Azimitabar v Commonwealth of Australia [2023] FCA 760

Federal Court of Australia

Azimitabar v Commonwealth of Australia [2023] FCA 760 File number: VID 177 of 2021

Judgment of: MURPHY J

Date of judgment: 6 July 2023

Catchwords: MIGRATION – applicant transferred to Australia for psychiatric assessment and treatment and detained in a hotel – whether subpara (b)(v) of the definition of "immigration detention" in s 5(1) of the Migration Act 1958 (Cth) empowered Minister to approve 'another place' of immigration detention – whether power in subpara (b)(v) of the definition of "immigration detention" to approve 'another place' of immigration detention was impliedly limited such that it did not include power to approve a de facto detention centre – whether hotels were lawfully approved as places of immigration detention – whether the applicant's detention in the hotels was unlawful. CONSTITUTIONAL LAW – whether lawfulness of immigration detention depends upon whether expenditure on the place of detention is properly authorised – whether the Commonwealth's contracting and expenditure on the hotels as places of immigration detention was lawfully authorised by executive power under s 61 of the Constitution – whether the Commonwealth's contracting and expenditure on the hotels as places of immigration detention was lawfully authorised by s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) and regulations

Legislation: Constitution s 61 Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Financial Framework (Supplementary Powers) Act 1997 (Cth) s 32B Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) Financial Management and Accountability Act 1997 (Cth) Migration Act 1958 (Cth) ss 5, 14, 46A, 46B, 48B, 92, 93, 189, 196, 197AB, 198AD, 198AH, 198B, 198C, 253, 273, 496 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) s 5AA Migration Legislation Amendment Act 1989 (Cth) ss 5G, 59, 92, 93 Migration Amendment Act 1992 (Cth) ss 3A, 11, 38, 54L, 54K, 54W, 54ZD, 54Z Migration Reform Act 1992 (Cth) Migration Legislation Amendment Act 1994 (Cth) ss 4, 189, 196, 198 Financial Management and Accountability Regulations 1997 (Cth) Financial Framework (Supplementary Powers) Regulations 1997 (Cth) reg 16 Migration Regulations 1994 (Cth) reg 2.43