Hotels as alternative places of detention

Nicholas George Carroll

September 2023

When we think about immigration detention, we often picture refugees and asylum seekers languishing behind chain-linked fences in prison-like facilities. This is not an inaccurate picture. There are currently seven such facilities operating inside of Australia, as well as one regional processing centre located on the Republic of Nauru, which jointly hold a total of 1,114 people. These prison-like facilities have been a hot topic in the news media, as well as a subject of heated political debate, for at least several decades now. Much of this controversy concerns the ongoing human rights violations that occur inside of these facilities. Time and again we hear about the squalid living conditions, self-harming, sexual assault, and family separation that characterise life for many of these immigrant detainees.

But in addition to these prison-like facilities, the Australian government operates so-called “alternative places of detention” (APODs). The Commonwealth Migration Act provides for the Minister to approve, in writing, locations that are eligible to be used as an APOD. These locations can include, for example, aged care facilities, hospitals, hotels, and mental health facilities. Although APODs have been part and parcel of Australian border enforcement for the past twenty years, the use of hotel APODs in particular has recently fallen under the spotlight—in large part due to Novak Djokovic, the Serbian tennis player, being detained inside of Melbourne’s infamous Park Hotel before the Australian Open last year.

For most of this twenty-year history, APODs were used as a benign alternative for vulnerable groups of migrants whose needs could not be met inside of the prison-like facilities in which they would otherwise be detained. For example: between 2018 and 2019, most of the individuals who were detained in hotel APODs were asylum seekers who had been transferred to the mainland as a part of the Medivac Cohort.

But as the Commonwealth Ombudsman and the Australian Human Rights Commission have explained, in recent years “a practice has also emerged for hotels to be used as APODs to house people, where this does not stem from a specific need of the person being held, but for other reasons, such as relieving overcrowding in other immigration detention facilities.” And one of the consequences of this is that the majority of people who are nowadays detained in hotel APODs are there because they have had their visas cancelled under Section 501 of the Migration Act.

In one sense, this is to be welcomed as a positive development in Australia’s border enforcement policy. Hotel APODs are, after all, less prone to the human rights violations that occur inside of the prison-like facilities. And, perhaps for this reason, the detainees themselves often express that being detained inside of a hotel APOD is preferable to being detained inside of a prison-like immigration detention centre. In light of this, the use of hotel APODs would appear to be in the best interest of the immigrant detainees.

But we are doing a grave disservice to ourselves, as well as to those who are detained, when we compare the benefits of hotel APODs against the most egregiously harmful policy alternative. Of course, all else being equal, it is preferable to be detained inside of a hotel than to be detained in a prison-like detention centre. This much goes without saying. But even so, it is incumbent upon us to step back and to carefully examine the relevant costs and benefits of hotel APODs—and, in so doing, to determine whether there is an even better policy for the government to enact. When we do this, it quickly becomes apparent that the use of hotel APODs, while in many respects preferable to other forms of immigration detention, still imposes significant and predictable costs onto the immigrant detainees.

For one thing, we need to be aware of the length of time that migrants are detained inside hotel APODs. As of 31 July 2022, the average length of time that migrants spend in hotel APODs is 69 days—and the longest continual period of time spent inside of a hotel APOD is 364 days. To be sure, this is a significant (and welcome) decrease from what the average length of detention use to be. As recently as 31 August 2020, the average length of time spent in hotel APODs was 322 days. But even so, 69 days spent inside of a hotel room is a very significant length of time—especially considering that many of these migrants have been detained in other immigration detention facilities prior to being detained in a hotel APOD.

Indeed, one of the reasons why this so concerning is that being detained can have significant long-term effects on one’s mental and physical health. Time and again, research has shown that being detained for as little as two-weeks to three-months significantly increases the chances of developing a whole host of mental health disorders. At the population level, these disorders can include: appetite disorders, clinical depression, generalised anxiety disorder, feelings of hopelessness, paranoid delusions, post-traumatic stress disorder, psychosis, several sorts of sleep disorder, and suicidal ideation. Additional research has shown that the severity of these mental health disorders, as well as the likelihood of developing them, increases in proportion to the length of time that one is detained. These mental health disorders continue to affect the migrants after they have been released from the detention facility. And these disorders have likewise been shown to causally contribute to physical injuries in the form of self-harming and suicide.

Being detained inside of a hotel, rather than inside of a prison-like facility, does nothing to mitigate the risk of developing these mental health disorders and related physical injuries. For example, one person detained inside of a hotel APOD explained to the Australian Human Rights Commission that:

“The sole purpose of being here seems to be to torture. To be made to suffer like this it is not possible for them to be human, they must be aliens. Two or three years ago I could think about life outside, but now I am not capable of envisaging outside at all. I have no imagination; everything is blurry and now can’t see anything.”

While another detainee simply lamented that “I am deeply sad and tired and stay in silence, my heart is full of pain and anxiety. I am shaky and hopeless and don’t know what a normal life is.” These are very harrowing words. And one of the things that they bring to the fore is that, in many ways, being detained inside of a hotel has a unique and particularly devastating effect on the mental health of the detainees.

