Kurdish refugee sues Australian government for alleged unlawful imprisonment in Melbourne hotels

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A refugee detained for more than a year in two Melbourne hotels is suing the federal government for damages, arguing its use of hotels for immigration detention is illegal.

Mostafa “Moz” Azimitabar is suing the Australian government in the federal court for unlawful imprisonment. He is seeking damages for his detention over 14 months in Melbourne’s Park and Mantra hotels.

“I’m challenging the government because my rights have been violated,” Azimitabar told the Guardian.

“The government locked me up illegally in a hotel that they used as a prison. I want my rights back.”

Related: The Iranian refugee writing songs of love from his ‘luxury torture cell’

Australia’s Department of Home Affairs has used commandeered hotels as so-called alternative places of detention – known as Apods – for refugees and asylum seekers brought from offshore detention centres for medical treatment.

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.

Azimitabar’s case, scheduled to be heard by Justice Bernard Murphy on Friday, concerns only his detention. But if the case is successful it would carry implications for the hundreds of people who have passed through hotel Apods and who could similarly pursue thousands of dollars in compensation.

Azimitabar, a musician and member of Iran’s Kurdish minority who fled persecution in his home country, was held within Australia’s offshore detention regime in Papua New Guinea for more than six years. He told the Guardian he suffered in detention on Manus Island, but that he found hotel detention in Australia suffocating. His health deteriorated badly.

“It was really difficult, there were lots of officers around always … and I was under lots of stress.

“After 13 months locked in the Mantra prison without sunlight I was so sick they said they would take me to a better place. But that was a lie, the situation in the Park hotel was much worse.

“In Mantra sometimes I could put my hand out of a small window to touch sunlight with my hand, but in the Park prison, there was a dark glass facing a cement wall, I felt I was in an invisible prison. I couldn’t see trees, or wave to people outside.”

Azimitabar is now living in the Australian community. In February, he wrote to the immigration minister seeking the written approvals establishing the Park and the Mantra hotels as places of detention, as required under the Migration Act. He did not receive a reply.

The statement of claim before the federal court argues that even if there was written ministerial approval, establishing a hotel as an Apod – “with the characteristics of a detention centre” – was still not within the minister’s power under the act. It argues Azimitabar’s detention between 11 November 2019 and 21 January 2021 was unlawful.

Michael Bradley, a managing partner of Marque Lawyers, said Azimitabar’s test case, while limited to his detention, held implications for all of those held in Apods.

“If we are right, his detention in an Apod was illegal and he is entitled to damages for unlawful imprisonment,” Bradley said.

“It is a very technical legal argument but our case is that ... there is nothing in the Migration Act that gives the minister the power to create an Apod. Given that the Apods have many of the features of the detention centre – but are not detention – it needs to be the subject of an express power.”

The home affairs department told the Guardian it was aware of the claim lodged by Azimitabar but “as the matter is before the court it would be inappropriate to comment further”.

Graham Thom, Amnesty International’s Australia refugee rights advisor, said Azimitabar’s case was a vital test “because it highlights why these locations are not appropriate for detention, particularly of refugees, and certainly not the long-term detention we’ve seen of people brought to Australia for medical attention”.

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Thom said the use of hotels as Apods was initially introduced “as a stopgap” to temporarily house refugee families and unaccompanied minors while appropriate accommodation could be found in the community.

But he said it quickly became a long-term measure for holding people indefinitely, particularly those brought from Australia’s offshore detention regime for medical treatment under the short-lived medevac laws.

“The experiences we have seen for people like Moz in Apods over the past 12 months, nearly two years, demonstrates why they are damaging and why it’s not appropriate to detain people in this way.

“We have seen first-hand the physical and mental toll it has taken, keeping people in such a confined area with so little access to any form of exercise, to fresh air, to movement, all of those things that are so important in ensuring that any detention is lawful. These people are entitled to compensation.”

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