, balanced and consistent with the objective evidence. He was open to making concessions where he thought that was justified and appropriate. Where his opinions differ from the other psychiatric witnesses I find his evidence generally is more plausible. The difference in his opinions from those of Dr Raeside in large part were due to the underlying assumptions Dr Raeside was asked to make based on the contents of the Outline of Evidence and the Summary of Evidence, most of which have not been made out on the evidence. In his evidence Dr Clarke emphasises the difficulties, imponderables and uncertainties associated with attributing cause to mental illness.1045 He considers that any depressive or anxiety symptoms the applicant may have experienced were largely a reaction to the fundamental circumstances of his prolonged detention.1046 Dr Clarke acknowledges there were other stressors the applicant experienced in detention including the uncertainties of decisions on his visa application, the indeterminate nature of his detention and the constant fear of being deported to Iran.1047 The fires, his placements in the Management Unit, the protest involving self-harm and the suicide attempt were stressful times for the applicant. His sleeping problems were a symptom of those stressors. In his evidence Dr Clarke said that the applicant’s primary stressor was the indeterminacy of his detention.1048 I note that this was also the initial opinion of Dr Raeside based on the history he obtained from the applicant in 2010 before he was asked to disregard that history. 1969 Dr Clarke considered the applicant experienced periods of non-severe depression and anxiety while in Baxter. He doubted whether his reaction was in excess of what would be the expected reaction given the length of time he had spent in detention and the indeterminate nature of his continued detention. Dr Clarke considered the documentary evidence did not disclose any periods of prolonged depression and anxiety in Baxter which seriously and persistently affected his functioning. On the contrary, observations made and recorded in the contemporaneous documentary evidence disclose the applicant engaged in social and functional activity at levels which were not consistent with him suffering a chronic adjustment disorder. Symptoms of anxiety and depression fluctuated reactively to the applicant’s situation. His mood was affected by events including 1045 T 8410-8414. 1046 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 at pp 7-8, 11. 1047 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 at pp 14-15. 1048 T 8415. -- 389 of 647 -- [2025] SASC 59 Stanley J 386 the outcome of his application for asylum, protests, time in the Management Unit, the suicide attempt, and other stressful events. 1970 The rejection of the applicant’s special leave application to the High Court was the trigger for his attempted suicide but Dr Clarke considered that was part of the applicant’s emotional upheaval rather than evidence of any severe underlying mental illness. While I generally accept Dr Clarke’s evidence, I disagree with him to a certain extent. As I have found, I am satisfied that the suicide attempt was symptomatic of a depressive illness, probably an adjustment disorder. 1971 Dr Clarke considers the evidence indicates the applicant has had significant problems since his release, particularly a lengthy period of OxyContin addiction and difficulty maintaining employment. He does not consider that assessment or treatment by a psychiatrist during the applicant’s detention at Baxter would have improved his functioning subsequent to his release. He does not consider there was any treatment that a psychiatrist could have offered the applicant while he was in detention that would have made a difference to his post release functioning. The efficacy of psychiatric treatment in Baxter was doubtful because of the reactive nature of the applicant’s symptoms which were primarily related to the length of his detention and its indeterminate nature. Accordingly, it would have been unrealistic to expect that medication would have resulted in any significant improvement in the applicant’s outlook or mood. Further, psychological therapy would have had little effect and suggesting to the applicant that he adopt a more positive view of his situation would likely have been seen as evidence of the lack of a proper understanding of his circumstances. The applicant’s outward signs of anger and abuse were not necessarily indicative of him suffering a mental illness. While anger and irritability can be a feature of mental illness along with other significant disturbances of mood and behaviour, that is generally where those reactions are disproportionate to the person’s situation. 1972 However, his detention was perceived by him to be unjust and unjustified with no foreseeable prospect of a fundamental change in his situation. Anger was an understandable response. In his case it was not indicative of mental illness. Accordingly, the most effective treatment for the applicant would have been release from the detention environment. It follows that psychiatric treatment would have had limited effectiveness while the applicant remained in detention. In any event Dr Clarke concludes from the history set out in the contemporaneous documentary evidence that the applicant’s mood lifted and his mental health improved throughout 2004 and 2005 until his release.1049 Dr Clarke also considers that given the absence of persistent and regular use of opiates while in detention at Baxter, the applicant did not develop an addiction to them during this period.1050 1049 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 3). 1050 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 4). -- 390 of 647 -- [2025] SASC 59 Stanley J 387 1973 However, Dr Clarke considers that the long-term overuse of OxyContin by the applicant after his release from detention had the potential for him to develop symptoms of anxiety and depression. 1974 Dr Clarke accepts that ideally it would have been desirable when the applicant was transferred to Baxter, or later in 2003, for the Commonwealth to have undertaken a series of measures relevant to the applicant’s mental health. They were a comprehensive MHA, with subsequent reviews and repeat assessments, measures adopted to address his low mental health literacy, screening for torture and trauma, and the establishment of a therapeutic relationship with a psychiatric nurse or other member of the medical staff.1051 Dr Clarke also accepts that potentially the Commonwealth could also have undertaken testing to evaluate the applicant’s mental health.1052 1975 However, Dr Clarke’s acceptance that these measures could have been undertaken by the Commonwealth is expressed in conditional terms. His view is that these measures potentially could have been performed, or ideally might have been performed, but he questions the practical utility of such measures in circumstances where he doubts that the applicant was suffering from a recognisable psychiatric illness and the evidence indicates that it was unlikely he would have been prepared to cooperate or participate in undertaking those measures. It is important to distinguish the factual circumstances of the applicant from the circumstances of the two detainees in S v Secretary.1053 In S v Secretary the Court found that the Commonwealth breached the duty of care it owed the two detainees to take adequate care of their mental health needs where it was known to the Commonwealth that each detainee was suffering from major depression and the Commonwealth failed to provide them with adequate mental health care to treat that illness. Accordingly, the Commonwealth breached its duty to ensure that a level of medical care was made available to them which was reasonably designed to meet their psychiatric health care needs. This occurred in circumstances where the Commonwealth had medical reports from psychiatrists and a general practitioner that the treatment plans prescribed for the detainees at Baxter were not only inadequate in treating them for their major depression but that the conditions at Baxter were themselves a contributing cause of their mental illness. In contrast, the applicant in this matter did not display any obvious or florid symptoms of a recognisable psychiatric injury during his detention in Baxter apart from the suicide attempt in August 2003. He repeatedly denied that he was depressed, had any mental health issues, thoughts of self-harm or suicide, even after the suicide attempt in August 2003. The first occasion he complained of feeling depressed was 16 January 2003, shortly after he was released from the Management Unit following the fires. In considering whether the Commonwealth breached its duty 1051 T 8471, 8473, 8475 – 8476, 8485. 1052 T 8479.15-21, 8484, 8513. 1053 [2005] FCA 549, (2005) 143 FCR 217. -- 391 of 647 -- [2025] SASC 59 Stanley J 388 of care, the relevant assessment must be undertaken prospectively not retrospectively.1054 FINDINGS OF FACT AND FAILURE TO PROVE ALLEGATIONS OF FACT 1976 Making findings of fact on the evidence is problematic as the evidence is frequently contradictory and inconsistent. However, these difficulties are mostly inconsequential as in many instances whether something happened on a particular date or a day or two days earlier or later does not matter in the context of assessing events over lengthy periods which occurred many years earlier. What is relevant is what did or did not occur more so than when these events occurred. A critical feature of making findings of fact in this matter is that the onus of proof is on the applicant. Given the finding that the applicant is a very poor historian and his evidence is an unreliable basis for making findings of fact, I find myself unable to make crucial findings unless there is reliable corroboration or an admission against interest. As a result, I have found myself unable to make positive findings on many important matters. As a consequence, in many instances I am unable to make relevant findings. 1977 However, in making findings of fact I have the advantage of extensive documentary records made by contractors, officers and employees of DIMIA, ACM and G4S. DSOs created movement logs and medical centre staff made entries in medical case notes, recording their observations and impressions of detainees. There is no sound reason to doubt the accuracy of the vast majority of them. Those records generally appear to be contemporaneous with the events recorded. I find those entries were made on the day or within days of the observations and impressions. While I accept the possibility that some of these records might have been made to conceal misconduct on the part of the makers of the records, or other DIMIA, ACM or G4S personnel, I am generally prepared to rely upon the accuracy of the vast majority of those records. 1978 I reject the suggestion that various individuals failed to record the very matters the applicant now seeks to prove. An example of this is the applicant’s allegation that on 7 March 2003 he told Dr Ojah he still had thoughts of self- harming. I do not accept the applicant’s evidence where it is contrary to either the contemporaneous documentary records or the histories he gave to Dr Raeside and Dr Schirripa. Where there is evidence from the applicant or the other detainee witnesses which is inconsistent with the contemporaneous documentary records, I have overwhelmingly preferred to rely upon those records in making findings of fact. 1979 The evidence of observations made by DSOs and medical staff and their interactions with the applicant are significant. They provide a reliable account, admittedly in a concise form, of the applicant’s demeanour, behaviour and conversation with a multitude of DSOs and medical staff over the period of 1054 Roads and Traffic Authority v Dederer [2007] HCA 42 at [66], (2007) 234 CLR 330 at 353. -- 392 of 647 -- [2025] SASC 59 Stanley J 389 31 months the applicant was detained in Baxter. I acknowledge the force of the applicant’s submission that there is no evidence that the DSOs had any training in psychology or psychiatry, and I proceed on the assumption that they did not. It follows that the evidence of these observations must necessarily be of superficial impressions made by the DSOs of the applicant’s appearance, actions and mood. Nonetheless, that does not deny the probative force of the records made of their observations and interactions with the applicant. Assuming, as I do, the general accuracy of those observations they provide a probative foundation for expert psychiatric witnesses to draw inferences upon which critical findings can be made. Further, I reject the applicant’s submission that the DSOs’ recorded observations are unreliable and do not form any proper basis to judge the applicant’s mental health. 1980 While I accept that some entries may not have been made immediately, I am content to proceed on the basis that the overwhelming majority of these records were made at a time when the memories of the DSOs and medical staff concerning the applicant were fresh. Even where some entries were not made immediately, I am satisfied that they were overwhelmingly made at a time when the author had a sufficiently clear recollection of the events he or she was recording. I reject the submission that the entries were formulaic, careless or inaccurate. I am satisfied from their terms that the entries made reflect brief but accurate contemporaneous notes concerning the applicant’s presentation at particular times. There was no reason for those making the entries to fabricate them. After all, these entries were made by many individuals. That of itself provides some reassurance as to their accuracy. There would be little purpose in one individual making inaccurate entries in circumstances where he or she would know that many others were also recording their own observations. At that time no one could have anticipated the significance that now attaches to those entries. Not only is there no evidence of widespread fabrication, but the task would have been herculean and highly likely to have been detected. That is not to deny that certain DSOs might have omitted entries if they reflected adversely on themselves or other DSOs. However, the evidence does not permit me to make any particular finding that possibility actually occurred in relation to the applicant. In the circumstances I consider the entries are the most reliable evidence available given the deterioration in witnesses’ memory of relevant events that occurred many years earlier and the unreliability of the evidence of some of those witnesses. The proposition that they cannot be used in support of an appropriate longitudinal view is contrary to the evidence of those psychiatric experts whose evidence I accept. 1981 I rely upon the following chronology of events, as substantiated by contemporaneous documents, including inter alia movement logs, DSO case notes, medical progress notes, incident reports and the applicant’s individual management plan. Unless stated otherwise, I accept the below events occurred as recorded. -- 393 of 647 -- [2025] SASC 59 Stanley J 390 Chronology 16-12-00 The applicant arrives in Australia by boat at Ashmore Islands.1055 22-12-00 The applicant is processed at Darwin. 1056 23-12-00 The applicant is transported to Curtin Immigration Detention Centre. 1057 6-1-01 The applicant applies for a Temporary Protection Visa. 1058 3-4-01 The applicant’s visa application is rejected by the Minister’s delegate.1059 5-6-01 The Refugee Review Tribunal affirms the delegates decision of 3 April 2001.1060 28-11-01 The Federal Court dismisses the applicant’s appeal of the RRT’s decision of 5 June 2001.1061 6-5-02 The Full Federal Court dismisses the applicant’s appeal of the Federal Court’s decision of 28 November 2001.1062 22-9-02 The applicant is transferred to Baxter.1063 22-9-02 ACM intercentre transfer nursing assessment form completed. It records the applicant has concerns re post nasal drip (ongoing) and toothache. That his Mental Health status is satisfactory. That he is not on any medication and has no pending follow up appointments. Requests dentist appointment and appointment for post nasal drip.1064 29-9-02 The applicant presented at the medical centre with a painful right shin. He was accidentally kicked in shin while playing soccer yesterday evening. On examination the central area action was swollen and bruised painful to touch. Voltaren 1055 Exhibit A623. 1056 Exhibit A623. 1057 Exhibit A624. 1058 Exhibit A631. 1059 Exhibit A656. 1060 Exhibit A656. 1061 Exhibit A656. 1062 Exhibit A680. 1063 Exhibits A754, A755. 1064 Exhibits A759. -- 394 of 647 -- [2025] SASC 59 Stanley J 391 gel to reduce inflammation and pain and 2 Panadeine for pain given.1065 1-10-02 Medication Record: Prescribed Gaviscon and Panadeine.1066 3-10-02 Presented at the medical centre. Medical Progress Notes: complaining of right testicular pain. Problem persists. For medical review, no temperatures, pain mainly night.1067 7-10-02 Presented at the medical centre with mild epigastric discomfort and burning, no other symptoms. 15 ml Mylanta given.1068 10-10-02 Presented at the medical centre with a sore throat, runny nose, rigors – hot and cold at night. Throat looks infected and red ? Temperature – no thermometer here. Skin feels warm and clammy. Seeing doctor tomorrow for other problems, reviewed in. May need antibiotics, in the meantime Panadol x2, Aspro to gargle.1069 11-10-02 Presented with a sore throat, fever, headache, feeling of unwellness 3 days. Also testicular pain post-surgery. Oropharynx injected. Testes NAD. Other systems NAD. Chest clear. Diagnoses viral pharyngitis and post-inguinal … pain. Panadol 500 mg x2. Re-presenting with sore throat, coughing, runny nose, red throat. Demazin, Disprin x1 to gargle, Panadol x2, return prior to bed for further meds.1070 12-10-02 Presented with a cold. Panadol and Demazin given.1071 14-10-02 Seen by doctor for review of throat infection, antibiotic therapy commenced.1072 16-10-02 DSO Case Note: Allocated work as a kitchen worker. He does a good job. He seems settled.1073 1065 Exhibits A974, A697, A769. 1066 Exhibit A637. 1067 Exhibit A697 1068 Exhibit A697 1069 Exhibits A773, A697. 1070 Exhibits A733, A607, A769. 1071 Exhibits A773, A607. 1072 Exhibits A775, A607, A769. 1073 Exhibit A974. -- 395 of 647 -- [2025] SASC 59 Stanley J 392 20-11-02 DSO Case Note: The applicant is polite and friendly, he helps where he can.1074 3-12-02 DSO Case Note: The applicant is up early for breakfast today and asked if statements are in today. Seems ok.1075 09-12-02 DSO Case Note: Has not been sighted much but was at the office early in good spirits.1076 15-12-02 DSO Case Note: Still working in kitchen. He seems to enjoy it. He is good for a laugh.1077 18-12-02 DSO Case Note: Ate dinner in mess. He was otherwise quiet. He was not seen much.1078 27-12-02 Fires in Red 1 Compound accommodation room 40 and 43 (started in 43).1079 Detainees rehoused in other rooms. The applicant was suspected by ACM of having been involved.1080 29-12-02 The applicant was present when further fires in Red 1 Compound resulting in extensive damage to the compound. The detainees were evacuated to Red 2 Compound. The applicant suffered smoke inhalation and collapsed in compound. He was treated at the scene with oxygen therapy and then evacuated by ambulance personnel to Port Augusta Hospital. At approximately 12:40 hours he was escorted back to Baxter and returned to Red 2 compound at approximately 12:50.1081 30-12-02 The applicant was identified as having a lighter in his possession.1082 31-12-02 The applicant was transferred to Management Unit from Red 2 and strip-searched after intelligence received.1083 1-1-03 The applicant is observed by DSOs in the Management Unit at various points to be: 1074 Exhibit A974. 1075 Exhibit A974. 1076 Exhibit A974. 1077 Exhibit A974. 1078 Exhibit A974. 1079 Exhibits A769, A792, A793. 1080 Exhibits A769. 1081 Exhibits A769, A1541, A811, A801, A803, A769, A804, A805. 1082 Exhibit A769. 1083 Exhibits A769, A820. -- 396 of 647 -- [2025] SASC 59 Stanley J 393 • sleeping;1084 • walking around the room;1085 • leaving the room for a cigarette;1086 • leaving the room for dinner;1087 • returning to the room voluntarily;1088 • in the courtyard smoking; and1089 • in exercise area for a smoke.1090 2-1-03 The applicant remains in the Management Unit. A Psychiatric nursing entry notes: reviewed this a.m., mood euthymic, states he has no physical or mental health issues. Denies any thoughts to self-harm or suicide. Plan: daily RPN or RN reviews while in Management Unit. No mental health issues at this time. Signed by D Rarity/psych nurse.1091 • the applicant is observed by DSOs in the Management Unit at various points to be outside for a cigarette break.1092 • returning inside from break at own request.1093 • out [of room] for dinner.1094 3-1-03 The applicant remains in the Management Unit. Medical Progress Notes: Psychiatric nursing entry notes: review this a.m. by RPN and counsellor. Pleasant on approach. Stating he had sore testicles, advised staff he had an operation for this at Curtin. MO to review this ASAP. The applicant appears euthymic in mood, appropriate affect, NFTD evident during review. Did appear drained and exhausted. Plan: daily review RPN R.N. while in Management Unit. 1095 1084 Exhibits A697. 1085 Exhibit A817. 1086 Exhibit A817. 1087 Exhibit A818. 1088 Exhibit A818. 1089 Exhibit A818. 1090 Exhibit A818. 1091 Exhibits A769, A889. 1092 Exhibit A818. 1093 Exhibit A818. 1094 Exhibit A818. 1095 Exhibits A889. -- 397 of 647 -- [2025] SASC 59 Stanley J 394 The applicant denies any involvement regarding the fires in the Red Compounds. His behaviour since in the Management Unit has been reported as good. MURT recommended he be returned to R3 Compound on 3 January 03 (Case Management Team Members S Denisovich, S Steward and D Rarity).1096 4-1-03 Applicant moved from the Management Unit to Red 3 compound.1097 7-1-03 Medical Progress Notes: The applicant is seen by a doctor complaining of insomnia. Valerian prescribed 1-2 nocte, to be reviewed in two weeks. 1098 9-1-03 Individual Management Plan: The applicant has been non- compliant at times, has refused to give room number when asked and has been aggressive at times.1099 16-1-03 Applicant seen by the doctor for review, still complaining of insomnia. Commenced on Luvox and Diazepam, to be reviewed in one week. Medical Progress Notes: the applicant not sleeping still. Has had problems of thinking too much. Feels depressed. To commence Luvox 50 mg nocte, Diazepam 10 mg nocte to one week. Review in one week.1100 17-1-03 DSO Case Note: Applicant has been rude and aggressive but not out of character for him.1101 21-1-03 Individual Management Plan: The applicant’s room searched based on intel of possible future fires. Nil found. 1102 22-1-03 Applicant strip-searched at 10:51am, room searched, mechanically restrained and transferred with 13 other detainees to Blue 3 due to suspected involvement in fires. Medical Progress Notes: assessed after use of Mechanical restraints. NAD.1103 1096 Exhibit A769, A833. 1097 Exhibit A836. 1098 Exhibits A769, A889. 1099 Exhibits A974, A769. 1100 Exhibits A889, A769. 1101 Exhibits A974, A769. 1102 Exhibit A769. 1103 Exhibits A887, A889, A875, A769, A877. -- 398 of 647 -- [2025] SASC 59 Stanley J 395 23-1-03 Seen by Dr Ojah for review of sleeping difficulties. Medical Progress Notes: He has not been able to sleep well even while on Diazepam and Valerian. Vital signs normal. Systemic examination NAD. Diagnosis: extreme stress. Plan: advised to start learning sleep hygiene. To try Temazepam.1104 Individual Management Plan: Intel- Applicant seen in mess with pills, before officer could seize them, put them in his mouth.1105 26-1-03 DSO Case Note: has been compliant and appears content. 1106 28-1-03 Medical incident report: Applicant became verbally aggressive when told night-time medication could not be given at clinic time. Nurse felt threatened by this behaviour. Injuries and ill treatment nil.1107 3-2-03 Individual Management Plan: Further room searches conducted based on intel received – one lighter and thermos located. All detainees denied any knowledge of them.1108 4-2-03 Medical review by Dr Ojah: Insomnia still, despite tablets, still under stress. Headaches. Suggest: stop Luvox and try Endep 50 g after three days.1109 6-2-03 The applicant was involved in incident in B3 protesting over lack of communication phones on the compound. The applicant cut himself with a razor blade. Multiple scratches to chest and abdomen (40+) including one deeper cut. Wounds cleansed – Betadine applied. Deeper cut – steristrips applied, reviewed tomorrow by nurse. Returned to unit. Marked as ‘deliberate self-harm’. Referred to AFP. Applicant reviewed by D Rarity/psych nurse as having no intention to kill himself, denies suicidal ideas, protesting only. Plan: review by RN tomorrow. Incident form completed. 1110 1104 Exhibits A889, A769. 1105 Exhibit A769. 1106 Exhibit A974. 1107 Exhibits A1227, A893. 1108 Exhibit A769. 1109 Exhibit A637. 1110 Exhibits A769, A904, A905, A906, A907, A908, A901, A910, A911, A1227. -- 399 of 647 -- [2025] SASC 59 Stanley J 396 7-2-03 Seen by doctor - review of stress and insomnia, superficial lacerations requiring no suturing, tetanus toxoid given. Medical Progress Notes: history of severe stress, loss of sleep, was involved in a mini protest a day ago. Most of them gave themselves severe lacerations while his [illegible].… headache. On examination: Agitated moderately. Systems NAD. Superficial lacerations on the anterior chest… Diagnosis: severe stress / insomnia. Patient to have Temazepam. Tetanus toxoid 0.5 ml stat. Lacerations do not need stitching.1111 9-2-03 At approximately 21:40 hours the applicant verbally abused the nurse. Officers’ reports were written about the incident. Individual Management Plan: Intel- yelled at nurse “fuck you, you lesbian”.1112 14-2-03 Seen by doctor for review of insomnia. Medical Progress Notes: insomnia still despite tablets, still under stress. Headaches. Stop Luvox and Try Endep after 3 days. Luvox, Diazepam and Temazepam ceased, commenced on Endep & Capadex, continue Valerian.1113 16-2-03 The applicant is moved back to Red 3 Compound in recognition of compliant behaviour.1114 18-2-03 DSO Case Note: applicant works in the mess and happy to be working with [detainee].1115 27-2-03 Seen by doctor for review. Medical Progress Notes:: the applicant wants sleeping pill, indicating he thinks a lot and does not sleep at night. Has occasional migraine headache Prescribed Temazepam 10 mg for one week, (patient agreed that none after then) and Tramal 50 mg TDS for migraine headaches and insomnia.1116 28-2-03 Applicant alleged to have stolen a whole bottle of sleeping pills from the nurse while her back was turned. DSO notes 1111 Exhibits A1227, A637, A769. 1112 Exhibits A1268, A769. 1113 Exhibits A1227, A769. 1114 Exhibit A769. 1115 Exhibits A1268. 1116 Exhibits A1227, A769. -- 400 of 647 -- [2025] SASC 59 Stanley J 397 a report has been submitted and that the applicant ‘cried innocence’ when questioned about the matter.1117 Medical Progress Notes: incident report form raised after applicant became verbally aggressive towards staff in regards to night-time sedation.1118 2-3-03 Individual Management Plan notes: Intel received – room search conducted.1119 5-3-03 At 0150hrs a DSO found excess dirt and discovered a tunnel had been dug under Gholam Reza’s room by the applicant and Gholam Reza. It was treated as an escape attempt and management found their intent was to escape custody. The applicant was pat and wand searched and taken into Management Unit at 2:47am. Admission by the applicant of his involvement.1120 The applicant was medically reviewed in Management Unit following transfer from Red 3 Compound. Nil obvious injuries. 1121 DSO Navid submits intelligence report (dated 11 March 2003) that at approximately 1030hrs on 5 March 2003 he heard applicant yelling out through the doors of the Management Unit to Gholam Reza saying that he will ‘take the rap for the hole and say that Gholam had nothing to do with it. He also said that he will try and protect Gholam…’1122 1117 Exhibits A948, A769, A1268. 1118 Exhibits A948, A769. 1119 Exhibit A769. 1120 Exhibits A769, A1227, A962, A963, A964, A965, A961, A992, A960, A769, A957, A958, A970. 1121 Exhibit A769. 1122 Exhibit A992. -- 401 of 647 -- [2025] SASC 59 Stanley J 398 6-3-03 Applicant remains in Management Unit – Medical Progress Notes - Psychiatric nursing entry: Pleasant on approach. Requesting sleepers to assist him to sleep ‘better’, states he is not sleeping at night. Requested to see medical officer. Appointment made for 2 weeks’ time, unable to get earlier appointment. Mental state appears settled. No ideas to self-harm/suicide. No further physical complaints.1123 Individual Management Plan: Review. No issues concerning mental health. Signed D. Rarity, Psychiatric nurse.1124 Individual Management Plan: MURT meeting decided that the applicant and Gholam should remain in the Management Unit until tomorrow when they would be reviewed again. The management supervisor stated that both the applicant and Gholam had been well behaved since they arrived at the Management Unit. They were waiting for AFP to arrive to interview them.1125 7-3-03 Applicant remains in Management Unit - Medical Progress Notes: Dr Ojah - seen at Management Unit. Has no new complaints apart from request for sleeping pill. Restavit x2 nocte. 1126 Medical Progress Notes - Psychiatric Nursing entry: reviewed this morning. Denies any psychiatric mental health issues. Pleasant on approach. Denies any suicidal/self harm. Review daily while in Management Unit. (D. Rarity).1127Individual Management Plan: MURT meeting told AFP are on site believed to be seeing Payam and Gholam today. The MURT team decided to wait until there is an outcome. Monday will be reviewed.1128 8-3-03 Medical Progress Notes: Psychiatric nursing entry- reviewed in the Management Unit this morning, nil mental health issues expressed. Plan, daily review by RPN.1129 1123 Exhibit A1227. 1124 Exhibit A769. 1125 Exhibit A769. 1126 Exhibit A1227, A769. 1127 Exhibit A1227. 1128 Exhibit A769. 1129 Exhibit A1227. -- 402 of 647 -- [2025] SASC 59 Stanley J 399 DSO Case Note: applicant in Management Unit for helping Reza 230 dig a hole for escape beneath Reza 230 room.1130 9-3-03 Medical Progress Notes: Mental health. Seen in Management Unit. Refused medication.1131 10-3-03 Medical Progress Notes: Mental health. Seen in Management Unit. 2 aspirin for sore throat, nil other complaints.1132 Medical Progress Notes: Mental health review – seen in Management Unit. Sore throat. Nil other complaints.1133 Individual Management Plan: MURT discussed how long this detainee would need to stay in the MU because the AFP has not interviewed them as yet. It was decided for the security and good order of the facility that they should remain in the MU until the AFP have spoken to them.1134 11-3-03 Medical Progress Notes: Mental health. Complained of sore throat – aspirin x 2 for same. Nil other concerns.1135 Individual Management Plan: The MURT meeting acknowledged that they could not put a recommendation forward to the operations manager on these two detainees because the AFP still has not seen them. The applicant has requested to see a member of the MURT team. Shirley, case manager, spoke to him. He wanted to know what their situation was and how long they would be in the Management Unit. It was explained to the applicant that it was not in the hands of ACM but in that of the AFP.1136 12-3-03 Individual Management Plan: The MURT meeting received a report from the Management Unit supervisor stating that both of these detainees have been excellent. They have followed all instructions given to them. They have not asked for anything or complained about anything. MURT meeting would be recommending that the applicant and 1130 Exhibit A1268. 1131 Exhibit A1227. 1132 Exhibit A1227. 1133 Exhibit A1227. 1134 Exhibit A769. 1135 Exhibit A1227. 1136 Exhibit A769. -- 403 of 647 -- [2025] SASC 59 Stanley J 400 Gholam be moved to B3 if the AFP has not contacted them by tomorrow.1137 13-3-03 Individual Management Plan: MURT meeting decided that the applicant should sign the reintegration plan and was happy to move on to B3. He states that he would be very good there the same as he had been in the Management Unit because he wanted to go back to his own compound. He also stated he would not dig any more holes. It was explained to him that he may not go back to R3 from B3. The decision would be made after his behaviour had been monitored in B3.1138 13-3-03 Applicant attends MURT meeting. Applicant returns to room from MURT meeting, cleans his room and then is transferred out of the Management Unit to Blue 3 compound.1139 14-3-03 DSO Case Notes: Seems to be trying to influence [detainee] and [detainee].Woken up for a phone call at 13:45, appears happy (the phone call was suspected as being from a detainee in Red 3).1140 15-3-03 DSO Case Note: Applicant appears to have been accepted by fellow detainees. No real problems as yet. DSO Case Note: got up late. Seems fine.1141 16-3-03 DSO Case Note: Applicant appears happy tonight.1142 DSO Case Note: Applicant has slept all day.1143 1137 Exhibit A769. 1138 Exhibits A769, A997, A998, A1105. 1139 Exhibit A1268. 1140 Exhibit A1268. 1141 Exhibit A1268. 1142 Exhibit A1268. 1143 Exhibit A1268. -- 404 of 647 -- [2025] SASC 59 Stanley J 401 17-3-03 HRAT note: the applicant spends most of time sleeping and watching TV.1144 DSO Case Note: Appears fine. Watched video tonight with other residents.1145 DSO Case Note: Has slept all day.1146 Individual Management Plan: The MURT review team was told that the applicant spends most of his time sleeping and watching TV. He is very cooperative with staff.1147 18-3-03 Medical Progress Notes: Says he is unable to sleep at night. Asleep at 11am till 5pm. He does not know why he was brought here. He is sleeping enough hours. He needs to turn his system around. He asked why he was brought here if we can’t give him treatment. He does not want any Restavit evening.1148 20-3-03 Individual Management Plan: No medical issues at present, no change required to management plan at this stage. 1149 21-3-03 DSO Case Note: Sat around talking, watching TV. Quieter than normal, but conversing with everyone – no problems.1150 21-3-03 DSO Case Note: Up late but seems ok. No trouble at all.1151 22-3-03 DSO Case Note: Doesn’t go to bed until 0530 – 0600 daily, mixing with everyone. No problems.1152 22-3-03 DSO Case Note: Slept all day.1153 1144 Exhibit A1003. 1145 Exhibit A1268. 1146 Exhibit A1268. 1147 Exhibit A769. 1148 ExhibitA1004. 1149 Exhibit A769. 1150 Exhibit A1268. 1151 Exhibit A1268. 1152 Exhibit A1268. 1153 Exhibit A1268. -- 405 of 647 -- [2025] SASC 59 Stanley J 402 23-3-03 DSO Case Note: Has been very quiet today after an altercation this morning.1154 DSO Case Note: slept most of the day.1155 24-3-03 DSO Case Note: Relatively quiet tonight – rarely seen.1156 24-3-03 DSO Case Note: Was told he would be moved to W1. He was not happy. He has issues with Curtin detainees. Will stay in B3 tonight and try to sort out tomorrow.1157 24-3-03 Individual Management Plan: Nil mental health issues at this time.1158 25-3-03 Was in bed most of night until he made a phone call. Also asked for some new videos.1159 26-3-03 DSO Case Note: got some movies from Red 3 tonight, watched a couple then went to bed at about 0430.1160 DSO Case Note: Requested telephone call. Appears happy enough.1161 27-3-03 Individual Management Plan: MURT review. Enjoys the company of his fellow detainees and mixes well with them. Currently he is bored and sleeps all day but spends all night watching videos or sitting around talking. He and Reza are best friends and they are both of one opinion that it is in their best interest to behave.1162 DSO Case Note: Up late tonight. Seems happy enough. Communicating with DSOs well. As usual hanging out with Reza a lot.1163 1154 Exhibit A1268. 1155 Exhibit A1268. 1156 Exhibit A1268. 1157 Exhibit A1268. 1158 Exhibit A769. 1159 Exhibit A1268. 1160 Exhibit A1268. 1161 Exhibit A1268. 1162 Exhibit A769. 1163 Exhibit A1268. -- 406 of 647 -- [2025] SASC 59 Stanley J 403 28-3-03 DSO Case Note: Getting along well with detainees tonight, but would like some more videos to pass the time.1164 DSO Case Note: Was out a fair bit today and awake more than usual. Appears happy enough.1165 29-3-03 DSO Case Note: polite and helpful today.1166 30-3-03 DSO Case Note: Quiet tonight. Watching movies.1167 31-3-03 DSO Case Note: Went to bed just after lunch today, said to him tomorrow we will go to gym and let him pick out some videos.1168 March 03 Information Sheet about Memorandum of Understanding1169 between Australia and Iran given to Iranian detainees. 1-4-03 DSO Case Note: Watching videos, but still pressed to see Ops Manager about his duration in Blue 3 Compound.1170 DSO Case Note: Upset today about being kept in B3. Complaints persistently that wants to see OPS manager about duration of stay in Blue 3. Stated happy to stay if phones on and Austar. Spoke with DEALTA – seemed ok after.1171 2-4-03 Intelligence Report: Reports to guard Brad Paull and stated that if he did not see ops manager by Friday he would self- harm.1172 DSO Note: Quiet tonight but ok.1173 3-4-03 Individual Management Plan: Is always polite towards staff. However he is displeased with daily room searches. He interacts well with other detainees but spends a lot of time with Ghorban [sic] Reza BX230. He often attends the gym and enjoys his time there. He mostly sleeps during the day and is up at night watching videos.1174 1164 Exhibit A1268. 1165 Exhibit A1268. 1166 Exhibit A1268. 1167 Exhibit A1268. 1168 Exhibit A1268. 1169 Exhibit A192. 1170 Exhibit A1268. 1171 Exhibit A1268. 1172 Exhibits A1015. 1173 Exhibit A1268. 1174 Exhibit A769. -- 407 of 647 -- [2025] SASC 59 Stanley J 404 4-4-03 DSO Case Note: Went to the gym tonight. Happy mood. Discussing with other residents.1175 DSO Case Note: Very good mood. Was up early today laughing and joking with officers.1176 5-4-03 DSO Case Note: Appears fine this evening. Talking with friends most of the time.1177 7-4-03 DSO Case Note: Was pretty quiet, although was talking with a nurse for a while.1178 DSO Case Note: Pleased with new videos. Talked a lot with other residents.1179 Individual Management Plan: Has not been any problem. He enjoys the gym weekly and watches videos nightly. He sleeps through the day. Has been compliant with any request.1180 9-4-03 Individual Management Plan: Went to the gym today. Made a phone call to Iran, and was pleased he got through this time1181 10-4-03 Individual Management Plan: Report from B3 supervisor states spends most of his time with Gholem [sic]. Does not cause problems for officers unless his cigarettes are not there on time.1182 15-4-03 Individual Management Plan: Alleged assault on officer – spoken to by MURT Team with behaviour problems.1183 17-4-03 DSO Case Note: Watching Austar most of the evening. Appears in good spirits.1184 20-4-03 Medical Progress Note: Presented complaining of poor sleep with detention 29/12. Long-term problem – wants to cease all medication – Endep/Restavit? Seeking Benzodiazepines – I don’t feel appropriate. Wants to eat. 1175 Exhibit A1268. 1176 Exhibit A1268. 1177 Exhibit A1268. 1178 Exhibit A1268. 1179 Exhibit A1268. 1180 Exhibit A769. 1181 Exhibit A1268. 1182 Exhibit A769. 1183 Exhibit A769. 1184 Exhibit A1268. -- 408 of 647 -- [2025] SASC 59 Stanley J 405 Tramal for headache nocte. To be reviewed by regular doctor.1185 22-4-03 DSO Case Note: Prolific telephone user who mixes well with everyone.1186 23-4-03 DSO Case Note: Excellent behaviour tonight. 1187 30-4-03 DSO Case Note: The [applicant] is a funny guy. He gets along well with staff and detainees. He loves watching Austar.1188 1-5-03 Individual Management Plan – B3 Compound: no issues at present.1189 2-5-03 Medical Progress Notes: Dr Ojah - still having sleeping problems. Yet to sleep since a day ago. Has backache also. On examination fair, vital signs: NAD. Systemic exam: NAD. Diagnosis: insomnia and mechanical back pain. Treatment: Tramadol 50 mg BD, Restavit x2 tabs nocte.1190 2-5-03 DSO Case Note: Was happy as usual and enjoyed the eight ball.1191 3-5-03 Individual Management Plan: Has a good rapport with officers and is always well mannered, in good spirits and interacts well with fellow detainees, with a happy-go-lucky manner.1192 15-5-03 Individual Management Plan: Behaviour is good and appropriate.1193 15-5-03 Individual Management Plan: Has been generally easy going and light hearted in his manner within the compound. He socialises well with other detainees and has an excellent rapport with staff.1194 DSO Case Note: Behaviour is good and [illegible].1195 1185 Exhibit A1004. 1186 Exhibit A1268. 1187 Exhibit A1268. 1188 Exhibit A1268. 1189 Exhibit A1030. 1190 Exhibit A1004. 1191 Exhibit A1268. 1192 Exhibit A769. 1193 Exhibit A1268. 1194 Exhibit A769. 1195 Exhibit A1268. -- 409 of 647 -- [2025] SASC 59 Stanley J 406 16-5-03 DSO Case Note: Well behaved and happy enough.1196 17-5-03 DSO Case Note: Seems happy. Quiet. Well behaved.1197 20-5-03 DSO Case Note: Not much to say tonight. Seems to be interacting with officers a bit less lately, but that is probably due to increase in social activity since the arrival of the last of the Woomera detainees. Is very popular with all detainees. Does not seem to be spending as much time with Reza as he used to.1198 21-5-03 DSO Case Note: Very quiet tonight. Has been in room most of evening.1199 22-5-03 DSO Case Note: Had a large gathering in his room earlier – joking and playing cards. Now out watching TV.1200 23-5-03 Seen by Doctor - Medical Progress Note: Has been complaining of two months pain in back. On examination NAD. Treatment: massaging, Voltaren gel, [illegible], Panadeine if required.1201 23-5-03 DSO Case Note: Normal self. Watching TV, playing pool, playing cards in room. Still communicating well with staff.1202 Individual Management Plan: Is interacting well with detainees and staff within B3 compound. He spends a lot of his time with Reza and Ghorbanali playing pool and watching TV. He had a group of detainees in his room last week playing cards and generally having a good time. He seems to be liked by most of the detainees in the compound and has been polite and compliant in the last week.1203 24-5-03 DSO Case Note: Playing pool with Gholam, Kamran, and Ghorran. Appears good.1204 1196 Exhibit A1268. 1197 Exhibit A1268. 1198 Exhibit A1268. 1199 Exhibit A1268. 1200 Exhibit A1268. 1201 Exhibit A1004. 1202 Exhibit A1268. 1203 Exhibit A769. 1204 Exhibit A1268. -- 410 of 647 -- [2025] SASC 59 Stanley J 407 25-5-03 DSO Case Note: Appears to be in good mood. Talking with Gholam.1205 26-5-03 DSO Case Note: Up at reasonable hour today (1300). Seemed in good mood. Laughing and joking with DSOs and detainees.1206 28-5-03 Seems in good spirits. Came to office asking if he could go to inter compound visit. Was only joking as he is high risk.1207 29-5-03 DSO Case Note: Appears to be ok. Stayed in room for most of night.1208 DSO Case Note: Played pool early tonight.1209 31-5-03 Individual Management Plan: Has been interacting well with detainees and officers of late. He often jokes about his situation as high risk. I feel this is his way of dealing with not being allowed certain privileges. He has been polite and compliant of late and still spends a lot of his time watching TV and playing pool.1210 1-6-03 DSO Case Note: Mixing well with others tonight. Appears fine.1211 2-6-03 Incident Report: Alleged to have grabbed bottle of Valium from nurse’s station.1212 2-6-03 DSO Case Note: Appears fine. Keeping fairly quiet.1213 1205 Exhibit A1268. 1206 Exhibit A1268. 1207 Exhibit A1268. 1208 Exhibit A1268. 1209 Exhibit A1268. 1210 Exhibit A769. 1211 Exhibit A1268. 1212 Exhibits A1044. 1213 Exhibit A1268. -- 411 of 647 -- [2025] SASC 59 Stanley J 408 6-6-03 Seen by doctor. Referred to orthopaedic surgeon for back, shoulder and neck pain.1214 Medical Progress Note - Dr Ojah: Chronic back pain for review. Wants medication for it. Diagnosis – mechanical and stress related. Plan: referred for orthopaedic surgeon Dr Bhatti. Tramal and Endep prescribed.1215 Individual Management Plan: Has been interacting with detainees and on occasion with officers. In general he appears to be very quiet and uninterested of late. He watches a lot of TV and is still spending a lot of time with Gholam but does appear to get as involved as he normally does.1216 7-6-03 DSO Case Note: Quiet for him tonight but appears ok. Played some pool.1217 DSO Case Note: Was watching movies for some time tonight. Friendly towards officers. Appears ok.1218 9-6-03 DSO Case Note: Appears in good spirits. Received medication from nurses’ clinic. Spent most of the night in room 10–13 playing cards, watching TV.1219 10-6-03 DSO Case Note: Stayed in his room most of the night. No problems.1220 14-6-03 Individual Management Plan: Seems to restrict himself to just a few friends. He is not unsocial but does not go out of his way to mix in. He always has a greeting for [DSO] when we meet. His attitude and demands have softened over the last few months.1221 15-6-03 DSO Case Note: Seems to be in good spirits. Received medication from nurses’ clinic.1222 16-6-03 DSO Case Note: Seemed pretty happy tonight. Stayed up late playing cards.1223 1214 Exhibit A769. 1215 Exhibits A1004, A1052. 1216 Exhibit A769. 1217 Exhibit A1268. 1218 Exhibit A1268. 1219 Exhibit A1268. 1220 Exhibit A1268. 1221 Exhibit A769. 1222 Exhibit A1268. 1223 Exhibit A1268. -- 412 of 647 -- [2025] SASC 59 Stanley J 409 17-6-03 DSO Case Note: Has been very friendly and polite as usual. Asked if he could transfer his points to another bank account. [DSO] told him he can’t.1224 18-6-03 DSO Case Note: Very quiet tonight. Did not see him much, though he is usually friendly and polite.1225 Individual Management Plan: Nil mental health issues at this time.1226 19-6-03 DSO Case Note: Playing pool tonight, also shared jokes while waiting for his medication. Appears fine.1227 20-6-03 DSO Case Note: Appears fine. Hasn’t been up much tonight.1228 Individual Management Plan: No issues. He is not seen out and about that much of late but it has been cold at night and most detainees keep inside. Staff are happy enough with his behaviour.1229 21-6-03 DSO Case Note: Appears ok. Playing pool most of the night with others.1230 22-6-03 DSO Case Note: Appears ok. Was quiet tonight. Slept most of the first half of shift then spent second half in room watching TV.1231 23-6-03 DSO Case Note: Was informed by the nurse tonight that all amitriptyline was discontinued for all detainees. He took the information rather well, considering, and the nurse informed him that the doctor would reassess him tomorrow.1232 25-6-03 DSO Case Note: Only saw the applicant a couple of times. Says hello to [DSO] every time [DSO] is there. No problems tonight.1233 1224 Exhibit A1268. 1225 Exhibit A1268. 1226 Exhibit A769. 1227 Exhibit A1268. 1228 Exhibit A1268. 1229 Exhibit A769. 1230 Exhibit A1268. 1231 Exhibit A1268. 1232 Exhibit A1268. 1233 Exhibit A1268. -- 413 of 647 -- [2025] SASC 59 Stanley J 410 27-6-03 DSO Case Note: Playing cards most of the night. Polite and friendly as always.1234 28-6-03 DSO Case Note: Out and about earlier, then in room playing cards until late.1235 Individual Management Plan: Has been a little quieter than usual this week but he is still interacting. He seems to spend a lot more time in his room stating that he does not like the cold. He has been seen regularly playing cards with other detainees in the compound. He has rarely come to the officers’ station during the week.1236 29-6-03 Was seen in clinic at 1700. He was playing soccer and injured his left wrist. His hand flexed backwards by the soccer ball. Very painful at focal point: scaphoid. RICE. Capadex x2 given. Can have six hourly. Neurovascular orbs satisfactory. Wrist bandaged imposition of holding glass. Discussed with Dr Ojah, happy with initial treatment. The applicant is to be sent to PAH for x-ray in the morning. Neurovascular observations to continue overnight. Was asked if he had any pain – no complaints – bandage remains in situ.1237 30-6-03 Intel report submitted as 13 people in Room 28 including the applicant alleged to have appeared to be intoxicated. Medical Progress Notes: Was seen this morning. Administered pain relief. Neurovascular observations satisfactory. Decreased mobility in thumb (painful ++ to move). Boxing glove bandage. Arm put in sling, awaiting x-ray.1238 Individual Management Plan B3: Self-paced education pack given to the applicant.1239 1-7-03 Incident Report: Taken to hospital for x-ray to wrist.1240 1234 Exhibit A1268. 1235 Exhibit A1268. 1236 Exhibit A769. 1237 Exhibits A1059, A1047, A1004, A769, A1061. 1238 Exhibit A1004, A1065. 1239 Exhibit A1071. 1240 Exhibit A1081. -- 414 of 647 -- [2025] SASC 59 Stanley J 411 DSO Case Note: Very quiet tonight. Hardly seen. Received medication from nurses’ clinic 1241 2-7-03 DSO Case Note: Did not see a lot of the applicant tonight. Received medication from nurses’ clinic.1242 3-7-03 DSO Case Note: Came up to officers laughing and joking.1243 DSO Case Note: Played in a very high-pressure game of soccer tonight. New goals were put to good use.1244 Individual Management Plan: No mental health issues at present.1245 4-7-03 Medical Progress Notes: Medical officer called away to urgent care – appointment rescheduled.1246 5-7-03 DSO Case Note: Have not seen him very much. Spent most of the day in bed.1247 6-7-03 DSO Case Note: Went for inter-compound visit and appears happy enough about going to his visits 1248 7-7-03 DSO Case Note: Was happy and appears positive when talking with officers at officers’ station tonight.1249 8-7-03 DSO Case Note: Appeared positive when talking with officers.1250 11-7-03 DSO Case Note: Appears in good spirits tonight. Polite when visiting … at office. Seems ok.1251 12-7-03 DSO Case Note: Has been in a good mood tonight. Received some mail tonight. Appears fine.1252 1241 Exhibit A1268. 1242 Exhibit A1268. 1243 Exhibit A1268. 1244 Exhibit A1268. 1245 Exhibit A769. 1246 Exhibit A1004. 1247 Exhibit A1268. 1248 Exhibit A1268. 1249 Exhibit A1268. 1250 Exhibit A1268. 1251 Exhibit A1268. 1252 Exhibit A1268. -- 415 of 647 -- [2025] SASC 59 Stanley J 412 13-7-03 DSO Case Note: Communicating well with staff.1253 16-7-03 DSO Case Note: Slept a lot and stuck to himself. Had a brief chat about Pink Floyd.1254 17-7-03 Individual Management Plan: Seems to be keeping to himself. Communicates well with staff. Is very compliant. Likes to have a joke on the odd occasion.1255 18-7-03 Individual Management Plan: Refused to attend the doctor’s clinic.1256 19-7-03 DSO Case Note: Came asking for his letters. He was quiet and in a good mood.1257 19-7-03 Individual Management Plan: Has not required mental health intervention (Lou Leol RN).1258 22-7-03 Answers [DSOs] and speaks when [DSOs] speak to him. Otherwise he is quiet and unassuming.1259 23-7-03 DSO Case Note: Came to officers’ station to put in a request to exchange broken thong. Was positive.1260 24-7-03 DSO Case Note: Has been a little bit quieter last two nights. [DSO] asked him tonight if everything is ok. Said he was ok.1261 25-7-03 DSO Case Note: Wasn’t as quiet tonight. He came up to the office for a fair bit. He was polite when asking for things from officers. He has been no trouble tonight.1262 26-7-03 DSO Case Note: Has been a bit more talkative tonight. Has been no worries.1263 26-7-03 DSO Case Note: Was quiet but settled in good mood.1264 1253 Exhibit A1268. 1254 Exhibit A1268. 1255 Exhibit A769. 1256 Exhibit A769. 1257 Exhibit A1268. 1258 Exhibit A769. 1259 Exhibit A1268. 1260 Exhibit A1268. 1261 Exhibit A1268. 1262 Exhibit A1268. 1263 Exhibit A1268. 1264 Exhibit A1268. -- 416 of 647 -- [2025] SASC 59 Stanley J 413 28-7-03 DSO Case Note: Was very quiet tonight. Spent a bit of time on the pay phone, otherwise mostly inside rooms of friends.1265 29-7-03 DSO Case Note: Quiet and polite. Received medication and had visitors tonight. Responds well to conversation.1266 30-7-03 DSO Case Note: Has been quite positive lately talking and joking with officers.1267 Individual Management Plan: The only issue is the ongoing drama of the thongs. Always polite with [DSO’s] dealings with him, even if he is starting to understand that no means no, which is a vast improvement from previous times.1268 31-7-03 DSO Case Note: Collected his mail. Was polite but quiet.1269 1-8-03 DSO Case Note: Was quiet as normal. Asked officers for mail. Was polite.1270 2-8-03 Dr Ojah - Came for review of back pain, wants to know when he will be reviewed, wants medications. Plan: told he will be seen next week by Dr Bhatti. Treatment: Voltaren 50mg x1 BD, … 150mg BD 50 mg, both for 1 week. Referral letter to be changed to Dr Bhatti’s name.1271 2-8-03 DSO Case Note: Was his usual quiet, contented self.1272 3-8-03 DSO Case Note: Quiet as usual. Interacts with other detainees. Cheerful during visits.1273 4-8-03 Applicant refused to attend appointment with Orthopaedic Surgeon.1274 DSO Case Note: Quiet again, asked if he had any mail. Interacts well with other detainees.1275 1265 Exhibit A1268. 1266 Exhibit A1268. 1267 Exhibit A1268. 1268 Exhibit A769. 1269 Exhibit A1268. 1270 Exhibit A1268. 1271 Exhibit A769, A1098. 1272 Exhibit A1268. 1273 Exhibit A1268. 1274 Exhibit A1099. 1275 Exhibit A1268. -- 417 of 647 -- [2025] SASC 59 Stanley J 414 5-8-03 Medical Progress Notes: Bandaged. Patient didn’t come… No referral... No specific complaint.1276 5-8-03 Individual Management Plan: Has been compliant. Always speaks with respect towards officers.1277 6-8-03 DSO Case Note: Started to get very annoyed with this welfare clothing issue a pair of thongs has dragged on for several weeks. Could become a problem.1278 7-8-03 DSO Case Note: Participated in a wake for Ali.1279 8-8-03 DSO Case Note: Appears in good spirits, kept very quiet tonight. Came to the office a couple of times.1280 The applicant’s application to the High Court for special leave to appeal is dismissed.1281 11-8-03 Incident Reports and Medical Progress Note: Called to medical CERT in Blue 3 rec room at 0045. The applicant was found surrounded by fellow detainees, supine on floor, skin ashen ++, hot and clammy. Conscious with good airway. Informed by detainees that he was watching TV, sitting on a chair. He commenced shaking and slipped to the floor. On examination placed in left lateral position. Maintained airway and reassured. Pulse steady, strong and regular 76. Physically withdrew from physical touch, Appeared confused, looking around and uncooperative. Refused to go to medical by standing up and walking unsteadily with other detainees from room. Due to aggressive behaviour he was allowed to return to room. On examination in room detainee more responsive and verbally cooperative. Stated he felt better, said ‘thank you,’ and appeared totally orientated. He was asked if he had taken anything and he stated ‘a tablet’. When asked again he said 2 tablets, 2 hours ago. Informed that officers would be observing him every five minutes, and nurse would return every half-hour. Left him settled on floor of room with two detainees watching him. Incident form completed.1282 1276 Exhibit A1098. 1277 Exhibit A769. 1278 Exhibit A1268. 1279 Exhibit A1268. 1280 Exhibit A1268. 1281 Exhibit A1111. 1282 Exhibits A1113, A1098, A769. -- 418 of 647 -- [2025] SASC 59 Stanley J 415 DSO Case Note: Payam suffered what appeared to be a seizure, CERT was called, refused to go to medical. Later chatter with friends in various rooms.1283 Individual Management Plan: Appeared to have a seizure in the compound tonight. Allegedly took an overdose of Tramal earlier this morning. Commenced on HRAT after mental health review (Lou Leol R/N).1284 Placed on HRAT 5/60 visual obs until nurse satisfied of no further problems. Stated he had “taken two tablets two hours ago” would not elaborate and refused to go to medical. The exact cause of this incident is unknown. After being reviewed the applicant’s HRAT observations remain as a precautionary measure but have been downgraded to 60/60 observations.1285 ACM medical progress notes: Reviewed post overdose last evening [sic - early morning]. Reports no self-harm/suicide intent. Pleasant, reactive. Reported took five tablets and denies possession of any further tablets. Reports just wanted to sleep, no intent to self-harm. Placed on… on hourly observations.1286 DSO NOTE: Spent evening socialising. Appears well enough though attended nurses station regarding bruising around mouth received when detainees ‘assisted’ him during his recent seizure.1287 12-8-03 Medical Progress Notes: Check-up after alleged overdose. Obs satisfactory. BP 100/60, pulse 64, pupils equal and reacting. States he feels okay. Eating/drinking as usual. Medical Progress Notes: Reviewed at HRAT meeting. Placed on RTP on 60/60 HRAT obs.1288 14-8-03 Medical Progress Notes: Mental health review today in B3. The applicant was lying on his bed. He reported that he was feeling fine and had no current issues or concerns. No feelings of self-harm or suicidal ideations. Continues to 1283 Exhibit A1268. 1284 Exhibit A769. 1285 Exhibit A769. 1286 Exhibits A1114, A1098, A1118. 1287 Exhibit A1268. 1288 Exhibits A1098, A1121, A1149, A769. -- 419 of 647 -- [2025] SASC 59 Stanley J 416 report that he only wanted to sleep and had no intention of dying. For review tomorrow.1289 15-8-03 DSO Case Note: Seems fine tonight. Very talkative with [DSO] and has been no problem.1290 Individual Management Plan: HRAT review. Settled. Going well. Removed from HRAT obs (Lou Leol R/N).1291 Medical Progress Notes; R/V in compound. Warm, reactive, looks well physically. Denies self harm ideation. Officers report nil concerns.1292 16-8-03 The applicant has been fine tonight. Came off observations during the day and was happy about it too.1293 16-8-03 The applicant has been fine the last couple of nights. He came off HRAT on 15.8.03 and he told [DSO] he was pleased as he would not be disturbed when asleep. A polite person most times but can be demanding from time to time.1294 18-8-03 Seen by orthopaedic surgeon.1295 20-8-03 The applicant made a complaint he had been short changed in relation to work he had undertaken on 16 August 2003.1296 The applicant submitted a request for a clock radio.1297 21-8-03 Is expecting news in the mail about his case. Is nervous but appears to be in good spirits1298 22-8-03 Mechanically restrained with metal handcuffs and taken from Blue 3 to Port Augusta Hospital for medical appointment and medical imaging. Handcuffed for duration of escort from 16.17-16.54 and then again from 17.19 until returned to Baxter at 17.35.1299 Upon his return to the Centre 1289 Exhibit A1098, A1151, A769. 1290 Exhibit A1268. 1291 Exhibit A769. 1292 Exhibit A1154. 1293 Exhibit A1268. 1294 Exhibit A769. 1295 Exhibits A769, A1154. 1296 Exhibit A1159. 1297 Exhibit A1160. 1298 Exhibit A1268. 1299 Exhibit A1165, A769, A1166. -- 420 of 647 -- [2025] SASC 59 Stanley J 417 he was medically examined as per procedures with nil injuries found.1300 24-8-03 Individual Management Plan: Has appeared happy of late until his friend Gholam Reza was removed from the compound on the 23rd to return to his country. These two have been almost inseparable over the past months. The applicant interacts well with both detainees and officers and has been no problem of late.1301 26-8-03 DSO Case Note: Quiet tonight. Asked officers politely to mark his work sheet.1302 28-8-03 DSO Case Note: Very polite and friendly, always says hello and seems fine.1303 29-8-03 Seen by orthopaedic surgeon. No pain in wrist and still complaining of backache on/off. No physiotherapy yet. Carry on treatment plan… 1304 Medical Progress Notes: Dr Bhatti X-ray NAD. Still waiting for physio. Plan: carry on symptomatic analgesia, stop Celebrex if not helping – to be reviewed by GP visiting. Carry on physiotherapy (on waiting list )…1305 DSO Case Note: The applicant has a weird sense of humour. Always joking with officers. Appears happy.1306 30-8-03 DSO Case Note: Has been talkative and polite and has no problems I am aware of. Has spent a lot of time on the phone.1307 1300 Exhibit A769. 1301 Exhibit A769. 1302 Exhibit A1268. 1303 Exhibit A1268. 1304 Exhibit A769. 1305 Exhibits A1154, A769. 1306 Exhibit A1268. 1307 Exhibit A1268. -- 421 of 647 -- [2025] SASC 59 Stanley J 418 31-8-03 DSO Case Note: Did not see him around the compound very much tonight. Refused a visit at visitor centre tonight. Appears fine.1308 Individual Management Plan: Has not required further input from MHT to date (Matthew Roberts Mental Health Nurse).1309 1-9-03 DSO Case Note: Saw him throughout the night. Appears to be fine.1310 DSO Case Note: Always returns greetings. His mood had been generally okay. Did refuse to go to visit centre on 31.8.03.1311 2-9-03 DSO Case Note: Appears to be socialising well with other detainees.1312 4-9-03 DSO Case Note: Did his work tonight. Observed joking with other detainees and cleaning room. Appeared positive.1313 Individual Management Plan: Case Management Review meeting. Did not attend education during August. Has appeared in a generally happy mood since being removed from HRAT although was not too happy when his close friend Gholam Reza was repatriated. He always is willing to speak to officers and mixes well with other detainees.1314 Individual Management Plan: He refused to attend visits on 31.8.03 however this is the only incident noted. Remains compliant and has no apparent issues. Seen by orthopaedic surgeon X2, with back ache and injured left wrist, attended radiology appointment. Refused to attend an orthopaedic appointment earlier in the month (Shirley Ellison Case Manager).1315 5-9-03 DSO Case Note: At officer’s station for mail. Polite and appears happy. Communicates well with officers.1316 1308 Exhibit A1268. 1309 Exhibit A769. 1310 Exhibit A1268. 1311 Exhibit A769. 1312 Exhibit A1268. 1313 Exhibit A1268. 1314 Exhibit A769. 1315 Exhibit A769. 1316 Exhibit A1268. -- 422 of 647 -- [2025] SASC 59 Stanley J 419 The applicant remains on the High Risk Detainee list. As a consequence he is limited in his movements and activities within Baxter.1317 Medical Progress Notes: Booked for Drs appointment but did not attend. Rebooked.1318 6-9-03 DSO Case Note: Spent time socialising with other detainees, played some 8- ball and watched some TV. Appears well.1319 7-9-03 Individual Management Plan: After perusing the case notes and based upon general observations, the applicant appears to be in good spirits considering his circumstances. He interacts well with both staff and residence and stays up till the early hours of the morning socialising with other residence and officers. Nothing further to report.1320 8-9-03 DSO Case Note: Up late as usual socialising with other detainees.1321 9-9-03 DSO Case Note: Played pool and visited with friends. Always goes to bed late (0500–0600). Likes to laugh and joke.1322 10-9-03 DSO Case Note: Have only seen the applicant out of his room for about 10 minutes. [DSO] thinks he has the flu also. He still was polite and friendly.1323 11-9-03 Medical review: Coughing, sore throat, headache, backache. On examination healthy and oriented. Throat inflamed and red right tonsil enlarged. Amoxil and analgesia prescribed.1324 DSO Case Note: Has been very talkative tonight. Received medications from nurse during night. Still has a sense of humour.1325 1317 Exhibit A1183. 1318 Exhibit A1154. 1319 Exhibit A1268. 1320 Exhibit A769. 1321 Exhibit A1268. 1322 Exhibit A1268. 1323 Exhibit A1268. 1324 Exhibits A1154, A1268, A637. 1325 Exhibit A1268. -- 423 of 647 -- [2025] SASC 59 Stanley J 420 12-9-03 DSO Case Note: Appears to be in good spirits, spent most of night indoors moving from one gathering to another.1326 13-9-03 DSO Case Note: As usual, witty and joking. Had visitors from other compounds.1327 14-9-03 DSO Case Note: The applicant had a haircut tonight. He is not well but still has time for a joke.1328 14-9-03 Individual Management Plan: The applicant is always joking and friendly with officers. He has not been well this week but still manages to have a joke. He still spends most of the nights socialising and goes to bed early in the morning. He also had a haircut this week.1329 15-9-03 DSO Case Note: Spent time socialising with other detainees out and about different rooms, rec room, mess. Appears positive.1330 16-9-03 DSO Case Note: As usual, chatting and joking with officers. No apparent problems.1331 17-9-03 DSO Case Note: Spoke with the applicant about his haircut. [DSO] said it made him look younger. He was surprised by this comment but he laughed afterwards.1332 18-9-03 DSO Case Note: Saw him floating around the compound. Appeared to be fine. No outward signs of any issues.1333 19-9-03 DSO Case Note: At mess for dinner – placid.1334 A further risk assessment meeting is held. There is no change to the applicants risk status.1335 20-9-03 DSO Case Note: Has been very upbeat and happy over the last few days.1336 1326 Exhibit A1268. 1327 Exhibit A1268 1328 Exhibit A1268. 1329 Exhibit A769. 1330 Exhibit A1268. 1331 Exhibit A1268. 1332 Exhibit A1268. 1333 Exhibit A1268. 1334 Exhibit A1268. 1335 Exhibit A1197. 1336 Exhibit A1268. -- 424 of 647 -- [2025] SASC 59 Stanley J 421 21-9-03 DSO Case Note: Came to the mess late … dinner, very polite and highly sociable tonight. Had a good chat with [DSO].1337 21-9-03 Individual Management Plan: The applicant’s trimmed beard and haircut make him look younger and much more respectable than previously. He remains respectful and polite to officers. Stays up late with friends and enjoys the occasional game of pool.1338 22-9-03 DSO Case Note: Kept to himself most of the night. Friendly and polite. Enjoyed watching a snooker competition on TV. Spoke to [DSO] about this. Had a laugh and insisted he could teach [DSO] ‘trick shots’.1339 23-9-03 Medical Progress Notes B3: ‘physiotherapy: 1. complaining of upper lumbar back pain rear radiating to right side. Nil trauma/lived/fall. I rescued last 6 to 7 months. At night: worse. Nil previous history of lower back pain. Aggravating factors: sitting, laying. Nil problem with cough’s/sneeze. Radiation complained of: pins and needles to posterior right lower lumbar area. Not past the knee. Stiffness in the morning. 2. Wrist: aggravated by pressure and wrist extension. Area of pain: right sided T6 to 9. right leg referral not related to back pain. Referred wrist improving.1340 DSO Case Note: always has his sense of humour with him, joking around with [DSO] and detainees, playing eight-ball and seems as happy as can be expected.1341 24-9-03 Medical Progress Notes: Has sore throat, cough, running nose, inflamed throat, enlarged tonsils, chest clear. Diagnosis: tonsillitis.1342 DSO Case Note: Looks a bit sick tonight. Received medication for his cold. Also went to the medical centre during the day. 1343 1337 Exhibit A1268. 1338 Exhibit A769. 1339 Exhibit A1268. 1340 Exhibits A1154, A637. 1341 Exhibit A1268. 1342 Exhibits A1154. 1343 Exhibit A1268. -- 425 of 647 -- [2025] SASC 59 Stanley J 422 26-9-03 DSO Case Note: Very reserved this evening, visited nurse, involved in compound gathering within compound (three detainees) in and out of rooms visiting most of night 1344 27-9-03 DSO Case Note: Attended officers’ station to check for mail – appeared positive informed of compound transfer today.1345 28-9-03 28-9-03 Individual Management Plan: Voiced some concern and refused the proposed compound move.1346 DSO Case Note: Refused compound shift. Appears okay.1347 21-9-03– 28-9-03 Individual Management Plan: [DSO] Had a game of pool with the applicant on the 28.9.03 after he arose out of bed around midday. He appears in good spirits considering his circumstances. No unusual behaviour patterns observed during the specified time period, however he voiced some concern and refused the intended compound move.1348 29-9-03 DSO Case Note: Has been a little down since receiving the news about compound closing but appears to be fine.1349 30-9-03 DSO Case Note: Spent most of the shift between his room and the mess. Played pool with him. Asked him about moving. He said that he doesn’t want to move to W3 because of the families in the compound and would go if they left.1350 1-10-03 DSO Case Note: Spent time in his room but spent rest of the night in the mess with the rest of the compound 1351 2-10-03 DSO Case Note: Was talking about “Pink Floyd” with [DSO] in a good mood. Was keen to practice English tonight.1352 1344 Exhibit A1268. 1345 Exhibit A1268. 1346 ExhibitA769. 1347 Exhibit A1268. 1348 Exhibit A769. 1349 Exhibit A1268. 1350 Exhibit A1268. 1351 Exhibit A1268. 1352 Exhibit A1268. -- 426 of 647 -- [2025] SASC 59 Stanley J 423 3-10-03 DSO Case Note: Played some pool earlier in the night with other detainees. Said hello at start of shift. Was polite and seems fine at the moment.1353 4-10-03 DSO Case Note: Polite and talkative tonight. Detainee Mehdi BX172 from W2 came to visit him during the night. Still has not received his clock radio from property but has remained calm and patient. Appears to be fine.1354 5-10-03 DSO Case Note: Quiet tonight. He has been awake more in day times recently and retiring early.1355 6-10-03 DSO Case Note: Watched soccer and played pool with other detainees. His usual polite self, no issues except alarm clock.1356 21-09-03 – 06-10-03 Individual Management Plan: After some interaction and browsing the case notes, appears to be well and is interacting and communicating with officers well. Polite and talkative as always. Has been spending more time out during the daytime than usual and more often is going to bed early. This is unusual. Has only one issue at the moment, an alarm clock ordered several weeks ago. Is still waiting for this item. Has made no trouble or threats as of yet and continues to be patient and understanding about the matter.1357 7-10-03 The applicant is moved from B3 to W3.1358 DSO Case Note: Appears in good spirits. Played several games of pool with friends. Was still up on his own at 0400 hours. 1359 DSO Case Note: Settled into W3 – no concerns.1360 Incident Report: Relocation from B3 to W3 without incident.1361 1353 Exhibit A1268. 1354 Exhibit A1268 1355 Exhibit A1268. 1356 Exhibit A1268. 1357 Exhibit A769. 1358 Exhibits A1214, A1210. 1359 Exhibit A1268. 1360 Exhibit A1268. 1361 Exhibit A769, A1210. -- 427 of 647 -- [2025] SASC 59 Stanley J 424 9-10-03 DSO Case Note: Very quiet, is keeping to himself.1362 Individual Management Plan: The applicant appears to have moved into W3 Compound okay, talking with officers and detainees.1363 10-10-03 DSO Case Note: The applicant was saying tonight that [the translation of] his name means “happy message”.1364 11-10-03 DSO Case Note: Has settled in nicely. Made friends with other guys from Red 1 compound.1365 12-10-03 DSO Case Note: Has been completing his jobs as a mess cleaner. He says hello and is polite.1366 13-10-03 DSO Case Note: Spent most of night with Mohammad. Appeared okay.1367 14-10-03 DSO Case Note: Spent most of the day in bed. Came out of his room about 1500 and had something to eat.1368 16-10-03 DSO Case Note: Was sitting at the officers’ station joking with staff tonight.1369 17-10-03 DSO Case Note: Helped Mohammad with his job tonight.1370 Individual Management Plan: Has found a good friend in Mohammad. They have been hanging around each other. They also help clean the rec room.1371 20-10-03 DSO Case Note: Has been a little down the last two shifts. Is complaining of sinus. Has been seen by the nurse. After seeing the nurse he went back to his room. 1372 21-10-03 DSO Case Note: Spent the night talking in the company of Mohammad and Abdul. Seems okay.1373 1362 Exhibit A1268. 1363 Exhibit A769. 1364 Exhibit A1268. 1365 Exhibit A1268. 1366 Exhibit A1268. 1367 Exhibit A1268. 1368 Exhibit A1268. 1369 Exhibit A1268. 1370 Exhibit A1268. 1371 Exhibit A769. 1372 Exhibit A1268. 1373 Exhibit A1268. -- 428 of 647 -- [2025] SASC 59 Stanley J 425 Individual Management Plan: Seen in medical centre. No major mental health issues voiced at present time (Matthew Roberts Mental Health Nurse).1374 22-10-03 Individual Management Plan and Medical Progress Notes: Had x-ray of his back for pain about four months ago but has not known the results. Patient reckons he went for x-ray but none can be found. Explained to the patient that we shall continue looking for the files.1375 DSO Case Note: Spent time entertaining guests from other compounds. Seems happy and polite and drinking tea. 1376 23-10-03 DSO Case Note: Spent the night in the company of his friends. Seemed to be okay.1377 24-10-03 DSO Case Note: Spent most of the night playing cards with others. Appeared okay.1378 25-10-03 DSO Case Note: Seems well. Spends a lot of time with Mohammad. He was happy playing pool with him tonight.1379 26-10-03 DSO Case Note: Spoke to him throughout the shift. He explained to me why Saeed, Peyman and Ali were in the Management Unit. Saw him later watching soccer with other detainees. He appears to be happy.1380 26-10-03 Individual Management Plan: The applicant has been inconspicuous this past week. He has spent a lot of his time with Mohammad BX152 and Mohammad BX168 in room 50. He has played a little pool but not as frequent as in the past. He is not as conversant as he has been either. He tells me he is fine and has no issues.1381 28-10-03 DSO Case Note: Spent a lot of time in Mohammad BX152’s room. He was polite when [DSO] did speak with him.1382 1374 Exhibit A769. 1375 Exhibits A769, A1154. 1376 Exhibit A1268. 1377 Exhibit A1268. 1378 Exhibit A1268. 1379 Exhibit A1268. 1380 Exhibit A1268. 1381 Exhibit A769. 1382 Exhibit A1268. -- 429 of 647 -- [2025] SASC 59 Stanley J 426 29-10-03 DSO Case Note: Seems to be quite cheerful. Spends time with Mohammad BX152.1383 30-10-03 DSO Case Note: Has attended for one session of competition sport for the month of October (Nicole Hutchinson ASO Education).1384 31-10-03 DSO Case Note: Polite and cheerful when talking at office. 1385 DSO Case Note: Appears to be happy. Was polite. 1386 1-11-03 DSO Case Note: Seems okay. He was at the officers’ station asking if he was on high risk. He was told by officers that he is now medium risk within the centre.1387 2-11-03 DSO Case Note: Appeared well tonight. He seemed happy to see detention officer C Grantham. Was sighted walking around in the early hours of the morning.1388 3-11-03 DSO Case Note: received several phone calls and appeared in good spirits. He is always polite.1389 4-11-03 DSO Case Note: The applicant swept the breezeway tonight. Was good to see. [DSO] had to ask him, but he was very compliant.1390 5-11-03 DSO Case Note: Seemed to enjoy playing a game of soccer with about one dozen other detainees.1391 6-11-03 DSO Case Note: Went on visit to W2. Came back happy and cheery.1392 Individual Management Plan: No new medical issues.1393 7-11-03 DSO Case Note: Went on visits tonight. Seemed very happy when he returned.1394 1383 Exhibit A1268. 1384 Exhibit A769. 1385 Exhibit A1268. 1386 Exhibit A1268. 1387 Exhibit A1268. 1388 Exhibit A1268. 1389 Exhibit A1268. 1390 Exhibit A1268. 1391 Exhibit A1268. 1392 Exhibit A1268. 1393 Exhibit A769. 1394 Exhibit A1268. -- 430 of 647 -- [2025] SASC 59 Stanley J 427 11-11-03 Medical Progress Notes: Refused to attend his appointment.1395 DSO Case Note: Had soccer match in W2 tonight. Returned very happy as they had won.1396 12-11-03 DSO Case Note: Out to visit tonight in good spirits.1397 13-11-03 DSO Case Note: Saw him throughout the shift. Filled in canteen form. Appeared to be fine.1398 14-11-03 Memorandum to DIMIA Business Manager from Dr Swao confirms applicant in good health but notes he suffers from chronic back pain and is on analgesic and anti-inflammatory medication and he has self-harmed and overdosed on medication in the past.1399 DSO Case Note: Has regular visitors and goes to W1 and W2 in the evenings as well. Appears happy.1400 15-11-03 DSO Case Note: The applicant had a haircut and shave tonight. Looks a lot better.1401 Individual Management Plan: The applicant spends very little time around officers. He is polite whenever he comes to the officers’ station and is friendly in general. Spending a lot of time with Mohammad BX152 and is seen laughing with other detainees.1402 16-11-03 DSO Case Note: Seems okay. He had a few visitors during inter-compound visit times and appeared happy.1403 17-11-03 DSO Case Note: Seen at headcount. He was then at the office at about 2300. Appears okay.1404 1395 Exhibit A1154. 1396 Exhibit A1268. 1397 Exhibit A1268. 1398 Exhibit A1268. 1399 Exhibit A1236. 1400 Exhibit A1268. 1401 Exhibit A1268. 1402 Exhibit A769. 1403 Exhibit A1268. 1404 Exhibit A1268. -- 431 of 647 -- [2025] SASC 59 Stanley J 428 19-11-03 DSO Case Note: Said when he said goodbye to visitor he wanted to move to W1 as W3 was not safe.1405 DSO Case Note: Seemed happy tonight always hanging around Amir BX170, Mohammad BX168 and Mohammad BX152.1406 20-11-03 Seen by doctor.1407 Medical Progress notes: Pain in the right axilla… has been using some cream with little improvement. On examination axillary lymphadenopathy.… and inguinal lymph nodes are not palpable. ? Axillary lymphadenopathy secondary to hair root infection.1408 DSO Case Note: Spent most of the night with Mohammad BX152 and Mohammad Rez BX168.1409 21-11-03 DSO Case Note: Requested cleaning agents. Kept to himself tonight.1410 23-11-03 DSO Case Note: Was awake earlier than normal. He played eight-ball with Mohammad BX168 and Amir BX170 and Hossian BX132.1411 24-11-03 DSO Case Note: The applicant seemed well. He went on an inter-compound visit tonight to W2. He appeared happy on his return. Went straight to his room.1412 25-11-03 DSO Case Note: The applicant came back from visits with red eyes. Was smiling and appeared happy. He had something to eat when he returned.1413 26-11-03 DSO Case Note: Seems well. He was seen walking around the compound with Mohammad BX152. He also went on an inter-compound visit to W1.1414 1405 Exhibit A1268. 1406 Exhibit A1268. 1407 Exhibits A769, A1154. 1408 Exhibits A1154, A769. 1409 Exhibit A1268. 1410 Exhibit A1268. 1411 Exhibit A1268. 1412 Exhibit A1268. 1413 Exhibit A1268. 1414 Exhibit A1268. -- 432 of 647 -- [2025] SASC 59 Stanley J 429 27-11-03 DSO Case Note: Spends time with Mohammad BX168. They seemed to be good friends.1415 28-11-03 Medical Progress Notes: Mental health team nursing note - seen in compound. Presents as bright and reactive. No mental health issues at present. Signed by RPN.1416 DSO Case Note: The applicant was visited by Ehsan BX361. Seemed well and happy. Also in the company of Mohammad BX152.1417 29-11-03 DSO Case Note: Saw him at head count but very little after that. Appeared fine.1418 30-11-03 DSO Case Note: Came to office at lunchtime after he had done his job. Picked up three bags rubbish and then came up to sign for the week. He appeared to be in good spirits.1419 30-11-03 Individual Management Plan: No change to the applicant’s behaviour. Still doesn’t spend a lot of time talking with the officers on post but is always polite on the odd occasion when he does. He spends his time mostly in the company of Mohammad BX168.1420 1-12-03 DSO Case Note: [DSO] sighted the applicant in Mohammad BX152’s room. He appeared happy.1421 2-12-03 The applicant refuses to attend appointment with Dr Ojah.1422 DSO Case Note: Went on visits to W2. Came back smiling and went straight to his room.1423 Individual Management Plan: Not seen by doctor due to time limit rescheduled for 4.12.03.1424 3-12-03 DSO Case Note: Went on visits to W2 tonight. Appeared to be in good spirits. Laughing.1425 1415 Exhibit A1268. 1416 Exhibit A1154. 1417 Exhibit A1268. 1418 Exhibit A1268. 1419 Exhibit A1268. 1420 Exhibit A769. 1421 Exhibit A1268. 1422 Exhibits A1257, A1247. 1423 Exhibit A1268. 1424 Exhibit A769. 1425 Exhibit A1268. -- 433 of 647 -- [2025] SASC 59 Stanley J 430 4-12-03 DSO Case Note: Went to W2 on visits tonight. Came back in a happy mood.1426 Individual Management Plan: Case Management Review Team – seen in compound by MHT. No mental health issues reported. Attended appointment with Dr Swao. No new medical issues. To remain on his plan reviewed next month (Shirley Ellison Case Manager).1427 5-12-03 DSO Case Note: Went to visit W2 again tonight. Was also sighted with the others in Mohammad’s room playing cards.1428 6-12-03 Individual Management Plan: Refused to attend doctor’s appointment.1429 DSO Case Note: Visited W2 again tonight. Seems happy.1430 7-12-03 DSO Case Note: Appeared happy at dinner time.1431 8-12-03 DSO Case Note: Appeared very happy and smiling.1432 9-12-03 DSO Case Note: Quiet night not seen much out of room but spoke with officers and interacted well with other detainees. Appeared positive.1433 10-12-03 DSO Case Note: Visited W2 tonight. Appeared okay.1434 12-12-03 Individual Management Plan: The applicant is a regular visitor to White 2 Compound of an evening. He does not seem to talk to officers much and spends a lot of time with Mohammad BX168. [DSO] saw the applicant tonight and did not seem to want to make eye contact with me. When I did get a look at his eyes, they appeared to be glassy. The applicant seems to have no outstanding issues at this time.1435 1426 Exhibit A1268. 1427 Exhibit A769. 1428 Exhibit A1268. 1429 Exhibits A1258, A769. 1430 Exhibit A1268. 1431 Exhibit A1268. 1432 Exhibit A1268. 1433 Exhibit A1268. 1434 Exhibit A1268. 1435 Exhibit A769. -- 434 of 647 -- [2025] SASC 59 Stanley J 431 13-12-03 DSO Case Note: Watched soccer in rec room. Enjoyed himself. Lots of applauding and yelling.1436 14-12-03 DSO Case Note: Seemed okay tonight. He was seen in a compound during the night and also watched soccer. 1437 15-12-03 DSO Case Note: Went on visits tonight came back very happy.1438 16-12-03 DSO Case Note: Was polite tonight. He seemed well, did not go to bed until the early hours of morning.1439 17-12-03 DSO Case Note: Seemed okay tonight. He was smiling a lot and wanted a letter posted. Was still seen up and about until the early hours.1440 18-12-03 DSO Case Note: Also helped officers remove all mattresses from compound to sterile zone.1441 19-12-03 DSO Case Note: In good spirits. Talkative.1442 20-12-03 DSO Case Note: Up late. Communicative. Appears happy.1443 Individual Management Plan: The applicant is very quiet but always pleasant. He mixes well with the others in the Compound but always seems to keep a distance. He gets on very well with Abdoul and seems to avoid trouble and deflame situations at times.1444 22-12-03 DSO Case Note: Appears more positive lately but less “out and about” than before.1445 23-12-03 DSO Case Note: Very good mood tonight. Discussing Pink Floyd lyrics in detail with D/C Grantham.1446 1436 Exhibit A1268. 1437 Exhibit A1268. 1438 Exhibit A1268. 1439 Exhibit A1268. 1440 Exhibit A1268. 1441 Exhibit A1268. 1442 Exhibit A1268. 1443 Exhibit A1268. 1444 Exhibit A769. 1445 Exhibit A1268. 