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A triumph for the law

23 Aug 2007
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Kevin Andrews acted precipitately and in error on Mohamed Haneef, writes ANDREW LYNCH

YESTERDAY’S decision by the Federal Court to quash the revocation of Dr Mohamed Haneef’s visa throws the government’s role in the affair back under the spotlight. Not only does the decision show that Immigration Minister Kevin Andrews mishandled his intervention in the case, it also highlights the perils of politicians embroiling themselves in continuing criminal investigations, and the importance of judicial review.

Haneef was charged under Australian law with the crime of recklessly providing support to a terrorist organisation, after being held for twelve days by police under special new anti-terrorism powers. The factual basis for the charge was his giving to his second cousin, Sabeel Ahmed, his mobile phone SIM card when he left England to start work at a hospital on Queensland’s Gold Coast. Sabeel and his brother Kafeel were both implicated in the unsuccessful terrorism attacks in London and Glasgow in early July.

Haneef’s application for bail was successful, despite strong opposition from the Commonwealth, which asserted facts later shown to be incorrect - namely that the SIM card was recovered from the wreck of a Jeep used in the terrorist attempt. There is a presumption against the granting of bail for terrorism suspects, so Haneef’s win was an early indication that the case against him was a far from compelling one.

That should have been a warning to Andrews, whose decision to revoke Haneef’s visa, just hours after bail was granted, provoked a storm of protest. Its immediate effect was to ensure that even if Haneef met his bail conditions he would still be denied his liberty by being placed in immigration detention.

The immigration minister invoked his discretion to revoke Haneef’s visa because Haneef failed the “character test.” Section 501 of the Migration Act gives a number of grounds on which this may occur. Andrews resorted to what is unquestionably the weakest - that Haneef had associations with people whom the minister “reasonably suspects” of involvement in criminal conduct.

The alternative grounds under which an individual may fail the character test focus squarely on his or her personal criminal conduct or the risk they pose to the Australian community.

But, as Justice Spender made clear in yesterday’s decision, those other provisions must necessarily affect how the discretion used by the minister is understood. The judge found that the test that Andrews applied was wrong in that he did not require a link between Haneef’s undoubted “association” with his second cousins in Britain and any possible criminality on his own part.

The minister had relied on the Federal Court’s decision in the case of Wai Kuen Chan in 2001 to argue that any association is sufficient to satisfy the test. He pointed to Haneef’s family connection to the two Ahmed brothers and the facts that Haneef had stayed at a boarding house with Sabeel Ahmed (to whom he later gave his SIM card), that he had borrowed money from Kafeel and that he had engaged in internet chat-room conversations about family matters.

Spender said the court’s view of the legislation in the Chan case was wrong and that an association based on facts of this sort could not support a decision to cancel a visa. Instead, the association itself had to “reflect adversely on the character of the visa holder.” This would not be the case where it arose from “professional relationships, or those which are merely social or familial.”

In short, the decision yesterday rejects use of this ground of the character test when the facts relied upon to show the necessary association fail to disclose that it is anything other than an innocent one.

Spender said that had Andrews relied on other facts in exercising his discretion - that Haneef was a person of interest to the British police in their investigations and also that he had been charged with a criminal offence under Australian law - then that would have enabled him to conclude that the association between Haneef and the Ahmed brothers went beyond a purely innocent familial relationship.

However, as the judge acknowledged, neither of those additional facts, which might have supported the minister’s discretion, exist now. This is a salutary lesson for government members who are tempted to act precipitately. Haneef apparently ceased to be of importance to the British investigation soon after the Metropolitan Police became aware of his existence, and the Australian agencies dropped his charge under the Criminal Code a few weeks ago in an embarrassing backdown. If anything, the “case” against Haneef only continues to get weaker, with fresh revelations yesterday that Sabeel Ahmed, the relative he was charged with supporting, had no advance knowledge at all of the terrorist activities of his brother Kafeel.

Intervening in the midst of an unfolding criminal justice process is risky. Not only is this an unwelcome complication to the work of investigating and prosecuting authorities, it involves judgements about facts that are yet

to be properly established - and which may collapse upon further scrutiny.

More broadly, Spender was emphatic that the rule of law requires that ministers, even when acting to protect national security, do not use the powers conferred on them by parliament erroneously. It is the role of the courts to ensure that limits on executive power are respected.

The overturning of a ministerial discretion exercised in the absence of any facts that the person adversely affected had anything other than an innocent connection with suspected wrongdoers is an important example of the rule of law in action.

Andrew Lynch is Terrorism and Law Project Director at the Gilbert + Tobin Centre of Public Law, UNSW.

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Published year only: 
2007
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