The Australian government’s detention of a refugee in Melbourne hotels for more than 14 months “lacked ordinary human decency” but did not breach federal laws, a court has found.
Mostafa “Moz” Azimitabar, who was detained in two Melbourne hotels, sought damages from the federal government for what he believed was an unlawful detention that left him “dreaming of sunlight”.
The judgment by federal court justice Bernard Murphy was a blow to humanitarian campaigners who argued the detention was cruel and unnecessary, and hoped it may lead to hundreds of compensation payouts.
Murphy ruled the federal government did have the appropriate legal authorisation to detain Azimitabar in two Melbourne hotels, but delivered a scathing rebuke of the policy and said his judgment should not be seen as an endorsement.
“I can only wonder of the lack of thought, indeed the lack of care and humanity, in detaining a person with psychiatric and psychological problems in the hotels [for] 14 months,” Murphy said. “Primarily, in hotel rooms with windows that only opened 10 centimetres and for most of the time, without access to an outdoor area or to breathe fresh air or feel the sun on his face.
“Anyone who endured even two weeks of hotel quarantine during the Covid-19 pandemic would surely understand how difficult it must have been. As a matter of ordinary human decency, the applicant should not have been detained for such a period of time in those conditions.
“The decision in this case does not turn on the humanity of the applicant’s detention, it is about whether the minister had power under the act to approve hotels as places of immigration detention. The minister had, and has, the power to do so.”
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Australia’s Department of Home Affairs 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.
Azimitabar, a Kurdish musician, fled persecution in Iran and was held in Australia’s offshore detention regime in Papua New Guinea for more than six years. He was seriously ill and brought to Australia under the medevac laws for treatment in Melbourne.
Azimitabar had severe asthma and was struggling to breathe even before he was transferred to Australia. Without fresh air, his health deteriorated while in hotel detention. He claimed he was repeatedly searched and handled by guards and was treated as a dangerous criminal, who had no rights.
Outside court, Azimitabar said he was disappointed by the decision and would take time to consider it, given the judge’s strong condemnation of his treatment.
“I am very proud of myself and every single strong activist who has helped me and other refugees,” Azimitabar said. “I think there are a lot of things in law that need to be changed. I will obviously continue to fight with your amazing support.”
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Azimitabar was supported in court by the former Australian of the Year, Grace Tame, who consoled him after the judgment was delivered. Several of his support team, including campaigners from Amnesty International, were visibly upset by the decision.
Azimitabar’s lawyer, Michael Bradley from Marque Lawyers, said his team would consider whether to appeal the decision and contest costs, arguing the case was clearly in the public interest.
“The judge’s comments [about Azimitabar’s treatment] were extraordinary,” Bradley said. “We can safely say that the judge was moved and sufficiently angry at what happened to Moz that he felt that statement should be on the public record.”
The immigration minister, Andrew Giles, said he would carefully consider the decision but stressed there was “often a need for particular forms of immigration detention facilities that meet the needs of particular individuals, like those who have disabilities or are in need of medical treatment”.
“[The judge’s] remarks go to not to the practice, or that form of detention, but the manner in which it was implemented under the former government and particularly the extraordinary length of time that individuals were kept there,” Giles said.
“This government, and myself as minister, have been focused on using immigration detention as a last resort, only when it is necessary.”