A refugee who spent 14 months locked inside two Melbourne hotels has alleged he was unlawfully detained as the immigration minister did not formally approve the use of hotels for detention.
Mostafa Azimitabar, who is Kurdish Iranian, was detained on Christmas Island after trying to arrive in Australia by boat in 2013. He was brought to Australia in November 2019 to receive medical attention.
However, instead of being transferred for treatment, he was detained at the Mantra Hotel for 13 months and the Park Hotel for one month.
Mr Azimitabar's barrister Lisa De Ferrari told the Federal Court his detention was unlawful because the immigration minister himself didn't approve in writing of the hotels being used as detention facilities.
She said then-minister Alan Tudge delegated the responsibility to officers and claimed any money spent setting up the Mantra and Park hotels as detention centres was not authorised by law.
"Mr Azimitabar's detention, and that of many like him at the Mantra and the Park Hotel, was unlawful," Ms De Ferrari told the court on Tuesday.
"The place at which you detain someone ... under the Australian Constitution has to be a place where the Commonwealth actually has an authority to detain you and an authority to do so by the expenditure of money.
"There were other ways in which he could have been detained, he could have been detained at a detention centre."
Under the Migration Act, unlawful non-citizens can be detained in a detention centre, transit accommodation, prison, police stations or another place approved in writing by the immigration minister.
Australian Border Force officer Jared Watts, who gave evidence by videolink, said the Park Hotel was set up to keep detained refugees separate for "operational quarantine" due to the COVID-19 pandemic.
"The Park Hotel was established conceptually to be used in immigration clearance and also for periods of what we termed operational quarantine for COVID risks," he told the court.
He said he gave the Department of Home Affairs information about alternative detention places in 2020, to help address capacity issues within immigration detention after COVID-19 forced borders to close.
"I can't make any decisions, I have no powers, that's a ministerial decision," he said.
Lawyers for the federal government rejected Mr Azimitabar's allegations, arguing his detention and the expenditure was lawful and permitted under the government's executive powers.
Mr Azimitabar, who was released into the community on a bridging visa in January 2021, is seeking an unspecified amount in damages.
The hearing before Justice Bernard Murphy continues on Wednesday.