1446 Exhibit A1268. -- 435 of 647 -- [2025] SASC 59 Stanley J 432 24-12-03 DSO Case Note: Very polite lately. Smiling, laughing with officers. Appears in good health and spirits.1447 25-12-03 DSO Case Note: No problems currently. Smiling and joking with officers.1448 26-12-03 DSO Case Note: Remained in own room and friends not venturing out much.1449 27-12-03 The applicant attends the visitors centre.1450 DSO Case Note: Went on an inter-compound to W1. Came back in good spirits.1451 28-12-03 DSO Case Note: No dramas. Extremely well behaved. Stayed in room most of the evening.1452 Individual Management Plan: Has been up and down with his moods. Very happy come a smiling one minute and then moody and stays in his room. No major dramas. Went for a visit tonight.1453 29-12-03 DSO Case Note: Went on visit to W2. Also came back cheery and happy.1454 30-12-03 DSO Case Note: Had a phone call and Korosh BX221 came to visit him tonight. Polite and in good mood.1455 31-12-03 DSO Case Note: Appeared in good spirits.1456 3-1-04 DSO Case Note: Went on inter-compound visit. Was in positive mood. Appears healthy and positive.1457 1447 Exhibit A1268. 1448 Exhibit A1268. 1449 Exhibit A1268. 1450 Exhibits A1267. 1451 Exhibit A1268. 1452 Exhibit A1268. 1453 Exhibit A769. 1454 Exhibit A1268. 1455 Exhibit A1268. 1456 Exhibit A1268. 1457 Exhibit A1268. -- 436 of 647 -- [2025] SASC 59 Stanley J 433 4-1-04 DSO Case Note: Keeps to himself most the time but appears well.1458 Individual Management Plan: The applicant appears a lot healthier and more positive since his move from B3. He is polite and smiling though keeps to himself a lot. He does his job and will sometimes watch TV in the mess. Overall [DSO is] very pleased with his appearance and more positive attitude.1459 5-1-04 DSO Case Note: Interacts with officers at officers’ station for a short time tonight 1460 6-1-04 Has been keeping mostly to himself although did spend some time speaking with officers at the officers’ station last night.1461 13-1-04 Medical Progress Notes: Unable to sleep three weeks, shifted from Blue 3 to White 3. Was able to sleep 20-21 hrs plays…? Gym. Try Endep 50.1462 4-2-04 – 7-2-04 Personal Management Plan: The applicant appears happy, has been going on inter-compound visits and has been very polite to staff.1463 8-2-04- 14-2-04 Personal Management Plan: The applicant appears fine, is still going on plenty of inter-compound visits and is always polite.1464 15-2-04 - 21-2-04 Personal Management Plan: The applicant has been going on inter-compound visits to Wisteria and always comes back happy.1465 21-2-04 Medical Progress Notes: The applicant attended the nurses' station reporting right testicular pain. Reports no symptoms. Provided analgesia and placed on doctor’s list for review as requested.1466 1458 Exhibit A1268. 1459 Exhibit A769. 1460 Exhibit A1268. 1461 Exhibit A769. 1462 Exhibits A1154, A637. 1463 Exhibit A594. 1464 Exhibit A594. 1465 Exhibit A594. 1466 Exhibit A1154. -- 437 of 647 -- [2025] SASC 59 Stanley J 434 26-2-04 Medical Progress Notes: The applicant attended the medical clinic and reports problems sleeping. He wants to start Endep 50mg. Started and review in one week.1467 27-2-04 Medication Chart: The applicant was prescribed Endep 50g nocte, Nexium 40mg.1468 28-2-04 Nurse-initiated medications: Mylanta tabs one card.1469 29-2-04- 6-3-04 Personal Management Plan: The applicant has been to DIMIA, was seen eating in the mess, mixing with others and receiving phone calls.1470 1-3-04 10:40am – applicant’s room searched. A device believed to be used for smoking contraband was located and confiscated from the applicant.1471 A smoking device was found in the applicant’s room when a room search was conducted. He appeared amused when this item was found in his room.1472 4-3-04 Medical Progress Notes: The applicant attended the medical clinic and reported feeling better. His sleep pattern had improved. Review in one month.1473 7-3-04 Medication Chart: The applicant takes Endep 50g nocte.1474 7-3-04- 13-3-04 Personal Management Plan: A smoking device was found in the applicant’s room on room search. The applicant still appears ok with no issues made with staff.1475 14-3-04- 20-3-04 Personal Management Plan: The applicant appears quiet and annoyed that a video player had been taken from the mess by others.1476 21-3-04- 27-3-04 Personal Management Plan: The applicant appears happy; had a power problem in his room; an officer went and fixed it for him and he was very grateful.1477 1467 ExhibitsA1154. 1468 Exhibit A637. 1469 Exhibit A637. 1470 Exhibit A594. 1471 Exhibits A1352, A1455, 2.4TP1783. 1472 Exhibit A594. 1473 Exhibit A1154 1474 Exhibit A 637. 1475 Exhibit A594. 1476 Exhibit A594. 1477 Exhibit A594. -- 438 of 647 -- [2025] SASC 59 Stanley J 435 23-2-04 The applicant requests a clothing order.1478 25-3-04 Medical Progress Notes: The applicant attends at the medical clinic and complains of epigastric pain after eating (burning). Given Nexium. Told to decrease coffee, alcohol and smoking.1479 29-3-04 The applicant is prescribed Endep 50g nocte, Nexium 40mg. The applicant takes Endep 50g nocte, Nexium 40mg.1480 4-3-04 The applicant attends at the medical clinic reporting he is feeling better and sleep pattern has improved. Review in one month.1481 8-4-04 The applicant takes Endep 50g nocte, Nexium 40mg.1482 15-4-04 Personal Management Plan: The applicant appears happy, has been going on inter-compound visits and has been very polite to staff.1483 Officer Report: The applicant was not involved in the riot, he was in W2 during the time of the riot.1484 21-4-04 Medical Progress Notes: The applicant is seen in red compound – complaining of fever and general aches and pains for 3 to 4 days. Treatment: Aspalgin x2 gargle and placed on doctor’s list.1485 22-4-04 Medical Progress Notes: The applicant attends at the medical clinic and seen by the doctor. He complains of feeling hot every day.1486 30-4-04 Personal Management Plan: The applicant seems happy, is still going on his visits and is compliant.1487 1478 Exhibit 2.4TP2469 1479 Exhibit A1154. 1480 Exhibit A637. 1481 Exhibit A1154. 1482 Exhibit A637. 1483 Exhibit A594. 1484 Exhibit A1301. 1485 Exhibit A1303. 1486 Exhibits A1303.. 1487 Exhibit A594. -- 439 of 647 -- [2025] SASC 59 Stanley J 436 11-5-04 The applicant requests a pillow and a blanket as he is cold at night.1488 13-5-04 Kerry Finlayson (Fitzroy Learning Network) writes to Senator Vanstone in support of the applicant’s visa application.1489 13-5-04 Nurse-initiated medication: Demazin 12hr 1 tab, Panadol 2 tabs1490 13-5-04 The applicant submits a canteen order form.1491 16-5-04 IHMS Progress Notes: IHMS called to see the applicant who was complaining of sore throat and headache. The applicant says he has had these symptoms for one month. Temperature checked: 38.7. Given 2 Aspalgin to gargle, advised to call a.m. nurse to be reviewed in four hours, and to increase oral fluid intake. Requests doctor’s appointment, which has been made.1492 IHMS Progress Notes: The applicant attends at the medical clinic, is seen again, is much brighter this afternoon.1493 IHMS Progress Notes: The applicant attends at the medical clinic complaining of sore throat and headache. Given two Panadeine and Senega and Ammonia 15 mls. Will follow up for the next day, advised to drink fluids copiously.1494 Medication Record: The applicant takes Endep 50mg nocte, Aspalgin.1495 Personal Management Plan: The applicant has been on inter- compound visits regularly, on occasions returning with Ehsan Bx 1818, or going on his inter-compound visits with Ehsan. He has struck up a friendship with Doi Bx 1783 and they spend time with Mohammad Bx 1738. His mood has been good and he is polite with officers and others.1496 1488 Exhibit A1311. 1489 Exhibit A1312. 1490 Exhibit A637. 1491 Exhibit 2.4TP2496, 2.4TP2497. 1492 Exhibit A1314. 1493 Exhibit A1315. 1494 Exhibit A1315. 1495 Exhibit A637. 1496 Exhibit A594. -- 440 of 647 -- [2025] SASC 59 Stanley J 437 19-5-04 Medical Progress Notes: IHMS attendance with the applicant complaining of a cough with yellowish phlegm for the last two months. Gives a history of fever on alternate nights.1497 20-5-04 Seen by Dr F Ahmad c/o pain in right eye.1498 25-5-04 IHMS Progress Notes: The applicant is seen in compound. He complaints of pain/deafness in his right ear. Cerumel drops commenced.1499 28-5-04 IHMS Progress Notes: The applicant attends the medical clinic, still complaining of pain in right ear. On examination wax ++++. Has been using waxsol, can continue with same. Appointment made the GP. Also needs to have recent blood tests reviewed.1500 31-5-04 Personal Management Plan: The applicant gets along well with almost everyone, keeps active, has been mixing socially, has been to education and goes on fairly regular inter- compound visits. He appears to be his normal self.1501 1-6-04 The applicant makes a second request for pillows and blankets.1502 2-6-04 IHMS Progress Notes: The applicant attends at the medical clinic complaining of earache in his right ear for the last 3-4 days. His cough has improved. On examination his right ear canal is inflamed, and left ear canal inflamed. Diagnosis: otitis externa, ear drops given.1503 4-6-04 Officer Report: The applicant requested to enter nurse's station to be weighed during medication time. When request denied he got angry and verbally abusive.1504 13-6-04 Personal Management Plan: The applicant is usually a polite person to talk with. He had a bit of a problem on the 7th about wanting to post a letter during the early hours of that morning but was informed that letters have to be posted during the 1497 Exhibits A1314, A1315 1498 Exhibit A1303. 1499 Exhibits A1314, A1315. 1500 Exhibits A1314, A1315. 1501 Exhibit A594. 1502 Exhibit A1317. 1503 Exhibits A1314, A1315. 1504 Exhibit A1318. -- 441 of 647 -- [2025] SASC 59 Stanley J 438 day. He does go on inter-compound visits most nights and likes to watch the soccer on TV.1505 16-6-04 IHMS Progress Notes: The applicant attends at the medical clinic. Seen by GP for ear pain.1506 17-6-04 IHMS Progress Notes: The applicant attends the medical clinic. He rejects Cerumol drops from the nurse as states his ears are much better.1507 28-6-04 Personal Management Plan: The applicant is always polite and friendly. He was very thankful when his bed was removed from his room by Tempo as he did not want to break it. He asked tonight if he could have an empty soft drink can in the officers station so he could make a “cone”.1508 28-6-04 The applicant has a visit booked with Warwick Bennett and Rachel Paterson for 0900 (Visitors Did not attend). 1300 visitors attended.1509 28-6-04 Property receipt notes Rachel Paterson gave the applicant two DVDs.1510 5-7-04 5-7-04 Care Notes: 17/06/04 The applicant did not attend education during May 2004.1511 Care Notes: 22/6/04 The applicant did not attend programs during May 2004.1512 The applicant receives visit from Heidrun Hammerle.1513 9-7-04 ISIS Client Care Plan – the applicant is to meet with activities officer, receive PSS support, meet with education officer and address medical issues as they arise.1514 24-7-04 The applicant receives a visit from numerous external individuals.1515 1505 Exhibit A594. 1506 Exhibit A1303. 1507 Exhibits A1315, A637. 1508 Exhibit A594. 1509 Exhibits A1335. 1510 Exhibits A1320, A1321. 1511 Exhibit 2.4TP34. 1512 Exhibit 2.4TP34. 1513 Exhibits 2.4TP2462, A1335. 1514 Exhibit 2.4TP1783. 1515 Exhibits A1335, 2.4TP2462. -- 442 of 647 -- [2025] SASC 59 Stanley J 439 26-7-04 The applicant has a visit from external individuals Nader Hachemi, Shelley James, Susannah Latham, Abdoul Nejad and Mahmood Shakeri.1516 28-7-04 The applicant has a visit from Peter Burrows, Nader Hachemi, Jennifer James and Shelley James.1517 29-7-04 The applicant receives a visit from numerous external individuals.1518 31-7-04 The applicant has a visit from Josephine Brown.1519 7-8-04 Gym Log Notes: 0905 – The applicant is on site at gymnasium (Gym log notes).1520 Gym Log Notes: 0940 – The applicant off site (Gym log notes).1521 The applicant receives a visit from Peter Bricknell and Michael Brock.1522 8-8-04 Care Notes: The applicant seems happy has been pretty quiet lately. He keeps out of trouble and acts friendly towards others.1523 11-8-04 IHMS Progress Notes: The applicant attended at the medical clinic for routine medications. He has been non-compliant with medications since 7 July 2004. Advised officers in compound if the applicant required medications he would need to speak to a nurse to get a doctor’s appointment.1524 12-8-04 Care Notes: The applicant appears happy. He went on an inter-compound visit tonight and saw the nurse as well.1525 1516 Exhibits 2.4TP2462, A1335. 1517 Exhibits 2.4TP2462, A1335. 1518 Exhibits 2.4TP2462, A1335. 1519 Exhibits 2.4TP2462, A1335. 1520 Exhibit 2.4TP1785. 1521 Exhibit 2.4TP1785. 1522 Exhibits 2.4TP2462, A1335. 1523 Exhibit 2.4TP34. 1524 Exhibits A1314, A1315. 1525 Exhibit 2.4TP34. -- 443 of 647 -- [2025] SASC 59 Stanley J 440 16-8-04 The applicant is on restricted movement to be completed by 19.08.2004.1526 Care Notes: The applicant went compound hopping tonight, firstly to White 1 then to White 2. When he returned to White 3 he appeared incoherent. A general communication and officer’s report will be forwarded.1527 18-8-04 Care Notes: The applicant is currently on restricted movement till 19.8.04. He has been mixing with the compound and appears to in normal spirits.1528 21-8-04 Care Notes: The applicant is his usual jovial self, best described as high spirits.1529 24-8-04 Care Notes: The applicant seems okay has been polite, always speaks to [DSO] and helps if asked.1530 25-8-04 Food experts currently visiting Baxter and request to see a list of detainees, including the applicant.1531 28-8-04 Care Notes: The applicant seemed fine tonight. He made a snack in the mess earlier in the night. He went on inter- compound visits and appears well.1532 30-8-04 The applicant has a visit from Donald and Lesley Catford booked, cancelled.1533 31-8-04 Care Notes: The applicant appeared cheerful at attendance at office window tonight. No obvious worries.1534 31-8-04 The applicant has a meeting with Tracey Malone (DIMIA case co-ordinator) asking for a copy of his first application to DIMIA and the refusal reasons. Request to move to Blue 2.1535 2-9-04 The applicant has a visit from Donald and Lesley Catford.1536 1526 Exhibit 2.4TP1783. 1527 Exhibit 2.4TP34. 1528 Exhibit 2.4TP34. 1529 Exhibit 2.4TP34. 1530 Exhibit 2.4TP34. 1531 Exhibit A1325. 1532 Exhibit 2.4TP34. 1533 Exhibits 2.4TP2462, A1335. 1534 Exhibit 2.4TP34. 1535 Exhibit A1327. 1536 Exhibits 2.4TP2462, A1335. -- 444 of 647 -- [2025] SASC 59 Stanley J 441 4-9-04 The applicant seems to be in a good mood, tells [DSO] he is trying to gain weight and has put on 2kg in the last week. The applicant is always helpful.1537 7-9-04 The applicant has been active all night interacting with all detainees, friendly with staff, polite and compliant most of the time.1538 9-9-04 The applicant has moved from W3 to B2. Resides in B2-36 at Baxter for 230 days, as contained in the applicant’s Accommodation Report.1539 15-9-04 Care Notes: The applicant went on an inter-compound visit, seems ok.1540 18-9-04 Care Notes: The applicant went on an inter-compound visit, was polite and friendly to staff, was interacting with other detainees, nothing unusual noted.1541 20-9-04 The applicant requests additional clothing.1542 21-9-04 Care Notes: The applicant played soccer. He was polite and friendly to staff and detainees. Nothing unusual noted.1543 24-9-04 IHMS Progress Notes: The applicant attended at the medical clinic and was seen by GP. His teeth are not good. Several fillings are out of place. No signs of infection. Referred to dentist.1544 Care Notes: The applicant attended the medical facility for appointment with Dr Newman. He appeared to be in good spirits and was both polite and friendly.1545 26-9-04 Care Notes: The applicant is always polite to [DSO] when spoken to. He went on an inter-compound visit tonight and seemed in a good mood.1546 28-9-04 The applicant is notified that he did not complete his scheduled meaningful activities task in B3 Compound so will 1537 Exhibit 2.4TP34. 1538 Exhibit 2.4TP34. 1539 Exhibit 2.4TP1783. 1540 Exhibit 2.4TP34. 1541 Exhibit 2.4TP34. 1542 Exhibit 2.4TP2472. 1543 Exhibit 2.4TP 34. 1544 Exhibits A1314, A1315. 1545 Exhibit 2.4TP34. 1546 Exhibit 2.4TP34. -- 445 of 647 -- [2025] SASC 59 Stanley J 442 not be receiving his allocated merit points for this time period.1547 30-9-04 Care Notes: The applicant went on inter-compound visits tonight. He always has a big smile for [DSO], and tells [DSO] he is putting on more weight. [DSO] tells him to eat more, he is too skinny). The applicant likes to come up for a chat, and does not seem to have any current issues at this time.1548 2-10-04 The applicant has a visit from Josephine Brown.1549 5-10-04 IHMS Progress Notes: The applicant attends at the medical clinic, states has not been sleeping for two weeks. Placed in doctor’s BK - Category C.1550 The applicant received a visit from Kathy Verran.1551 Care Notes: The applicant has demonstrated his impatience with detention to [DSO] over the past three nights, being very verbal about a system "that doesn't care about detainees". He has been going on inter-compound visits and returning on time. Despite his current demeanour, he remains respectful and courteous.1552 6-10-04 The applicant receives a visit from numerous external individuals.1553 10-10-04 Care Notes: Went on inter compound visit tonight, seems ok at moment.1554 12-10-04 Care Notes: The applicant has been offered an external excursion for the week commencing 11 October to go swimming or shopping. He has declined this offer.1555 14-10-04 Care Notes: The applicant went on inter-compound visits tonight. He seemed in a good mood, friendly and chatting to officers. Up later than usual tonight.1556 1547 Exhibit A1331. 1548 Exhibit 2.4TP34. 1549 Exhibits 2.4TP2462, A1335. 1550 Exhibits A1314, A1315. 1551 Exhibits 2.4TP2462, A1335. 1552 Exhibit 2.4TP34. 1553 Exhibits 2.4TP2462, A1335. 1554 Exhibit 2.4TP34. 1555 Exhibit 2.4TP34. 1556 Exhibit 2.4TP34. -- 446 of 647 -- [2025] SASC 59 Stanley J 443 17-10-04 Care Notes: The applicant has been in a good mood of late and also has been on inter-compound visits and appears fine.1557 19-10-04 Incident Report: The applicant’s room search (38 Blue 2) revealed prohibited items. Items confiscated as contraband.1558 20-10-04 Incident Report: Notes during a room search: prohibited items were located in the applicant’s room – jar with metal objects in it, two bottle top lids with holes in the top of them.1559 Care Notes: The applicant went on an inter-compound visit tonight. He seemed in a good mood, polite and friendly.1560 21-10-04 IHMS Progress Notes: The applicant requests dental list. His back molars are sensitive. Advised him the dental van was not operational again until the end of November and that if pain/symptoms worsen he should return.1561 24-10-04 Care Notes: The applicant appears fine. No major issues. Has been going on a lot of inter-compound visits. He is always polite and well mannered.1562 IHMS Progress Notes: The applicant was seen in B2 compound and given Panadeine for aching teeth.1563 28-10-04 Care Notes: The applicant has been on an inter-compound visit and came back in a good mood. He has not raised any new issues of late apart from the food being very poor, as the same as everyone else in the compound.1564 29-10-04 The applicant receives a visit from numerous external individuals.1565 31-10-04 The applicant is quiet as usual. He has been going on inter- compound visits as usual. Tonight he was sited with 1557 Exhibit 2.4TP34. 1558 Exhibit A1333. 1559 Exhibit A1333. 1560 Exhibit 2.4TP34. 1561 Exhibit A1314. 1562 Exhibit 2.4TP34. 1563 Exhibits A1314, A1315. 1564 Exhibit 2.4TP34. 1565 Exhibit 2.4TP2462. -- 447 of 647 -- [2025] SASC 59 Stanley J 444 contraband in his room. He was okay about it when the contraband was taken.1566 4-11-04 Care Notes: The applicant went on an inter-compound visit tonight and came back in a good mood. He raised no new issues and appears okay.1567 6-11-04 The applicant receives a visit from numerous external individuals.1568 Care Notes: The applicant seemed in a good mood tonight. He is always helpful and friendly, frequently goes down to Education, and brings back the papers. He interacts well with other detainees and does not seem to have any issues at this time.1569 11-11-04 Care Notes: The applicant has been on an inter-compound visit. He has been polite towards staff and other detainees. He has not raised any new issues. He appears okay.1570 15-11-04 Care Notes: The applicant has been on an inter-compound visit. He came back in a good mood and went back to his room for the remainder of the night. He is polite towards officers and interacts with other detainees. He has no issues at this present time.1571 The applicant has been upgraded to medium risk due to possession of suspected illegal smoking implements. Two officer escort recommended.1572 23-11-04 Care Notes: The applicant appears to be in a good mood, is polite towards officers and interacts with other detainees.1573 28-11-04 Care Notes: The applicant is polite and compliant, interacting with staff and detainees, nothing unusual noted.1574 4-12-04 Care Notes: The applicant appears fine. He came to the office and said hello and had a talk about soccer. He grabbed a 1566 Exhibit 2.4TP34. 1567 Exhibit 2.4TP34. 1568 Exhibit 2.4TP2462. 1569 Exhibit 2.4TP34. 1570 Exhibit 2.4TP34. 1571 Exhibit 2.4TP34. 1572 Exhibit A1352. 1573 Exhibit 2.4TP34. 1574 Exhibit 2.4TP34. -- 448 of 647 -- [2025] SASC 59 Stanley J 445 Persian newspaper then went into the mess and had some breakfast.1575 7-12-04 Care Notes: The applicant has been enjoying his work down at the kitchen. He is always polite to officers except when having a joke with them.1576 12-12-04 Care Notes: The applicant appears fine. He is going to work every day with Tran. He loves to talk about soccer and his beloved Manchester United.1577 14-12-04 Care Notes: The applicant was sighted this morning watching soccer. He then went off to work in the kitchen. He was sighted again at lunch time when he delivered the food. He went back into the compound in good spirits.1578 19-12-04 Care Notes: The applicant went on an inter-compound visit tonight and returned on time. He spends a lot of time by himself and seems to choose who he spends any length of time with very carefully. He appears to enjoy his job in the kitchen and has no outstanding issues.1579 22-12-04 Care Notes: The applicant had a small talk about soccer with [DSO] tonight then went on an inter-compound visit. He seems in good spirits.1580 29-12-04 Care Notes: The applicant is the social butterfly of the centre, always visiting someone if not working in the kitchen.1581 1-1-05 Care Notes: The applicant exchanged new year's greetings. The applicant is courteous, mild mannered and compliant. He went to work in the kitchen, as usual.1582 4-1-05 The applicant received a visit from Kathy and Timothy Verran1583 1575 Exhibit 2.4TP34. 1576 Exhibit 2.4TP34. 1577 Exhibit 2.4TP34. 1578 Exhibit 2.4TP34. 1579 Exhibit 2.4TP34. 1580 Exhibit 2.4TP34. 1581 Exhibit 2.4TP34. 1582 Exhibit 2.4TP34. 1583 Exhibit 2.4TP2462. -- 449 of 647 -- [2025] SASC 59 Stanley J 446 8-1-05 Care Notes: The applicant has still been attending his meaningful activity in the kitchen. Tran Bou Doi appears to be his new best friend of late.1584 10-1-05 IHMS Progress Notes: Applicant developed pain on left side of lower chest radiating to around his heart. Worse when standing up but less when he bent forward. No accompanying diarrhea or vomiting. No previous abdominal disturbance. O/E heart and lungs – NAD. Abdomen -NAD. Tende 12-1-05 Care Notes: 0150hrs The applicant is polite and regularly has a chat with officers. He always seems to be doing something, whether it be on the phone, kitchen duty, talking to detainees etc.1585 13-1-05 IHMS Progress Notes: The applicant attends at medical clinic, seen by GP. His left ear is syringed. Unable to blow wax out of right ear. Allergy. Given Telfast 120mg.1586 15-1-05 Care Notes: The applicant complained that compound mess workers were returning food trays to kitchen uncleaned. It seems he is giving not only his labour but also passion to his work - good man.1587 18-1-05 Care Notes: The applicant has been spending his time with Tran BX 1783 in the compound. He has been on an inter- compound visit to visit Korosh in W2.1588 22-1-05 The applicant receives a visit from Mohammad Fardipour.1589 29-1-05 Care Notes: The applicant appears fine. He came to the office early and got a newspaper, then around lunch time he went to work at the kitchen. He seems in good spirits.1590 8-2-05 Care Notes: The applicant has come up to the window a couple of times this morning, mainly just to say hello or to get something. He went off to the kitchen this afternoon he appeared to be in a good mood with no apparent issues raised at this time.1591 1584 Exhibit 2.4TP34. 1585 Exhibit 2.4TP34. 1586 Exhibits A1314, A1315, A1434. 1587 Exhibit 2.4TP34. 1588 Exhibit 2.4TP34. 1589 Exhibit 2.4TP2462. 1590 Exhibit 2.4TP34. 1591 Exhibit 2.4TP34. -- 450 of 647 -- [2025] SASC 59 Stanley J 447 12-2-05 Applicant working in kitchen.1592 Care Notes: The applicant was up early this morning with some issues regarding the morning papers. He thinks there is not enough to go around. He has been going to the kitchen during the afternoon and has been polite and talkative. He appears fine.1593 13-2-05 The applicant is living in B2.1594 The applicant receives a visit from Denise Mackay.1595 19-2-05 Movement Log: the applicant is onsite with heartburn.1596 Care Notes: The applicant has been asleep most of the morning. He went to the kitchen this afternoon to work as usual. He was polite and happy to have a conversation with the DSOs when he came to the officer’s station to get ID card. He is a polite and compliant person.1597 22-2-05 Letter from L Hogarth, Libby Hogarth & Associates to the applicant following up applicant’s request to Minister for a TPV under Section 48B of the Migration Act.1598 Applicant requests that L Hogarth continue to act on his behalf.1599 Care Note: The applicant went to the kitchen today, as he has for the last few days, and always returns in a reasonably happy mood. He is quiet and very polite when requesting things from the officers.1600 24-2-05 The applicant attends medical clinic reporting he is not sleeping very well, about 4-6 hours a night. He says he was on Amitriptyline but went off at some time ago. Once doctor’s appointment stuck to restart this medication. Appointment made, category C.1601 1592 Exhibit 2.4TP1785 1593 Exhibit 2.4TP34. 1594 Exhibit 2.4TP1785. 1595 Exhibit 2.4TP2462. 1596 Exhibit 2.4TP1785 1597 Exhibit 2.4TP34. 1598 Exhibit A1348. 1599 Exhibit A1349. 1600 Exhibit 2.4TP34. 1601 Exhibit A1314. -- 451 of 647 -- [2025] SASC 59 Stanley J 448 26-2-05 Movement log: 1730 the applicant is working in the kitchen.1602 26-2-05 The applicant receives a visit from Mohammad Rahmani.1603 Care Note: The applicant is up early this morning and collected the morning paper from the officer’s station. He did not talk a lot. He said ‘morning’ and returned to his room. Later on he sat in the mess with other detainees and watched some television. He appears quiet and has no issues at this time.1604 28-2-05 IHMS Progress Notes: The applicant attends at medical clinic reporting he couldn’t sleep. His ears are much better. Generally on Endep 2 tabs. Works hard as a chef in the kitchen. Script for Endep 25mg nocte.1605 1-3-05 The applicant is notified he is eligible to re-apply for a protection visa.1606 1-3-05 Care Note: Officers tried to explain the meaning of "DILLIGAF" to the applicant and his reply was "FIG JAM" and walked away laughing. He remains compliant and friendly.1607 2-3-05 The applicant receives a visit from Jamshid Entesari- Tatafi.1608 4-3-05 IHMS Progress Notes: The applicant is called to medical to discuss non-compliance with medication. He states he is not aware it had arrived but will now take as prescribed.1609 The applicant makes an application for a Protection Class XA Visa.1610 5-3-05 Care Notes: The applicant is his usual self. He attends the kitchen every day where he works. He does not talk much to 1602 Exhibit 2.4TP1785 1603 Exhibit 2.4TP 2462. 1604 Exhibit 2.4TP34. 1605 Exhibit A1346. 1606 Exhibit A1353. 1607 Exhibit 2.4TP34. 1608 Exhibit 2.4TP2462. 1609 Exhibits A1314, A1315. 1610 Exhibit A1416. -- 452 of 647 -- [2025] SASC 59 Stanley J 449 officers but is polite when spoken to and compliant to DSOs’ requests.1611 7-3-05 In-Possession property responsibility form states the applicant has two DVDs.1612 Merit point sheet notes the applicant worked in kitchen every day. He is living in B2.1613 8-3-05 Applicant receives letter from L Hogarth, Libby Hogarth & Associates informing him of his new migration agent (Craddock Murray Neumann).1614 Care Notes: 1630 The applicant is currently at the kitchen working. He has been talkative, chatting about the English soccer. He appears fine.1615 10-3-05 Immigration requests an AFP criminal history check on the applicant.1616 11-3-05 Applicant completes an additional personal particulars information - form 12211617 DIMIA provide a particulars for character assessment for the applicant.1618 The applicant applies for police record check.1619 The applicant makes application for a Protection (Class XA) Visa .1620 12-3-05 The applicant receives a visit from numerous external individuals.1621 Care Note: The applicant is sporting a refreshing new look in the way of shaving his beard off. He seems upbeat and happy. He went on an inter-compound visit.1622 1611 Exhibit 2.4TP34. 1612 Exhibit A1362. 1613 Exhibit 2.4TP1785. 1614 Exhibit A1365. 1615 Exhibit 2.4TP 34. 1616 Exhibit A1369. 1617 Exhibit A1373. 1618 Exhibit A1372. 1619 Exhibit A1374. 1620 Exhibit A1371. 1621 Exhibit 2.4TP2462. 1622 Exhibit 2.4TB34. -- 453 of 647 -- [2025] SASC 59 Stanley J 450 14-3-05 Applicant receives a fax from Uniting Church giving prayer support for the his visa interview.1623 The applicant makes a Statutory Declaration.1624 The applicant signs acknowledgement of receipt of the brochure on the Regulation of the Migration Agent Profession.1625 The applicant submits a further application for a Protection Visa.1626 15-3-05 Care Notes: The applicant attends DIMIA this morning, appears very happy. He is still sporting the no beard look.1627 The applicant provides personal particulars in relation to a further protection visa for character assessment.1628 17-3-05 IHMS Progress Notes: The applicant presents to the clinic complaining of a bite on his right cheek. Query lumpy / infection. Put on doctor’s list.1629 19-3-05 Care Notes: The applicant has kept busy doing his job in the main kitchen and appears to be happy enough. He has no known issues and keeps to his circle of friends.1630 21-3-05 IHMS Progress Notes: The applicant attends at the medical clinic. Presented with a nodular lump on his right cheek that became red / infected. Query cystic lesion with infection. Given Augmentin Duo Forte.1631 22-3-05 Care Notes: 1627-The applicant is currently at the kitchen. He is up early in the mornings and usually gets the compound newspapers from education in the mornings. He seems fine today.1632 The applicant receives a visit from Kathy and Timothy Verran.1633 1623 Exhibit A1376. 1624 Exhibit A1382. 1625 Exhibit A1378. 1626 Exhibit A1379. 1627 Exhibit 2.4TP34. 1628 Exhibit A1383. 1629 Exhibit A1314, A1315. 1630 Exhibit 2.4TP34. 1631 Exhibit A1314, A1315. 1632 Exhibit 2.4TP34. 1633 Exhibit 2.4TP2462. -- 454 of 647 -- [2025] SASC 59 Stanley J 451 29-3-05 Care Notes: The applicant has had an issue with his power in the room lately. He has waited patiently for it to be fixed. He is still attending the kitchen to complete his meaningful activity.1634 1-4-05 The applicant requests DIMIA to send a fax to Craddock Murray Neumann.1635 2-4-05 Care Notes: 1455 – the applicant is very polite and talkative. He is currently at the kitchen doing his meaningful activity. He has no issues [DSO] is aware of.1636 8-4-05 Fax received from L D'Ambra, Craddock Murray Neumann to the applicant re Legal Advisor.1637 11-4-05 The applicant receives a visit from Denise Mackay and Pamela O'Connor.1638 13-4-05 Care Notes: The applicant had a usual day. He went to the kitchen for work, came back and went to his room.1639 16-4-05 Care Notes: 1770 When he is not sleeping or spending time in his room the applicant is working in the main kitchen. He is polite but keeps to himself. He attends inter-compound visits to see Koroosh BX 1665 in White 2. He maintains a regular daily routine and appears to have no known issue.1640 18-4-05 Fax received from L D'Ambra, Craddock Murray Neumann to the applicant. Applicant given copy of submissions made on his behalf.1641 23-4-05 The applicant seems a polite person. He had a joke with the officers before going to work in the kitchen. He appears okay.1642 26-4-05 Care Notes: The applicant attended BBQ according to Blue 2 BBQ List.1643 1634 Exhibit 2.4TP34. 1635 Exhibit A1389. 1636 Exhibit 2.4TP34. 1637 Exhibit A1391. 1638 Exhibit 2.4TP2462. 1639 Exhibit 2.4TP34. 1640 Exhibit 2.4TP34 1641 Exhibits A1397, A1399, A1401. 1642 Exhibit 2.4TP34 1643 Exhibit 2.4TP2504. -- 455 of 647 -- [2025] SASC 59 Stanley J 452 IHMS Progress Notes: The applicant is seen at afternoon medical clinic complaining of blocked ears. Instructed to use Cerumol ear drops 3 x per day for 3 days.1644 27-4-05 The applicant is granted a Subclass-785 (Temporary Protection) Visa and released from detention.1645 1982 An analysis of these records disclose that the applicant regularly attended at the medical clinic. The medical case notes refer to approximately 82 attendances by the applicant on doctors or nurses at the medical clinic at Baxter over the period from 29 September 2002 to 26 April 2005 i.e., an average of four attendances by the applicant at the medical clinic each month. Overwhelmingly these attendances were for physical complaints in relation to pain in his throat, ears, neck, shoulders, back, abdomen, teeth, testicles and heartburn. He also sought treatment for injuries to his left wrist, leg and a skin lesion. A frequent complaint was of difficulty with sleeping. He was prescribed painkillers and antidepressants. The antidepressants were prescribed at a low dosage which was intended to treat insomnia rather than depression. As Dr Clarke said, the prescription of Luvox, Diazepam and Temazepam was appropriate. The approach to prescribing these antidepressants was cautious. The use of these antidepressants risked the development of tolerance and the experience of withdrawal effects. The dose of Endep prescribed to the applicant was consistent with its use being as a sedative to aid sleep rather than to treat a depressive disorder which would have required a significantly higher dose.1646 In addition, Dr Raeside,1647 Dr Shroff,1648 Dr Henderson1649 and Dr Schirripa1650 gave evidence that Endep in small doses was appropriate treatment for insomnia. I accept that evidence. In any event, the applicant’s use of Endep declined dramatically from July 2004. While I accept that insomnia can be a symptom of depression and anxiety, it is not conclusive evidence of those conditions and the applicant was not diagnosed with them during his detention at Baxter. On the contrary, the medical case notes record some 26 occasions in the period from September 2002 until April 2005 when the applicant underwent some form of mental state examination or review or welfare check by the MHT. Not one of those occasions resulted in the applicant being diagnosed as suffering from a recognisable psychiatric injury. Pre-detention findings 1983 The applicant was born in Iran on 19 September 1975.1651 1644 Exhibits A1405, A1315. 1645 Exhibit A1416. 1646 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 4). 1647 T 6354, 6356-6357, 6360, 6495.25-6496.3, 6498 and 6501-6503. 1648 T 4270-4271. 1649 T 5741.37-5742.32, 5743.34-5745.35, 5856-5857, 5859.9-5860.3, 5861.33-5863.1 and 5864.11-22. 1650 T 6708.21-6709.1. 1651 T 332.2-3 -- 456 of 647 -- [2025] SASC 59 Stanley J 453 1984 The applicant arrived in Australia by boat on 16 December 2000 at Ashmore Islands. He was processed at Darwin on 22 December 2000. He entered Australia as an unlawful non-citizen. The applicant sought asylum in accordance within the terms of the Refugee Convention.1652 University studies in Iran 1985 The applicant’s evidence in relation to his tertiary education in Iran was contradictory and unsatisfactory. At trial he gave evidence that he attended Tehran University on a scholarship.1653 This was the first mention of the applicant being granted a scholarship. He said he initially studied civil engineering but switched to “graphic.”1654 He claimed he completed an advanced diploma of mapping from Tehran University. He denied that rather than attending Tehran University he actually attended Sazman Fani Herfiye Keshvar which he described as being the equivalent of TAFE. 1986 He said that when he commenced employment post university he undertook an AutoCAD course for mapping notwithstanding his evidence that he had obtained an advanced diploma of mapping from the university. He denied this was completed through Sazman Fani Herfiye Keshvar. The applicant was unable to produce any record that evidenced his attendance at Tehran University or any post secondary school qualifications he obtained. He gave evidence that in about 2007 or 2008 he had attempted to obtain records of his attendance at Tehran University by writing to the university in an attempt to obtain a copy of his diploma. He said the university refused to release his certificate or documents unless he worked for the university for five years.1655 He claimed he had written to the university a few times but they refused to give him the documents. 1987 Yet when pressed for evidence of this correspondence the applicant denied writing to the university.1656 Instead he said that in fact he had asked his family in Iran to contact the university after which he intended to telephone the university to give them his details. He said he telephoned however they asked him where he was and why he was not in Iran and refused to provide him with the documents.1657 1988 When interviewed upon his arrival in Australia the applicant informed DIMIA officials that he had attended high school in Iran and that he had obtained an AutoCAD diploma issued by the Department of Education.1658 He variously reported that after high school he did not undertake any additional education but had studied drafting at Sazman Fani Herfiye Keshvar.1659 1652 Exhibit A623. 1653 T 1881. 1654 T 335.15. 1655 T 1881.10-11. 1656 T 1882.16-18 and 32-36. 1657 T 1882. 1658 Exhibit A629. 1659 Exhibit 2.4TP1795 at pp 4-5. -- 457 of 647 -- [2025] SASC 59 Stanley J 454 1989 When confronted with these inconsistencies the applicant said that the certificate of completion of the AutoCAD was held by the company who employed him under the supervision of the Sazman Fani Herfiye Keshvar.1660 In his evidence he insisted that he had reported his study at Tehran University when first interviewed but subsequently decided not to mention that he had attended university because he was suspicious about how that information might be used by the Australian government. This was when he was first applying for a TPV. I find it implausible that the applicant could on one hand seek asylum in Australia while at the same time harbour suspicions about how the Australian government might use information concerning him and decline to provide documentary evidence of his education to DIMIA when it was assessing his claim for a TPV. 1990 The applicant’s claims of his inability to obtain documentary evidence of his study at Tehran University is to be contrasted with the evidence given by Mr Paparzadeh that he was able to obtain a copy of his degree in business management from Tehran University while he was still in immigration detention. 1991 Ultimately, I do not accept most of the applicant’s evidence about his University Studies in Iran. I am unable to find that he completed any study at Tehran University. Curtin Findings 1992 After disembarking from an Australian navy vessel at Darwin on 22 December 2000 the applicant was transported to Curtin Immigration Detention Centre. The applicant told Dr Schirripa on 25 March 2013 that this transfer occurred 10 days after his arrival.1661 This is untrue. The transfer occurred on 23 December 2000.1662 1993 I accept that the applicant did not like the food that was served at Curtin and that it was bland and unappealing. He complained it lacked variety and was frequently undercooked. The applicant claims that there was a lack of fresh vegetables. This claim lacked corroboration. I do not accept it. 1994 Initially the applicant was housed in Charlie compound. The applicant and the other detainees he arrived with were separated from the general population. This was called Separation Detention. Charlie compound had six bunk beds in each donga. Twelve detainees were housed in each donga. 1995 The applicant was detained at Curtin from 23 December 2000 to until 22 September 2002 when he was transferred to Baxter Immigration Detention Centre.1663 1660 T 1925.18-24. 1661 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 at p 3). 1662 Exhibit A624. 1663 Exhibits A624, A754, A755. -- 458 of 647 -- [2025] SASC 59 Stanley J 455 1996 Upon his arrival at Curtin the applicant underwent a medical screening by a registered nurse. She noted his appearance, posture, interaction, mood, affect and lack of anxiety.1664 There is no evidence that when the applicant first arrived in Curtin he was suffering from any physical or mental illness. 1997 After the medical screening the detainees were addressed by Mr Wallis. I am unable to make a finding as to precisely what was said by Mr Wallis on this occasion. His address was translated into various languages. By the time evidence was led as to its contents more than 20 years had elapsed. At the very least, I accept most of Mr Wallis’ evidence as to the contents of his address.1665 His evidence was not specific to this occasion but based on his practice. I accept that when detainees arrived in Curtin Mr Wallis told them that as they had arrived in Australia unlawfully they had no legal right to be in Australia and as a consequence the Migration Act required they be held in detention while their claims were processed. They were informed that at any time they could elect to return to their countries of origin. If their claims were unsuccessful then they would be deported. 1998 The applicant played soccer, chess and cards with other detainees at Curtin. 1999 The applicant experienced a number of physical health issues in Curtin. They included headaches, chest pain, tooth ache, sore throats, ear infections, stomach ache and insomnia. He sought treatment at the medical centre for these complaints. 2000 At Curtin the applicant witnessed other detainees staging protests, going on hunger strikes and self-harming. Detainees who engaged in acts of self-harm would be taken to a more restrictive compound for observation. 2001 In Curtin the applicant developed a habit of sleeping during the day and being active at night. 2002 At Curtin there were tensions between Afghan detainees and Iranian detainees. 2003 From time to time at Curtin DSOs addressed the applicant by number rather than name. The applicant was upset by this occurring. I am not in a position to make a finding as to the frequency of this occurring. 2004 The DSOs would conduct regular checks of the dongas. On occasion, they would conduct searches in the morning while the applicant was asleep and he would be woken up so a search could be conducted. 2005 On 6 January 2001 the applicant applied for a TPV.1666 On 3 April 2001 his application was rejected by a delegate of the Minister. He sought a review by the Refugee Review Tribunal. On 5 June 2001 the Tribunal affirmed the delegate’s 1664 Exhibit A624. 1665 T 7275. 1666 Exhibit A631. -- 459 of 647 -- [2025] SASC 59 Stanley J 456 decision.1667 The applicant brought an appeal to the Federal Court from the rejection of his application for a TPV by the RRT. That appeal was dismissed on 28 November 2001.1668 He subsequently appealed to the Full Federal Court. He attended the hearing of that appeal in Perth in May 2002. That appeal was dismissed on 6 May 2002.1669 He applied to the High Court for a grant of special leave. I accept that on each occasion the applicant was advised that he would not be granted a protection visa he was angry and distressed. Further, I accept that it added to his anger and distress that he was handcuffed during the return flight from Perth. 2006 I find that the applicant feared being deported to Iran from the time of the rejection of his initial application for a TPV.1670 However, he believed that while he continued to pursue an appeal process through tribunals and courts, he would not be deported.1671 2007 By 18 January 2001 the applicant had been moved out of Separation Detention and was residing in Bravo compound. This compound was less restrictive than Charlie.1672 On this day he told an ACM employee that he was very happy with the living conditions in Bravo and the Bravo officers.1673 I am satisfied his statement was true. 2008 I find that there was a riot at Curtin on 4 April 2001. At about 3:00 p.m., approximately 200 detainees engaged in wanton property destruction, burning buildings and other structures, flattening fences and arming themselves with pieces of furniture. ACM staff members were injured by detainees. CS gas was deployed on the detainees at one stage in an attempt to control the situation. During the disturbance detainees laid a banner on the ground which read “protection not detention” and an aircraft flew over the compound about 15 minutes later. ACM and DIMIA personnel re-established control of the detention centre at about 11:00pm. There were no reported injuries to detainees.1674 2009 In June 2001 the applicant applied for work in the kitchen.1675 He also asked to work in Bravo compound.1676 2010 In July 2001 the applicant was suffering from toothache.1677 On 31 July 20011678 and 2 August 20011679 he was taken to see a dentist in Broome. The 1667 Exhibit A656. 1668 Exhibit A680. 1669 Exhibits A731, A732. 1670 T 376.25-31. 1671 T 425.36-426.4, 468.25-30. 1672 Exhibit R1690. 1673 Exhibit R1690. 1674 Exhibit 1.3TP2037 1675 Exhibit A663. 1676 Exhibit A664. 1677 Exhibit A644. 1678 Exhibit A670. 1679 Exhibit A671. -- 460 of 647 -- [2025] SASC 59 Stanley J 457 applicant was handcuffed for the period of the journey from Curtin to Broome and return, including while he was in the waiting area of the dental clinic. I accept that the applicant was embarrassed about being seen publicly in handcuffs. 2011 There was a riot at Curtin which commenced on 19 April 2002. On the evidence there was some confusion as to when this riot occurred. It is apparent that there was a major disturbance on 1 June 2001.1680 However, I am satisfied that the riot described in the evidence by some witnesses as occurring on 1 June 2001 in fact occurred on 19 April 2002. It is not entirely clear what precisely occurred on 19 April 2002, but I am satisfied that there was a major disturbance during which detainees smashed and looted the education, welfare and recreation areas. I am satisfied that during this disturbance the DSOs retreated from the detention centre and detainees were in control for some days before they negotiated with ACM and DIMIA to return control of the centre to ACM.1681 2012 For some months before May 2002 the applicant was complaining of testicular pain. On 2 May 2002 he underwent an operation at Derby Hospital for this complaint.1682 By 5 May 2002 he had recovered sufficiently to be able to fly to Perth to attend the hearing of his Federal Court appeal on 6 May 2002.1683 I find that the applicant was handcuffed on each occasion. It was approximately a 20- minute trip from Curtin to Derby. 2013 The applicant gave evidence that he was placed in the Management Unit (which he also referred to as India) upon his return from Derby Hospital. He said he thought he was being punished. He said he was forced to remove his hospital gown five or six times each day.1684 He said he threatened to kill himself.1685 None of this is true. The applicant conceded that he did not spend three days in the Management Unit upon his return.1686 I do not accept that he threatened to kill himself given the absence of any documentary record of such a threat. 2014 I accept that shortly before his transfer to Baxter in September 2002 the applicant was feeling angry and distressed because of the ongoing uncertainty as to his future.1687 2015 The only occasion at Curtin where the applicant presented to the medical centre complaining about his state of mind was on 28 August 2002. 1688 On this occasion the applicant complained to medical centre staff about the “prison life” he was leading and the stress he was under. The applicant did not request any follow up and told the nurse that he would present himself at the medical centre as 1680 Exhibit A279. 1681 Exhibit A290, T 7324-7235. 1682 Exhibit A713. 1683 Exhibit A730, T 467.30-468.2, 474.10-12. 1684 T 1434 – 1435. 1685 T 1432. 1686 Exhibit A713, T 1456-1458. 1687 T 467.30-468.2, 474.10-12. 1688 T 1295. -- 461 of 647 -- [2025] SASC 59 Stanley J 458 required.1689 The applicant felt like a prisoner rather than an asylum seeker.1690 When giving evidence, the applicant said he thought his position was futile because he was not getting any help in the detention centre. He accepted that he did not present again before he left Curtin. The applicant opened on the basis that when he saw the nurse on this occasion he threatened to kill himself. I do not accept this occurred. The allegation that he made such a threat is not reflected in the contemporaneous record kept by the medical centre. Having regard to the nature of the medical centre notes I expect that if such a threat had been made it would have been recorded. As it transpired, notwithstanding the terms of the applicant’s opening, he did not give evidence of making such a threat at Curtin. However, in his evidence-in-chief the applicant said that when he saw the nurse on this occasion and complained about the stress he was under, she refused to do anything for him. Yet in cross-examination he implicitly accepted that the nurse did not say this, but rather the explanation for his evidence was that the medical centre staff did not offer him any help. Logically such a belief cannot be reconciled with his attendance at the medical centre seeking help. Did the applicant hide psychiatric symptoms at Curtin because he feared it would adversely affect his prospects of obtaining a visa? 2016 In April 2001 the applicant was advised that his application for a protection visa had been rejected. The applicant said he was shattered by this decision. I do not accept his evidence. I am satisfied that he was angry and distressed, but he did not seek treatment for his distress from the medical staff. The applicant said he did not complain to the medical staff about his mental health problems as he said he feared that might adversely affect his prospects of obtaining a visa. 2017 I do not accept his evidence. It is clear that the applicant had little or no concern that presenting to the medical clinic with complaints of physical ill health would adversely affect his visa prospects, or, if he did, he was nonetheless prepared to run that risk. Such is evident from the evidence of his attendance at the medical clinic on 28 August 2002. 2018 As I have said I reject the attempt by the applicant to explain this away on the basis that when he attended the medical centre at Curtin on 28 August 2002 the staff would not do anything for his mental health explaining he was going to Baxter which was a better place. In fact, rather than them not being prepared to do anything for him, he told them that he did not require any follow up and would present himself again if he felt the need to do so.1691 2019 The fact that he made the complaint at all is inconsistent with his evidence that he did not complain of mental health issues in detention either because he 1689 Exhibit A697. 1690 T 453. 1691 T 453, 1294-1295. -- 462 of 647 -- [2025] SASC 59 Stanley J 459 thought it would result in him being placed in the Management Unit or would adversely affect his prospects of being granted asylum. 2020 I am also satisfied that the evidence supports a finding that the applicant was not reluctant to seek medical attention for physical ailments. Given that, and his attendance at the medical clinic on 28 August 2002, I reject his evidence that he refrained from complaining to the medical staff or the DSOs of his mental distress in Curtin. On the contrary, I am satisfied that notwithstanding the stressors to which he was undoubtedly subject during the 21 months he was detained there, his lack of complaint throughout almost the entirety of that period is explicable by the fact that he was not suffering psychiatric injury. Nonetheless I find that from time to time the applicant was angry and emotionally distressed reactively to particular events such as the rejection of his visa application and subsequent appeals, witnessing riots and observing detainees self-harming. Was the applicant suffering from a recognisable psychiatric injury at the time of his transfer from Curtin to Baxter? 2021 The applicant gave evidence that the longer he spent in Curtin the angrier and more irritable he became. I accept his evidence in this regard. I accept that the applicant was angry and distressed by the time of his transfer to Baxter. His mood was reactive to the circumstances of his detention. Being angry and irritable after 21 months in detention in the conditions that existed in Curtin was an understandable reaction. While the Commonwealth knew at that time that the uncertainty of indeterminate long-term detention risked a detainee suffering mental illness, I do not accept that, on the evidence, it has been proven that the applicant was suffering from a recognisable psychiatric injury when he was transferred from Curtin to Baxter on 22 September 2002. 2022 The psychiatric evidence, at least until December 2018, was unequivocal in concluding that the applicant did not suffer from a recognisable psychiatric injury at Curtin.1692 Those opinions were founded in the evidence of the contemporaneous documentary records. 2023 The initial histories the applicant gave to Dr Raeside and Dr Schirripa support this finding. When the applicant first saw Dr Raeside on 2 November 2010 he did not report having any psychiatric symptoms until some two years into his detention.1693 Likewise, when the applicant saw Dr Schirripa for the first time on 25 March 2013 he gave a history that he had no mental problems in Curtin.1694 In his report of 18 February 2015 Dr Raeside said that based on the information he 1692Exhibit A583 (Report of Dr Raeside 21 June 2011 pp 2-3), Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 12), Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 6), Exhibit A547 (Report of Professor Jureidini 25 May 2018 p 10). 1693 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 10). 1694 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 3). -- 463 of 647 -- [2025] SASC 59 Stanley J 460 had seen and his interview with the applicant there was no indication that he developed any mental illness in Curtin.1695 2024 As I have discussed elsewhere in these reasons Dr Raeside changed his opinion in December 2018 when he opined that he suspected the applicant may already have been experiencing an Adjustment Disorder with Mixed Anxiety and Depressed Mood prior to his arrival in Baxter.1696 The change of opinion arose from Dr Raeside being asked to assume the accuracy of the Outline of Evidence1697 and accepting the assumptions set out in the letter from the applicant’s solicitors of 7 December 2018.1698 Yet in cross-examination the applicant confirmed the history he had given Dr Raeside in 2010.1699 While the applicant attempted to resile from that evidence in re-examination,1700 I am not prepared to accept his attempt to explain away his earlier admission. 2025 The applicant’s attendances at the medical centre at Curtin do not evidence any complaints concerning his mental health with the exception of the attendance on 28 August 2002. 1701 I consider that this medical attendance, the only one which relates in any way to his mental state, during the entire period at Curtin, is not a sufficient basis to diagnose the applicant as suffering from a recognisable psychiatric injury at that time. That he felt stressed by the conditions of his detention might be thought unsurprising given the length of time he had been detained there. It is notable in this regard that he did not re-present himself with similar complaints to the medical centre at either Curtin or Baxter in the months that followed.1702 Further, the record of the inter-centre transfer nursing assessment1703 conducted upon his transfer to Baxter on 22 September 2002, which records his mental health as satisfactory, contraindicates the existence of psychiatric injury at that time. On the same day the applicant’s Individual Management Plan recorded that he had “no known psychological problems”.1704 2026 Accordingly, I find that the applicant was not suffering from a recognisable psychiatric injury at the time of his transfer from Curtin to Baxter on 22 September 2002. Was the applicant vulnerable to suffering a recognisable psychiatric illness at the time of his transfer from Curtin to Baxter on 22 September 2002? 2027 Although I have found that the evidence does not support a finding that the applicant was actually suffering from a recognisable psychiatric injury when he was transferred to Baxter, I am satisfied that he was vulnerable to suffering one at 1695 Exhibit A583 (Report of Dr Raeside 18 February 2015 p 2). 1696 Exhibit A583 (Report of Dr Raeside 14 December 2018 p 21). 1697 Exhibit R14. 1698 Exhibit A583. 1699 T 1086-1087. 1700 T 1946. 1701 Exhibit A697. 1702 Exhibit A697. 1703 Exhibit A759. 1704 Exhibit A769. -- 464 of 647 -- [2025] SASC 59 Stanley J 461 the time of his transfer. By that date he had been in immigration detention for nearly 21 months. I accept that a person who had been in indefinite detention for that period of time was at risk of developing a recognisable psychiatric injury. The finding that the applicant was vulnerable to psychiatric injury at the time of his transfer to Curtin is the result of the evidence of epidemiological studies of cohorts of detainees on a longitudinal basis which indicated that ‘long-term detainees’ were at risk of psychiatric harm.1705 However, that vulnerability was statistical. The evidence does not establish that the applicant was in fact, suffering from a recognisable psychiatric injury at the time of his transfer to Baxter or was exhibiting any signs or symptoms of such an injury at this time. Nonetheless I accept he was vulnerable to suffering one. Baxter Findings 2028 The applicant was transferred to Baxter on 22 September 2002. 2029 The applicant underwent an inter-centre transfer nursing assessment on the day he arrived at Baxter. His mental health was assessed as satisfactory. 1706 Though the applicant was not interviewed at length about his mental health upon arrival at Baxter, I find that if the applicant had been interviewed comprehensively about his mental health upon arrival at Baxter or shortly thereafter he would have given more or less the same answers to the interviewer as he later provided to Dr Raeside in 2010.1707 He would have said that he had no mental health problems at Curtin and that he did not have any mental health problems at the time of his arrival at Baxter. I find that was the truth of the situation. 2030 I find that the applicant’s mood did not deteriorate until he had been in Baxter for some time. 2031 At Baxter the applicant continued mostly to sleep during the day and socialise at night.1708 2032 I am satisfied that the applicant was addressed by his identification number rather than name on occasions at Baxter. I am not in a position to find how frequently this occurred. I am also satisfied that the use of the applicant’s identification number often occurred with the use of his given name at the same time. I accept that there was some legitimate purpose in using numbers rather than names where many detainees shared the same name, although that does not detract from the impact the use of numbers must have had on the applicant, even where that impact was somewhat diminished by the use of his given name. 1705 8ASoC Appendix 1. 1706 Exhibit A759. 1707 Evidence of Dr Raeside T 6196.11-30, 6199.33-36, 6266.13-22, 6275.13-23, 6295.3-16. 1708 T 479.17-32, 482.30-483.1, 484.29-34. -- 465 of 647 -- [2025] SASC 59 Stanley J 462 2033 I am satisfied that while at Baxter the applicant was strip-searched on 31 December 2002 and 22 January 2003.1709 2034 The applicant has not proven that he had to endure being subject to frequent random strip-searches.1710 The applicant has also not proven that he was strip- searched by having to remove his clothing and having his body searched on at least a monthly basis and every time he was held in the Management Unit.1711 I accept the possibility that the applicant may have been strip-searched more than twice. However, as the only evidence of him being strip-searched more than twice is his own evidence, which I do not accept, I can only make findings on the basis of the extant contemporary documentary evidence. 2035 I accept that he may have been pat searched upon entry to the Management Unit and he was required to disrobe and wear a hospital gown, but strip-searches of the applicant did not occur in the Management Unit.1712 I consider if they had, it is likely documentation of this would exist.1713 2036 I am satisfied that while at Baxter the applicant was handcuffed on, at least, 22 January 2003 and 22 August 2003.1714 Further, I am satisfied that, from time to time the applicant was handcuffed when he was transported to and from appointments outside of Baxter and when transferred to the Management Unit. 2037 I accept that incidents of handcuffing, strip-searching, and the use of numbers rather than names were felt by the applicant to be an affront to his personal dignity and were dehumanising. I accept that these features of detention caused him emotional distress. However, I find that these were transient unpleasant experiences and I am not satisfied he suffered a recognisable psychiatric injury as a result of experiencing them. These unpleasant features of detention were overwhelmed by those other unremovable, unavoidable factors inherent in the fact of immigration detention itself. The only psychiatric injury the applicant suffered was in August 2003. The evidence does not support a finding that at that time he was exposed to these disagreeable features of detention, namely handcuffing, strip- searching and the use of a number to refer to him. I will return to this. 2038 Despite his evidence to the contrary, the applicant would not have accepted an offer to consult a psychologist or psychiatrist if such an offer had been made while he was at Baxter. Even if he had, I am satisfied that he would have denied any symptoms of psychiatric ill health. 1715 I will return to this. 1709 Exhibits A874, A865, A877. 1710 8ASoC [20.1.13]. 1711 8ASoC [22.1.38]. 1712 Exhibit 1.3TP1761. 1713 See for example Exhibit A874. 1714 Exhibits A875, A1166, A1168. 1715 T 650.10-14. -- 466 of 647 -- [2025] SASC 59 Stanley J 463 2039 The applicant gave evidence that while in detention he was not offered the opportunity to participate in sport and other entertainment or activities.1716 This was not true. On his own evidence, he was able to play soccer;1717 attend the gym;1718 play pool;1719 watch television and DVDs;1720 and play table tennis.1721 The applicant conceded in evidence that it was possible that some Iranian cultural and religious events were permitted in Baxter.1722 In addition to the sporting and recreational activities he participated in, the applicant was also engaged in task- oriented activities in Baxter, e.g., working in the kitchen washing dishes, preparing vegetables and cleaning up in the compounds and officers’ stations.1723 2040 I find that during the G4S period the applicant had little interest in participating in activities at Baxter.1724 This finding contradicts evidence he gave which suggested that had there been activities provided in Baxter, he would not have suffered the psychiatric injury he alleges. 2041 From 22 September 2002 until 27 December 2002 the applicant’s time in detention at Baxter was relatively uneventful. The documentary evidence indicates that the applicant’s observable presentation in this period did not evidence any signs or symptoms of a recognisable psychiatric injury. He presented at the medical centre with various physical ailments such as an injury to his shin from playing football, continuing testicular pain, mild epigastric discomfort, sore throat, runny nose, throat infection, chills, fever and headache. He saw the doctor. He was prescribed medication for these complaints. On the eight occasions he presented at the medical centre in this period there is no record of any complaint of symptoms of psychiatric illness. On the contrary, he was reported to be quiet, polite, friendly and in good spirits. He undertook work in the kitchen which he appeared to enjoy, and seemed settled. On at least two occasions in December 2002 the applicant played soccer matches in the Red 1 compound.1725 2042 There is no persuasive evidence of the applicant suffering symptoms of psychiatric injury from September 2002 until the fires in late December 2002. I accept that the applicant’s experience of the fires must have been frightening, particularly the second fire when he experienced smoke inhalation and had to be treated in hospital. 2043 However, I do accept that by the end of 2002 the applicant was living in fear of being deported to Iran at some stage in the future.1726 1716 T 1307.28-31. 1717 T 693.17-22. 1718 T 1787.10-14. 1719 T 1732.17-19, 1819.37-38. 1720 T 1724.23-1725.5, 654.8-17. 1721 T 1820.38-1821.2. 1722 T 1821.16-19. 1723 T 460.11-20, 569.13-17, 461.13-17, 569.13-17, 461.13-17. 1724 T 1726. 1725 T 1515.1-11. 1726 T 502.17-27. -- 467 of 647 -- [2025] SASC 59 Stanley J 464 2044 There were two fires at Baxter in late December 2002. The first fire occurred on 27 December 2002. The second fire occurred on 29 December 2002. Both fires damaged the buildings in Baxter but the second fire caused extensive damage to some of those buildings. 1727 It resulted in extensive fire damage to about fourteen rooms in Red 1 and necessitated the evacuation of detainees from that compound. The first fire commenced in Ghorbanali’s room. This room was directly adjacent to the applicant’s room.1728 The second fire appeared to have multiple ignition sites. 2045 In late December 2002 Ghorbanali had disclosed to the applicant an intention to start fires at Baxter.1729 The applicant did not disclose this information to ACM or DIMIA personnel. Prior to the first fire the applicant had already packed a bag containing some of his possessions in case of fire.1730 When the first fire broke out, the applicant retrieved the bag.1731 He was also caught with a cigarette lighter on 10 December 20021732 and 30 December 2002.1733 2046 I accept that after the first fire the applicant was concerned that further fires would be lit by other detainees.1734 However, I also find that the applicant thought that a fire might be an effective way to prompt discussion with the authorities regarding his predicament at Baxter.1735 2047 As a result of the second fire the applicant suffered smoke inhalation. He was transferred to the Port Augusta Hospital for treatment. He was discharged later on 29 December 2002.1736 Upon his return from Port Augusta Hospital the applicant learned that it was likely he, along with others, would be interviewed by the police about the fires.1737 He was placed in Red 2.1738 2048 The applicant alleges that following the fire of 29 December 2002 he was treated at the Port Augusta Hospital where he was handcuffed to a hospital bed.1739 This allegation depends entirely on the evidence of the applicant. For reasons I have explained, I am not generally prepared to rely on his evidence in making findings of fact. 2049 The applicant alleges that he was detained in the Management Unit on more than two occasions.1740 That allegation is not supported by the evidence. The applicant was not placed in the Management Unit at Baxter prior to 1 January 1727 Exhibits A792, A805. 1728 T 515.5-9. 1729 T 513.34-514. 1730 T 515.15-20. 1731 T 1533.1-8. 1732 T 1540.11-13. 1733 Exhibit A769. 1734 T 515.34-37. 1735 T 1528.6-1529.27. 1736 Exhibits A811, A1541. 1737 T 520.22-37, 522.5-10. 1738 Exhibit A826. 1739 8ASoC 22.1.8. 1740 8ASoC [22.1.27], [22.1.28], [22.1.37] and [34]. -- 468 of 647 -- [2025] SASC 59 Stanley J 465 2003. Contrary to the applicant’s evidence he was not placed in the Management Unit for two days, about five or six days before the first December fire. He said this was in response to him threatening to self-harm while speaking with a guard in the yard.1741 I do not accept this occurred. There is no documentary record of any such event.1742 2050 On 1 January 2003 the applicant was placed in the Management Unit as a person suspected of planning, lighting or otherwise being involved with the lighting of the fires or, at the least, he was suspected of planning further fires or actions contrary to the security and good order of Baxter. 1743 2051 I find ACM had reasonable grounds for suspecting that the applicant had some involvement in the planning or lighting of the fires, or planning further fires or actions which might be detrimental to the security and good order of Baxter. 2052 The applicant claims that while in the Management Unit between 1 and 3 January 2003 he felt suicidal. He alleges he reported this to DSOs as a result of which he was placed on a watch every 30 minutes.1744 The evidence does not prove this allegation.1745 2053 The applicant was seen by mental health nurses on each day he was in the Management Unit in January 2003. On 2 January and 3 January 2003 the applicant was seen by Ms Rarity. She did not undertake a comprehensive mental health check, rather a welfare check, as she did not consider such an assessment necessary on either occasion as the applicant had not been placed in the Management Unit for HRAT reasons. But she noted that on both days the applicant was euthymic i.e., displaying a normal, tranquil mood. The applicant stated he had no physical or mental health issues and denied any thoughts of self-harm or suicide. However, I accept that he made this statement at a time when he was in the Management Unit and he may have minimised his distress in order to improve his chances of release from the Management Unit. The record made by Ms Rarity of him appearing to be “drained and exhausted” in the Management Unit was not regarded by her as significant, nor do I find it significant.1746 She considered that all detainees appeared drained and exhausted due to the climactic conditions at Baxter. 2054 The applicant submits that being confined to the Management Unit for three days following the fires and then transferred to Blue 3 for a period of less than three weeks was calculated to break him and deter other detainees. Further, he alleged this was “rubber-stamped” by Mr Wallis on behalf of DIMIA. I do not accept this submission. As I have explained elsewhere, it fails to acknowledge the legitimate security need and the steps that were taken in the aftermath of the fires 1741 T 503.1-7, 510.23. 1742 Exhibit R1710. 1743 Exhibits A826, R1710. 1744 8ASoC [22.2.1]. 1745 Exhibits A817, A818 A829, A833, A835. A889 1746 T 7638.14-7639.2, 7641.22-31, 7702.5-7702.17, 7740.18-7742.10. -- 469 of 647 -- [2025] SASC 59 Stanley J 466 to ensure the security and good order of Baxter. The submission ignores the Commonwealth’s obligation to comply with the requirements of the Migration Act in relation to immigration detention. Finally, if the purpose of placing the applicant in the Management Unit was to break him I expect he would have been kept in it for longer than three days. 2055 The applicant was released from the Management Unit on 3 January 2003.1747 He was placed in Red 3.1748 2056 The applicant alleged in 22.1.10 of 8ASoC that when he was in the Management Unit in January 2003 he received news of the dismissal of his appeal to the Full Federal Court. That allegation is not supported by the evidence. The decision of the Full Federal Court was delivered on 6 May 2002. I do not accept that the applicant was not informed of the outcome of the appeal until January 2003. In fact, he resiled from such a claim in his evidence, indicating that he was present when the decision was handed down.1749 2057 The applicant understood that increased security restrictions would apply until the authorities had fully investigated how the two fires had started, and who was behind them.1750 Baxter operated under a heightened security regime until shortly after Easter 2003. This was a result of the fires, threats of further fires and disruptions by detainees, and the receipt of intelligence that over Easter 2003 as many as 10,000 protesters were planning to protest outside of Baxter intending to assist the escape of Iranian males from detention.1751 2058 In January 2003 the applicant sought assistance from ACM medical staff in relation to his sleeping difficulties. He was prescribed Diazepam which assisted sleep, but did not otherwise assist to remove his underlying worries and anxiety about his continued detention, and fear of the possibility of deportation.1752 2059 On 16 January 2003 the applicant told nursing staff that he was “thinking too much” and “feeling depressed”.1753 I accept that at this time the applicant remained worried as to what the future would hold, and what would happen to him next.1754 The applicant was preoccupied by ongoing concerns about how long he was going to be in detention, his visa application, his fear of deportation and whether he was going to be implicated in the fires. These matters were always on his mind, to some extent, at that time.1755 1747 Exhibit R1710. 1748 Exhibit A836. 1749 T 1468. 1750 T 1571.13-1572.8, 1571.13-1572.8. 1751 Exhibit 1.3TP2248, Exhibit 1.3TP2253, T 516.14-19; 1752 T 541.4-7. 1753 Exhibit A889. 1754 T 540.30-37. 1755 T 1583.36-1585.3. -- 470 of 647 -- [2025] SASC 59 Stanley J 467 2060 It follows that I reject the applicant’s evidence that he did not know of the word “depression” in 2003. He used that term when he saw Dr Ojah on 16 January 2003. I am satisfied that the applicant at least had some understanding of what was involved in feeling “depressed” at that time.1756 2061 On 22 January 2003 the applicant was transferred from Red 3 to Blue 3 in company with 13 other detainees.1757 I will return to this. 2062 The applicant was told he was under suspicion in relation to the fires, and that limitations would be imposed upon him and others in Blue 3 until further notice once the situation became clearer.1758 2063 The evidence is not entirely clear whether the applicant joined the hunger strike in Blue 3 on 28 January 2003.1759 If it did occur, it lasted a day or two. More importantly, the applicant made no mention of participating in the hunger strike when he first gave a history to Dr Raeside in 2010. In fact, Dr Raeside’s recollection is that the applicant did not engage in a hunger strike.1760 2064 On 6 February 2003 the applicant participated in a group protest over the restrictive conditions that existed in Blue 3. I will return to this. 2065 I accept that on 7 February 2003 Dr Ojah recorded that the applicant had a history of severe stress, lack of sleep and had been involved in a “mini protest” the day before. I accept that Dr Ojah diagnosed the applicant with severe stress/insomnia, though I do not accept that ‘severe stress’ is, itself a diagnosis. I accept that the records reflect the applicant made two further complaints of sleep difficulties and of the occasional migraine later in February. However, I accept that a presentation complaining of severe stress could be consistent with his presentation to the medical clinic a week earlier complaining of feeling depressed. I accept that at this time the applicant was significantly angry and distressed by his confinement in Blue 3 with its restrictions, particularly the denial of telephone use. This was the context in which the self-harm incident of 6 February 2003 occurred. 2066 I accept that on 10 February 2003 the applicant was transferred out of Blue 3 back to Red 3. 1761 While there, some time in February 2003, the applicant began digging a tunnel with his friend Reza using a kitchen utensil. They did so with the intention of escaping. Before they were discovered, the applicant and Reza had excavated a hole approximately one metre wide by two metres deep under the floor 1756 Exhibit A889, T 534.10-15, 540.12-19. 1757 Exhibit A878, Exhibit 1.3TP29. The evidence demonstrates that the transfer occurred on 22 January 2003 although the applicant initially said it occurred on either 21 or 22 January 2003. 1758 T 544.20-32. 1759 T 548, Exhibit A895. 1760 T 6370. 1761 T 573.7-33. -- 471 of 647 -- [2025] SASC 59 Stanley J 468 of Reza’s room.1762 The scale of the hole indicated that the excavation had taken some time. 2067 The applicant alleges that on 14 February 2003 he told the GP that he still had mental problems and continued to have thoughts of harming himself.1763 This allegation is not supported by the evidence.1764 While the applicant did consult a doctor again on 14 February 2003 he made complaints of insomnia, stress and headaches. He did not make any complaint of having thoughts of self-harm. 2068 The applicant alleges that on 16 February 2003 he was moved to Red 3 compound as the DSOs perceived him to be at risk of self-harming. This allegation is not supported by the evidence.1765 The applicant was moved to Red 3 in recognition of his compliant behaviour.1766 2069 I accept that the applicant consulted Dr Ojah again on 27 February 2003 and made further complaints of insomnia, requested a sleeping pill, reporting that he “thinks a lot”, “does not sleep at night” and has occasional migraine headaches.1767 2070 I accept that on 5 March 2003 the tunnel was discovered because an ACM staff member noticed fresh soil under a unit in Red 3 which was occupied by Reza. The applicant admitted his role in its excavation. He was placed in the Management Unit.1768 A DSO named Navid submitted an intelligence report stating that he overheard the applicant yelling to Reza that he would take the blame.1769 The applicant denied that he offered to take the blame for Reza.1770 This is supported by a contemporaneous incident report which records that the applicant “told Centre Shift Manager Brown that he and Reza dug the hole”.1771 I am not prepared to find that the applicant told Reza he would take the blame for the escape incident. 2071 ACM regarded the tunnel as a genuine risk to security and good order, and a genuine escape attempt.1772 While the applicant lacked confidence in the ultimate success of the tunnel facilitating their escape from Baxter, he was nonetheless prepared to make the attempt.1773 I find that whatever the objective assessment of the prospects of a successful escape via the tunnel, the applicant had some hope that it might succeed. 1762 T 8196. 1763 8ASoC [22.1.19]. 1764 Exhibit A1227. 1765 8ASoC [22.2.20]. 1766 Exhibit A769. 1767 Exhibit A1227. 1768 Exhibits A991, A992. 1769 Exhibit A992. 1770 T 578. 1771 Exhibit A991. 1772 T 8196.30-8199.38, 8228.37-8229.31, 8303.1-8304.9. 1773 T 574.36-575.5. -- 472 of 647 -- [2025] SASC 59 Stanley J 469 2072 I accept that at the time of commencing the tunnel the applicant knew his appeal to the Full Federal Court had been dismissed. He considered it was only a remote possibility that he would be granted special leave to appeal to the High Court.1774 2073 I accept that ACM was advised that the AFP wished to interview the applicant in relation to the escape attempt. The applicant was told by ACM that they would wait for the AFP to interview him before he would be released back into a compound.1775 He was ultimately kept in the Management Unit from 5 March 2003 until 13 March 2003. I consider this was longer than necessary. I will return to this. 2074 The applicant alleges that on 6 March 2003 he told Ms Rarity that he still had mental problems.1776 This allegation is not supported by the evidence.1777 Rather, Ms Rarity’s assessment of the applicant in the Management Unit on 6 March 2003 recorded that his mental state appeared settled and he had no ideas of self-harm or suicide. However I also accept that at this time the applicant maintained his complaint of sleeping difficulties and asked for sleeping pills which were prescribed by Dr Ojah the next day.1778 2075 The applicant alleges that on 7 March 2003 he still had thoughts of harming himself which he reported to Dr Ojah. 1779 This allegation is not supported by the evidence. Dr Ojah recorded that the applicant had no new complaints apart from a request for sleeping pills.1780 2076 While he was in the Management Unit various members of the MHT undertook daily welfare checks.1781 I find that during each of the welfare checks the applicant denied suffering from any mental health issues.1782 The applicant told the mental health nurses that he had no intention to self-harm or commit suicide.1783 However, I accept that he did continue to complain of insomnia. I will return to this. 2077 I find that in about March 2003 the applicant was informed that the Commonwealth had entered into a MOU with the government of Iran as a result of which he believed he was at risk of deportation if he did not accept an offer of money to voluntarily return to Iran.1784 The applicant declined the monetary offer 1774 T 1602.16-1603.11. 1775 T 1620.13-22. 1776 8ASoC [22.2.27]. 1777 Exhibit A1127. 1778 Exhibit A1227. 1779 8ASoC [22.2.28] 1780 Exhibit A1127. 1781 Exhibit A1227, T 1624.30-1626.1, 7698.6-13, 7734.30-33. 1782 Exhibit A1227, T 1630.12-15, 7640.10-34, 7755.26-36, 7763-7764.11. 1783 T 578.32-38, 599.11-17. 1784 T 594.1-36. -- 473 of 647 -- [2025] SASC 59 Stanley J 470 to return voluntarily to Iran.1785 I accept that the applicant believed that if his application for special leave to appeal was rejected, he would be deported.1786 2078 The applicant alleges that after he was released from the Management Unit on 13 March 2003 he was feeling depressed and did not want to call his family as he usually did.1787 There is no documentary evidence or other corroboration in support of this allegation. 2079 Following the applicant’s release from the Management Unit on 13 March 2003 he was moved to Blue 3 compound. I find that once the applicant returned to Blue 3 until August 2003 he was consistently socially engaged with other detainees and DSOs. He worked on a regular basis. He was observed as being cooperative with staff and appearing fine.1788 While he was noted to be quiet, nonetheless he was observed to speak “with everyone”.1789 He watched videos at night. He was noted to be bored but enjoying the company of other detainees with whom he mixed well.1790 He was observed to be spending a lot of time in the company of Reza. 2080 The applicant alleges that he was detained in Blue 3 compound in restrictive conditions from 13 March 2003 to 29 March 2003.1791 While I accept the applicant was in Blue 3 there is no evidence to support a finding he was held there in restrictive conditions during this period. 2081 The applicant alleged in paragraph 22.1.18 of 8ASoC that he took an overdose of Tramadol in front of a guard on 23 March 2003. In the course of opening his counsel abandoned this plea.1792 He gave no evidence at trial of this event. I find it did not occur. 