When Edris Cheraghi was granted bail, it didn’t mean he was free to go.
Instead, he would spend nearly three years in detention without being convicted, a decision of the Australian government that a UN body has criticised for lacking a "legitimate explanation".
The Iranian man, now in his early 30s, entered the Australian community in May 2013 after coming to Australia’s Christmas Island by boat to seek asylum in late 2012.
Two years later Cheraghi’s bridging visa was cancelled after he was arrested and charged with offences including breaking and entering with intent to inflict actual bodily harm, and stealing. In making the decision, a delegate of then immigration minister Peter Dutton relied on a migration law allowing bridging visas to be cancelled if the visa holder is charged with an offence.
When he was granted bail in October 2015, he was transferred to Sydney’s Villawood Immigration Detention Centre. He spent three years in detention waiting for his criminal proceedings to end, until recently being convicted on some of the charges after a first trial failed to deliver a verdict.
Cheraghi is one of a growing number of people whose visas have been cancelled by the Australian government following criminal charges, before those charges are tested in court. The criminal process is separate from the migration system, meaning that even where charges are later dropped or a defendant is found not guilty, their visa will not automatically be reinstated.
"In the criminal system, there’s a presumption of innocence until proven guilty," Cheraghi’s lawyer Alison Battisson, of Human Rights For All, told BuzzFeed News. But for those in immigration detention due to criminal charges, "there is no such presumption and the onus is effectively reversed".
Without a visa, the Migration Act said Cheraghi had to be detained. But while he could not be released, Cheraghi could also not be deported. A "criminal justice stay certificate" issued by the NSW Director of Public Prosecutions prevented the government from removing him until his criminal proceedings ran their course.
That process took years. Cheraghi pleaded not guilty to the charges and went to trial in December 2017, more than two years after entering immigration detention. The jury was unable to reach a verdict, and his matter was set down for a re-trial – which wouldn’t take place for another eight months.
Cheraghi has struggled in detention. "Eddie is just one of the most vulnerable detainees I’ve ever seen," Battisson said. "He just is not designed for detention."
She says he has been diagnosed with a range of mental health issues including bipolar disorder and depression. "I’ve been to see him when he’s so anxious he’s shaking," she said. "I’ve had to stop meetings and just sit quietly with him because he can’t speak, he’s just so distressed."
More recently, Battisson says he was diagnosed with deep-vein thrombosis and pulmonary embolism. "He doesn’t move — he’s so scared he stays in his room and lack of movement resulted in a blood clot," she said.
She says he has suffered a head injury and two broken hands in detention, requiring surgery. She argues that Cheraghi isn’t receiving proper medical care in detention: "At one point he had some wounds that were so infected they had pus dripping out of them."
Being released from detention would make a "massive difference" to his health, Battisson says. He would be under less stress, and his family members in Australia – who moved interstate to be closer to Villawood – would be able to care for him.
With no realistic legal options remaining to secure his release, Battisson decided to take Cheraghi’s case to the United Nations, and earlier this year made a complaint to the Working Group on Arbitrary Detention, which is overseen by the Human Rights Council.
This week the working group shared an advance copy of its opinion, adopted in August, that Cheraghi was being subjected to arbitrary detention contrary to international law. The working group found that the government hadn’t provided any "legitimate explanation" for his continued detention over nearly three years, and recommended that he be released immediately and given a right to compensation.
The group also said it was “seriously concerned” at the increasing number of cases coming to it from Australia, and urged the government to review the Migration Act "without delay".
Battisson said Cheraghi is "very pleased" about the working group’s opinion, but "extremely concerned about his future and about the time that he’s lost".
Following a second trial, and after the working group adopted its opinion, Cheraghi was convicted of two of the offences in late August, and transferred from Villawood to a prison to await sentence.
But with no prior criminal history, his lawyers expect that any prison sentence he receives will be shorter than the time he’s already spent in detention.
A spokesperson for the Department of Home Affairs told BuzzFeed News the department was reviewing the working group's opinion and will respond to the group "in due course".