Azimitabar v Commonwealth of Australia [2023] FCA 760

Azimitabar v Commonwealth of Australia [2023] FCA 760

Subpara (b)(v) of the definition of 'immigration detention' in s 5(1) of the Migration Act 1958 (Cth) impliedly confers power on the Minister to approve in writing 'another place' of immigration detention; the hotels were lawfully approved, and the lawfulness of detention does not depend on whether Commonwealth's contracting and expenditure was lawfully authorised. The Minister's power under subpara (b)(v) was not limited to exclude de facto detention centres. Accordingly, the applicant's detention was lawful and the application is dismissed.

Parties
Applicant: Mostafa Azimitabar; Respondent: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
06 July 2023
Procedural Posture
Originating Application / Judgment After Final Hearing
Outcome
Application dismissed
Legal Topics
Immigration Detention, Ministerial Powers, Statutory Interpretation, Executive Power, Unlawful Detention, Financial Framework and Expenditure, Delegation of Powers
Administrative Law Constitutional Law Migration Law Human Rights Law Immigration Detention Ministerial Powers Statutory Interpretation Executive Power +3 more

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Parties

Mostafa Azimitabar

Applicant

Commonwealth of Australia

Respondent

Procedural Posture

Originating Application / Judgment After Final Hearing

Legal Issues

  1. 1 Whether the Minister had power under subpara (b)(v) of the definition of 'immigration detention' in s 5(1) of the Migration Act 1958 (Cth) to approve 'another place' of immigration detention
  2. 2 Whether the power to approve 'another place' was impliedly limited so as to exclude de facto detention centres
  3. 3 Whether the Commonwealth's contracting and expenditure on hotel detention was lawfully authorised by executive power or statute

Ratio Decidendi

Subpara (b)(v) of the definition of 'immigration detention' in s 5(1) of the Migration Act 1958 (Cth) impliedly confers power on the Minister to approve in writing 'another place' of immigration detention; the hotels were lawfully approved, and the lawfulness of detention does not depend on whether Commonwealth's contracting and expenditure was lawfully authorised. The Minister's power under subpara (b)(v) was not limited to exclude de facto detention centres. Accordingly, the applicant's detention was lawful and the application is dismissed.

Court Disposition

Application dismissed

Orders

  • The application be dismissed.