2082 I accept that on 2 April 2003 the applicant asked to see the ACM operations manager and threatened that if he did not see him within two days he would self- harm. The applicant did not carry out this threat and by 4 April 2003 the applicant was observed as being in a very good mood, laughing and joking with DSOs.1793 No action was taken against him in response to the threat.1794 He was not taken to the Management Unit at that time.1795 His threat was nevertheless effective in having some security restrictions lifted shortly thereafter.1796 1785 T 594.2-96.22. 1786 T 594.20-31, 597.23-598.2, 614.24-30, 616.7, 617.11-25. 1787 8ASoC [22.2.29]. 1788 Exhibits A1268, A1003. 1789 Exhibit A1268. 1790 Exhibit A1008. 1791 8ASoC [22.1.17]. 1792 T 300. 1793 Exhibit A1268. 1794 Exhibits A1015, A1012. 1795 T 1648.12-36. 1796 T 1650.28-1651.34. -- 474 of 647 -- [2025] SASC 59 Stanley J 471 2083 I accept that the applicant continued to have sleeping difficulties in April 2003. On 20 April 2003 he presented to the medical clinic1797 complaining of sleeping poorly since he was placed in immigration detention at the end of 2000. Nonetheless, in the weeks after 20 April he was observed by DSOs to be mixing well with everyone,1798 a “funny guy”, who got along with staff and detainees.1799 Again, in the ensuing weeks he was observed by DSOs to be “happy” and “well behaved” if sometimes “quiet.”1800 2084 The applicant alleges that on 2 May 2003 he was still suffering from stress.1801 This allegation is not supported by the evidence. While the applicant complained of insomnia, he did not complain of still suffering from stress.1802 2085 Similar observations of the applicant were made during May and June. On 29 June 2003 the applicant injured his left wrist playing soccer.1803 On 30 June 2003 there was a gathering of 13 detainees, including the applicant, where all were observed to be under the influence of some drug or alcohol.1804 No action appears to have been taken against the applicant in relation to this incident. I find that the applicant had not, as he claimed, withdrawn completely from all forms of recreation and sport at this point. There is evidence he was socialising, playing cards and watching television. 2086 During July 2003 the applicant was recorded by DSOs as being happy, quiet, compliant, positive, polite, in a good mood and talking and joking with officers. Notwithstanding his wrist injury he was recorded as playing soccer on 3 July 2003.1805 He reported himself as feeling “okay” on 24 July 2003.1806 I find that this pattern continued up until 8 August 2003 when the High Court refused his application for special leave. 2087 I accept that on 4 July 2003 the applicant asked an ACM officer how much longer he was to be categorised as “high risk” because of the escape attempt in March. He was advised that ACM was reviewing detainee risk levels and he would be notified if his risk level was lowered.1807 2088 The applicant alleges that because of his medical history and behaviour the mental health team visited him on 19 July 2003.1808 In fact on 19 July 2003 a RN recorded in the applicant’s individual management plan that he did not require 1797 Exhibit A1004. 1798 Exhibit A1268. 1799 Exhibit A1268. 1800 Exhibit A1004. 1801 8ASoC [22.2.32]. 1802 Exhibit A1004. 1803 Exhibit A1046. 1804 Exhibit A1062. 1805 Exhibit A1268. 1806 Exhibit A1268. 1807 Exhibits A1075, A1080. 1808 8ASoC [22.2.36]. -- 475 of 647 -- [2025] SASC 59 Stanley J 472 mental health intervention.1809 The applicant also alleged that on or about 19 July 2003, he was told by the MHT that there was nothing wrong with him mentally.1810 However he gave no evidence of this event. 2089 I accept that between at least May and August 2003 the applicant was complaining of, and sought treatment for, back pain.1811 2090 I find that the objective evidence does not support a finding that in the period between the applicant’s release from the Management Unit in March 2003 and the High Court’s refusal of his application for special leave on 8 August 2003 that he was suffering from a recognisable psychiatric illness. 2091 I find that on 11 August 2003 the applicant deliberately took an overdose of Tramadol after learning that his application for special leave had been rejected.1812 He did so with the intention of taking his own life. He was overwhelmed by the rejection of his bid for asylum in Australia. He thought his situation was hopeless. I will return to this. 2092 Contrary to the applicant’s evidence, he was not taken to the medical centre or the Management Unit, or otherwise strip-searched at those locations, or at all, following the overdose on 11 August 2003.1813 Accordingly, the applicant’s allegation that on or about 14 August 2003 he told the mental health team that he was mentally well when he was not so that he could get out of the Management Unit is not true.1814 2093 I am satisfied that the suicide attempt was symptomatic of a recognisable psychiatric injury at this time, probably an Adjustment Disorder. However, I find that he recovered from this injury relatively quickly and that such a diagnosis would have been appropriate only for few months after 11 August 2003. I will return to this. 2094 I find that the applicant did not attend the Port Augusta Hospital to have his stomach pumped due to an overdose of medication. Accordingly, the allegations in the pleadings; his Outline of Evidence; and his affidavit material to the contrary, are false and misleading. The applicant never had his stomach pumped. 2095 The applicant alleges that he was humiliated by being handcuffed when being taken to Port Augusta on 22 and 29 August 2003 for physiotherapy and orthopaedic treatment due to the refusal of the accompanying DSOs to conceal the handcuffs with clothing.1815 I accept that the applicant was handcuffed on 1809 Exhibit A769. 1810 8ASoC [22.1.21]. 1811 Exhibits A1004, A1098. 1812 T 629.18-25. 1813 T 1711.17-25, 1712.23-1713.3. 1814 8ASoC [22.1.28]. 1815 8ASoC 22.1.30. -- 476 of 647 -- [2025] SASC 59 Stanley J 473 22 August 2003 while being transported to Port Augusta.1816 However, there is no documentary evidence that handcuffs were used on 29 August 2003. Even assuming that the bare allegation was true, and that the applicant felt humiliated by being seen handcuffed, I do not accept that this incident caused or materially contributed to depressive symptoms he was experiencing around this time following the rejection of his application for special leave on 8 August. 2096 The applicant alleges that in December 2003 he deliberately self-harmed.1817 This allegation is not supported by the evidence.1818 2097 The applicant alleges that on or about 7 December 2003 he told the mental health team that he was unwell and still unable to sleep because he had nightmares.1819 This allegation finds no support in the evidence. On the contrary, on 4 December 2003 Shirley Ellison, the case manager, noted in the applicant’s individual management plan that the applicant was seen in the compound by the mental health team and reported no new medical issues.1820 2098 I accept that the applicant started using marijuana from about November or December 2003.1821 The applicant found marijuana had a calming effect on him. I accept that he largely used marijuana in lieu of prescribed medication.1822 I will return to this. 2099 I accept that toward the latter part of 2003 the applicant was approached by a female member of the MHT. He was asked if he wanted to talk, or to “get things off his chest”. He rebuffed this offer because as she explained she could do nothing to assist him to obtain a visa or to get him out of detention. I accept that the applicant insisted that no further meetings of that kind be arranged.1823 2100 The applicant was released from detention on 27 April 2005. At that time he was not suffering a recognisable psychiatric injury. I will return to this. What occurred during the applicant’s transfer from Red 3 to Blue 3 on 22 January 2003? 2101 On 22 January 2003 the applicant was transferred from Red 3 to Blue 3. The applicant gave evidence that the transfer occurred around 3 or 4 a.m; DSOs entered his room shouting; he was placed face down on the floor; a DSO named Navid assaulted him by forcefully dropping his knee into the applicant’s lower back; he was handcuffed with plastic ties with his hands behind his back; a DSO lifted him by the back of his shirt to his feet; he was pulled to his feet by another DSO holding 1816 Exhibits A769, A1166. 1817 8ASoC [22.2.41]. 1818 Exhibits A1268, A769, A1154. 1819 8ASoC [22.2.42]. 1820 Exhibit A769. 1821 T 622.22-623.5, 645.5-16. 1822 T 644.28-36. 1823 T 649.26-650.9. -- 477 of 647 -- [2025] SASC 59 Stanley J 474 the applicant’s wrists; he suffered injury to his lower back and neck; he was strip- searched; and, he was taken from his room and transferred in a van to Blue 3.1824 2102 With the exception of his evidence regarding being strip-searched, I am satisfied that the applicant’s evidence on this topic is wrong. There was video of the transfer. The video evidence supports a finding that the transfer occurred in daylight rather than at night and his hands were not tied behind his back. There was no obvious evidence of him being in back pain.1825 2103 The video depicts DSOs coming to the applicant’s unit. The applicant is led away from his room. No shouting can be heard on the audio. The applicant appears to have his hands cuffed in front of him. Notwithstanding this evidence the applicant insisted that the incident where Navid threw him to the floor, handcuffed his hands behind his back and kneed him in the back before he was pulled to his feet, actually occurred. He seemed to suggest that it was possible that it occurred on some occasion other than 22 January 2003, however he took the position that he could not accept that the video actually depicted the transfer of detainees from Red 3 to Blue 3. Yet there was only one occasion upon which the applicant was transferred from Red 3 to Blue 3. This was 22 January 2003. The video clearly depicts the transfer occurring during daylight hours. 2104 I do not accept his evidence that he was assaulted and handcuffed in the way he described. The applicant was cross-examined extensively about this incident. In his Statement of Claim as it stood at the commencement of the trial, it was alleged that the applicant was injured by a DSO kneeing him in the back while he was in the Management Unit from 1 to 3 January 2003. However, the applicant’s counsel opened on the basis that this incident occurred on 22 January 2003 in the applicant’s room in Red 3 when he and another 13 detainees were being transferred to Blue 3. This was the evidence he gave in chief. The Statement of Claim was subsequently amended to reflect this. The applicant gave evidence that he was always mentioning his back pain to the nurses at the medical centre but they did nothing in response for some months until they referred him for physiotherapy. 2105 I find that he was transferred with other detainees from Red 3 to Blue 3 at around 7 a.m. in daylight, and that the process was quiet and orderly.1826 When he emerged from his room the applicant had his hands cuffed with zip ties in front of his body and he walked to the transfer van without any apparent discomfort and made no complaint. Further, he sought no treatment for an injury to his back until months later.1827 2106 Notwithstanding the applicant’s continued insistence that this incident occurred as he described it at the time of the transfer from Red 3 to Blue 3, in 1824 T541 – 543. 1825 Exhibits A887, A889, A875, A769, A877. 1826 Exhibit A877. 1827 T 290, 542.20-542.29, 620. -- 478 of 647 -- [2025] SASC 59 Stanley J 475 closing addresses senior counsel for the applicant submitted that the Court should find that such an incident occurred at some other time and place. I am not prepared to do so. On the applicant’s case this was a significant event with long-term consequences for his physical wellbeing. This submission implicitly reflected a stark flaw in the applicant’s evidence. Given the profound hesitation I have in relying upon his evidence, I am disinclined to find that notwithstanding the overwhelming evidence that such an event did not occur as the applicant described it, I should accept that it did occur at some other time and in some other circumstance. I find that he concocted this account of him being kneed in the back by a DSO. What occurred during the protest and self-harming incident of 6 February 2003? 2107 On 6 February 2003 there was an incident in the Blue 3 compound. The applicant had been in Blue 3 since 22 January 2003. The applicant along with the other detainees in Blue 3 were aggrieved about the restrictive conditions of the Blue 3 compound. Overwhelmingly, their concerns related to the lack of access to a telephone and the imposition of random room searches. They agreed upon a protest to attract the attention of staff in the compound.1828 In the applicant’s evidence he conceded that this incident was a protest against the conditions that existed in Blue 3 and that the strategy agreed upon to highlight their grievances was the infliction of self-harm.1829 The applicant gave evidence that he felt under severe stress. 2108 The detainees agreed that they were prepared to inflict non-lethal cuts to their bodies.1830 They used razor blades to cut themselves. The applicant inflicted about 40 superficial lacerations to his chest and one cut that was sufficiently deep to require the application of a steristrip. Other detainees inflicted more severe injuries upon themselves. Blood was shed. I accept it was a bloody scene. 2109 The detainees demanded to speak to someone from DIMIA. The infliction of injury was a deliberate tactic to secure specific objectives regarding the circumstances of the detention of the applicant and the other protesting detainees. That is how the applicant described his actions to Ms Rarity who treated him at the time.1831 2110 Negotiations occurred which resulted in an agreement brokered by ACM’s general manager. The protest succeeded in easing the conditions of their detention in Blue 3. The protest ended with an agreement that the protestors would surrender the razor blades; they would submit to medical treatment for their wounds; no one was to be sent to the Management Unit; and there would be discussions with DIMIA the following day.1832 1828 T 1577.15-28. 1829 T 1595-1598. 1830 T 1581.26-1582.9. 1831 Exhibit A1227, T 1597.34-1599.2. 1832 Exhibit A904, T 1594.1-25. -- 479 of 647 -- [2025] SASC 59 Stanley J 476 2111 Ms Rarity did not ask him whether he previously engaged in acts of self-harm or was considering further acts of self-harm. She gave evidence that she thought this was a failure on her part. I disagree. While she did not perform a full mental state assessment the applicant told her that he inflicted these injuries on himself as part of a protest.1833 It was clear from the medical progress notes she made that the applicant told her he had no intention of killing himself and denied suicidal ideation.1834 Either he volunteered this information or she elicited it from him by questioning. Ms Rarity gave evidence that she believed the applicant. As a result, she considered that neither a MHA or a psychiatric referral was warranted. In their evidence Dr Clarke1835 and Dr Schirripa1836 agreed with this assessment. 2112 I find that the applicant’s conduct on 6 February was part of a protest which was intended by him, and most if not all of the other detainees who participated in the protest, to effect a change in the circumstances in which he and they were being kept in Blue 3. 2113 The outcome of the incident demonstrated that while it can be characterised as an act of desperation on the part of the participants, including the applicant, it was not irrational, as it achieved the desired result. I find it was not necessarily indicative of some underlying psychiatric disorder on the part of the applicant. 2114 That is not to say the event was not dramatic and traumatic. Nonetheless, I accept the opinions of Dr Schirripa and Dr Clarke that the acts of self-harm by the applicant were not necessarily indicative of mental illness.1837 I also accept Dr Clarke’s opinion that it was likely the applicant was distressed when he self- harmed on this occasion. That was also Dr Raeside’s view. Dr Raeside accepted that it was reasonable to conclude that the applicant’s acts of self-harm were more likely driven by protest rather than his mental state.1838 The evidence does not establish that he was suffering from a psychiatric injury at this time. It is telling that when the applicant provided an initial history to Dr Raeside and Dr Schirripa he did not refer to the self-harm incident of 6 February 2003. Accordingly, I reject the applicant’s submission that the incident, while a protest, was a result of an underlying psychiatric injury, or at the very least, should have prompted a referral to a psychologist or psychiatrist. I accept that a possible response to an act of self- harm might be an investigation into whether that indicated an underlying psychiatric injury, but in this case, I do not consider that the failure to refer the applicant to a psychologist or psychiatrist was a breach of the Commonwealth’s duty of care, in circumstances where each of the detainees who participated in the “protest” engaged in acts of self-harm as a deliberate strategy to precipitate a desired response from the authorities at Baxter. The self-harming was not the act of an individual suffering an underlying mental illness but the participation of the 1833 Exhibit A1227 p 1, T 1597.34-1599-2. 1834 Exhibit A1227. 1835 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 8). 1836 T 6720-6722. 1837 Exhibit A1227,T 6721. 1838 T 6364. -- 480 of 647 -- [2025] SASC 59 Stanley J 477 applicant in an organised and planned action in which self-harm was an intended feature of a deliberate group strategy. The efficacy of the protest obviated the risk of any further act of self-harm by the applicant. 2115 By February 2003 the applicant had been in detention for more than two years and the circumstances under which he was detained were becoming harsher. He was no closer to being granted asylum. I am satisfied that was a precipitating factor in his participation in the protest. Although the protest secured his transfer to the less restrictive environment of Red 3, that did not completely alleviate his distress because it did not change the fundamental reality of his detention. 2116 While it was open to Ms Rarity to have referred the applicant to a psychiatrist at this time, in all the circumstances I do not think that was necessary or that the failure to do so constituted a breach of the Commonwealth’s duty of care. Did the applicant hide psychiatric symptoms while at Baxter because he feared he would be placed in the Management Unit or that it would adversely impact his visa prospects? 2117 The applicant’s evidence that he did not trust anybody within ACM, G4S or DIMIA enough to discuss his mental state must be rejected. I do not accept his evidence he believed that if he revealed he was suffering from a mental problem his chances of obtaining a visa would have been adversely affected, because ‘DIMIA would only ever release mentally healthy people’.1839 On the contrary, the applicant did complain to medical staff on a few occasions of feeling depressed. 2118 Similarly, I do not accept the applicant’s evidence that he denied suffering mental health problems in detention for fear of being placed in the Management Unit. His evidence was a convenient explanation he latched onto to explain the absence of such complaints. The applicant’s evidence does not accord with the documentary evidence. The fact is that in Baxter he did make the occasional complaint of being depressed or stressed, apparently without fear that this would result in him being placed in the Management Unit. 2119 I also do not accept the applicant’s allegation that one of the stressors to which he was subject was the threat contained in the Behaviour Management Plan he was required to sign on 7 October 2003, that he would be taken to the Management Unit and placed under close observation if he was suspected of attempting to harm himself in future. He alleges that this caused him to fear making any complaint about his mental health.1840 I accept that such a threat was made. 1841 However, I do not accept that this caused him to fear that a complaint about his mental health would result in him being placed in the Management Unit. The basis of the threat was what might happen if he self-harmed. 1839 T 716.34-38, 717.1-10, 716.29-717.10. 1840 8ASoC 22.1.34. 1841 Exhibit A1212. -- 481 of 647 -- [2025] SASC 59 Stanley J 478 2120 For example, in January 2003, some ten months earlier, when the applicant did indicate to ACM staff that he was concerned about his mental health, he was not removed to the Management Unit for assessment or observation.1842 It is clear that by this time the applicant held no fear of disclosing his concerns as to his mental health to mental health professionals. The applicant understood the notion of feeling depressed. He recognised it was open to him to seek medical assistance without fear of any negative repercussions should he do so. 2121 Neither of the applicant’s placements in the Management Unit at Baxter were the result of him telling a doctor or a nurse that he was feeling emotionally unwell.1843 2122 An indication that the prospect of being placed in the Management Unit may not have been so frightening for the applicant is reflected in his failure to mention the Management Unit when Dr Raeside took his initial history in November 2010. 2123 While I accept that he disliked being placed in the Management Unit and preferred to avoid it, I consider his denials of mental health problems were genuine. That is consistent with the overwhelming weight of the contemporaneous evidence. The movement logs and the medical centre records after February 2003 do not evidence, as Dr Schirripa and Dr Clarke said, a person suffering a psychiatric injury. I accept that an exception was the suicide attempt on 11 August 2003 following the rejection of his application for special leave when he denied self-harm ideation to avoid placement in the Management Unit. As I have found I accept that the applicant intended to take his own life on that occasion. But while he was reactively angry and distressed by triggering events in the course of his time in detention, the causes of that distress were the length and indeterminate nature of immigration detention, the rejection of his appeals from the refusal of his application for a protection visa and his fear of deportation, both of himself and others. Conveniently, he now testifies that he falsely denied the existence of symptoms of psychiatric illness to numerous staff of ACM, G4S and DIMIA. I do not accept his evidence in that regard. 2124 I find that the truth is he did not complain very often in the four-and-a-half years he was in mandatory detention because he was not suffering significant mental health problems. That is not to deny his unhappiness and anger about his continued detention. I find that on those occasions when he did complain of depression, he was symptomatically distressed. Yet these occasions were infrequent and again, I find that they resulted from the fact of his detention, the indeterminate nature of his detention, his inability to obtain a TPV, and his fear of deportation. These were the circumstances that led him to attempt suicide in August 2003. The rejection of his final avenue of appeal left him in a state of despair. 1842 T 1586.16-32. 1843 T 1563.18-21. -- 482 of 647 -- [2025] SASC 59 Stanley J 479 2125 Additionally the applicant’s evidence that he feared that if he reported mental health issues it would adversely affect his prospects of obtaining a visa because of the stigma he associated with mental illness in Iran was contradicted by the evidence of Mr Namavar.1844 He gave evidence that in Iran people who needed treatment for mental illness would go to a psychiatrist. The applicant’s placement in the Management Unit between 5 to 13 March 2003 2126 Following the discovery of the tunnel on 5 March 2003, the applicant was placed in the Management Unit. He was kept there until 13 March 2003 when he was moved to Blue 3. I accept that at this time the intelligence reports available to the AFP, DIMIA and ACM indicated that there was a risk of organised mass protests occurring outside of Baxter during Easter 2003. I find it was justifiable to hold the applicant in isolation from other detainees while the circumstances of the tunnel digging incident were investigated by the AFP. At the time of the discovery of the tunnel Mr Burns was of the view that while a successful escape through the tunnel was a “tall ask”, he did not consider it completely impossible.1845 I accept that evidence. I consider it was reasonable of the Commonwealth to deal with the applicant on the basis that he had attempted to escape notwithstanding the conclusion later reached by the AFP that there was no prospect of the escape succeeding.1846 2127 However, while in the Management Unit he was not interviewed by the AFP or DIMIA or ACM about the attempted escape. It is apparent that from 5 March 2003 to 13 March 2003 the Commonwealth by their agent ACM in effect delegated their responsibility for the terms of the applicant’s detention at Baxter to the AFP. I consider that by 10 March 2003 it must have been fairly apparent that there was no reason to keep the applicant in the Management Unit except to await interview by the AFP. However, there is no evidence that the AFP asked that the applicant be kept in isolation in the Management Unit until it could interview him. Even if it had, that was still a matter for the Commonwealth, not the AFP. Once the applicant had been in isolation for five days without being interviewed by the AFP it was unreasonable not to release him from the Management Unit. I find that there was not a sufficient justification for the applicant’s continued placement in the Management Unit for this period. 2128 It appears the length of his confinement was the result of inertia. Mr Burns said that he left the applicant in the Management Unit pending investigation by the AFP who he expected would want to interview the applicant. When he decided to place the applicant in the Management Unit he did not have a plan beyond the AFP interviewing the applicant.1847 For reasons that are unclear, the AFP did not attend at Baxter to interview the applicant before 13 March 2003. It seems that as the days went by the Commonwealth just waited for the AFP. Once a few days had 1844 T 2526.9-2527.1. 1845 T 8222. 1846 Exhibit A1105. 1847 T 8198-8919. -- 483 of 647 -- [2025] SASC 59 Stanley J 480 passed permitting the AFP time to interview the applicant without him having the opportunity to speak with others who had some involvement in digging the tunnel, there was nothing in the applicant’s conduct which dictated a security or safety consideration justifying his continued presence in the Management Unit. On the contrary, the conclusion reached on assessment by the MURT on 13 March, which ultimately resulted in his release, was based on factors which had existed for some days. So much is evident from the individual management plan records relating to the applicant.1848 2129 They record that on 6 March it was decided at a MURT meeting that the applicant and Mr Reza should remain in the Management Unit until the following day when their situation would be reviewed. The meeting was told that both of them had been well behaved since they were placed in the Management Unit. Members of MURT were waiting for the AFP to interview them. On Friday 7 March the members of the MURT were told that the AFP were at Baxter and believed to be seeing the applicant and Mr Reza. MURT decided to wait until Monday to see if there was an outcome at which time the position would be further reviewed. On Monday 10 March the MURT meeting discussed how long the applicant and Mr Reza would need to stay in the Management Unit as it appeared the AFP had not yet interviewed them. It was decided that for the security and good order of Baxter they should remain in the Management Unit until the AFP had spoken to them. On 11 March the MURT decided they could not put a recommendation to the Operations Manager because the AFP had still not interviewed them. On 12 March the MURT received a report from the Management Unit supervisor that the applicant’s and Mr Reza’s behaviour had been excellent and they had followed all instructions. It was decided that the MURT would recommend their release from the Management Unit if the AFP had not interviewed them by the following day. On 13 March, the AFP not having interviewed them, they were released. 2130 I find that the applicant was compliant with directions given by DSOs from the commencement of his placement in the Management Unit on 5 March. The Commonwealth had sufficient opportunity to assess the risk of a further escape attempt. That was not the role of the AFP. That the AFP did not attend as quickly as expected did not justify the continuing incarceration of the applicant given his compliant conduct. I do not accept ACM’s submission that it was timely and fair to release the applicant from the Management Unit on 13 March given the ongoing delays by the AFP. 2131 In my view the Commonwealth breached its duty of care by leaving the applicant in the Management Unit longer than was necessary. That being the case, however, the evidence does not support a finding that the applicant suffered any psychiatric injury as a result of the three days he was confined in the Management Unit in breach of the Commonwealth’s duty of care. 1848 Exhibit A769. -- 484 of 647 -- [2025] SASC 59 Stanley J 481 2132 The applicant’s mental health was monitored during his placement in the Management Unit and no concerns were identified. Further, on the days following his release from the Management Unit on 13 March 2003 the applicant was observed and recorded as appearing “happy” or “fine” with “no real problems”.1849 2133 I do not accept the submission that the applicant was mentally scarred by his time in the Management Unit and withdrew from social interaction as a result. That submission is inconsistent with the objective evidence. I find the applicant was not depressed. I am satisfied that the applicant found his two experiences of being in the Management Unit were unpleasant, oppressive experiences he wished to avoid in the future. However, the evidence does not satisfy me that these experiences caused or materially contributed to the Adjustment Disorder the applicant suffered in August 2003. A period of five months elapsed between the last occasion he was in the Management Unit and the onset of that injury. 2134 The applicant submitted that the escape attempt was an indication he was suffering from a recognisable psychiatric injury. He gave evidence that he thought someone would recognise that the digging of the hole was such an act of desperation that he required treatment.1850 Mr Namavar’s supported this proposition in his evidence by saying that he could not understand why the applicant and Reza had attempted it, that the distance involved would have meant they had to dig for “150 years” and that he thought only a crazy person would attempt it. Mr Sovi also gave evidence he thought the attempt was futile and that the applicant turning himself in was not something a mentally healthy person would do. 2135 The applicant submits that Professor Jureidini’s evidence ought to be given great weight because inter alia he picked up on the psychiatric relevance of the escape attempt.1851 Professor Jureidini said that the attempt was a “pretty crazy way of trying to escape.”1852 I understood Professor Jureidini to be using the word ‘crazy’ in a non-clinical sense. Dr Raeside considered the hole digging incident to be an indication of the depth of his distress because of the futility of the attempt.1853 Dr Schirripa considered that the escape attempt was evidence that the applicant was not thinking clearly and he agreed the applicant’s subsequent placement in the Management Unit for nine days could have precipitated mental illness.1854 While I accept this evidence, I ultimately find that digging the hole was not necessarily symptomatic of a psychiatric injury. For one thing, the observations of the co- detainee witnesses are not persuasive as they are not qualified to give expert evidence. I prefer the evidence of Dr Clarke. Dr Clarke, while accepting that digging the tunnel was an act of desperation, considered that the tunnel was not evidence of a disordered mind, nor did it raise a red flag requiring further 1849 Exhibit A1268. 1850 T 719. 1851 T 10090. 1852 T 5491. 1853 T 6374-6375. 1854 T 6727-6728. -- 485 of 647 -- [2025] SASC 59 Stanley J 482 investigation.1855 Dr Clarke did not consider a full MHA ought to have been performed as a result. Considering his evidence, and the documentary evidence of the medical staff who observed the applicant throughout his time in the Management Unit on this occasion, I find that the escape attempt was not an indication the applicant was suffering from a recognisable psychiatric injury. 2136 I also reject the applicant’s evidence that he did not have access to a newspaper in the Management Unit. That is contrary to the documentary evidence which I accept in preference to the applicant’s evidence.1856 The applicant’s mental health in March 2003 2137 Ms Rarity acknowledged that when assessing the applicant in March 2003, after the tunnel was discovered, she was unaware that Dr Ojah had previously identified him as suffering from severe stress and that he had been in detention for more than 26 months. Her evidence was that had she been aware of these matters she would have referred the applicant to a psychologist and discussed him at an HRAT meeting. However, for the reasons I have just canvassed, I do not consider this would have resulted in a different outcome. If he had been referred to a psychologist I am satisfied that he would have denied that he was depressed. Further, I am satisfied that that was the truth of the situation. 2138 I note for the sake of completeness the entry in the movement log for Wednesday 2 April 2003. It is reported that the applicant told a DSO, Brad Paull, that if he did not see the operations manager by Friday he would self-harm.1857 The applicant does not seem to have placed any great reliance on this evidence. That may be because nothing seems to have come of the applicant’s threat. Not only did he not self-harm, but by that Friday he was recorded as having gone to the gym and been in a very happy mood, laughing and joking with DSOs.1858 2139 The applicant claims that he was further stressed by the news of the MOU in March 2003 and the offer by DIMIA of $AUD2,000 if he voluntarily returned to Iran. I do not accept that this could have caused any substantive distress to the applicant. He was under no obligation to accept the offer and he did not. In any event, neither the entry into the MOU or the offer of $2,000 involved a breach of the Commonwealth’s duty of care. Both entry into the MOU and the offer to the applicant was made in the exercise of the executive power. At least in the case of the entry into the MOU that was a decision made as a matter of high government policy. It is non-justiciable. Even if the offer is justiciable, it did not involve a breach of the Commonwealth’s duty of care. It was an offer made at a time the applicant was facing the prospect of deportation to Iran. There is no breach of duty in offering a financial incentive to do voluntarily what he was at risk of being compelled to do involuntarily. Further, even if the offer made by DIMIA to the 1855 T 8583 - 8584. 1856 Exhibit A974, T 582.30-38. 1857 Exhibits A1015 and A1012. 1858 Exhibit A1268. -- 486 of 647 -- [2025] SASC 59 Stanley J 483 applicant to return to Iran in consideration of the payment of $2,000 materially contributed to his distress, it does not sound in damages for the same reason that a decision to deport him would not have given rise to any liability in negligence on the part of the Commonwealth. Reliance on DSO notes between the fires and the overdose 2140 The applicant submits that the DSO notes of observations made of the applicant during the period from the fires until the overdose of 11 August 2003 are unreliable. The basis of this submission is the evidence of the applicant’s mental decline over this period which is not mentioned in the notes. This leads to the proposition that the failure to detect the applicant’s declining mental health make the DSO’s notes an unreliable basis for making findings of fact. I do not accept this submission. It proceeds from the premise that during that period the applicant’s mental health was in decline. At least for the period from around the end of February to 8 August 2003 that proposition does not find support in the evidence upon which I am prepared to rely. On the contrary, the evidence points to a lack of complaint about being depressed or stressed from shortly after 7 February until the overdose. As I have found, the overdose was a reaction to the refusal of the application for special leave on 8 August 2003. Those findings explain the absence of observations of the applicant suffering from declining mental health during the intervening period. 2141 Professor Jureidini gave some weight to the notes in interpreting the applicant’s mental state but he cautioned against an overreliance on those observations, making the point that the notes do not necessarily record the occasions when the applicant was lying on his bed in his room. Accepting this caution does not undermine the reliability of the notes as evidence of the applicant’s mental state from time to time. Professor Jureidini’s default position was that the applicant’s mental health was damaged by the experience of being in detention and accordingly, the relevant enquiry is whether the notes provide evidence that the applicant’s mental health should not be of concern. In my view, even allowing for the applicant spending time in his room during that period, this does not exclude the probative value of the recorded observations evidencing a person who when out of his room was not displaying signs or symptoms of mental ill-health. Was the overdose on 11 August 2003 a genuine suicide attempt? 2142 It is not contested that an incident occurred in the recreation room in Blue 3 on 11 August 2003. There was a dispute at trial as to whether this incident was a suicide attempt by the applicant and whether it was evidence of the existence of psychiatric illness. 2143 There is no issue that the applicant collapsed in the recreation room in the presence of a group of detainees who were watching a game of soccer on television. He was observed to be rigid, shaking and clenching his teeth. It was thought he was suffering a seizure. Someone tried to put something in his mouth -- 487 of 647 -- [2025] SASC 59 Stanley J 484 presumably to prevent him from biting or swallowing his tongue. A detention officer was notified and he summonsed the medical team. The applicant was assessed and treated by nurses. His appearance was recorded as “ashen”, hot and clammy. He appeared to be conscious but unresponsive to verbal requests. Neurological observations were taken and it was observed that his pupils were dilated. The medical notes record that he shrank from physical touch. He appeared confused and he was uncooperative. His behaviour was recorded as “aggressive”. A nurse called for a stretcher. About five minutes later the stretcher was brought into the recreation room. He refused to go to the medical centre. When asked to get on the stretcher the applicant sat up, stood and started to walk back to his room. When he reached his room he was more responsive and verbally cooperative. He sat on the floor and told a nurse that he felt much better. He appeared oriented. He told the nurse that he had taken two tablets two hours earlier. He later amended this number to five. 1859 He would not provide any other details in relation to the incident. It was decided by the medical team that the applicant could remain in the compound, as trying to move him would only cause more stress and would detrimentally affect his recovery.1860 He was subject to visual checks by DSOs every five minutes and nurses every half hour. After some hours these checks were undertaken every 15 minutes and then reduced to hourly.1861 2144 The applicant was monitored over a period of some days. Subsequently he was followed up by nursing staff checking on his mental and physical wellbeing. He refused to attend an appointment with a doctor. The next day observations were satisfactory, his pupils were equal and reacting, and he reported that he felt okay. On 14 August, during a mental health review, he reported that he was feeling fine and had no current issues or concerns, no feelings of self-harm or suicidal ideation. He again denied any intention to take his own life. The following day there was an HRAT review. 2145 On 20 August 2003 the ACM shift manager, Mr Brown, provided an incident follow-up report in relation to the overdose incident of 11 August. That report notes that members of the MHT had physically and psychologically reviewed the applicant at 1:00 a.m. on 11 August; that his observations were normal; that he had shown no signs of self-harm or suicidal ideation; that he could guarantee his own safety; and that he had stated to the MHT that he had taken the tablets so he could get a good night’s sleep.1862 2146 Throughout this time he denied any suicidal intention claiming that he just wanted to sleep. However, in his evidence he claims that he lied and that he took between 25 and 30 Tramadol tablets and that he did so with the intention of taking his life. The applicant also failed to provide a history of a suicide attempt to Dr Schirripa when he saw him in March 2013. 1859 T 1704.31-36. 1860 Exhibits A1098, A1114, A1118, A1125, A1126, A1130, A1133, A1136 and A1268. 1861 Exhibits A1268, A1113, A1098 and A769. 1862 Exhibit A1515. -- 488 of 647 -- [2025] SASC 59 Stanley J 485 2147 The Commonwealth, ACM and G4S challenge the applicant’s evidence. I am satisfied that this incident involved a genuine suicide attempt by the applicant notwithstanding his subsequent denials. I am satisfied he took a large number of Tramadol tablets. I am unable to make a precise finding as to how many Tramadol tablets he took. Nonetheless I find that he took more than a therapeutically prescribed dose and as a result he suffered an adverse reaction. He deliberately concealed the true number of tablets and his intention to kill himself from nursing staff. 2148 I further find that the applicant deliberately misled those treating him about his suicidal intentions because he feared he would be placed in the Management Unit. While he had previously been prepared to discuss his mental health issues with medical and nursing staff at Baxter without concern that he would be placed in the Management Unit this was different. Unlike complaints of feeling depressed which he did not believe would lead to the Management Unit, I accept that he believed that a suicide attempt placed him at risk of being returned to the Management Unit. 2149 Dr Kapur gave evidence that the observations by the nurse of the applicant’s pupil size over the period from 0045 to 0430 on 11 August was inconsistent with the applicant’s evidence that he had taken a much larger number of Tramadol tablets than the five he had mentioned to the nurse. His opinion is that a general feature of opioids such as Tramadol is that they constrict rather than dilate the pupils. Pupil size is generally reported in a range from 1 to 7mm where 7mm is considered fully dilated and 1mm indicates full myosis.1863 The first observation made by the nurse at 0045 was that the pupils were fully dilated. She assessed the pupils as being at 7mm. At 0430 she assessed the pupils as being 4mm. The applicant submits that these records evidence pupils that were constricting in size over the period under observation. As a result, he submits that this is evidence of an overdose. I do not accept this submission. Dr Kapur’s opinion is that pupils in the range of 4-5mm are considered normal. The initial observation is the opposite of what would be expected if the applicant had overdosed. The subsequent constriction of the pupils merely evidenced a return to normality. None of that supports an overdose, even allowing for the exigencies of timing which might have influenced the reactions of the applicant’s pupils. On the other hand, this evidence does not exclude the possibility that the applicant thought he had taken a fatal dose. I find that he thought he did. 2150 On balance, notwithstanding the evidence of Dr Kapur, I am satisfied that the applicant intended to take his own life by reason of the timing of the ingestion of the Tramadol tablets. This incident occurred within a couple of days after the applicant was made aware that his application for special leave to appeal to the High Court had been dismissed. As a result he was then exposed either to the very real risk of deportation to Iran or, at best, continued indefinite detention without any real prospect of obtaining a visa which would permit his release into the 1863 T 7870. -- 489 of 647 -- [2025] SASC 59 Stanley J 486 Australian community. I infer that for the applicant the rejection of his final legal avenue of appeal was crushing. I find that the attempt to take his own life was motivated by his inability to see any way out of detention. It was this overwhelming sense of hopelessness that led him to attempt suicide. His situation at 11 August 2003 could only be described as desperate. 2151 There is a compelling logic to the applicant deciding to end his life in circumstances where his prospects of obtaining a visa, which would permit his release into the Australian community, appeared hopeless. It is the logic of these events which persuades me to accept the applicant’s evidence concerning this matter notwithstanding my reluctance to rely upon his uncorroborated evidence as a basis for making findings of fact. 2152 However, a finding that the applicant made a genuine suicide attempt does not establish that this was the result of any negligent act or omission on the part of the Commonwealth. On the contrary, I am unable to find that it was. The evidence of the applicant’s behaviour in the period from March 2003 to 11 August 2003 does not support a finding that the Commonwealth failed to take some action intended to prevent the applicant from making an attempt on his own life. There was nothing the applicant did in the months leading to 11 August 2003 which would have alerted staff at Baxter that he was a suicide risk. 2153 The applicant by this time had gone through the rejection by DIMIA of his application for a protection visa, and the dismissal of his subsequent appeals to the RRT, a single judge of the Federal Court and the Full Court of the Federal Court, without evidence of any adverse reaction on his part to the news. Instead, his evidence was, that after the rejection of his application for a visa by DIMIA, he had little expectation of the success of his subsequent appeals. Accordingly, there was nothing which would have alerted the Commonwealth that he should have been provided with counselling to avoid or reduce the risk of himself harming in reaction to the news that he had exhausted his appeal rights and was now exposed to the imminent risk of deportation. Manifestations of the applicant’s distress were understandable expressions of anger and frustration with his continued detention and not an indication of a long-term or permanent mental illness.1864 2154 Further, I find that given the history he provided to medical staff in the aftermath of the overdose, that his overdose was accidental, and his denial of any suicidal ideation, ACM’s clinical response of keeping the applicant under close observation in his room in the following days, and thereafter monitoring his physical and mental wellbeing, was a reasonable and appropriate clinical response.1865 2155 Additionally, I find that even if the applicant had been referred to a psychiatrist in the aftermath of the overdose, it is likely he would have given a 1864 Exhibit 1.3TP1767 at (Report of Dr Clarke 3 November 2020 at [25]). 1865 T 634.34-635.1, T 635.34-37. -- 490 of 647 -- [2025] SASC 59 Stanley J 487 psychiatrist the same account he gave to ACM staff.1866 It is likely that a psychiatrist would have monitored the applicant to satisfy himself or herself that his history accurately reflected an accidental overdose. The contemporaneous records of the applicant working, interacting with staff and socializing with other detainees in the immediate aftermath of the overdose would have corroborated the applicant’s story that this was not a suicide attempt. Dr Raeside considered that no further assessment or psychiatric treatment would have been necessary because of his observed level of functioning. Following the suicide attempt, the applicant adapted as best he could to his situation and did his best to cope and survive in detention. 2156 I accept the applicant suffered a transient psychiatric injury in the period from 8 August 2003. The psychiatric injury was in the nature of an Adjustment Disorder. It caused his suicide attempt. However, the psychiatric injury was not the result of any breach by the Commonwealth of its duty of care by reason of the failure to provide the applicant with counselling immediately after he was notified of the dismissal of his application for special leave. In any event, if there had been a breach of the Commonwealth’s duty it was not causative of any loss. Was the applicant suffering from a recognisable psychiatric injury between the suicide attempt on 11 August 2003 and his release from detention? 2157 I am satisfied that the suicide attempt was symptomatic of a depressive illness, namely an Adjustment Disorder. I find that he experienced a sense of hopelessness and desperation as a reaction to the particular circumstances that existed at that time. However it is apparent that by December 2003 the applicant had recovered from his sense of hopelessness and despair which had impelled him to attempt suicide and was no longer suffering from an Adjustment Disorder. Accordingly, I find that the episode of psychiatric injury between August and December 2003 was transitory and is not evidence of a long-term or permanent mental illness. 2158 Aspects of this finding are supported by the evidence of Dr Clarke. He considered that having regard to the discrepancy between the documentary records and the applicant’s history, the overdose incident was not evidence of a sustained mental illness. He doubted whether the applicant’s reaction exceeded what would be expected of any person in immigration detention.1867 He said there was a reasonable likelihood the overdose incident was part of the emotional upheaval the applicant experienced after learning of the failure of his special leave application. 2159 It is apparent the by December 2003 the applicant had well and truly resumed his usual life in detention. A life to which he had adjusted as disclosed by the documentary evidence. Putting to one side the period after the overdose incident, the applicant’s distress did not warrant a psychiatric diagnosis. The severity and 1866 T 6386.10-6387.1. 1867 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 6-7). -- 491 of 647 -- [2025] SASC 59 Stanley J 488 persistence of his distress apart from the four or five months after 8 August 2003, was not indicative of mental illness. 2160 The finding that following the overdose in August 2003 the applicant recovered from his sense of despair relatively quickly. is also supported by the documentary evidence in this period. By 15 August 2003 he was observed by a DSO to be “fine”, “very talkative” and “no problem”.1868 He resumed work and social activities within a very short period after the overdose.1869 In the months that followed the overdose the applicant was frequently described as happy, polite, in good spirits, socialising, working, attending numerous inter-compound visits, playing eight-ball, playing soccer and playing cards.1870 The observations are consistent throughout this period apart from a few exceptions. For example, the applicant expressed concerns about being moved between compounds;1871 made a complaint about delays associated with receiving an alarm clock;1872 was observed to have spent most of the day in bed on one occasion;1873 was noted to have not attended Education in August,1874 was recorded as being a little down, complaining of sinus pain for which he saw a nurse on one occasion;1875 reported experiencing back pain;1876 reported saying he wanted to move to White 1 as White 3 was not safe1877 and was recorded as keeping to himself on a few occasions.1878 2161 His presentation in 2004 was generally positive. There was no evidence in the contemporaneous documentary evidence of him suffering symptoms of a depressive illness after 2003. Rather than him having “given up” I find that he adapted as best he could to his situation and was doing the best he could to cope and survive in detention.1879 2162 In summary, the evidence of the contemporaneous documents satisfies me that, the applicant adapted to his circumstances and, far from being broken or giving up, tried to get on with his life as best he could, in what were objectively very difficult circumstances after his suicide attempt. Those circumstances were his continued long-term indefinite detention in a highly secure facility which carried the prospect of his sudden deportation and the deportation of his friends until at least February 2004 when Minister Vanstone announced that the Government no longer intended to forcibly deport Iranians seeking asylum. The existence of those circumstances over a long period necessarily must have adversely affected the applicant’s mood. I so find. However, he did not make any 1868 Exhibit A1268. 1869 Exhibit A1268, Exhibit A769. 1870 I refer to the Chronology entries from 16 August 2003 until 31 December 2003. 1871 30-9-03, Exhibit A1268. 1872 6-10-03, Exhibit A1268. 1873 14-10-03, Exhibit A1268. 1874 Exhibit A769. 1875 20-10-03, Exhibit A1268. 1876 Exhibit A769, 1877 Exhibit A1268. 1878 21-11-03, Exhibit A1268. 1879 Evidence of Dr Schirripa T 6654.13-6655.1, Dr Clarke T 8425.28-35, T 8660.16-18. -- 492 of 647 -- [2025] SASC 59 Stanley J 489 further suicide attempt. He mostly got on with his life doing the best he could. Mr Sovi’s evidence also provides some support for this finding. He gave evidence that after October 2003 he would visit the applicant in his room where he observed him sitting on the floor. However, he said that on these visits the applicant behaved normally.1880 He also gave evidence that towards the end of his time in Baxter the applicant was ‘kind of happy.’ I am satisfied that while it occurred gradually, the process of the applicant adapting to and accepting his circumstances was largely complete by the end of 2003. 2163 I am satisfied that from February 2004 until his release in April 2005 he found renewed hope in the possibility of his release into the Australian community. However, I accept that for the remainder of the period the applicant was in detention his mood would change reactively depending on the particular circumstances that existed from day to day. 2164 Nonetheless, there is no support in the contemporaneous documentary evidence for the applicant’s claim he was suffering from any recognisable psychiatric injury from some time after the suicide attempt until the applicant’s release from detention in 2005. Accordingly, I am not satisfied that he was suffering from a psychiatric injury in the period from the end of 2003 until his release. The detention records disclose that the applicant was not prescribed medication on a regular basis, while he was prescribed antidepressant medication that was not for the treatment of depression but for insomnia, and there was no indication of the need for the applicant to be treated for any mental health issue. On the occasion of his last assessment by the medical staff at Baxter on 26 April 2005 there was no reference to mental health issues.1881 The applicant’s marijuana use in Baxter 2165 It is uncontested that the applicant smoked marijuana while in Baxter. That is evidenced by the contemporaneous documentary record. 2166 The applicant gave evidence that while at Baxter he was a heavy user of marijuana. He described initial use every two or three days escalating to daily use.1882 In cross-examination the applicant accepted it was probably true he was smoking marijuana every day.1883 I accept that sometimes when marijuana was unavailable, he would use Diazepam or Tramadol.1884 2167 He claimed that generally he would smoke marijuana with other detainees either in his room or their rooms. He would frequently go on inter-compound visits for this purpose. He said the use of marijuana would relax him and have a calming effect. 1880 T 3309.13-15. 1881 Exhibit A1405. 1882 T 644.3-7, 653.1-11. 1883 T 1856.7-26. 1884 T 672.3-15. -- 493 of 647 -- [2025] SASC 59 Stanley J 490 2168 The documentary records evidence him being observed under the influence of cannabis or being in possession of contraband used for smoking marijuana. Examples of such entries can be found in the chronology on 25 November 2003, 12 December 2003, 1 March 2004, 7-13 March 2004, 28 June 2004, 16 August 2004, 19 October 2004, 20 October 2004, 31 October 2004 and 15 November 2004.1885 2169 I am unable to make any precise finding as to the frequency with which he was using marijuana in Baxter other than to accept that he was using marijuana regularly. I also accept the evidence of Dr Raeside that the applicant’s use of marijuana was likely to have improved his mood. However, there is no psychiatric evidence that attributes any causal relationship between the applicant’s use of marijuana and the development of an Adjustment Disorder with Depressed Mood and Anxiety or a Persistent Depressive Disorder. The applicant’s evidence was that his use of marijuana masked his psychiatric symptoms. That would be to ignore the evidence of his fluctuating but elevated mood for much of the time he was in Baxter. The difficulty with that evidence is that it proceeds from an assumption that he had a psychiatric injury. As I have found, apart from the period of a few months from early August 2003, the applicant has failed to prove this case. Did the applicant experience insomnia at Baxter? 2170 I am satisfied that periodically the applicant suffered from insomnia. I find that the cause of his insomnia was multifactorial. I am satisfied that the applicant found it difficult to sleep from time to time when he was angry and distressed by his situation in detention. In addition, I am satisfied that his difficulties with sleeping at night were the result of his lifestyle in which he often stayed up visiting other detainees, talking and smoking marijuana and sleeping during the day. I find that this disrupted the usual diurnal pattern. Complaints of insomnia amongst detainees were commonplace at Baxter. In a detention setting, insomnia is not necessarily indicative of mental illness.1886 Generally it was the result of the practice, widespread among the single male detainees, of socialising at night and sleeping during part of the day. It was a practice adopted by the applicant and his friends. An important aspect of the evidence of the applicant concerning his sleeping difficulty is that in large part it concerned timing. The applicant complained that he was unable to sleep at night rather than being unable to sleep at all. He was able to sleep. He was complaining that he was sleeping during the day rather than at night. As Dr Clarke observed, this pattern may well have caused difficulty sleeping at regular hours.1887 For example: 18-3-03 Medical Progress Notes: Says he is unable to sleep at night. Asleep at 11am till 5pm. He does not know why he was brought here. He is sleeping enough hours. He needs to turn 1885 Exhibits A1268, A769, A594, 2.4TP34, A1333, A1532. 1886 Evidence of Dr Clarke T 8503.37-8504.29. 1887 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 9). -- 494 of 647 -- [2025] SASC 59 Stanley J 491 his system around. He asked why he was brought here if we can’t give him treatment. He does not want any Restavit evening.1888 22-3-03 DSO Case Note: Slept all day.1889 23-3-03 DSO Case Note: slept most of the day. 1890 26-3-03 DSO Case Note: got some movies from Red 3 tonight, watched a couple then went to bed at about 0430. 1891 27-3-03 Individual Management Plan: MURT review. Enjoys the company of his fellow detainees and mixes well with them. Currently he is bored and sleeps all day but spends all night watching videos or sitting around talking. He and Reza are best friends and they are both of one opinion that it is in their best interest to behave. 1892 DSO Case Note: Up late tonight. Seems happy enough. Communicating with DSOs well. As usual hanging out with Reza a lot. 1893 31-3-03 DSO Case Note: Went to bed just after lunch today, said to him tomorrow we will go to gym and let him pick out some videos. 1894 9-9-03 DSO Case Note: Played pool and visited with friends. Always goes to bed late (0500–0600). Likes to laugh and joke. 1895 2171 Complaints of being unable to sleep were widespread and had a variety of causes. 2172 Ms Rarity saw the applicant on 6 March 2003 after he and Reza were found digging the tunnel. She was aware that as a result the applicant was placed in the Management Unit because ACM and DIMIA considered he was an escape risk. The applicant told her that he was not sleeping and wanted a prescription for sleeping tablets and to see the doctor. She made an appointment for him in two weeks’ time which was the earliest appointment available. She noted that his mental state appeared settled, he had no further physical complaints and had no ideas of self-harm or suicide. It was not uncommon for detainees to request 1888 Exhibit A1004. 1889 Exhibit A1268. 1890 Exhibit A1268. 1891 Exhibit A1268. 1892 Exhibit A769. 1893 Exhibit A1268. 1894 Exhibit A1268. 1895 Exhibit A1268. -- 495 of 647 -- [2025] SASC 59 Stanley J 492 sleeping tablets. She did not consider that a referral to a psychiatrist was needed at that time. Again, while it was open to her to have referred the applicant to a psychiatrist at this time, in all the circumstances I do not think that was necessary or that the failure to do so constituted a breach of the Commonwealth’s duty of care. On its face, the applicant’s conduct was consistent with an escape attempt. Such an attempt did not necessarily evidence psychiatric injury. There was nothing else apparent at that time that did so. I do not consider that there was any error on her part in concluding that the complaint of difficulty sleeping did not warrant psychiatric review at that time. There was nothing about the applicant’s presentation which indicated that he was suffering symptoms of a psychiatric injury. His mental state appeared settled. He was not experiencing any suicidal or self-harm ideations. 2173 While I accept the applicant suffered from insomnia at various points during his time at Baxter, I am not satisfied that this was indicative of the applicant suffering from a recognisable psychiatric injury. Does the evidence support a finding that the applicant socially isolated himself towards the end of detention? 2174 The applicant gave evidence that during his time detained at Baxter, but particularly from the end of 2003 until at least the end of 2004, he spent most of his time isolated in his room, having little contact with his fellow detainees.1896 His evidence was supported by the evidence of other detainees such as Mr Paparzadeh and Mr Shahrooei. Their evidence was that from the suicide attempt in August 2003, or at least from October 2003, when the applicant was transferred to White 3 compound, that he was overwhelmingly spending his time isolated in his room. 2175 Despite his evidence to the contrary, I find the applicant did not substantially withdraw from social interactions or work from August 2003 onwards. I do not accept this evidence as it is inconsistent with the contemporaneous documentary evidence. The movement logs, medical progress notes and DSO care notes support a finding that the applicant was actively socialising with other detainees in this period. The extensive and contemporaneous records of his interactions and demeanour, viewed longitudinally, contradict the applicant’s assertions. His recorded interactions with other detainees and DSOs are inconsistent with his claims to being seriously depressed. Considered as a whole the contemporaneous documentary evidence from that period does not support the applicant’s account of isolation, or the impression of the other detainee witnesses of social seclusion and functional incapacity.1897 The evidence demonstrates the applicant was socially engaged with other detainees and working in the compounds and kitchen. Even when he was in his room he was often watching DVDs or TV rather than being withdrawn and secluded. There was one occasion in December 2004 where a DSO 1896 T 653.30. 1897 Exhibits A697, A889, A1227, A1004, A1098, A1154, A1303, A1315, A1346 and A1405. -- 496 of 647 -- [2025] SASC 59 Stanley J 493 described the applicant as the social butterfly of the centre and said he was always vising someone if not working in the kitchen. 1898 2176 He was observed to get along well with almost everyone, he kept active, was mixing socially, went on fairly regular inter-compound visits, had been to the education centre, and appeared to be his normal self. Although he attended the medical centre regularly he did not complain of any mental health issues. 2177 The applicant submits that these features of the evidence do not contradict his allegation that he was isolated and withdrawn, largely staying in his room for the last year of detention. He submits that he only worked in the kitchen in order to earn points which he could spend in the canteen or use to make telephone calls, and that the frequency of his interactions with detention staff and detainees is not inconsistent with him spending most of his time isolated in his room. 2178 I do not accept this submission. The submission depends upon acceptance of the applicant’s evidence. For reasons I have explained, I do not consider his evidence generally is a reliable basis for making findings of fact. In making findings of fact in relation to this topic I prefer to rely upon the evidence of observations made by DSOs and other detention centre staff which were recorded contemporaneously. 2179 G4S and the applicant undertook the task of analysing the movements of the applicant, Mr Shahrooei and Mr Namavar exiting and entering the applicant’s compound. The analysis has been prepared from the data obtained from the movement logs.1899 Those movement logs evidence extensive movement by the applicant exiting and entering his compound. In the course of his evidence he accepted that he made numerous and lengthy inter-compound visits, visiting friends and staying out late in the night socialising with other detainees in other compounds. Further, from November 2004, the applicant began working in the kitchen. From then until his release from detention on 27 April 2005, he worked in the kitchen for many hours each day for all but 11 days. The case notes written by DSOs record frequent interactions between them and the applicant. When he was performing cleaning duties at Baxter he worked a total of four hours per day for six days a week. When he was working in a kitchen at Baxter he worked six hours per day, seven days a week.1900 His conduct evidences someone who was active and determined to assert his rights and entitlements. 2180 The observations and impressions of the applicant recorded by various DSOs and medical centre staff paint a starkly contrasting portrait of the applicant from that given by him and the other detainee witnesses. Overwhelmingly they record the applicant presenting in a positive frame of mind. I am disposed to prefer the evidence of observations contemporaneously recorded by a number of DSOs rather than the evidence of witnesses whose memories have been eroded in various 1898 Exhibit 2.4TP34. 1899 Exhibit 2.4TP1785. 1900 Exhibit 1.3TP75, T 715.11-15. -- 497 of 647 -- [2025] SASC 59 Stanley J 494 degrees by the effluxion of time and have been recalled through the prism of their own interests in the success of the applicant’s claim. Having said that, the contemporaneous documentation does provide some support for the evidence of the applicant and the other detainee witnesses that the applicant did spend time alone in his room at Baxter. 2181 I accept there were times when the applicant was angry and dejected and chose to confine himself to his room, uninterested in seeing his friends. I accept that the DSO notes record a number of occasions where this occurred. This provides some corroboration of the applicant’s evidence and the evidence of the detainee witnesses. But not only was this not a near uniform pattern of behaviour, I am satisfied it was the exception rather than the rule. This social isolation was not as lengthy or extensive as the applicant claimed in his evidence or as was claimed in the evidence of the other detainee witnesses. The contemporaneous documentary records contradict the proposition that the applicant was substantially confined to his room, socially isolated and depressed.1901 2182 It follows that I do not accept the applicant’s submission that I should find that on days when there is no entry in the movement log concerning him I should find the explanation for that absence is that he was confined to his room mostly alone and depressed. To draw such an inference would be inconsistent with the general tenor of the contemporaneous documentary evidence which mostly records, as Dr Clarke observes, the applicant exhibiting a positive mood and engaged in meaningful activity.1902 The absence of evidence of the applicant sitting in the dark, depressed and secluded in his room, is not evidence that this was occurring. The absence of evidence is not evidence of psychiatric injury. 2183 On the applicant’s own admission, from late 2004 he felt more hopeful and his spirits were raised as a result of the release from Baxter of some long-term detainees. He said this encouraged him to undertake the work in the kitchen. This evidence contradicts the applicant’s submission that during the last five months he was in detention he remained mentally unwell. While that work, of itself, does not exclude the existence of underlying mental illness, it contraindicates it. The evidence of vocational engagement, improved mood, the observations of the DSOs, the absence of complaints of being depressed or stressed, and the history given to Mr McInerney and Dr Raeside support a finding that the applicant was not suffering from any psychiatric illness in the period prior to his release from detention. 2184 In the period from no later than the end of December 2003, when I find the applicant had substantially recovered from his depressive symptoms resulting from the rejection of his application for special leave and the subsequent overdose, until his release from detention on 27 April 2005, the documentary evidence satisfies 1901 Obviously the evidence of other detainees that the applicant appeared depressed is not a psychiatric diagnosis but rather describes evidence of an observation of the applicant presenting as deeply unhappy. 1902 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 3). -- 498 of 647 -- [2025] SASC 59 Stanley J 495 me that the applicant was socially engaged with his fellow detainees and the DSOs. His life in Baxter revolved around a pattern of sleeping during the day and undertaking visits or receiving visitors during the night, whether in his own compound or visiting other compounds. It is clear he enjoyed himself, was friendly and popular with other detainees and engaged with some DSOs in an easy, open and good-humoured fashion. In addition, I find he was functionally active. He found a purpose in working in the kitchen from November 2004 until his release from detention in April 2005. Whether his motivation for doing so was partly or wholly financial does not detract from the fact that his work in the kitchen provided structure and purpose to his life in detention from that time. 2185 The applicant relies on Dr Raeside’s evidence that it is possible a person suffering from depression could still laugh. I accept his opinion as a general proposition but that does not undermine the probative force of the observations made of the applicant over a matter of more than a year laughing and joking on many occasions, presenting as untroubled, contraindicating the existence of a depressive illness. Stressors at Baxter 2186 The applicant alleges that while he was detained at Baxter he was exposed to the oppressive atmosphere due to the heightened tensions among detainees and guards, stress, frustration among detainees generally, frequent self-harming and property damage by other detainees and their consequent incarceration in the Management Unit, frequent random body and room searches by guards and application of restraints.1903 2187 These factors were also additional to the mere fact of his detention; the length of his detention; the indeterminate period of his detention; and what he alleges was the oppressive physical environment of Baxter. 2188 The applicant’s case in relation to these stressors confronts a number of difficulties. 2189 While I am prepared to accept that from time to time the atmosphere at Baxter may have been found by the applicant to be oppressive, the Commonwealth cannot be held liable for that atmosphere unless the applicant can prove that he suffered injury as a result of that atmosphere, and that injury was the result of some negligent act or omission by the Commonwealth. That from time to time other detainees engaged in acts of self-harm or property damage and may have been subject to body and room searches, does not give rise to any liability on the part of the Commonwealth absent proof that it was reasonably foreseeable that the applicant would suffer injury as a result of the Commonwealth’s acts or omissions. There is no plea to that effect. In any event, the evidence does not establish that 1903 8ASoC 22.1.5. -- 499 of 647 -- [2025] SASC 59 Stanley J 496 the pleaded atmosphere caused or materially contributed to the applicant’s alleged psychiatric injury. 2190 Many of these allegations rely on the evidence of the applicant alone. If his evidence does not establish the facts underlying any expert psychiatric opinions, then the proof of assumption rule leaves the court in a position where it cannot find the alleged stressor caused or contributed to the alleged psychiatric injury. Proof of psychiatric injury depends on acceptance of expert opinions of causation. 2191 The unreliability of the applicant’s evidence infects his case on causation. The applicant must prove that an actionable stressor caused or materially contributed to his alleged psychiatric injury. 2192 A similar difficulty infects the evidence of causation where the Commonwealth cannot be held liable for particular stressors such as the applicant witnessing other detainees self-harming, the dismissal of the applicant’s appeals and his fear of deportation. 2193 Further, the applicant’s case makes no concession to the Commonwealth’s statutory duty to detain him in a detention centre with the concomitant obligation to ensure the security and good order of Baxter. 2194 The applicant’s case simply fails to address the statutory duty that was imposed on the Commonwealth by the Parliament to detain the applicant in a detention centre. The corollary of that statutory obligation is that the Commonwealth, through its agents, had to ensure the security and good order of its detention centres, particularly, in this case, Baxter. This required a balancing exercise which informed the content and standard of the duty of care the Commonwealth owed the applicant. 2195 Accordingly, the applicant’s complaints concerning such matters as handcuffing him when he was being transferred from Red 3 to Blue 3 or to the Port Augusta Hospital, pay no regard to the judgment that had to be exercised by Baxter management to determine the security measures necessary to avoid or minimise the risk of escape or acts of violence by detainees, including, in particular, the applicant, on these occasions. 2196 The same point can be made in relation to strip-searching and room searches. These were all security measures. It can be accepted that he found frequent invasive room searches upsetting and strip-searching distressing. Even if it posed a risk of harm to the applicant, that is not the only matter to be considered in assessing whether reasonable care has been exercised. As the Full Federal Court made clear in SBEG,1904 a consideration which must be addressed in determining whether there is a breach of the Commonwealth’s non-delegable duty of care is the need to ensure effective detention in accordance with the law. 1904 SBEG v The Commonwealth [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. -- 500 of 647 -- [2025] SASC 59 Stanley J 497 2197 I consider that there were legitimate reasons for adopting each of those security measures at Baxter. I reject the submission that the intention and purpose of adopting these measures was the humiliation of the applicant or other detainees. Where concerns existed within Baxter that contraband had been smuggled into the detention centre, there was a need, particularly in the wake of the fires, to ensure that banned items were found and removed. The efficacy of searches would have been compromised if DSOs gave warnings that searches were to be undertaken. However, I note the evidence of Mr Wallis that there was a protocol for conducting room searches which stipulated that detainees were to be given advanced notice that their room was to be searched. The evidence is unclear whether the protocol was followed in relation to room searches. The evidence does not permit a finding that in undertaking these security measures there was a breach by the Commonwealth of its duty of care or that the performance of strip-searching and room searches caused or contributed to any psychiatric injury alleged. The need to undertake strip-searches or room searches involves a judgment to be made by those responsible for the security and good order of Baxter. It required formation of a judgment by those responsible for the management of Baxter that weighed competing considerations concerning the safety of detainees and staff and the requirement for the maintenance of the good order and security of Baxter, Because it involves the exercise of a discretionary judgment, unless there is persuasive evidence that these measures were adopted mala fides, the applicant’s case in relation to them must fail. In the case of strip-searching, that obstacle to the success of the applicant’s claim is rendered more difficult to overcome because of the statutory requirements to obtain approval for strip-searches referred to elsewhere in these reasons. 2198 Also, apart from difficulties that the stressors pose to the applicant’s case on causation, they also confront difficulties of foreseeability. The alleged oppressive physical environment at Baxter was not apparent to members of IDAG who visited it before it opened in 2002. They did not identify any particular problem posed by the physical structure of Baxter, in fact, they praised it.1905 Subsequent criticism of the prison like conditions at Baxter by members of IDAG merely demonstrate that, in the balancing exercise required in assessing whether reasonable care was taken of the applicant’s mental health consistent with the statutory obligation to maintain the safety and good order of Baxter, reasonable minds may differ. 2199 The applicant and some other detainees gave evidence that the food was boring, unappetising and occasionally inedible. In particular the applicant complained of chicken being undercooked. It is not easy to make any conclusive finding in relation to the complaints about the quality of the food that was served to detainees, including the applicant, during his time at Baxter. It is important to remember that what is in issue is the quality of the food served to the applicant. Nonetheless, making a finding about the food served to the applicant may be 1905 T 4031, 4384. -- 501 of 647 -- [2025] SASC 59 Stanley J 498 informed by evidence of the quality of the food served to other detainees. There is a clear conflict in the evidence as to whether it was edible. 2200 I am satisfied that some of the applicant’s complaints were justified. I accept that the applicant found the food served in the mess from time to time was not to his taste and to that extent he found it boring and unappetising and that this was a stressor he experienced. I am also prepared to accept that on occasions meat was undercooked. However, the applicant was in detention for nearly four and a half years. The Commonwealth had a duty to feed those it had detained. It was under a duty to provide sufficient food that was healthy and nourishing. It was not under a duty, and it would have been unrealistic, to expect the Commonwealth to cater to individual tastes when there were hundreds of detainees in Baxter, or for that matter, Curtin. The detainees came from different countries, climates and cultures. It is open to infer that their traditional cuisines differed, let alone their subjective food preferences. At Baxter meals were cooked and prepared by detainees. There is no basis to infer that they would deliberately cook food that was inedible or otherwise substandard. However, I find that from time to time food that was served was not adequately prepared. For example, Father Bourke gave evidence of a detainee showing him a plate of food which he described as “putrid”. However Mr Shahrooei gave evidence that the food served was “very nice”. Mr Saxon and Mr Wallis each gave evidence that on an ad hoc basis they monitored the food that was being served. They considered that the standard of the food was adequate. From time to time Mr Saxon and Mr Fyfe shared meals with detainees in the mess. The nature of the food served at Baxter was more varied than alleged by the applicant and some detainees. I find that claims that they were only served rice, chicken mince and vegetables are incorrect, as is apparent from the contemporaneous documents.1906 It is hardly surprising if memories of food served more than 15 years ago are suspect, but I find the applicant’s evidence sought to convey a misleading impression of the true situation in relation to the food served to detainees at Baxter. It is apparent from the evidence concerning the food served in the G4S period that the food served in the ACM period could have been more varied and appealing. However, that does not necessarily prove that the food was inedible. The evidence discloses that at one stage there was a problem because detainees were taking food to their room where it was infested with insects due to the heat. However, if the food was inedible that would have given rise to widespread issues of disease and malnourishment. I am satisfied the applicant’s evidence in relation to food was exaggerated and to that extent, misleading. 