FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203
Migration Act 1958 (Cth) ss 501 and 501C
Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255 cited
Baker v Minister for Immigration and Multicultural Affairs (1996) 69 FCR 494 cited
Bropho v State of Western Australia (1990) 171 CLR 1 cited
Re Chan and Minister for Immigration and Multicultural Affairs (2001) 33 AAR 191 cited
Coco v The Queen (1994) 179 CLR 427 applied
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 cited
Gunner v Minister for Immigration and Multicultural Affairs [1997] 50 ALD 507 cited
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited
Minister for Immigration and Multicultural Affairs v Chan (2001) 34 AAR 94 not followed
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 cited
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 cited
Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 cited
Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 cited
R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 cited
MINISTER FOR IMMIGRATION AND CITIZENSHIP v DR MOHAMED HANEEF
QUD284 OF 2007
BLACK CJ, FRENCH & WEINBERG JJ
21 DECEMBER 2007
MELBOURNE (HEARD IN BRISBANE)
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| QUEENSLAND DISTRICT REGISTRY | QUD284 OF 2007 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
|
| AND: | DR MOHAMED HANEEF Respondent
|
| BLACK CJ, FRENCH & WEINBERG JJ | |
| DATE OF ORDER: | 21 DECEMBER 2007 |
| WHERE MADE: | BRISBANE |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
3. The respondent’s applications by notices of motion filed on 8 November 2007 and 12 November 2007 be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
INDEX
Introduction [1]
Factual and procedural background [6]
Statutory framework [26]
The Ministerial Direction [40]
The Issues Paper [46]
The Statement of Reasons [57]
The grounds for review [61]
The reasons for judgment of the primary judge [63]
The orders made by the primary judge [81]
The grounds of appeal [84]
The notice of contention [85]
Legislative history and judicial exegesis [86]
The approach to construction – effects of common
law rights and freedoms [105]
The nature of “association” – construction of s 501(6)(b) [114]
Conclusion [136]
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| QUEENSLAND DISTRICT REGISTRY | QUD284 OF 2007 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
|
| AND: | DR MOHAMED HANEEF Respondent
|
| JUDGES: | BLACK CJ, FRENCH & WEINBERG JJ |
| DATE: | 21 december 2007 |
| PLACE: | MELBOURNE (HEARD IN BRISBANE) |
REASONS FOR JUDGMENT
Introduction
1 Dr Mohamed Haneef and his wife arrived in Australia from India in September 2006. In June 2007 he was an employee of the Gold Coast Regional Health Services at Southport Hospital in Queensland. Following attempted terrorist bombings in London on 29 June 2007 and in Glasgow on the following day, two suspects, both second cousins of Dr Haneef, were arrested. These suspects were Dr Sabeel Ahmed and Dr Kafeel Ahmed.
2 On 2 July 2007 Dr Haneef was arrested by the Australian Federal Police (AFP) and on 14 July 2007 he was charged with having intentionally provided resources in the form of a “subscriber information module” (SIM) card to a terrorist organisation consisting of persons including his two second cousins. He was granted bail on 16 July 2007. Immediately upon the grant of his bail the Minister for Immigration and Citizenship (the Minister) cancelled his visa under s 501(3) of the Migration Act 1958 (Cth) (the Act) on the basis that the Minister reasonably suspected that he did not pass the “character test” and that the Minister was satisfied that the cancellation was in the national interest.
3 The Minister suspected that Dr Haneef did not pass the character test because of his “association” with the Ahmeds. In coming to that view the Minister applied a wide interpretation of the word “association” which did not require any suspicion that Dr Haneef was sympathetic to, or supportive of, or in any way involved in the criminal conduct of which the Ahmeds were suspected.
4 The Minister’s decision was challenged before Spender J who made an order in the nature of certiorari to set it aside. He did so on the basis that the Minister had misinterpreted the character test under the Act. He had applied a test of “association” with persons reasonably suspected of being involved in criminal conduct which was very broad. In his Honour’s view it was wide enough to encompass links that could not conceivably have had any bearing on the visa holder’s character.
5 The Minister appealed against Spender J’s decision. For the reasons that follow, the appeal should be dismissed. The Minister did apply a test of “association” that was erroneous because it was too wide.
Factual and procedural background
6 Dr Mohamed Haneef is an Indian national. He was born on 29 September 1979. He is married and has a daughter who was born on 26 June 2007. In April 2002, he graduated with the degree of Bachelor of Medicine from a medical college in Bangalore. He completed an internship in 2003, then travelled to the United Kingdom where he worked in a number of hospitals between July 2004 and August 2006. He returned to India and then decided to undertake postgraduate training in Australia.
7 Dr Haneef and his wife arrived in Australia on 11 September 2006. He entered on a Subclass 457 Business (Long Stay) (Class UC) visa. The visa expiry date was 30 August 2010. He secured employment with the Gold Coast Regional Health Services at Southport Hospital. In the middle of March 2007 his wife, who was then pregnant with their first child, returned to India so she would have family support during the birth. The couple did not have any family or other support networks in Australia.
8 On 29 June 2007, an event occurred in London which began a chain of events that led to the cancellation of Dr Haneef’s visa and his confinement in immigration detention. At about 1.40 am on 29 June 2007 a bomb was discovered in a green coloured Mercedes car parked outside a nightclub in Haymarket. The device, described as a vehicle-borne improvised explosive device was manually defused. At about 8.00 pm on the same day a blue Mercedes car was found in Park Lane in Mayfair containing a similar device which was also defused. At about 3.15 pm on 30 June 2007 a Jeep Cherokee was driven into the front doors of Terminal One at Glasgow Airport. The vehicle burst into flames. Two persons were found at the scene.
9 Arising out of these events, authorities in the United Kingdom arrested seven persons on suspicion of being, or having been, concerned in the commission, preparation or instigation of an act of terrorism contrary to s 41 of the Terrorism Act 2000 (UK). Advice was provided to the AFP by the Metropolitan Police Service, Counter Terrorism Command, that Dr Haneef was a person of interest to their investigation because of his alleged association with two of the suspects detained by the authorities in the United Kingdom.
10 On 2 July 2007 at about 11.00 pm, Dr Haneef was arrested by the AFP and members of the Queensland Police attached to the Joint Counter Terrorism Team (Brisbane). Under s 3W(1) of the Crimes Act 1914 (Cth)a constable may arrest, without warrant, a person for an offence if the constable believes on reasonable grounds that the person has committed or is committing the offence, and that proceeding by summons would not achieve one or more of a number of specified purposes. Section 3W(2) provides that where a person has been arrested for an offence under s 3W(1) and before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds that the person committed the offence or that holding the person in custody is necessary to achieve one of the specified purposes, then the person must be released.
11 Under s 23CA of the Crimes Act a person arrested for a terrorism offence may be detained for the purpose of investigating whether the person committed the offence or whether the person committed another terrorism offence that he or she is reasonably suspected of having committed. The detention period cannot extend beyond the end of the “investigation period” prescribed by the section. That period is four hours after the arrest unless extended under s 23DA (s 23CA(4)). An investigating official may apply at or before the end of that time, for a period to be specified during which the questioning of the person is reasonably suspended or delayed (s 23CB). On 3 July 2007 a magistrate authorised an extension of the investigating period for 48 hours.
