2. Background 2.1 Immigration detention in Australia Immigration detention is mandatory in Australia for all unlawful non-citizens.8 Once they are detained, an unlawful non-citizen must remain in detention until they are either granted a visa or removed from Australia.9 The detention of an unlawful non-citizen is not based on an individual assessment of the need for detention, or an assessment as to whether the individual concerned poses an unacceptable risk to the community. The Commission has previously recommended that closed immigration detention should only be used in circumstances where it is strictly necessary to manage unacceptable risks to the community.10 arrangements were in place in Papua New Guinea until the end of 2021, and continue to operate in Nauru. The Commission has consistently expressed concerns about Australia’s off-shore processing arrangements, and emphasised that transferring asylum seekers to third countries does not release Australia from its obligations under international human rights law.14 Refugees and asylum seekers subject to offshore processing who have been transferred to Australia are defined as ‘transitory persons’ under the Migration Act.15 A transitory person may be brought to Australia for a temporary purpose,16 which may include receiving medical treatment that is unavailable offshore. While in Australia, transitory persons are subject to mandatory immigration detention, and are required to return to a regional processing country once the temporary purpose for which they were brought to Australia is completed. Unlawful non-citizens subject to closed immigration detention are usually detained in purpose-built immigration detention facilities, with seven such facilities being in operation as at February 2023.11 In some circumstances, individuals can be released from closed immigration detention facilities into alternative, community-based arrangements. This may include release on short-term visas (such as a Bridging visa E) or a residence determination, where the Minister determines that a person may reside in a specified place rather than being held in a detention facility.12 Both of these options involve the Minister exercising a legal power that is personal, non-compellable, and discretionary. Between February – December 2019 the ‘Medevac law’ was in operation, providing a legislative pathway for refugees and asylum seekers held in offshore detention to be transferred to Australia for urgent medical treatment.17 There were 192 transitory persons temporarily transferred to Australia under the Medevac law, referred to throughout this report as the ‘Medevac cohort’.18 They were generally detained at hotel APODs upon their initial transfer to Australia. The Australian Government also operates an offshore processing regime, which involves transferring asylum seekers to third countries for their claims to be processed.13 Regional processing In addition to established immigration detention centres, the Migration Act also provides for the Minister to approve (in writing) other places being 2.2 History of APODs used as detention facilities.19 These Alternative Places of Detention (APODs) are intended to be used for people who have particular needs that cannot be met within existing detention centres, The Use of Hotels as Alternative Places of Detention (APODs) • 2023 • 9