2201 I am not prepared to find that there was a breach of the Commonwealth’s duty on a systematic basis. Which is not to say that the applicant from time to time might have been served food that was insufficiently cooked. But it was not a breach of duty to serve him with sufficient and nourishing food even if it was not to his particular taste. I am unable to find that any occasional breach by the Commonwealth in providing food to the applicant that was edible caused or 1906 G4S’ closing submissions Annexure 5. -- 502 of 647 -- [2025] SASC 59 Stanley J 499 contributed to any symptoms of depression, which is not to say that it would not have upset him. 2202 In any event, it does not matter as there is no evidence that the quality of the food served to the applicant at Baxter caused or materially contributed to his alleged psychiatric injury. Was the applicant suffering from a recognisable psychiatric injury upon his release from detention? 2203 The documentary evidence does not support a finding that the applicant was suffering symptoms of a recognisable psychiatric injury in the period before and when he was released from Baxter. That is the opinion of Dr Raeside,1907 Dr Clarke,1908 and implicitly of Dr Schirripa who was of the view that when he saw the applicant in March 2013 he was not suffering from any psychiatric condition and he could not see any evidence that he suffered from a psychiatric condition while in detention. Insomnia and occasional angry outbursts evidenced distress but were not tantamount to a mental illness.1909 2204 The expert opinion was supported by the history taken by Dr Raeside,1910 by Mr McInerney,1911 and implicitly by Dr Schirripa1912 who was told by the applicant that after six months, from release from detention, all of his memories returned so he took tablets but could not work. 2205 The history obtained by Mr McInerney is reinforced by the post-release medical records of the applicant’s consultations with medical practitioners in the period from his release from detention to late 2007.1913 2206 By December 2021 Dr Raeside’s opinion had changed under the influence of the Summary of Evidence which he was asked to assume was accurate for the purpose of him formulating his medico-legal opinion. In his report of 7 December 2021 Dr Raeside opined that the applicant’s mental illness did not simply resolve upon being released into the Australian community. Rather, he had ongoing persistent depressive symptoms from that time, suggesting that the evolution of his depression was not simply due to being detained. This was a marked change in Dr Raeside’s opinion and was contrary to the history he had taken from the applicant in November 2010 when he first interviewed him.1914 2207 I am not prepared to accept Dr Raeside’s changed opinion, adopted by him some 11 years after he first interviewed and assessed the applicant. I do not accept his changed opinion first and foremost because he was dependent upon the 1907 Exhibit A586 p 38. 1908 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 at [27]). 1909 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 12). 1910 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 8). 1911 Exhibit A573. 1912 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 5). 1913 Exhibits A1586, R1586A, 1528, A1534, R1610A, A1627 and R1525A. 1914 Exhibit A583 (Report of Dr Raeside 21 June 2011 pp 6-8). -- 503 of 647 -- [2025] SASC 59 Stanley J 500 accuracy and reliability of the assumptions he was asked to make in formulating this opinion, which I find is an unreliable foundation for the formulation of an expert psychiatric opinion in this case. In addition, the applicant’s early consistent histories, the contemporaneous documentary records over the period from 2005 to 2007, Dr Raeside’s opinion in 2018, and the opinions of Dr Schirripa and Dr Clarke do not support a finding that the applicant had a recognisable psychiatric injury when released from Baxter in April 2005. 2208 As Dr Raeside said in his evidence, the making of a psychiatric diagnosis is dependent upon the subjective account of the patient’s mood, depression and anxiety levels, work capacity, level of social engagement, sleep patterns, concentration, aggression and irritability, appetite, and the efficacy of drugs prescribed for those psychological symptoms.1915 2209 This is the fundamental principle identified by the High Court in Whisprun Pty Ltd v Dixon1916 that an expert opinion stands or falls on the credit and reliability of the evidence of the claimant’s subjective symptoms upon which the expert opinion is based. If the applicant’s evidence on these matters is successfully impugned, the Court is unable to rely upon the expert opinion in making findings of fact. 2210 This proposition applies with equal force in relation to the issue of the applicant’s alleged injury in the post detention periods. 2211 As I have discussed elsewhere the applicant’s post detention history to Dr Raeside is replete with inaccurate and unreliable statements. These are the applicant’s claim he was taking antidepressant medication and his allegation that he lost his employment at Roxby Downs in 2008 because of bad memories of his time in detention, when in fact he lost his job after failing a drug test. As well as false statements there was also a failure by the applicant to disclose relevant matters, for example, his use of OxyContin, his failure to disclose his overseas travel, the extent of his use of Lyrica, and an inaccurate account of his level of social and employment activity. 2212 This is important not just because these are matters relevant to any diagnosis Dr Raeside was asked to make relying on the applicant’s subjective accounts of these events, but also because the applicant’s failure to fully disclose his OxyContin addiction was particularly significant. As Dr Kapur said in evidence, the effects of the applicant’s withdrawal from OxyContin mimic symptoms of depression and anxiety in psychiatric illness.1917 Further, OxyContin affects a person’s capacity to function in a workplace, to function socially, to sleep, to 1915 T 6145-6168. 1916 [2003] HCA 48, (2003) 77 ALJR 1598. 1917 Exhibit 1.3TP1752 p 13, T 7833-7839. -- 504 of 647 -- [2025] SASC 59 Stanley J 501 concentrate and it may cause irritability and aggression.1918 These are the indicia upon which Dr Raeside relied for his diagnosis in 2011. 2213 An inference is reasonably open that the difficulties experienced by the applicant in maintaining employment in the period of his OxyContin addiction from 2007 until 2014 is explicable as resulting from his use and abuse of OxyContin. 2214 Further, the applicant’s complaints of difficulties in concentration, memory and fatigue in the period after he ceased abusing OxyContin can be explained by his use of Lyrica which he commenced using in or around 2016. Dr Kapur gave evidence that Lyrica is a drug whose side effects include the factors I have mentioned. Those side effects are consistent with symptoms identified as evidence of a psychiatric injury. I do not accept the applicant’s submission that his use of OxyContin and Lyrica was a result of the psychiatric injury he alleged he suffered at Baxter. The applicant’s claim fails because I cannot find that he suffered from symptoms of psychiatric injury in the post detention period attributable to injury during his detention at Baxter. 2215 The evidence satisfies me that the applicant was not suffering any recognisable psychiatric injury when he was released from Baxter in April 2005. He was not experiencing any ostensible psychiatric symptoms thereafter until he became addicted to OxyContin. Post Detention Findings 2216 Just as the pre-release from detention evidence does not support a finding the applicant was suffering a psychiatric illness when he was released from detention on 27 April 2005, neither does the post detention evidence. 2217 An important aspect of the applicant’s post-detention history is the challenging circumstances which he faced from 2005. I accept that he initially experienced difficulty in adjusting to life outside detention in the broader Australian community, that he developed a significant addiction to OxyContin and has had marital difficulties. For the reasons that follow, I do not accept that these difficulties are causally related to the applicant’s alleged psychiatric injury. 2218 The applicant gave evidence that he felt dead inside when he was released from Baxter. He said he had felt like this since August 2004.1919 He said he was dependent on drugs to get him through each day. However, he said he chose not to inform any doctor or nurse of the full extent of his mental health problems. 2219 I do not accept this evidence. It is contrary to my finding, based on the evidence of the Baxter movement logs and medical centre notes, that the applicant was not suffering depression from January 2004 to his release from detention. In 1918 Exhibits 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 5), 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 5). 1919 T 1808. -- 505 of 647 -- [2025] SASC 59 Stanley J 502 addition, Mr Sovi testified that towards the end of the applicant’s detention in Baxter, the applicant, along with other detainees, was “kind of happy” due to signs that there were good prospects of release into the community.1920 2220 The applicant’s evidence that he was suffering depression at this time is also contrary to the contemporaneous post detention documentary evidence and the history he first gave to the psychologist, Mr McInerney, and the psychiatrists, Dr Raeside and Dr Schirripa. It is also contrary to the opinion of Dr Clarke, the initial opinion of Dr Raeside and to the evidence of his attendance on counselling services and medical practitioners immediately after his release from detention. 2221 Following his release from detention the applicant attended various medical clinics and support services, including, STTARS, Allcare Medical Centre, South Road Day / Night Surgery, SA Natural Therapies Medical Centre and the Roxby Downs Medical Practice. I find that the clinical notes made on the occasions he attended on these practices, following his release from detention, until he was addicted to OxyContin, do not evidence him complaining of depressive symptoms. Obviously, the absence of such complaints cannot possibly be explained away upon the basis that he had a fear of being placed in the Management Unit as a result of disclosing symptoms of depression and anxiety when consulting medical practitioners or psychologists post detention. I find that he did not make such complaints. That is because he was not suffering symptoms of depression or anxiety. General medical records 2222 The applicant attended at the Allcare Medical Centre on five occasions between 11 August 2005 and 19 May 2010. There is no record of him complaining about mental health issues. 2223 The applicant attended the SA Natural Therapies Medical Centre on 8 November and 28 November 2005, 22 February, 5 April, 12 April, 29 May and 11 December 2006, 13 February and 22 February 2007, 11 November, 21 November and 12 December 2008 and 6 January 2009 without any complaint being recorded of him suffering any mental health issues. 2224 The applicant attended at the South Road Day / Night Surgery on 21 occasions between 21 February 2007 and 24 May 2010 without complaining of any mental health issues. However, there is a letter on the applicant’s file from CRS Australia dated 15 October 2009 which refers to his mental health condition. During a consultation on 28 July 2010 a record was made of the applicant suffering a major depression / anxiety. On 16 July 2013 a mental healthcare plan was made and he was referred to a psychologist, Mr Homer Zeitz. It appears he was also referred to Mr McInerney on 15 July 2013. On both the July 2010 and July 2013 attendances he was addicted to OxyContin. 16 July 2013 was his last attendance 1920 T 3322.10-20. -- 506 of 647 -- [2025] SASC 59 Stanley J 503 on South Road Day / Night surgery complaining of depression. His last attendance for any reason was 27 August 2013. That was for headaches. 2225 The applicant attended the Roxby Downs Medical Practice on 13 occasions between 7 November 2007 and 31 May 2011 without any complaint being recorded of him suffering any mental health issues. Psychological / psychiatric records 2226 The evidence satisfies me that the applicant first attended STTARS on 14 June 2005. Although there is a record which suggests that there might have been some earlier contact with STTARS on 27 May 2005, I am not satisfied that there was any attendance by the applicant upon STTARS until 14 June 2005. There is no record of him complaining that he was depressed. During the attendance on 14 June 2005 the applicant reported that apart from some physical ailments he was not experiencing any problems sleeping, such as disorders or nightmares. He reported having a feeling of confusion which lasted for two to three weeks upon his release from detention; feeling angry and irritable, helpless and unable to change many things; and that he had no friends or family support, but nonetheless loved to be in the company of other people. He was referred to a natural therapy program. He denied experiencing intrusive thoughts, flashbacks or suicidal ideation.1921 While I find that these complaints were reported by the applicant, they did not result in any referral to a psychologist or psychiatrist. I find that these subjective complaints did not justify such a referral being made. Dr Raeside considered that by themselves these complaints were not evidence of mental illness.1922 In fact in the months after his release from detention the applicant did not consult a psychologist or psychiatrist. None of the complaints he made to STTARS in 2005 related to mental health problems. This accords with the history the applicant initially gave Dr Raeside that he was good for the first five months following his release from Baxter. 1923 That coincides with the evidence from the PBS records of the applicant commencing heavy use of Tramadol in October 2005. His STTARS file was closed on 24 November 2005. 2227 By November 2008 the applicant reported that he had a lot of problems, namely: anger; sadness; bad dreams and nightmares; only sleeping two to six hours per night; with no direction and few friends. The applicant’s STTARS file was re- opened on 21 October 2008 when the applicant re-presented seeking psychological help for a concatenation of mental health problems, namely, PTSD, anxiety, hopelessness, disturbed concentration, anger, depression, grief, re-experiencing past trauma, disturbed sleep, social withdrawal and impairment in carrying out daily tasks. By this time the applicant was addicted to opioids. 1921 T 1027.4-8. 1922 T 6244-6245. 1923 T 6237-6245. -- 507 of 647 -- [2025] SASC 59 Stanley J 504 Post-detention psychiatric care 2228 I am satisfied the applicant has consulted three psychologists since his release from detention, Mr Damien McInerney, Mr Mehdi Abiyat and Mr Homer Zeitz. I find that these consultations happened infrequently and sometimes with an ulterior motive. 2229 The first time the applicant consulted a psychologist post detention was when he saw Mr McInerney on 24 November 2008. Mr McInerney took an initial history from the applicant that he had spent five years in detention before being released in 2005. He told Mr McInerney that after his release from detention he was happy and doing well but two years earlier (i.e., around November 2006) his health deteriorated. 2230 The applicant intermittently consulted Mr McInerney from November 2008 to April 2014. 1924 He frequently cancelled appointments or failed to attend. He did not attend at all from 5 June 2009 to 17 February 2011.1925 2231 The evidence of Mr McInerney supports a finding that the applicant did not suffer from any significant symptoms attributable to problems with his mental health for 18 months post-release. When he attended at medical clinics and support services he did not complain of suffering from depression. Over time he experienced difficulty adjusting to life in Australia. Those difficulties included obtaining and maintaining employment, difficulty with housing, difficulty with university and TAFE studies and later an unhappy marriage.1926 As I have said, I am unable to accept the applicant’s evidence that such difficulties were caused or materially contributed to by the conditions of his detention, as distinct from the fact of his detention, its indeterminate nature, the threat of deportation and the rejection of his claim for asylum and subsequent appeals against that decision. 2232 The applicant was referred to Mr Abiyat by his general practitioner for a mental health care plan. Such a plan would have consisted of at least six psychological sessions with the possibility of another four sessions. The applicant failed to avail himself of his entitlement to treatment from Mr Abiyat.1927 After attending three session in April 2018 the applicant unilaterally ceased this treatment. However, during the course of the treatment that was administered by Mr Abiyat, he undertook a DASS test. Its purpose is to measure depression, anxiety and stress. It is a subjective test that does not provide any objective check on the veracity of answers given by a patient. I place little weight on the results of the test, particularly given it was undertaken at a time when the applicant was immersed in pursuing this claim for damages. I find that the results of the test were self-serving and unreliable. That finding is supported by the applicant’s failure to continue treatment with Mr Abiyat after the administration of the DASS test. 1924 Exhibit A1588, T 762.4. 1925 Exhibits A1573, A1586. 1926 Exhibit A1586. 1927 T 6023. -- 508 of 647 -- [2025] SASC 59 Stanley J 505 2233 Despite the applicant giving evidence he could not recall seeing Mr Homer Zeitz I am satisfied that he consulted this psychologist on at least one occasion in 2013.1928 2234 The applicant also saw the psychiatrist Dr Giardini after his release from detention. The applicant said he saw him only once. He was unable to explain why he failed to continue seeing him. I will return to this when discussing the counterfactual. Work, relationships and university studies 2235 The evidence of the applicant’s post-detention work history supports a finding that he was able to obtain and perform unskilled manual work from around the middle of 2005 until about the middle of 2008. Between 2008 and November 2013 he obtained only intermittent work for short periods. This five-year period coincided with the applicant being in the grip of his addiction to OxyContin. In November 2013 he obtained work with Korvest and was employed there for about two years.1929 Thereafter, he worked intermittently until he commenced employment at B&R Enclosures in September 2018, where he has since been in stable employment until the time of the trial.1930 2236 I find that his failure to work during the period from 2008 to 2016 is attributable to his drug abuse and the other stressors in his life rather than having any causal link to his detention experience. Further, I accept the submission, and Dr Clarke’s opinion that the applicant’s ability to give evidence over some 31 days while continuing to undertake his employment duties for some four or five hours each morning before court is inconsistent with him suffering a serious psychiatric illness at that time, and does not suggest the applicant was suffering from the pleaded psychiatric injury upon which his claim is based by the time of the trial. 2237 The applicant and his wife have lived together since she came to Australia in 2013. Their relationship has been punctuated by tension, conflict, unhappiness and occasional violence or threats of violence on the part of the applicant. However, I find that their relationship is not as miserable as they suggest. They purchased a house together in December 2019. They live together in that house. They are not separated. When the applicant saw Dr Schirripa in July 2020 he referred to Mrs Saadat as his “partner”. This does not support the submission that they were separated by this time, albeit living under the same roof. On the contrary, he told Dr Schirripa at that time that he worried about his future and the future of his relationship with her. His statement is inconsistent with their relationship having already terminated. I am satisfied that at the time of trial Mrs Saadat had no intention of leaving the applicant. 1928 A 1606, T 848. 1929 T 1201-1202. 1930 T 1201.32-35, 1224. -- 509 of 647 -- [2025] SASC 59 Stanley J 506 2238 The only evidence of the applicant’s inability to undertake any study is his own uncorroborated testimony. Given that I am unable to rely on his evidence for making findings of fact I am unable to find that his failure to undertake studies successfully at Flinders University in 2006 and TAFE in 2014, 2017 and 2018 was because he could not concentrate due to his symptoms of depression. Apart from evidence produced by Flinders University and TAFE that establishes his failure to complete courses he commenced at these institutions, there is no other evidence to support this claim. The evidence from Flinders University and TAFE is not corroborative of the critical allegation made by the applicant that by reason of a depressive illness he was unable to undertake these courses successfully. 2239 The applicant’s evidence suggests that he hardly commenced tertiary studies post detention. The only subject he actually commenced at Flinders University was the pathway course ‘An Intro to University Life’ which he did not complete..1931 2240 The applicant gave evidence that he enrolled at TAFE first in 2014 and again in 2017.1932 In fact he also enrolled in a TAFE course in 2018.1933 In addition, he received an offer from TAFE in 2016 to study a Certificate II in Automotive Servicing Technology and a Certificate II in Construction Pathways, but he did not register to enrol.1934 He did not give any evidence about this. He registered to enrol in a Diploma of Building and Construction but withdrew from that course in order to enrol in a Diploma of Building Design. He commenced this course but withdrew after attending two classes in March 2018. His evidence concerning his failure to meaningfully undertake these courses was garbled and difficult to follow.1935 2241 Ultimately, given the findings I made earlier about the unsatisfactory nature of the applicant’s evidence concerning university studies in Iran it is not open to conclude, as the applicant claimed, that his capacity to undertake university studies had diminished since he was in Iran. Observations by detainee witnesses post detention 2242 The applicant seeks to rely upon the evidence of the other detainee witnesses to corroborate his evidence that he was depressed at the time he was released from Baxter and remained depressed subsequently. I do not accept that submission either. Evidence of lay persons’ observations cannot, of themselves, prove the existence of a psychiatric illness. At its highest, such evidence provides a foundation for the formation of expert opinion. 2243 While the evidence of Mr Shahrooei, Mr Namavar, Mr Paparzadeh and Mr Sovi, standing alone, provides some corroboration of the applicant’s evidence 1931 Exhibit A1496. 1932 T853.7-10. 1933 Exhibit A1494. 1934 Exhibit A1494. 1935 T 886-887. -- 510 of 647 -- [2025] SASC 59 Stanley J 507 of his appearance and conduct in the post detention period, their evidence is contradicted by other more persuasive evidence which I prefer. 2244 It can be seen that, subsequent to his release from detention, the applicant had limited contact with the other detainee witnesses. The evidence of their observations and assessment of the applicant after his release from Baxter stands in stark contrast to the history the applicant provided to Mr McInerney, Dr Raeside and Dr Clarke. Their evidence of the applicant in the months following his release is inconsistent with the contemporaneous records and the opinion of Dr Clarke and the initial opinion of Dr Raeside. In addition, I find that the applicant’s OxyContin addiction was a substantial factor in his conduct and appearance. Further, the evidence of Mr Shahrooei emphasises the applicant talking obsessively about the fact of his detention, a matter that cannot found any liability on the part of the Commonwealth. 2245 More importantly, the reliability of their evidence of their observations of the applicant after his release from detention must be doubted. Much of their evidence turned on a comparison of his post detention appearance with his pre-release appearance. The effect of their evidence was that his presentation in the community was as bad as it had been in detention. That comparison suffers from the vice that their evidence portrays the applicant as appearing sad and depressed in the period prior to his release when the contemporaneous evidence is to the contrary. For the reasons I have explained elsewhere I prefer the contemporaneous documentary evidence to the evidence of the former detainees. 2246 If their evidence of the applicants presentation in the months and years after his release from detention is correct, it indicates that his condition deteriorated after his release from detention. If that was the case it suggests that the cause of his deterioration post detention was not explained by his detention experience. 2247 In addition to the detainee evidence, consideration must be given to the evidence of Mrs Saadat. She has lived with the applicant for almost the entire period since she came to Australia in 2013. Her evidence of the applicant’s appearance and behaviour in this period must be understood in the context of his opioid addiction. I find that her observations of the applicant’s appearance and behaviour is explained by the effects of his opioid addiction.1936 The applicant’s OxyContin addiction 2248 I find that the applicant first obtained OxyContin illegally in 2007.1937 He first obtained a prescription for OxyContin on 29 April 2008 from Dr Lockwood in Roxby Downs.1938 From at least this time onwards he was suffering from an addiction to opioids. In pursuit of supplies of OxyContin the applicant routinely 1936 Exhibits 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 5), 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 5), 1.3TP1752 (Report of Dr Dilip Kapur 5 December 2018 p 13), T 7833-7839. 1937 T 752.15-36, 1046.4-10. 1938 T 1043.8-12. -- 511 of 647 -- [2025] SASC 59 Stanley J 508 invented lies to doctors as to why he wanted or needed OxyContin.1939 I find that he also obtained OxyContin illegally in in 2007 and 2008.1940 I find that thereafter he obtained further supplies of OxyContin from the Roxby Downs family practice on 2 May 2008. On 19 May 2008 he was refused a prescription for OxyContin. On 18 November 2008 he obtained a prescription for OxyContin. The following day he obtained two further prescriptions for OxyContin from the Brighton Medical Centre and the South Road day / night clinic. On 20 November 2008 he obtained a further prescription for OxyContin from the Marion Domain Medical and Dental Centre after being refused a request for a prescription for OxyContin from the Arkaba medical centre. He obtained further prescriptions for OxyContin from various medical practitioners on 24 November (twice), 28 November, 30 November, 6 December, 14 December, 18 December and 25 December 2008. He was refused OxyContin on 20 November, 2 December (twice), 4 December (twice), 24 December and 27 December 2008.1941 2249 He obtained a prescription for OxyContin on 27 January, 5 February, 15 February, 10 June and 20 July 2009. He further obtained a prescription for OxyContin on 30 August, 18 September, 29 September, 6 October, 10 October, 11 October, 17 October, 21 October, 26 October, 5 November, 10 November, 15 November and 20 November 2010. He was refused prescriptions for OxyContin on 28 September, 20 October, 26 November and 27 December 2010. He was also refused a prescription for morphine on 15 October 2010.1942 2250 He obtained a prescription for OxyContin on 7 January, 10 January, 9 February and 30 June 2011. He was refused prescriptions for OxyContin on 6 January, 22 February, 6 April, 12 October and 13 October 2011. On 20 September 2011 he attended at the South Road day / night clinic and obtained prescriptions for Tramadol and Zoloft on the basis that he was going to Iran for three months. The applicant also gave evidence that he obtained OxyContin illegally in 2011.1943 2251 On 31 August 2012 he attended at the SA Health Drug and Alcohol Clinic for treatment for his OxyContin dependence. 2252 The applicant was prescribed OxyContin on 22 April, 7 June, 15 June, 18 June, 27 June, 18 July, 27 July, 1 August, 7 August, 20 August, 27 August, 2 September, 5 September, 9 September (twice), 23 September, 24 September, 26 September, 30 September, 5 October, 8 October, 12 October, 16 October, 21 October, 26 October, 6 November, 13 November, 10 December, 24 December and 30 December 2013.1944 1939 T 763.4-6. 1940 T 1045-1052. 1941 Exhibits A1524, A1532, A1526, A1531, A1571, A1576, A1561, A1576, A1530, A1528, A1534. 1942 Exhibits A1534, A1537, A1576, 1943 Exhibits A1527, A1526, A1537 A1576, A1524, A1534, A1607, T 1048. 1944 Exhibits A1542, A1607, A1552, A1589, A1578, A1570, A1556, A1552 -- 512 of 647 -- [2025] SASC 59 Stanley J 509 2253 He was refused prescriptions for OxyContin on 19 February, 16 June, 18 June, 9 July, 1 August, 30 September, 21 October and 31 October 2013.1945 2254 He obtained prescriptions for OxyContin on 5 January, 28 January, 29 January, 3 February (twice), 12 February, 15 March, 17 March, 27 March, 1 April, 14 April, 29 April, 9 May, 22 May, 12 June, 22 August and 24 October 2014. 1946 2255 He was refused prescriptions for OxyContin on 9 January, 11 January (thrice), 27 February, 6 March (twice), 7 March, 19 March, 22 March, 26 March, 27 March, 28 March, 7 April, 14 April, 22 April, 23 April, 9 May, 19 May and 22 May 2014. 1947 2256 The applicant obtained a prescription for OxyContin (Oxynorm) on 4 July 2016.1948 According to the documentary evidence the applicant last sought, and was refused, a prescription for OxyContin on 6 September 2016. 1949 It appears that between late 2014 to 2016 he had periods where he relapsed into using OxyContin.1950 The applicant also admitted that he obtained OxyContin three or four times in 2017.1951 2257 On 20 January 2014 the applicant was first prescribed Lyrica.1952 He obtained prescriptions for Lyrica and Suboxone from July 2015 at least until 2018. The evidence establishes that the applicant was abusing Lyrica from at least 2016. He gave evidence of taking one or two Lyrica tablets daily depending on whether they were 150 mg or 300 mg tablets. He conceded that he had acquired very large quantities of the drug1953 over a period of 23 months from January 2017 to December 2018.1954 It affected his mood.1955 Dr Kapur gave evidence that Lyrica is a broadly sedating drug with the capacity for abuse and misuse. I accept Dr Kapur’s evidence that it has side effects including memory impairment, difficulty with concentration, fatigue which can inhibit personal interaction and cause withdrawal from social activity, and in some cases suicidal ideation.1956 2258 The applicant’s history of drug abuse is significant because, as was explained by Dr Clarke, OxyContin abuse has a serious impact on a person’s capacity to function in the workplace, socially, to sleep, to concentrate, and may cause 1945 Exhibits A1607, A1578, A1570, A1552, A1565, A1590, A1579. 1946 Exhibits A1571, A1582, A1563, A1595, A1563, A1569, A1587, A1569, A1581, A1597, A1602. 1947 Exhibits A1571, A1625, A1596, A1617, A1562, A1589, A1601, A1584, A1629, A1567, A1574, A1582, A1619, A1568, A1597, A1560, A1615, A1569, A1599. 1948 Exhibit A1577. 1949 Exhibit A1555. 1950T1199.14-17. 1951 T1217.28-31. 1952 Exhibit A1550, T 1230.13-15. 1953 63 prescriptions consisting of 56 tablets per packet. 1954 Exhibit 2.4TP1778, T 1231. 1955 T 904. 1956 T 7837. -- 513 of 647 -- [2025] SASC 59 Stanley J 510 aggression and irritability.1957 In addition, the effects of withdrawal from OxyContin can mimic symptoms of depression and anxiety in psychiatric illness.1958 These are the very indicia upon which Dr Raeside relied in 2011 when diagnosing the applicant as suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. 2259 In addition, the side effects attributable to Lyrica abuse are consistent with a number of the symptoms relied upon as evidence of the applicant suffering a recognisable psychiatric injury in the post detention period. 2260 It is notable that on 17 February 2011 the applicant gave Mr McInerney a handwritten note dated 16 February 2011 in which he referred, inter alia, to his dependence on OxyContin for back pain as a result of an injury he had suffered in detention when assaulted by a DSO. I find that the letter of 16 February was written in an attempt to obtain further supplies of OxyContin in circumstances where doctors were refusing to prescribe OxyContin to the applicant because of his excessive use of the drug. 2261 This pattern of abuse of opioids, especially OxyContin, coincides with the lengthy period the applicant was not in stable or consistent employment from 2008 to 2016. I find that his failure to work during that period is attributable to his drug abuse and the other stressors in his life which have not been proved to be causally related to his time in detention. As I have said, the applicant commenced his current employment with B&R Enclosures in September 2018.1959 He has worked there consistently since that time. It is full-time employment. His work evidences substantial functional activity contraindicating the applicant suffering a recognisable psychiatric injury. In addition, I find that the applicant has not suffered from any serious symptoms relating to drug addiction from about that time. 2262 The history of the applicant’s drug abuse also undermines the reliance Dr Raeside places on the persistence of, what he diagnosed as, the applicant’s depressive symptoms, following his release from detention. Dr Raeside considers that the persistence of those symptoms post detention supports his opinion that the applicant’s continuing depression is not solely caused by the mere fact of his detention. But that opinion depends on acceptance of the proposition that the applicant’s post detention complaints are attributable to either or both of the applicant’s conditions of detention case or failure to treat case rather than his drug abuse, his employment difficulties, the death of a close friend, homelessness, general health problems, gambling and marital difficulties, or those factors for which the Commonwealth cannot be held liable. The evidence does not support a 1957 Exhibits 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 5), 1.3TP1771 (Report of Dr Clarke 15 March 2022 p 5). 1958 Exhibit 1.3TP1752 (Report of Dr Dilip Kapur 26 October 2020) p 13, T 7833-7839. 1959 T 1224.24-27. -- 514 of 647 -- [2025] SASC 59 Stanley J 511 finding that these matters are causally linked to the applicant’s detention experience. 2263 It is not in issue that the applicant became addicted to OxyContin. At issue is the cause of that addiction. The evidence does not support a finding that his OxyContin addiction was caused by psychiatric injury. 2264 Over the course of these proceedings the applicant has alleged three different causes of his addiction. First, he alleged that his addiction resulted from prescription by medical practitioners who treated him at Baxter for relief of back pain. I accept that he experienced low back pain at various times while in detention and that he presented at the medical clinic on a number of occasions voicing complaints of back pain. Yet the applicant has not brought any claim in respect of such an injury. I am unable to make a finding as to the cause of his symptoms of low back pain. Certainly I am not able to find that the applicant’s complaints of back pain were, as he alleged, the result of an assault by a DSO. However, that is irrelevant as the applicant’s claim as finally pleaded is for damages for pure psychiatric injury. But the allegation that the applicant suffers backpain as a result of an assault is relevant to the extent that the applicant’s case is that his abuse of OxyContin is a direct result of his psychiatric illness. Second, he alleges that his addiction resulted from the prescribing practices at Baxter coupled with additional doses provided by other detainees. Third, in 8ASoC1960 the applicant claims that he became addicted to OxyContin in 2008 as a result of the symptoms of his psychiatric illness. The applicant alleges that he commenced to self-medicate with OxyContin as it had a calming effect when he was in physical pain and helped him forget the difficulties of his time in detention. He took to self-medicating with OxyContin, mainly but not entirely, on account of his psychological symptoms. Plainly these competing claims are inconsistent. 2265 As a matter of fact, I am not prepared to accept the applicant’s claim that his OxyContin addiction resulted from his self-medicating to treat his psychiatric symptoms. I accept Dr Clarke’s opinion that it would be difficult to conclude that the applicant’s OxyContin addiction was a result of his mental health.1961 2266 On the contrary, the evidence points strongly to the conclusion that the applicant’s opioid use was causally related to back pain. The evidence overwhelmingly supports a finding that after the applicant’s release from detention in April 2005 he commenced regular use of Tramadol because of back pain, became reliant or potentially addicted to it, commenced to use OxyContin in the second half of 2007 and became severely addicted some time no later than mid- 2008, and remained so until at least 2015 or later. 2267 For example in 2011 the applicant told MHS and the Department of Human Services that he was taking OxyContin for relief of back pain.1962 He then repeated 1960 8ASoC at [48]. 1961 T 8413-8414. 1962 Exhibits A1585, R1588A pp 13-38. -- 515 of 647 -- [2025] SASC 59 Stanley J 512 this claim to DASA in 2014.1963 The medical records and clinical notes made between 2005 and 2014 evidence the applicant obtaining prescriptions of Tramadol on a regular basis after his release from detention, or at least from late- 2005, for symptoms of back pain. By 2008 he was seeking OxyContin for the same complaint. There is no record of the applicant ever referring to the need for OxyContin in connection with psychological symptoms. This history of seeking medication for relief of low back pain is consistent with what the applicant told Dr Schirripa concerning the development of his addiction to OxyContin.1964 It is inconsistent with the claim that the applicant resorted to opioids for the treatment of psychiatric injury caused by the conditions of detention, given the finding he was not suffering from psychiatric injury upon his release from detention. 2268 No claim for addiction was made in the first, second or third statements of claim. It was in the 4SOC filed on 13 February 2017 that the applicant asserted he had suffered an opioid addiction because of the physical injuries sustained during his period of detention.1965 In the 5SOC filed on 21 March 2019 the allegation changed such that the pleaded opioid dependency was said to have been caused or contributed to by the psychiatric injuries the applicant alleged he suffered.1966 The first record of an addiction to OxyContin in the psychiatric evidence was in the applicant’s medico-legal consultation with Dr Schirripa in March of 2013. He told Dr Schirripa that he took OxyContin for a few months but had ceased doing so by that time. The second recorded mention of OxyContin addiction was in a history he gave to Dr Raeside in August 2017 of regular opioid use from when he left detention until 2009. He linked the opioid use to back pain. 2269 The applicant’s reliance upon the opinion of Dr Raeside founders on the underlying assumptions of his opinion. 2270 Dr Raeside’s opinion is based on a case the applicant subsequently abandoned. That opinion is set out in his reports of 14 December 20181967 and 8 January 2019.1968 Dr Raeside’s opinion conspicuously fails to address the final version of the applicant’s case, namely, the claim that from 2008 the applicant was using OxyContin to self-medicate his psychiatric symptoms. There is no evidence capable of supporting the applicant’s allegation that his use of OxyContin was caused by psychiatric injury. The applicant’s 2017 history as documented in Dr Raeside’s 2017 report,1969 the Outline of Evidence1970 and the Summary of Evidence,1971 do not provide the requisite nexus between the applicant’s OxyContin addiction and his alleged psychiatric injury. Rather, the evidence of Dr Clarke1972 1963 Exhibit A1558 pp 53-55, T 1194. 1964 T 7029-7031. 1965 [48.14]. 1966 [48.2]. 1967 Exhibit A583. 1968 Exhibit A583. 1969 Exhibit A583. 1970 Exhibit R14. 1971 Exhibit A546 p 26. 1972 T 8413-8414. -- 516 of 647 -- [2025] SASC 59 Stanley J 513 and Dr Schirripa1973 support the conclusion that the applicant’s OxyContin addiction results from him self-medicating to treat his back pain. 2271 It is not open to the Court to conclude that because of the widespread recognition that psychiatrically ill persons can and do resort to opioids, that proves the applicant’s OxyContin addiction results from his alleged psychiatric injury. 2272 These difficulties are sufficient to exclude the applicant’s claim of a causal relationship between his addiction and the alleged psychiatric injury even without the problem of his failure to prove the existence of a persistent psychiatric injury. 2273 Given this, it is unnecessary to consider the Commonwealth’s submission that, as a matter of law, it cannot be liable for any loss suffered by the applicant as a result of his voluntary decision to abuse OxyContin and to procure the drug illegally. 2274 In AMP v Road Traffic Authority & Anor1974 Spigelman CJ said that generally self-harm should be regarded as an independent and unreasonable cause and a break in the sequence of events that might otherwise constitute a causal chain for the purpose of attributing legal responsibility. 2275 Once the cause of the applicant’s need for pain relief by the use of OxyContin is found to be back pain rather than a sequel to psychiatric injury, there is no basis in his pleaded case to find the Commonwealth liable in damages for the applicant’s abuse of OxyContin. That is because his claim, as finally pleaded, alleges the applicant developed an opioid dependency caused or contributed to by his use of opiates to relieve the symptoms of mental illness he suffered at Baxter or which he suffered at Curtin and was aggravated by the conditions of his detention at Baxter.1975 This is a different case from a claim by a seriously injured person that he or she developed an addiction to OxyContin as a result of it being medically prescribed to control pain. To the extent the evidence supports a finding that the applicant’s addiction to OxyContin resulted from him self medicating to treat his backpain, that is not a claim made by him in 8ASoC. DUTY The Commonwealth’s duty of care 2276 The applicant’s claim is in negligence. The existence of a duty of care is a necessary condition of liability in negligence.1976 The Commonwealth accepts that it owed the applicant a duty of care while he was in detention. The duty was to take reasonable care for the safety of the applicant. That included a duty to ensure that the applicant was kept and maintained in a safe and secure environment, and that a level of medical care was made available to him to meet his reasonable health 1973 T 7029-7031. 1974 [2001] NSWCA 186 at [30]. 1975 8ASoC at [48.2]. 1976 Sullivan v Moody [2001] HCA 59 at [42], (2001) 207 CLR 562 at 576; Brookfield Multiplex Ltd v Owners - Strata Plan No. 61288 [2014] HCA 36 at [19], (2014) 54 CLR 185 at 199. -- 517 of 647 -- [2025] SASC 59 Stanley J 514 care needs including psychiatric care; and if so, whether that breach was causative of loss or damage to the applicant.1977 The existence of that duty arose from the exercise by the Commonwealth of the statutory power of mandatory detention in respect of the applicant. In doing so, the Commonwealth assumed responsibility for the applicant’s care, supervision and control. At issue is the content or standard of the duty of care and whether it has been breached. The non-delegable duty of care owed by the Commonwealth 2277 In Kondis v State Transport Authority (Kondis)1978 and Burnie Port Authority v General Jones Pty Ltd (Burnie)1979 the High Court explains the basis upon which a non-delegable duty of care arises. In Burnie Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, referring to the judgment of Mason J, with whom Deane and Dawson JJ agreed, in Kondis,1980 said:1981 In Kondis v State Transport Authority, in a judgment with which Deane J. and Dawson J. agreed, Mason J. identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. [citations omitted]. 2278 A non-delegable duty arises in circumstances where a special relationship exists, characterised by the assumption of control, supervision or responsibility by the party owing the duty; and dependence or vulnerability of the other party, to whom the duty is owed.1982 The Commonwealth’s duty of care is non-delegable. This was conceded by the Commonwealth. It has been the position taken by the Commonwealth at least since S v Secretary.1983 A non-delegable duty cannot be discharged merely by engaging a competent person to carry out the task.1984 The non-delegable duty to immigration detainees is analogous to that of a prison authority and prisoner, and hospital and patient. The nature of the relationship between the Commonwealth and the applicant gave rise to a duty of care of a special and more stringent kind, namely, a duty to ensure that reasonable care is taken.1985 Accordingly, in the context of these proceedings, where the Commonwealth chose to manage its immigration detention centres through third party contractors it cannot discharge its duty of care to the applicant by the 1977 S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549 at [212] and [257], (2005) 143 FCR 217 at 262-263 and 271. 1978 [1984] HCA 61, (1984) 154 CLR 672. 1979 [1994] HCA 13, (1994) 179 CLR 520. 1980 [1984] HCA 61, (1984) 154 CLR 672 at 687. 1981 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, (1994) 179 CLR 520 at 550-551. 1982 Northern Sandblasting v Harris [1997] HCA 39; (1997) 188 CLR 313 at 344-345, 350, 361, 368 and 397. 1983 [2005] FCA 549, (2005) 143 FCR 217. 1984 Kondis v State Transport Authority [1984] HCA 61, (1984) 154 CLR 672 at 679-681. 1985 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, (1994) 179 CLR 520 at 551. -- 518 of 647 -- [2025] SASC 59 Stanley J 515 employment of “…qualified and ostensibly competent independent contractor[s]”, namely ACM and G4S.1986 2279 A party under a non-delegable duty is under a duty not only to use reasonable care but to ensure that reasonable care is used by a contractor who is employed to perform that task. The Commonwealth cannot avoid liability for any psychiatric injury suffered by the applicant as a result of the conditions of his detention on the basis that it entered into the contractual relationships with ACM and G4S who had relevant expertise and experience in operating and managing detention facilities. Nonetheless, the non-delegable duty remains a duty to take reasonable care. It does not transform into an absolute duty to ensure a particular outcome or result.1987 2280 In Northern Sandblasting v Harris1988 the High Court explained the distinction between a duty, which cannot be delegated, and its discharge, which may be lawfully delegated because although the duty is personal to the defendant, the term “non-delegable” does not mean that a defendant cannot get another to discharge the duty. Non-delegable means only that the employer cannot escape liability if the duty has been delegated and then not properly performed. The issue is not so much to classify the duty as delegable or non-delegable as to identify the content of the duty.1989 2281 However, the party under the non-delegable duty will not be liable merely because it is foreseeable that the contractor might, on its own initiative, adopt a careless way of doing the work. If liability were imposed in that situation, the party owing the duty would become a virtual guarantor of the independent contractor’s carefulness.1990 The law only imposes a duty to take steps which, in the circumstances, a reasonable person would take to prevent a foreseeable risk of injury.1991 2282 In assessing the standard of care that is required of the Commonwealth, the Court applies the well-known test explaining how a tribunal of fact should decide whether there has been a breach of the duty of care as stated by Mason J in Wyong Shire Council v Shirt (Shirt):1992 In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the 1986 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, (1994) 179 CLR 520 at 550. 1987 New South Wales v Lepore [2003] HCA 4 at [22], [33]-[34], [105] and [266]; (2003) 212 CLR 511 at 529, 532-533, 553 and 601-602. 1988 [1997] HCA 39, (1997) 188 CLR 313 at 330- 331. 1989 [1997] HCA 39, (1997) 188 CLR 313 at 330- 331. 1990 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, (1994) 179 CLR 520 at 580; Northern Sandblasting v Harris (1997) [1997] HCA 39, 188 CLR 313 at 332-333. 1991 Northern Sandblasting v Harris [1997] HCA 39, (1997) 188 CLR 313 at 361-362. 1992 [1980] HCA 12, (1980) 146 CLR 40 at 47-48. -- 519 of 647 -- [2025] SASC 59 Stanley J 516 degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 2283 Mason J further said that:1993 The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. 2284 Although there has been criticism of the Shirt “calculus” it has been reaffirmed in New South Wales v Fahy (Fahy)1994 and Roads and Traffic Authority of New South Wales v Dederer.1995 Its proper application requires “a contextual and balanced assessment of the reasonable response to a foreseeable risk”.1996 2285 The following principles can be distilled from the authorities: 1. Breach of a duty of care depends on two things: first, there must be a degree of foreseeable risk created by the acts or omissions of the defendant; second, there must be an assessment of the reasonableness of the defendant’s response to that risk. The degree of risk turns on reasonable foreseeability. The inquiry into reasonable foreseeability is wholly factual. The question is what the particular defendant ought to have foreseen in the circumstances to establish the nature and scope of that duty, for the purpose of determining breach.1997 2. Reasonable foreseeability is not absolute but must be evaluated in terms of degree of risk.1998 3. The defendant’s response to a foreseeable risk requires a standard of care of the reasonable person. The test is objective: what would a reasonable person in the position of the defendant have done in the circumstances?1999 4. The extent of a duty of care is weighed against how onerous such a duty may be to perform.2000 1993 Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 at 48. 1994 [2007] HCA 20 at [7], [78] and [129], (2007) 232 CLR 486 at 491-492, 511 and 526-527. 1995 [2007] HCA 42 at [69], (2007) 234 CLR 330 at 354. 1996 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42 at [69], (2007) 234 CLR 330 at 354. 1997 Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 at 47-48; Romeo v Conservation Commission of Northern Territory [1998] HCA 5, (1998) 192 CLR 431 at 488; Tame v New South Wales [2002] HCA 35, (2002) 211 CLR 317 at 331; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, (2002) 211 CLR 540 at 611-612; Vairy v Wyong Shire Council [2005] HCA 62, (2005) 223 CLR 422. 1998 Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 at 48. 1999 Imbree v McNeilly [2008] HCA 40, (2008) 236 CLR 510. 2000 Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40. -- 520 of 647 -- [2025] SASC 59 Stanley J 517 5. The gravity and magnitude of the foreseeable consequences of the defendant’s conduct are relevant in determining the existence of a breach of the duty of care.2001 6. A breach of a duty of care may be negated by establishing that the burden of eliminating a particular risk is unreasonable or by establishing that the public utility of the conduct creating the risk outweighs the magnitude of the risk.2002 7. The Shirt calculus may wrongly be understood as requiring no more than a comparison between what it would have cost to avoid the particular injury that occurred and the consequences of that injury. A more elaborate inquiry which does not focus only upon how the particular injury happened is required. It is necessary to look forward to identify what a reasonable person would have done, not backwards to identify what would have avoided the injury.2003 8. Whether a particular risk is reasonably foreseeable involves enquiring into all the circumstances including the foreseeability of negligence by a third party or by the plaintiff.2004 9. The cost and burden of removing or minimising a danger may be relevant to the standard of care. In Vairy v Wyong Shire Council2005 McHugh J said: Situations may sometimes occur where, in an area under the control of the defendant, the totality of the magnitude of each risk of injury and the probability of its occurrence are outweighed by the expense or inconvenience of taking precautions to reduce or eliminate the totality of those risks. 2286 Because the Commonwealth deprived detainees in their custody of their liberty and assumed control of their persons, it had a duty to protect the detainees in their custody from those dangers to which the circumstances of detention rendered them particularly vulnerable. By way of analogy, the scope of the duty owed by prison authorities to prisoners was considered by the High Court in New South Wales v Bujdoso (Bujdoso).2006 In a prison the prison authority is charged with the custody and care of persons involuntarily held there.2007 In immigration detention, the liability of the Commonwealth is to be determined on the basis that 2001 Paris v Stepney Borough Council [1951] AC 367; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, (1994) 179 CLR 520; Swinton v The China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553 at 566-567. 2002 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5, (1998) 192 CLR 431. 2003 New South Wales v Fahy [2007] HCA 20 at [57] and [125], (2007) 232 CLR 486 at 505 and 525. 2004 McLean v Tedman [1984] HCA 60, (1984) 155 CLR 306 at 311; Bus v Sydney County Council [1989] HCA 29, (1989) 167 CLR 78 at 90-91; Nagle v Rottnest Island Authority [1993] HCA 76, (1993) 177 CLR 423 at 431. 2005 [2005] HCA 62 at [37], (2005) 223 CLR 422 at 436. 2006 [2005] HCA 76, (2005) 227 CLR 1. 2007 New South Wales v Bujdoso [2005] HCA 76 at [44], (2005) 227 CLR 1 at 13. -- 521 of 647 -- [2025] SASC 59 Stanley J 518 it is responsible for the custody and care of detainees who, generally, have not committed any crime and who are involuntarily and indefinitely held there. 2287 In S v Secretary2008 Finn J held that the relationship of the Commonwealth to persons in immigration detention, who were known to belong to a class suffering from mental illness, was closely analogous to, and drew on an element of, two classes of relationship which attract non-delegable duties. These are hospital and patient and gaoler and prisoner. The characteristics of the relationship between DIMIA and detainees, shared with that of hospital and patient, are not only the element of control and the assumed responsibility for the health care of detainees, but also the exaggerated vulnerability of the class of detainees at significant risk of mental illness.2009 The further characteristic shared with the gaoler-prisoner relationship grows out of the nature of the control exercised over detainees. They are without freedom or without capacity to provide for their own needs, special or otherwise. Their situation is one of special dependence, particularly so if they suffer from mental illness.2010 2288 In S v Secretary Finn J held that the duty required the Commonwealth to ensure that reasonable care was taken of detainees who, by reason of their detention, were unable to care for themselves. Finn J said that the duty imposed on the Commonwealth must accommodate that special dependence and the peculiar vulnerability to which detainees known to suffer mental illness are exposed. Finn J held that the duty imposed on the Commonwealth must also take account of the very distinctive outsourcing arrangements the Commonwealth was prepared to accept for the provision of health care services in S v Secretary.2011 The outsourcing arrangements appear to be the same arrangements that applied at Baxter during the time the applicant was detained there. 2289 Finn J then turned to the issue of the standard of care owed by the Commonwealth to immigration detainees. He said:2012 This case is one of first impression and for that reason it is necessary to approach the standard required of the Commonwealth with some caution. This said, I am nonetheless satisfied that the minimum properly to be expected of the Commonwealth in virtue of its relationship with detainees in an immigration detention centre such as Baxter is that it ensure that reasonable care is taken of the detainees who, by reason of their detention cannot care for themselves. This necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs including psychiatric care. Where, as here, the Commonwealth contracts out the 2008 [2005] FCA 549, (2005) 143 FCR 217. 2009 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 at [215], (2005) 143 FCR 217 at 262. 2010 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 at [210], (2005) 143 FCR 217 at 262. 2011 [2005] FCA 549 at [211], (2005) 143 FCR 217 at 262. 2012 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 at [212], (2005) 143 FCR 217 at 262-263. -- 522 of 647 -- [2025] SASC 59 Stanley J 519 provision of services to detainees it is obliged to see that “care is taken”; and that the requisite level of medical care is provided and with reasonable care and skill. [citations omitted]. 2290 Finn J expressly referred to one aspect of the Commonwealth’s duty, namely its decision to establish and maintain Baxter in a relatively isolated part of Australia. As I have referred to earlier, he thought this decision raised, potentially, whether by so choosing, the Commonwealth could itself affect the standard of health care services it was obliged to provide. He said that having made its choice of location, the Commonwealth should bear the consequences of it insofar as that choice affected or compromised the medical services that could be made available to meet the known needs of detainees.2013 2291 The applicant seeks to rely upon the reasons of the Supreme Court of the United Kingdom in Armes v Nottinghamshire County Council (Armes)2014 to establish the proposition that a non-delegable duty attracts a higher standard than the ordinary duty of care. In Armes Lord Reed, with whom Lady Hale, Lord Kerr and Lord Clarke agreed, said that:2015 The expression “non-delegable duties of care” is commonly used to refer to duties not merely to take personal care in performing a given function but to ensure that care is taken. The expression thus refers to a higher standard of care than the ordinary duty of care. Duties involving this higher standard of care are described as non-delegable because they cannot be discharged merely by the exercise of reasonable care in the selection of a third party to whom the function in question is delegated. 2292 This categorisation of a non-delegable duty of care has not yet been expressly adopted by the High Court. The leading High Court judgment is Burnie.2016 In that case the majority said:2017 In most, though conceivably not all, of such categories of case, the common "element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken" is that "the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised". It will be convenient to refer to that common element as "the central element of control". Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person. [citations omitted]. 2013 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 at [219], (2005) 143 FCR 217 at 263. 2014 [2017] UKSC 60, [2018] AC 355. 2015 Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355 at [31]. 2016 [1994] HCA 13, (1994) 179 CLR 520. 2017 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, (1994) 179 CLR 520 at 550-551. -- 523 of 647 -- [2025] SASC 59 Stanley J 520 2293 Properly understood, what was said in Armes is not substantially different from the common law of Australia as stated in Burnie and Kondis. The standard of a non-delegable duty of care is only “higher”, or to use the language of Burnie “special and more stringent”, in the sense that it is not discharged by employing or engaging competent third parties to perform the duty. As Gaudron J said in New South Wales v Lepore (Lepore),2018 to describe a duty as non-delegable is not to identify a duty that extends beyond taking reasonable care to avoid a foreseeable risk of injury. 2294 The applicant sought to rely upon the reasons of Gleeson CJ in Leichhardt Municipal Council v Montgomery (Montgomery)2019 as establishing that the existence of a non-delegable duty of care imposes a standard of care that is so high as to amount to strict liability. He cites Gleeson CJ saying that a special responsibility or duty to see or ensure that reasonable care is taken by an independent contractor and the contractor’s employees, goes beyond a duty to act reasonably in exercising prudent oversight of what the contractor does.2020 This submission misstates the point the Chief Justice was making and its context. Montgomery is a case concerned with the powers and responsibilities conferred by the Roads Act 1993 (NSW). Considering the liability of highway authorities, Gleeson CJ formulated their duty of care as a duty to exercise reasonable care that is not discharged merely by engaging a reputable contractor. But it did not have a duty to ensure that the employees of that contractor did not behave carelessly.2021 He held that the Court of Appeal erred in holding the highway authority was under a special responsibility or duty to ensure reasonable care was taken to avoid injury. In obiter remarks Gleeson CJ said that the concept of a non-delegable duty, elaborated as a duty to ensure that care is taken, may have a useful role in some cases involving the tort of negligence.2022 2295 However, rather than Montgomery standing as authority for the proposition that a non-delegable duty imposes a standard of care that is so high that it amounts to strict liability, Gleeson CJ was explaining the limits of the content of a non- delegable duty of care, at least insofar as owed by highway authorities. The non- delegable duty of care owed by a road authority is not a special duty to ensure anything. Gleeson CJ emphasised that it is not a duty to ensure that no worker behaves carelessly. It is a duty to exercise reasonable care.2023 2296 In Commonwealth v Introvigne,2024 and later in Kondis,2025 Mason J explained that a non-delegable duty of care is not simply a duty to take reasonable care, rather 2018 New South Wales v Lepore [2003] HCA 4, (2003) 212 CLR 511. 2019 [2007] HCA 6, (2007) 230 CLR 22. 2020 Leichhardt Municipal Council v Montgomery [2007] HCA 6 at [23], (2007) 230 CLR 22 at 34. 2021 Leichhardt Municipal Council v Montgomery [2007] HCA 6 at [27], (2007) 230 CLR 22 at 36. 2022 Leichhardt Municipal Council v Montgomery [2007] HCA 6 at [27], (2007) 230 CLR 22 at 36. 2023 Leichhardt Municipal Council v Montgomery [2007] HCA 6 at [26] – [27], (2007) 230 CLR 22 at 36. 2024 [1982] HCA 40, (1982) 150 CLR 258. 2025 Kondis v State Transport Authority [1984] HCA 61, (1984) 154 CLR 672. -- 524 of 647 -- [2025] SASC 59 Stanley J 521 it is a personal duty to ensure that reasonable care is taken.2026 In Lepore, while Gummow and Hayne JJ said that a non-delegable duty to ensure that reasonable care is taken is a strict liability, that only means that there is a breach of the duty if reasonable care is not taken, regardless of whether the party that owes the duty has itself acted carefully.2027 Gaudron J said that while a non-delegable duty involves, in effect, the imposition of strict liability upon the party who owes that duty, it is not to say that liability is established simply by proof of injury.2028 A non-delegable duty does not extend beyond taking reasonable care to avoid a foreseeable risk of injury. 2297 This analysis demonstrates that the existence of a non-delegable duty necessarily informs the standard of care owed by a defendant. In Bujdoso the Court, in a joint judgment, said that it is true that a prison authority is under no greater duty towards its prisoners than to take reasonable care. However, the content of the duty in relation to a prison and its prisoners is informed by the fact that the prison authority is dealing with convicted criminals rather than law abiding members of the community.2029 2298 In this case, the relationship between the Commonwealth and the applicant had the features identified by Mason J in Burnie2030 and Kondis2031 due to his detention. While Finn J held in S v Secretary that the relationship between the Commonwealth and the applicant was analogous to that of a prison authority and a prisoner,2032 Selway J in Mastipour doubted whether cases dealing with the powers of prison authorities are analogous to the circumstances of detainees under the Migration Act.2033 Nonetheless, subsequently in SBEG the Full Court of the Federal Court accepted that the Commonwealth, in establishing Baxter, owed a duty of reasonable care to avoid harm to detainees.2034 2299 As canvassed earlier, the applicant was in a position of special dependence and vulnerability given the control exercised over him by the Commonwealth while he was in detention. He was especially dependent upon those in control of Baxter to ensure that reasonable precautions were taken for his safety and medical care because he was not in a position to do so. However, that obligation was not a guarantee of his safety. It was an obligation of reasonable care to avoid harm to the applicant, whether that harm was inflicted by a third person, by employees or agents of the Commonwealth, including the third parties and their employees, or 2026 Commonwealth v Introvigne [1982] HCA 40, (1982) 150 CLR 258 at 270-271; Kondis v State Transport Authority [1984] HCA 61, (1984) 154 CLR 672 at 686-687. 2027 [2003] HCA 4 at [257], (2003) 212 CLR 511 at 599. 2028 New South Wales v Lepore [2003] HCA 4 at [101], (2003) 212 CLR 511 at 552. 2029 New South Wales v Bujdoso [2005] HCA 76 at [44], (2005) 227 CLR 1 at 13. 2030 [1994] HCA 13, (1994) 179 CLR 520 at 551-552. 2031 [1984] HCA 61, (1984) 154 CLR 672 at 686-687. 2032 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 at [209], (2005) 143 FCR 217 at 262. 2033 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93 at [15], (2004) 259 FCR 576 at 580. 2034 SBEG v The Commonwealth [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. -- 525 of 647 -- [2025] SASC 59 Stanley J 522 by the applicant himself.2035 The Commonwealth’s non-delegable duty was to ensure that the third parties took reasonable care to prevent foreseeable psychiatric injury to the applicant. However, the Commonwealth was not under a duty to ensure the applicant did not suffer psychiatric injury. Affirmative duty of care 2300 The applicant sought to rely on the High Court’s judgment in Kozarov v State of Victoria (Kozarov)2036 for the proposition that the Commonwealth was subject to an affirmative duty to take action to prevent psychiatric injury to the applicant from the time of his arrival at Baxter, even in the absence of evident signs of psychiatric injury at that time, by identifying vulnerability to psychiatric injury or the existence of psychiatric injury. 2301 I do not consider that Kozarov stands for that proposition. Kozarov is concerned with foreseeability and the duty of an employer to an employee. The appellant in that case was a solicitor in the specialist sexual offences unit (SSOU) of the Victorian Office of Public Prosecutions. Her duties included working on cases “of an abhorrent nature involving child rape and offences of gross depravity”. In Kozarov the High Court was at pains to correct a misunderstanding of its earlier judgment in Koehler v Cerebos (Australia) Ltd.2037 As the High Court explained, Koehler was concerned with the extent to which reasonable care for the mental health of an employee might require the employer to be alert for signs that, by reason of the exigencies of the employee’s work, the employee was at risk of mental illness.2038 In Kozarov, that issue did not arise because the evidence established that the employer was well aware of the risk posed to employees working in the SSOU of suffering psychiatric injury. The employer had adopted a policy to protect its employees from that very risk. 2302 Kozarov makes clear that the inquiry as to whether there is a foreseeable risk of psychiatric injury is essentially factual. In Koehler the High Court had refused to embrace any universal proposition that because stress may cause psychiatric injury, all employers must be taken to recognise that all employees are at risk of psychiatric injury from stress at work, and therefore such injury is reasonably foreseeable. As the High Court said, such a proposition serves to aggregate what is an individual inquiry directed to the duty owed to each particular employee.2039 In Kozarov the Court held that the risk of harm to the appellant had plainly been foreseeable and the duty had been engaged without the plaintiff having to show evident signs of distress or harm. Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler the plaintiff was performing work of a relatively routine nature which she had agreed to perform. In order to establish that psychiatric injury was a 2035 SBEG v Commonwealth of Australia [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. 2036 [2022] HCA 12, (2022) 273 CLR 115. 2037 [2005] HCA 15, (2005) 222 CLR 44. 2038 Kozarov v Victoria [2022] HCA 12 at [2], (2022) 273 CLR 115 at 123. 2039 Koehler v Cerebos (Australia) Ltd [2005] HCA 15 at [34]-[35], (2005) 222 CLR 44 at 57. -- 526 of 647 -- [2025] SASC 59 Stanley J 523 reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of evident signs on the part of the particular employee, to establish that a risk of psychiatric injury was reasonably foreseeable. In Kozarov the employer had acknowledged that vicarious trauma, and therefore psychiatric injury, were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care.2040 In Kozarov the High Court said that evident signs of distress or vulnerability on the part of a plaintiff are not a pre-condition that must be satisfied before the psychiatric injury can be found to be reasonably foreseeable, and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for that particular employee. 2303 The reasons of the High Court emphasise the need to focus on the facts and circumstances relevant to the applicant. It is by reference to those particular facts and circumstances relevant to him that the Court must determine whether there was a foreseeable risk that the applicant would suffer psychiatric injury at the time of his arrival at Baxter. 2304 I do not accept the applicant’s submission that in light of Kozarov, the judgment of the Queensland Court of Appeal in Hegarty v Queensland Ambulance Service2041 should be reconsidered, i.e., overruled. First, the reasons in Hegarty rely on the High Court’s reasons in Koehler. Second, Keane JA wrote the leading judgment in Hegarty and wrote a joint judgment with Kiefel CJ in Kozarov without any suggestion that there was a need to reconsider Hegarty. Third, the Victorian Court of Appeal in Bersee v State of Victoria,2042 in analysing the judgment in Kozarov, considered Hegarty without suggesting that it had been overturned by the High Court’s reasons in Kozarov. 2305 Kozarov does not alter the central inquiry where a plaintiff alleges that an employer’s negligence has caused him or her psychiatric injury. The central enquiry remains whether, in all the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric injury was reasonably foreseeable, in the sense that the risk was not farfetched or fanciful.2043 A psychiatric injury may be less easy to foresee than a physical injury. The psychological makeup of the individual employee, which may be difficult to ascertain or understand by an employer, may influence whether psychiatric injury is a likely or possible consequence. 2040 Bersee v State of Victoria (Department of Education and Training) [2022] VSCA 231 at [88], (2022) 70 VR 260 at 282-283. 2041 [2007] QCA 366. 2042 [2022] VSCA 231 at [92]. 2043 Koehler v Cerebos (Australia) Ltd [2005] HCA 15 at [33], (2005) 222 CLR 44 at 57. -- 527 of 647 -- [2025] SASC 59 Stanley J 524 2306 Kozarov reinforces the proposition that questions of foreseeability, which are relevant to the existence and scope of a duty of care, breach of duty, and remoteness of damage,2044 are fact and context specific. In some cases psychiatric injury will be a reasonably foreseeable consequence of the performance of work and in others it will not be. 2307 In Kozarov the Court did not hold that an actionable duty of care to a specific individual exists before there is a reasonable foreseeability of injury of the kind that eventuated to the particular employee concerned. Rather, the Court said that, in the particular workplace in question, sufficient evidence of foreseeability existed from the outset of the employment of any lawyer in the SSOU such that, without more, the actionable duty to take reasonable care to avoid psychiatric injury of the kind that eventuated to the plaintiff arose.2045 2308 The applicant submits that the Commonwealth owed him an affirmative duty of care. He relies upon a passage from the reasons of Gordon J in the Federal Court in MZYYR.2046 So much may be accepted. To characterise the duty of care owed by the Commonwealth as being affirmative does not indicate any error or inadequacy in the formulation of the content of the duty of care owed to an immigration detainee by Finn J in S v Secretary. In S v Secretary Finn J held that by virtue of the relationship between the Commonwealth and detainees in an immigration detention centre such as Baxter, the Commonwealth had a duty to ensure that reasonable care was taken of detainees. As discussed earlier Finn J said this necessitated that the Commonwealth ensure that a level of medical care was made available which was reasonably designed to meet the healthcare needs, including psychiatric care, of detainees. 2309 Kozarov is not authority for the universal proposition, propounded by the applicant, that the scope of the Commonwealth’s duty included a duty to take active or affirmative steps to identify vulnerability to psychiatric injury or the existence of psychiatric injury. The existence of a duty of care depends on the foreseeability of the risk of injury that was ultimately suffered by an applicant. That necessitates an inquiry into the circumstances of the individual applicant. A duty of care might arise because of evident signs of the applicant suffering a psychiatric injury or signs that the applicant is vulnerable to suffering a psychiatric injury. On the other hand, evidence of such signs may be unnecessary where the risk to an applicant’s mental health is actually known by the alleged tortfeasor, as was the case in Kozarov. In this case the existence of a duty of care owed by the Commonwealth to the applicant is not in dispute. The content of the duty of care remains a duty to exercise reasonable care to protect the applicant against risks to his or her mental health. That is the affirmative duty. It is a duty to act, but the action required is to see that reasonable care and skill is taken in the provision of medical care to the applicant. No authority, and in particular Kozarov, supports 2044 Tame v State of New South Wales [2002] HCA 35 at [12], (2002) 211 CLR 317 at 331. 2045 Bersee v State of Victoria [2022] VSCA 231 at [90], (2022) 70 VR 260 at 283. 2046 MZYYR v Secretary, Department of Immigration and Citizenship [2012] FCA 694 at [55], (2012) 292 ALR 659 at 671. -- 528 of 647 -- [2025] SASC 59 Stanley J 525 the proposition that the content of the duty of care requires an employer to take active or affirmative steps to identify vulnerability to psychiatric injury or the existence of psychiatric injury, for the reasons explained in Hegarty by Keane JA.2047 Keane JA held that the risk of psychiatric injury may be less apparent than in cases of physical injury. Identification of the risk may depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to reduce that risk is also likely to be attended with a greater degree of uncertainty. Keane JA also observed that the taking of steps likely to reduce the risk of injury to mental health may be more debatable, in terms of their likely efficacy. 2310 The reasonable foreseeability of the risk of psychiatric injury to the applicant is not proved solely by evidence that the Commonwealth was aware of academic studies that indicated that long-term detainees were vulnerable to developing psychiatric injury. Proof of foreseeability in this case requires evidence that the applicant himself, as opposed to detainees generally, was at risk of developing psychiatric injury as a result of the conditions under which he was detained. Standard of care 2311 At issue in this matter is not whether the Commonwealth owed the applicant a duty of care to ensure that reasonable care was taken of him while he was in detention. This is admitted. What is in issue is the standard of care i.e., the content of that duty. 2312 Proceeding from the proposition that the Commonwealth’s duty of care to the applicant was a non-delegable duty to ensure that reasonable care was taken of the mental health of detainees in general, and the applicant in particular, goes only a little way to explain what the scope and content of the Commonwealth’s duty is in the context of immigration detention under the Migration Act. 2313 The standard of care owed by the Commonwealth to the applicant while in detention is to be ascertained by those characteristics in the relationship between the Commonwealth and the applicant which make it appropriate to impose upon the relationship a non-delegable duty to see the care is taken.2048 In S v Secretary Finn J said that it is necessary to approach the standard required of the Commonwealth in the context of the relationship between it and the applicant with some caution. The duty imposed on the Commonwealth must accommodate the special dependence of detainees on those who detain them and their peculiar vulnerability if they suffer mental illness.2049 In this regard, I note that the applicant submits that the Commonwealth was under a duty from the moment of his detention to minimise the risk of psychiatric injury, to maximise measures 2047 Hegarty v Queensland Ambulance Service [2007] QCA 366 at [41], [43] and [47]. 2048 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, (1994) 179 CLR 520 at 550; S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2000] FCA 549 at [207], (2005) 143 FCR 217 at 261. 2049 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2000] FCA 549 at [211], (2005) 143 FCR 217 at 262. -- 529 of 647 -- [2025] SASC 59 Stanley J 526 protective against psychiatric injury, and to monitor his mental state. While I have accepted that the applicant would have been vulnerable to developing a psychiatric injury by the time he was transferred to Baxter by virtue of the length of time he had been in detention, I do not accept the proposition that the applicant was owed a more stringent duty to protect the applicant from psychiatric injury, in the absence of some evidence he actually was suffering, or at risk personally of suffering, such injury while in detention. No authority, including S v Secretary supports the contention that the mere fact of detention imposes this higher duty on the Commonwealth. 2314 While Finn J explained the minimum standard required for the Commonwealth to satisfy its duty of care, I do not consider any proper basis has been established to impose a higher standard of the scope and content of the duty imposed by the common law. For Finn J, while this represented the minimum required, it was sufficient to meet the standard of care imposed by the duty. 2315 It must be remembered that the risk of harm to the applicant was not the only matter to be considered in assessing whether reasonable care had been exercised. In assessing whether reasonable care was exercised, a consideration which had to be addressed was the need to ensure effective detention in accordance with the Migration Act.2050 2316 Neither the Migration Act or the regulations made thereunder made provision for regulating the manner and conditions of detention.2051 The Commonwealth imposed contractual obligations upon the third parties to observe the IDS. Accordingly, the Commonwealth assumed responsibility to ensure that the third parties complied with the IDS. To that extent, the IDS reflected the minimum standard of care to be observed by the Commonwealth and its agents ACM and G4S. Reasonable foreseeability 2317 The Commonwealth was under a duty to the applicant to avoid acts or omissions which it could reasonably foresee would be likely to injure him.2052 While reasonable foreseeability is not a test of causation,2053 the inquiry as to reasonable foreseeability has a causal element. The reasonable foreseeability is of the negligent act or omission causing or materially contributing to harm. In Shirt2054 Mason J referred to foresight that carelessness may be likely to cause damage to the plaintiff. As McHugh J said in Crimmins:2055 2050 SBEG v Commonwealth of Australia [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. 2051 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93 at [8], (2004) 259 FCR 576 at 578. 2052 Donoghue v Stevenson [1932] AC 562 at 580. 2053 Chapman v Hearse (1961) 106 CLR 112 at 122. 2054 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44. 2055 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 32 [72]. -- 530 of 647 -- [2025] SASC 59 Stanley J 527 Basic to the determination [as to whether there was a duty of care], as always, is the question: was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant’s acts or omissions? 