Dozens of men were suddenly released from hotel detention. Behind the scenes, a tireless fight goes on

Peter Dutton has claimed the recent release of close to 60 refugees was simply about cutting costs, but lawyers acting for the detainees say there is much more to the story.

Refugee Mostafa Azimitabar walks free after being released from the Park Hotel in Melbourne.

Refugee Mostafa Azimitabar walks free after being released from the Park Hotel in Melbourne. Source: AAP

A secretive ordeal stretched over the better part of a decade was, for about 60 refugees and asylum seekers, over without warning in a matter of days. 

Across seven years the group had been detained in squalid offshore camps housed on remote islands, locked-up inside detention centres on the mainland, and, finally, shut inside inner-city hotels. 

The ordeal ended when the Australian government did something many thought it would never do: releasing the group, who came to the Australian mainland under the now-repealed Medevac legislation, into the community on six-month temporary visas where they will be able to live freely for the first time in years. 

For those unaware of the intricate battle being waged in private to have the detainees let out of indefinite detention, it seemed to be a radical reversal of the Australian government's rusted-on mantra that asylum seekers who arrive by boat will never be allowed to settle in Australia.

Refugees inside the Park Hotel in Melbourne gesture to protesters outside.
Refugees inside the Park Hotel in Melbourne gesture to protesters outside. Source: AAP

Released without warning

On 20 January, the first lot of , a makeshift immigration detention centre where they have lived for just over a month - after being moved from another hotel-turned-detention centre in Preston, an outer suburb of Melbourne. 

A day later, close to 20 more were freed from the same hotel on six-month bridging visas. The following week, at least .

The men were among 192 people transferred to the mainland from Papua New Guinea and Nauru under the now-repealed Medevac laws, passed in February 2019.

The short-lived and politically controversial Medevac laws gave doctors additional power to determine when detainees should be transferred to Australia for medical treatment.

Mostafa Azimitabar, an asylum seeker and musician, was among those being released after spending 2,737 days - or more than seven years - detained in various locations.  

"I believe the power of the people can crumble the walls of oppression and my freedom today is proof," he wrote at the time. 

Official statements released by the Department of Home Affairs in the wake of the releases were opaque and shed little light the sudden policy shift. 

Home Affairs Minister Peter Dutton eventually said it was simply a matter of cost-cutting.

“It’s cheaper for people to be in the community than it is to be at a hotel, or for us to be paying for them to be in detention,” he told .

“If they are demonstrated not to be a threat, or that’s the assessment that has been made by the experts, then it is cheaper for them to go out into the community until they can depart.”

'The minister doesn't know what to do'

A by the Asylum Seeker Resource Centre, Save the Children, and GetUp estimates the cost of Australia's offshore processing and onshore mandatory detention policies between 2016 and 2020 was $9 billion. 

The detention of a Tamil family-of-four from the small Queensland town of Biloela on Christmas Island between 30 August 2019 and 31 October last year cost $3.9 million alone, according to figures provided in Senate estimates.

Lawyers acting on behalf of the Medevac transferees say there’s a lot more to the story than cost - including complex and ongoing legal battles seeking to prove the detention of the men in Australia was unlawful.

Protesters are seen outside the the Park Hotel in Melbourne, Saturday, January 09, 2021. (AAP Image/Erik Anderson) NO ARCHIVING
Protesters outside the the Park Hotel in Melbourne. Source: AAP

Migration agent Noeline Harendran, who represents the majority of the almost 200 detainees brought to Australia under Medevac, said the hotel detention scheme was rapidly becoming an intractable problem for the government. 

“It looks like the Minister doesn’t know what to do with these people," she told SBS News. 

“He [Mr Dutton] is completely contradicting what he has actually been saying about these men for the past eight years. For the past eight years, we’ve only been told that they were rapists, paedophiles, and murderers, and all of the sudden they’re safe enough to live with us in the community.”

Mr Dutton and had repeatedly warned the Medevac legislation would make the government powerless to stop dangerous people coming to Australia, despite a security clause that allowed the Minister to override doctor's recommendations. 