The Australian government does not provide a complete list of all of the hotel APOD facilities currently in operation—but an estimate has been provided by researchers at the Kaldor Centre for International Refugee Law. This is itself worrying because it limits government transparency and accountability. But given the information that we do have, the hotels that are currently used as APODs are just regular, run-of-the-mill hotels that one might book while travelling on vacation around Australia.

The Australian Human Rights Commission, for example, explains in a recent report that a hotel APOD visited in Brisbane “continues to function simultaneously as a hotel that is open to the public, with only specific floors being used for the purposes of detention. At the time of writing, a standard one-bedroom apartment at the Brisbane APOD could be booked online from approximately $160 per night.”

This might not sound so bad. After all, it is likely that, sometime in the past, you have spent an enjoyable period of time staying in a hotel of this description. Indeed, you may have even been staying in one of these dual-use hotel APODs without knowing it! But what is appropriate for short-term accommodation is not appropriate for long-term immigration detention.

One of the most common complaints made by the people who are detained in hotel APODs is that they are confined to their rooms for the overwhelming majority of the time. This is particularly disconcerting given that the windows in hotel rooms often cannot be opened, meaning that access to fresh air is limited to the small number of occasions when the detainees are permitted to leave the hotel to attend medical appointments and the like. Privacy is also a concern inside hotel APODs due to the continuous presence of security officers in close proximity to the detainees. Finally, the quality of the food inside of the hotel APODs is also a cause for concern. There are, for example, reports of the detainees being served maggot infested food and mouldy bread. As Mustafa Salah, an Iraqi asylum seeker detained inside a Melbourne hotel APOD, explains, “I was just shocked. The food they’ve been delivering is putting people in danger. Even an animal cannot eat this type of food.”

Additional concerns are raised specifically by the dual-use hotels. On 23 December 2021, for example, a fire occurred inside of a Melbourne hotel APOD that caused significant damage to the property. The Australian Human Rights Commission explains that although all of the staff and guests were evacuated, the immigrant detainees were only evacuated to Level 1 and were not escorted from the building itself. Several of the detainees were asthmatic, and one of whom was later hospitalised for smoke inhalation.

So, in light of these concerns, what should we think about the use of hotel APODS?

It is important to acknowledge that there will be a small number of cases where immigration detention is both necessary and justifiable. This will occur when, for example, a migrant poses a significant risk to public health or national security that cannot be feasibly mitigated except by detaining them. Insofar as being detained inside of a hotel APOD is preferable to being detained inside of a prison-like facility, the government ought to detain these risk-imposing migrants in a hotel APOD rather than a prison-like facility (assuming that, in doing so, the government is able to contain or mitigate that risk of harm). But at the same time, the government has moral and legal obligations towards these risk-imposing migrants. And, in virtue of this, the government needs to ensure that the risk-imposing migrants who are detained inside of the hotel APODs are not harmed in the myriad ways that have been listed heretofore. One way for the government to do this is by following the recommendations that have been recently made by the Australian Human Rights Commission.

That being said, though, most migrants do not pose a significant risk to public health or national security. Research has shown that, on the population level, migrants do not pose a greater health risk or security risk compared to the extant political members of a state. And what this means, in practical terms, is that the immigration detention is inappropriate in the strong majority of cases—precisely because migrants do not pose a serious risk of harm to Australia.

So what should the government do with these migrants who do not pose a risk of harm, given that it is inappropriate to detain them in either a prison-like facility or an APOD such as a hotel?

It goes without saying that, to borrow the words of a former Prime Minister, Australia holds a legal right to “decide who comes to this country and the circumstances in which they come.” One of the important corollaries of this is that the Australian government is well within its rights to stop people entering the country without authorisation and to remove those who do so. But there are different ways to do this. And when it comes to these migrants who do not pose a risk of harm, what the government ought to do is release them into the community on a non-custodial measure (such as bail, parole, or a recognisance release order) while it finalises and executes their removal order.

This might sound like a radical proposal. But I am not the first to espouse it, and I am sure that I won’t be the last. And, upon reflection, it is not quite so radical as it might initially seem.

For one thing, non-custodial measures are less harmful than immigration detention. When a migrant is released on bail or parole, for example, they will avoid being harmed in the myriad ways that have been outlined above. In addition to this, releasing migrants on non-custodial measures is significantly cheaper than detaining them in a prison-like facility or an APOD such as a hotel. Finally, multiple studies have shown that the rate of compliance with court and removal proceedings for migrants released on a non-custodial measure is comparable to the compliance rates achieved by immigration detention.

The upshot of this is clear: the use of hotel APODs is in many ways preferable to immigration detention inside a prison-like facility—but better still is a policy of releasing migrants on a non-custodial measure unless they pose a serious health or security risk. Indeed, releasing migrants on a non-custodial measure is better for all relevant parties, and not worse for any of them. It is better for the migrants themselves, better for the taxpayer, and it is no worse for the government’s ability to effectively enforce our borders. The only thing lacking is the political will to act in everybody’s best interests by enacting these changes.

Nicholas is a current PhD Candidate in Philosophy at the Australian National University. His research focuses on the history and ethics of border enforcement—with a special focus placed on the history and ethics of immigration detention in Australia and abroad.