12 On 5 July 2007, in the Brisbane Magistrates Court, Magistrate Gordon heard an application brought by the AFP for an order specifying reasonable time (dead-time) during which suspension or delay of questioning could be disregarded pursuant to s 23CB. His Honour made the order which was sought. On 9 July 2007 the AFP brought a second such application. It was made at about 4.00 pm. Mr Stephen Keim SC appeared on behalf of Dr Haneef. His Honour adjourned the application to 11 July 2007. At the resumed hearing Mr Thomas Howe QC appeared as counsel for the AFP. Magistrate Gordon reserved his decision to 13 July 2007 on which date Mr Howe QC informed him that the AFP had decided not to proceed with the application.
13 On 14 July 2007 at about 9.30 am, Dr Haneef was charged in the Brisbane Magistrates Court before Magistrate Payne with the following offence:
On or about the 25th of July 2006 in the United Kingdom, Mohamed HANEEF did, contrary to section 102.7(2) of the Criminal Code (Cth) intentionally provide resources, namely a subscriber information module (SIM) card to a terrorist organisation consisting of a group of persons including Sabeel AHMED and Kafeel AHMED, being reckless as to whether the organisation was a terrorist organisation.
14 An immediate application for bail was made. The magistrate reserved her decision until 9.30 am on 16 July 2007. On 16 July 2007, at about 10.15 am, she announced her decision, which was to grant Dr Haneef bail. She did so on condition that he:
(a) post a surety in the amount of $10,000, or two sureties in the amount of $5,000;
(b) report to the officer in charge, Southport Police Station, each Monday, Wednesday and Friday, between the hours of 6.00 am and 10.00 pm unless he received the prior written consent of the Commonwealth Director of Public Prosecutions to report elsewhere or at such other times;
(c) notify the Commonwealth Director of Public Prosecutions of a residential address within 24 hours of his release from custody and thereafter to advise in writing the Commonwealth Director of Public Prosecutions within 24 hours of any change of residential address;
(d) not apply for any passport; and
(e) not attend any point of international departure, and not leave Australia.
The matter was adjourned at approximately 11.00 am.
15 On the same day Mr Peter White, the Assistant Secretary, Character Assessment and War Crimes Screening of the Department of Immigration and Citizenship (the Department) sent a minute to the Minister to which was attached an Issues Paper. The stated purpose of the minute was to provide information on Dr Haneef’s case and to seek the Minister’s decisions on whether Dr Haneef did not pass the character test under s 501(6) of the Act, whether it was in the national interest to cancel his visa under s 501(3)(b) of the Act and whether, in those circumstances, his visa should be cancelled. The Minister signed a decisional option at the end of the Issues Paper in the following terms:
I reasonably suspect that Dr HANEEF does not pass the character test AND I am satisfied that cancellation of the visa is in the national interest. I have decided to exercise my discretion under subsection 501(3)(b) to cancel his Subclass 457 Business (Long Stay) (Class UC) visa. My reasons for my decision will be set out in the Statement of Reasons.
He also signed a Statement of Reasons for his decision.
16 Mr Peter Russo, Dr Haneef’s solicitor, was informed at about 1.45 pm by members of the media that the Minister was about to hold a press conference to announce the cancellation decision. His firm had not received any notice of the cancellation decision before the Minister’s announcement at the press conference held on that day.
17 At 3.45 pm on 16 July 2007, Adrian McCabe, the Queensland Deputy State Director of the Department, accompanied by two staff from his office, went to the Brisbane Watch House and delivered the following documents to Dr Haneef:
1. A Notice of Visa Cancellation under s 501(3) of the Act dated 16 July 2007.
2. A copy of s 501 of the Act.
3. A copy of Directions made under s 499 of the Act.
4. A Minute to the Minister dated 16 July 2007 – this was the Issues Paper.
5. The Minister’s Statement of Reasons dated 16 July 2007.
6. A copy of s 503A of the Act.
7. A copy of s 501C of the Act.
When giving the documents to Dr Haneef, Mr McCabe drew his attention to his right to make representations to the Minister about the revocation of the decision as set out in the final paragraphs of the Notice of Visa Cancellation. Mr Russo was present at the time. The Notice of Visa Cancellation was signed by Mr White.
18 Dr Haneef and his solicitors decided not to post bail. Their objective was that Dr Haneef should remain in the custody of the Queensland Department of Corrective Services rather than be taken into immigration detention.
19 On 17 July 2007, the Attorney-General issued a Commonwealth Criminal Justice Stay Certificate under s 147 of the Act. It recited that Dr Haneef was an unlawful non-citizen who was to be, or was likely to be, deported from Australia and that the Attorney-General considered that he should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the Commonwealth. The Attorney-General certified in the document “that the stay of the removal or deportation of Mohamed HANEEF (also known as ATHAR) from Australia is required for the administration of criminal justice.”
20 On 18 July 2007, Dr Haneef’s solicitors filed an application for an order in the nature of certiorari to quash the Minister’s decision to cancel his visa. He also sought an order in the nature of prohibition and/or an injunction to restrain the Minister from acting upon the cancellation of the visa. It was a ground of the application that the Minister had misconstrued the expression “association” in s 501(6)(b) of the Act. It was also a ground that he had failed to take into account relevant considerations, had taken into account irrelevant considerations and had made the decision for an improper purpose. The alleged improper purpose was to have Dr Haneef detained when he had been granted bail.
21 On 27 July 2007, the charge against Dr Haneef was dismissed when the Commonwealth Director of Public Prosecutions announced that he would offer no evidence. To that point Dr Haneef had been held in the custody of the Queensland Department of Corrective Services. Upon the dismissal of the charge he was released from that custody and immediately taken into immigration detention by officers of the Department.
22 On the evening of 27 July 2007 Dr Haneef was informed by an officer of the Department that he could elect to leave Australia voluntarily or remain pending the hearing of his judicial review application which had been set down for 8 and 9 August 2007. He decided to leave Australia voluntarily and did so on 28 July 2007. The Commonwealth Criminal Justice Stay Certificate was cancelled prior to his departure.
23 Dr Haneef returned to Bangalore. He informed his solicitor that he wished to continue with his application to have the decision to cancel his visa set aside. The decision had affected his reputation and would affect his ability to travel to other countries in the future. He also told his solicitor that he wished to return to Australia and to his position as a medical doctor at the Southport Hospital.
24 The application to quash the Minister’s decision came on for hearing before Spender J on 8 and 9 August 2007 and on 21 August 2007 his Honour delivered judgment. He made an order in the nature of certiorari quashing the Minister’s cancellation decision, an order restraining the Minister from acting upon the cancellation of the visa and an order that he pay Dr Haneef’s legal costs. His Honour also made a declaration that when Dr Haneef departed Australia on 27 July 2007 his immigration status was that of a lawful non-citizen. His Honour stayed his own orders for a period of 21 days and directed that the order of certiorari not issue from the Registry until 21 days from 21 August 2007. We note in passing the recent authority of the Full Court in Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255 that a declaratory order cannot be stayed pending appeal.
25 On 5 September 2007, the Minister lodged an appeal to the Full Court from the judgment of Spender J.
Statutory framework
26 Before turning to the Minister’s reasons for decision and the primary judge’s reasons for setting that decision aside, it is necessary to set out the relevant sections of the Act.
