Illiterate and schizophrenic Afghan refugee serving seven years’ jail wins court battle with immigration minister over visa cancellation bungle
- Australia’s immigration minister lost High Court appeal over visa cancellation
- Man was sentenced to seven years in jail for ‘malicious acts with intent’ in 2016
- More than four years ago, a delegate of the minister cancelled the man’s visa
- Prisoners’ Legal Service who asked for visa cancellation notice to be reissuedÂ
Australia’s immigration minister has lost an appeal in the country’s highest court over a visa cancellation bungle involving an illiterate Afghan man who had his throat cut by Taliban soldiers.
The man – who is not named but referred to as EFX17 in court documents – was sentenced to seven years in jail for ‘malicious acts with intent’ in 2016, seven years after he arrived in Australia.
He has been in custody since August 14, 2014.
EFX17 has a schizophrenic illness ‘at least in part attributable to traumatic events affecting him and his family at the hands of Taliban soldiers in Afghanistan’.
The man told lawyers he was raised in a poor farming community, before working as a shepherd and child labourer in Iran, and learned to sign his name when he was in immigration detention in Christmas Island (pictured) in 2009
These included having his throat cut by Taliban soldiers, according to a psychiatrist’s report mentioned in court documents.
The man told lawyers he was raised in a poor farming community, before working as a shepherd and child labourer in Iran.
‘He instructs that he has never learned to read or write in English and learned to sign his name when he was in immigration detention in Christmas Island in 2009,’ according to court documents.
He is also illiterate in his native language of Hazaragi.
More than four years ago, a delegate of the immigration minister cancelled the man’s protection visa, sending an email to the Brisbane Correctional Centre asking that attached documents be given to the man.
EFX17 received the information, but ‘it appears that he was confused about the contents’, a High Court judgment published on Wednesday said.
He was later represented by the Prisoners’ Legal Service who asked for the visa cancellation notice to be reissued because the man’s capacity to understand the process was ‘significantly impaired’.
The Immigration Department refused.
Both sides have pursued the matter in federal courts, with the immigration minister taking the matter to the High Court.
The appeal concerned the meaning and operation of the law requiring the immigration minister to give a person whose visa has been cancelled particular information and inviting them to make representations regarding the cancellation.
The High Court judges dismissed the minister’s appeal saying ‘the invitation to make representations did not provide a way to ascertain the period within which the representations were required to be made’.
‘The court upheld the notice of contention, concluding that an invitation to make representations ‘within the period … ascertained in accordance with the regulations’ must crystallise the period either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the invitation,’ the judgment said.
‘The letter provided to the respondent did not do so.’
The minister has undertaken to pay the man’s costs for the High Court appeal.