Refugee advocates say the Kurdish Iranian refugee who died after escaping Christmas Island detention centre might have been granted a bridging visa if a Western Australian magistrate had not decided to record a conviction against him for a minute-long fight at Curtin immigration detention centre in 2011.

Fazel Chegeni was found dead at the bottom of a cliff face on the island on Sunday, two days after he escaped the detention centre.

In 2013 he was one of four men convicted of assaulting a fellow detainee at Curtin, 2,300km north of Perth, WA, in December 2011. He and two of his co-accused had been granted refugee status and spent a few months living in community detention in early 2013 before being convicted and sentenced later that year to imprisonment for six months and one day.

An application for appeal was lodged within the week and last year the WA supreme court commissioner, Kevin Sleight, upheld the appeal on the grounds that the sentence was manifestly excessive.

But Sleight did not quash the conviction, which was sufficient cause for the men to be returned to immigration detention and denied bridging visas.

In the appeal judgment, Sleight said the magistrate Barbara Lane, who handed down the original sentence, had emphasised that the assault had occurred in a detention centre, which she said made it a serious offence despite the victim not being seriously injured and none of the men having prior convictions.

“There are important public policy reasons that this should be accepted as a serious offence because of the good order of the detention centre and it places other detainees at risk of serious harm and injury that good order is disturbed,” Lane said in her sentencing remarks.

She described the assault, which was captured on CCTV, as “very vicious, sustained but short”. Sleight, in his own description of the assault, said it had lasted for one minute, the victim had not been seriously or lastingly injured despite being attacked by four men, no property had been damaged, staff had not been involved and “order was quickly restored”.

Lawyers for the four men appealed the sentence on the grounds that it was manifestly excessive, that the magistrate had erred in not taking into account the long periods each man had spent in immigration detention and that she had erred in failing to impose a spent conviction. The last point of appeal was abandoned by the appellants when the hearing began.

According to the judgment, Chegeni, who was given the approximate age of 31, had been in immigration detention since arriving in Australia from Afghanistan on 12 July 2011. He had spent 51 days in detention at the time of the assault and spent a total of 532 days in detention before he was released on community detention in Melbourne on 8 April 2013.

The other three men, who were also Iranian, had spent an average of 708 days in detention at sentencing. Guardian Australia has been unable to ascertain their current whereabouts.

When asked to consider the time spent in immigration detention as a mitigating factor, Lane said she couldn’tbecause the immigration system was separate to the justice system.

“He’s not in custody, he is in detention under the Immigration Act,” Lane told the lawyer of one of the men. “It has got nothing to do with our courts system.”

Sleight said Chegeni had been granted refugee status in recognition of his statelessness and the persecution he had faced in Iran but had not yet passed the character test, a discretionary tool that allows the minister for immigration to refuse to grant a visa. Under the Migration Act 1958 a person does not pass the character test if they have been convicted of an offence committed while in detention.



Ian Rintoul, from the Refugee Action Coalition, said it was “very clear” that the assault sentence was the reason Chegeni had been re-detained. “It is very clear his re-detention at the time was unusual,” Rintoul said. “He got a good behavior bond – he should never have been convicted in the first place – and now has been in detention for three times longer than the length of that good behaviour bond.”

Non-citizens who fail the character test, named “501s” for the relevant section of the Migration Act, make up an increasing number of people in immigration detention and are usually viewed as separate to asylum seekers because of their criminal histories. The act gives the minister broad discretionary powers.

Chegeni’s death sparked riots on Christmas Island which reportedly caused $1m in damage before guards used teargas to subdue detainees and bring the centre back under control on Tuesday.