2318 In considering the question of duty the task is a generalised inquiry2056 at a higher level of abstraction than when considering breach.2057 The foreseeable risk of harm must be real rather than far-fetched or fanciful but the risk does not need to be to the applicant or some particular person or persons. It is sufficient if it appears that injury to a class of persons of which the applicant was a member might reasonably have been foreseen as a consequence.2058 The precise and particular character of the injury or the precise sequence of events leading to the injury need not be foreseeable. It is enough if the kind or type of injury was foreseeable.2059 However, evidence that the acts or omissions of a defendant have increased a plaintiff’s vulnerability or risk of harm does not amount to causing or materially contributing to the harm.2060 This risk of an occurrence and the cause of an occurrence are quite different.2061 Injury 2319 The applicant claims that he suffered pure psychiatric injury as a result of the breach of duty the Commonwealth owed him. The diagnosis of that psychiatric injury was made by Dr Raeside. The history of the diagnosis of the precise psychiatric injury suffered by the applicant proves somewhat malleable. Initially Dr Raeside diagnosed the applicant as suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Subsequently, in the face of criticism by Dr Clarke of that diagnosis,2062 because of the length of time Dr Raeside considered that the disorder persisted, he altered his diagnosis to a Persistent Depressive Disorder. In his report of 7 December 20212063 Dr Raeside said that on the basis of the contents of the Summary of Evidence it was apparent that from time to time the applicant’s mental state was more severe than he had previously understood. Dr Raeside considered that at times his symptoms reached a level which would justify a diagnosis of a Major Depressive Disorder. He was not specific as to when this diagnosis could have been made. In any event, at the commencement of the trial the applicant had abandoned any plea that he suffered a Major Depressive Disorder. In his evidence Dr Raeside suggested that the applicant suffered an initial Adjustment Disorder and then a Persistent Depressive Disorder. However, as I discussed earlier, Dr Raeside said he still believes the applicant has a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He then said that if he was required to exclude that diagnosis because of the length of time, his diagnosis would be a Persistent Depressive Disorder. His 2056 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44. 2057 Vairy v Wyong Shire Council 2005] HCA 62 at [72], (2005) 223 CLR at 446-447. 2058 Chapman v Hearse (1961) 106 CLR 112 at 121. 2059 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402 and Rosenberg v Percival [2001] HCA 18 at [64], (2001) 205 CLR 434 at 455. 2060 Minister for the Environment v Sharma [2022] FCAFC 35 at [319]-[320]. 2061 Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 at [41], (2011) 246 CLR 36 at 53. 2062 T 6227-6228. 2063 Exhibit A583 (Report of Dr Raeside 7 December 2021 p 6). -- 531 of 647 -- [2025] SASC 59 Stanley J 528 evidence was that sometimes people and their situations fall between categorical diagnostic systems. 2064 I understood that at that point, Dr Raeside and the applicant effectively abandoned the diagnosis of a Persistent Depressive Disorder. In any event, I find that the evidence does not establish that the applicant was suffering from a Persistent Depressive Disorder. 2320 I accept the evidence of Dr Schirripa and Dr Clarke that the applicant’s presentation in Baxter was of fluctuating symptoms of distress either reactive to specific events or the result of the lengthy period he had spent in detention. The fluctuation of his symptoms and the lengthy periods where his mental state was fairly good and his mood was relatively positive are inconsistent with the diagnostic criteria of significant distress or impairment of social, occupational and other areas of functioning, and depressive symptoms most days, most of the time. 2321 The applicant’s case as finally pleaded is that he was suffering from a recognisable psychiatric injury from before his transfer to Baxter. This psychiatric injury is alleged to have persisted throughout the applicant’s detention in Baxter. However, that degree of persistence was not part of the diagnosis made by Dr Raeside. He diagnosed the applicant as suffering from an adjustment disorder in Baxter, symptoms of which occurred periodically. Post detention Dr Raeside diagnosed the applicant as suffering a Chronic Adjustment Disorder with Depressed and Anxious Mood until the subsequent changes in diagnosis.2065 It is unclear on Dr Raeside’s evidence when these changes occurred. 2322 I accept the applicant suffered a recognisable psychiatric illness in the brief period leading to and in the aftermath of the attempted suicide in August 2003. Apart from this period, I do not consider that the applicant has proved he suffered an Adjustment Disorder or an aggravation of one. 2323 In addition, the applicant claims that from 2008 onwards, as a result of his psychiatric injury, he commenced to use and abuse Tramadol, OxyContin and Lyrica. He alleges that his use of these drugs produced symptoms that incapacitated him from working most of the time and affected his mood so as to interfere with the activities of daily living. There is no doubt he developed an opioid addiction. The issue is the cause of that addiction and whether the applicant can prove that the cause was self-medicating his psychiatric injury rather than seeking relief from the pain of physical injury. As I have found, the applicant has not proven this. Is the content of the Commonwealth’s duty of care informed by Australia’s international treaty obligations? 2324 The applicant submits that the proper approach to the exercise of the Commonwealth’s statutory functions under the Migration Act is informed by Australia’s international obligations. The applicant submits this is recognised in 2064 T 6227-6228. 2065 T 6227. -- 532 of 647 -- [2025] SASC 59 Stanley J 529 the IDS. He contends that the Australian community has never accepted standards in breach of internationally accepted human rights. The applicant relies on Articles 7 and 10 of the International Covenant on Civil and Political Rights. Article 7 provides that no-one shall be subject to torture or cruel, inhumane or degrading treatment or punishment. Article 10 requires state parties to treat all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person. These obligations have not been imported into Australian domestic law. Since the High Court’s judgment in Koowarta v Bjelke Petersen2066 it has been well settled that the ratification by the executive of an international treaty does not give rise to a cause of action in domestic law until it is incorporated by legislation. However, the High Court has recognised that the adoption of international treaties and covenants by Australia can influence the development of the common law.2067 2325 As Mason CJ and Deane J pointed out in Minister for State for Immigration and Ethnic Affairs v Teoh2068 courts should act with due circumspection to avoid backdoor implementation of provisions which Parliament has not seen fit to incorporate into domestic law. The content of the Commonwealth’s duty of care might be informed by provisions such as Articles 7 and 10 but the standard of care the Commonwealth must observe in conformity with the duty of care owed to the applicant, is also informed by the statutory scheme of the Migration Act and its requirement for immigration detention. The content of the duty of care must conform to the terms of the Act. While there is something to be said for the proposition that the Commonwealth, in its conduct of immigration detention, should comply with the terms of Articles 7 and 10, it must do so consistently with its obligation to comply with the statutory scheme contained in the Migration Act. To the extent of any inconsistency, it is the obligations imposed by the Migration Act which must prevail. None of that is to suggest that the Migration Act authorises detention in inhumane or intolerable conditions. So much is acknowledged by the Commonwealth.2069 2326 On the contrary, while these international obligations are not directly enforceable under Australian domestic law, given that they have not been incorporated by legislation, they are nonetheless relevant in forming the Commonwealth’s approach to detention as well as influencing the development of the common law in certain circumstances. 2327 But it is not just the development of the common law which may be influenced by Australia’s international obligations. Those obligations can be incorporated into the contractual obligations agreed by contracting parties. In this case the IDS have been expressly informed by Australia’s international obligations. Both the ACM and the G4S contracts provide that those principles 2066 Koowarta v Bjelke Petersen (1982) 153 CLR 168 per Mason J at 224-225. 2067 Dietrich v The Queen (1992) 177 CLR 292 at 321; Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 42. 2068 (1995) 183 CLR 273 at 288. 2069 Respondent’s Written Closing Submissions (FDN 684) at [49]. -- 533 of 647 -- [2025] SASC 59 Stanley J 530 underpin the provision of the detention function and the standard of care to be provided. The contracts further provide that ACM and G4S’ actions must be guided by those principles and the service provider’s actions must be guided by them. The contracts also provide that the treatment of persons held in immigration detention is to be consistent with Australia’s international obligations. 2328 However, it does not follow necessarily, as the applicant submits, that the applicant’s assessment on arrival at Baxter was inadequate because an adequate assessment ought to have screened him for a history of torture and trauma. CONTENT OF THE DUTY OF CARE AND BREACH 2329 As Gummow J pointed out in Vairy v Wyong Shire Council,2070 there is a distinction to be drawn between the levels of abstraction in dealing with duty and breach. While the existence of a duty of care involves a more generalised inquiry, breach requires close attention to the totality of the circumstances of the Shirt calculus. 2330 The Commonwealth owed the applicant a non-delegable duty to take reasonable care for his safety in detention.2071 That the applicant was a member of a class of detainees, namely, long-term detainees vulnerable to suffering psychiatric injury, did not elevate the obligation owed by the Commonwealth beyond a duty to take reasonable care. The evidence does not establish that there was any treatment available for the risk of psychiatric injury particular to the applicant except removal from the detention environment. That was not reasonable because of the Commonwealth’s statutory obligation to detain him in immigration detention2072 pursuant to the Migration Act. 2331 In Modbury Triangle Shopping Centre Pty Ltd v Anzil2073 and Tame v New South Wales2074 Hayne J explained that because the extent of a duty of care falls for decision in relation to concrete facts arising from real life activities it will not always be useful to begin by examining the extent of the defendant’s duty of care separately from the facts which give rise to a claim. Asking whether the damage caused by that want of care resulted from the breach of duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff’s allegations of breach and damage must depend. 2332 In relation to the applicant’s failure to treat case, in order to identify the content of the duty of care the Commonwealth owed the applicant, it is necessary to identify what should have triggered action by the Commonwealth, through its agent, to require the applicant to undergo a comprehensive MHA. The applicant’s case is that his transfer to Baxter from Curtin, the fires and subsequent events, namely the applicant’s placement in the Management Unit in January and March 2070 [2005] HCA 62 at [72], (2005) 223 CLR 422 at 446-447. 2071 SBEG v Commonwealth [2012] FCAFC 189 at [69], [2012] FCR 235 at 251. 2072 See the definition of “detain” in s 5 of the Migration Act. 2073 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 289-290. 2074 Tame v New South Wales [2002] HCA 35, (2002) 211 CLR 317. -- 534 of 647 -- [2025] SASC 59 Stanley J 531 2003, the self-harming incident of 6 February 2003 and the overdose of 11 August 2003, either individually or collectively, should have prompted the Commonwealth to refer the applicant for a comprehensive MHA. In order to establish the content of the Commonwealth’s duty of care, it is necessary to consider the concrete facts arising from the real life activity of immigration detention. The failure to refer the applicant for a comprehensive MHA is only a breach of duty if the Commonwealth, through its agents, knew or should have known that the applicant was suffering from a mental injury or was vulnerable to suffering a mental injury, for reasons that went beyond being a member of a class who were recognised as vulnerable, namely, being a detainee in immigration detention. If being in immigration detention triggered an obligation to refer a detainee for a comprehensive MHA, the corollary was that every person in immigration detention, or at least every person who had been in immigration detention for at least 12 months, should have been subject to a MHA. In the absence of identifiable signs or symptoms that the applicant was experiencing, which suggested that he was suffering mental injury, or was personally vulnerable to doing so, the Commonwealth’s duty of care did not extend to requiring it to refer him for a comprehensive MHA or, at least, there was no breach of its duty in failing to do so. To have imposed upon the Commonwealth a duty to refer every person in immigration detention, or every person who had been in detention for at least 12 months, for a comprehensive MHA would not have been reasonable. The contemporaneous documentary evidence does not support a finding that the applicant was exhibiting signs or symptoms that should have resulted in a referral for a comprehensive MHA. This was a very different case from S v Secretary.2075 2333 The applicant’s case that the health system at Baxter was overrun and inadequate is flawed for two reasons. First, it is part of the unpleaded systems case which is untethered to any reliable evidence that some inadequacy in the health system at Baxter explains a failure to detect the applicant’s mental illness. Second, it depends upon a finding that the applicant was suffering from a recognisable psychiatric injury during his detention at Baxter. As I have said, apart from the depressive illness he suffered for a relatively short period after his application for special leave was rejected in August 2003, the evidence does not establish the existence of a psychiatric injury suffered by the applicant at Baxter. As for the injury I find that he suffered in August 2003 the evidence supports a finding that he recovered from that injury no later than December 2003. Accordingly, apart from that period, if a comprehensive MHA had been undertaken it would not have resulted in a referral for psychiatric treatment. BREACH 2334 The applicant alleges that the Commonwealth knew or ought to have known that during the applicant’s detention at Baxter he was exposed to various stressors as a result of which he suffered a recognisable psychiatric injury, namely, an 2075 [2005] FCA 549, (2005) 143 FCR 217. -- 535 of 647 -- [2025] SASC 59 Stanley J 532 Adjustment Disorder with Mixed Anxiety and Depressed Mood, or a Persistent Depressive Disorder. The applicant relies upon the Commonwealth’s negligent failure to assess him for psychiatric injury or vulnerability to psychiatric injury on various occasions and the subsequent failure to treat that injury or prevent such injury occurring. 2335 If a reasonable person in the Commonwealth’s position would have foreseen that its conduct involved a risk of psychiatric injury to the applicant, it is then for the Court to determine what a reasonable person would do by way of response to the risk. 2076 2336 A failure to eliminate a risk that is reasonably foreseeable does not prove negligence. Proper inquiry at the breach stage involves identifying with some precision what a reasonable person would do by way of response to the foreseeable risk.2077 2337 This is not susceptible to mathematical precision. It requires more than a comparison between what it would cost to avoid the particular injury that happened and the consequences of that injury. Shirt requires a more elaborate inquiry that does not focus only upon how the particular injury that occurred. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury.2078 In Fahy Gummow and Hayne JJ said:2079 In Vairy v Wyong Shire Council, it was explained why it is wrong to focus exclusively upon the way in which the particular injury of which a plaintiff complains came about. In Vairy, it was said that: “[T]he apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.” It is only if the examination of breach focuses upon “what a reasonable man would do by way of response to the risk” (emphasis added) that it is sensible to consider “the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, 2076 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. 2077 Graham Barclay Oysters Pty Ltd v Ryan & Ors [2002] HCA 54 at [192], (2002) 211 CLR 540 at 611- 612. 2078 New South Wales v Fahy [2007] HCA 20 at [57], (2007) 232 CLR 486 at 505. 2079 [2007] HCA 20 at [58], (2007) 232 CLR 486 at 505-506. -- 536 of 647 -- [2025] SASC 59 Stanley J 533 difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”. [citations omitted]. 2338 In Dederer Gummow J held that the trial judge and the majority in the Court of Appeal had not engaged in an assessment of breach of duty on the part of the defendant prospectively, but rather from a position of hindsight by retrospectively asking whether the defendant’s actions could have prevented the plaintiff’s injury. Gummow J held that the lower courts had focussed in retrospect on the defendant’s failure to prevent the plaintiff being injured, rather than asking what the exercise of reasonable care would have required prospectively in response to the foreseeable risk of injury.2080 2339 Questions of reasonableness inform whether a defendant has breached a duty of care. In assessing whether there has been a breach of duty, the exercise that the Court undertakes commences with an inquiry into what reasonable conduct on the part of the Commonwealth required in the detention of the applicant. The issue of reasonableness can involve bringing to account the economic costs a defendant might incur to prevent a foreseeable risk of injury. In Cekan v Haines Kirby P considered the relevance of the economic cost of measures which could reasonably be taken to prevent a foreseeable risk of injury in the following terms:2081 So far as the economic costs involved in the appellant's case are concerned, it is appropriate to take these into account when determining what reasonable conduct on the part of State authorities required in the custody of the appellant. Obviously, the greater the cost of the modification of institutions and procedures inherited from earlier times, the less likely it is that the common law would impose the obligation that the modifications should be introduced, at least rapidly. This is but the corollary of the principle that the greater and more obvious the risk of injury, the heavier is the obligation to attend to it without delay. 2340 … Therefore, amongst the many other demands upon the State for the expenditure of its resources, the appellant was urging that it should have discharged the demand to provide better surveillance in a large number of police lockups and other public places. The cost of doing this would, self-evidently, have been most substantial. There is no simple formula for the economics of providing reasonable care. Courts take economic costs into account in determining what natural justice requires of public authorities. Similarly, they must consider the costs of modifications said to have been necessary to attain to standards of reasonable care to avoid liability in negligence. There will need to be further detailed attention in the future to the economic theory which supports arguments about what reasonable care requires. Although the resources of a State are much greater than those of any individual or corporation in it, they are nonetheless limited. Choices must be made in the expenditure of public funds. Constitutional, legislative and other machinery is provided for the making of such choices. Plainly, the expenditure on one activity (such as the modification of cells receiving intoxicated 2080 Roads and Traffic Authority v Dederer [2007] HCA 42 at [66], (2007) 234 CLR 330 at 353. 2081 (1990) 21 NSWLR 296 at 305-306. -- 537 of 647 -- [2025] SASC 59 Stanley J 534 members of the public) diminishes the possibility of expenditure on others which may have equal urgency and greater public appeal. Attention to considerations of cost is required by principles stated in general terms. However, it is the failure of the common law to develop more than a general notion of the economic consequences of asserting the requirements of reasonable care, that represents, in my view, one of the chief defects in the law of negligence as it has developed. It is the recognition, belatedly, of the economic impact of decisions on the topic which have lately led to something of a retreat from an earlier tendency to impose duties on the public purse which ignored the economic consequences necessarily following from such imposition. [citations omitted]. 2341 It is incumbent upon the applicant to demonstrate that there was something the Commonwealth could have done which would have eliminated or reduced the risk complained of and which was practicable.2082 In doing so, as Charlesworth J pointed out in Okwume v Commonwealth,2083 applying what was said by the Full Court of the Federal Court in SBEG,2084 the risk of harm to a detainee is not the only matter to be considered in assessing whether reasonable care has been exercised. A consideration which must be addressed is the need to ensure effective detention in accordance with the law. The medical failure to treat case 2342 The applicant’s claim depends on what happened to him while in detention at Baxter. The applicant’s failure to treat case requires consideration of whether he has proved the Commonwealth breached its duty of care to him by a failure to treat him, which caused him loss and harm. That is to say that by reason of the Commonwealth’s negligent acts or omissions the applicant suffered psychiatric injury he would not otherwise have suffered but for those negligent acts or omissions. 2343 As I have said, there is no issue that the Commonwealth owed a non- delegable duty of care to the applicant to provide for his medical care while in detention. That duty required the Commonwealth take reasonable care for the safety of the applicant while he remained in detention. It was not a duty to ensure that the applicant did not suffer a psychiatric injury.2085 2344 Whether the Commonwealth breached its duty to provide him with reasonable medical care, in particular, mental health care, is to be determined by looking prospectively at the medical care it provided to the applicant between September 2002 and April 2005. 2345 In order to determine whether there was a breach by the Commonwealth of its duty of care it is necessary to consider the content of that duty in order to 2082 Trustees of Roman Catholic Church for Diocese of Canberra and Goulburn v Hadba [2005] HCA 31 at [13], (2005) 221 CLR 161 at 167. 2083 [2016] FCA 1252 at [238]. 2084 [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. 2085 SBEG v Commonwealth [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. -- 538 of 647 -- [2025] SASC 59 Stanley J 535 determine whether it has been breached. As a result, the issue of breach overlaps with the issue of causation, a subject I will come to later in these reasons. 2346 The applicant’s failure to treat case can be categorised into six specific allegations of breach of the Commonwealth’s duty of care. Breach One 2347 Breach one is the failure to have the applicant assessed for mental illness or vulnerability to mental illness at or shortly after his transfer to Baxter in September 2002.2086 2348 The allegation of breach is premised on the applicant suffering from a psychiatric illness at the time of his transfer to Baxter and that this was known, or ought to have been known, by the Commonwealth. The allegation assumes that an assessment was not undertaken at that time. None of these premises is established on the evidence. 2349 The evidence at the time of the applicant’s transfer from Curtin to Baxter does not support a finding that the Commonwealth breached its duty of care to the applicant by failing to refer him for a comprehensive MHA by a mental health nurse, psychologist or psychiatrist. The overwhelming weight of the evidence is that the applicant was not suffering from a psychiatric illness when he was transferred from Curtin to Baxter.2087 Dr Raeside initially considered there was nothing on the face of the Curtin medical records that supported a conclusion that the applicant had a psychiatric illness at Curtin and that a review of those records upon arrival at Baxter would have come to the same conclusion.2088 That is consistent with the results of the health assessment that was undertaken on 22 September 2002, shortly after the applicant’s transfer to Baxter which recorded that his mental health at that time was satisfactory.2089 2350 While I accept that this assessment was not a comprehensive MHA, it did screen the applicant for signs of psychiatric illness. There was no evidence disclosed by that assessment to indicate symptoms or signs of a psychiatric illness. 2351 I accept the Commonwealth’s submission that it was reasonable for the Commonwealth not to arrange for a MHA of the applicant in the absence of symptoms of psychiatric illness. I consider it was reasonable of the Commonwealth to screen the applicant at the time of his transfer. I consider the Commonwealth did what reasonable care in the circumstances would require. If the screening suggested that a more interventionist approach was required by way 2086 Exhibit A583 (Report of Dr Raeside 14 December 2018 pp 21-22), 8ASoC [32.1], [31.13.1], [32.2], [32.3]. 2087 Exhibits R1659 (Report of Dr Schirripa 8 April 2013), R1662 (Report of Dr Schirripa 28 January 2021 p 10), 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 3), Exhibit A547 (Report of Professor Jureidini 25 May 2018 p 10). 2088 T 6269-6270, 6275. 2089 Exhibit A759. -- 539 of 647 -- [2025] SASC 59 Stanley J 536 of a full MHA, I consider that would have been reasonable in those circumstances. But in the circumstances that existed, it was not reasonable to expect the Commonwealth to undertake a greater level of medical intervention than occurred. The applicants transfer from Curtin to Baxter was not some bellwether event requiring a comprehensive MHA being conducted. It was merely a change in the place of detention. There was nothing in that administrative occurrence which called for a full MHA. That would only have been necessary to comply with the Commonwealth’s duty of care if the screening had indicated the existence of a real risk of the applicant suffering a recognisable psychiatric injury. 2352 In August 2002 ACM adopted, with the approval of DIMIA, operating procedures including an “at risk / self-harm / suicide management” procedure.2090 It provided: All detainees are to be screened and assessed for risk of self-harm or suicide upon arrival at Baxter IRPC. All detainees identified as being At Risk are to be provided with an appropriate At Risk Treatment Plan which will address housing, counselling, healthcare, mental health evaluation and treatment, observation level, conditions of watch and documentation requirements, visitation arrangements and such other matters as are deemed necessary. 2353 This policy did not require ACM to undertake a full MHA of all detainees upon arrival at Baxter unless the screening, that was required, revealed a basis for concern that the detainee was at risk of self-harm or suicide. The policy required each detainee to be screened and assessed for that risk. It was only if the screening and assessment process identified a detainee as being at risk that a risk treatment plan was to be prepared. In those circumstances I consider the Commonwealth’s duty of care required that a detainee who upon screening and assessment was found to be at risk of self-harm or suicide or suffering a psychiatric illness should undergo a comprehensive MHA.2091 But the Commonwealth’s duty did not extend to a requirement that the applicant be subject to a comprehensive MHA if the screening process did not reveal he was at risk of self-harm, suicide or was suffering a psychiatric illness. It did not. 2354 I find that the inter-centre transfer nursing assessment conducted at the time of the applicant’s arrival in Baxter on 22 September 2002 met the requirement of the “at risk / self-harm / suicide management” policy. I further find that the absence of a comprehensive MHA of the applicant at that time did not breach the duty of care the Commonwealth owed him. The failure to undertake a comprehensive MHA upon arrival at Baxter, in the case of the applicant, was reasonable given the absence on screening of signs or symptoms of psychiatric illness at that time. I reach this conclusion notwithstanding the evidence of Dr Clarke that ideally a comprehensive MHA should have been undertaken at this time. Dr Clarke’s evidence in this regard goes no further than to concede that in an ideal world with unlimited resources it would have been desirable for such an 2090 Exhibit 1.3TP2128. 2091 Exhibit 1.3TP2133. -- 540 of 647 -- [2025] SASC 59 Stanley J 537 assessment to have been performed. But that does not render the Commonwealth’s failure to undertake such an assessment, in circumstances where screening did not disclose the existence of psychiatric illness, a breach of its duty of care. I am reinforced in this finding by the applicant’s failure to prove that he was suffering a psychiatric illness at this time. 2355 I am satisfied there was no breach of the duty irrespective of the precise plea of breach for “failing to assess him upon his arrival at Baxter for mental illness or vulnerability to mental illness”.2092 The plea is not of a failure to undertake a comprehensive MHA. The actual plea is of a failure to assess him upon his arrival for a mental illness or vulnerability to mental illness. That plea cannot succeed, first because he was assessed for mental illness and, second even if he was not assessed for his vulnerability to mental illness, I do not consider the Commonwealth is liable on this basis. The evidence does not establish the distinction between an assessment for mental illness and an assessment for vulnerability to mental illness.2093 2356 While Dr Clarke acceded to the proposition that it would have been desirable to have undertaken a comprehensive MHA of the applicant at the time of his transfer to Baxter he did not accept that was necessary.2094 He considered that at the time of the applicant’s transfer to Baxter it could have been assumed that he was vulnerable to mental illness. He was of the view that the Commonwealth could have assumed, without specific assessment, that after 21 months in detention the applicant was a member of a class vulnerable to mental illness.2095 He doubted that it would have been practical for all detainees to be reviewed by a psychiatrist at the time of their transfer to Baxter. He did not think adequate numbers of psychiatrists were available to undertake that task. He also doubted that there was any practical assessment available for that vulnerability. In any event, he was unable to identify any action that could have been taken to deal with that vulnerability2096 given the applicant was in immigration detention rather than a therapeutic, clinical setting. I find that in this respect Dr Clarke’s opinion coincided with the opinions of Professor Jureidini and Professor Minas that the only effective treatment that was realistic was to remove the person from immigration detention. 2357 Dr Clarke was sceptical about the efficacy of various screening tools. He considered them to be of limited validity and value.2097 Further, the detention environment itself would have rendered screening problematic. In his opinion there was a risk screening could be abused by detainees hoping to obtain some advantage by exaggerating their mental suffering. Accordingly, he thought it would have been more effective to observe detainees going about their normal 2092 8ASoC [27.1]. 2093 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 5). 2094 T 8475-8476, 8481.22-8482.1, 8484.3-32. 2095 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 6). 2096 Exhibit 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 5). 2097T 8462.30-8469.27. -- 541 of 647 -- [2025] SASC 59 Stanley J 538 activities so behaviour clearly indicating psychiatric illness could be identified and appropriate measures taken. I accept his evidence. 2358 It is unclear how detainees were to be assessed or screened for vulnerability to suffering psychiatric illness as opposed to them being assessed to identify whether they were suffering psychiatric illness. Moreover, it is unclear what treatment could have been provided to a detainee who was not suffering a psychiatric illness but was assessed as vulnerable to suffering a psychiatric illness apart from removing the detainee from detention. 2359 There is no basis to find that the Commonwealth knew or ought to have known that the applicant was suffering a psychiatric illness at the time of his transfer to Baxter. That proposition is founded on a false premise. The evidence does not support a finding that the applicant was suffering a psychiatric illness at that time. Accordingly, the Commonwealth could not know of an illness that was not proved. 2360 In December 2018 Dr Raeside changed his opinion that there was not a need for a comprehensive MHA of the applicant upon arrival at Baxter. This was the result of him being asked to assume the correctness of the Outline of Evidence and to disregard any inconsistent history he had obtained from the applicant. 2361 The Outline of Evidence is an unreliable basis for making findings of fact given the breach of the proof of assumption rule. Proof of the underlying assumptions mostly depends on the acceptance of the applicant’s evidence. As I have said I do not consider his evidence constitutes a reliable basis for proof of those underlying assumptions. 2362 First, the critical parts of the Outline of Evidence concerning events at Curtin were not part of the history that the applicant gave to Dr Raeside and Dr Schirripa. 2363 Second, the early histories provided to Dr Raeside and Dr Schirripa are fundamentally inconsistent with the Outline of Evidence. Those histories, relevant to the applicant’s mental health in Curtin, do not support a finding of psychiatric injury at Curtin. 2364 Third, the Outline of Evidence is inconsistent with the contemporaneous medical records covering the whole period of detention in Curtin. There is no sound basis for not relying on those records in making findings of fact. 2365 Fourth, the history obtained by Dr Raeside in November 2010 and subsequently up to 2018 is consistent with the contemporaneous records.2098 So is the history obtained by Dr Schirripa.2099 2098 Exhibit A583. 2099 Exhibit R1659 (Report of Dr Schirripa 8 April 2013 p 3). -- 542 of 647 -- [2025] SASC 59 Stanley J 539 2366 Fifth, the contemporaneous records at Baxter for the period from the applicant’s transfer until the fires in late December 2002 contradicts the contents of the Outline of Evidence. Those records do not evidence any symptoms of mental illness. 2367 Sixth, from December 2018 Dr Raeside was required to formulate opinions based on the Outline of Evidence without being able to test the accuracy of the assumptions contained in those documents. 2368 Finally, from 26 November 2021 the problem was compounded because Dr Raeside was required to formulate opinions based on the Summary of Evidence and the Outline of Evidence without being able to test the assumptions in either document. 2369 In any event, even if, contrary to the weight of the evidence, the applicant had been subject to a comprehensive MHA upon his arrival at Baxter the evidence does not establish that this would have identified any psychiatric injury. Dr Raeside accepted this proposition.2100 2370 The applicant has not proved breach one. Breach Two 2371 Breach two is the failure to have the applicant assessed and treated in the period from his arrival in Baxter in September 2002 to March 2003.2101 2372 The applicant expressly alleges that in this period he should have been assessed and treated after he was hospitalised following the fires on 30 December 2002; 2102 after he was detained in the Management Unit in January 2003; after he harmed himself on 6 February 2003; after he was seen to steal medication on 28 February 2003; after his attempted escape on 8 March 2003;2103 during or after detention in the Management Unit in early March 2003; and after his overdose on 23 March 2003. 2373 The significance of March 2003 is that is the date Dr Raeside considered to be when the applicant should have been diagnosed with a psychiatric illness. In his 2018 report Dr Raeside indicates the diagnosis at this time ought to have been an Adjustment Disorder with Mixed Anxiety and Depressed Mood.2104 There is no doubt that significant events in the applicant’s detention experience occurred in this period. These were the fires in late December 2002, followed by the applicant’s treatment at the Port Augusta Hospital for smoke inhalation; his subsequent placement in the Management Unit for three days; his transfer to the 2100 T 6274-6275. 2101 Exhibit A583 (Report of Dr Raeside 14 December 2018 p 28), 8ASoC [32.1], [31.13.2]-[31.13.8]. 2102 I note that the documentary evidence indicates the applicant was taken to Port Augusta Hospital on 29 December 2002. 2103 I note that the documentary evidence indicates the tunnel was discovered on 5 March 2003. 2104 Exhibit A583 (Report of Dr Raeside 14 December 2018 p 28). -- 543 of 647 -- [2025] SASC 59 Stanley J 540 more restrictive environment of Blue 3; the self-harm protest of 6 February 2003; and the attempted escape by digging a tunnel, which was detected on 5 March 2003 and resulted in the applicant being placed in the Management Unit from 5 March 2003 to 13 March 2003. The evidence does not establish that, as alleged, the applicant took an overdose on 23 March 2003. There is no evidence of an overdose on that date. This allegation was effectively abandoned in opening.2105 However, in the course of giving evidence the applicant complained about the failure to assess and treat him after the dismissal of his application for special leave and subsequent suicide attempt in August 2003. I will address this under breach three. 2374 As I have said, the evidence does not support a finding that there was anything in the applicant’s presentation to indicate that he was suffering from a psychiatric illness between his transfer to Baxter on 22 September 2002 and the fires on 27 and 29 December 2002. 2375 There was no reason for the applicant to be psychiatrically assessed and treated as a result of his treatment at the Port Augusta Hospital for symptoms of smoke inhalation following the fires in late December 2002. There is no evidence that treatment was not appropriate or adequate. There is no evidence that he suffered any further symptoms related to smoke inhalation after his discharge from hospital. More importantly, the fact that he had suffered smoke inhalation did not logically require him to be psychiatrically assessed. 2376 While in the Management Unit after the fires he was assessed by a psychiatric nurse, Ms Rarity, on 2 and 3 January 2003. While characterised as a welfare check, it is apparent that the assessment involved a mental state examination. I am satisfied that at various times during the first three months of 2003 the applicant was distressed and on one or two occasions felt his mood sufficiently down and angry to report feeling depressed when attending at the medical clinic. It is not clear that at any of these times he required specialist psychiatric mental healthcare. As I have discussed elsewhere, I have found that the self-harm incident of 6 February 2003 was part of a protest rather than a psychiatric cry for help. As I have said, I find it is significant that when Dr Raeside first took a history from the applicant he did not mention the incident of 6 February 2003. Ms Rarity noted him reporting to her that he was protesting and that this was not to do with him wanting to kill himself.2106 When assessed on the following day by Dr Ojah he was prescribed medication for insomnia.2107 There is no reliable evidence that this treatment was inadequate or unreasonable. The applicant’s mood improved after the restrictive conditions in the compound were lifted rendering the protest a success. Finally, I do not accept that the participation of the detainees, including the applicant, in the protest of 6 February 2003, was evidence that they were suffering a recognisable psychiatric injury at that time. There is no evidence that any of those engaged in the protest were assessed as suffering such an injury at 2105 T 300. 2106 Exhibit A1227, T 7626.7, 7644. 2107 T 564, 1227. -- 544 of 647 -- [2025] SASC 59 Stanley J 541 that time. I am satisfied the acts of self-harm while the product of desperation, were not evidence, at least in the case of the applicant, of such an injury. As Ms Rarity said in her evidence, the applicant’s injuries, including the laceration that was treated with steristrips, were superficial. That the situation was characterised by a level of hysteria, as described by Ms Rarity, is not necessarily evidence of the existence of psychiatric injury either generally on the part of those participating in the protest or specifically on the part of the applicant. Accordingly, I do not accept Dr Raeside’s opinion that the self-infliction of injury was a product of an underlying mental health problem on the part of the applicant. That opinion is contrary to Ms Rarity’s assessment at the time. 2377 The documentary evidence records that the applicant is alleged to have stolen medication from a nurses’ station on 28 February 2003.2108 I am prepared to accept that this allegation is true. It appears that this incident occurred after the applicant became verbally aggressive towards staff in regards to night time sedation.2109 I accept that the evidence establishes that the applicant was emotionally distressed at this time. As was subsequently discovered, when this occurred he was engaged in an attempted escape by digging a tunnel. However, this was not known at the time of this altercation at the nurses’ station. While a referral to the medical centre would not have been inappropriate, the incident of itself did not require a psychiatric assessment. Not every instance of unhappiness, anger or distress on the part of a detainee necessitated such an assessment. In fact he was medically assessed less than a week later when the tunnel was discovered in Reza’s room. That assessment did not result in any referral for psychiatric assessment or treatment. The evidence does not establish the failure to refer him for psychiatric assessment following this incident was a breach of the Commonwealth’s duty of care. 2378 While in the Management Unit following his attempted escape the applicant was assessed by Ms Rarity and other clinicians on 5, 6, 7, 8, 9, 10 and 11 March. These entries are classified in the records as ‘psychiatric nursing entries.’ None of these entries document anything unusual.2110 2379 There is no evidence that Ms Rarity’s observations, assessment and treatment of the applicant on any of these occasions was inadequate or unreasonable. Some criticism was made by Dr Raeside of her note taking. I prefer the opinions of Dr Clarke2111 and Dr Schirripa2112 that the medical care provided by Ms Rarity to the applicant was reasonable and appropriate and that there was no breach of the Commonwealth’s duty of care to treat the applicant in this period. While that is not to gainsay that the applicant felt stressed during this period, I am not satisfied that the evidence supports a finding that his mental health had deteriorated to such 2108 Exhibits A948, A769, A1268. 2109 Exhibits A948, A769, A1268. 2110 Exhibit A1227. 2111 Exhibit 1.3TP1767 pp 10-12. 2112 T 7022-7023, 8476-8477, 8500, 8533-8534. -- 545 of 647 -- [2025] SASC 59 Stanley J 542 an extent as to require specialist assessment and treatment by a psychologist or psychiatrist. 2380 The applicant submits that Dr Ojah was negligent in failing to recognise obvious signs of mental illness, or at least vulnerability to mental illness, on the applicant’s part when he was consulted on 16 January 2003, 23 January 2003 and 7 February 2003. I do not accept this submission. There is no pleading of negligence on the part of Dr Ojah or expert evidence to support a finding of negligence. Dr Ojah responded to the applicant’s complaints and presentation by prescribing an appropriate regime of drug treatment. Notwithstanding subsequent events, there was no proper basis for finding that the applicant was in need of more intensive treatment between his arrival at Baxter and March 2003. On the contrary the evidence is that his complaints of being stressed and depressed resolved after 7 February once he was provided with Temazepam and Benzodiazepine. 2381 The applicant has not proved breach two. Breach Three 2382 Breach three is the failure to have the applicant assessed and treated for psychiatric injury resulting from various stressors occurring after March 2003. 2383 The applicant specifically alleges that he should have been assessed; after the rejection by the High Court of his application for special leave on 8 August 2003 and after he attempted suicide by ingesting Tramadol on 11 August 2003;2113 after his detention in the Management Unit between 11 and 15 or 16 August 2003; after Reza was deported on 23 August 2003; after the applicant harmed himself in December 2003; after his insomnia worsened in January 2004; after he became reclusive in about May 2004; after he became non-compliant with his medication in July 2004; and after he stopped taking his meals in the mess and largely stayed in his room in about late February 2005.2114 2384 For reasons I have explained elsewhere, I am satisfied that the applicant’s overdose on 11 August 2003, in the wake of the High Court’s rejection of his application for special leave to appeal on 8 August 2003, was a genuine suicide attempt. At issue is whether the failure to arrange for the applicant to consult a psychiatrist at that time was a breach of the Commonwealth’s duty of care and, if so, whether it was causative of any loss or damage to the applicant. 2385 The necessary inquiry commences with whether the Commonwealth’s duty of care owed to the applicant required it to refer him for psychiatric assessment at that time, given the relevant circumstances. 2386 Within a matter of minutes of the applicant collapsing in the recreation room as a result of his ingestion of Tramadol, he was examined, assessed and treated by 2113 Exhibit A583 (Report of Dr Raeside 14 December 2018 pp 25-26), 8ASoC [32.1], [31.13.9]-[31.13.12]. 2114 8ASoC [31.6.11-31.6.17]. -- 546 of 647 -- [2025] SASC 59 Stanley J 543 the medical team. They found him to be confused and uncooperative. He refused to be taken to the medical centre but walked back to his room assisted by other detainees. The medical team’s observations record that he was always conscious and his observations were normal. The applicant reported that he had taken somewhere between two to five Tramadol tablets as he wanted to get some sleep.2115 He showed no signs of self-harm or suicidal ideation and guaranteed his own safety. He was kept under regular observation by the medical health team until 15 August 2003. He refused to see a doctor on 11 August but was assessed and underwent a mental health examination on 12 August and 14 August. There is no evidence that the observations and assessment of the applicant by the MHT were inadequate or unreasonable. Relevantly, he was not placed in the Management Unit. 2387 It does not follow that the failure to have the applicant assessed and treated by a specialist psychiatrist or psychologist in the wake of his suicide attempt constituted a breach of the Commonwealth’s duty of care. Given the applicant’s presentation to the medical team; the history he gave of taking somewhere between two and five tablets for the purpose of trying to sleep; his denial of any suicide attempt or suicidal ideation; his capacity to be able to return to his room with the assistance of other detainees; and the regular observations subsequently made of him; I am satisfied that a referral to a psychiatrist or psychologist was not reasonably required. 2388 I find that in these circumstances where the only information available to the Commonwealth and ACM indicated that this was not a suicide attempt, the Commonwealth’s duty of care was not breached. Absent some basis for a conclusion that the Commonwealth knew or should have known the applicant was mentally unwell and at risk of suicide, the clinical response of those responsible for the applicant’s health and safety was sufficient to meet the Commonwealth’s duty of care. 2389 In any event, even if there had been a breach of the Commonwealth’s duty of care by failing to refer the applicant for psychiatric assessment it was not causative of any loss. The underlying premise of the applicant’s case is that if he had seen a psychiatrist at that time he would have provided a history and presented as a person suffering a psychiatric illness which could have been treated effectively. However, I find that if the applicant had been referred for psychiatric assessment at that time it is likely he would have given a psychiatrist the same account he gave the nurse. As Dr Raeside said in his evidence, this would most likely have resulted in the psychiatrist monitoring the applicant to satisfy himself or herself that what the applicant said to the nurse was the fact. The contemporaneous records of the applicant working, interacting with staff and socialising with other detainees in the aftermath of the overdose would have corroborated the applicant’s claim that this was not a genuine suicide attempt. In these circumstances, as Dr Raeside said, no further assessment or psychiatric treatment would have been considered necessary 2115 Exhibit A1098. -- 547 of 647 -- [2025] SASC 59 Stanley J 544 because of the level of adequate functioning demonstrated by the applicant. For the purposes of the Kozarov2116 test, I find that, in the period leading up to the overdose in August 2003, there was an absence of evident signs that the applicant was vulnerable to psychiatric injury, let alone that he was suffering psychiatric injury. In the circumstances I find that the Commonwealth neither knew nor should have known, in the three-day period between the rejection of his application for special leave and the overdose attempt, that the applicant was suffering a psychiatric injury. 2390 In any event, there is a more fundamental problem with the applicant’s case insofar as it relies upon his suicide attempt in August 2003 as proof of the Commonwealth’s breach of its duty of care. As I have found, the applicant’s suicide attempt was reactive to learning that his application for special leave to the High Court had been refused with all the attendant consequences for his future. The Commonwealth could not be found liable in negligence for the consequences of the High Court’s decision. 2391 The applicant also contends that after the overdose of 11 August 2003 the Commonwealth breached its duty of care by failing to ask his friends what had happened. The applicant submits that, if asked, Mr Shahrooei would have revealed that the applicant had attempted suicide. 2392 I do not accept this submission. It is highly speculative. It confronts the evidentiary difficulty that long after the event, it is asserted that had he been asked, Mr Shahrooei would have provided medical staff or DSO’s with vital information relevant to the applicant’s physical and psychiatric health. Yet he did not do so at the time. Apparently what stopped him was the failure of medical staff to ask his opinion. His evidence now, that he refrained from proffering critical information about his friend’s health in the absence of enquiry is not credible. 2393 The allegation that the applicant should have been assessed for psychiatric injury or vulnerability to psychiatric injury after Reza’s deportation depends upon proof that the applicant presented with signs or symptoms of psychiatric illness or vulnerability to psychiatric illness as a result of Reza’s deportation. While I accept that the applicant was upset at his friend’s deportation, the psychiatric evidence does not establish that in consequence of that event he exhibited distress at the loss of a friend that was disproportionate to the particular circumstances. The applicant’s response at the time was reactive and proportionate. Nonetheless I accept that it would have left him feeling sad, anxious and apprehensive that he might also have been at risk of deportation. 2394 The evidence does not establish that Reza’s deportation caused or materially contributed to a psychiatric condition allegedly suffered by the applicant. It has not been proved that he did suffer psychiatric injury at that time as a result of Reza’s deportation, although I accept Reza’s deportation occurred less than a fortnight 2116 Kozarov v State of Victoria [2022] HCA 12, (2022) 273 CLR 115. -- 548 of 647 -- [2025] SASC 59 Stanley J 545 after the applicant’s attempted suicide. For reasons I have explained elsewhere I am satisfied that the applicant was suffering from depressive symptoms at the time of his attempted suicide. However, in any event, any claim for damages as a result of injury suffered by the applicant caused by Reza’s deportation is non-justiciable. Reza’s deportation was dictated by the operation of the Migration Act. The Commonwealth cannot be held liable in damages in those circumstances. 2395 In addition, the applicant cannot obtain an award of damages by reason of the manner by which Reza’s deportation was effected. The evidence does not establish that any distress experienced by the applicant as a result of Reza’s deportation was caused by his removal from detention at night and without warning, which deprived the applicant of the opportunity to bid him farewell. I find the distress the applicant suffered as a result of Reza’s deportation was caused by the fact of deportation, rather than its manner. 2396 Further, any allegation that Reza’s deportation made the applicant fear, or increase his fear, that he would be deported cannot constitute a breach of duty by the Commonwealth. Whether the applicant was deported or not depended on the success or otherwise of his application for at TPV and his subsequent appeals from the decision not to grant him a TPV. The Commonwealth did not owe the applicant a duty not to deport him. 2397 The evidence does not support a finding that the failure to arrange for a mental health assessment at that time was a breach of the Commonwealth’s duty of care. 2398 The applicant also alleges he was subject to a number of other stressors and demonstrated signs or symptoms in the period from August 2003 to his release from detention in April 2005 which ought have caused the Commonwealth through ACM and G4S to have had him psychiatrically assessed and treated. 2399 The evidence does not establish that a number of these stressors, signs or symptoms actually occurred, namely, his detention in the Management Unit between 11 and 15 or 16 August 2003; his self-harming in December 2003; becoming reclusive in about May 2004; and ceasing to take his meals in the mess and largely staying in his room in about late February 2005. These allegations rely on the applicant’s evidence supported by the evidence of some of the detainee witnesses. For reasons I have explained elsewhere, I am not prepared to rely on his or their evidence for the purpose of making these findings. 2400 While the evidence establishes that the applicant became non-compliant with medication in July 2004, it appears that was addressed by 11 August 2004.2117 The evidence supports a finding that he again became non-compliant with medication later in March 2005.2118 On 4 March 2005 he was called to the medical centre to discuss non-compliance. He told medical staff he was not aware that his 2117 Exhibit A1314. 2118 Exhibits A1314, A1315. -- 549 of 647 -- [2025] SASC 59 Stanley J 546 medication had arrived but that he would in future take it as prescribed. The documentary evidence does not support a finding that in the subsequent period to his release from detention on 27 April 2005 there was any further problem with non-compliance with his medication. In any event, the evidence does not support a finding that relatively short periods of non compliance with medication warranted referral for psychiatric assessment. 2401 That leaves the allegations that the Commonwealth breached its duty of care in failing to have him psychiatrically assessed in January 2004 after his insomnia worsened. I have addressed the topic of insomnia elsewhere in these reasons. I accept that the evidence supports a finding that on 13 January 2004 the applicant presented to the medical clinic, complaining that he had been unable to sleep for three weeks.2119 On 26 February 2004 he again reported problems with sleeping. He asked to be put on Endep 50mg which was prescribed.2120 On 4 March 2004 the applicant attended the medical clinic and reported feeling better and that his sleeping pattern had improved. Given the applicant’s habit of staying up all night and sleeping during the day, his complaints about his sleeping patterns being disturbed did not require a psychiatric referral. There is no basis to find that the prescription for Endep 50mg was not appropriate treatment for his complaint at this time, which is reflected in the subsequent improvement in his sleeping pattern. He did not ask to see a psychiatrist or psychologist, which he was not required to do, but the absence of such a request tends to rebut the allegation of breach in failing to have him assessed. 2402 I do not accept that the Commonwealth breached its duty of care by failing to have the applicant psychiatrically assessed in January 2004 after his insomnia worsened. 2403 The applicant has not proved breach three. Breach Four 2404 Breach four is the failure to treat the applicant for psychiatric injury or vulnerability to psychiatric injury at Baxter with antidepressant medication and psychological counselling.2121 2405 This plea of breach is predicated on the proposition that the applicant was suffering from depression of a severity that required the administration of antidepressant medication for its effective treatment. In his 2015 opinion2122 Dr Raeside seemingly formed his opinion that the applicant was suffering from depression, which he diagnosed as an Adjustment Disorder with Depressed Mood, on the evidence of his repeated self-harm attempts, deliberate overdoses, irritability and aggression, difficulty with compliance with directions and 2119 Exhibits A1154, A637. 2120 Exhibit A1154, Exhibit A637. 2121 8ASoC [32.1], [32.3], [32.4], [32.7], [32.15], [22.1.18-19], [22.1.21]; Exhibit A583 (Report of Dr Raeside 14 December 2018 pp 5-6, 32). 2122 Exhibit A583 (Report of Dr Raeside 18 February 2015 p 5). -- 550 of 647 -- [2025] SASC 59 Stanley J 547 medication and other such behavioural issues, particularly chronic insomnia. As I have said many of those assumptions are not established by the evidence. The only true self-harm attempt is the overdose of August 2003. On the evidence this is the only overdose. While I accept that the self-laceration incident in February 2003 did involve an act of self-harm by the applicant, the injuries he inflicted were almost entirely superficial and were an orchestrated form of protest rather than an attempt to inflict serious injury. Irritability and aggression are not necessarily symptoms of depression but can be signs of anger and frustration which are understandable responses to being in long-term immigration detention. The particular reliance on chronic insomnia is unpersuasive given that, as Dr Raeside acknowledges, while a recognised feature of depressive illness, in this case it is more readily understandable as a reaction to the fact and place of detention and its indeterminate nature. Further, I do not accept the logic of Dr Raeside’s reasoning that the applicant must have been depressed because he was being treated with antidepressant medication, given his opinion in that report that the explanation for the administration of antidepressant medication could have been to help the applicant sleep. 2406 In this regard I also note that in his 2018 report Dr Raeside agreed that the antidepressant medication was probably used for pain relief rather than its antidepressant effect given that it was administered at such a low dosage that it could not have been intended to have a therapeutic effect. Further, by 2018 Dr Raeside considered that even if anti-depressants had been administered at a higher, therapeutic dosage, it would not have been effective so long as the applicant remained in immigration detention. This opinion is found in his 2018 report.2123 Given the administration of anti-depressant medication was for the purposes of pain relief or to assist him to sleep, I do not accept Dr Raeside’s evidence that those responsible for his health care in Baxter must have recognised the applicant was suffering from depression because he was treated with antidepressants.2124 2407 Further, Dr Raeside’s opinion is inconsistent with the evidence of the contemporaneous records. For most of the applicant’s time in detention the records do not support a finding that he was suffering symptoms of depression or anxiety. They do not support a finding the applicant should have been treated with a therapeutic dosage of antidepressants. Rather, Dr Schirripa and Dr Clarke conclude that throughout the applicant’s detention his condition was characterised by periodic fluctuations in mood and symptoms. The records suggest that during the vast majority of his period of detention the applicant was not displaying symptoms indicative of distress let alone psychiatric illness. Dr Schirripa2125 and Dr Clarke2126 regard the medication prescribed for the applicant at Baxter to be appropriate and reasonable. They consider that the applicant’s presentation and condition as evidenced in the records did not require the administration of 2123 Exhibit A583 (Report of Dr Raeside 14 December 2018 p 32). 2124 Exhibit A583 (Report of Dr Raeside 14 December 2018 p 32). 2125 Exhibits R1659 (Report of Dr Schirripa 8 April 2013 p 13), R1661 (Report of Dr Schirripa 24 July 2020 pp 7-8). 2126 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 [18]-[19]). -- 551 of 647 -- [2025] SASC 59 Stanley J 548 therapeutic doses of antidepressant medication. Instead, they consider that the medication administered to the applicant appeared to have been appropriately directed to the applicant’s complaints of insomnia.2127 Dr Henderson2128 also thought the medication prescribed was reasonable and appropriate for treatment of the applicant’s complaints of insomnia. As I said, Dr Raeside considered the applicant required a higher, therapeutic dose. It seems the period Dr Raeside is considering is after March 2003. He is not specific, but his opinion is predicated on the applicant suffering from depression, which from the Outline of Evidence appears to be from March 2003 and the tunnel incident. Dr Raeside’s opinion is contrary to the views of Dr Schirripa, Dr Clarke and Dr Henderson and is based on the Outline of Evidence which, as I have indicated, I do not consider to be a sound basis for making findings of fact. 2408 I do not accept that there was a breach of the Commonwealth’s duty of care by a failure to administer antidepressant medication to the applicant. 2409 Dr Raeside considered that psychological therapy would have been helpful and appropriate treatment for the applicant.2129 He thought that formal counselling by a mental health nurse or psychologist to address vulnerability, and psychological therapy to treat mental illness once it developed, was reasonable. I do not accept his opinion. He did not address the issue of whether the applicant would have agreed to counselling or psychological therapy. This issue is relevant to a consideration of both breach and causation given the evidence that the applicant rebuffed an offer of counselling if it would not secure his release from detention. His conduct at Baxter was inconsistent with his evidence that he would have availed himself of an offer of counselling by a psychologist.2130 The applicant gave evidence that he did not trust the medical staff at Baxter. Dr Clarke was of the opinion that it was likely the applicant would have approached any intervention by a skilled clinician with anger and suspicion.2131 Support for this opinion is found in the applicant’s evidence.2132 2410 Moreover, Dr Schirripa and Dr Clarke were of the opinion that there was no documented evidence that would indicate the applicant required psychological intervention. They considered he was managed appropriately by the medical staff and that psychological counselling or therapy was not required. I accept their opinions in preference to Dr Raeside. 2411 The factual assumptions made by Dr Raeside have not been proved. Counselling services were available and offered specifically to the applicant but rejected by him. There is no reason to infer that if the counselling to be provided 2127 Exhibits R1659 (Report of Dr Schirripa 8 April 2013 pp 8, 11), 1.3TP1764 (Report of Dr Clarke 4 December 2018 p 4). 2128 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement p 3). 2129 Exhibit A583 (Report of Dr Raeside 14 December 2018 pp 29, 34). 2130 T 1754, 499, 580-581. 2131 Exhibits 1.3TP1767 (Report of Dr Clarke 3 November 2020 p 8), 1.3TP1771 (Report of Dr Clarke 15 March 2022 pp 7-8), T 8488, 8527-8528. 2132 T 1626-1627. -- 552 of 647 -- [2025] SASC 59 Stanley J 549 was by a psychologist or a psychiatrist the applicant would have been any more amenable to undergoing it, given his expressed aversion to anything which might have implied that he was suffering from a mental illness and that counselling by anyone, including psychologists and psychiatrists, would not have had any influence over whether he was granted a protection visa. I address this further when analysing causation. 2412 For all these reasons the applicant has not proved breach four. Breach Five 2413 Breach Five is the failure to provide assistance upon release from detention.2133 2414 It is not entirely clear whether what is alleged by the applicant is that the Commonwealth breached a duty it was under to provide advice and assistance to him post his release from detention. Such an allegation would be novel. It would require considerations of policy as well as principle and any relevant legal authority.2134 However, the terms of the plea2135 rather suggest that the applicant claims that the Commonwealth had a duty, when he was released from Baxter, to provide him with a medical discharge summary, a reasonable supply of medication, advice as to whether he should seek any medical assessment or treatment for mental illness or opioid addiction, and provide, or at least advise him that he should seek, counselling or instruction to prepare him for life in the Australian community. The applicant alleges that instead the Commonwealth released him from detention at short notice with only $50, and abandoned him at the Port Augusta bus station without any further assistance. Putting to one side considerations of policy and principle, this is a proposition unsupported by relevant authority. In any event, if this is the applicant’s case, it cannot succeed for two reasons. 2415 First, the evidence does not support a finding that at the time of his release from Baxter the applicant was suffering from any psychiatric injury, was on medication or was addicted to opioids. As I have said, I do not accept Dr Raeside’s opinion, set out in his December 2021 report,2136 that the applicant was suffering from a psychiatric illness upon his release from detention. On the contrary, the contemporaneous documentation evidences a significant improvement in the applicant’s mental state through 2004 and 2005. Dr Clarke and Dr Schirripa are of the opinion that the contemporaneous documentation does not support a finding the applicant was suffering from any psychiatric condition at the time of his release from Baxter. This opinion was shared by Dr Raeside as late as his 2018 report where he said that the applicant was not suffering from a mental illness at the time of his release.2137 This is consistent with the history the applicant gave Dr Raeside 2133 Exhibit A583 (Report of Dr Raeside 14 December 2018 p 34), 8ASoC [32.15]. 2134 New South Wales v Lepore [2003] HCA 4 at [300], (2003) 212 CLR 511 at 611-612. 2135 8ASoC [32.15]. 2136 Exhibit A583 (Report of Dr Raeside 7 December 2021 pp 2, 7). 2137 Exhibit A583 (Report of Dr Raeside 14 December 2018 pp 34-35). -- 553 of 647 -- [2025] SASC 59 Stanley J 550 in 2010 and the history he provided to Mr McInerney and Dr Schirripa when he first saw them. Dr Raeside changed his opinion in 2021 only because he was directed to assume the correctness of the Summary of Evidence. It follows that I find the applicant did not require any urgent medical treatment which would have justified the imposition of an obligation on the Commonwealth to provide him with his medical records.2138 2416 In addition, there are pragmatic and policy reasons for not imposing such an obligation on the Commonwealth in circumstances where, as Dr Raeside points out,2139 a detainee will frequently be released suddenly, often on the same day the minister grants a visa, as a result of which there may not be sufficient time to prepare a discharge summary of the detainee’s medical records. Once a decision had been made that the applicant was entitled to a TPV, the Commonwealth had no right to detain him further. It was under a legal obligation to release him as soon as possible. 2417 Second, the evidence, which I accept, is that upon release he was provided with overnight accommodation at Port Augusta, a bus ticket to Adelaide where he was met by DIMIA officials, who gave him his visa and arranged for his attendance at Centrelink where he was given a card with $190 credit and arrangements were made for the applicant to receive fortnightly payments of $497.30. He was informed that he had been referred to the Migrant Health Service and to STTARS. In addition he was given advice with contact information for services which could provide him with assistance in obtaining housing and financial support.2140 I do not accept the applicant’s evidence to the contrary. 2418 Neither do I consider that the Commonwealth was under a duty to provide or advise the applicant to seek counselling or instruction to prepare him for life in the Australian community. Such a duty is so amorphous and imprecise that it would be unreasonable to impose it upon the Commonwealth. 2419 Accordingly, there can be no breach as alleged by reason of a failure to provide assistance on release from Baxter. 2420 The applicant has not proved breach five. Breach Six 2421 Breach six is a general allegation of a failure to treat. 2422 In relation to the general allegation that the Commonwealth breached its duty by failing to treat the applicant,2141 the evidence is that on the occasions when the applicant complained to medical staff, including Dr Ojah and Ms Rarity, of stress 2138 Which in any event were probably the property of the Commonwealth. 2139 Exhibit A583 (Report of Dr Raeside 14 December 2018 p 39). 2140 T 1023–1025. 2141 8ASoC [22.1.5], [22.1.11], [22.1.18-19], [22.1.21], [22.1.26-27], [22.1.29-30], [22.1.33-34], [32.3]- [32.9], [32.10.1]-[32.10.5], [32.11-14], [32.15], [32.33]. -- 554 of 647 -- [2025] SASC 59 Stanley J 551 and difficulty sleeping, he was treated for those complaints.2142 Further, the evidence is that the applicant routinely sought sleeping tablets often citing stress levels and frustration at being held in detention while his visa application, reviews and appeals were prosecuted.2143 I am satisfied the applicant received reasonable treatment for every medical complaint with which he presented to the medical clinic ranging from pain relief, antibiotics, sleeping tablets to surgical intervention and follow-up examinations in respect of a wide range of conditions including insomnia, testicular pain, dental pain and acid reflux. He was treated in hospital for smoke inhalation and an injury to his wrist as a result of a sporting incident. The applicant is unable to point to a single instance at either Curtin or Baxter where his medical complaints were not treated. Dr Henderson was the only expert witness who considered the general criticisms concerning availability and access to health care services in detention specifically in terms of the applicant. He gave evidence that the medical care received by the applicant at Baxter for his physical problems was good, careful, thorough and appropriate.2144 I accept his evidence in this regard. I have not relied on his evidence concerning psychiatric diagnosis and treatment on the basis his opinions on this topic are outside his area of expertise. I have preferred the evidence of Dr Clarke. 2423 In early 2003 when the applicant presented at the medical clinic complaining of feeling depressed or stressed I find he was treated appropriately.2145 He was prescribed Valerian on 7 January when he complained of not being able to sleep. A review was arranged in two weeks but in fact occurred on 16 January when he continued to complain that he was not sleeping and had problems of thinking too much and feeling depressed. He was prescribed Luvox and Diazepam. He was to be reviewed in one week. On review on 23 January he was still having difficulty sleeping. On 28 January he was reported as being verbally aggressive towards medical staff for reasons connected with night-time sedation. After the self-harm protest on 6 February he saw Dr Ojah on 7 February complaining of severe stress and loss of sleep. He was noted to have superficial lacerations on his chest and was diagnosed with severe stress and insomnia. He was prescribed Diazepam. He was reviewed by Dr Ojah on 14 February. He was observed still to suffer from insomnia and stress. Dr Ojah stopped the Luvox and Diazepam, and prescribed Endep and Valerian. He was again reviewed on 27 February still complaining of problems with sleeping and headaches. He was prescribed a one-week course of Temazepam after which it was to stop, and he was prescribed a course of Tramal. He was seen on 5 March in the Management Unit. He was reviewed the following day by Ms Rarity. His mental state was assessed as settled and he had no intention of self-harm or suicide. He asked for sleeping tablets and to see a doctor. At that time the earliest appointment available was a week away. As events transpired Dr Ojah saw him the next day. The applicant continued to ask for a sleeping pill. 2142 T 1562, 1563, 1622 and 1623. 2143 T 453, 501-503, 528-529, 532-534, 540-541, 545-546, 562, 564, 568, 580, 618, 675-676, 680-681, 1585-1586, 1600-1601 and 1624. 2144 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement pp 1, 3-4). 2145 T 1562, 1563, 1622 and 1623. -- 555 of 647 -- [2025] SASC 59 Stanley J 552 He was prescribed Restavit. Later that day he was reviewed by Ms Rarity. He denied any psychiatric or mental health issues and any idea of suicide or self-harm. He remained in the Management Unit until 11 March 2003. His mental health was reviewed daily. Thereafter, until 11 August 2003, his symptoms of sleeplessness and stress dissipated. His only complaints during this period were of difficulty sleeping on 20 April and 2 May. This suggests that the treatment provided was effective in relieving those symptoms. As a result, I am satisfied the treatment was appropriate and reasonable. 2424 These presentations and complaints also undermine the applicant’s evidence that he did not complain of symptoms of mental illness because he feared being sent to the Management Unit.2146 The evidence does not support a finding that the applicant was ever placed in the Management Unit on account of such complaints. On the contrary, the evidence is that the two occasions he was placed in the Management Unit in early 2003 were for reasons connected with the security and good order of the detention centre.2147 The applicant’s evidence was that his fear of being placed in the Management Unit was not based on any personal experience;2148 that he had not been placed there because of anything he said about feeling mentally unwell;2149 and there was no evidence that he witnessed any other detainee being sent to the Management Unit for that reason. With a single exception, I do not accept that at the time the applicant had a genuine fear that if he complained of being depressed or stressed he would be placed in the Management Unit. The exception concerns the overdose of 11 August 2003. I am satisfied the applicant held a genuine fear at that time of being placed in the Management Unit. Whether that fear was rational is another question. I accept that at that time he was not thinking clearly. 2425 The applicant submits that in breach of the Commonwealth’s duty, Ms Rarity failed to obtain a complete history from him as a result of which he did not receive proper psychiatric treatment. I do not accept this submission. It collapses under its own weight. 2426 The applicant complains that the Commonwealth failed to provide him with an education in mental health literacy, a therapeutic and safe environment, and a nurse who was not wearing an ACM uniform. The applicant submits that if these barriers to communication had been removed he would have disclosed his true mental state. Yet the applicant also said he feared that if he disclosed his true mental state he would have been kept in the Management Unit and his prospects of obtaining a visa would have been adversely affected. On his own evidence, his disinclination to confide in Ms Rarity was not only because of his mistrust of detention centre staff. Rather, it was because he thought disclosure of his mental state would have had an adverse impact upon his situation in Baxter and his application for a TPV. It was not realistic to consider that had Ms Rarity not been 2146 T 1556-1557. 2147 T 1540. 2148 T 1562. 2149 T 1563. -- 556 of 647 -- [2025] SASC 59 Stanley J 553 in uniform the applicant would have disclosed his mental state. Further, the applicant’s complaint that he was not provided with a therapeutic environment overlooks the reason he was placed in the Management Unit in January of 2003. In this context the reference to a therapeutic environment must be understood as a reference to an environment outside of Baxter given the evidence that Baxter was not, and could never be, a therapeutic environment. 2427 I do not accept that the Commonwealth breached a general duty to the applicant to assess him for any psychiatric injury.2150 The Commonwealth owed a duty to take reasonable care of the applicant’s psychiatric health while in detention. The content of that duty depended on the reasonably foreseeable risk of psychiatric injury to the applicant. The nature of the duty the Commonwealth owed was specific to the applicant. Any duty owed by the Commonwealth to treat the applicant for psychiatric injury depended on the existence of evidence that the applicant required treatment for psychiatric injury. The obligation to provide the applicant with treatment for psychiatric injury depended on evidence that he was suffering from psychiatric injury or that he was at risk of doing so. That risk had to be real rather than theoretical. The evidence does not rise as high as proof that the applicant suffered from psychiatric injury or that he was at real risk of suffering psychiatric injury which required him to undergo psychiatric treatment. Even in August 2003 the facts do not establish that the Commonwealth was under a duty to treat him given his presentation and history. 2428 The applicant has not proved breach six. The applicant’s overall case on breach 2429 The applicant’s pleading often is nothing more than a series of criticisms of the historical complaints concerning medical services without any direct connection to the circumstances of the applicant.2151 The allegations of breach2152 which are directed to the provision of health services frequently are not related to the applicant’s case. The pleas are put at a high level of generality. For instance, the applicant alleges that the Commonwealth was negligent in failing to recognise that the detainee population at Baxter and the other detention centres had mental health needs and a rate of mental illness that was far greater than in the general community.2153 The plea reflects a systems case which is untethered to any allegation of a negligent act or omission by the Commonwealth personal to the applicant. 2430 The applicant also alleges that the Commonwealth failed to provide adequate numbers of suitably qualified and experienced medical staff sufficient to cope with the rate of mental illness at Baxter, which was far higher than in the community and allow for a system of regular, timely and thorough ongoing health checks of 2150 8ASoC [26.2]. 2151 8ASoC [32.5], [32.6], [32.10.5], [32.10.7] and [32.10.10]-[32.10.13]. 2152 8ASoC [32.5], [32.6] and [32.10.10]. 2153 8ASoC [32.5]. -- 557 of 647 -- [2025] SASC 59 Stanley J 554 detainees, including the applicant.2154 Again, the plea reflects a systems case which is untethered to any allegation of a negligent act or omission by the Commonwealth personal to the applicant. In any event, the plea goes no further than the existing allegation that the Commonwealth breached its duty of care by failing to have the applicant assessed for psychiatric injury or vulnerability to psychiatric injury from time to time while detained at Baxter. 2431 In any event the evidence does not prove that any alleged failure to treat the applicant arose from a lack of staffing or was due to the lack of suitable or properly qualified medical staff. 2432 The applicant alleges that the Commonwealth failed to make proper and regular audits of the health services provided at Baxter to determine whether they were adequate; and failed to act upon the advice of mental health experts and manage self-harm and threats of self-harm by detainees as signs of vulnerability to mental illness, or as a symptom of mental illness, rather than as manipulative conduct.2155 This allegation is untethered to any allegation of a negligent act or omission by the Commonwealth specific to the applicant. 2433 The evidence does not prove that the alleged lack of an audit had any effect on the applicant or his treatment. 