Hotel detention may be lawful but it’s not humane

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The law and justice can sometimes be very different things.

This was highlighted yesterday when the Federal Court handed down its decision in the case of Mostafa Azimitabar v Commonwealth of Australia, upholding the legality of hotels being used as Alternative Places of Detention (APODs) for asylum seekers in Australia.

Mostafa (Moz) Azimitabar is a Kurdish-Iranian refugee who attempted to reach Australia by boat in 2013. He was then detained in immigration detention for almost eight years, initially offshore on Manus Island and then in Australia. This included being detained for more than 14 months in both the Mantra Bell City Hotel and Park Hotel in Melbourne after being transferred to Australia for medical treatment in 2019.

The case before the Federal Court argued that his detention in Melbourne hotels was unlawful, primarily on the basis that the Migration Act does not give the minister the power to approve hotels as places of detention. Justice Murphy rejected that argument, finding that in this case the detention in hotel APODs was lawful under Australian law.

This decision was necessarily focused on assessing the technical legal arguments about powers under the Migration Act. Justice Murphy expressly noted that “the decision in this case does not turn on the humanity of the applicant’s detention”. While the end result confirms hotels can be lawfully used to detain asylum seekers in Australia, the decision does not represent a broader endorsement of hotel detention as good public policy.

In fact, the court specifically questioned “the lack of thought, indeed lack of care and humanity” in detaining a person under those conditions. Justice Murphy expressed the view that “as a matter of ordinary human decency” Azimitabar should not have been detained in hotels in the conditions that he was for such a long time.

This decision by the Federal Court has confirmed that the government can lawfully use hotels to detain people in Australia. That doesn’t mean that it should.

Last month, the Australian Human Rights Commission published a report into the use of hotels as APODs. We found that hotels are simply not suitable to use for lengthy periods of detention and that they should only ever be used in exceptional circumstances and for the shortest possible time.

Our report made 24 recommendations to address human rights concerns that we identified during our inspections. These included the fact that individuals detained in hotels often have insufficient access to fresh air, exercise or outdoor spaces. Most individuals to whom we spoke spent the majority of their time confined to their rooms with little to do, which fuels boredom, frustration and the loss of hope.

Azimitabar has previously described the Mantra Hotel as a “torture centre” and his room as an “invisible coffin“.

Prolonged detention in a hotel APOD has a significant impact on a person. Individuals described to us their worsening physical and mental health, and difficulties accessing necessary medical care. Community groups working with asylum seekers suggested to us that some of the individuals released from hotel APODs had been “broken beyond repair” by their time in detention.

A strong and effective border control system does not require people to be treated this way.

In more recent times, the overall number of individuals detained in hotel APODs has been reduced, as well as the average length of time that people are detained. At the time of our inspection visits in mid-2022, there were about 90 people detained in APODs. By April 2023, this had reduced to 44 people.

These are welcome developments, but they do not resolve the commission’s underlying concerns about hotel APODs having become a regular part of Australia’s immigration detention system, resulting in ongoing human rights impacts.

The Federal Court has found that it is lawful for the federal government to continue using hotels as places of detention for asylum seekers. Our recent inspection report highlighted the serious human rights consequences that inevitably result.

The mere fact that something is lawful doesn’t make it right.