Hotels the Australian government used to hold refugees and asylum seekers were “functionally” detention centres with tinted windows, a lack of fresh air, guards and restrictions on freedom of movement, the Federal Court was told on Tuesday.
The court is being asked to decide whether the Commonwealth acted unlawfully by detaining Kurdish refugee Mostafa Azimitabar in two Melbourne hotels in a case that could pave the way for dozens of other detainees to seek compensation.
Mostafa Azimitabar outside the Federal Court on Tuesday.Credit:Scott McNaughton
Azimitabar was detained in the Mantra Bell City in Preston for 13 months and the Park Hotel in Carlton for one month.
The Park Hotel in Swanston Street made international headlines in January when Serbian tennis great Novak Djokovic spent five nights detained there after his visa was cancelled during the Australian Open over a COVID-19 vaccination stoush with the government.
The Federal Court action began on Tuesday – the ninth anniversary of former prime minister Kevin Rudd resuming indefinite offshore detention for people who seek to come to Australia by boat.
Azimitabar, who arrived at Christmas Island on July 25, 2013 – six days after Rudd’s decree took effect – was rushed to Australia for emergency medical treatment on November 11, 2019, after being detained in Papua New Guinea at Australia’s behest for more than six years.
Novak Djokovic was the most high-profile involuntary guest at the Park Hotel in Carlton.Credit:Chris Hopkins / Getty
He and hundreds of others medically evacuated from offshore detention in PNG and Nauru on the advice of doctors under the short-lived Medevac laws were kept in hotels that an officer acting on behalf of the immigration minister approved as an “alternative place of detention” (APOD).
Azimitabar’s legal team argues the immigration minister did not have the power to approve the hotels being used as detention facilities.
If that argument does not persuade the court, they will argue that if the minister does have the power to approve hotels being used as detention facilities, the approval was not given lawfully because former minister David Coleman and former acting minister Alan Tudge delegated those approvals to department officials.
“It was done,” barrister Lisa De Ferrari, SC, told the court, “because hundreds of people were taken to Australia from Manus Island and Nauru because of medical needs which could not be met in those offshore processing centres.
“They did this because that’s what they wanted to do … instead of having [detainees] in the community and being able to attend medical appointments as they needed for their health reasons, they [the government] wanted to have an element of punishment. They did it because they wanted to, not because it was reasonable … There [were] many other options that they could exercise.”
The Morrison government in 2019 moved to designate the Mantra Bell City as an APOD. In December 2020, when the contract for Mantra expired, a delegate for then-acting immigration minister Alan Tudge designated the Park Hotel in Carlton as an alternative place of detention.
The Commonwealth argues it was acting within its powers to designate the hotels as alternative places of detention.
Justice Bernard Michael Murphy told the court that his personal view was that there “must have been a better way” to detain refugees than in hotels with tinted windows, little sunshine and no fresh air.
However, he said his view was “neither here nor there” when it came to whether the government had proper authority to designate the hotels as APODs.
The hearing continues on Wednesday.
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