A refugee is suing the Commonwealth for damages on the grounds that imprisoning him in hotels was actually illegal due to a bureaucratic technicality — which has pretty huge implications for other asylum seekers still detained.

Mostafa “Moz” Azimitabar is a Kurdish refugee who spent more than six years in our country’s hellish offshore detention regime in Papa New Guinea. He was brought to Australia for a medical emergency in 2019 under the now-repealed Medevac policy. Yes, our government really killed a law designed to help sick refugees.

The Kurdish musician was meant to be transferred for medical treatment when he arrived in Australia. Instead, he was left to languish in two different Melbourne hotels for 15 months — the Mantra and Park hotel — which effectively functioned as dark, mostly windowless prisons that isolated him from the outside world. He was finally released on a bridging visa in January 2021.

Now, Azimitabar is taking the Commonwealth to Federal Court on the grounds that it was illegal to put him in hotel detention and he’s seeking damages for the intense trauma he endured.

“It’s important that I have my human rights,” he said, per The Guardian.

“They just pointed at me [and said] ‘you don’t have rights, you are illegal, you are dangerous’.

“The way I received this kind of image from the politicians who locked me up there, it’s connected to trauma. They are hurting me with this.”

The TL;DR on his case is that, essentially, only an immigration minister can approve the use of hotels as detention facilities. And they have to do so in writing.

According to The Migration Act, “unlawful” non-citizens (ugh, when will we learn there’s no such thing as illegal asylum seekers!!!) who do not have a visa must be detained in a detention centre, prison, remand centre, police station or a police watch house. OR another place approved in writing by the immigration minister specifically.

You know what’s not in that list? Hotels.

Azimitabar’s lawyers are alleging that, across five occasions in 2019 and 2020, then-Immigration Minister David Coleman and acting minister Alan Tudge delegated the responsibility of detaining refugees to officers, and *they’re* the ones who approved hotels to be used as detention centres.

Meaning any refugees and asylum seekers detained in hotels by those officers have been done so illegally, since it wasn’t approved in writing specifically by the immigration minister.

This is obvs huge not just because Azimitabar could win damages for being illegally detained, but it would mean all the other asylum seekers detained alongside him could also sue for illegal detention.

Side note: how fucked is it that we have to find technicalities in bureaucratic decision-making just to challenge the detention and torture of refugees? I’m living for the day we as a country realise that actually, maybe we should just stop imprisoning people for the crime of *checks notes* fleeing persecution? Azimitabar was brought to Australia for medical treatment, FFS! This is truly a cruel fkn nation.

The Commonwealth, of course, denies it illegally detained Azimitabar.

It’s lawyers argue the officers who approved Azimitabar’s detention did so with whatever permissions they needed to and that it was all done right by the law.

They’re also arguing that the officers are covered by an executive power in the constitution which they believe allows them to detain refugees in hotels because it’s “necessary or reasonably incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect”.

Azimitabar’s case will take his case to court on Tuesday and it’s expected to be heard over two days.

Image: Getty Images / Darrian Traynor