27 The provisions of the Act relating to the “Control of arrival and presence of non-citizens” are found in Pt 2 under that title. Division 1 of Pt 2, ss 13-17, concerns “Immigration status”. Section 13(1) provides:
A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
28 Section 14(1) provides:
A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
29 Section 15 sets out the effect of the cancellation of a visa on a non-citizen’s immigration status:
To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
30 The grant of visas for non-citizens is dealt with in Div 3 of Pt 2 (ss 28-140). According to the interpretation section, which is s 5 of the Act, the word “visa” has the meaning given by s 29. That meaning is apparent from s 29(1) which provides:
Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
A number of sections in Div 3 confer powers to cancel visas. There is a general power in s 116. The cancellation powers do not limit or affect each other (s 118).
31 Subdivision C of Div 4 of Pt 2 deals with the issue of criminal justice certificates staying removal or deportation. Section 147 is relevant in the present case. It provides, inter alia:
If:
(a) an unlawful non-citizen is to be, or is likely to be, removed or deported; and
(b) the Attorney-General considers that the non-citizen should remain in Australia temporarily for the purposes of:
…
(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
(c) the Attorney-General considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;
the Attorney-General may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice.
32 The effect of such a certificate is set out in s 150:
If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.
33 Division 7 of Pt 2 deals with the detention of unlawful non-citizens (ss 188-197AG). Section 189(1) provides:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
34 The duration of the detention of an unlawful non-citizen held under s 189 is dealt with in s 196(1) which provides:
An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
35 Division 8 of Pt 2 deals with the removal from Australia of unlawful non-citizens. Section 198 requires that an officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
36 Part 9 of the Act under the title “Miscellaneous” contains the provisions which were relied upon by the Minister to cancel Dr Haneef’s visa. Section 501 provides as follows:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister – natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
Periodic detention
(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Pardons etc
(10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) the person has been pardoned in relation to the conviction concerned.
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Definitions
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
Note 1:Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2:For notification of decisions under subsection (1) or (2), see section 501G.
Note 3:For notification of decisions under subsection (3), see section 501C.
37 It is open to an applicant to seek revocation under s 501C of a decision made under s 501(3) or s 501A(3). The latter section is not relevant for present purposes. Section 501C provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10)) – invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).
(5) The power under subsection (4) may only be exercised by the Minister personally.
(6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
(7) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.
(9) If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made.
(10) The regulations may provide that, for the purposes of this section:
(a) a person; or
(b) a person included in a specified class of persons;
is not entitled to make representations about revocation of an original decision unless the person is a detainee.
(11) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
38 Section 501G provides for the notification of decisions made under s 501(1) or (2). Notification of decisions under s 501(3) is covered by s 501C.
39 Section 503A provides for the protection of information supplied by law enforcement agencies or intelligence agencies. It is not necessary to set out its text but we note that where such information is communicated to the Minister the Minister must not be required to divulge or communicate the information to a court (s 503A(2)(c)). The Minister may, however, by writing declare that that and related prohibitions do not prevent the disclosure of specified information in specified circumstances to a specified court (s 503A(3)). The Minister does not have a duty to consider whether to exercise the power to make such a declaration (s 503A(3A)). In the event that the Minister makes such a declaration a prior application may be made to the Federal Court for what is called a “permanent non-disclosure order” preventing disclosure of the protected information to the applicant, the applicant’s legal representative or any other member of the public (s 503B(1)).
The Ministerial Direction
40 Section 499 of the Act provides for the making of ministerial directions thus:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
Such directions self-evidently are not addressed to the Minister. The Minister however has, from time to time, and in this case did, take into account in the exercise of the powers under s 501, the ministerial direction relevant to the cancellation of visas under that section by officers of the Department.
41 The relevant direction is Direction 21 “DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No 21”. It cannot apply to the exercise of ministerial power under s 501(3) as that is a power which may only be exercised by the Minister personally. So while the direction has relevance to the application of the character test in the exercise of discretion under s 501, it has nothing to say about the national interest criterion in s 501(3)(d).
42 The direction begins with a Preamble which states the objects of the discretion to cancel a visa and the operation of the character test. The two relevant paragraphs state:
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.
The substantive part of the direction comprises two parts. Part 1 gives directions on the application of the character test. Part 2 gives directions on considerations relevant to the exercise of the discretion to cancel and the weight to be given to them.
43 Under Pt 1 entitled “APPLICATION OF THE CHARACTER TEST”, the direction identifies the four grounds under s 501(6) upon which a non-citizen may be considered to not pass the character test. Paragraphs 1.5 and 1.6 deal with the application of s 501(6)(b), the “association” ground. They state:
1.5 The meaning of “association” for the purposes of the Character Test encompasses a very wide range of relationships including having an “alliance” or a “link” or “connection” with a person, a group or an organised body that is involved in criminal activities. “Association” does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:
(a) the degree and frequency of association the non-citizen had or has with the individual, group or organisation;
(b) the duration of the association; and
(c) the nature of the association.
1.6 In some cases the information concerning association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other persons at risk.
44 Part 2 of the direction concerns the exercise of the discretion to cancel when that discretion has been enlivened by satisfaction of the threshold requirements. Those threshold requirements in relation to the discretion under s 501(2), to which the direction applies, are that the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. The second threshold requirement, namely that the person does not satisfy the Minister that the person passes the character test, is a precondition of the exercise of the discretion under s 501(3). Under that section the person affected by the cancellation is not heard until after the event.
45 The direction identifies what it designates as “PRIMARY CONSIDERATIONS” and “OTHER CONSIDERATIONS” relevant to the discretion. The primary considerations under para 2.3 are:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
The “Other Considerations” which are identified in para 2.17 relate to matters personal to the non-citizen and his family and other matters related to the risk of misconduct on the part of the non-citizen.
The Issues Paper
46 The Issues Paper submitted to the Minister by Mr White commenced by referring the Minister to the terms of s 501(6) and stated that:
The relevant ground in subsection 501(6) in this case is subparagraph 501(6)(b)…
47 It then referred to Ministerial Direction 21 and observed (at [7]):
Ministerial Direction 21 on Visa Refusal and Cancellation under Section 501 (the Direction) provides guidance to decision-makers in making decisions to refuse to grant or to cancel a visa under section 501 of the Act. It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by a section 499 Direction. However, in making a decision on this case it is open to you to be guided by the factors set out in the Direction. In balancing the relevant factors in this case, you are free to give whatever weight you regard as appropriate to those factors.
48 The advice was, strictly speaking, slightly misleading because Ministerial Direction 21, as noted above, does not deal with cancellation decisions under s 501(3). It considers the “Character Test” in relation to decisions under ss 501(1) and (2) but has nothing to say about the “national interest” criterion in s 501(3). It does not, nor could it, deal with the way, if any, in which the Minister’s discretion under s 501(3) may be shaped or influenced by the application of the “national interest” criterion and the denial of procedural fairness in relation to such decisions which is effected by s 501(5). Neither the national interest criterion nor the denial of procedural fairness apply to cancellation decisions under s 501(2).
49 The Issues Paper set out paragraph 1.5 of the direction about the meaning of the word “association” in s 501(6)(b). It then gave a factual history. This commenced with the arrest of Dr Haneef on 2 July 2007 “for allegedly Providing Support to a Terrorist Organisation, contrary to section 102.7 Criminal Code Act 1995”. The Minister was referred to Annex 2 to the Issues Paper. Part A of Annex 2 described the attempted bombings in London on 29 June 2007 and the bombing at Glasgow Airport on 30 June 2007, the arrest of seven persons in the United Kingdom in that regard and the advice the AFP had received about Dr Haneef being “a person of interest” to the investigation “through his association with two of the UK suspects”. Further detail of this association was said to have been provided to the AFP and “expanded in the document titled ‘Part B’.” Part B did not appear in the papers before the primary judge. There is no statement in the Issues Paper to suggest that Part B was protected information under the Act.