In February 2019, Mr Dutton told : "Allowing people to come into our country, who have serious allegations of sexual assault, or being involved in sexual relationships with young girls, one person has been accused of murder out of Iran, under the Labor party bill, or now law, we cannot stop that person from coming in."

Ms Harendran and lawyer Daniel Taylor were behind the release of seven refugees from hotel detention in December, including Kurdish refugee Farhad Bandesh.

Those seven were the subject of legal action with potentially huge significance, after a major Federal Court ruling in September used a centuries-old legal principle to secure the release of Ahmed Mahmoud, a 29-year-old from Syria who had been detained for six years after arriving in Australia as a child.

In their ruling on AJL20 v The Commonwealth the court accepted habeas corpus - which is used to rule on whether the detention of a person by the state is unlawful - and used it to scrutinise the government’s decisions.

Fundamentally changes indefinite detention

Lawyer Alison Battisson, who was involved in the case, said it was impossible to underplay the significance of the September ruling. 

"[It] fundamentally changes everything about indefinite detention," she told SBS News. 

“So we are going to keep going”.

Following the ruling, Ms Battisson said a large number of lawyers began writing letters to Home Affairs explaining that you can only detain someone under the Migration Act for a purpose, and that purpose must be pursued.

Ms Harendran and Mr Taylor said the men released last year were let go shortly before their cases were due to be tested in court. 

The breakthrough ruling coincided with the coronavirus pandemic, which meant deporting the detainees became difficult, if not impossible.

The majority of men have also been found to be refugees, meaning that cannot lawfully be returned to their country of origin. 

Ms Harendran and Mr Taylor have since used the ruling - which will be appealed in the High Court this year - as inspiration for more than 100 separate legal actions.

They are trying to show the ongoing detention of the asylum seekers and refugees is unlawful because their requests to be returned to Papua New Guinea and Nauru had not been acted on.

The pair say they have been “flooded” with requests for help from Medevac detainees.

Ms Harendran described it as like a bushfire.

“All of a sudden my phone stopped receiving messages because it was full,” she said.

“So for all this to come out now, there was some sort of reason and it seems quite evident to us that the litigation process we started was fruitful,” she said. 

Aside from the complex legal situation, there are other factors believed to have contributed to the release of the refugees and asylum seekers. 

These include changing public attitudes resulting from the obvious comparison between the refugees in years-long hotel detention and mandatory hotel quarantine brought in for returning overseas travellers. 

The hotels, designated Alternative Places of Detention or APODs by the government, have also been the site of near-daily protests calling for the release of the men.

"It is clear that the months-long protests of the people detained, and those supporting them outside, had a serious impact," migration lawyer Sanmati Verma told SBS News.

She said releases were likely due to a combination of growing political pressure, the government's inability to either remove or arrange medical treatment for people, the growing crowding in immigration detention centres as a result of COVID-19, and the legal actions brought on behalf of people in detention.

"There is a serious question about the lawful basis for the ongoing detention of people who cannot be removed from Australia, who are not receiving medical treatment, and who are not otherwise being considered for a visa," she added. 

"It is clear that more releases need to occur."

The Department of Home Affairs has repeatedly said they do not comment on individual cases, making it almost impossible to say for certain what contributed to their decision to release those 60-or-so detainees.

“It’s an incredibly hard system to find out what’s going on,” Ms Battisson said.

“I’ve never come across a democratic institution that puts up so many barriers to finding out what’s happening around the fundamental right of liberty. It is really bizarre.” 

Mystery surrounds those still detained

It is unclear why some detainees have been chosen for release, as opposed to about 12 men still detained in Melbourne's Park Hotel, many more in Brisbane’s Kangaroo Point hotel detention and others in immigration detention centres across the country.

A Department of Home Affairs spokesperson has previously told SBS News anyone who arrived in Australia by boat would not be permitted to settle permanently and encouraged Medevac transferees to finalise their treatment so they can continue their journey to settlement in a third-country or return to Papua New Guinea, Nauru or their home country.

“More than a third - but less than a half - have been released of the Medevac cohort,” Mr Taylor said.

“So there’s still a long, long, long way to go.”

The Department of Home Affairs did not respond to a request for comment. 

9 min read
Published 2 February 2021 at 12:17pm
By Maani Truu