2434 I do not accept the allegation that the Commonwealth failed to provide a safe and therapeutic environment in which the applicant was able and willing to discuss his symptoms without being discouraged by the lack of a suitable interpreter or the presence of a guard, and fear of adverse consequences such as being detained in the Management Unit.2156 This allegation depends on the uncorroborated evidence of the applicant which I cannot rely on for making findings of fact. In any event, it is contradicted by the evidence of him frequently attending at the medical centre with complaints of various injuries and illnesses. There is no evidence apart from the applicant’s uncorroborated assertions that he was inhibited from discussing his symptoms with the medical centre staff out of fear of being sent to the Management Unit. The only exception to this finding concerns the circumstances of August 2003. I accept that he might have feared being placed in the Management Unit if he had told ACM staff that he was suicidal. Fortunately his inhibition had no adverse long-term consequences. He recovered fairly quickly. In any event, for reasons I have explained, his genuine fear of being sent to the Management Unit on this occasion was not the result of anything the Commonwealth or ACM had done. There is no evidence of the applicant being placed in the Management Unit because he was suicidal. 2435 The allegation that the Commonwealth failed to provide suitably qualified interpreters to the applicant to enable him to accurately and comprehensively describe his mental health complaints to medical staff is premised upon the 2154 8ASoC [32.6]. 2155 8ASoC 32.10.10-32.10.11. 2156 8ASoC [32.8]. -- 558 of 647 -- [2025] SASC 59 Stanley J 555 proposition that he was willing to describe such complaints but was prevented from doing so by the lack of a suitable interpreter.2157 The evidence does not support such a finding. First, it relies upon the uncorroborated evidence of the applicant. Second, it assumes that he was unable to do so when the evidence establishes that when he wished to, he was able to complain of symptoms of stress and feeling depressed in early 2003. Third, the evidence supports a finding that any reluctance on his part to complain of symptoms of mental ill health, where it occurred, was due to an unjustified fear that such complaints might prejudice his application for a visa. 2436 Further, the allegation that the Commonwealth failed to instruct and educate the applicant to recognise and mention signs and symptoms that may have indicated vulnerability to, or the development of, a mental illness fails for some of the same reasons. It assumes that it was possible to provide some education that may have indicated to him that he was vulnerable to mental illness or was developing mental illness. The evidence does not go so far. Rather the applicant’s case rises no higher than vague complaints about a failure to educate detainees generally, and the applicant specifically, in mental health literacy, without any evidence of how this would have induced the applicant to report symptoms of psychiatric ill health. In any event, the need for such education in the case of the applicant was not proved given the evidence that he did complain of such symptoms notwithstanding his alleged general reluctance to do so. 2437 The flaw in the applicant’s case in this regard is the proposition that the Commonwealth breached its duty of care to him by failing to assess him for psychiatric injury when the evidence does not establish that he suffered from a psychiatric injury in detention except in the period from August 2003 until December 2003. In order to succeed, the applicant needed to prove that he was suffering from a psychiatric injury that the Commonwealth failed to treat or treat adequately. The applicant’s failure to treat case fails because, except in August 2003, he has not proved there was an injury to treat, and in the circumstances that existed in August 2003 he has not proved a breach in failing to refer him to a psychiatrist at that time. Even if that had occurred, the evidence does not establish the outcome would have been different. The applicant recovered quickly from the overdose and his depressive symptoms. The Counterfactual 2438 The applicant’s failure to treat case based on the Commonwealth’s failure to have him undergo a comprehensive MHA at Baxter depends upon a finding that had such an assessment been arranged for him during that time he would have availed himself of it. That necessarily requires proof of a counterfactual. The counterfactual is that if he was offered the opportunity to undergo such an assessment while at Baxter he would have undergone that assessment and that the assessment would have disclosed that he was suffering a psychiatric injury for 2157 8ASoC [32.9]. -- 559 of 647 -- [2025] SASC 59 Stanley J 556 which he would have submitted to treatment. That initially requires satisfaction of his subjective intentions and conduct. Further it requires consideration of the applicant’s active and passive conduct. Proof of those critical matters confronts two obstacles. First, my finding as to his lack of credit and reliability generally, and second, the caution with which the Court must consider such necessarily self- serving evidence given by a claimant for damages for personal injury in circumstances where the injury is alleged to have been caused by a negligent omission. Even if I could be satisfied that the applicant would have undergone a comprehensive MHA, which I am not, I must be satisfied that it would have led to a diagnosis of a psychiatric injury. 2439 The applicant submits that a comprehensive MHA undertaken at Baxter would have revealed that he was in chronic pain which was likely to have had a negative impact on his mental health and that he was under a lot of pressure; suffering from insomnia and very distressed by what was happening to him. It would also have revealed that he had a background of being a victim of torture and trauma both in Iran and during his journey to Australia and his detention at Curtin. 2440 The applicant has not made out this plank of his case. It confronts a number of obstacles. First, his mistrust of medical staff at Baxter. Second, his anxiety that any discussion of psychiatric illness would have had an adverse impact on his prospects of obtaining a protection visa. Third, that in August 2003 a referral to a psychiatrist may not have resulted in a diagnosis of a recognised psychiatric injury. His presentation, history and clinical notes might not have supported such diagnosis. Fourth, and most important, his failure to complain at Baxter, during the two years and seven months he was detained there about any symptoms of psychiatric illness, other than in January and February 2003, notwithstanding his evidence that he was suffering a psychiatric illness throughout that period. As it is, the absence of complaints was not the result of the failure to undertake a comprehensive MHA, but rather is explained on the basis that he was not suffering a psychiatric illness for most of that time. 2441 Dr Clarke’s opinions as to the desirability of screening for torture and trauma and the undertaking of a comprehensive mental health assessment on induction I understand to be a view that reflects a general approach rather than evidence justifying a finding that, in the case of the applicant, the failure to conduct such a screening or assessment constituted a breach of the Commonwealth’s duty of care owed to the applicant, resulting in him suffering a recognisable psychiatric injury. As Dr Clarke identified, the applicant claims that he deliberately concealed his true mental illness from the staff at Baxter. While I find that the applicant did suffer psychiatric injury in August 2003, his claim of deliberate concealment makes it likely that even if he had been suffering symptoms of psychiatric injury at other times this would not have been apparent to those medical professionals he did see. As a consequence, any breach of duty was not causative. 2442 The applicant’s submission that with the benefit of a comprehensive MHA he would have been provided with conditions at Baxter that would not have -- 560 of 647 -- [2025] SASC 59 Stanley J 557 exacerbated his psychiatric ill-health, ignores the Commonwealth’s statutory obligation to detain the applicant in accordance with the Migration Act. The applicant’s complaint about the failure to provide him with instructions in mental health literacy also overlooks this point. In any event, any reliance upon a failure to provide education in mental health literacy confronts the fundamental obstacle that the applicant has failed to prove that he suffered from a recognisable psychiatric injury at Baxter except for the period between 8 August 2003 and December 2003. 2443 Whether I can accept the applicant’s evidence that he would have undergone a comprehensive MHA if it had been provided by an independent psychiatrist or psychologist during the course of his detention at Baxter can be decided by reference to what he actually did. A conspicuous feature of the applicant’s conduct in Baxter and after his release was his reluctance and frequent refusal to accept psychological treatment or counselling. 2444 For example, as I have discussed elsewhere, when the applicant was treated by Ms Rarity for his lacerations following the self-harm protest on 6 February 2003 he denied any suicidal ideation and insisted that he was only protesting. On another occasion, he refused to engage with a counsellor who visited him in the compound if it was not going to assist him in obtaining a visa. Further, after his drug overdose on 11 August 2003 he refused to be taken to the medical clinic. 2445 Subsequently after his release from detention he was referred variously to two psychologists Mr McInerney and Mr Abiyat. The applicant consulted Mr McInerney on referral intermittently between November 2008 and April 2014. The applicant was unable to explain why he ceased those consultations. The applicant attended three sessions with Mr Abiyat in 2018. These attendances were subsidised by Medicare. He could have had up to a further seven sessions with Mr Abiyat without incurring any cost but he failed to attend appointments that had been made for him. 2446 The applicant also saw a psychiatrist Dr Giardini after his release from detention. The applicant accepted during cross-examination that he saw him only once. The applicant was unable to explain why he failed to continue seeing him. However, the concession that he saw another psychiatrist is contrary to his evidence that after his release from Baxter the only psychiatrist he saw was Dr Raeside and that the reason he did not see another psychiatrist was that he could not afford to do so.2158 Even if the applicant had not made the concession concerning Dr Giardini, I doubt his evidence given that Mr McInerney could have referred the applicant to a psychiatrist if he thought that was necessary and the applicant could have consulted a psychiatrist for a minimal charge through Medicare. This is relevant because his evidence was an attempt to explain his failure to seek treatment for his alleged mental health symptoms. 2158 T 905-906. -- 561 of 647 -- [2025] SASC 59 Stanley J 558 2447 The fact he only saw Dr Giardini once also tends to undermine the applicant’s claim that he would have availed himself of the services of a psychologist or psychiatrist in detention at Baxter if they had been available. 2448 This evidence tends to prove that it was unlikely the applicant would have availed himself of the opportunity of undergoing a comprehensive MHA in Baxter had it been offered. In any event, the applicant has failed to discharge the onus of proving that he would have agreed to undergo a comprehensive MHA in Baxter had it been offered to him. 2449 I am unable to find conclusively whether the applicant’s failure to seek psychiatric treatment of mental ill health was due to his belief that doing so would have had an adverse impact on his prospects of securing a protection visa or whether he simply was not experiencing such symptoms. I suspect it was mostly the latter, but from time to time it was a combination of both explanations. The applicant’s form of detention case 2450 In evaluating the form of detention case, it is important to consider how it is alleged that the form and conditions of detention the applicant was subjected to breached the Commonwealth’s non-delegable duty to take reasonable care of the applicant’s health. 2451 As with the applicant’s failure to treat case, the pleading of his form of detention case frequently consists of a series of criticisms of the infrastructure and operation of Baxter and Curtin without any direct connection to the circumstances of the applicant.2159 The allegations focussed on the form of detention2160 are not pleas of breach by the Commonwealth that caused the applicant loss and damage. As the Full Federal Court held in SBEG,2161 the Commonwealth was not duty bound to devise a form of immigration detention which obviated the effect on the applicant of those features of incarceration which are characteristic of detention. As Gleeson CJ said in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs:2162 Whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty … [F]or an alien, the detention is an incident of the exclusion and deportation to which an alien is vulnerable. … If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort, but… the negligence does not alter the nature of the detention… 2452 The pleas of breach on the basis of the conditions of detention2163 are not confined to Baxter but include Curtin. They consist of complaints about the quality of the food and accommodation, climate, facilities and restrictions on movement, 2159 8ASoC [32.6], [32.10.5], [32.10.7] and [32.10.10]-[32.10.13]. 2160 8ASoC [32.8], [32.10.1], [32.10.2], [32.10.4], [32.10.5] and [32.10.6]. 2161 [2012] FCAFC 189, (2012) 208 FCR 235. 2162 [2004] HCA 36 at [21], (2004) 219 CLR 486 at 499. 2163 8ASoC [32.8], [32.10]. -- 562 of 647 -- [2025] SASC 59 Stanley J 559 security measures and the general prison-like appearance of those detention centres. 2453 As the High Court has made clear in Behrooz,2164 there is room for the existence of a duty of care on the part of those who are charged with operating and maintaining places of detention under the Migration Act. The Migration Act operates against the fabric of the common law and State law. However, the common law will not intrude into core policy making decisions of the executive government. The applicant cannot, either by the specific pleading of a duty, or by indirect means, seek to impose liability on the Commonwealth with respect to decisions made in the exercise by the Parliament or the executive of a core policy making function. Immigration detention is enacted by the Parliament and administered by the executive. The merits of government policy cannot be regulated by the normative calculus of the common law of negligence and is non- justiciable. This is a consideration which properly arises at the duty of care stage rather than the breach stage. However, these principles cannot be separated from consideration of any allegation of breach. Consideration of the authorities establishes that the Migration Act does not confer immunity from liability in negligence for breach of the duty of care the Commonwealth owes those it detains under the Act. Place of detention 2454 As I found at the start of these reasons, I do not accept the Commonwealth’s submission that the establishment of places of detention and the implementation of decisions by the executive concerning the placement of detention centres are part of the statutory scheme established by the Migration Act and arguably immune from a finding of liability in tort. 2455 However, I reject the applicant’s submissions criticising the design, location and purpose of Baxter. Those criticisms are founded on an unreasonable view of the purpose of Baxter and the nature and extent of the duty of care the Commonwealth owed the applicant. The applicant submits that the Commonwealth adopted an excessively heavy emphasis on security in the manner of its construction of Baxter with its closed-in compounds, razor wire and “multi- layered” security system. He submits that the Commonwealth’s design and construction of Baxter was likely to damage the mental health of detainees generally, and himself in particular. This risk was further exacerbated by the problems arising from the remote location of Baxter, in particular, the difficulty this created in attracting qualified and experienced staff, especially medical staff. 2456 As was made clear by the Full Federal Court in SBEG, the Commonwealth’s duty to exercise reasonable care for the safety of detainees in immigration detention is not a guarantee of their safety. It is an obligation of reasonable care to avoid harm to the detainee. As is apparent from the reasoning of the Full Federal 2164 Behrooz v Department of Immigration & Multicultural & Indigenous Affairs [2004] HCA 36 at [51], (2004) 219 CLR 486 at 507. -- 563 of 647 -- [2025] SASC 59 Stanley J 560 Court in SBEG,2165 and of Charlesworth J in Okwume2166 the risk of harm is not the only matter to be considered in deciding whether the Commonwealth discharged its obligation to take reasonable care for the health and safety, including psychiatric health, of a detainee. A consideration which must be addressed is the need to ensure effective detention in accordance with the provisions of the Migration Act.2167 Criticism of the “prison-like” atmosphere of Baxter, while accurate, overlooks the evident need the Commonwealth had for a secure facility which was effective in ensuring that those who were lawfully detained at Baxter were prevented from escaping. In the circumstances that existed in 2002 it was reasonable for the Commonwealth to construct a detention facility that was secure and effective. At that time, the approach of the Commonwealth in constructing a purpose-built detention facility at Baxter was informed by its recent experience of attempts made to assist detainees to escape from detention. The Commonwealth made decisions, such as obscuring the view of detainees of the external environment and vice versa on the basis of the need to prevent this occurring in the future. That necessitated a focus on security. I accept that in meeting that objective the Commonwealth also had to take reasonable steps to protect those detained in Baxter from a foreseeable risk of psychiatric injury. That required a balancing exercise. 2457 In my view, balancing the statutory duty to effectively detain the applicant, along with the common law duty to ensure reasonable care was taken to protect the applicant against risks to his mental health; the design, location and appearance of Baxter did not breach the Commonwealth’s duty of care. Applying the principle in SBEG and Okwume, these features of Baxter were reasonable in ensuring the security of the detention centre. I accept that the “prison-like” appearance of Baxter was the unavoidable concomitant of the need to ensure the secure detention of those who were detained there in accordance with the terms of the Migration Act. In particular, I find that the emphasis on security which Baxter was designed to achieve did not breach the duty of care the Commonwealth owed the applicant. That finding is consistent with the observations of Gleeson CJ in Behrooz cited earlier.2168 2458 In that regard I find that the location of Baxter, approximately 12 kilometres from Port Augusta, the nearest township, in a barren landscape, of itself, contributed to the security of the facility overall. The location made escape more difficult and apprehension easier, in circumstances where a detainee might have successfully breached the perimeter fence. To the extent that its location gave rise to difficulties in recruiting staff, that did not affect the content of the duty the Commonwealth owed to detainees to procure a sufficient number of qualified staff, particularly medical staff, in the operation of Baxter. In any event, the evidence 2165 SBEG v Commonwealth [2012] FCAFC 189 at [18], (2012) 208 FCR 235 at 239. 2166 [2016] FCA 1252 at [238]. 2167 SBEG v Commonwealth [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. 2168 Behrooz v Department of Immigration & Multicultural & Indigenous Affairs [2004] HCA 36 at [51], (2004) 219 CLR 486 at 507. -- 564 of 647 -- [2025] SASC 59 Stanley J 561 does not support a finding that the location of Baxter caused or contributed to the applicant suffering psychiatric illness while in detention. Alternative places of detention 2459 The applicant alleges that the Commonwealth breached its duty to the applicant by detaining him at Baxter rather than a more suitable place of detention that was less prison-like and in a location that was not remote and inhospitable, and where suitable and sufficient medical staff could be employed on extended contracts to allow continuity of care and the development of therapeutic relationships, and where there could be ready interaction between detainees and the community and access to psychiatric and psychological services outside Baxter if need be.2169 In the alternative, the applicant alleges the Commonwealth failed to ameliorate the oppressive physical environment at Baxter, by removing barriers that prevented a view of the horizon and a sense of space, by allowing the applicant and other detainees more freedom of movement between compounds, by permitting visitors, by providing recreational facilities outside the applicant’s compound and by providing regular excursions.2170 2460 The content of the duty of care owed by the Commonwealth to the applicant is to be determined prospectively rather than retrospectively. The duty to provide reasonable care for the applicant’s psychiatric health did not require that the applicant be detained at a less remote and inhospitable place of detention. 2461 As the Full Court of the Federal Court held in SBEG, the assessment of reasonable care takes place in the context of the need for compliance with the statutory requirement of immigration detention.2171 2462 The Full Court in SBEG, relying on the reasons of Gleeson CJ in Behrooz, rejected the proposition that the Commonwealth was duty bound to devise a form of immigration detention which obviated the effect on the applicant of those features of incarceration which are characteristic of detention. Detention necessarily involves the loss of personal liberty and, usually, the right to privacy as well.2172 2463 It follows that the applicant’s allegation that the Commonwealth breached its duty of care by failing to place the applicant in a more suitable place of detention cannot succeed. The Commonwealth’s duty to exercise reasonable care for the applicant’s psychiatric health had to be balanced against the statutory obligation to comply with the requirements of immigration detention.2173 To the extent that the applicant’s case is based on s 197AB of the Migration Act, that aspect of the applicant’s case cannot succeed. 2169 8ASoC 32.10.5. 2170 8ASoC 32.10.6. 2171 SBEG v Commonwealth [2012] FCAFC 189 at [69], (2012) 208 FCR 235 at 251. 2172 SBEG v Commonwealth [2012] FCAFC 189 at [54]-[55], (2012) 208 FCR 235 at 248. 2173 [2012] FCAFC 189 at [69], (2012) 208 FCR 235 at 251. -- 565 of 647 -- [2025] SASC 59 Stanley J 562 2464 Section 197AB of the Migration Act provides: 197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc. (1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1). (2) A residence determination must: (a) specify the person or persons covered by the determination by name, not by description of a class of persons; and (b) specify the conditions to be complied with by the person or persons covered by the determination. (3) A residence determination must be made by notice in writing to the person or persons covered by the determination. 2465 Section 197AB did not commence operation until 29 June 2005, after the applicant’s release from detention. In any event, the power conferred by s 197AB is a non-compellable and non-reviewable discretionary power2174 of a kind that the failure by the Commonwealth to exercise it would not breach the duty of care it owed the applicant. 2466 Between December 2000 and April 2005, while the applicant was an unlawful non-citizen, the law required he be detained in accordance with the definition of “immigration detention” in s 5(1) of the Act. 2467 Section 5(1)(b) of the Act provided that immigration detention meant being held by, or on behalf of, an officer: (i) in a detention centre established under the Act; or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or … (v) in another place approved by the Minister in writing. 2468 As Besanko J held in SBEG (No. 2),2175 the power in s 5(1)(b)(v) could not be exercised in a way which had an effect similar to s 197AB. 2176 Otherwise there would be no need to enact s 197AB. The “other place” referred to in s 5(1)(b)(v) 2174 SBEG (No 2) v Commonwealth [2012] FCA 569 at [113], (2012) 292 ALR 29 at 57-58. 2175 [2012] FCA 569 at [111]-[113], (2012) 292 ALR 29 at 57. 2176 [2012] FCA 569 at [111]-[113], (2012) 292 ALR 29 at 57. -- 566 of 647 -- [2025] SASC 59 Stanley J 563 had to be a place where a person could be said to be held by, or on behalf of, an officer. Nonetheless, a person in a place approved under s 5(1)(b)(v) must still be placed in a prison-like environment to the extent that he or she needs to be guarded and subject to such security measures as the Commonwealth determined were necessary. In any event, the failure by the Commonwealth to exercise the power conferred by s 5(1)(b)(v) and the considerations relevant to its exercise, are such that the Commonwealth would not be in breach of any duty of care by failing to exercise the power. Many discretionary considerations might be relevant to the exercise of the power including cost and security considerations. As Besanko J pointed out in SBEG (No. 2), it is not possible to formulate the practical content of a duty to exercise the power in s 5(1)(b)(v). As a result the Commonwealth could not be in breach of its duty by failing to exercise the power. The Commonwealth cannot be in breach for not placing the applicant in a less prison-like environment. On appeal the Full Court did not interfere with Besanko J’s reasoning.2177 The Commonwealth’s conduct after the fires 2469 The applicant alleged that he was placed in the Management Unit and Blue 3 in breach of the Commonwealth’s duty of care as he had not been involved in lighting the fires. He submits the purpose of doing so was punitive and his treatment was unjust.2178 He contends it aggravated his underlying psychiatric illness. 2470 The Commonwealth submits that it is not open to the Court to try the question of whether the applicant’s detention in the Management Unit, Red 3 and Blue 3 was an appropriate response to the fires. Further, the Commonwealth submits that, in any event, the Court is not in a position to do so. 2471 The Commonwealth submits that there is no evidence that placements and transfers into and between compounds occurred other than for appropriate purposes. It submits there was no expert evidence, nor could there be, directed to breach of duty in respect of decisions concerning these placements. The applicant’s allegations require the Court to determine the issue of reasonableness of the decisions to place the applicant in the Management Unit and to subsequently transfer him to Red 3 and Blue 3. It submits that this requires the Court to answer a question beyond its reach. It contends there are no settled or appropriate criteria by which a court is to determine whether the decisions were reasonable. The Court does not have and could never have the information, intelligence assessments and knowledge pertinent to judge decisions taken at the time. 2472 I do not accept this submission. In my view it is open to the Court to assess on the available evidence whether it was reasonable of the Commonwealth to place the applicant in the Management Unit and to subsequently transfer him to Red 3 and Blue 3 in the circumstances that existed at that time. In relation to the applicant’s first placement in the Management Unit on 1 January 2003 the relevant 2177 SBEG v Commonwealth of Australia [2012] FCAFC 189, (2012) 208 FCR 235. 2178 8ASoC [32.10.11], [32.10.12], [32.11], [32.12], [33] and [44]. -- 567 of 647 -- [2025] SASC 59 Stanley J 564 inquiry concerns whether on the evidence available at that time there was a reasonable basis to suspect that the applicant had some involvement in lighting one or both of the fires and, if so, whether it was reasonable to place him in the Management Unit. Whether it was reasonable to do so turned on considerations of security and the safety of detainees and staff and the good order of the centre. 2473 I find there were a number of grounds upon which ACM and DIMIA suspected that the applicant had been one of a number of detainees involved in lighting the fires. Intelligence indicated that the applicant had been seen with a cigarette lighter on 102179 and 30 December 20022180, although he was not the only detainee seen with a lighter around this time. In addition, it appeared that one of the fires had started in the room immediately adjacent to the applicant’s room. This room was occupied by one of the applicant’s friends Ghorbanali, who was also suspected of involvement in lighting the fires.2181 This aroused suspicion concerning the applicant’s involvement. Further intelligence suggested that there may have been a plan to light more fires or vandalise compounds and on 31 December 2002 detainees undertook further acts of vandalism.2182 It was noted that the applicant kept a packed bag in his room in Red 1 to facilitate a rapid escape if there were further fires, suggesting he had some knowledge of plans to light them.2183 2474 I am satisfied this proves a conscious awareness on his part that what he was doing was contrary to the rules. 2475 It was planned to individually remove those suspected of having lit the fires from Red 2, strip-search them and place them in the Management Unit to ensure the security and good order of the detention centre. The applicant was identified as one of those suspects. 2476 In his evidence the applicant denied any involvement in lighting the fires. He asserted he felt deeply aggrieved at what he perceived as the injustice of being falsely accused and unfairly punished by being strip-searched and placed in the Management Unit. On the evidence I cannot find whether the applicant was involved in lighting the fires. However, I am satisfied on the basis of the evidence as it existed at that time, there was sufficient evidence available to DIMIA and ACM, reasonably to suspect that the applicant might have been involved in lighting the fires. In addition I find that the available evidence at that time justified urgent action to minimise the risk of further acts of arson being committed. I accept that the evidence of the applicant’s involvement is far from overwhelming, but the difficulty confronting the authorities at Baxter was that they were dealing with a highly volatile, rapidly changing and dangerous situation where further acts of arson posed a risk of injury or death as well as further physical destruction of 2179 T 1540.11-13. 2180 T 1540.14-17. 2181 T 513.34-514. 2182 T 515.34-37. 2183 T 515.15-20, 1533.1-8. -- 568 of 647 -- [2025] SASC 59 Stanley J 565 the centre, which made it imperative that urgent action be taken to avoid those risks being realised. The nature of the emergency that existed did not permit any significant delay or excessive caution in isolating those who were suspected of posing that risk. The decisions that had to be made at that time necessarily focused on considerations of security and the safety and good order of Baxter. In evaluating the reasonableness of the conduct at that time it is important to recognise that DIMIA and its officers had the expertise and experience relevant to dealing with the emergency that confronted them. Given the exigencies of the situation the Court should be careful not to judge harshly decisions that had to be taken swiftly by those with responsibility for the safety of a great many lives and the security of a detention facility. In forming judgments and exercising discretions in the fluid circumstances that existed at that time it was reasonable of DIMIA and ACM personnel responsible for the security of Baxter and the safety of its detainees and staff to act out of an abundance of caution. In my view for them to act on the basis of suspicion was not unreasonable. 2477 “Suspicion” is a state of conjecture or surmise where proof is lacking.2184 It is something less than belief. It does not necessarily require that the suspicion is well founded or that grounds for the suspicion are factually correct.2185 2478 In the criminal context the exercise of police powers is often conditioned on the existence of a reasonable suspicion. Reasonable suspicion falls short of belief but cannot be mere speculation, curiosity or idle wondering about the existence of a fact.2186 There must be information which rationally arouses a suspicion and that would also do so in the mind of a person thinking reasonably about the issue. However, this is not the criminal context and the Court is not concerned with whether the exercise of police powers is legally justified on the basis of a reasonable suspicion. Rather the Court is concerned with the question of whether the authorities at Baxter acted reasonably on the basis of a suspicion. The relevant test is more akin to Wednesbury,2187 unreasonableness. In my view so long as the suspicion held by officers of DIMIA or ACM was not irrational, capricious or such that no reasonable person could suspect it, and that some logical basis existed for suspecting the applicant’s involvement in the lighting of the fires, their consequential conduct based on suspicion was not unreasonable whether the applicant denied involvement in lighting the fires or not. I am satisfied there was sufficient reason for the authorities at Baxter to suspect he might have been involved. The Court must resist the impulse for form judgments in hindsight. 2479 I reject the evidence of Professor Jureidini that no action should have been taken against any detainee unless criminal charges were laid or action was justified pursuant to the Mental Health Act. His opinion proceeds from a narrow 2184 Shaaban Bin Hussein v Chong Fook Kam [1969] 3 All ER 1626, (1970) AC 942. 2185 Mannone v Chaplin [1991] 54 A Crim R 163 at [13]. 2186 R v Nguyen [2013] SASCFC 91 at [21] – [22], (2013) 117 SASR 432 at [437]; Bae v The Queen [2020] SASCFC 7 at [65], (2020) 135 SASR 522 at 536-537. 2187 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; Minister for Immigration v Li [2013] HCA 18, (2013) 249 CLR 332. -- 569 of 647 -- [2025] SASC 59 Stanley J 566 perspective whose sole concern is the mental health of the applicant. It pays no regard to the broader considerations that necessarily had to inform the decisions of DIMIA and ACM in responding to the crisis confronting them. While the applicant’s health was not an irrelevant consideration, it was but one of many factors that had to be weighed in securing the safety of staff and detainees, including the applicant’s physical wellbeing, and the security and good order of the centre. 2480 Once they suspected the applicant of having some involvement in lighting the fires I consider it was reasonable to place him in the Management Unit for a short period sufficient for them to bring the situation under control, investigate the cause of the fires, and satisfy themselves that the risk of further fires had been eliminated. Whether, with the benefit of hindsight, that suspicion was correct, does not make ACM’s conduct unreasonable in circumstances where it had to confront an emergency, where extensive damage had been suffered and there was a serious threat to the security and good order of Baxter. The authorities at Baxter had intelligence that further acts of arson were planned. In these circumstances, the Court is not in a position to find, more than 20 years later, that it was unreasonable to take steps to reduce the risk of further acts of arson. Accordingly, I am not able to find that in doing so the Commonwealth breached its duty of care. 2481 Further, I find there is no expert evidence capable of proving that housing the applicant in Blue 3 breached the Commonwealth’s duty of care. The evidence of the restrictions imposed on them in these compounds does not satisfy me that the applicant suffered any significant hardship or deprivation. The criticisms of Professor Jureidini were pitched at a high level of generality. There is no evidence that the applicant suffered any damage as a result of being housed in these compounds. 2482 The actions of DIMIA and ACM did not breach the duty of care the Commonwealth owed the applicant. Subjecting the applicant to stressors during the course of his detention which caused or contributed to him developing mental illness or vulnerability to mental illness 2483 The applicant alleges that during the period he was detained at Baxter he was subjected to various stressors as a result of which he exhibited certain signs and symptoms of psychiatric injury. Many of those alleged stressors do not sound in damages. While I am repeating myself it is necessary to identify precisely these stressors. They are: the mere fact of his detention; the length of his detention; the indefinite nature of his detention; the news of the dismissal of his appeal to the Full Federal Court; his constant fear of being deported to Iran; witnessing or knowing of deportation of other detainees; the rejection of his application for special leave by the High Court on 8 August 2003; his attempted suicide as a result of the rejection of his special leave application; the deportation of the applicant’s friend -- 570 of 647 -- [2025] SASC 59 Stanley J 567 Reza Gholam and observing other detainees self-harming and threatening to kill themselves. 2484 These were all matters that were a consequence of the operation of the Migration Act. For reasons of coherence it is not possible to find that, because of these matters, the Commonwealth was negligent in performing its statutory obligations under the Migration Act.2188 Neither can the Commonwealth be held liable in negligence for the consequences of curial decisions the outcomes of which may have affected the applicant psychologically or psychiatrically. Learning of the rejection of the applicant’s special leave application which caused him to suffer a depressive reaction cannot sound in damages. The Commonwealth cannot be negligent for the fact of rejection of his application by the High Court. The applicant did not suffer a depressive reaction by reason of anything the Commonwealth did or failed to do by way of informing him of the rejection of his application for special leave. His depressive reaction was to the fact of the dismissal of his application, not as a result of the manner in which he was informed of the decision. Other aspects of the applicant’s form of detention case 2485 The applicant also pleads what can be categorised as nine other specific breaches by the Commonwealth on his form of detention case.2189 2486 Those pleas are: • The Commonwealth was in breach of its duty of care in failing to provide suitably qualified interpreters permitting him to accurately and comprehensively describe his mental health complaints to medical staff. • The Commonwealth failed to provide suitable counselling to prepare detainees, including the applicant, for, and to increase their resilience to, adverse events, such as rejection of visa applications, reviews and appeals, and the deportation of friends; • The Commonwealth permitted ACM and G4S to employ DSOs trained and experienced in working in a prison system or of a temperament who might be inclined to treat detainees like prisoners and handle them violently or treat them in a demeaning, disrespectful, hurtful or undignified manner or so as to cause hurt, distress and anger and create an atmosphere of fear and mistrust on the part of detainees and incite them to violence; • The Commonwealth failed to ensure that staff responsible for the day- to-day detention and control of the applicant at Baxter were aware of 2188 Sullivan v Moody [2001] HCA 59, (2001) 207 CLR 562. 2189 8ASoC [32.9], [32.10.3], [32.10.7], [32.10.8], [32.10.9], [32.10.13], [32.13], [32.14] and [33]. -- 571 of 647 -- [2025] SASC 59 Stanley J 568 his history of arrest and escape in Iran, his medical history from Curtin and Baxter, and took such information into account when dealing with the applicant and arranged an immediate assessment upon his arrival in Baxter. • The Commonwealth failed to provide adequate education and recreational opportunities and facilities so as to maintain the applicant’s interest and allow him to benefit as much as possible from his period in detention and minimise boredom, frustration and damage to his mental health. • The Commonwealth failed to restrict the use of handcuffs to necessary occasions when no other option was available, such that they were used when the applicant was moved within Baxter and outside Baxter for treatment and not used because of inadequate staffing levels, which would have allowed movement of the applicant without the use of handcuffs; • The Commonwealth failed to ensure that ACM and G4S did not use unnecessary force and restraint on the applicant, including the use of batons, handcuffs and strip-searching; • The Commonwealth was in breach of its duty of care when it placed the applicant in solitary confinement in the Management Unit holding him in a confined cell when it knew or ought to have known that the applicant would be injured by the conditions of his detention in the Unit and where he in fact suffered injury as a result; and • The Commonwealth was in breach of its duty of care by failing to minimise the tension, frustration and anxiety at Baxter among detainees and staff and the resulting riots, violence, property damage and self- harming by the detainees within Baxter to which the applicant was exposed. Interpreters2190 2487 The applicant’s case that the Commonwealth breached its duty of care to him by failing to provide suitably qualified interpreters to enable him to accurately and comprehensively describe his mental health complaints to medical staff fails. I have previously addressed the applicant’s complaints concerning interpreters. There was no evidence of an absence of suitably qualified interpreters at Baxter or, if there was, that the applicant suffered any injury or harm as a result. 2190 8ASoC 32.9. -- 572 of 647 -- [2025] SASC 59 Stanley J 569 Counsellors2191 2488 The alleged breach of duty by the Commonwealth in failing to provide the applicant with a counsellor at the time he was informed of the refusal of his application for special leave to appeal to the High Court cannot be accepted. The flaw in the plea is that it is a patent attempt to circumvent the problem that the applicant’s response to learning of the rejection of his last avenue of appeal was not caused by the absence of a counsellor but by the rejection of his application for special leave to appeal with all its consequences. The Commonwealth cannot be liable for the rejection of his special leave application. 2489 I do not accept that the Commonwealth was under a duty to provide a counsellor to every detainee when he or she was about to receive news that might distress them. Accordingly, the allegation that the Commonwealth breached its duty of care to the applicant by failing to provide the services of a counsellor at times when he might be receiving bad news in relation to his claim for asylum cannot be upheld. The allegation is predicated upon the very existence of such a duty. The imposition of such a duty is novel. Its vice is that it merges the imposition of a duty of care and its breach.2192 This involves determining breach retrospectively rather than prospectively and equates reasonable care with strict liability. As discussed earlier, such an analytical approach was rejected by the High Court in Lepore. A non-delegable duty of care is one of strict liability only to the extent that it is not discharged by proof that the party owing the duty of care engaged competent and reputable contractors to discharge its duty. 2193 It does not make the Commonwealth the guarantor of the applicant’s psychiatric good health.2194 2490 For these reasons the proposition that the Commonwealth was under a duty to counsel visa applicants on account of the chance of rejection is not practical or reasonable. The applicant has not explained the basis upon which the Commonwealth might be liable to a detainee for some adverse reaction to the rejection of their claim for asylum. 2491 In any event, even if such a duty existed and was breached, the evidence does not establish that the breach was causative of any recognisable psychiatric injury suffered by the applicant. That difficulty is not overcome by attempting to characterise any depressive symptoms reactive to the refusal of his application for special leave as being caused or contributed to by the absence of a counsellor. Considering the position of the applicant individually, as I discussed earlier, the evidence does not establish that he had been particularly distressed in the past when 2191 8ASoC [32.10.3]. 2192 Vairy v Wyong Shire Counsel [2005] HCA 62, (2005) 223 CLR 422. 2193 New South Wales v Lepore [2003] HCA 4, (2003) 212 CLR 511, Gleeson CJ at [22], [26] and [34], pp 529, 530 and 533, Gaudron J at [101] and [103] p 551 and 552, Gummow and Hayne JJ at [257], [265]-[266] at pp 599, 601-602, Kirby J at [291] p 608 and Callinan J at [340] p 624. 2194 SBEG v The Commonwealth [2012] FCAFC 189 at [19], (2012) 208 FCR 235 at 239. -- 573 of 647 -- [2025] SASC 59 Stanley J 570 he received adverse news in relation to his claim for asylum such that it was foreseeable that an adverse decision might precipitate an act of self-harm. 2492 Further, the evidence does not permit a finding that the availability of the services of a counsellor at the time he was advised of the outcome of his application for special leave to appeal to the High Court, would have prevented his depressive reaction and subsequent suicide attempt. His previous attitude towards counselling where he said he could see no point in talking to the counsellor because she could not help him get a visa, get out of detention or get out of the situation he was in,2195 and the objective circumstances that he had now exhausted his appeal rights, strongly suggests otherwise. 2493 Moreover, as I have found it was unlikely the applicant would have availed himself of the services of a counsellor. More importantly, even if counselling had been made available to the applicant and he had availed himself of the opportunity to speak to a counsellor, the fact remained that a counsellor could not change the reality that he had exhausted all rights of appeal and now faced the real prospect of being deported. I consider this precipitated his depression and suicide attempt. For the applicants claim in negligence to succeed he must prove that a counterfactual would have avoided him suffering injury and as a result, loss and damage. In this case the counterfactual is that he received counselling. The evidence does not establish that counselling would have avoided him suffering the psychiatric injury. The temperament of DSOs2196 2494 The plea that the Commonwealth breached its duty of care by permitting ACM and G4S to employ DSOs trained and experienced in working in the prison system, or of a temperament who might be inclined to treat detainees like prisoners and handle them violently or treat them in a demeaning, disrespectful, hurtful or undignified manner, fails due to the lack of any evidence of the Commonwealth permitting ACM and G4S to do so. Further, there is no evidence of particular DSOs having a temperament that might incline them to treat detainees like prisoners and handle them violently, or treat them in a demeaning, disrespectful, hurtful or undignified manner. More particularly, the evidence does not satisfy me that DSOs handled the applicant violently or treated him in a demeaning, disrespectful, hurtful or undignified manner so as to cause him psychiatric injury. I do not accept the applicant’s account of being assaulted by Navid during the transfer to Blue 3 in January 2003 for reasons already explained. 2495 The applicant has not proved this aspect of breach. 2195 T 649.26-33, 1757-1758. 2196 8ASoC [32.10.7]. -- 574 of 647 -- [2025] SASC 59 Stanley J 571 Failure to ensure staff were aware of the applicant’s personal history and took it into account when dealing with him2197 2496 The allegation that the Commonwealth breached its duty of care to the applicant by failing to ensure that DSOs who dealt with him at Baxter were aware of his history of arrest and escape from Iran, his medical history from Curtin and Baxter and took such information into account so as to require an immediate assessment upon his arrival at Baxter fails for a number of reasons. First, there was no duty on the Commonwealth of this kind. The Commonwealth’s duty was limited to a duty to take reasonable care of the applicant.2198 Second, it is difficult to make sense of the plea because it alleges a breach as a result of a failure to arrange an immediate assessment of the applicant upon his arrival in Baxter based on his medical history at Baxter. Third, it pleads a duty the content of which would require DSOs at Baxter to know the medical history and pre-detention history of each of the detainees at Baxter so as to inform their dealings with each of them including, in particular, the applicant. I accept Dr Clarke’s opinion that briefing all staff on every detainee’s personal circumstances relating to their history of arrest, escape from their homeland and previous medical history was neither feasible, practical or useful. For reasons already established, there is no evidence the applicant would have been forthcoming in providing such a history. Finally, the applicant’s case at trial did not prove how the Commonwealth or ACM or G4S failed to take the applicant’s history into account in dealing with him. The plea is so imprecise as to lack content. The evidence fails to demonstrate what the Commonwealth did or did not do that constituted a breach of the duty it owed the applicant. The imposition of such a duty would not be reasonable. The provision of educational and recreational facilities2199 2497 The applicant alleges the Commonwealth breached its duty of care by failing to provide adequate education and recreational opportunities and facilities so as to maintain his interest and allow him to benefit as much as possible from his period in detention and minimise boredom, frustration and damage to his mental health.2200 2498 This allegation fails for a number of reasons. First, the duty alleged to have been breached, is so imprecise and indeterminate that its proper content cannot be identified. The duty pleaded by the applicant is not to provide education and recreational opportunities and facilities, which the Commonwealth did. But rather to provide such opportunities and facilities which were adequate. That duty is necessarily subjective and focussed on the applicant as an individual detainee so as to minimise his boredom, his frustration and damage to his mental health. The yard stick of reasonableness in the provision of such facilities must be applied to the needs of the detainee population generally, not to the needs of any specific 2197 8ASoC [32.10.8]. 2198 SBEG v Commonwealth [2012] FCAFC 189 at [19], (2012) 208 FCR at 239. 2199 8ASoC [32.10.9]. 2200 8ASoC 32.10.9. -- 575 of 647 -- [2025] SASC 59 Stanley J 572 detainee such as the applicant. The imposition of such a duty would not be reasonable. 2499 More importantly, the evidence does not establish that adequate education and recreational opportunities were not made available to the applicant. For example it is evident the applicant was able to play soccer and 8-ball while at Baxter. In any event, even if there was such a failure, the evidence does not establish that it caused or materially contributed to his alleged psychiatric injury. 2500 The applicant has not proved this aspect of breach. The failure to ensure unnecessary force and handcuffing was not used2201 2501 The allegation that the Commonwealth breached its duty of care to the applicant by failing to ensure that ACM and G4S did not use unnecessary force on the applicant, including the use of batons, handcuffs and strip-searching fails for a number of reasons. First, there was no duty on the Commonwealth to ensure that something did or did not happen.2202 The Commonwealth owed a non-delegable duty of care to the applicant to take reasonable care to avoid harm to his psychiatric health. The Commonwealth’s duty was not a guarantee of the applicant’s psychiatric health. Second, the evidence does not establish that the applicant was subject to unnecessary force or restraint in Baxter. I do not accept that the evidence proves that the applicant was handcuffed because of inadequate staffing or that the use of handcuffs on the applicant was not reasonable by reference to security considerations relevant to the applicant in Baxter. The applicant had attempted to escape. He was evaluated as a high security risk. Third, the evidence does not establish that the occasions when the applicant was actually subject to a strip- search was not done in good faith. Rather, the evidence is that the searches in relation to the applicant were reasonable having regard to legitimate security considerations in Baxter. 2502 I acknowledge that Dr Schirripa accepted that the applicant’s refusal to attend specialist appointments for his wrist injury in July and August 2003 was consistent with the applicant being mentally affected by the experience of handcuffing when he was to attend medical appointments in Port Augusta. However, it does not follow that handcuffing the applicant for the purposes of transporting him to medical appointments in Port Augusta constituted a breach of the Commonwealth’s duty of care. I am satisfied the applicant was handcuffed as a legitimate security measure. 2503 The use of strip-searches was authorised by s 252A and s 252B of the Migration Act. Section 252A and s 252B provide: 252A Power to conduct a strip search 2201 8ASoC [32.13], [32.14]. 2202 SBEG v Commonwealth [2012] FCAFC 189 at [19], (2012) 208 FCR at 239. -- 576 of 647 -- [2025] SASC 59 Stanley J 573 (1) A strip search of a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used: (a) to inflict bodily injury; or (b) to help the detainee, or any other detainee, to escape from immigration detention. Note: Section 252B sets out rules for conducting a strip search under this section. (2) A strip search of a detainee means a search of the detainee, of his or her clothing or of a thing in his or her possession. It may include: (a) requiring the detainee to remove some or all of his or her clothing; and (b) an examination of that clothing and of the detainee’s body (but not of the detainee’s body cavities). (3) A strip search of a detainee may be conducted by an authorised officer only if: (a) an officer suspects on reasonable grounds that there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection (1); and (b) the officer referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and (c) the strip search is authorised as follows: (i) if the detainee is at least 18—the Secretary, or an SES Band 3 employee in the Department (who is not the officer referred to in paragraphs (a) and (b) nor the authorised officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions; (ii) if the detainee is at least 10 but under 18—a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions. (3A) An officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of: (a) a search conducted under section 252 (whether by that officer or another officer); or (b) a screening procedure conducted under section 252AA (whether by that officer or another officer); or (c) any other information that is available to the officer. (4) An authorisation of a strip search given for the purposes of paragraph (3)(c): -- 577 of 647 -- [2025] SASC 59 Stanley J 574 (a) may be given by telephone, fax or other electronic means; and (b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given. (5) A failure to comply with paragraph (4)(b) does not affect the validity of a strip search conducted on the basis of that authorisation. (6) The power to authorise a strip search under paragraph (3)(c) cannot be delegated to any other person. (6A) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court. (6B) The magistrate need not accept the power conferred. (6C) A magistrate exercising a power under this section has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member. (7) To avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether a search of the detainee is conducted under section 252 or a screening procedure is conducted in relation to the detainee under section 252AA. (8) In this section: business day means a day that is not a Saturday, Sunday or public holiday in the place where the authorisation is given. SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3. SES employee has the meaning given by the Public Service Act 1999. 252B Rules for conducting a strip search (1) A strip search of a detainee under section 252A: (a) must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search; and (b) must be conducted in a private area; and (c) must be conducted by an authorised officer of the same sex as the detainee; and (d) subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person who is of the opposite sex to the detainee; and (e) subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search; and -- 578 of 647 -- [2025] SASC 59 Stanley J 575 (f) must not be conducted on a detainee who is under 10; and (g) if the detainee is at least 10 but under 18, or is incapable of managing his or her affairs— must be conducted in the presence of: (i) the detainee’s parent or guardian if that person is in immigration detention with the detainee and is readily available at the same place; or (ii) if that is not acceptable to the detainee or subparagraph (i) does not apply—another person (other than an authorised officer) who is capable of practicable in the circumstances, is acceptable to the detainee; and (h) subject to subsection (4), if the detainee is at least 18, and is not incapable of managing his or her affairs—must be conducted in the presence of another person (if any) nominated by the detainee, if that other person is readily available at the same place as the detainee, and willing to attend the strip search within a reasonable time; and (i) must not involve a search of the detainee’s body cavities; and (j) must not involve the removal of more items of clothing, or more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary to determine whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection 252A(1); and (k) must not be conducted with greater force than is reasonably necessary to conduct the strip search. (2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or person present because of subparagraph (1)(g)(ii), if the detainee has no objection to that person being present. (3) Paragraphs (1)(d) and (e) do not apply to a person nominated by the detainee under paragraph (1)(h) to attend the strip search. (4) Neither: (a) a detainee’s refusal or failure to nominate a person under paragraph (1)(h) within a reasonable time; nor (b) a detainee’s inability to nominate a person under that paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time; prevents a strip search being conducted. (5) A strip search of a detainee may be conducted with the assistance of another person if the authorised officer conducting the strip search considers that to be necessary for the purposes of conducting it. That person must not be of the opposite sex to the detainee unless: (a) the person is a medical practitioner; and (b) a medical practitioner of the same sex as the detainee is not available within a reasonable time. -- 579 of 647 -- [2025] SASC 59 Stanley J 576 (6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, assists in conducting a strip search if the person acts in good faith and does not contravene this section. (7) A detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is: (a) damaged or destroyed; or (b) retained under section 252C. 2504 It can be seen that the Parliament enacted an elaborate regime for the use and conduct of strip-searches. 2505 The evidence does not establish that on those occasions when the applicant was subject to a strip-search at Baxter the search was not authorised by the Migration Act. The evidence in relation to strip-searches of the applicant was, at times, understandably vague as to when and how frequently they occurred. I find his evidence was exaggerated and inaccurate. The applicant pleaded that he was strip-searched on 27 December 2002, in the period from 1 January to 10 February 2003, from 5 March 2003 to about 29 March 2003 and in August 2003. He also pleaded he was strip-searched on at least a monthly basis.2203 The evidence does not support most of these allegations. There was evidence of requests for strip- searches pursuant to s 252A of the Migration Act on 31 December 2002 and 21 January 2003.2204 I am not satisfied that there were undocumented strip-searches conducted. There is no proper basis to infer that strip-searches were conducted outside the statutory regime imposed by s 252A and s 252B. The evidence is not such that I am prepared to infer that DSOs would have undertaken some strip- searches outside the statutory regime when it is clear that strip-searches were conducted within the statutory regime. I also do not accept the applicant’s evidence that strip-searches were undertaken solely for the purpose of humiliating him. On the contrary, strip-searches were conducted on occasions when it is apparent legitimate security concerns existed justifying strip-searches, for example, searching for cigarette lighters, transferring a detainee from one compound to another, taking a detainee into town for medical or dental treatment, where a detainee was to hear the outcome of an appeal from the refusal of a visa, or placing a detainee in the Management Unit. 2506 The applicant also complains that the Commonwealth breached its duty of care by having strip-searches performed by female DSOs when it knew or ought to have known of the cultural abhorrence Iranian men felt when being physically examined by a woman other than their wife.2205 While I accept that there may have been a cultural sensitivity felt by the applicant in this regard I otherwise do not accept the allegation. The evidence does not establish that he was strip-searched 2203 8ASoC [22.1.7], [22.1.38], [35.10] and [39]. 2204 I note authorisation was granted on 21 January 2003 but the strip-search was conducted on 22 January 2003. Exhibits A874, A416 and A815. 2205 8ASoC at [30.9.2] -- 580 of 647 -- [2025] SASC 59 Stanley J 577 more than twice. Neither does it establish that on either occasion the search was conducted by a woman. Further, the evidence does not establish that even if the applicant was strip-searched by a woman that this caused or materially contributed to his alleged psychiatric injury. 2507 The applicant’s case concerning room searches proceeds from the same premise that those responsible for maintaining the security and safety of Baxter undertook room searches for some illegitimate or improper purpose. The evidence does not establish this proposition. On the contrary, on the applicant’s case, searches were conducted to find contraband such as cigarette lighters. There was a legitimate reason detainees were not given notice of an impending search. I accept that the efficacy of such searches would have been undermined if notice was given that such searches were to be undertaken. However, I am prepared to find that the manner in which some of these searches were conducted offended some detainees, including the applicant. Nonetheless, the evidence does not establish that searches were undertaken for the illegitimate purpose of offending the applicant or that the applicant suffered any psychiatric harm as a result. The Management Unit2206 2508 The seventh specific breach the applicant alleges against the Commonwealth in his form of detention case concerns its use of the Management Unit. This aspect of the applicant’s case also encompasses the failure to treat case. 2509 The applicant’s case based on the evidence of Dr Raeside involves a plea that he was put in the Management Unit when he was suffering from depression and had self-harmed which contributed to or aggravated his psychiatric injury. 2510 As I have found the applicant was placed in the Management Unit in Baxter on two occasions only. First, from 1 January to 3 January 2003 in the wake of the fires after his discharge from the Port Augusta Hospital. Second, from 5 March to 13 March 2003 after the discovery of the tunnel in Reza’s room, while DIMIA and ACM awaited the AFP’s attendance at Baxter to interview the applicant. Neither placements were for psychiatric reasons. 2511 The applicant’s case is that he was placed in the Management Unit at Baxter to punish him. He characterises the Management Unit as a form of solitary confinement. He alleges that the DSOs who were supervising his incarceration in the Management Unit manipulated the temperature and lighting in his room to prevent him from sleeping. This assumed particular importance because the applicant relied upon his fear of being placed in the Management Unit to explain his failure to complain about his mental health problems at Baxter. 2512 The applicant further alleges that the Commonwealth misused the Management Unit and restrictive detention in the Red Compound and Blue 3 by detaining him for extended periods, either as punishment for crimes for which he 2206 8ASoC at [33]. -- 581 of 647 -- [2025] SASC 59 Stanley J 578 had not been convicted or conduct thought by ACM and G4S to warrant punishment, and that he was kept in the Management Unit or restrictive detention for longer than was needed to secure the safety of Baxter, or to secure his safety.2207 2513 I find the Management Unit was designed to permit observation of a detainee on a round-the-clock basis. Heating and cooling of the rooms was controlled from an external air conditioning unit. Accordingly, if a room was too hot or too cold a detainee would have to ask a DSO to adjust the temperature. I am satisfied on the available evidence that when he was in the Management Unit there were occasions where his room was uncomfortably cold. For reasons I will explain I am prepared to accept that when he requested a blanket his request was denied. However, I do not accept that this was done with the deliberate intention of increasing his discomfort. 2514 The applicant painted a picture of the Management Unit as a bleak and forbidding place in which the conduct of the supervising DSOs was akin to torture. I do not accept his evidence in this regard. No doubt at times the experience of being in the Management Unit was unpleasant, oppressive and something to be avoided. However, I am not prepared to accept his evidence that the DSOs controlling the air conditioning in the Management Unit deliberately kept the room at an uncomfortably cold temperature. 2515 Considered in its totality, the evidence of other detainees was not corroborative. Mr Namavar gave some evidence about the air conditioning in the Management Unit. He said he was in the Management Unit in early April 2003. In essence, he complained that the temperature in the Management Unit would fluctuate but detainees had no control over the air conditioning. Mr Shahrooei gave evidence that when he was in the Management Unit the temperature and the lighting were controlled externally by DSOs. He said they would manipulate the controls to aggravate detainees and cause them discomfort. He said that once detainees were placed in the Management Unit they would only be given a blanket in exchange for good behaviour. Mr Sovi gave evidence that when he was in the Management Unit he had a single blanket. The room was air conditioned and often cold. Mr Paparzadeh said that when he was in the Management Unit he was unable to control the heating and cooling. He recalls being very cold and asking for a blanket which was not provided. 2516 While the evidence satisfies me that the detainee witnesses who gave evidence of being in the Management Unit were cold at various times, I am not prepared to find that this was a result of deliberate conduct on the part of an unspecified number of DSOs to make the experience of being confined to the Management Unit so physically cold and uncomfortable as to deprive those detainees of sleep. Rather I accept the evidence of Ms Rarity which explains the circumstances in which some detainees felt cold. She said that during extremely hot weather the air conditioner would sometimes struggle to maintain a 2207 8ASoC [32.10.12] and [32.11]. -- 582 of 647 -- [2025] SASC 59 Stanley J 579 comfortable level of coolness. Sometimes the air conditioning would be turned down to the minimum temperature because of the conditions.2208 This is supported by the documentary evidence of the applicant’s experience in the Management Unit from 5 March to 13 March 2003. There is evidence that on 11 and 12 March the temperature of the air conditioning was adjusted at the applicant’s request. This evidence undermines the applicant’s claim that the DSOs deliberately kept the temperature in the detainees’ rooms uncomfortably cold. 2517 In any event, an explanation for refusing detainees a blanket, if this did occur, is explained by Dr Raeside, who assumed it was necessary to prevent it being used to self-harm.2209 2518 I do not accept the submission that the applicant was placed in the Management Unit when he was suffering from depression and self-harm which contributed to, or aggravated, his mental injury. I am not able to find that the applicant was suffering from depression on either occasion he was placed in the Management Unit. The applicant was not placed in the Management Unit at any time because he had self-harmed. 2519 The evidence also does not satisfy me the applicant was placed in the Management Unit on either occasion to punish him. On each occasion he was placed there for security reasons. On the evidence there is no reason to find that it was unreasonable to do so. 2520 On the first occasion he was confined to the Management Unit in circumstances where he was suspected of being involved in the lighting of the fires. In the context where there was intelligence suggesting the possibility of further fires being ignited, I am satisfied that there was a reasonable and legitimate security purpose in isolating the applicant while the suspicions pointing to the risk of further fires were investigated. 2521 On the second occasion he was confined to the Management Unit in circumstances where he was involved in an attempted escape from immigration detention. I am satisfied that there was a legitimate security purpose in placing the applicant in the Management Unit following the attempted escape. The AFP were apparently investigating the escape attempt. Keeping the applicant in isolation was a substantial obstacle to any further escape attempt and reduced the risk of the applicant colluding with Reza where a police investigation was ostensibly underway. The evidence satisfies me that at this time it was open to the Commonwealth and ACM to consider that the hole dug by the applicant and Reza was a genuine escape attempt. That is so whether individuals had varying opinions concerning how realistic were the prospects of the escape succeeding. As I have said I do not accept the applicant’s submission that the attempt somehow was evidence the applicant had an underlying psychiatric injury. That submission 2208 T 7741.25-32. 2209 Exhibit A583 (Report of Dr Raeside 7 December 2021 p 4). -- 583 of 647 -- [2025] SASC 59 Stanley J 580 necessarily is premised on the proposition that any belief in the prospects of success was completely delusional. I do not accept that premise. At least some of those responsible for the security at Baxter considered that the tunnel represented not only a genuine belief on the part of the applicant, albeit one born of desperation, but a not unrealistic one, even if the prospects of success might have been considered unlikely. 2522 Suspecting that the applicant had attempted to escape from immigration detention, as he admitted, which if proved was an offence under s 197A of the Migration Act, it was initially reasonable to confine him for security reasons until he could be interviewed by the AFP. 2523 However, whether the applicant should have been kept in the Management Unit as long as he was, is another question. As I have found, I am satisfied that he was kept in the Management Unit for longer than was reasonable following the failed attempt to tunnel out of Baxter. 2524 There was a breach of the Commonwealth’s duty of care in confining the applicant to the Management Unit for nine days while awaiting the attendance of the AFP at Baxter to interview him in relation to the attempted tunnelling escape. This length of time was unreasonable. He was left in the Management Unit for nine days not because there was some legitimate security objective that could only be achieved by his confinement in the Management Unit for that period of time, but because of the failure of the AFP to attend earlier to interview him about the escape attempt. This was the only breach proved by the applicant. 2525 Notwithstanding the terms of the applicant’s evidence of his time in the Management Unit, he failed to mention it to Dr Raeside until October 2018 after Dr Raeside had been provided with the Outline of Evidence. He had not spoken of it during the interviews with Dr Raeside on 2 November 2010 and 16 August 2017. He explained this failure on the basis he was on too much medication, he was not feeling well and Dr Raeside had not asked about the Management Unit. I find his evidence in this regard to be unconvincing. His failure to complain about his treatment in the Management Unit to Dr Raeside until 2018 leaves me unpersuaded that at the time he found his experience in the Management Unit anything more than transiently unpleasant, oppressive and something to be avoided. I accept the Commonwealth’s submission that the inference to be drawn from the histories given by the applicant to Dr Raeside up to 2018 is that the Management Unit was not something he particularly remembered or was focussed on. 2526 The principal difficulty with the applicant’s case in relation to the Management Unit is that it relies upon his account of what occurred during his placement there. I find myself unable to rely upon his evidence for the purpose of making findings of fact concerning what occurred during the two occasions he was confined to the Management Unit in January 2003 and March 2003. -- 584 of 647 -- [2025] SASC 59 Stanley J 581 2527 In fact in the Outline of Evidence, the applicant set out assumptions in relation to the Management Unit he required Dr Raeside to make for his expert opinion, which were untrue. For example, he alleged in his Outline of Evidence that after the overdose on 11 August 20032210 he was placed in the Management Unit for five days. He alleged that during that time he was strip-searched on two or three occasions. He alleged that on 14 August 2003 he falsely told the MHT reviewing him that he was alright, when this was not the case, because he wanted to return to his room in his compound to be with his friends and watch television. In addition, he alleged in the Outline that soon after, he began to withdraw and avoid meetings with the MHT out of fear of being returned to the Management Unit. None of this was true. 2528 I find that the purpose of the Management Unit was to house detainees assessed as requiring a high level of observation for their own protection, or because they had threatened or committed violence towards others, or had been threatened by others, or had asked to be admitted to the Management Unit for their own safety. As Mr Wallis described it, it was an option of last resort.2211 2529 I further find that the purpose of the Management Unit was not punitive but protective. This is supported by the findings made by Mr Palmer in the Palmer Report.2212 Mr Burns confirmed that the purpose of the Management Unit was not punitive and he did not place the applicant in the Management Unit to punish him.2213 Mr Monaghan gave evidence that if a detainee was identified as possibly being “at risk” of self-harm or harm to others the HRAT would be involved. The HRAT included a psychologist, a mental health nurse, a doctor as well as ACM and DIMIA staff. The HRAT would assess whether that detainee needed to be placed in the Management Unit. The rationale for placing detainees with mental health issues in the Management Unit was to permit close observation. The frequency of observation depended upon the seriousness of their condition. A flexible approach was taken for managing detainees with mental health issues. If a detainee was showing signs of being depressed or complained of symptoms of depression, a member of HRAT would talk to him or her. If the detainee provided an assurance that if they felt worse or were considering self-harm, suicide or a hunger strike they would approach a member of HRAT, they could remain in their compound under observation. If a detainee was placed in the Management Unit HRAT would assess when it was safe to release them from the Management Unit.2214 I accept this evidence. 2210 I note paragraph 139 of his Outline of Evidence (Exhibit R14) erroneously refers to 8 August 2003 instead of 11 August 2003 for this event. 2211 Exhibit R1712 [52] - [57]. 2212 Exhibit A156 at pp 59 – 60. 2213 T 8218.26. 2214 Exhibit 1.3TP1742 [51] to [60]. -- 585 of 647 -- [2025] SASC 59 Stanley J 582 2530 There was a broad agreement among the expert witnesses that the use of a secure facility such as the Management Unit was an appropriate form of treatment in particular circumstances. I accept Dr Clarke’s evidence on this topic.2215 2531 I am not satisfied the applicant has made out his allegations of breach related to the use of the Management Unit. The failure to minimise tension at Baxter2216 2532 The applicant alleges that the Commonwealth breached its duty of care to him by failing to minimise the tension, frustration and anxiety at Baxter among detainees and staff and the resulting riots, violence, property damage and self- harming by the detainees within Baxter to which the applicant was exposed. This allegation fails because the Commonwealth cannot be held liable in negligence for the fact that some detainees rioted or were violent and damaged property or self- harmed while detained at Baxter. The evidence does not establish, that to the extent riots occurred, and there was recourse to violence, property damage and self-harm by other detainees, that this was attributable to negligent acts or omissions of the Commonwealth. Moreover, the allegation is non-specific. It fails to plead how it was that the Commonwealth failed to act to minimise the tension, frustration and anxiety at Baxter, which would have prevented the applicant being exposed to these events. Neither does it plead how it was foreseeable that the applicant would be exposed to such occurrences or the acts the Commonwealth failed to take to prevent the applicant from being exposed to such events. 2533 I do not accept that the failure of Commonwealth to prevent the applicant from observing riots was negligent. The Commonwealth cannot be liable in tort for taking reasonable steps to restore the security and good order of the detention centre by deploying such force as was necessary to quell a violent riot. He observed riots because they occurred where he was detained. Even if it is the case that this caused or materially contributed to any psychiatric injury suffered by the applicant, it is non-compensable. CAUSATION Legal principles 2534 Causation is an element of the tort of negligence on which the plaintiff bears the burden of proof. To succeed on liability the applicant must prove on the balance of probabilities that a negligent act or omission by the Commonwealth caused or materially contributed to the applicant suffering a pleaded psychiatric injury.2217 Proof of causation where there is a myriad of alleged stressors depends on the reliability of the applicant’s evidence. 2215 Exhibit 1.3TP1764 (Report of Dr Clarke 4 December 2018 p.7), T 8437. 2216 8ASoC 32.10.13. 2217 Amaca Pty Ltd v Ellis [2010] HCA 5, (2010) 240 CLR 111. -- 586 of 647 -- [2025] SASC 59 Stanley J 583 2535 Causation is largely a question of fact to be approached by applying common sense to the facts of the particular case. Value judgments and policy have a part to play.2218 The “but for” analysis is not a definitive or exclusive test of legal causation.2219 However, as the High Court explained in the joint reasons of Gummow, Hayne and Crennan JJ in Amaca Pty Ltd v Booth (Booth), many issues of causation lie outside the realm of common knowledge and experience. They fall to be determined by reference to expert evidence, for example, medical evidence. In such cases, investigation of difficult and complicated facts cannot be separated from appreciation of any special branch of knowledge which affects them.2220 At common law, establishing merely that it is possible that the defendant’s conduct was a cause of or materially contributed to the disease or injury is insufficient. The High Court in Tabet v Gett2221 confirmed the need for a plaintiff to prove causation on the balance of probabilities. It must be proved on the balance of probabilities that the defendant’s conduct was a cause of or materially contributed to the plaintiff’s injury or illness.2222 There is also a distinction between a mere prospective risk that the defendant’s conduct might cause injury to the plaintiff and the possibility or probability that the defendant’s conduct assessed in retrospect did in fact cause or materially contribute to the injury suffered by the plaintiff.2223 2536 In March v E & MH Stramare Pty Ltd Mason CJ, with whom Toohey and Gaudron JJ agreed, said that:2224 … [I]t is for the plaintiff to establish that his or her injuries are “caused or materially contributed to” by the defendant’s wrongful conduct. Generally speaking, that causal connection is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent. [citations omitted]. 2537 However, the common law recognises that concurrent and successive tortious acts may each be a cause of a plaintiff’s loss or damage. This is reflected in the proposition that it is enough for liability that a wrongdoer's conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.2225 However, if the damage of which the plaintiff complains would have happened if there had been no breach of duty by the 2218 March v E & MH Stramare Pty Ltd [1991] HCA 12, (1991) 171 CLR 506; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 at [43], (2013) 247 CLR 613 at 634. 2219 Chappel v Hart [1998] HCA 55 at [116], (1998) 195 CLR 232 at 282. 2220 Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 at [67], (2011) 246 CLR 36 at 61. 2221 [2010] HCA 12, (2010) 240 CLR 537. 2222 Amaca Pty Ltd v Ellis [2010] HCA 5 at [51], (2010) 240 CLR 111 at 132-133; Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 at [69]-[71], (2011) 246 CLR 36 at 61-63. 2223 Amaca Pty Ltd v Booth [2011] HCA 53 at [41], (2011) 246 CLR 36 at 53. 2224 March v E & MH Stramare Pty Ltd [1991] HCA 12, (1991) 171 CLR 506 at 514. 