50 Dr Haneef was not charged with any offence at the time of his arrest. However on 14 July 2007, as the Minister was informed in the Issues Paper, he was “formally charged” with an offence under s 102.7 of the Criminal Code Act.
51 The Minister was informed in the Issues Paper that Dr Haneef was arrested (at [11]):
… after the AFP received information from Metropolitan Police Service (MPS) Counter Terrorism Command (CTC), that Dr HANEEF is a person of interest to their investigation through his association with two of the United Kingdom suspects believed to be involved in the London incident and Glasgow bombings (Annexes 4 and 5). Further information that is protected under section 503A of the Act, is at Annex 3.
52 Additional information was proffered about the AFP’s investigation into Dr Haneef’s association with the UK suspects and his possible connection to terrorist incidents in London and Glasgow. According to Annex 2, Dr Haneef departed his residence at Southport, Queensland on the evening of 2 July 2007 and went to Brisbane International Airport where he attempted to board a one way flight to Bangalore, India via Singapore. His ticket had been purchased on the same day. He was arrested at the airport. The Annex went on to refer to a taped record of interview between police and Dr Haneef in which he was said to have stated the following (at [11]):
. He first arrived in the UK in March 2004;
. He is related to two of the UK suspects (hereinafter referred to as UK suspect 2 and UK suspect 5), who are brothers, and second cousins to Haneef on his mother’s side of the family;
. He resided with the UK suspect 5 at 13 Bentley Road Liverpool, UK, which is a boarding house;
. This was the main address he resided in the UK;
. A number of doctors of like nationality resided at the address;
. He visited Cambridge University in June/July 2004 and also in November 2004 to visit UK suspect 2, who was studying a PhD in Engineering at the university;
. In October 2005, UK suspect 2 loaned him 300 pounds so he could sit a medical exam;
. When he left the UK in September 2006, he left a number of items at the Liverpool address to minimise excess baggage;
. He left behind his mobile telephone SIM card, which was connected to the UK service provider ‘O2’ and due to expire in August 2006;
. UK suspect 5 wanted the SIM card to access the ‘extra minute deal’ offered by O2 at that time;
. UK suspect 5 said he would take over the SIM card and register it with UK suspect 5’s details;
. He and UK suspect 5 have continued to correspond in on-line chat rooms, the most recent of which was following the birth of Haneef’s child on 26 June 2007;
. He occasionally chats with UK suspect 5 on-line. The last time was around March/April 2007;
. He knows a person named ‘Bilal’, however knew no further details apart from this name;
. That he had only met Bilal once in Cambridge;
. He is currently employed as a medical doctor with the Gold Coast Regional Health Services at Southport Hospital;
. He has been a doctor since April 2002 and graduated from the Dr BR Ambedkar Medical College in Bangalore. He then did a term of 12 months internship;
. He is a trainee physician with the Australian Royal College of Physicians;
. On 2 July 2007 he attended Brisbane International Airport in an attempt to travel to Bangalore where his wife has recently given birth. There were complications during the birth and he was travelling to Bangalore to see his wife;
. Earlier on 2 July 2007 he had a telephone conversation with his father-in-law in Bangalore for approximately 5 minutes, who then made the flight arrangements for Haneef to return to Bangalore to see his family;
. The ticket was purchased one-way to Bangalore;
. When questioned why it was a one-way ticket Haneef stated that there was no particular reason for this and he intended to return to Australia within 7 days;
. He was not returning to Bangalore for any reason connected with the bombing incidents in London and Glasgow;
. He later checked his yahoo e-mail account and noticed that he had been sent an e-ticket from a travel agency that he cannot remember;
. On 2 July 2007 he advised the medical administrator of Southport Hospital that he had to return to Bangalore urgently to see his family due to issues with his newborn child;
. He is a devout Muslim; and
. He did not wish to discuss his political views with police.
12. Haneef remains in police custody following an order pursuant to section 23CA(8)(m) Crimes Act 1914 authorising the disregard of a specified period in the calculation of the investigation period.
53 Annex 4 entitled “Attempted London Car Bombings” set out the names of the six suspects and the dates and places of their arrests and the fact that one of them, Dr Sabeel Ahmed, was Dr Haneef’s second cousin on Dr Haneef’s mother’s side. In Annex 5 similar details were given in relation to two suspects arrested in connection with the Glasgow Airport bombing. One of them, Dr Abdullah, had also been arrested in relation to the London incident. The second, Dr Kafeel Ahmed, was said to have been confirmed as Dr Haneef’s second cousin on Dr Haneef’s mother’s side of the family.
54 The Issues Paper pointed out that Dr Haneef had advised that when he first arrived in the United Kingdom in March 2004 he was employed as a locum at Halton Hospital, Runcorn, Cheshire where he remained until 2005 and that this was the same hospital in which Dr Sabeel Ahmed was employed. Reference was made to Annex 6 which appeared to be an online press article in which a spokeswoman for the North Cheshire Hospitals NHS Trust said that Dr Haneef was employed as a locum at that hospital until 2005 and that one of the doctors arrested had worked at the same hospital.
55 The Issues Paper stated that Dr Haneef had advised that he had resided with Dr Sabeel Ahmed at a boarding house at Liverpool and that he had visited Dr Kafeel Ahmed at Cambridge University in June/July 2004 and November 2004 and that in October 2005 Dr Kafeel Ahmed had lent him £300 to sit a medical exam.
56 The Issues Paper went on to refer to Dr Haneef leaving several items at the Liverpool address when he departed for Australia. These included his mobile telephone (both the handset and the SIM card) which was connected to a United Kingdom service provider “O2”. Since leaving the United Kingdom he and Dr Sabeel Ahmed had been in correspondence via on-line chat rooms. Their most recent correspondence was said to have been on 26 June 2007 concerning the birth of Dr Haneef’s daughter. The Issues Paper went on (at [16]):
… There is additional material to support the association that is protected under section 503A of the Act, and this is at Annex 3.
The Issues Paper then said:
17. Based on the information provided in this submission, including section 503A protected information, it is open for you to reasonably suspect Dr Sabeel AHMED and Dr Kafeel AHMED are, or have been, involved in criminal conduct.
18. Based on the above information, it is open for you to reasonably suspect that Dr HANEEF has or has had an association with Dr Sabeel AHMED and Dr Kafeel AHMED.
19. Additional information relating to Dr HANEEF’s possible association with Dr Sabeel AHMED and De [sic] Kafeel AHMED that is protected under section 503A of the Act, is at Annex 3. This evidence cannot be disclosed to Dr HANEEF or his authorised recipient for comment.
20. Based on the information provided in this submission, it is open for you to reasonably suspect that Dr HANEEF does not pass the character test at paragraph 501(6)(b) of the Act.
The Statement of Reasons
57 The Statement of Reasons signed by the Minister on 16 July 2007 began with four paragraphs under the heading “CHARACTER TEST”. It is desirable to set those paragraphs out in full. They stated:
1. I noted that on 14 July 2007, Dr HANEEF was formally charged with intentionally providing resources to a terrorist organisation, consisting of persons including Sabeel AHMED and Kafeel AHMED, being reckless as to whether the organisation was a terrorist organisation, contrary to section 102.7 Criminal Code Act 1995.
