Refugee sues Commonwealth over legality of his detention
A refugee locked up in two Melbourne hotels for more than 14 months will take his case to the Federal Court on Tuesday, alleging the Commonwealth detained him unlawfully and seeking unspecified damages for his treatment.
Mostafa “Moz” Azimitabar was brought to Australia on emergency medical grounds in November 2019, having spent more than six years detained on Manus Island and in Port Moresby.
Moz Azimitabar in the Mantra in Preston in December 2020.Credit:Luis Ascui
Instead of being transferred for medical treatment, he was detained at the Mantra hotel in Preston, in Melbourne’s north, for 13 months before being transferred to the Park Hotel in Carlton for a further month.
During his time detained in Australia, Azimitabar became one of the most outspoken of the refugees and asylum seekers brought here under the short-lived medevac policy.
Under the medevac process introduced by Labor, the Greens and the crossbench – and strongly opposed by the Morrison government – hundreds of people were brought from Nauru and Papua New Guinea to Australia in 2019 for emergency medical treatment on the advice of doctors.
Months later, with the support of crossbench senator Jacqui Lambie, the Morrison government repealed the legislation. Those brought to Australia under the short-lived arrangements spent months in limbo in onshore detention centres or in hotels-turned-detention centres.
Azimitabar, a Kurdish Iranian, was released into the community on a bridging visa in January last year.
In a two-day hearing in the Federal Court beginning on Tuesday, Azimitabar will challenge the legality of his hotel detention. The case could have implications for hundreds of fellow refugees and asylum seekers similarly detained in makeshift detention centres around the country.
His legal team will argue the Australian government acted unlawfully by detaining Azimitabar in the two hotels because only the immigration minister could approve the designation of the hotels as detention facilities, by doing so in writing.
On five occasions in 2019 and 2020, then-immigration minister David Coleman and acting minister Alan Tudge delegated that responsibility to officers, who approved the hotels as places of detention. The Migration Act requires unlawful non-citizens who do not have a visa to be detained while they are in Australia in a detention centre, a prison or remand centre, a police station or police watch house, or another place approved in writing by the immigration minister.
Azimitabar’s lawyers argue in documents lodged with the Federal Court that neither the Mantra nor the Park Hotel was a detention centre established under the act. Accordingly, they will argue, the designation of the hotels as detention facilities was without legal effect.
Lawyers for the Commonwealth have denied that Azimitabar was at any time illegally detained in Australia, and will argue that officers who authorised the Mantra and Park hotels to be used as detention facilities did so under authority that was properly delegated by the minister.
The Commonwealth, represented by the Australian government solicitor, contends that contracting and expenditure on places of detention, including motels, is supported by the executive power of the constitution, which allows for the “execution and maintenance” of Commonwealth laws. This, they argue, includes spending “for the ‘doing of all things which are necessary or reasonably incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect’.”
The case is scheduled to be heard by Justice Michael Murphy over two days.
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