2225 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 at [45], (2013) 247 CLR 613 at 635. -- 587 of 647 -- [2025] SASC 59 Stanley J 584 defendant it will often be possible to conclude that the breach was not a cause of that damage.2226 In Chappel v Hart Kirby J, in analysing the principles relevant to causation, observed that in certain circumstances, the appearance of a causal connection between the breach and the damage, arising from the application of the “but for” test and the proximity of the damage, is displaced by a demonstration that, inter alia, the damage was inevitable and would probably have occurred even without the breach, or, that the negligent event was ineffective as a cause of the damage because the event which occurred would probably have occurred in the same way even if the breach had not happened.2227 2538 In Wilsher v Essex Area Health Authority2228 the House of Lords held that where a plaintiff’s injury was attributable to a number of possible causes, one of which was the defendant’s negligence, the combination of the defendant’s breach of duty and the plaintiff’s injury did not give rise to a presumption that the defendant had caused the injury. Instead, the burden remained on the plaintiff to prove the causative link between the defendant’s negligence and his injury, although that link could legitimately be inferred from the evidence.2229 The House of Lords rejected any suggestion to the contrary in the speech of Lord Wilberforce in McGhee v National Coal Board.2230 2539 In Tabet v Gett2231 the High Court held that for the purposes of the law of negligence the plaintiff must have suffered damage as a result of the defendant’s negligence. This invokes a comparison between the actual state of affairs as they existed after the negligent act or omission and the hypothetical state of affairs that would have existed had the negligent act or omission not occurred. I accept the Commonwealth’s submission that proof of the damage suffered by the applicant from the alleged failure to provide mental healthcare is essential for the purposes of establishing any entitlement to damages for breach of the Commonwealth’s duty of care. 2540 The High Court subsequently explained this proposition in Robinson Helicopter Company Inc v McDermott2232 where in a joint judgment the Court reiterated that it had set its face against recovery of loss of a chance in the law of negligence relating to personal injury. Although proof of causation may sometime entail the robust pragmatic drawing of inferences, especially where there are a number of possible causes and there is difficulty in ascertaining which of these was the cause of the damage suffered, proof of causation still requires proof on the balance of probabilities that the alleged breach of duty was the cause of the damage suffered. 2226 Chappel v Hart [1998] HCA 55 at [114], (1998) 195 CLR 232 at 282. 2227 [1998] HCA 55 at [93], (1998) 195 CLR 232 at 271. 2228 [1988] AC 1074. 2229 Wilsher v Essex Area Health Authority [1988] AC 1074; Queen Elizabeth Hospital v Curtis [2008] SASC 344 at [119], (2008) SASR 534 at 572. 2230 [1972] 3 All ER 1008 at 1012. 2231 [2010] HCA 12 at [66], (2010) 240 CLR 537 at 564. 2232 [2016] HCA 22 at [86], (2016) 331 ALR 550 at 569. -- 588 of 647 -- [2025] SASC 59 Stanley J 585 2541 The applicant submits that, relying on a passage from the speech of Lord Reid in Bonnington Castings Ltd v Wardlaw,2233 a material contribution is any contribution that is not de minimis. That proposition has not been authoritatively adopted by the High Court. In March v Stramare the proposition was adopted by McHugh J2234 but he was in the minority on the legal test for causation in negligence. In Amaca Pty Ltd v Ellis (Ellis) the Court declined to consider the question: what constitutes a material contribution, as it did not arise on the facts.2235 The applicant submits that the Court in Ellis distinguished Bonnington Castings but in doing so made clear that it was good law. I do not accept this submission. Having referred to the statement of Lord Reid the Court said:2236 The plaintiff made a deal of reference to the decision of the House of Lords in Bonnington Castings Ltd v Wardlaw and, in particular, the statement of Lord Reid that: “What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material.” Particular attention was given to what was meant by saying that any contribution that was not de minimis must be material. It is important to recognise the context in which this statement was made. The issue in Bonnington Castings was whether exposure to silica dust from poorly maintained equipment caused or contributed to the pursuer's pneumoconiosis, when other (and much larger) quantities of silica dust were produced by other activities at the pursuer's workplace. Those other activities were conducted without breach of duty. As Lord Reid rightly pointed out, the question in the case was not what was the most probable source of the pursuer's disease: dust from one source or the other. The question was whether dust from the poorly maintained equipment was a cause of his disease when the medical evidence was that pneumoconiosis is caused by a gradual accumulation of silica particles inhaled over a period of years. This description of the issue of causation in Bonnington Castings shows how different it is from the issue of causation in this case. The issue in Bonnington Castings was whether one source of an injurious substance contributed to a gradual accumulation of dust that resulted in disease. The issue here is whether one substance that can cause injury did cause injury. Or, to adopt and adapt what Starke J said in Adelaide Stevedoring Co Ltd v Forst, was Mr Cotton's cancer “intimately connected with and contributed to” by his exposure to asbestos? Questions of material contribution arise only if a connection between Mr Cotton's inhaling asbestos and his developing cancer was established. Knowing that inhaling asbestos can cause cancer does not entail that in this case it probably did. For the reasons given earlier, that inference was not to be drawn in this case. Questions of what is a material contribution do not arise. [citations omitted]. 2542 In my view, a fair reading of the High Court’s reasons in Ellis does not evince approval of the test adopted by Lord Reid, but rather leaves consideration of 2233 [1956] AC 613 at 621. 2234 March v Stramare [1991] HCA 12, (1991) 171 CLR 506 at 532. 2235 [2010] HCA 5 at [66]-[68], (2010) 240 CLR 111 at 136. 2236 Amaca Pty Ltd v Ellis [2010] HCA 5 at [66]-[68], (2010) 240 CLR 111 at 136. -- 589 of 647 -- [2025] SASC 59 Stanley J 586 whether the High Court should adopt that test to another case which directly raises the question of causation and the meaning of material contribution. I am reinforced in this view by the High Court in Booth2237 declining to adopt Lord Reid’s formulation of the meaning of “material” contribution. 2543 Accordingly, at issue is whether any pleaded breach of duty caused or materially contributed to the pleaded recognisable psychiatric injury. The question is whether any of these breaches were a cause of the injury although not necessarily the cause of the injury. The Commonwealth will be liable if the injury was the result of multiple conjunctive or successive factors, one or more of which amounted to a pleaded breach,2238 unless, as Kirby J discussed in Chappel v Hart, that factor or factors was or were not causally effective because it was inevitable the injury would have occurred.2239 2544 The applicant relies upon the reasoning of Gaudron J in Bennett v Minister for Community Welfare (Bennett).2240 In Bennett Gaudron J in obiter remarks said that if an injury to the plaintiff occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.2241 Mason CJ, Deane and Toohey JJ expressly left the question open.2242 In the High Court Gaudron J’s dicta in Bennett that deals with the shifting of the evidential onus to a defendant2243 has been adopted by Gaudron, McHugh and Gummow JJ in Chappel v Hart,2244 Gaudron J in Naxakis v Western General Hospital2245 and Gummow J in Rosenberg v Percival (Rosenberg).2246 In Roads and Traffic Authority v Royal2247 Kiefel J, as she then was, held that it remains a requirement of the law that a plaintiff prove that a defendant’s conduct materially caused the injury. Her Honour referred to a passage from the reasons of Dixon J, as he then was, in Betts v Whittingslowe2248 that breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of duty. Her Honour held that no decision of the High Court holds that there is some lessening of that requirement of proof. 2237 Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 at [70]-[71], (2011) 246 CLR 36 at 62-63. 2238 Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 at [70], (2011) 246 CLR 36 at 62. 2239 [1998] HCA 55 at [93], (1998) 195 CLR 232 at 271. 2240 Bennett v Minister of Community Welfare [1992] HCA 27, (1992) 176 CLR 408. 2241 Bennett v Minister for Community Welfare [1992] HCA 27, (1992) 176 CLR 408 at 420-421. 2242 Bennett v Minister for Community Welfare [1992] HCA 27, (1992) 176 CLR 408 at 416. 2243 Minister for the Environment v Sharma [2002] FCAFC 35 at [313], (2022) 291 FCR 311 at 406. 2244 [1998] HCA 55 at [8]-[10], [68]-[73] and [93], (1998) 195 CLR 232 at 238-239, 257-259 and 273-274. 2245 [1999] HCA 22 at [31], (1999) 197 CLR 269 at 278-279. 2246 [2001] HCA 18 at [86], (2001) 205 CLR 434 at 461. 2247 [2008] HCA 19 at [143], (2008) 82 ALJR 870 at 897-898. 2248 (1945) 71 CLR 637 at 649. -- 590 of 647 -- [2025] SASC 59 Stanley J 587 Her Honour went on to note, as the majority in Bennett2249 observed, this is a question which has not been considered by the High Court.2250 2545 In Sharma, Allsop CJ said:2251 Thus, in Australia, …: [i]n an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant’s default. … [C]ausing an increase in the risk of harm occurring does not amount of itself to causing or materially contributing to the harm. [citations omitted]. 2546 In Seltsam Pty Ltd v McGuiness Spigelman CJ, with whom Davies AJA agreed, explained:2252 There is a tension between the suggestion that any increased risk is sufficient to constitute a “material contribution”, and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well-established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart and in the cases that suggest the former, the actual risk had materialised. The “possibility” or “risk” that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X. [emphasis in original, citations omitted]. 2547 More recently in Willmot v Queensland,2253 the plurality, Gageler CJ, Gordon, Jagot and Beech-Jones JJ, again in obiter stated that while a plaintiff has the ultimate legal onus, once he or she establishes a prima facie causal connection between one of the alleged wrongful acts and his or her loss, it is for the defendant to show at trial that his or her loss or injury was wholly caused by some other independent circumstance with some reasonable measure of precision.2254 However, such a principle still has not been authoritatively adopted by the High Court. 2548 Gaudron J’s statement in Bennett2255 can be seen either as an example of inferential reasoning of the kind adopted by Dixon J in Betts or as a statement about shifting the evidentiary burden. In Chappel v Hart2256 McHugh J2257 and 2249 Bennett v Minister for Community Welfare [1992] HCA 27, (1992) 176 CLR 408 at 416. 2250 Roads and Traffic Authority v Royal [2008] HCA 19 at [143], (2008) 82 ALJR 870 at 897-898. 2251 Minister for Environment v Sharma [2022] FCAFC 35 at [319]-[320], (2022) 291 FCR 311 at 408. 2252 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [119], (2000) 49 NSWLR 262 at 280. 2253 [2024] HCA 42. 2254 Willmot v Queensland [2024] HCA 42 at [47], (2024) 419 ALR 623 at 637. 2255 (1992) 176 CLR 408. 2256 (1998) 195 CLR 232. 2257 (1998) 195 CLR 232 at 247. -- 591 of 647 -- [2025] SASC 59 Stanley J 588 Kirby J2258 rejected the proposition that Gaudron J’s reasons in Bennett shifted the legal burden of proof to the defendant. While in Amaca Pty Ltd v Hannell2259 Steytler P and McLure JA said that once a plaintiff demonstrates that a breach of duty has occurred followed by injury within the area of foreseeable risk, a prima facie causal connection is established and the defendant has an evidential burden to adduce evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed. If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff on the whole of the evidence to satisfy the tribunal of fact that the injury was caused by the defendant’s negligence. So much is made clear by Allsop CJ in Sharma cited earlier in these reasons. 2549 In any event, if the proposition adopted by Gaudron J in Bennett is correct I am satisfied the Commonwealth has discharged its evidential onus. As the Western Australian Supreme Court explained in Lowes v Amaca Pty Ltd2260 an evidential burden only requires the Commonwealth to adduce evidence sufficient to displace a prima facie case. Once that has occurred it remains for the applicant on the whole of the evidence to satisfy the Court that any injury suffered was caused by the Commonwealth’s negligence. 2550 In this case, the fact of his detention; the length of his detention; its indeterminate nature; the risk of deportation; witnessing or knowing of the deportation of other detainees, and the rejection of his application for special leave were at the very least, other potential causes of the applicant’s claim of psychiatric injury. 2551 In this case proof of liability on the issue of causation requires proof on the balance of probabilities that a pleaded breach of duty caused or materially contributed to a pleaded recognisable psychiatric injury. 2552 In considering causation in this case, it is appropriate to distinguish between the two limbs of the applicant’s case, namely, the failure to treat case and the form of detention case. 2553 The essence of the applicant’s failure to treat case is that he alleges a negligent omission. That is a failure to treat, or adequately treat, the applicant for psychiatric injury in Baxter. Such a case requires a counterfactual. 2554 This point is demonstrated in Rosenberg2261 which was a medical negligence claim. The negligent omission was a failure to warn the plaintiff of the risks inherent in oral surgery. The trial judge had rejected the plaintiff’s evidence that had she been warned, she would not have undergone the procedure. That finding was overturned on appeal. On an appeal from that judgment to the High Court 2258 (1998) 195 CLR 232 at 268-276. 2259 [2007] WASCA 158 at [395], (2007) 34 WAR 109 at 194-195. 2260 [2011] WASC 287 at [643]. 2261 Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434. -- 592 of 647 -- [2025] SASC 59 Stanley J 589 Gummow J, in allowing the appeal and dismissing the plaintiff’s claim, had occasion to consider the dicta of Gaudron J in Bennett. His Honour said that causation requires satisfaction of two criteria. The first is that the failure to warn resulted in injury. The second is that, had the warning been given, the injury would have been averted because the plaintiff would not have undergone the procedure.2262 2555 In this case that requires the applicant to prove that, had the Commonwealth not breached its duty by failing to arrange for him to undergo a comprehensive MHA at various specified points during his detention at Baxter, he would have undergone that assessment and in consequence he would not have suffered a recognisable psychiatric injury. 2556 In that sense, the applicant’s claim has some parallel with a failure to warn case. The applicant must satisfy the Court that if the Commonwealth had arranged for him to undergo a MHA he would have done so. Rosenberg emphasises the evidentiary difficulty of proving that proposition in the subjective case where the plaintiff seeks proof of what she or he would have done by evidence which is necessarily self-serving and therefore must be carefully scrutinised by the finder of fact. 2557 In Cotton On Group Services Pty Ltd v Golowka2263 the Victorian Court of Appeal approved the analysis of Maxwell P in Wodonga Regional Health Service v Hopgood2264 where he said that when a plaintiff alleges a negligent omission the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts, premised upon the defendant having exercised reasonable care and, specifically, upon there having been no such omission. The plaintiff’s counterfactual hypothesis must identify first, what the defendant would have done had reasonable care been exercised; and second, how the taking of that action would have averted the loss or damage which the plaintiff in fact suffered. 2558 In Findlay v State of Victoria2265 Maxwell P referred to Fleming’s Law of Torts, where the learned author said that the hypothetical inquiry of what would have happened is specific to whether negligence rather than general conduct was the cause. The authors explained the difficulty with the hypothetical is greater in cases of omission than commission because the former involves speculation.2266 2559 In a case of negligent omission, the issue of whether the damage has been caused by the defendant’s negligence invites a comparison between a plaintiff’s present position and what would have been the position in the absence of the 2262 Rosenberg v Percival [2001] HCA 18 at [86], (2001) 205 CLR 434 at 461. 2263 [2022] VSCA 279 at [76]. 2264 (2010) 37 VR 284. 2265 [2009] VSCA 294 at [2]. 2266 John G Fleming, The Law of Torts (LBC Information Services, 9th ed, 1998) 220-221. -- 593 of 647 -- [2025] SASC 59 Stanley J 590 defendant’s negligence. Such an inquiry directs attention to all the circumstances pertaining to the plaintiff’s condition at the time of breach. The question of whether damage has been suffered is bound up in the question of causation.2267 2560 The relevant principles require a plaintiff in the position of the applicant to establish the degree to which his psychiatric injury would have been averted if the breach of duty by the Commonwealth had not occurred. Because the applicant’s claim is that the Commonwealth omitted to adequately treat his psychiatric injury suffered at Baxter, the applicant is required to prove the extent of the exacerbation or aggravation of his psychiatric injury, or the nature of the change in his psychiatric injury, resulting from the alleged breaches of the duty of care at Baxter. That is the counterfactual. That necessarily invokes the observations made by Keane JA in Hegarty:2268 I pause here to observe that this elegant formulation of the plaintiff's case glosses over a number of issues. It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works. The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff's problems. In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer's duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that "the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer." Further, "litigious hindsight" must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of 2267 Tabet v Gett [2010] HCA 12 at [140], (2010) 240 CLR 537 at 586. 2268 [2007] QCA 366 at [41], [43] and [47]. -- 594 of 647 -- [2025] SASC 59 Stanley J 591 occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard. [citations omitted]. 2561 Further, when the issue of causation turns on what the applicant would have done, he bears the onus of proof on the balance of probabilities, notwithstanding that the question is hypothetical.2269 Such proof can only be adduced by the applicant because the test is subjective and the focus is on the actual plaintiff.2270 The inquiry must be directed to the particular applicant, not in the abstract, and not as a hypothetical. In Harriton v Stephens Hayne J said:2271 To say of a plaintiff that he or she has suffered “damage” or “harm” likewise invites comparison between what would have been and what is. That inquiry cannot be made in the abstract. First, it directs attention to the position of the particular plaintiff, not some hypothetical class of persons of which the plaintiff might be said to be a member. But secondly, and critically, it requires identification of the condition of, or state of affairs concerning, that plaintiff which would have existed had the tort not been committed. This second step is required not just for the purposes of assessing the extent of relief (by way of damages) that is to be allowed, it is a step that is required at the logically prior point of identifying whether the plaintiff has suffered damage. Deciding whether the plaintiff has suffered harm, and what that harm is, requires comparison. 2562 In considering the form of detention case brought by the applicant it is important to recognise that he bears the onus of proving on the balance of probabilities that the pleaded conditions of detention breached the Commonwealth’s duty it owed him and caused or materially contributed to his pleaded psychiatric injury. In determining cause in a claim for damages for pure psychiatric harm a court is totally reliant on expert evidence, but only where the court is satisfied the expert opinion is founded on proven facts. 2563 In considering proof of causation in the form of detention case, notions of “stressors” and “vulnerability”, “risks and possibilities” are not synonymous with cause. So much is made clear by Booth.2272 2564 Evidence of stressors that the applicant was exposed to during his time in detention do not constitute proof that those stressors caused or materially contributed to his alleged psychiatric injury. Causation requires proof on the balance of probabilities that an alleged cause is an actual cause of the applicant’s loss and damage and not that it may be a cause of damage. The requisite causal nexus is not established by proof that the applicant’s injury is likely to have been caused by one or more of a number of factors, one of which was attributable to a negligent act or omission of the Commonwealth. In those circumstances the applicant will not have proved to the requisite degree that the stressor attributable 2269 Sellars v Adelaide Petroleum NL [1994] HCA 4, (1994) 179 CLR 332 at 353. 2270 Rosenberg v Percival [2001] HCA 18 at [24]-[25], (2001) 205 CLR 434 at 443-444; Chappel v Hart [1998] HCA 55, (1998) 195 CLR 232. 2271 Harriton v Stephens [2006] HCA 15 at [168], (2006) 226 CLR 52 at 104. 2272 Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 at [42], [43], [78], [121] and [136], (2011) 246 CLR 36 at 53, 54, 64, 65, 81 and 87-88. -- 595 of 647 -- [2025] SASC 59 Stanley J 592 to the Commonwealth’s negligent acts or omissions caused the alleged psychiatric injury or was one of two or more stressors which operated cumulatively to cause it. Recognisable psychiatric injury – August 2003 2565 In considering the applicant’s case in negligence it is apparent that his claim fails for reasons anterior to proof of causation. First, while I am satisfied that the applicant did, at one point, suffer a psychiatric injury while in Baxter, that was not the result of a breach of the Commonwealth’s duty of care. Second, while I am satisfied that the Commonwealth did breach the duty of care it owed the applicant during his detention in Baxter by keeping him in the Management Unit longer than necessary after the attempt to tunnel out, he did not suffer any recognisable psychiatric injury as a result. 2566 For reasons I have explained, I find that the applicant has failed to prove that he suffered either of the pleaded psychiatric injuries or any other recognisable psychiatric injury except in relation to his reaction to the rejection of his application for special leave to appeal on 8 August 2003. As I have said, I am satisfied that the applicant did suffer some form of depressive illness, probably an Adjustment Disorder reactive to that decision with its consequence that the applicant was thereby exposed to the risk of deportation. As I have found, the applicant suffered symptoms of that injury for a relatively brief, finite period. However, the applicant’s claim in relation to this injury nonetheless fails for three reasons. 2567 First, because of his failure to prove that this psychiatric injury was caused or materially contributed to by any breach of the non-delegable duty of care that the Commonwealth owed him. There was no breach of the Commonwealth’s duty of care because, as I have explained earlier in these reasons, the relevant cause of the applicant’s psychiatric injury was not an act or omission of the Commonwealth. The relevant cause was the High Court’s rejection of his application for special leave to appeal. That being the relevant cause of the applicant’s psychiatric injury, his claim on that ground must be dismissed. The cause of the injury was not the result of any pleaded breach of the duty of care by the Commonwealth. 2568 Second, because I do not accept that the applicant suffered any loss or damage on the basis of a failure to provide him with access to a counsellor when he was to learn, or had just learned, of the outcome of his special leave application. The evidence does not establish that the failure to provide him with access to a counsellor caused the Adjustment Disorder he suffered as a result of learning the outcome of his High Court application. Previous occasions where he had been advised of the unsuccessful outcome of his appeals had not resulted in him suffering any psychiatric illness. In those circumstances it was not foreseeable that this occasion would be different. In any event, the evidence does not establish that the applicant would have availed himself of the services of a counsellor at that -- 596 of 647 -- [2025] SASC 59 Stanley J 593 time if one was made available. On the contrary, he had rebuffed previous offers to afford him the opportunity to speak with a counsellor. It is significant that the applicant gave evidence that he was reluctant to discuss mental health issues for fear that it would adversely affect his prospects of obtaining a protection visa. Between learning of the outcome of the special leave application on 8 August and the suicide attempt on 11 August he did not make a request to see a counsellor or a nurse or doctor. 2569 Third, because the evidence does not establish that if he had seen a counsellor, that would have made a difference. A counsellor could not alter the objective facts that the applicant had exhausted his appeal rights and, as a result, was now at risk of deportation. More broadly, the evidence does not establish that even if the applicant was referred to a psychiatrist a different outcome would have occurred. As I have found the applicant recovered relatively quickly from the recognisable psychiatric injury he suffered in early August 2003. He has not proved that he would have recovered sooner if he had been referred to a psychiatrist following the rejection of his application by the High Court. Management Unit - March 2003 2570 As I have said earlier, I am satisfied that the Commonwealth breached its duty of care to the applicant by confining him in the Management Unit for longer than reasonably necessary in the period from 5 March 2003 to 13 March 2003. 2571 The Commonwealth’s negligence was not the confinement itself, but in confining the applicant in the Management Unit for longer than was reasonably necessary. As I have found, I am satisfied that at the latest, by 10 March when the AFP had failed to attend at Baxter to interview the applicant, with no indication as to when it would do so, it was unreasonable to continue to confine the applicant to the Management Unit for an indeterminate period. 2572 Having found that the Commonwealth breached its duty of care during his detention at Baxter, the applicant must prove that had he not been confined from 10 March 2003 to 13 March 2003 in the Management Unit, he would not have suffered psychiatric injury. 2573 The first difficulty confronting the applicant is that, for the reasons outlined in the findings of fact section, I cannot find he suffered any recognisable psychiatric injury immediately following being confined in the Management Unit. 2574 The second difficulty confronting the applicant is that, even if I was satisfied that he suffered psychiatric injury following his confinement in the Management Unit, I am unable to find that such injury was caused or contributed to by the additional few days he was unreasonably confined there. 2575 Even though I consider that the length of time he was confined to the Management Unit in March 2003 was unreasonable, the evidence, upon which I am prepared to rely, does not establish that this particular period of confinement -- 597 of 647 -- [2025] SASC 59 Stanley J 594 caused or contributed to any alleged psychiatric injury. That flaw in the applicant’s case is further compounded by the absence of evidence of him suffering from the pleaded psychiatric injury apart from the period between August 2003 and December 2003. 2576 The psychiatric evidence does not persuade me that the two occasions the applicant spent in the Management Unit or the time he spent in Red compound and Blue 3 caused or materially contributed to any recognisable psychiatric injury on the part of the applicant. As I have found, he did not mention the Management Unit at all when he first gave a history to Dr Raeside. This is a further example of the applicant’s unreliability as a witness. While I accept that his time in the Management Unit was unpleasant and an experience he did not care to repeat, I cannot find that his time in the Management Unit caused or contributed to any alleged psychiatric injury. 2577 The evidence of Dr Raeside does not go so far as to prove the applicant, assuming he had suffered psychiatric injury, would not have done so but for the Commonwealth’s breach of duty. The applicant has not proved on the balance of probabilities that he would not have suffered psychiatric injury if he had not been placed in the Management Unit or if he had spent less time in the Management Unit, or if he had been provided with access to a counsellor when his application for special leave was refused. Failure to provide access to a psychiatrist or psychologist did not cause any loss 2578 The applicant gave evidence that if he was aware that a psychologist or a psychiatrist was available to discuss his situation while he was detained in Baxter, ‘100 percent’ he would have spoken to him or her. 2273 I do not accept this evidence. It is wholly inconsistent with his actual conduct in declining to speak with a counsellor while in detention because the counsellor could not assist him in obtaining a visa. Equally, a psychiatrist or psychologist would not have been able to assist in him in obtaining a visa. There is no evidence of the applicant asking to see a psychologist or psychiatrist while in detention. His evidence was that he was reluctant to engage with a psychiatrist or psychologist for fear that evidence of psychiatric ill health might have jeopardised his prospects of obtaining a visa. His evidence that he would have engaged with a psychiatrist or psychologist in circumstances where he was not prepared to engage with a counsellor, I find to be self-serving and misleading. Summary of causation issues 2579 Four significant obstacles confront the applicant in proving his case on causation. First, assuming the evidence established the existence of a chain of causation between the Commonwealth’s breach of duty in confining the applicant to the Management Unit for too long in March 2003, and his alleged symptoms of psychiatric injury he now alleges he suffers, that chain of causation was broken 2273 T 1754. -- 598 of 647 -- [2025] SASC 59 Stanley J 595 while he was still in detention. I find there was a clear interruption to the applicant’s claimed psychiatric symptoms for many months before and after his release from detention. 2580 Second, the applicant’s claims of vocational dysfunction are difficult to maintain given the lengthy period of time he has been in his current employment. That undercuts claims that his alleged psychiatric symptoms continue to affect his daily life. 2581 Third, in the years since 2005 the applicant has experienced a myriad of stressors. I have referred to these earlier in these reasons. These include: • the difficulty of establishing a new life in a foreign country without family or financial support; • his general health; • being homeless for a period; • his loss of employment at Roxby Downs due to his drug use; • the death of a close friend, Aref; • his OxyContin addiction; • his pattern of deception and doctor shopping to obtain OxyContin; • his attempts to conquer his drug addiction; • his marital difficulties; • his use of marijuana; and • his gambling. 2582 The applicant’s case proceeds on the assumption that all these problems and complaints are explained by his psychiatric injury. However, the evidence does not establish a causal relationship between these matters and his alleged symptoms. I am not able to find that these are matters which can be causally related to the alleged failure to treat or the alleged conditions of detention. They are matters that arose discretely, in many cases years after his release from detention. The fact is that more than 15 years elapsed between the applicant’s release from detention and the start of the trial. The nature and multiplicity of these stressors in that period makes the exercise of unravelling their cause wholly speculative. This proposition is starkly illustrated by consideration of the applicant’s opioid addiction. It is conceivable that five years in immigration detention may have had some connection with that addiction. However, to acknowledge that is not proof that his opioid addiction was caused by his detention -- 599 of 647 -- [2025] SASC 59 Stanley J 596 in Baxter or that detention materially contributed to it. Evidence that he developed an addiction to opioids some three years after being released from detention does not prove that the applicant’s decision to consume opioids was caused either by his failure to treat case or his form of detention case. Rather, the evidence supports a finding that his use of OxyContin developed in response to his attempts to relieve symptoms of physical injury. The most common history of the development of OxyContin addiction is abuse in response to physical injury. This was the evidence of Dr Schirripa2274 and Dr Clarke.2275 Even accepting the proposition that mentally ill persons can develop an addiction to opioids does not prove causation in this case. 2583 Fourth, I do not accept the evidence of Dr Raeside that the persistence of the applicant’s psychiatric symptoms after his release from detention is evidence that his psychiatric injury was not caused by the mere fact of being in detention. The applicant’s submission, supported by Dr Raeside’s evidence that, subsequent to his release, there was no noticeable improvement in his condition, which would have been expected if his psychiatric illness was due to the fact of detention, its indeterminate nature and his fear of deportation, assumes that at the time of his release from detention the applicant was suffering symptoms of a recognisable psychiatric injury, which I find was not the case. 2584 Moreover, as Dr Raeside makes clear, for the purpose of forming his opinion, he assumes the accuracy of the Summary of Evidence, Outline of Evidence and the history the applicant gave him.2276 For reasons I have identified earlier, I am unable to rely on any of these as bases for making findings of fact. 2585 In any event, in relation to issues of breach and causation, a different question arises as to whether the applicant can prove any loss as a result of a failure to treat in detention. Assuming that the applicant did suffer from a recognisable psychiatric injury, what would have happened had the applicant been provided with the opportunity to consult a psychiatrist or psychologist while in detention. If it is assumed that once he was released from detention, he was free to seek treatment for his alleged psychiatric injury, the evidence suggests that he would not have availed himself of such an opportunity. It took him more than three-and-a-half years after his release from detention before he saw Mr McInerney in November 2008. The evidence does not support a claim that he could not afford to see a psychiatrist or psychologist given the evidence concerning Dr Giardini and Mr Abiyat. Even assuming the applicant had proven his case on failure to treat, he has not shown that he suffered any loss as a result. THE COMMONWEALTH’S PLEADING 2586 The applicant contends that it is not open to the Commonwealth to submit that he has no cause of action for damages for psychiatric injury that he suffered 2274 T 7029-7031. 2275 T 8413-8414. 2276 Exhibit A583 (Report of Dr Raeside 7 December 2021 p 2). -- 600 of 647 -- [2025] SASC 59 Stanley J 597 as a result of the conditions of detention in Baxter because, if he did suffer psychiatric injury, it was caused by the mere fact of detention. He contends it was not open to the Commonwealth to defend the action on this basis because it has failed to plead that the mere fact of detention would inevitably have caused the applicant to suffer a mental illness. 2587 I do not accept this submission. Proceeding on the basis that the Commonwealth has not pleaded that, if the applicant did suffer a psychiatric illness it was caused by the fact of his indeterminate detention, the rejection of his application for a protection visa, the dismissal of his subsequent appeals and his fear of deportation, the applicant is still required to prove his claim for damages as a result of the Commonwealth’s breach of its duty of care. That requires the applicant to prove a causative breach of duty. That is not proved if the evidence goes no further than establishing that the pleaded psychiatric illness resulted from unpleaded causes rather than the pleaded conditions of detention. Neither is it proved if the evidence establishes that the applicant would inevitably have suffered psychiatric injury as a result of the fact of his detention. I do not consider that putting the applicant to proof involves raising a special defence that had to be pleaded. 2588 In any event, the way in which the Commonwealth conducted its defence did not involve any prejudice to the applicant who was on notice for many years that this was the Commonwealth’s position. Further, ACM’s defence pleaded that if the applicant was found to have suffered a mental illness then detention uncertainty was a key causal factor.2277 Accordingly, on this basis the applicant was also on notice that this was a live issue in the case. CONCLUSION ON LIABILITY IN NEGLIGENCE 2589 For these reasons I am unable to find that the applicant suffered the pleaded psychiatric injury or any depressive psychiatric illness in Baxter except for a relatively short period of time following him learning in August 2003 that his application for special leave to appeal to the High Court had been dismissed. Symptoms attributable to this illness lasted until no later than the end of December 2003. 2590 The only breach of the duty of care by the Commonwealth established on the evidence, namely, the unreasonable period the applicant was kept in the Management Unit following the escape attempt, has not been proved to have caused or contributed to any psychiatric injury or to be causative of any loss or damage. 2591 The applicant’s claim fails because the evidence does not enable me to find that his cause of action in negligence is proved. Much of the applicant’s claim 2277 See ACM’s Defence (Revision 2) to the Applicant’s Statement of Claim (Revision 4) FDN 247 at [20.1.4], [20.1.6], [20.1.10], [20.1.15], [20.2], [22.1.1], [22.1.2], [22.1.3], [22.1.13], [22.2.7], [22.2.30], [24], [32.5], [32.10.1], [32.10.2], [32.10.3], [48.1] and [48.4]. -- 601 of 647 -- [2025] SASC 59 Stanley J 598 relied upon an acceptance of his evidence of events occurring two decades ago. Much of that evidence cannot be accepted because of his unreliability and lack of credit as a witness. In many instances his testimony was uncorroborated, inconsistent and contradicted by objective contemporaneous evidence. His account of events as provided to medical practitioners, psychiatrists, psychologists and other professionals altered over time. The unreliability of his evidence generally made it very difficult for me to accept any of it. The exception to this are occasions corroborated by evidence I am prepared to rely upon; evidence consistent with contemporaneous documents or objectively established facts and the apparent logic of events; and evidence otherwise unchallenged or against interest. The flaws in his evidence were so extensive that I felt unable to accept they were the product of impaired memory. But even if that was the explanation for the flaws in his evidence, it still went to the question of whether I can rely upon such unreliable testimony. In the end, I cannot. The applicant’s unreliability in relation to those matters I have specifically identified ultimately infected nearly the whole of his evidence. 2592 Even where I accept the applicant’s evidence of suffering a recognisable psychiatric injury following the rejection of his application for special leave to appeal to the High Court in August 2003 his claim in negligence fails because the cause of his injury is the High Court’s decision for which the Commonwealth is not liable. 2593 Accordingly, I dismiss the applicant’s claim in negligence. DAMAGES 2594 Having found that the Commonwealth is not liable to the applicant for his claim for psychiatric injury alleged to have been caused by the conditions of his detention at Baxter, it follows that the applicant has no entitlement to damages. 2595 However, as was pointed out in the plurality’s judgment in Prince Alfred College v A, DC (PAC)2278, it is a matter of longstanding practice in most trial courts that, where possible, all issues be the subject of adjudication. That practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful. But this is no more than a rule of convenience.2279 It is not something which should invariably be done without consideration of the appropriateness of that course of action in the circumstances of the case.2280 2596 In Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) (Poniatowska)2281 in a joint judgment, Kourakis CJ, Blue and Nicholson JJ, adopted the reasons of the New South Wales Court of Appeal in Nevin v B & R Enclosures Pty Ltd,2282 that where the issue of damages in personal injury cases has been fully litigated and 2278 [2016] HCA 37 at [113], (2016) 258 CLR 134 at 168. 2279 Nevin v B & R Enclosures [2004] NSWCA 339 at [74]. 2280 Prince Alfred College v A, DC [2016] HCA 37 at [113], (2016) 258 CLR 134 at 168-169. 2281 [2020] SASCFC 5, (2020) 136 SASR 455. 2282 [2004] NSWCA 339 at [74]-[75]. -- 602 of 647 -- [2025] SASC 59 Stanley J 599 there is at least a reasonable possibility that the trial judge’s decision on liability in favour of a defendant may be overturned on appeal, it is just and convenient that the trial judge should assess damages to avoid the need for a retrial. However, the Full Court went on to observe that this is not a universal or unqualified principle and that there will be cases where a judge need not, or even should not, decide a subsequent issue when it is not dispositive at first instance.2283 2597 Consideration has been given in the authorities to those circumstances in which a judge need not or should not assess damages where a plaintiff has lost. In Wolfenden v International Theme Park Pty Ltd (t/as Wonderland)(Wolfenden)2284 Hodgson JA, in explaining the circumstances where it was not practical or desirable for a court, having entered judgment for the defendant, to assess damages, said:2285 This was not a case where a plaintiff lost at first instance because of the primary judge's findings as to her credibility, which would have made the assessment of damages against the possibility of a successful appeal problematic. 2598 In Gulic v Boral Transport Ltd (Gulic)2286 Macfarlan JA said:2287 There may of course be good reasons for not dealing contingently with issues that the judge does not consider decisive. One reason might be that the judge considers that because the outcome is so clear or there is so little at stake that there is no reasonable prospect of an appeal. Alternatively, the judge might consider that the expenditure of judicial time and effort required to determine other issues is not justified when balanced against the likely costs of a retrial and the likelihood of a retrial being necessary. Another reason might be that determination of an issue whose resolution is considered not to be decisive might require assumptions as to a party’s credit diametrically opposed to the judge’s findings. It might be difficult to give effect to this assumption. 2599 This is not a simple negligence action where, for example, a customer in a supermarket suffered physical injury on the premises as a result of a slip and fall allegedly caused by a negligent failure to monitor the floor and keep it clean, dry and safe. In such a case if the plaintiff failed on liability the Court nonetheless could proceed to assess damages on the alternative assumption that the plaintiff had succeeded on liability. Frequently the nature and extent of the injury suffered would not be in significant dispute. The approach to assessing damages in that case would be the same whatever the judgment on liability. In such circumstances the utility in proceeding to assess damages where the defendant has succeeded on liability is obvious. That is not this case. 2600 In this case the applicant’s action is dismissed for a number of reasons. First, because his claim depended upon his credit and reliability. I am not in a position 2283 Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5 at [43], (2020) 136 SASR 455 at 460. 2284 [2008] NSWCA 78. 2285 Wolfenden v International Theme Park Pty Ltd (t/as Wonderland) [2008] NSWCA 78 at [53]. 2286 [2016] NSWCA 269. 2287 Gulic v Boral Transport Ltd [2016] NSWCA 269 at [8]. -- 603 of 647 -- [2025] SASC 59 Stanley J 600 to accept him as a witness of credit or rely upon his evidence for making findings of fact, except in the circumstances that I have set out earlier. Second, because the applicant has failed to prove that he has suffered a recognisable psychiatric injury apart from the period between August and December 2003. Third, in the alternative, because, if he has suffered a recognisable psychiatric injury, he has failed to prove that it was as a result of the conditions of his detention at Baxter, rather than the fact of his indefinite detention, the secure nature of his detention, his fear or deportation, witnessing other detainees being deported, and the rejection of his application for a TPV and the dismissal of his subsequent appeals. Fourth, in the further alternative, because, if he has suffered symptoms of depression post detention, he has failed to prove that those symptoms did not result from his OxyContin addiction. Further, he has not proved that his OxyContin addiction was materially caused or contributed to by the conditions of his detention at Baxter for which the Commonwealth could be held liable. Fifth, in the further alternative, because he has not been able to prove that the Commonwealth is liable in damages for his failure to undertake university studies and pursue a professional career in Australia. Sixth, in the further alternative, because he has not been able to prove that the Commonwealth is liable in damages for the strains and breakdown in his marriage. 2601 In this case the assessment of damages is contingent and depends upon a number of counterfactuals. How damages should be assessed in these circumstances will turn on a number of different assumptions which multiply, giving rise to a number of different approaches to the assessment of damages. Those assumptions are not confined to matters directly related to loss and damage. They extend to matters relating to causation which necessarily affect the assessment of damages. Depending on the assumptions made, different assessments will result. This problem was recognised by Hodgson JA in Wolfenden and Macfarlan JA in Gulic. It would be extremely difficult to give effect to these different assumptions in undertaking an assessment of damages. For these reasons I consider this is a case of the kind considered by the Full Court in Poniatowska where the Court should not attempt to assess damages. CIVIL LIABILITY ACT 2602 The negligent acts and omissions relied on by the applicant are alleged to have occurred throughout the entirety of the applicant’s time in detention at Baxter, i.e. from 22 September 2002 to 27 April 2005. During that period the Wrongs Act 1936 (SA) (Wrongs Act) was amended on 1 December 2002, 10 March 2003, 24 November 2003 and 1 May 2004. On 1 May 2004 it was renamed the Civil Liability Act 1936 (SA) (Civil Liability Act). 2603 The amendments of substance and which are relevant to this case were made in 2002 and 2004. They affected issues of causation and damages. As the effect of the Civil Liability Act can be decided discretely it is appropriate I do so in the event here is a successful appeal. -- 604 of 647 -- [2025] SASC 59 Stanley J 601 2604 The applicant submits that the law that applies to his case is the law as it was in September 2002 at the time of his transfer to Baxter. Accordingly, both the determination of liability and the assessment of damages are governed by the common law. His claim is for damages for pure psychiatric injury. He does not claim for consequential psychiatric injury or for nervous shock. 2605 The applicant submits that the first actionable act or omission relevant to his cause of action occurred on his arrival at Baxter on 22 September 2002 or very soon thereafter. 2606 It is not in issue that in South Australia prior to 1 December 2002 claims for nervous shock not related to a motor accident were to be decided according to the common law. In that period s 28 of the Wrongs Act provided that a person was not debarred from recovering damages “merely because the injury complained of arose wholly or in part from mental or nervous shock”. 2607 The applicant’s claim relies on the terms of the Transitional provision in the Wrongs (Liability and Assessment of Damages for Personal Injury) Amendment Act 2002 (SA) (the Amending Act). The Amending Act commenced operation on 1 December 2002. This was the first amendment made to the Wrongs Act during the period from the applicant’s transfer to Baxter to his release from detention. 2608 Section 6 of the Amending Act is the Transitional provision. It provided: (1) The amendments made by ss 3 and 4 of this Act are applicable to an action in which damages are claimed for personal injury if the accident out of which the action arises occurs on or after the commencement of those sections. (2) If the accident out of which the action arises occurred before the commencement of ss 3 and 4 of this Act, the principal Act (if relevant to this action) applies as if the amendments made by those sections had not been made. Example –– Suppose that A was exposed to asbestos in 1986 but is not diagnosed with asbestosis until 2004. The assessment of A’s damages for personal injury would be determined in accordance with the law that applied before the commencement of ss 3 and 4 of the Wrongs Act (Liability and Assessment of Damages for Personal Injury) Amendment Act 2002. 2609 The amendments made by ss 3 and 4 of the Amending Act commenced operation on 1 December 2002. The amendment made by s 3 was to insert a new Part 2A into the Wrongs Act. The amendment made by s 4 was to repeal the then s 35A. 2610 The effect of the Transitional provision is that the amendments applied to an action where the accident out of which the action arose occurred on or after 1 -- 605 of 647 -- [2025] SASC 59 Stanley J 602 December 2002, and the prior legislation applied where the accident out of which the action arose occurred before that date.2288 2611 The applicant submits that by reason of the operation of section 6(2) of the Transitional provision his claim for damages is to be determined in accordance with the law that applied before the commencement of the Amending Act because the accident out of which his action arises occurred before the commencement of s 3 of the Amending Act. 2612 The applicant submits that it was not necessary that the psychiatric injury he suffered was complete before 1 December 2002 for the liability for damages to be governed by the common law. All that was necessary is that a relevant act or omission had occurred before 1 December 2002. He submits that as a matter of fact that had occurred. 2613 I do not accept the applicant’s submission. There are two flaws in the submission. First, it is founded on an erroneous construction of the terms of section 6 of the Transitional provision and the critical role played by the term “accident” in its operation. Second, the submission is contrary to the application of the facts as I have found them. 2614 When the Wrongs Act was enacted in 1936 it did not contain a provision relating to recovery for mental or nervous shock. That changed in 1939 when the Wrongs Act was amended to provide that a plaintiff should not be debarred from recovering damages for injury arising from mental or nervous shock. At that time the common law was unsympathetic to such recovery.2289 When the law allowed a right of recovery for shock the basis of such recovery was limited. 2615 Both the Wrongs Act and the Amending Act were concerned with claims for mental and nervous shock. As the High Court recognised in King v Philcox,2290 ss 33 and 53 of the Civil Liability Act were a restatement of the existing law with a departure which is irrelevant to these proceedings. That is to say a restatement of the law as enacted by the Amending Act. 2616 The condition of mental or nervous shock traditionally required an identifiable mental illness, capable of being recognised in medical terms.2291 In Jaensch v Coffey2292 Brennan J, as he then was, said that nervous shock in the context of that case meant the sudden sensory perception by seeing, hearing or touching of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognisable 2288 Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 (SA) section 6. 2289 Chester v Waverley Corporation (1939) 62 CLR 1; King v Philcox [2015] HCA 19 at [15], (2015) 255 CLR 304 at 315. 2290 [2015] HCA 19 at [20], (2015) 255 CLR 304 at 318-319. 2291 Hinz v Berry [1970] 2 QB 40 at 42. 2292 (1984) 155 CLR 549 at 567. -- 606 of 647 -- [2025] SASC 59 Stanley J 603 psychiatric illness. It is more than a mere mental reaction to an upsetting accident or even acute grief.2293 2617 Claims for mental or nervous shock were compensable before 1 December 2002 if that injury was suffered as a result of the defendant’s negligence in accordance with the principles of the common law explained in Tame v New South Wales (Tame).2294 As Tame makes clear, the common law does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock.2295 2618 The statutory regime that existed before 1 December 2002 did not exclude a common law claim for damages for mental or nervous shock. However, if the claim arose from a motor accident it was subject to certain limitations. The Amending Act extended those limitations to all injuries not just those arising from a motor accident. 2619 The applicant’s claim is that his cause of action in negligence is based on a recognised psychiatric injury he allegedly suffered as the result of a series of incidents over the period from 22 September 2002 to 27 April 2005, commencing with the Commonwealth’s alleged failure to undertake a comprehensive mental health assessment upon his transfer to Baxter on 22 September 2002 or shortly thereafter. The applicant’s claim is not based on an accident that was the result of a single incident. To the extent that the applicant relies upon specific incidents in that period, they occur predominantly in 2003 and 2004. 2620 The applicant submits section 6 operates to provide that the determination of the applicant’s claim is governed by the common law. Section 6(2) provides that the amendments made by the Amending Act do not apply if the accident out of which the action arises occurred before the commencement of the Transitional provision i.e. 1 December 2002. However, the applicant does not allege that his pleaded recognisable psychiatric injury arose out of an “accident” which occurred before the commencement of the Amending Act. He merely pleads that an incident of the cause of action arose before 1 December 2002. 2621 The Amending Act imposed a further limit. It provided that the limit on recovery of damages for mental or nervous shock suffered as the result of a motor accident would extend to such shock arising out of any accident. As a result of the amendments, Part 2A of the Wrongs Act relevantly provided for “damages for personal injury”. Section 24A provided that: [Part 2A] applies where damages are claimed for personal injury – 2293 Storm v Geeves [1965] Tas SR 252 at 255; Owens v Liverpool Corporation [1939] 1 KB 394 at 400; Hewitt v Bernhardt (1979) 21 SASR 510 at 511. 2294 [2002] HCA 35, (2002) 211 CLR 317. 2295 Tame v New South Wales [2002] HCA 35 at [18], [66] and [213], (2002) 211 CLR 317 at 333, 344 and 390. -- 607 of 647 -- [2025] SASC 59 Stanley J 604 … (b) arising from an accident caused wholly or in part – (i) by negligence; or (ii) by some other unintentional tort on the part of a person other than the injured person; or (iii) by a breach of a contractual duty of care. 2622 Relevantly, accident was defined by s 24 as “an incident out of which personal injury arises and includes a motor accident”; and both “personal injury” and “injury” were defined in s 24 as meaning “bodily injury” and included “(a) mental and nervous shock…” 2623 Section 24C provided that: Damages may only be awarded for mental or nervous shock if the injured person – (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or (b) is a parent, spouse or a child of a person killed, injured or endangered in the accident. 2624 The Commonwealth submits that by reason of s 24A and the special meaning given to “accident” in s 24 the 2002 amendments covered all matters where damages are claimed for personal injury arising out of an accident. 2625 The current provisions contained in the Civil Liability Act commenced on 1 May 2004 by operation of Part 2 of the Law Reform (Ipp) Recommendations 2004 (SA) (Ipp Act). 2626 Schedule 1, clause 1 of the Ipp Act plainly states that the amendments it introduced are “intended to apply only prospectively”. Clause 1(2) provides that: If a cause of action that is based wholly or partly on an event that occurred before the commencement of the Ipp Recommendations Act arises after the commencement of the Ipp Recommendations Act, it will be determined as if the amendments have not been enacted. 2627 By reason of the clear and express language of the Transitional provision, I consider that the current form of the Civil Liability Act does not apply to events prior to 1 May 2004. 2628 The Commonwealth relies on the distinction between an accident as defined and a series of incidents constituting a course of conduct. 2629 In McDonald v South Australia; McDonald v Minister for Education and Child Development (No. 3)2296 Nicholson J, in considering a strikeout application, 2296 [2016] SASC 79. -- 608 of 647 -- [2025] SASC 59 Stanley J 605 applied the reasoning of the High Court in King v Philcox holding that the terms “accident”, and “incident”, where employed in s 53 (Damages for mental harm) of the Civil Liability Act, referred to a single event. Nicholson J reasoned that the terms “accident” and “incident” do not lend themselves to encompassing a course of conduct, made up of numerous interpersonal interactions extending over a number of years.2297 While Nicholson J was considering the Civil Liability Act, the definition of “accident” in the Act was the same as that under the Amending Act. Nicholson J’s reasoning was upheld by the Full Court on appeal.2298 2630 Both the applicant and the Commonwealth accept this definition of “accident” but arrive at different conclusions. The applicant submits that the effect of Nicholson J’s reasoning in McDonald is that Part 2A of the Amending Act does not apply to the applicant’s claim. That is, a claim based on a course of conduct whereby there are a series of continuing breaches that result in indivisible damage such as an illness, including pure psychiatric injury. The applicant submits that Part 2A of the Amending Act was not intended to affect the common law by “covering the field” in relation to pure psychiatric harm. It is limited to classic cases of nervous shock, i.e. caused in or by accident. The Commonwealth submits that the consequence of the enactment of the Amending Act is that the only claims for which damages may be awarded for psychiatric injury in the period 1 December 2002 to 30 April 2004 are claims for mental or nervous shock suffered in the particular factual circumstances prescribed by s 24C. 2631 In 2002 s 35A(1)(c) was repealed. The limitation s 35A(1)(c) imposed upon recovery of damages for mental or nervous shock arising out of a motor accident was extended by a new s 24C to cover mental or nervous shock arising out of any accident. There was no attempt to enact any provision affecting liability for pure mental harm. That did not occur until the enactment of the Civil Liability Act in 2004 when s 53(2) was inserted to provide that damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness. 2632 Subsequently in McDonald, Nicholson J proceeded on the basis that the common law applied to the plaintiff’s claim. However, while it appears no argument may have been directed to the impact of the Amending Act on Mr McDonald’s claim that is not entirely clear and, in any event, if as the Commonwealth submits, Nicholson J assumed the common law applied, there is no reason to consider that assumption was erroneous. 2633 While s 28(1) still provided that a person was not debarred from recovering damages “merely because the injury complained of arose wholly or in part from mental or nervous shock”, that right was confined by the provisions of Part 2A, it did not exclude the operation of the common law in relation to pure psychiatric injury. 2297 [2016] SASC 79 at [181]. 2298 McDonald v State of South Australia; McDonald v Minister for Education and Child Development [2017] SASCFC 146 at [160]. -- 609 of 647 -- [2025] SASC 59 Stanley J 606 2634 Applying the Amending Act to the facts of this case the applicant’s claim is not based on a single isolated event entitling him to recover damages. Accordingly, there is no “accident” within the meaning of the Amending Act. This means that in this case section 6 does not operate in the manner for which the applicant contends. There was no single event occurring before 1 December 2002 which gave rise to a liability on the part of the Commonwealth to the applicant in negligence. Rather, the applicant contended there were a series of indivisible events over the period from 22 September 2002 to 27 April 2005. That is a question of fact. 2635 However, notwithstanding rejection of the applicant’s primary submission, that is not the end of the matter. I do not accept the Commonwealth’s submission that the Amending Act covers the field, as a result the only claims for which damages may be awarded for psychiatric injury in the period 1 December 2002 to 30 April 2004 are claims for mental or nervous shock suffered in the particular factual circumstances prescribed by s 24C. On the contrary, I am satisfied that in this period claims for pure mental harm could still be made in accordance with the common law as stated in Tame. The Commonwealth submits that a legislative intention that the Amending Act was to cover the field of all claims for loss and damage resulting from a negligent act or omission, including all psychiatric injuries is apparent from the language of the Second Reading Speech.2299 I do not accept this submission. A consideration of the terms of the Second Reading Speech makes plain that the legislative intention was, relevantly, to impose certain limitations on recovery for negligently caused injury arising from an accident. The Minister said no more than that the existing rule in relation to motor accident cases that damages for mental or nervous shock may only be awarded in limited circumstances was carried over to other non motor accident personal injury cases. Nothing was said in relation to claims for pure psychiatric or mental harm. Neither did the Minister refer to any intention to cover the field of claims for pure psychiatric injury. 2636 Acceptance of the Commonwealth’s submission that the Amending Act covered the field with respect to all claims for negligence, including claims for pure psychiatric harm, would have the consequence that the only claims for which damages are to be allowed for psychiatric injury in the period from 1 December 2002 to 30 April 2004 are claims for mental or nervous shock suffered in the particular factual circumstances set out in s 24C. I do not accept that proposition. For reasons I have explained, it is not supported by the text of the Amending Act. It involves the imposition of a limitation on the operation of the common law which is not expressly stated. Nor is it supported by its legislative context. The Amending Act was enacted on 1 December 2002, after the High Court delivered judgment in Tame on 5 September 2002. In enacting the Amending Act the Parliament must be taken to have understood the common law as it stood at that time. There is a presumption in statutory interpretation that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to 2299 Second Reading Speech, Hansard, House of Assembly 14 August 2002 p 1034. -- 610 of 647 -- [2025] SASC 59 Stanley J 607 do so. It follows that it is most unlikely the Parliament intended to abolish existing common law rights without saying so expressly and in the clearest terms.2300 2637 There are other reasons why the Commonwealth’s submission should not be accepted. First, that the Parliament in the wake of the High Court’s judgment in Tame was still employing the language of mental or nervous shock contraindicates an intention to cover the field of pure psychiatric harm. Second, if the Commonwealth’s submission in relation to the operation of the Amending Act is accepted, Part 2A would not apply to the applicant’s claim as its operation is confined to a claim for damages for personal injury arising from an accident in accordance with s 24A. The parties accept that the applicant was not injured in an “accident”. Third, the text of section 6 makes the relevant transitional discriminator the timing of the accident out of which the action arises. This indicates a legislative intention that the Amending Act was not intended to apply to continuing breaches that result in indivisible damage such as an illness, and importantly, pure psychiatric harm. 2638 I do not consider that the broadening of the preclusion on recovery was intended to extend so far as to abolish claims at common law for pure psychiatric harm that were not claims for damages for mental or nervous shock caused by accident. Had the legislature intended to do so, it would be expected it would have said so expressly. I reject the proposition that the Parliament affected such a change in the law impliedly. Rejection of this proposition is supported by the history of the legislature’s successive enactments. As was explained in King v Philcox,2301 in 1986 following the judgment of the Full Court in Coffey v Jaensch,2302 subsequently affirmed by the High Court in Jaensch v Coffey,2303 the Parliament of South Australia enacted s 35A(1)(c) of the Wrongs Act 1936 (SA). The enactment of s 35A(1)(c) was not intended to affect the common law as stated in Jaensch v Coffey but to prevent any further expansion of this head of damage.2304 2639 The applicant does not attempt to distinguish in his claim between events prior to and after 1 December 2002 and any resulting psychiatric injury, or for that matter events prior to and after 1 May 2004. His cause of action is a recognisable psychiatric injury caused by the Commonwealth’s negligence.2305 By this plea the applicant bases his claim on the individual or cumulative effect of the alleged breaches of its duty of care, ranging across his period of detention at Baxter. 2300 Gifford v Strang Patrick (2003) 214 CLR 269 at 284; Potter v Minahan (1908) 7 CLR 277 at 304; Sargood Bros v The Commonwealth (1910) 11 CLR 258 at 279; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341; Bropho v Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994) 179 CLR 427 at 437-438. 2301 [2015] HCA 19, (2015) 255 CLR 304. 2302 (1983) 33 SASR 254. 2303 (1984) 155 CLR 549. 2304 King v Philcox [2015] HCA 19 at [16], (2015) 255 CLR 304 at 316-317. 2305 8ASoC [48]. -- 611 of 647 -- [2025] SASC 59 Stanley J 608 2640 However, it is important to recognise that a cause of action in negligence does not accrue until damage has been suffered because damage is an essential element of the tort. In Sharma2306 Allsop CJ observed:2307 It has long been recognised that contested questions going to liability in negligence such as the existence of a duty of care cannot be isolated from the damage that has actually been suffered, because it is by reference to such damage that the duty question is to be resolved. 2641 In this case the applicant did not suffer any injury attributable to the pleaded cause of action until 8 August 2003. I have found that on or about that date and for a period of a few months thereafter, the applicant suffered a recognisable psychiatric injury. That is the only psychiatric injury I am satisfied he suffered in the period from 22 September 2002 to 27 April 2005. 2642 In deciding the law applicable to the applicant’s case the Court is not bound to decide that question by reference to the applicant’s pleaded case once the case has been heard and the Court has made findings of fact on the evidence. In this case the findings of fact I have made are contrary to the applicant’s pleaded case. 2643 The Transitional provision must be applied in accordance with the findings of fact made, including, that the applicant was not suffering from a recognisable psychiatric injury upon his transfer to Baxter but suffered such an injury between August and December 2003. Further, the applicant has not proved that he was suffering from a recognisable psychiatric injury on or after 1 May 2004. 2644 As the only psychiatric injury the applicant suffered was the recognisable psychiatric injury in August 2003 that persisted for a period of a few months, the law applicable to determining his claim is the common law as it stood at that time. Given the applicant’s psychiatric injury was caused by the rejection of his application for special leave to appeal to the High Court and not by any negligent act or omission of the Commonwealth, as I have already explained, his claim must be dismissed. 2645 I should add that the applicant submits that the Commonwealth is precluded from contending that his claim is not to be decided in accordance with the common law. He contends that the Commonwealth’s proposition that section 6(2) does not operate so as to require his claim to be decided in accordance with the common law is a special defence. The applicant submits this defence has not been expressly pleaded as required by 2006 SCR 100(6). I do not accept this submission. The Commonwealth’s pleading does not raise a special defence. The Commonwealth’s submission is confined to the issue of identifying the law applicable to the applicant’s claim. 2306 Minister for Environment v Sharma [2022] FCAFC 35, (2022) 291 FCR 311. 2307 [2022] FCAFC 35 at [767], (2022) 291 FCR 311 at 489. -- 612 of 647 -- [2025] SASC 59 Stanley J 609 EXTENSION OF TIME 2646 While I have dismissed the applicant’s claim, for reasons that are relevant to the timing of the basis of the Commonwealth’s opposition to a grant of an extension of time, namely, the end of trial and, in case of an appeal, I consider it appropriate that I decide the application to extend time. 2647 The applicant’s claim is for a psychiatric injury suffered as a result of the conditions of his detention at Baxter in the period from 22 September 2002 to 27 April 2005. Further, he claims that he is continuing to suffer symptoms as a result of that injury.2308 Accordingly, the time for him to commence this action expired at the latest on 27 April 2008.2309 The applicant did not commence the proceedings until 3 February 2012. The proceedings are nearly four years out of time. As a result, he requires an extension of time. 2648 The application for an extension of time is brought pursuant to s 48 of the Limitation of Actions Act 1936 (SA) (the Limitations Act) as it was at 30 April 2004.2310 Section 48 was amended by the Law Reform (Ipp Recommendations) Act 2004 (SA) (the Ipp Recommendations Act) which commenced on 1 May 2004. The transitional provisions provide that the amendments made by the Ipp Recommendations Act are intended only to apply prospectively. If a cause of action that is based wholly or partly on an event that occurred before the commencement of the Ipp Recommendations Act, arose after the commencement of that Act, it will be determined as if the amendments had not been enacted. The applicant submits that the effect of the transitional provisions is that the cause of action itself need not arise before 1 May 2004, only one of the events on which that cause of action is based must have occurred. 2649 The applicant pleads his cause of action is based on numerous events commencing on 22 September 2002 and continuing past 1 May 2004. Accordingly, his application pursuant to s 48 is to be determined as if the Ipp amendments had not been enacted. 2650 Section 48(3) of the Limitations Act, as it was prior to 1 May 2004, relevantly provided that the Court had power to extend time where it was satisfied that: (i) a fact material to the applicant’s case was ascertained by him within the 12-month period prior to the commencement of proceedings; and (ii) that in all the circumstances of the case it is just to grant the extension of time. 2651 Both limbs must be satisfied. The first limb requires a finding of fact. The second limb empowers the exercise of a discretion. 2308 8ASoC [48.3]. 2309 Limitations of Actions Act 1936 (SA), s 35. 2310 The present form of s 48 commenced on 1 May 2004 by operation of s 76 of Law Reform (Ipp Recommendations) Act 2004 (SA). Schedule 1 clause 1 of the Ipp Recommendations Act provides that the amendments it introduced are intended to apply only prospectively. -- 613 of 647 -- [2025] SASC 59 Stanley J 610 2652 The first limb requires the applicant to prove the facts that enliven the exercise of the Court’s discretion,2311 namely, the ascertainment of a material fact for the first time within the year prior to the commencement of proceedings. The inquiry is objective and the fact must be personally ascertained by the applicant.2312 2653 The second limb will only be considered where the applicant has proved the first limb. The second limb requires consideration of all of the circumstances of the case. It is the applicant who bears the onus of satisfying the Court that the justice of the case requires the exercise of the discretion in his or her favour. As an extension of time is not a presumptive entitlement, which arises upon satisfaction of the precondition that enlivens the discretion, 2313 the applicant must show good reason for exercising the discretion in his or her favour. 2654 The inquiry is not limited to the factors relied upon by the applicant. In determining what the justice of the case requires, the Court is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension.2314 2655 The Court must consider the reasons for the limitation regime in the exercise of its discretion.2315 That discretion is informed by a general perception that where there is delay the whole quality of justice deteriorates.2316 2656 In Brisbane South Regional Health Authority v Taylor2317 the High Court identified four broad rationales for the limitation regime: first, the likely loss of relevant evidence by the effluxion of time; second, the oppression caused by allowing actions to be brought long after the relevant circumstances have passed; third, that people, public institutions and businesses have a significant interest in knowing they have no liabilities beyond a definite period and should be able to arrange their affairs accordingly, including in personal injury cases. Making today’s taxpayers ultimately liable for a wrong of the distant past is, as McHugh J observed, just as unfair as denying a plaintiff the right to reinstate a spent action arising from the wrong; and fourth, the public interest that requires disputes be settled as quickly as possible. 2657 The limitation regime enshrined in s 48 of the Limitations Act reflects a judgment of the Parliament that the welfare of society is best served by causes of action being litigated within the limitation period despite the result sometimes being that good causes of action may be defeated and there is no warrant for an extension of time to be prioritised over the limitations provision itself.2318 It is for 2311 Prince Alfred College v A, DC [2016] HCA 37 at [99], (2016) 258 CLR 134 at 164. 2312 Sola Optical Australia Pty Ltd v Mills [1987] HCA 57, (1987) 163 CLR 628 at 636 and 638. 2313 Prince Alfred College v A, DC [2016] HCA 37 at [99], (2016) 258 CLR 134 at 164. 2314 Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 186 CLR 541 at 554. 2315 Prince Alfred College v A, DC [2016] HCA 37 at [99], (2016) 258 CLR 134 at 164. 2316 Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 186 CLR 541 at 551; Prince Alfred College v A, DC [2016] HCA 37 at [99], (2016) 258 CLR 134 at 164. 2317 [1996] HCA 25, (1996) 136 CLR 541 at 552-553. 2318 Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 186 CLR 541 at 553. -- 614 of 647 -- [2025] SASC 59 Stanley J 611 these reasons that there is a positive burden on an applicant to show that their case is a justifiable exception to the rule that the welfare of the State is best served by applying the limitation period, because in the particular case justice requires an extension of time.2319 2658 For the purposes of s 48 of the Limitations Act a fact is material if it is both relevant to the issues to be proved if the applicant is to succeed in obtaining an award of damages sufficient to justify bringing the action, and it is of sufficient importance as to be likely to have a bearing on the case.2320 2659 The applicant alleges that he ascertained a new material fact on or about 24 June 2011 by reading Dr Raeside’s first report dated 21 June 2011 and learning for the first time that a psychiatrist, namely, Dr Raeside, was of the opinion that: • he was then suffering from a psychiatric illness, diagnosed as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood;2321 • he was likely to require ongoing treatment by way of indefinite use of antidepressant medication at a cost of around $35.00 per month and psychological therapy at an approximate cost of $300.00 per session for at least 20 sessions;2322 and • he was likely to suffer permanent psychiatric disability and impairment which would impact his occupational and social functioning to a significant extent.2323 2660 It can be seen that the applicant’s case for enlivening the Court’s discretion pursuant to s 48 of the Limitations Act is that on or about 24 June 2011 he ascertained for the first time, within the period of 12 months preceding the institution of the proceedings, that a psychiatrist, Dr Raeside, was of the opinion that he had a permanent psychiatric illness with a depressive element; with resulting social and occupational impairment; and a need for antidepressant medication; and at least 20 sessions of psychological therapy. 2661 The Commonwealth opposes an extension of time. It does so on the basis that the applicant has failed to satisfy either limb of the test prescribed by s 48 of the Limitations Act. 2662 In relation to the first limb, the Commonwealth’s case is that by the time the applicant first consulted Dr Raeside he already knew that he was suffering from psychiatric conditions, including depression, based on a medical certificate he had been given by Mr McInerney, which condition he claimed was permanent when he applied to Centrelink for payments in 2009; that he had been told by a 2319 Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 136 CLR 541 at 553-564. 2320 Sola Optical Australia Pty Ltd v Mills [1987] HCA 57, (1987) 163 CLR 628 at 636. 2321 8ASoC at [50.1]. 2322 8ASoC at [50.2]. 2323 8ASoC at [50.3]. -- 615 of 647 -- [2025] SASC 59 Stanley J 612 psychologist, Mr McInerney, that his mental health condition impacted his daily functioning both socially and vocationally and that his condition was likely to be permanent; that he knew and accepted those matters; and it was his understanding at the beginning of June 2011, before receiving Dr Raeside’s report, that his capacity to engage in employment and social activity was permanently restricted or compromised by the psychiatric illness he understood he had. 2663 The applicant said in evidence that he learned for the first time that this psychiatric condition from which he suffered was going to remain with him for the rest of his life and affect his education, employment and all other aspects of his daily life and that it was a chronic condition that showed itself through depression and anxiety.2324 2664 However, cross-examination revealed that when he applied for a Disability Support Pension in January 2009 he knew he was suffering from psychiatric conditions including depression. His application was supported by a medical certificate he had been given by Mr McInerney which stated the applicant was diagnosed with PTSD and depression in 2009.2325 Further, before he read Dr Raeside’s report of 21 June 2011 he had been told by Mr McInerney that his mental health condition had an impact on his daily functioning, his social interactions and his employment functioning and that his condition was likely to be permanent. He gave evidence that he knew and accepted these facts.2326 In addition, it was his understanding at the beginning of June 2011, before his receipt of Dr Raeside’s report, that his capacity to engage in employment and social activity was permanently compromised by the psychiatric illness he understood he had.2327 2665 I accept the Commonwealth’s submission that before the applicant read Dr Raeside’s report on or about 24 June 2011 he believed he had a depressive illness, which was permanent and would require ongoing medication and therapy, and would likely impair his social and employment functioning indefinitely. However, that conclusion does not defeat the applicant’s claim that he ascertained a material fact in the 12 months prior to the institution of these proceedings. Relevantly, proof that the applicant believed certain facts is not the same as ascertaining that a qualified psychiatrist held a professional opinion that he was suffering from a specific psychiatric condition, namely, a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, which was likely to be permanent, and which would impair his social and vocational functioning in the foreseeable future. The distinction between his belief and his knowledge that a psychiatrist was of the opinion that he suffered from this condition, with those consequences, is a material distinction for the purposes of s 48. That a psychiatrist held those opinions was relevant to the issues to be proved by the applicant in order to succeed in obtaining an award of damages and was of sufficient importance to 2324 T 1266. 2325 T 1267. 2326 T 1268-1270. 