2. Dr HANEEF has advised the Australian Federal Police (AFP) that he is the second cousin of two people suspected of involvement in the London incident and the Glasgow bombings: Dr Sabeel AHMED and Dr Kafeel AHMED. Further, I note that since leaving the UK, Dr HANEEF and Dr Sabeel AHMED have been in correspondence via on-line chat rooms. The most recent correspondence was on 26 June 2007, regarding the birth of Dr HANEEF’s daughter. From this information, I reasonably suspected that Dr HANEEF has, and has had previously, an association with Dr Sabeel AHMED and Dr Kafeel AHMED.
3. Dr Sabeel AHMED and Dr Kafeel AHMED are suspected of involvement in the London incident, and the Glasgow bombings. Based on this information, and further information provided to me including section 503A protected information, I reasonably suspect that Dr Sabeel AHMED and Dr Kafeel AHMED are, or have been, involved in criminal conduct.
4. Based on the information provided to me, including section 503A protected information, I reasonably suspect that Dr HANEEF does not pass the character test by virtue of section 501(6)(b) in that he is a person who has or has had an association with Dr Sabeel AHMED and Dr Kafeel AHMED whom I suspect are or have been involved in criminal conduct.
58 The next three paragraphs of the Statement of Reasons were headlined “NATIONAL INTEREST”. They were in the following terms:
5. I considered that the criminal conduct in which Dr HANEEF’s associates are suspected to have engaged in is particularly serious.
6. I considered that it was in Australia’s national interest to prevent Dr HANEEF who was charged with intentionally providing resources to a terrorist organisation, consisting of persons including Sabeel AHMED and Kafeel AHMED, being reckless as to whether the organisation was a terrorist organisation, contrary to section 102.7 Criminal Code Act 1995 from continuing to hold a valid visa and to remain in the Australian community, I note that this is clearly a serious offence in national and international terms.
7. On this basis, I was satisfied that cancellation of Dr HANEEF’s visa was in the national interest.
59 The Minister’s reasons then turned to matters relevant to the exercise of his discretion. The “Primary Considerations” were “Protection of Australian Community” and the “Seriousness and nature of conduct”. Under those headings he referred to the charge brought against Dr Haneef. Under the heading “Expectations of Australian Community” the Minister said:
21. I had regard, as a primary consideration, to the expectations of the Australian community, and consider that the Australian community would expect that a non-citizen, who has had an association with persons suspected of involvement in an act of terrorism and who has been charged with an offence of providing resources to a terrorist organisation, including those persons, would have their visa cancelled.
22. I found that the ‘Expectations of Australian Community’ weighed in favour of visa cancellation. I gave this consideration moderate weight.
60 Under the heading “Conclusion” the ministerial reasons said:
32. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) Ministerial Direction 21 under s499 of that Act and (3) all other evidence available to me.
33. Having formed the necessary suspicion that Dr HANEEF does not pass the character test, and having decided that cancellation of Dr HANEEF’s visa would be in the national interest, I concluded that the seriousness of Dr HANEEF’s suspected conduct and, to a lesser extent, the expectations of the Australian community outweighed all other considerations mentioned above.
34. I therefore decided to exercise my discretion to cancel Dr HANEEF’s visa under s501(3).
The grounds for review
61 The application for certiorari, prohibition and/or injunction brought on behalf of Dr Haneef relied upon four grounds. They were:
1. The Respondent fell into jurisdictional error by deciding that the threshold requirement under s 501(3)(c) of the Migration Act had been satisfied based upon misconstruction of the expression “association” in s 501(6)(b).
2. The Respondent fell into jurisdictional error by failing to take into account a relevant consideration in the exercise of the discretion under s 501(3), namely:
(a) the nature and extent of the alleged “association” between the Applicant and the persons whom the Respondent suspected of criminal conduct;
(b) the weakness or strength of the evidence supporting the charge against the Applicant;
(c) hardship to the Applicant as a result of the cancellation;
(d) hardship to the Applicant’s family as a result of the cancellation.
3. The Respondent fell into jurisdictional error by taking irrelevant considerations into account in the exercise of the discretion under s 501(3), namely:
(a) that the Applicant had been granted bail by the Brisbane Magistrates Court;
(b) that the “Australian Government has a strong interest in deterring non-citizens from providing support to terrorist organisations/networks”, when the Applicant has not been convicted of any offence involving provision of such support.
4. The Respondent’s purpose in cancelling the visa under s 501(3) was to allow the Applicant to be detained when he had been granted bail and that was an improper purpose.
62 The particulars relied upon to support ground 4 alleged, inter alia, that the Minister, when he cancelled the visa, knew and took into account the fact that Dr Haneef had been granted bail. They further alleged that the Minister also knew that the Commissioner of the AFP intended to ask the Attorney-General to issue a criminal justice stay certificate and that it would operate to require Dr Haneef to remain in immigration detention until his trial.
The reasons for judgment of the primary judge
63 The learned primary judge commenced his reasons for judgment with a discussion of the jurisdiction of this Court in relation to judicial review of decisions under the Act. He referred to the application of the privative clause, s 474 of the Act, and the requirement to demonstrate jurisdictional error to secure the issue of a constitutional writ or its statutory equivalent. He posed the question that was central to the case (at [56]):
Did Parliament intend that the definition of “not passing the character test” should apply to persons whose “association” with persons who are criminals does not bear adversely on their character, as well as to those whose “association” with such persons does bear adversely on their character?
64 The Minister had submitted that the “association” limb of the character test set out in s 501(6)(b) required no element of personal fault. Counsel for Dr Haneef on the other hand had argued that, on its proper construction, s 501(6)(b) required a connection between the visa holder and those suspected of criminal conduct that involved personal fault or reflected adversely on the character of the visa holder. Mere connection was not sufficient.
65 The evidence did not include any part of the protected information before the Minister. His Honour said (at [80]):
This case has to be decided on the evidence properly before the Court, which includes, of course, that there was protected information before the Minister that was not before the Court.
The judge set out the factual background already outlined in these reasons. He noted that neither the minute to the Minister nor the Statement of Reasons referred to the date of the charge against Dr Haneef, nor identified the resources allegedly provided as the SIM card (at [114]). It appears from the context that his Honour intended to refer to the date of the alleged offence set out in the charge, which was 25 July 2006.
66 His Honour found, from facsimile markings on the Statement of Reasons delivered to Dr Haneef on 16 July 2007, that they had been signed by the Minister before 1.22 pm that day. He found that following the cancellation decision and before its communication to Dr Haneef, the Minister held a press conference at about 1.45 pm and, among other things, said (at [117]):
The Commissioner of the Australian Federal Police has intimated to me that the AFP will issue a criminal justice certificate, the effect of which is that Dr Haneef will remain in immigration detention whilst the legal proceedings are on foot.
Dr Haneef will be detained by immigration authorities and relocated to the Villawood Immigration Detention Centre as soon as arrangements can be made. In the meantime, he’ll be held in immigration detention in Brisbane.
67 Mr Cosgrove, a solicitor with the Australian Government Solicitor, having carriage of the matter on behalf of the Minister, said that the criminal justice certificate, executed pursuant to s 147 of the Act, had been provided to the Minister by persons from the Attorney-General’s Department by email received at 11.09 am on 17 July 2007.
