Moz wearing sunglasses, standing out the front of the federal court. to his left is Michael Bradely from marque lawyers, and to his right is Tim Oconner from Amnesty International

Legality of all of Australia’s APODs (including MITA/BITA/AITA) now at centre of Federal Court battle

A two-day hearing in the Federal Court of Australia in Melbourne has closed today with dramatic revelations that question the legality of many immigration detention facilities in Australia.

The case examined the legality of the Australian Government’s use of hotels as Alternative Places of Detention (APODs) to detain Mostafa Azimitabar (Moz) and hundreds of other refugees and asylum seekers.

During the hearing, Justice Murphy heard the argument that the Migration Act does not grant the Commonwealth the power to detain refugees and asylum seekers in hotels and, therefore, Moz’s detention for more than a year in the Mantra and the Park hotels was unlawful.

Moz said, “It was empowering to finally get my chance in court over recent days to challenge the Government that has treated me so cruelly. I want justice for my brutal treatment and although this legal matter attacks only one part of the issue, it is important that we fight their cruel policy on every front possible”.

The legal argument rests on the notion that the provisions within the Migration Act that the Government relied on to create APODs were contained within the definitions section of the Act and did not contain the required legal power. However, during the hearing it was revealed that the Government has relied on these same provisions to create other immigration detention facilities such as the Melbourne Immigration Transit Accommodation (MITA), Brisbane Immigration Transit Accommodation (BITA) and Adelaide Immigration Transit Accommodation (AITA).

Today’s dramatic revelation has significant potential implications. Because the MITA and other Immigration Transit Accommodation facilities have been established in the same way as the Mantra and Park Hotels, the legality of these immigration detention facilities are now at the centre of the judge’s deliberations.

“The question of legality of establishing many of Australia’s immigration detention facilities has huge implications for the brutal system of indefinite detention in Australia. If we are successful, thousands of people detained in Immigration Transit Accommodation will have been detained unlawfully.”

Tim O’Connor, Impact Director at Amnesty International Australia.

As of 31 March 2022, there were 258 people detained at the Melbourne Immigration Transit Accommodation, 101 people at Brisbane Immigration Transit Accommodation, 25 people at the Adelaide Immigration Transit Accommodation and 196 people in APODs on Christmas Island.

Background

Moz Azimitabar was detained offshore and in Australia for almost eight years. He is seeking compensation from the Australian Government for what he argues is his unlawful 14 month detention in two Melbourne-based hotels after he was transferred from Papua New Guinea to Australia in 2019 on medical grounds. He was released from the Park Hotel on a bridging visa on 21 January 2021. His time locked up in makeshift hotel APODs, where he was unable to go outside, exercise properly or open a window, compounded by six years trapped in offshore detention in Papua New Guinea, have taken a terrible physical and emotional toll.

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