2327 T 1268-1269. -- 616 of 647 -- [2025] SASC 59 Stanley J 613 be likely to have had a bearing on the applicant’s case. Notwithstanding that he subjectively believed certain matters, that were matters of professional expert opinion, does not deprive his knowledge that those matters were the basis of an expert opinion to that effect, having the character of a material fact ascertained by him on or about 24 June 2011. 2666 In this case the applicant ascertained a material fact when he read Dr Raeside’s first opinion and ascertained that Dr Raeside held an expert opinion that he had suffered a depressive illness which was connected to his period of detention at Baxter. 2667 In Sola Optical Pty Ltd v Mills2328 the High Court held that the fact of the existence and content of an expert’s report was capable of being material to a plaintiff’s case, in the sense that the report represented available evidence that could be called in support of his or her case.2329 Accordingly, the fact that a plaintiff ascertains the existence of an expert report, the contents of which are material to the plaintiff’s cause of action, in the sense discussed earlier, can establish the ascertainment of a material fact for the purpose of meeting the s 48 test. 2668 Accordingly, I am satisfied that the applicant did ascertain a material fact within the period of 12 months immediately prior to the institution of these proceedings and therefore satisfies the first limb of the test prescribed by s 48. 2669 The ascertainment by the applicant of that material fact in the period of 12 months prior to the institution of these proceedings enlivens the discretionary power conferred on the Court to extend time. Whether it should exercise that power depends upon the Court’s satisfaction that in all the relevant circumstances it is just to do so. 2670 The applicant referred the Court to the judgment of the Full Court in Pomeroy v Thwaites Witham Pty Ltd and Krantz (Pomeroy)2330 where, on an appeal from a refusal to grant an extension of time, Doyle CJ described the discretion conferred by s 48(2)(b) of the Limitations Act as “virtually unrestricted”. Gray J, with whom Nyland J agreed, characterised the discretion as “unfettered”. 2671 The Full Court allowed the appeal on the basis that the appellant had shown that the relevant delay in that case had not made the chance of a fair trial unlikely. Specific prejudice had not been demonstrated. It was not suggested that the respondents had failed to take steps to obtain and preserve the evidence necessary for their defence. Accordingly, this was a case of nothing more than presumptive prejudice and in the circumstances the parties could obtain a fair trial. 2328 (1987) 163 CLR 628. 2329 (1987) 163 CLR 628 at 638. 2330 [2001] SASC 125, (2001) 79 SASR 489. -- 617 of 647 -- [2025] SASC 59 Stanley J 614 2672 Pomeroy was decided subsequent to the High Court’s judgment in Taylor2331 but before the High Court’s judgment in PAC.2332 2673 In my view nothing said in PAC should be understood as the High Court adopting a more restrictive approach than was taken in Taylor, to the question of the proper exercise of the discretion conferred by s 48(2). Rather, PAC should be understood merely as an application of the nature and purpose of the discretion identified by the High Court in its earlier judgment in Taylor.2333 2674 In PAC the High Court identified two fundamental propositions established by its judgment in Taylor. First, that it is the applicant for an extension of time who bears the onus of proving facts which demonstrate good reason for exercising the discretion in his or her favour. The exercise of the discretion must take account of the reasons for the limitation regime, particularly the general perception that where there is delay the whole quality of justice deteriorates. Second, the purpose of the discretion is to ensure a fair trial on the merits of the case. This focuses on the loss or deterioration of evidence which tends against the prospects of a fair trial. The discretion will usually be exercised against a plaintiff, where, by reason of the delay, a defendant is unable fairly to defend itself or is otherwise prejudiced. 2675 While it can be accepted that the statutory discretion conferred by s 48(2) is unfettered, the discretion is a binary one. An extension of time is either granted or refused. In exercising that discretion the Court is required, notwithstanding the unfettered nature of the discretion, to act judicially. That obligation requires the Court to have regard only to considerations connected to the litigation and to exercise the discretion in accordance with the principles established by the High Court, particularly in Taylor.2334 2676 In this case the applicant submits that there is no evidence that the Commonwealth cannot obtain a fair trial. The Commonwealth led no evidence to suggest that it had lost any witnesses or documents that it was required to keep material to the applicant’s case. A vast amount of documentary material was preserved by the Commonwealth in accordance with its statutory obligations pursuant to the Archives Act 1933 (Cth), the Public Service Act 1939 (Cth) and the Freedom of Information Act 1982 (Cth). 2677 In addition, he submits that he is an unsophisticated litigant, unfamiliar with the common law system, who does not speak English as his first language, and did not consult a solicitor until 2010 after which he acted with reasonable promptitude to commence proceedings, notwithstanding the difficulties presented by his OxyContin addiction. He first became aware of a potential right to claim early in 2331 Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 186 CLR 541. 2332 [2016] HCA 37, (2016) 258 CLR 134. 2333 (1996) 186 CLR 541. 2334 Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 186 CLR 541. -- 618 of 647 -- [2025] SASC 59 Stanley J 615 2010 and approached solicitors in February 2010 prior to travelling to the United States. He submits this delayed him retaining solicitors until 27 September 2010. 2678 I do not accept that the applicant’s capacity to bring proceedings against the Commonwealth earlier was compromised by his difficulties with English as a second language. It is apparent that he was sufficiently proficient in the English language to obtain prescriptions for OxyContin in his efforts at doctor shopping and to consult Mr McInerney without the need for an interpreter. In addition, it is clear that when he saw the applicant in 2010 Dr Raeside felt that the applicant spoke reasonably good English. 2679 It is not the Commonwealth’s case that by reason of the effluxion of time it has been deprived of the probability of a fair trial. Rather, it submits that the Court should refrain from exercising its discretion in favour of the applicant because of his deceit in prosecuting his claim and, in particular, his application for an extension of time. 2680 This is a novel proposition. The parties did not cite any authority for a court acting on the same or a similar proposition. 2681 While I accept that it is the applicant who bears the onus of satisfying the Court that an extension should be granted, the Commonwealth did not plead that the applicant was not entitled to an extension of time because of his deceit. It was not raised until the final address. 2682 The very nature of the basis upon which the Commonwealth opposes the grant of an extension of time meant that it could not be argued until much of the evidence was completed. As I say, the submission was not developed until closing addresses. While the applicant bears the onus of satisfying the Court that the conditions exist to warrant the exercise of the Court’s power to extend time in his favour, it is incontestable that an application for an extension of time, opposed on the basis relied on by the Commonwealth, could not have been argued or decided until the evidence, or much of it, was completed. 2683 I am satisfied the Commonwealth has proved its allegation of deceit. 2684 Having heard the relevant evidence, I am satisfied that parts of the history given to Dr Raeside by the applicant when he first consulted him for medico-legal purposes in 2010 were knowingly inaccurate. 2685 The applicant told Dr Raeside he had taken “too many painkillers including Tramadol” while in detention2335 and had developed stomach pains after taking 10 to 12 tablets per day. He said that the doctors “just gave them to me”. This evidence is not supported by the contemporaneous medical records. In June 2003 the applicant was being prescribed 50mg of Tramadol three times per day. Dr Kapur considered this to be a low dose posing a minimal risk of an adverse 2335 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 3). -- 619 of 647 -- [2025] SASC 59 Stanley J 616 event including dependency.2336 Dr Henderson’s evidence was that all prescriptions the applicant received while in detention, including for pain relief, were appropriate and the doses consistent with good clinical practice.2337 2686 When the applicant saw Dr Raeside he also told him that he “continues to be prescribed Zoloft 100mg each day. He occasionally takes Temazepam 10mg at night, as well as Tramadol 200-300mg every few days for his various pains.”2338 This evidence of his history of drug prescriptions is misleading. The applicant did not obtain any prescriptions for Zoloft prior to 2 December 2010.2339 After that date, apart from the prescription obtained on 2 December 2010, he did not fill the prescriptions he obtained for Zoloft.2340 Thereafter, he took Zoloft only a few times. He said it did not agree with him but made him feel worse.2341 The applicant used the request for Zoloft to try and persuade medical practitioners he was consulting to provide him with prescriptions for OxyContin.2342 2687 The applicant further told Dr Raeside that on one occasion he took 25 to 30 Tramadol tablets and ended up in the Port Augusta Hospital where he had his stomach pumped.2343 This is clearly a reference to the overdose incident of 11 August 2003. I am unable to find how many Tramadol tablets he took on this occasion, other than to find that he took in excess of a therapeutic dose. However, his claim that his stomach was pumped at the Port Augusta Hospital was false.2344 2688 In addition the applicant told Dr Raeside that he had a second overdose attempt while in Baxter.2345 There is no evidence of a second overdose. The applicant gave evidence that Dr Raeside might have misunderstood him. 2346 That evidence was a transparent attempt to explain his earlier false statement. 2689 The applicant told Dr Raeside that he had worked in the mines at Roxby Downs for nine months and claimed that his memories of detention so affected him that he could not get there on time, or work, and finally resigned in 2008.2347 This statement was false. As discussed earlier in these reasons, he had been dismissed after a positive drug test for opioids, amphetamines and methylamphetamines.2348 2690 In addition to these misleading and inaccurate statements, the applicant failed to disclose to Dr Raeside when asked about his medications, that he was in the grip 2336 Exhibit 1.3TP1752 p 3. 2337 Exhibit A561 (Report of Dr Henderson 26 July 2018 supplement p 3). 2338 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 4).. 2339 Exhibits A1534 pp 3, 7, A1479 2.4TP1777, T 1107-1110. 2340 Exhibit A1479 p 5. 2341 T 1185. 2342 T 1107-1110. 2343 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 6). 2344 T 1662-1668. 2345 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 6) 2346 T 1665. 2347 Exhibit A583 (Report of Dr Raeside 21 June 2011 p 3), T 1090-1094. 2348 Exhibit A1543, p 33., T 753, 1053-1054. -- 620 of 647 -- [2025] SASC 59 Stanley J 617 of a significant addiction to OxyContin and engaged in extensive doctor shopping to feed that addiction.2349 2691 I am further satisfied that the history given to Dr Raeside was knowingly inaccurate and calculated to bolster the applicant’s prospects of success in bringing his claim against the Commonwealth. I reject the applicant’s assertion that his inaccurate and misleading statements were the result of his mental health condition, confusion, inability to concentrate or embarrassment. 2692 I am also satisfied that the applicant’s submission that he did not consult a solicitor until 2010 is false and misleading. On his own admission he had been seeing lawyers since 2009.2350 2693 On this basis I am satisfied that the Commonwealth’s opposition to the grant of an extension of time is connected to the litigation. However, that only became apparent at the conclusion of the trial after the Court had heard the relevant evidence and considered submissions from the Commonwealth. As such, the Commonwealth did not submit that it was unable to obtain a fair trial. The evidence which satisfies me that the applicant did seek to deceive the Commonwealth and the Court was exposed during the trial. A substantial purpose of the Limitations Act regime is to prevent the time and resources of the parties and the Court being dissipated on the adjudication of claims against defendants who are unable to obtain a fair trial due to the delay in bringing the proceedings. The exercise of the discretion against a plaintiff is to protect the vulnerable defendant and promote the interests of justice in preventing the waste of time and resources and the delay to other matters coming to trial. That is not this case. 2694 Legitimate criticisms of the applicant’s evidence were not exposed until during the trial rather than before it. In addition, a plaintiff’s deceit is not necessarily fatal to the success of his or her claim for damages in negligence. This is a court of law, not a court of morals. That being the case, I consider that in the exercise of the discretion, proof of a plaintiff’s deceit need not necessarily result in refusal of an extension of time. A plaintiff’s deceit may be a factor to be weighed in the exercise of the discretion but, if it is, it must be weighed in the context of a consideration of other relevant factors, including timing and most importantly, whether the defendant can obtain a fair trial notwithstanding the delay. 2695 While this is a difficult case, I consider that the applicant should be granted the extension of time he seeks. The Commonwealth has not been deprived of the opportunity of a fair trial and the basis of its opposition to the grant of an extension of time was not raised until closing addresses, and could not have been determined until the conclusion of the trial or some time close to it. In the circumstances, I 2349 T 1084, 1093. 2350 T 1194, 1309. -- 621 of 647 -- [2025] SASC 59 Stanley J 618 consider it would be unjust to refuse an extension of time after the trial has been completed and the parties are awaiting judgment. 2696 Accordingly, I would grant an extension of time within which to institute these proceedings to 3 February 2012. THE THIRD PARTY CLAIMS 2697 As the applicant’s claim against the Commonwealth must be dismissed, there is no entitlement to an indemnity by ACM or G4S in favour of the Commonwealth given it has no liability to the applicant. In these circumstances the submission was put that I should refrain from considering the issues that arise on the third party claims by the Commonwealth as there was no work for them to do. However, I consider that in case there is a successful appeal from the order dismissing the applicant’s claim against the Commonwealth, where practicable I should address certain issues that arise on the third party claims. Those issues are necessarily limited by the dismissal of the applicant’s claim. They are largely confined to questions of law rather than fact. 2698 The Commonwealth sought an order that each of the third parties were jointly and severally liable to indemnify it in respect of any damages awarded to the applicant, and if applicable, interest. 2699 The asserted liability of the third parties to the Commonwealth was based in contract and negligence. These causes of action were alternatives. Had the Court found the third parties were individually or jointly liable to indemnify the Commonwealth pursuant to contract, it would have been unnecessary to consider any claim to indemnity in negligence or vice versa. 2700 In the period of the applicant’s detention pursuant to the provisions of the Migration Act, ACM was responsible for the operation and management of Curtin and Baxter from before the applicant was taken into immigration detention in December 2000 until 18 January 2004. G4S was responsible for managing and operating Baxter from 19 January 2004 until after the applicant’s release from immigration detention on 27 April 2005. 2701 It is convenient to address the legislative framework under which the Commonwealth entered into the contracts with the third parties. Legislative framework – Migration Act 1958 2702 Sections 189 and 196 of the Migration Act placed a positive obligation on authorised officers of the Minister for Immigration2351 to detain the applicant, as an unlawful non-citizen within the meaning of s 14 of the Act, at all times that he fell within the terms of that definition. 2351 Or equivalent from time to time. -- 622 of 647 -- [2025] SASC 59 Stanley J 619 2703 During the period the applicant was being detained “detain” was defined in s 5 of the Migration Act to mean to take into or keep in immigration detention. “Immigration detention” was relevantly defined to mean being held by or on behalf of an officer in a detention centre established under the Act, a prison or remand centre, or another place approved by the Minister in writing. 2704 Curtin and Baxter were established as detention centres pursuant to s 273 of the Act for the purpose of complying with the Commonwealth’s obligations under the Act. 2705 Curtin, Baxter and all other detention centres established under the Act were required to be secure facilities. Unlawful non-citizens detained at Curtin and Baxter were prohibited from escaping.2352 The maximum penalty for breach was a term of imprisonment of five years. They were further prohibited from manufacturing, possessing, using or distributing any “weapon”,2353 with equivalent penalties. Corresponding search powers were prescribed to permit enforcement of the relevant prohibitions and maintenance of the security of the facilities.2354 2706 Those statutory obligations necessarily informed the form and structure of the operation of Curtin and Baxter. The making of the contracts 2707 The Commonwealth entered into contractual arrangements with ACM and G4S to operate and manage administrative detention centres in accordance with the Commonwealth’s statutory obligation under the Migration Act, inter alia, to detain unlawful entrants to Australia until such time as their claims for asylum could be assessed and determined. Those contractual arrangements included a system of financial incentives and penalties in relation to the discharge of the third parties’ contractual obligations to the Commonwealth. The Commonwealth supervised the operation of its contracts while still relying on the expertise and experience of the third parties to comply with their contractual obligations. The contracts included the provision by the third parties of indemnities guaranteed by parent companies of ACM and G4S respectively. The Commonwealth contends those contractual indemnities were intended to hold it harmless not only for harm caused to the Commonwealth by the manner of the third parties’ discharge of operational decisions, but also to protect the Commonwealth from suffering any harm merely in respect of the third parties’ operations. 2708 In addition to the contractual indemnities, the Commonwealth independently relies on statutory rights of contribution against the third parties. 2352 Section 197A. 2353 Section 197B. 2354 Sections 252, 252AA and 252A. -- 623 of 647 -- [2025] SASC 59 Stanley J 620 The Commonwealth’s contractual arrangements with ACM and G4S 2709 The Commonwealth entered into four contracts with ACM and associated parties on 27 February 1998. 2710 First, Australian Correctional Services Pty Ltd (ACN 050 054 389) and the Commonwealth entered into a general agreement, a detention services contract, and an occupation licence agreement, which together prescribed the terms on which ACS and ACM were engaged to operate detention facilities, including Curtin. The contracts provided for the performance of its obligations to operate detention facilities in compliance with the requirements of the Migration Act, the detention services standards and the Immigration Detention Standards. 2711 Second, ACS and ACM entered into a sub-contract in respect of various of the obligations assumed by ACS pursuant to the ACS contracts; 2712 Third, ACM and the Commonwealth executed a deed of guarantee by which ACM guaranteed to the Commonwealth the performance of ACS’s obligations under the ACS contracts and indemnified the Commonwealth in respect of any breach or loss; and 2713 Fourth, a further guarantee in equivalent terms was also provided by the ultimate owner of ACS and ACM, Wackenhut Corrections Corporation, a U.S. company. 2714 On 26 August 2002 the Commonwealth established Baxter as a detention centre pursuant to s 273 of the Migration Act, and on 2 September 2002 ACS and the Commonwealth entered into a Baxter IRPC supplementary agreement in respect of the operation of Baxter. The supplementary agreement provided that the terms and conditions of the ACS contracts applied to the operation of Baxter except to the extent of any inconsistency with the supplementary agreement. 2715 Prior to the expiry of the detention services contract and supplementary agreement, the detention services contract was put out to tender by the Commonwealth. ACM and ACS tendered for an extension of those contracts. G4S also tendered for the contract. G4S was the successful tenderer. As a result on 26 August 2003 the Commonwealth entered into new contracts with G4S and G4S Regional Management (United Kingdom and Ireland) Ltd for the operation of detention centres including Baxter from 19 January 2004. 2716 First, G4S and the Commonwealth entered into a detention services contract prescribing the terms on which G4S was engaged to operate detention facilities including Baxter (G4S contract), which were substantially identical to those contained in the ACS contracts. 2717 Second, G4S and G4S Regional Management (United Kingdom and Ireland) Ltd and the Commonwealth executed a deed of guarantee by which G4S (United -- 624 of 647 -- [2025] SASC 59 Stanley J 621 Kingdom and Ireland) Ltd guaranteed the performance of G4S’ obligations under the G4S contract. 2718 Pursuant to the ACS contracts and supplementary agreement, and from 19 January 2004 the G4S contract, ACM and subsequently G4S: • were granted a licence to occupy and use detention facilities including Curtin and Baxter; • committed to provide services for detainees in immigration detention, including at Curtin (ACM only) and Baxter (detention services); • were required to provide those services in accordance with expressly specified Immigration Detention Standards (IDS) and detention service standards (DSS); • independently guaranteed the due and proper performance of ACS or G4S’ responsibilities respectively under the ACS contracts or the G4S contracts; and • indemnified the Commonwealth against liability, loss or cost arising from the performance of or default upon their respective contractual obligations (the indemnities). The Commonwealth’s causes of action on its third party claims 2719 The causes of action relied upon by the Commonwealth to found an entitlement to indemnity or contribution were: 2720 In respect of any acts or omissions prior to 19 January 2004: • the contractual indemnity by ACS given pursuant to clause 13.1 of the general agreement, arising as a consequence of such act or omission comprising either: - a breach of or default in compliance with the ACS contracts or supplementary agreement; or - the exercise or purported exercise of functions and powers granted by the ACS contract in the supplementary agreement; • jointly or severally, the contractual indemnity by ACM pursuant to clause 2 of the ACM guarantee, arising as a consequence of: - such act or omission comprising a breach of or default in compliance with ACM’ guarantee of ACS’ performance of the ACS contracts or supplementary agreement and independent commitment to perform; or -- 625 of 647 -- [2025] SASC 59 Stanley J 622 - ACS’ failure and/or refusal to meet its contractual indemnity following such demand; • breach of the common law duty of care owed to the Commonwealth by ACS and ACM: - arising from the proximity created by their respective relationships with the Commonwealth and each other; - namely, a duty to exercise reasonable skill and care not to expose detainees, including the applicant, who were under ACM and ACS’ care, supervision and control, to an unnecessary and foreseeable risk of injury; and - in reliance of the right of contribution arising under s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA). 2721 In respect of any acts or omissions on or after 19 January 2004: • the contractual indemnity by G4S pursuant to clause 16.1 of the G4S contract, arising as a consequence of such act or omission comprising either: - a breach of or default in compliance with the G4S contract; or - the exercise or purported exercise of the functions and powers granted by the G4S contract; • jointly or severally, the contractual indemnity by Group 4 Falck pursuant to clauses 1 and 3 of the Group 4 Falck guarantee, arising as a consequence of: - such act or omission comprising a breach of or default in compliance with Group 4 Falck’s guarantee of G4S’ performance of the G4S contract and independent commitment to perform; or - G4S’ failure and/or refusal to meet its contractual indemnity following such demand; • breach of common law duty of care owed to the Commonwealth by each of G4S and Group 4 Falck: - arising from the proximity created by their respective contractual relationships with the Commonwealth; - namely, a duty to exercise reasonable skill and care not to expose detainees, including the applicant, who were under G4S’ care, -- 626 of 647 -- [2025] SASC 59 Stanley J 623 supervision and control, to an unnecessary and foreseeable risk of injury; and - in reliance on the right of contribution arising under s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA). 2722 The Commonwealth by its third party claims sought relief that was expressly limited to an indemnity, or in the alternative, a contribution from the third parties for such liability, if any, as the applicant established against the Commonwealth, and costs and expenses associated with the defence of the applicant’s proceedings. The third party defences 2723 The third parties’ defences in response to the Commonwealth’s claim for contractual indemnity are limited to factual denials of the conduct complained of by the applicant; a denial that their involvement was causative of the Commonwealth’s liability to the applicant; and in the case of ACM, a denial that there had been any demand for performance pursuant to the guarantee. 2724 In relation to the Commonwealth’s third party claim for breach of a duty of care, ACM denies the existence of a duty of care owed to the Commonwealth. This is on the basis that a common law duty is excluded by the contractual arrangements the parties have reached fixing their rights, liabilities and duties; and reflecting the non-delegable nature of the Commonwealth’s separate duty of care to the applicant and other contractual terms within the ACS contracts. 2725 G4S denies any liability to the Commonwealth at common law due to the Commonwealth’s role in administering the G4S contract. Both ACM and G4S deny that they are liable to the Commonwealth in negligence based on a break in the chain of causation, or allegations of contributory negligence by the Commonwealth. The third parties also invoke equitable, or at least quasi- equitable, defences of waiver, estoppel and ratification. 2726 The third parties bear the evidentiary and persuasive onus to prove that the necessary elements of those defences are established and should come to their aid. If those defences fail, the Commonwealth submits its third party claim must succeed to the same extent as the applicant’s claim. 2727 The Commonwealth submits that the third parties cannot discharge that onus on their pleaded defences or the evidence, because, inter alia, they have not sought to, and could not, establish various essential matters. They are: 2728 First, that the Commonwealth, at the time of any of the acts or omissions asserted to comprise representations, had actual knowledge or notice of the specific circumstances alleged by the applicant, for example: -- 627 of 647 -- [2025] SASC 59 Stanley J 624 • objectively observable indications, signs and symptoms relevant to the adequacy or otherwise of the applicant’s MHA and treatment which are alleged by the applicant, denied by the third parties, and not reported to the Commonwealth; • allegations made by the applicant regarding specific usage of solitary confinement in the Management Unit on particular occasions, which are denied by the third parties and not reported to or known by the Commonwealth; • allegations made by the applicant regarding direct words and physical conduct of DSOs towards him, which are denied by the third parties and not reported to or known by the Commonwealth; and • allegations made by the applicant regarding prescription and use of medication in a manner which was inappropriate, which are denied by the third parties and not reported to or known by the Commonwealth; 2729 Second, that the Commonwealth by its conduct or silence knowingly made implied representations which could only be understood as unequivocal acceptance, approval or sanction of the conduct alleged; 2730 Third, that the third parties altered their position in reliance upon such implied representations in a manner which will now cause them detriment if the representations are not adhered to; and 2731 Fourth that the Commonwealth is, in all of the circumstances, acting unconscionably, unfairly or unjustly in bringing the third party claims. The Commonwealth’s third party claims in contract 2732 At issue on the contractual claim is a question of construction. The principles of contractual construction are well settled. In Electricity Generation Corporation v Woodside Energy Ltd2355 French CJ, Hayne, Crennan and Kiefel JJ said:2356 The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context …” As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience. 2355 [2014] HCA 7 at [35], (2014) 251 CLR 640 at 656-657. 2356 [2014] HCA 7, (2014) 251 CLR 640. -- 628 of 647 -- [2025] SASC 59 Stanley J 625 2733 In this case the relevant surrounding circumstances known to ACM and G4S was a decision by the Commonwealth government in 1998 to privatise the management of immigration detention in the wake of the Commonwealth government’s system of immigration detention being swamped by the sheer volume of unlawful arrivals. In these circumstances the Commonwealth decided to outsource the management of detention facilities to large corporations with expertise and extensive experience in the management of complex security environments. The Commonwealth lacked such extensive experience and expertise to enable it to continue to manage immigration detention centres in the way it had done in the past. In order for the new contractual arrangements to operate effectively the third parties were required to make thousands of discretionary decisions on a daily basis, concerning large and small matters, necessary to the effective operation of immigration detention. Those decisions had to be made in circumstances where the contracts required compliance by the third parties with the Immigration Detention Standards and the Detention Services Standards prescribed in those contracts. In addition, the third parties were obliged to communicate effectively with the Commonwealth concerning the operation of detention centres so as to alert the Commonwealth to changes in the manner of operation which the third parties considered necessary or desirable. Accordingly, the third parties’ role under the relevant contractual provisions was not only operational but also advisory. 2734 Underlying the commercial nature of these arrangements was the performance based fee arrangement that both incentivised and penalised matters of compliance and breach of the contracts or standards by the third parties. 2735 While these contractual arrangements did not detract from the Commonwealth’s non-delegable duty of care towards detainees, including the applicant, it did not mean that the Commonwealth’s role was to remain unchanged from the situation that existed prior to 1998. 2736 In this context it is convenient to turn to the proper construction of the indemnity provisions. Liability of a guarantor 2737 The principles applicable to the construction of guarantee and indemnity provisions in contracts are conveniently set out in the reasons for judgment of the High Court in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (Ankar)2357 and Andar Transport Pty Ltd v Brambles Ltd (Andar).2358 2738 In Ankar the joint reasons of Mason ACJ, Wilson, Brennan and Dawson JJ considered the liability of a guarantor as follows: At law, as in equity, the traditional view is that the liability of the surety is strictissimi juris and that ambiguous contractual provisions should be construed in favour of the surety. The 2357 (1987) 162 CLR 549 at 561. 2358 (2004) 317 CLR 424 at 433-438. -- 629 of 647 -- [2025] SASC 59 Stanley J 626 doctrine of strictissimi juris provides a counterpoise to the law’s preference for a construction that reads a provision otherwise than as a condition. A doubt as to status of a provision in a guarantee should therefore be resolved in favour of the surety… 2739 In the joint reasons in Andar Gleeson CJ, McHugh, Gummow, Hayne and Heydon J considered the principles of construction applicable to contractual indemnities. They described the statement in Ankar set out above as evidencing a settled principle governing the interpretation of contracts of guarantee. Their Honours noted that guarantee provisions such as those considered in Ankar and indemnity clauses such as those at issue in Andar differ in form and effect. A contract of guarantee is, subject to any qualification made by the particular instrument, a collateral contract to answer for a debt, default or miscarriage of another who is or is contemplated to be or to become liable to the person to whom the guarantee is given. An indemnity is a promise by the promisor that he will keep the promisee harmless against loss as a result of entering into a transaction with a third party. However, notwithstanding the differences in the operation of guarantees and indemnities, both are designed to satisfy a liability owed by someone other than the guarantor or indemnifier to a third person. Accordingly, the principles adopted in Ankar are relevant to the construction of indemnity clauses. Those principles require an indemnity clause to be construed strictly. It is to be read contra proferentem, and, in the case of ambiguity is to be construed in favour of the surety. 2740 In separate reasons Kirby J in Andar, who agreed with the disposition of the appeal by the majority, said:2359 Indemnity clauses are provisions that purport to exempt one party from civil liability which the law would otherwise impose upon it. They are provisions that shift to another party the civil liability otherwise attached by law to the first party. Self-evidently this is a serious thing to do or to attempt to do. Where such indemnities are said to arise out of contracts which are ambiguous or unclear, it is not unreasonable that their provisions should be construed so that any uncertainty is resolved favourably to the party thereby burdened by legal obligations that would not otherwise attach to it. In every case judges must struggle with the language of the contract. They must not use mechanical formulae. Nor do rules of interpretation provide easy answers to the judicial task. However, it is sometimes useful to remember, and apply, time honoured approaches. A feature that makes doing so specially appropriate is that the propounded interpretation would shift legal liability from that which the law would otherwise normally provide. The indemnity provisions 2741 Clause 13 of the general ACM agreement is as follows:2360 13 INDEMNITY AND INSURANCE 13.1 General Indemnity 2359 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 at [68], (2004) 317 CLR 424, 452-453. 2360 Exhibit A208. -- 630 of 647 -- [2025] SASC 59 Stanley J 627 (a) The Contractor indemnifies and agrees to keep the Commonwealth indemnified against all Damages for which the Commonwealth is or may become liable in respect of or arising from: (i) any Default by the Contractor; (ii) the enforcement or attempted preservation of any rights under this Agreement or any Service Contract; (iii) any amendment to, or any consent, approval, waiver, release or discharge of or under this Agreement or any Service Contract unless such consent, approval, waiver, release or discharge was requested by the Contract Administrator or relates to Temporary Measures; (iv) any infringement of Intellectual Property Rights by the Contractor or its Personnel or Subcontractors in the course of, or incidental to, performing Services; (v) any negligent, wilful, unlawful or reckless act or omission of the Contractor or its Personnel or Subcontractors in connection with this Agreement or any Service Contract; and (vi) the exercise or purported exercise of any function or power under this Agreement or any Service Contract by or on behalf of the Contractor (including any omission or failure to act by or on behalf of the Contractor). (b) The Damages in paragraph (a) may include without limitation amounts claimed in claims or proceedings by third parties. (c) The Damages due under clause 13.1(a) will not be payable to the extent that the Damages were caused by: (i) any negligent, wilful, reckless or unlawful acts or omissions of the Commonwealth; or (i) the Commonwealth’s breach of this Agreement or a Service Contract. 13.2 Indemnity Insurance (a) The Contractor shall ensure that, throughout the term of this Agreement and any Service Contract and for 7 years after the termination of the last of those agreements it has valid and enforceable insurance policies sufficient to cover its liabilities under this Agreement and any Service Contract. (b) The insurance policies referred to in this clause must, to the extent applicable: (i) name the Commonwealth as an additional insured person; (ii) contain clauses providing that each of the insured and the additional insured has a separate insurable interest; (iii) be primary and without any right to contribution from the Commonwealth or any insurance effected by the Commonwealth. -- 631 of 647 -- [2025] SASC 59 Stanley J 628 (c) The Contractor must on the date of this Agreement and each year on the anniversary of that date until the expiry or termination of this Agreement provide the Commonwealth with certificates from the Contractor’s insurers certifying that it has insurance as required by this clause. 2742 Clause 16 of the Detention Services Contract between the Commonwealth and Group 4 Falck is as follows: 16 INDEMNITY 16.1 General Indemnity 16.1.1 Subject to clauses 9.5.1, 9.5.5 and 16.3, the Services Provider indemnifies and agrees to keep the Commonwealth indemnified against all Damages for which the Commonwealth is or may become liable in respect of or arising from: (a) any Default by the Services Provider; (b) the enforcement by the Commonwealth or attempted preservation of its rights under this Contract; (c) any amendment to, or any consent, approval, waiver, release or discharge of or under this Contract unless such consent, approval, waiver, release or discharge was requested by the Contract Administrator or relates to Temporary Measures; (d) any infringement of Intellectual Property Rights by the Services Provider or its Personnel or Subcontractors in the course of, or incidental to, performing Detention Services; (e) any negligent, wilful, unlawful or reckless act or omission of the Services Provider or its Personnel or Subcontractors in connection with this Contract; and (f) the exercise or purported exercise of any function or power under this Contract by or on behalf of the Services Provider (including any omission or failure to act by or on behalf of the Services Provider). 16.1.2 The Damages in clause 16.1.1 above may include without limitation amounts claimed in claims or proceedings by third parties. 16.1.3 The Damages due under clause 16.1.1 above will not be payable to the extent that the Damages were caused by: (a) any negligent, wilful, reckless or unlawful acts or omissions of the Commonwealth, its employees, officers or agents; or (b) the Commonwealth’s breach of this Contract. 16.1.4 Any Default must be reported to the Commonwealth as soon as reasonably practicable and in any event no more than thirty (30) days after the Services Provider becoming aware of the Default. 16.2 Insurance -- 632 of 647 -- [2025] SASC 59 Stanley J 629 16.2.1 The Services Provider must ensure that, throughout the Detention Services Term and for seven (7) years after its expiration or earlier termination it has valid and enforceable insurance policies sufficient to cover its liabilities under this Contract. 16.2.2 The insurance policies referred to in this clause must, to the extent applicable, include coverage for direct and public liability. 16.2.3 The Services Provider will ensure that all Subcontractors maintain insurance policies of the types and with the amounts of cover that a prudent operator in the relevant field would from time to time consider normal and adequate cover in relation to, amongst other things, claims by the Commonwealth or any other person arising out of or incidental to any negligent act, error or omission by that Subcontractor in connection with its performance of its duties and obligations under the relevant subcontract. 16.2.4 The Services Provider will provide a list of such Subcontractors and confirmation of their compliance with clause 16.2.3 to the Contract Administrator no later than seven (7) days prior to the first Commencement Date and will update that list on an annual basis during the Detention Services Term. 16.2.5 The Services Provider must on the Implementation Date and each year on the anniversary of that date until the expiry or termination of this Contract and for seven (7) years after the expiration of this Contract provide the Commonwealth with certificates from the Service Provider’s insurers certifying that it has insurance as required by this clause. 16.2.6 If the Commonwealth considers that the insurance policies do not adequately cover the Services Provider’s obligations under this Contract, it may require the Services Provider to seek additional insurance coverage. If this requirement results in additional cost to the Services Provider, the Services Provider may submit a Services Provider’s notice, in accordance with clause 14.2.1 above. 16.2.7 The Services Provider must furnish to the Contract Administrator details of any claims every six (6) months during the period specified in clause 16.2.3 above. 16.2.8 The Commonwealth requires that the Services Provider holds, at a minimum, valid and enforceable insurance policies covering the following: (a) Broad form Public Liability insurance (liability in respect of members of the public as a result of negligence which results in bodily injury and/or property damage and including products liability) – minimum of [redacted]; (b) Professional Indemnity insurance – minimum of [redacted]; (c) Industrial Special Risk policy (including Business Interruption / Consequential Loss) – minimum of [redacted] in respect of the replacement value of assets owned by the Services Provider; (d) Motor Vehicles Third Party Personal Injury cover (TPPI) – in accordance with relevant statutory requirements; -- 633 of 647 -- [2025] SASC 59 Stanley J 630 (e) Motor Vehicles Third Party Property Damage cover (TPPD) – minimum of [redacted]; (f) Fraud and Fidelity insurance – minimum of [redacted]; (g) Medical Malpractice insurance – minimum of [redacted]; and (h) Workers Compensation – in accordance with relevant statutory requirements. 16.2.9 The policies specified above are a minimum requirement only, are not indicative of the liability coverage required in respect of risks associated with this Contract, and the Services Provider acknowledges that it has undertaken its own assessment of any additional insurance it may require to enable it to comply fully with its obligations under the Contract. 16.3 Limitation of Liability and Indemnity 16.3.1 Subject to this clause 16.3: (a) the Services Provider’s liability to the Commonwealth arising out of the Services Provider’s performance of the Contract shall be limited to; and (b) The Commonwealth indemnifies the Services Provider from and against any liability, loss, damage, cost (including reasonable legal costs and expenses) or expense which arise out of any claim, demand, suit, action, dispute or proceeding (Claim) against the Services Provider arising out of the Services Provider’s performance of the Contract to the extent that it exceeds, the amount of [redacted] per event or claim, as the case may be. 16.3.2 The limitation on liability and the indemnity in clause 16.3.1 do not apply to the extent: (a) the Services Provider, its Personnel or Subcontractors: (i) failed to comply with any reasonable direction of the Commonwealth; (ii) failed to comply with any reasonable direction of the Commonwealth; (iii) engaged in wilful, unlawful or negligent act or omission; or (b) the incident giving rise to the liability or Claim falls outside the scope of the Policy Terms and Conditions set out in Part 2 of the Comcover Policy Manual, as amended from time to time. Notwithstanding any other provisions of this Contract, the Commonwealth must not do any act or thing which has the effect, or fail to do any act or thing, if such failure has the effect, of causing an incident or Claim to fall outside the scope of the Comcover Policy Terms and Conditions (where the incident or Claim would otherwise fall within the scope of the Terms and Conditions). -- 634 of 647 -- [2025] SASC 59 Stanley J 631 16.3.3 The Services Provider must notify the Commonwealth as soon as practicable after any Claim that is likely to fall within the scope of the indemnity in clause 16.3.1(b) is instituted against the Services Provider, or if the Services Provider becomes aware that such Claims may arise. In such event: (a) the Commonwealth will have the right to direct the Services Provider in relation to the defence or settlement of the Claims; and (b) the Services Provider must comply with any reasonable direction from the Commonwealth for handling the Claims including providing all reasonable assistance requested by the Commonwealth. In this clause, the right of direction includes, but is not limited to, making a counter- claim, a claim against a third party, the recovery of costs, and lodging an appeal. For the avoidance of doubt, the indemnity under clause 16.3.1(b) is dependent on strict compliance with this clause 16.3.3. 16.3.4 The limitation on liability and indemnity set out in clause 16.3.1 will not apply: (a) to the extent of the liability of the Services Provider in relation to an event or Claim exceeds [redacted]; or (b) to the extent the aggregate value of the amounts covered by the limitation on liability or indemnity exceed [redacted] in any Financial Year during the Detention Services Term. 2743 “Damages” are defined as “liabilities, expenses, losses, damages and costs, including legal costs on a full indemnity basis and whether incurred by or awarded against a party. The Commonwealth’s third party claims in tort 2744 The Commonwealth pursues claims against both third parties in tort on the basis that the third parties owed the Commonwealth and the applicant a duty of care arising by reason of proximity created by the contractual relationship with the Commonwealth. The Commonwealth argues that if the applicant was entitled to damages for breach of the Commonwealth’s duty of care owed to him, that is attributable to the third parties’ breach of their common law duties. Depending upon the findings the Court made on the primary claim brought by the applicant and on the third party claim, the Commonwealth contends that there may have been a right to an apportionment between the third parties and the Commonwealth on a basis of their relative fault. Insofar as the Commonwealth’s third party claim is based in negligence, the Law Reform (Contributory Negligence and Apportionment of Contribution) Act 2001 (SA) applies at the time of judgment being rendered, and the legislation will apply depending upon whether there is a liability to be apportioned between the third parties and the Commonwealth or between the third parties themselves. 2745 Prior to 19 January 2004 ACM, and after 19 January 2004 G4S, were conducting the operation of, inter alia, Curtin and Baxter on a daily basis in order -- 635 of 647 -- [2025] SASC 59 Stanley J 632 to provide detention services, including guarding, behaviour management and the provision of healthcare. Accordingly, it was ACM and G4S staff and subcontractors working at Curtin and Baxter from time to time, who were directly observing and assessing the applicant and exercising the necessary judgment concerning what actions should be taken, or not taken, as appropriate in the provision of detention services for the applicant, and reporting on the same to the Commonwealth. 2746 While officers of the Commonwealth present at Curtin and Baxter at any given time exercised a supervisory function, they were primarily focussed on immigration processing and contractual compliance issues. They were not directly involved in day-to-day interactions with the applicant or other detainees. The Commonwealth was reliant upon the third parties reporting and record keeping in respect of day-to-day interactions, acts and omissions, and reporting, and the extent to which they were justified or appropriate. It is the Commonwealth’s case on the third party actions that the third parties assumed a contractual responsibility and an associated duty of care for all aspects of the applicant’s detention other than those which were non-compensable by virtue of being mandated by the Act or a non-justiciable exercise of policy making power in accordance with statute. The Commonwealth’s claim that the third parties were in breach of concurrent duties owed to it in contract and tort 2747 Courts historically have been reluctant to impose tortious liability in respect of pure economic loss. The end of that exclusionary rule had its genesis in the reasoning of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd.2361 Astley v Austrust Ltd2362 established clearly the proposition that a party may owe concurrent duties to take care in both contract and tort. However, acceptance that the law can recognise concurrent duties to take care in both contract and tort does not lead to the conclusion that it should always do so. A principal consideration constraining courts from imposing concurrent duties in contract and in tort in cases of pure economic loss is that such losses, particularly in a commercial context, are the kinds of losses that are usually regulated by way of contractual arrangements and, unless one party to the contract is particularly vulnerable, usually involves the parties protecting themselves from such losses by way of contractual warranties. 2748 In Perre v Apand Pty Ltd2363 McHugh J recognised that economic losses are one of the ordinary risks of business. 2364 Business people frequently take steps to minimise their business or economic losses. Taking these steps will often be a more efficient way of dealing with the risk of these losses than requiring defendants to have regard to the risk that others may suffer economic loss. The economic efficiency of a society requires that the person best able to deal with or avoid the 2361 [1964] AC 465. 2362 [1999] HCA 6, (1999) 197 CLR 1. 2363 (1999) 198 CLR 180. 2364 (1999) 198 CLR 180 at 226. -- 636 of 647 -- [2025] SASC 59 Stanley J 633 consequences of an economic risk from a cost viewpoint should be responsible for the risk and its consequences. Where another body of law can effectively deal with economic loss, a court should be slow to use the law of negligence to impose a duty of care on a defendant. This is particularly important where to do so would interfere with a coherent body of law in another field. 2749 Accordingly, courts have exhibited a reluctance to impose a duty in tort where to do so would effectively ignore an existing contractual relationship that should govern the parties’ rights.2365 2750 In Brookfield Multiplex Ltd v Owner’s Corporation Strata Plan 612882366 French CJ said:2367 … The nature and content of the contractual arrangements, including detailed provisions for dealing with and limiting defects liability, the sophistication of the parties and the relationship of [the property developer who was the registered proprietor of the land upon which Strata Title apartments were to be constructed] to [the Strata Corporation] all militate against the existence of the asserted duty of care to either [the Developer] or [the Strata Corporation]. 2751 In a similar way, Crennan, Bell and Keane JJ held that duties concerning defective works were governed by the terms of contractual arrangements entered into between the parties. After referring to Woolcock Street Investments Pty Ltd v CDG Pty Ltd,2368 where the High Court held that the general rule of the common law is that damages for economic loss which are not consequential upon damage to person or property are not recoverable in negligence even if the loss is foreseeable. They said:2369 These passages accord with the primacy of the law of contract in the protection afforded by the common law against unintended harm to economic interests where the particular harm consists of disappointed expectations under a contract. The common law has not developed with a view to altering the allocation of economic risks between parties to a contract by supplementing or supplanting the terms of the contract by duties imposed by the law of tort. [citation omitted]. 2752 Subsequently in Virk Pty Ltd (In Liq) v YUM! Restaurants Australia Pty Ltd2370 the Full Federal Court, hearing an appeal in relation to a contractual dispute between the Pizza Hut franchisor and its franchisee, after citing Brookfield, held that a duty of care was simply inconsistent with the contractual relationship 2365 Brookfield Multiplex Ltd v Owner’s Corporation Strata Plan 61288 [2014] HCA 36, (2014) 254 CLR 185. 2366 [2014] HCA 36, (2014) 254 CLR 185. 2367 [2014] HCA 36 at [3], (2014) 254 CLR 185 at 192-193. 2368 (2004) 216 CLR 515 at 530. 2369 Brookfield Multiplex Ltd v Owner’s Corporation Strata Plan 61288 [2014] HCA 36 at [132], (2014) 254 CLR 185 at 192-193. 2370 [2017] FCAFC 190. -- 637 of 647 -- [2025] SASC 59 Stanley J 634 between Yum and each franchisee. The economic interests of the parties were, in relevant respects, governed by the contract between them.2371 2753 In the ACM period there was a general agreement which governed the operation of all of the detention services facilities managed by ACM supplemented by individual detention services agreements that governed the particular duties of the third party at each detention centre. 2754 The contract by which the third parties proffered an indemnity to the Commonwealth must be construed in accordance with the principles applicable to the construction of indemnity provisions. In Triaca v Summaries Pty Ltd2372 the Full Court of the Supreme Court of Victoria held that the law of indemnity is concerned to ensure that a surety is not burdened beyond the obligation which he clearly undertakes. As a result the guarantee is strictly construed. 2755 The general ACS (ACM) agreement in clause 13 contains the indemnity given by ACS in favour of the Commonwealth and guaranteed by ACM. The separate contract in relation to Baxter during the ACM period sets out the financial incentives and payment regime for payment for services provided linked to performance, namely, the performance-based fee. The agreement also contains the definition of detention services and annexes and incorporates the Immigration Detention Standards. 2756 By the G4S period the various provisions relevant to Baxter were folded into a single contract. In the G4S period the indemnity granted by G4S is to be found in clause 16 of the contract. It is substantially in the same terms as the indemnity provision in clause 13 of the ACM general agreement but there is a different configuration to the contractual rights and duties in the G4S agreement compared with the ACM agreement. Detention services are set out in Schedule 2 to the G4S agreement which expressly incorporate the Immigration Detention Standards. However, notwithstanding the different formatting the effect of the contractual text, the surrounding circumstances known to the parties and their commercial purposes are essentially the same in the ACM and G4S contracts. 2757 As I have identified earlier, the commercial context in which these contracts were made was the decision by the Commonwealth to contract out the management of immigration detention centres to third party providers possessed of the expertise and experience the Commonwealth lacked to undertake the task statutorily required by the Migration Act. 2758 The contractual framework the Commonwealth entered into was designed to meet the statutory obligations imposed by the Migration Act through the delegation of the thousands of operational decisions that had to be made and implemented by those third parties. Those contractual obligations included the supervision by the Commonwealth of the operation of immigration detention 2371 Virk Pty Ltd (In Liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190 at [287]. 2372 [1971] VR 347 at 351. -- 638 of 647 -- [2025] SASC 59 Stanley J 635 centres by the third party contractors and corresponding reporting obligations on the part of those contractors to the Commonwealth. An important feature of this contractual framework was the requirement for the provision of a general indemnity by the third party contractors in favour of the Commonwealth. 2759 The third parties submit that the indemnity clause only applies in respect of “Damages for which the Commonwealth is or may become liable in respect of or arising from”, inter alia, any default by a third party or any negligent, wilful, unlawful or reckless act or omission of the third party’s personnel or subcontractors in connection with the agreements between the Commonwealth and the third parties, or the exercise or purported exercise of any function or power under the agreements or any service contract, by or on behalf of a third party, including any omission or failure to act by or on behalf of the third party. 2760 The third parties submit that the onus of proof is on the Commonwealth to establish not only the existence of “Damages” but also that the Commonwealth’s liability for such Damages is “in respect of or arising from” any (i) default, (ii) negligent, wilful, unlawful or reckless act or omission of the third party or its personnel or subcontractors in connection with the agreement or any service contract; or (iii) the exercise or purported exercise of any function or power under the agreement or any service contract by or on behalf of the third party including any omission or failure to act by or on behalf of it. 2761 The third parties submit that for the purposes of the indemnity clause, it is the Commonwealth’s liability, not the applicant’s injury or loss, that must arise from or in respect of the relevant default or breach. They submit that this stands in contrast with other cases where the applicable indemnity clause required a causal connection between the contractors acts and the injury to the plaintiff.2373 If the Commonwealth’s liability arises from its own conduct, the third parties submit that the indemnity clause does not apply. 2762 The third parties submit that for the indemnity clause to operate some causal connection must be established between the Commonwealth’s loss and the specific default or breach. They submit a general connection with a third party’s performance of the contract is not sufficient. The connection should be one of substance and should not be remote. The phrase “in respect of or arising from” is a broad expression of causation, but it is not open ended or unlimited. They submit that the use of the phrase in an indemnity clause leads to the conclusion that in the event of any ambiguity the clause should be construed contra proferentem in favour of the third parties. I do not accept this submission. 2763 I accept that the phrase “in respect of or arising from” poses a test wider than that posed by the expression “caused by.” While the former expression requires some causal or consequential relationship between the Damages for which the Commonwealth is liable and the prescribed events, the expression “in respect of 2373 See e.g. Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55. -- 639 of 647 -- [2025] SASC 59 Stanley J 636 or arising from” does not require a direct or proximate relationship which would be necessary to establish that the Damages were caused by one or more of the prescribed events.2374 2764 Further, there is no justification to construe the indemnity clause contra proferentem which is a rule of last resort. The phrase “in respect of or arising from” is not inherently ambiguous, rather it is an expression commonly employed in contracts and statutes as the basis for proving causation. 2765 In the alternative, the third parties rely upon the exclusion clause found in clause 13.1(c) of the ACM contract or clause 16.1.3 of the G4S contract. They both provide that the Damages due under the indemnity clause will not be payable to the extent that the Damages were caused by any negligent, wilful, reckless or unlawful acts or omissions of the Commonwealth or the Commonwealth’s breach of the contract. 2766 These provisions provide a carve out from the indemnity in the prescribed circumstances. The third parties submit that where Damages were caused by certain Commonwealth acts, including negligent acts or omissions and breaches of contract, the exclusion clause operates to preclude any liability of the third parties under the indemnity. 2767 The third parties submit that the Commonwealth has a personal and non- delegable duty of care to detainees at Baxter. It is obliged to ensure that reasonable care was taken to avoid harm to the applicant. While certain tasks could be delegated to the third parties, the Commonwealth could not delegate the discharge of its duty of care. Further, there were some duties and functions which were not devolved to subcontractors and which remained the responsibility of the Commonwealth to fulfil and exercise. If reasonable care was not taken, including by the third parties, the Commonwealth was liable for a breach of its own personal and non-delegable duty of care. That is no more than the Commonwealth being held liable for its own negligence in failing to ensure that reasonable care was taken. The third parties submit that any failure by the Commonwealth to fulfil this obligation constitutes a “negligent act or omission” within the meaning of the carve out provision and ex hypothesi the cause of its liability to the applicant and of any Damages due under the indemnity clause. 2768 Accordingly, the third parties submit that the existence of the non-delegable duty of care and its incidents culminate in a situation where, in the case of a detainee’s loss and damage brought about by the negligence of another party to whom the Commonwealth has delegated tasks relating to detainees in its custody, the primary cause of the Commonwealth’s liability for that loss or damage will be the Commonwealth’s breach of its own duty of care owed to that detainee. In other words, the existence of the non-delegable duty results in the liability of the 2374 Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114 at [11] and [38], (2008) 72 NSWLR 1 at 5 and 10; Westina Corporation Pty Ltd v BGC [2009] WASCA 213 at [61], (2009) 41 WAR 263 at 279. -- 640 of 647 -- [2025] SASC 59 Stanley J 637 Commonwealth in negligence where it has failed to ensure that reasonable care is taken by its delegates. The Damages having been caused by the Commonwealth’s negligence, the exception to the indemnity in the carve out will be triggered. Further, the carve out provision also encompasses independent acts of Commonwealth negligence that are a direct result of its own negligent act or omission i.e. negligence by the Commonwealth in the classical sense, rather than negligence derivatively made out by third parties’ conduct triggering the Commonwealth’s non-delegable duty of care. In this regard the Commonwealth will be liable for its own independent acts of negligence. 2769 Accordingly, the third parties submit that, even if the Court finds that the indemnity clause applies in relation to the Commonwealth’s liability to the applicant, the carve out provision does not permit the Commonwealth to recoup Damages from the third parties insofar as the Commonwealth was itself negligent. Commonwealth negligence in this context includes breaches of its non-delegable duty of care triggered by the negligence of the third parties, since these constitute breaches of the Commonwealth’s own personal duty to ensure that reasonable care is taken, as well as independent acts of negligence by the Commonwealth. Further, the third parties submit that any doubt regarding the construction of the indemnity clause should be resolved contra proferentem. 2770 The third parties submit this construction still provides ample scope for the operation of the indemnity clause and the carve out. This construction is also consistent with policy considerations. If the contract was construed as indemnifying the Commonwealth against all liability for its own breach of its non- delegable duty of care to detainees there would be significantly less incentive for the Commonwealth to ensure that reasonable care was taken to prevent detainees from suffering psychiatric injury. 2771 As a result, the third parties contend that on the proper construction of the indemnity clause, the Commonwealth must establish that it is liable for Damages to the applicant, that the third party committed some breach or default within the meaning of the indemnity clause and that the Damages were “in respect of or arising from” the breach or default. They submit that the Commonwealth has failed to prove any of these matters. 2772 They submit that even if the Commonwealth has established a relevant breach or default, it has failed to establish that it incurred liability for Damages “in respect of or arising from” such breach or default. 2773 The Commonwealth rejects the third parties’ submissions. The Commonwealth submits that if the construction for which the third parties contend was accepted it would strip from the indemnity much of its commercial purpose. It follows that the Commonwealth rejects the third parties’ submission that the Commonwealth’s construction of the indemnity clause would render the contractual arrangement between the Commonwealth and the third parties uncommercial. -- 641 of 647 -- [2025] SASC 59 Stanley J 638 2774 The text, the surrounding circumstances known to ACM and G4S and the purpose of the indemnity clause supports a construction that gives full amplitude to the language of the indemnity given by the third parties. This obligation is separately guaranteed by each of the controlling entities of the third parties. The Commonwealth having contracted out the detention function it previously performed, understandably sought the assurance provided by the terms of the indemnity and guarantee it obtained from the third parties and their controlling entities. They provided the Commonwealth with the surety it required commercially to ensure the performance of the duty of care it owed to those it detained pursuant to the Migration Act. The third parties agreed to an indemnity in terms that provided a broad scope of operation that is consistent with its purpose. I do not accept that it is ambiguous so as to require it be read down. It is unnecessary to read down the relevant contractual terms in order to conform to the principle that a surety should not be burdened beyond the obligation which he, she or it clearly undertakes.2375 That proposition merely begs the question what terms should be substituted for the agreed text. That can only involve the Court redrafting the terms of the commercial agreements between the Commonwealth and the third parties. 2775 I reject the third parties’ submission that where the carve out applies because Damages were caused by negligent et cetera acts or omissions of the Commonwealth, its employees, officers or agents or the Commonwealth’s breach of contract, this excludes any right of the Commonwealth to enforce its contractual indemnity. The carve out only operates “to the extent that the damages were caused by” the prescribed events. I accept the Commonwealth’s submission that in those circumstances the condition provides an apportionment regime rather than excluding altogether the indemnity obligation. The only exception to that proposition is where Damages were caused wholly and solely by a prescribed event. In those circumstances the indemnity obligation will not apply. Subject to that qualification, I accept the construction for which the Commonwealth contends. 2776 This is consistent with the breadth of the indemnity agreed between the Commonwealth and each of the third parties that the third party would indemnify and keep the Commonwealth indemnified in respect of all Damages as defined. 2777 The third party agreed to indemnify the Commonwealth against all damages for which the Commonwealth is or may become liable in respect of or arising from prescribed events. The width of the indemnity is consistent with the contract’s overall commercial purpose. I consider the indemnity agreed by the third parties operates according to its express terms. 2778 That said, clause 13.1(b) of the ACS contract and Clause 16.1.2 of the G4S contract provide that reference to “Damages” in the indemnity clause may include without limitation amounts claimed in claims or proceedings by third parties. 2375 Triaca v Summaries Pty Ltd [1971] VR 347 at 351. -- 642 of 647 -- [2025] SASC 59 Stanley J 639 Those “amounts” must be limited to amounts that are claimed and actually recovered in claims or proceedings by third parties. 2779 In this case the third parties are and were large multi-national corporations perfectly capable of looking to their own economic interests. They were not vulnerable. They entered willingly into contracts with the Commonwealth which included provisions for their protection and upon which they now seek to rely. In my view, if the Commonwealth suffered economic loss by reason of a breach of the contractual obligations of the third parties, it should be confined to whatever remedies are available to it in contract. The Court should not find the existence of a tortious duty of care owed by the third parties to the Commonwealth. To do so would involve the unjustifiable interference of the courts in the commercial arrangements entered into between the Commonwealth and the third parties which involved an extensive assessment of the parties’ rights, duties and obligations for the purpose, inter alia, of protecting their economic interests. Having turned their minds to the issues in consciously and deliberately deciding to allocate the relevant risks between them in the manner set out in the contracts, it would be wrong for the Court to now superimpose a duty of care onto that commercial relationship. 2780 For these reasons I would reject the existence of a concurrent duty of care owed by the third parties to the Commonwealth in tort. The form of the contracts between the Commonwealth and the third parties differed. Notwithstanding the difference in form, the substance of the contracts was essentially the same. Estoppel / waiver / ratification 2781 In addition, the third parties submit any breach by them was waived by the Commonwealth which, at all material times, accepted the services provided by the third parties and its subcontractors and the Commonwealth is now estopped from alleging otherwise. Even if it is established that a breach or default was caused by a third party, that will be in the nature of a breach of the Commonwealth’s own non-delegable duty of care and therefore, by operation of the carve out, a liability to indemnify the Commonwealth will not arise. Further, they submit the Commonwealth is liable for its own independent breaches of its duty of care to the applicant which are further caught by the carve out. 2782 The third parties submit that if the indemnity clause is engaged on the facts of this case the Commonwealth is estopped from relying on its right to an indemnity where it has otherwise waived its entitlement to do so. In addition, G4S pleads a defence of “sanction”. This appears to be a plea the Commonwealth somehow sanctioned its entire conduct in performance of its detention services contract. The plea appears to be a plea of ratification by the Commonwealth of G4S’ performance of the contract. 2783 Central to these pleas is the proposition that the Commonwealth knew of the negligent acts or omissions which caused or materially contributed to the applicant’s psychiatric injury but took no action to prevent him suffering such injury. In those circumstances the third parties plead that the Commonwealth has -- 643 of 647 -- [2025] SASC 59 Stanley J 640 either waived its right to call on the indemnity or is estopped from doing so by reason of its ratification of the negligent conduct of the third parties. To the extent that these pleas invoke considerations of unconscionability questions of knowledge on the part of the Commonwealth are necessarily raised. Questions of knowledge are clearly a fact in issue if a legal and evidentiary basis exist for the Commonwealth to pursue its third party claims. In those circumstances the Commonwealth’s “knowledge” of breaches of the Commonwealth’s duty of care which caused or materially contributed to the applicant’s alleged psychiatric injury would be in issue. 2784 As the High Court said in Waltons Stores (Interstate) Ltd v Maher:2376 It is essential to the existence of an equity created by estoppel that the party who induces the adoption of the assumption or expectation knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation. 2785 Further, “waiver” must always be an intentional act with knowledge and the requisite knowledge is the facts material to the election to waive the enforcement of a legal right.2377 2786 Finally, ratification of the conduct of an agent can only occur with “full knowledge” of the relevant facts.2378 It is a well established principle that a principal will not be held to have ratified an act of his or her agent unless, at the time when the principal performed the ratifying act, he or she had full knowledge of the circumstances of the act of the agent, or displayed an intention to ratify no matter what the circumstances. 2787 Accordingly, however the third parties seek to be relieved from a liability to indemnify the Commonwealth, actual knowledge by the Commonwealth of the particular facts and circumstances of the applicant’s case, which would otherwise give rise to liability under the contract prior to any asserted act or silence founding waiver, election, estoppel or ratification is required. That knowledge must be specific to the facts upon which the Commonwealth’s liability to the applicant has been found established by the Court. 2788 The Commonwealth’s case on the third party claims is that all of the potentially compensable complaints made by the applicant, if proved, were the result of operational decisions consisting of acts or omissions of the third parties. For example, the Commonwealth submits any failure by the third parties to satisfy reporting obligations was a breach of contract by them. I accept the submission that by reason of the Commonwealth’s supervision of the third parties’ 2376 [1988] HCA 7, (1988) 164 CLR 387 at 423. 2377 Commonwealth v Verwayen [1990] HCA 39, (1990) 170 CLR 394 at 451-452, 472-473. 2378 McLean Bros & Rigg Ltd v Grice [1906] HCA 1, (1906) 4 CLR 835 at 857; Taylor v Smith [1926] HCA 8, (1926) 38 CLR 48; Fried v National Australia Bank Ltd [2001] FCA 907 at [142]-[144] and [159], (2001) 111 FCR 322 at 361-362, 365. -- 644 of 647 -- [2025] SASC 59 Stanley J 641 management of Curtin and Baxter, that did not, of itself, constitute a waiver of the third parties’ contractual liability to the Commonwealth. 2789 The presence of DIMIA officers at Curtin and Baxter evidenced the Commonwealth’s supervision of the operation of its contracts. However, the fact of that supervision did not detract from the reliance the Commonwealth placed on the judgment, decisions and compliance of ACM and G4S with the contracts. The Commonwealth did not delegate the duty of care it owed the applicant. However, the Commonwealth did delegate the discharge of that duty to contractors with greater expertise and experience than its own officers in managing detention centres. I find the Commonwealth took reasonable steps to monitor and regulate the management of those detention centres. Ultimately it did so because it was accountable to the Parliament, and through it to the Australian people, for the management of Baxter and the other detention centres. 2790 The only circumstance in which the applicant might have succeeded against the Commonwealth where the third parties would not have been found liable to indemnify it, at least in part, was if the Court had found in favour of the applicant on a factual basis that did not involve any contractual act or omission by the third parties. The evidence does not establish any conduct giving rise to a contractual breach which did not, in some capacity, involve one or more officers, employees or agents of either of the third parties. The evidence is that it was those officers, employees or agents who overwhelmingly had to deal with the detainees, including the applicant, and it was they who were involved in any contractual act or omission at Baxter, relied on by the Commonwealth. Certainly, there is no evidence that any of the officers, employees or agents of the third parties disclosed to the Commonwealth circumstances complained of by the applicant giving rise to his claim for damages which resulted from a decision of the Commonwealth not to act in circumstances where the failure to do so was a breach of its duty of care. Most allegations made by the applicant are made against officers, employees or agents of the third parties. An exception is the allegation concerning a threat made to a detainee by Mr Wallis during the course of the HREOC inspection at Curtin. There is no evidence that it was witnessed by the applicant or that he had knowledge of it occurring. In any event, as it occurred at Curtin, it cannot be a basis for fixing the Commonwealth with liability to the applicant in damages. 2791 The third parties were prepared, as a term of their contracts, to agree to provide indemnities in broad terms. The capacity to pay those indemnities was guaranteed by controlling entities in the third parties’ global group. The Commonwealth submits that the indemnity provisions in the contracts provide assurance to the Commonwealth that it would be held harmless not only for harm caused to the Commonwealth by third party acts or omissions but harm the Commonwealth suffered merely in respect of the third parties’ operations. 2792 Ultimately, it is unnecessary to decide whether that submission should be accepted or rejected given my conclusion that the applicant’s action must be dismissed. -- 645 of 647 -- [2025] SASC 59 Stanley J 642 2793 I have predominantly confined consideration of the third party claims made by the Commonwealth to a consideration of questions of law rather than fact. I am not in a position to make findings, for example, concerning any alleged failure to inform or notify the Commonwealth of issues concerning the applicant where I have not been able to rely on his evidence to make findings of fact. I cannot make findings in relation to the Commonwealth’s third party claims based on hypothetical circumstances that would have enlivened the indemnity claim against the third party claims if the applicant’s claim had succeeded. I cannot posit the factual circumstances that would have founded a successful claim by the applicant against the Commonwealth that may have been critical to the determination of the Commonwealth’s claim against the third parties. 2794 These difficulties highlight the problem in relation to assessing the question of the costs of the third party claims where the applicant has failed on his primary claim. CONCLUSION 2795 For these reasons, I would grant the applicant an extension of time to 3 February 2012 within which to bring this action but I would dismiss the applicant’s claim. As a result I also dismiss the Commonwealth’s third party actions against ACM and G4S. 2796 I will hear the parties as to costs. POSTSCRIPT 2797 After the Court reserved judgment in this matter the High Court delivered reasons for its judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ).2379 2798 On 11 December 2023 the solicitors for the Commonwealth wrote to the Court noting that NZYQ had overruled the constitutional holding in Al-Kateb v Godwin.2380 The Court was advised that the Commonwealth was considering the impact of NZYQ on the matter and in particular, the Commonwealth’s reliance on Al-Kateb and asked the Court to permit time for the parties to consider whether any further argument was required. 2799 On 13 February 2024 the Commonwealth through its solicitors advised that following the judgment in NZYQ the Commonwealth’s reliance on Al-Kateb should be read to refer to detention being constitutionally permitted until such time as “there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future.”2381 2379 [2023] HCA 37, (2023) 97 ALJR 1005. 2380 Al-Kateb v Godwin [2004] HCA 37, (2004) 219 CLR 562. 2381 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [55], (2023) 97 ALJR 1005 at 1018. -- 646 of 647 -- [2025] SASC 59 Stanley J 643 2800 On 14 February 2024 the applicant’s solicitors notified the Court that, in light of the judgment in NZYQ, he was considering whether he should amend the submissions made and whether he should seek leave to amend his Statement of Claim. He sought time for this purpose. On 12 April 2024 the applicant’s solicitors filed and served an application for leave to file a revised Statement of Claim alleging that the Commonwealth was liable for damages for unlawful detention of the applicant and seeking to have that claim heard and determined in these proceedings. 2801 On 20 May 2024 the applicant sought leave to withdraw the application. That leave was granted. 2802 As a result, the Court has not considered whether NZYQ should have any effect on the judgment in this matter beyond those submissions made by the Commonwealth solicitors in the letter of 13 February 2024. -- 647 of 647 --