The commonwealth’s detainment of a Kurdish refugee in hotels that “deprived” him of his liberty was unlawful, a lawyer for the former detainee has argued in an appeal against a federal court decision.
Kurdish refugee Mostafa “Moz” Azimitabar, who was detained in two Melbourne hotels for more than 14 months, launched an appeal after he lost his federal court case last year that argued his treatment was unlawful.
In July, the court ruled the Australian government’s detention of Azimitabar in Melbourne hotels as alternative places of detention (Apods) “lacked ordinary human decency” but did not breach federal laws.
Lisa de Ferrari SC, representing Azimitabar, on Monday said the hotels where Azimitabar was held for more than a year were “de facto detention centres” but he was not lawfully detained.
“There was no power, no power to make that a place where somebody could be deprived of their liberty,” she said.
Ferrari said there was nothing in the Migration Act to empower the commonwealth to establish alternative places of detention and said this is not implied in the legislation – as ruled in the original judgment.
“Implying a power is, again, something quite extraordinary. In a case where there’s an express power elsewhere, which regulates with limitation, the very same thing… that is why it’s wrong,” she said.
Azimitabar’s legal team argued that the government had unlawfully created Apods by relying on provisions in the definitions section of the legislation.
Graeme Hill SC, appearing for the commonwealth, argued that an implied power under the legislation was “a power under the act as much as an expressed power”.
The commonwealth last year successfully argued that the immigration minister, via a delegate, could establish detention centres in a range of different buildings if they met the definition of a detention facility.
While finding the policy lawful, the federal court justice Bernard Murphy last year handed down a scathing rebuke of the policy and said his judgment should not be seen as an endorsement.
In 2022, Azimitabar launched legal action against the commonwealth to challenge the lawfulness of Apods under the Migration Act and sought compensation.
Azimitabar, a Kurdish musician, fled persecution in Iran and was held in Australia’s offshore detention system from 2013 on Manus Island in Papua New Guinea for more than six years. Azimitabar had severe asthma and was struggling to breathe even before he was transferred to Australia under the medevac laws for treatment.
He was detained at the Mantra Bell City, in Preston, in Melbourne’s north, from November 2019 for 13 months before being transferred to the Park hotel in Carlton.
During this time, he was heavily guarded, prevented from going outside or opening a window and often stayed in his room for up to 23 hours a day.
Hundreds of refugees and asylum seekers were also transferred to Australia from offshore detention in Papua New Guinea and Nauru under the medevac policy based on doctor’s advice before it was repealed in 2019. The immigration minister, via a department officer, approved hotels as alternative places of detention.
While Apods are no longer used for long-term detention of refugees detained offshore, human rights advocates argue there is nothing stopping the commonwealth or future federal governments from reinstating the policy.
Azimitabar was released from the Park hotel in January 2021 and is required to reapply for a bridging visa every six months.
The full bench of the federal court reserved a judgment.