68 His Honour described as the central question in the case whether the Minister had misconstrued the terms of s 501(6)(b). He cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 as being directly relevant. Its relevance lay in its support for the proposition that misconstruction of a criterion for the exercise of a ministerial power under the Act (in that case the grant of a visa) can amount to jurisdictional error.
69 The issue between the Minister and Dr Haneef on the construction of s 501(6)(b) was whether or not the “association” to which it refers encompasses an “innocent association” or whether there must be some connection between the visa holder and the criminal conduct of those with whom he is said to be associated. As previously indicated, the Minister’s contention was that “any association” would suffice. In support of that contention he relied upon the ex tempore judgment of Emmett J in Minister for Immigration and Multicultural Affairs v Chan (2001) 34 AAR 94. That case concerned cancellation of a Class UC (Temporary Business Entry) Subclass 457 visa on the basis that the Minister was not satisfied that the visa holder passed the character test pursuant to s 501(6) of the Act. The matter had gone to the Administrative Appeals Tribunal (the Tribunal) where Purvis DP held that “association” in s 501(6) encompassed persons associated, connected or combined with a common purpose or having a community of ideas where one of the associates was reasonably suspected of having been, or being, involved in criminal conduct. In his view the “reasonably believed association, connection, combination, community of ideas of the one” must have a nexus with the reasonably believed involvement of the other, in criminal conduct. The case concerned a woman who had been found to have had a relevant association with her ex-husband who could reasonably be suspected of having been involved in criminal conduct. There was, however, no suggestion of any guilty connection on the part of the woman.
70 On appeal by the Minister from the decision of the Tribunal, the woman did not appear. In the ex tempore judgment Emmett J said (at [7]):
The Tribunal considered that it was necessary that there be some nexus between the visa holder and the criminal conduct of the person with whom the visa holder was associated. However, I do not consider that the language of s 501(6)(b) justifies such a limitation. There is nothing in the paragraph itself to limit the association in that way. Rather, the scheme of the provision is to confer upon the Minister a discretion under s 501(2) to cancel a visa if certain prerequisites are satisfied. The first prerequisite is that the Minister reasonably suspects that the person does not pass the character test and the second is that the person does not satisfy the Minister that the person passes the character test.
His Honour said (at [9]) that it might be relevant that the visa holder had no knowledge of the criminal conduct of the other person or did not knowingly take a benefit from the proceeds of such conduct. Such matters fell for consideration upon the exercise of the discretion if it were to arise. They were not matters to be taken into account in determining whether or not the discretion arose.
71 Emmett J referred (at [10]) to the amendment to s 501 which took effect on 1 June 1999. He accepted that, under the section in its earlier form, the Minister was required to make a judgment as to whether or not the visa holder was not of good character because of the association with the person involved in criminal conduct.
72 Spender J observed that Emmett J did not express an opinion about the meaning of “association” in s 501(6)(b) even though it might be inferred that he had considered that a mere connection was enough. Spender J said (at [175]):
He clearly held that an association by way of family ties was of itself sufficient to ground the necessary “association”. That view suggests that any association, whether innocent or sinister, whether fleeting or regular, whether in the distant past or contemporary, is sufficient to enliven the discretion to cancel.
73 He went on (at [176]):
In my opinion, that is the test which the Minister applied, that is the test which the Solicitor-General on behalf of the Minister says the Minister applied, and further, that is the test which the Solicitor-General on behalf of the Minister contends is the correct test.
74 His Honour thought that Chan 34 AAR 94 was wrongly decided. He considered that the meaning given to “association” by Purvis DP in the Tribunal in Re Chan and Minister for Immigration and Multicultural Affairs (2001) 33 AAR 191 and by Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 was correct. In the latter case, Lee J said (at [47]):
It is unnecessary to consider the meaning of the word “association” but for a visa applicant not to pass the character test it may be taken to require the minister to make relevant findings of fact as to the knowledge, or awareness, by the visa applicant of the facts that point to the involvement of the person, group or organisation in criminal conduct.
The case went on appeal to the Full Court, which dismissed the appeal but did not refer to or deal with the passage quoted.
75 Spender J referred to the other criteria, in s 501(6), by which a person may fail the character test. Each of the other criteria required the decision-maker to look at the visa holder and make an assessment of qualities personal to the visa holder which qualities Parliament has said determine that that person fails the character test. His Honour said (at [187]):
In that context, it would be striking if the criterion in (b), which this case is concerned, could be met by an or any association with a person, group or organisation reasonably suspected of having been or is involved in criminal conduct. Such an association could be completely innocent, and involve not the slightest reflection on that person’s character. The association could be of the most transient kind, could be not only innocent but historically ancient.
76 His Honour held, having regard to the context, that it seemed impossible to conclude that Parliament would have intended that a person fail the character test where the relationship of the visa holder with a person, group or organisation was utterly remote from the criminality of that person, group or organisation. He attached significance to the use of the words “the character test”. They were not “just a convenient definition” but were words to be read as having a meaning (at [205]).
77 His Honour referred to the amendments effected by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill l997 and the Report of the Senate Legal and Constitutional Legislation Committee in respect of that Bill. He noted that the Minister’s department was cited by the Senate Committee as having reiterated that (at [217]):
… a criminal association was already part of the Act, and that the proposed provision did not necessarily extend to links with family members and other groups that were lawful:…
78 His Honour said that the changes introduced in 1999 did not make the relationship between the suspected association and the visa holder’s character irrelevant. What the legislative amendments did was to reverse the onus. The Minister’s contention that the amendments were intended to go further, and broaden the character test to include even the most innocent association, was not supported by the Second Reading Speech. His Honour said (at [256] – [259]):
In my opinion, Chan was wrongly decided, and the test which the Minister applied was not the test called for by s 501(6)(b).
As the result of this misconception as to what the exercise of the statutory power entailed, there was a purported, but not a real exercise of the power conferred by s 501(3).
As a consequence, the decision is a nullity and s 474 does not apply.
It follows that there ought to be an order in the nature of certiorari quashing the respondent’s decision made on 16 July 2007 to cancel the applicant’s Subclass 457 Business (Long Stay) (Class UC) visa, and also an order in the nature of prohibition and/or injunction restraining the respondent from acting upon the cancellation of the applicant’s visa.
79 His Honour found that there was material before the Minister and also before the Court upon which it would have been open to the Minister to cancel Dr Haneef’s visa had the correct test been applied. In addition to the circumstances of connection to the Ahmed brothers relied upon by the Minister to find the relevant association, there were two other factors in particular which would take the case into one where it was open to the Minister to have a reasonable suspicion that the requisite association existed. These were:
1. The information contained in Annex 2 of the material before the Minister, namely that the Metropolitan Police Service Counter Terrorism Command had advised the AFP that Dr Haneef was a person of interest to their investigation through his association with two of the United Kingdom suspects. The fact that he was a person of interest to those investigating the terrorist events bore upon the nature of the association between him and the two United Kingdom terrorists; and
2. That on 14 July 2007 Dr Haneef had been charged with intentionally providing resources to a terrorist organisation. The fact that the AFP and/or the Director of Public Prosecutions had laid the charge was, in his Honour’s opinion, a factor relevant to the nature of the association between Dr Haneef and the Ahmed brothers.
80 His Honour also dealt with other grounds raised by Dr Haneef, none of which was made out. Among those grounds was an allegation that the Minister made his decision for an improper purpose in that, contrary to the statutory scheme, he did not intend to remove Dr Haneef from Australia “as soon as reasonably practicable”. His Honour was not prepared to find the alleged improper purpose on the materials before him.
