The Federal Government’s detention of a refugee in Melbourne hotels has been ruled legal in a landmark case in the Federal Court today.
Kurdish musician and artist Mostafa “Moz” Azimitabar, who was held in immigration detention for almost 15 months in two hotels over 2020 and 2021, challenged his detention as unlawful and sought damages.
In today’s hearing in Melbourne, Justice Bernard Murphy ruled that while the detention was legal, the court’s decision should not be seen as an endorsement of the policy.
“I can only wonder at the lack of thought, indeed lack of care and humanity, in detaining a person with serious psychiatric and psychological problems in the hotels for 14 months, primarily in a hotel room with a window that would only open 10cm, and for most of the time without access to an outdoor area to breathe fresh air or feel the sun on his face,” Justice Murphy said.
“For most of the time he was held in the Mantra Hotel he was restricted to his room, to the third floor of the hotel, and to the basement area when having meals.
“Anyone who endured even two weeks of hotel quarantine during the COVID-19 pandemic would surely understand how difficult that must have been.
“As a matter of ordinary human decency the applicant should not have been detained for such a period in those conditions, particularly when he was suffering from PTSD and a major depressive episode.
“But the decision in this case does not turn on the humanity of the applicant’s detention; it is about whether the Minister had power under the Act to approve the hotels as places of immigration detention, and therefore to detain the applicant as he was. I consider the Minister had (and has) power to do so.”
Justice Murphy’s decision is a blow to the thousands of asylum seekers and refugees held in such hotels who were considering seeking compensation over their treatment.
Section 5 of the Migration Act 1958 (Cth) allows the Home Affairs Minister to approve (in writing) a place other than a detention centre, prison, remand centre, police station, watch house or vessel, for immigration detention.
Since 2019, the Department of Home Affairs has used hotels as Alternative Places of Detention (APODs) to detain refugees and asylum seekers brought from offshore detention centres for medical treatment under the now repealed medevac laws.
Kangaroo Point’s Central Hotel and the Meriton Suites Hotel in Brisbane’s CBD were among hotels around the country used as APODs.
Azimitabar, 37, was held in immigration detention in Mantra Bell City Hotel at Preston for 13 months. When the lease expired, he was held at Park Hotel at Carlton for almost two months before being released in January 2021.
He had fled persecution in Iran and had spent seven years in immigration detention on Manus Island before being transferred to Australia.
A report released last month by the Australian Human Rights Commission (AHRC) criticised hotel detention and its impacts on detainees. In mid 2022, the AHRC examined the human rights of people detained in hotel APODs in Melbourne (Park Hotel) and Brisbane (Meriton Suites Hotel). It found serious human rights impacts on detainees, which included:
- serious negative mental health impacts, which progressively worsen over time and exacerbate pre-existing trauma experienced by some people being detained.
- confinement to rooms with almost no freedom of movement, leading to social isolation and entrenched loneliness.
- insufficient access to fresh air, exercise, or outdoor areas, as well as reports of substandard food.
- a distressing lack of privacy, either because of intrusive monitoring by staff or because of their living arrangements.
- very limited access to programs or activities, fuelling boredom, frustration, and apathy.
- insufficient access to private spaces for visits by family, friends, or legal assistance.
- concerning use of physical restraints, (including handcuffs) on people when they were escorted outside of detention facilities.
- difficulties accessing appropriate and timely medical care, including access to specialist health care and mental health care.
- concerning conduct in the release of detainees from hotel APODs and the provision of post-release support.
The Use of Hotels as Alternative Places of Detention (APODs) report made 24 recommendations to the Federal Government. The government agreed with two, disagreed with five, and noted the remaining 17.
The number of detainees in hotel APODs in Australia was 29 as of January 2023, down from 182 in December 2020.