Former Park Hotel detainee sues federal government

Words by Matt Harvey

After over a year in hotel detention Kurdish asylum seeker and musician Mostafa “Moz” Azimitabar is suing the federal government for damages.

The case could carry consequences for other asylum seekers who have been held in the hotel detention system.

The case is being handled by the managing partner of Sydney-based law firm Marque Lawyers Michael Bradley, who has 25 years practising in litigation and regulatory affairs.

“The case revolves around interpretation of the Migration Act [1958]. We say that the Act doesn’t give the Minister the power to create or maintain these particular facilities as places of detention,” Mr Bradley said.

The case centres around the problem of whether the Migration Act gives powers to create detention in alternative places of detention (APOD). According to Mr Bradley, the Act doesn’t allow for this.

“It doesn’t give the minister any specific powers to create such places and detain people in them,” Mr Bradley said.

“It’s a bit of a technical legal argument whether that power exists at all, if it doesn’t, then the detention is unlawful and anyone who’s been held in an APOD, has been held unlawfully.”

The way the migration act works is that unlawful non-citizens, a person who does not hold a valid visa is an unlawful non-citizen according to Border force, who are in Australia and on Australian territory have to be taken into detention wherever they’re found.

The Act requires they be held in immigration detention and defines what immigration detention is.

The definition section of the Migration Act lists a number of different types of places which can constitute immigration detention and they include;

Detention centres which are formally established under the Act, e.g. Villawood, and Melbourne Immigration Transit Accommodation (MITA) in Broadmeadows.

Police station, watch house or temporary detention.

If asylum seekers are picked up at sea and held on a vessel that can also satisfy the definition and another place approved in writing by the Minister for Immigration.

“And that’s the bit that they use to justify the creation of APODs, which are established with the minister’s approval,” Mr Bradley said.

If the APOD system was declared unlawful then the government would be required to release anyone who remains in a hotel, however, they would still be held in detention.

A spokesperson for The Department of Home Affairs said the department was aware of the ongoing matter, but declined to comment.

“As the matter is before the Court, it would be inappropriate to comment further,” the spokesperson said.

While Mr Azimitabar is currently out of detention and in the community on a bridging visa, department figures show 78 people are currently held in APODs across the country, 42 of whom are in Victoria.

Some refugees have been confined to hotels for nearly two years, others have been relocated under the Australia-United States Resettlement Arrangement.

Though there is a standing offer from the New Zealand Government to resettle refugees in New Zealand, however the Australian government is yet to take up on the offer.

Due to his status as a non-citizen and the federal government’s rule made in 2013 that anyone who came by boat after that point was prohibited from being given residency, Mr Azimitabar could have his VISA revoked.

While the situation is complicated and the legal arguments technical, there remains a simple desire for an outcome.

“The ideal outcome would be a declaration that this particular form of detention is unlawful and force the government to ensure that where it is holding people in detention that it does it in a lawful way,” Mr Bradley said.

“If the government’s right about this, it could literally make anything, any place, a place of detention and hold people anywhere. And because there’s no regulatory or statutory structure for these APODs, they just exist in the ether.”

“They kind of sit outside the regulated system which is obviously concerning from a human rights perspective. It evokes thoughts of black sites, which is not where we should be.”

Mr Azimitabar will return to court on October 15 where he is expected to receive a hearing date •