The orders made by the primary judge
81 The learned primary judge made the following orders on 21 August 2007:
1. There be an order in the nature of certiorari quashing the Minister for Immigration and Citizenship’s decision made on 16 July 2007 to cancel the applicant’s Subclass 457 Business (Long Stay) (Class UC) visa.
2. There be an order in the nature of a prohibition and/or an injunction restraining the Minister from acting upon the cancellation of the applicant’s visa.
3. The respondent pay the applicant’s costs of and incidental to the proceedings, to be taxed if not agreed.
82 His Honour also made a declaration that:
4. When the applicant departed Australia on 28 July 2007, his immigration status was that of a lawful non-citizen.
83 On the same day he also made the following orders:
1. The orders and declaration of Spender J on 21 August 2007 are stayed for 21 days from today.
2. The order of certiorari is not to issue from the Registry until 21 days from today.
3. There be liberty to apply on 48 hours written notice.
The grounds of appeal
84 The grounds of appeal are as follows:
The test imposed by s 501(6)(b)
2. The Learned Judge erred in law in holding, at [56] of his Reasons, that the “principles” discussed by His Honour, at [48]-[55] of his Reasons, bore upon how the “association test” in 501(6)(b) of the Migration Act was to be properly construed.
3. The Learned Judge erred in law, at [180] of his Reasons, in holding that the meaning of the expression ‘an association with’ in 501(6)(b) of the Migration Act, as applied by Emmett J in Minister for Immigration and Multicultural Affairs v Chan [(2001) 34 AAR 94] was erroneous.
4. The Learned Judge erred in law in holding, at [239] of his Reasons, that it was no answer to the criticism of the decision in Chan that the Minister’s power could be expected to be exercised only in those circumstances where the Minister thought it appropriate to exercise the power, because the exercise of power conditioned upon such a consideration would be an exercise of power alien to the object of the purposes of the Migration Act.
5. The Learned Judge erred in failing to adopt a construction of 501(6)(b) of the Migration Act which accorded with the ordinary and natural meaning of the words used in the section.
6. The Learned Judge erred in law in holding, at [229] of his Reasons, that the meaning of 501(6)(b) is to be derived having regard to the other criteria on which a visa applicant or holder fails the character test, namely 501(6)(a), 501(6)(c) and 501(6)(d) of the Migration Act.
7. The Learned Judge erred in law in holding, at [230] and [254] of his Reasons, that 501(6)(b) of the Migration Act is a composite phrase that has the connotation that there is an alliance or link or combination between the visa holder and the persons engaged in criminal activity which reflects adversely on the character of the visa holder.
8. In the alternative to paragraph 3 hereof, the Learned Judge below erred in failing to determine that the connection which 501(6)(b) of the Migration Act required was a “personal” association with persons engaged in criminal activity which was both more than accidental (such as a familial or incidental relationship) and involved intentional or deliberate interaction with those persons so engaged in the criminal activity.
No vitiation of the exercise of discretion by the Minister
9. The Learned Judge erred in law in holding, at [234] of his Honour’s Reasons, that jurisdictional error underpinned the exercise of the discretion to cancel the visa.
10. The Learned Judge erred in law in holding, at [257] of his Reasons, that as a result of the misconception referred to at [254] of his Reasons, there was a purported, but not a real exercise by the Minister of the statutory power conferred by 501(3).
11. The Learned Judge erred in law in holding, at [258] of his Reasons, that the Minister’s decision was a nullity and s474 did not apply.
Errors in granting relief
12. The Learned Judge erred in law in exercising his discretion to grant the orders he did in that he failed to consider, irrespective of His Honour’s views in respect of the meaning of 501(6)(b), that there were valid grounds for the Minister’s decision.
13. The Learned Judge erred in granting the remedies of prohibition and or an injunction when there were no grounds for believing that the respondent would not act in accordance with the determination of the Court.
14. The Learned Judge erred in granting the relief by way of a declaration when such relief was futile.
The notice of contention
85 A notice of contention was filed on behalf of Dr Haneef on 21 September 2007. It was in the following terms:
The Respondent contends that the judgement below should be affirmed on grounds other than those relied on by the Court below.
The grounds contended for are:
GROUNDS:
1. The Respondent fell into jurisdictional error by failing to take into account relevant considerations in the exercise of the discretion under s 501(3) of the Migration Act 1958, namely:
(a) the nature and extent of the alleged “association” between the Respondent and the persons whom the Appellant suspected of criminal conduct;
(b) hardship to the Respondent as a result of the cancellation of his visa.
2. The Appellant’s purpose when cancelling the visa under s 501(3) of the Migration Act was to allow the Respondent to be detained in Australia and that was an improper purpose.
Legislative history and judicial exegesis
86 Australia’s migration law, post-federation, began with the Immigration Restriction Act 1901 (Cth). It was derived in part from the statutes of the colonies which became the States of Australia. It provided for restrictions on immigration and the removal from Australia of prohibited immigrants. Its definition of “prohibited immigrant” included any person who had been convicted and sentenced to imprisonment for a year or more for an offence which was not a mere political offence. The Immigration Restriction Act and cognate statutes relating to Pacific Islanders and the deportation of aliens were repealed upon the enactment of the Migration Act 1958 (Cth).
87 The Migration Act 1958 provided for entry into Australia to be regulated by entry permits which could be cancelled by the Minister “in his absolute discretion” (s 7). There were provisions for the deportation of aliens convicted of violent offences against the person or extortion using force or threats. Immigrants in Australia who had been convicted of an offence punishable by death or by imprisonment for one year or longer, being an offence committed within five years after entry into Australia, were subject to deportation by ministerial order. So too were persons convicted of prostitution-related offences or any person who within five years after entry into Australia became an inmate of a mental hospital or a public charitable institution.
88 The Act provided that the Minister could order the deportation of aliens or immigrants whose conduct appeared to the Minister to have been such that they should not be allowed to remain in Australia. In the case of the immigrant, the relevant conduct had to be within five years prior to the ministerial consideration of it (s 14). In addition the Minister could order the deportation of an immigrant if:
14(2)(b) he is a person who advocates the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of all forms of law, or advocates the abolition of organized government or the assassination of public officials, or advocates or teaches the unlawful destruction of property, or is a member of an organization which entertains and teaches any of the doctrines and practices specified in this paragraph…
89 The Human Rights Commission and the Administrative Review Council both published reports on the operation of the Act in 1985. Following these reports the Migration Legislation Amendment Act 1989 (Cth) was enacted. Under those comprehensive amendments new provisions for the control of entry into Australia involved entry permits and visas.
90 The precursors to s 501, s 502 and s 503 of the present Act,were introduced by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth). Section5 of the amending Act introduced s 180A, the precursor of the present s 501 and ss 180B and 180C which were the precursors of ss 502 and 503. A character test was set out in s 180A(2) which provided:
This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person’s past criminal conduct; or
(ii) the person’s general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
The application of subs (2) to a person was a sufficient condition for the Minister to cancel that person’s visa under s 180A(1).
91 Reference to entry permits was deleted from s 180A by the Migration Legislation Amendment Act 1994 (Cth) (the 1994 Amending Act) – Schedule 1, Item 113. The 1994 Amending Act also renumbered the Migration Act which by that time bore a large number of alphanumeric section designations. The several sections of the amended Act were renumbered in a single series so that they bore consecutive Arabic numerals starting with “1”: s 83(5) of the 1994 Amending Act.
92 Before the amendments to s 501 in 1999 which cast it into its present form, the Minister, if relying upon a visa holder’s association with criminal elements as a basis for cancelling a visa, had to be satisfied that the visa holder was not of good character. A substantive moral judgment was required. It was a judgment about the visa holder’s “enduring moral qualities”: Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 14 (French J). In the context of consideration of the relationship between a person’s character and criminal or general conduct for the purpose of s 501(1)(a) as it was, Whitlam J in Baker v Minister for Immigration and Multicultural Affairs (1996) 69 FCR 494 also focused upon the need to find want of good character. As he pointed out, conduct that might be criminal in a foreign country might not be criminal in Australia (at 500):
It follows that in some cases the nature or circumstances of the criminal conduct will not suggest that a person is “not of good character”.
93 In relation to the “association” criterion under the section in its previous form the Full Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 said (at 380):
The question under s 501(2)(b) is whether the Minister is satisfied that a person is not of “good character” because of the person’s association. The latter words are important. They require a causal link. The association must be such that it impacts adversely on the character of the person to such an extent that he or she can be said to be not of good character…
The Full Court there accepted that there might be circumstances of association with a person or group involved in criminal activity where the association would not detract from the good character of the visa holder. While any assessment had to depend upon the particular circumstances of each case and the nature of the association, awareness would usually be an important element.
94 By the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (No 114 of 1998), s 501 was repealed and replaced by the section in its present form. Sections 501A to 501H were also introduced. Section 503A relating to protection of information supplied by law enforcement agencies or intelligence agencies was enacted at the same time. The amendments came into force on 1 June 1999.
95 In his Second Reading Speech for the Bill, the Minister described the purpose of the Bill thus (Australia, House of Representatives, Debates (1998) Vol HR 223, at 1230):
The purpose of this bill is to ensure that the government can effectively discharge its fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background or have criminal associations.
He said in his Second Reading Speech that experience over recent years had shown that the existing legislative provisions were inadequate to the task. This was despite the fact that they had been amended as recently as 1992 with the express purpose of improving the government’s ability to deal with visa applicants and visa holders with substantial criminal backgrounds. He said (at 1230):
In broad terms, the bill seeks to enhance the government’s ability to deal with non-citizens who are not of good character …
96 The Minister set out three ways in which the Bill sought to achieve that objective. One of those ways was that (at 1230):
… in exceptional or emergency circumstances, the minister, acting personally, will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens …
The Minister also observed that information provided by Australian and international law enforcement agencies would be afforded more effective protection so that such agencies could be confident about passing information to immigration decision-makers.
97 In describing the character test, the Minister said (at 1230-1231):
The amendments proposed in this bill introduce the concept of a character test. Under this test, the onus will be on visa applicants and visa holders to satisfy decision makers that they can pass the test. This will redress a significant deficiency in the legislation arising from the changes made in 1992. Since that time, decision makers have been required to establish that a person is not of good character before they could refuse a visa to an applicant or cancel a visa. This has meant that whenever there has been doubt about the criminal background or criminal associations of a non-citizen, the doubt has been resolved in the non-citizen’s favour. I understand that this was not the intention of the 1992 amendments.
This bill takes us back to the situation that existed before 1992 by placing the onus of proof on the visa applicant to demonstrate that he or she is of good character. This means that, where there are real doubts about the criminal background or criminal associations of a visa applicant or visa holder, the objective of protecting the Australian community will take precedence in immigration decision making.
98 In his speech for the Bill, under the heading “Deeming provisions”, the Minister further said (at 1231):
This bill also seeks to establish clear benchmarks for criminal behaviour that would automatically lead to a non-citizen failing the character test. Non-citizens who have been convicted to [sic] a single sentence of detention of 12 months or more, or where the length of several sentences aggregates to two years or more, will fail the character test. This will truncate the character assessment process and cover most non-citizens of character concern who come to notice. This will provide more certainty as to who is able to pass the character test.
99 A feature of the Minister’s speech is that nowhere in it is the Parliament informed of the possibility that an innocent association with criminal elements could mandate a determination that a person failed to pass the character test. The only elements of the Bill which were described as “deeming provisions” were those relating to persons sentenced to terms of imprisonment of 12 months or more. The focus was rather upon the onus of proof of character.
100 The Senate Legal and Constitutional Legislation Committee had reported on a previous version of the Bill in March 1998. That version was the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1997 which was identical in the parts relevant for present purposes to the 1998 Bill. In its report the Senate Committee discussed what it called the “Criminal association provision”. The Committee had received several submissions expressing concern about the proposed subs 501(6)(b). The Queensland Branch of the International Commission of Jurists had submitted that the provision was too wide as it might encompass people who were completely unaware of another person’s criminal conduct and might even extend to charity workers. On the basis of that provision Galileo, Ghandi and Mandelawould all fail the character test. The Central Coast Legal Centre was also concerned about the scope of the provision and queried whether women who had suffered domestic violence might be regarded as being of bad character because of their association with violent partners. The Committee’s report noted (at [2.31]):
In response, the Department reiterated that a criminal association was already part of the Act, and that the proposed provision did not necessarily extend to links with family members and other groups that were lawful:
The bill [does] not change the fact that a person may be judged to be of bad character on being a member of an organisation or an associate of an organisation. I do not think that necessarily means that a family member is damned by the family member’s association with that organisation.
A Hansard record of the Committee’s proceedings shows that this was said in response to the following question from Senator Bartlett on 13 February 1998:
Is it correct that the legislation brings in a great ability to judge someone’s character through their associates? It covers the membership of terrorist groups, but does it extend to links with family members and other groups that are not necessarily unlawful?
101 The Committee’s conclusions and recommendations appear in Ch 3 of its report. As to the character test and the reversal of the onus of proof, the Committee concluded that:
. migration decisions on character are not concerned with determining criminal guilt or innocence, but simply with determining whether a particular non-citizen should be permitted to live in the Australian community;
. a visa applicant or visa holder should bear the onus of proving that they satisfy the character test – such a situation existed in 1992 and appropriately gives the benefit of any doubt to Australia rather than the applicant;
. the ‘character’ test as included in the Bill should make decisions in this area more simple and more certain;
. those aspects of the character test dealing with spent convictions, juvenile offences and mental illness are an attempt to ensure that serious relevant anti-social conduct may be taken into account by decision-makers in exercising their discretion under the legislation; and
. the exercise of discretions under the character test will be informed by sensible and sensitive policy considerations.
102 The association criterion in s 501(6)(b) was considered by Lee J in Godley 83 ALD 411. The case concerned refusal of a spouse visa on the ground of alleged failure by the applicant to satisfy the Minister that he passed the character test. The refusal was not based on association, but rather upon past general conduct. Nevertheless his Honour undertook a general discussion as to the construction of s 501(6). In relation to s 501(6)(b) he said (at [47]):
Section 501(6)(b) combines a finding of fact by the minister with the formation of a reasonable suspicion. First, the minister must form a reasonable suspicion that a person, group or organisation has been or is involved in criminal conduct. It may be taken that to be a reasonable suspicion the suspicion must be based on reasonable grounds. Second, the minister must make a finding of fact that the visa applicant has, or has had, an association with that person, group or organisation. Again it would be necessary for there to be material capable of supporting that finding. It is unnecessary to consider the meaning of the word “association” but for a visa applicant not to pass the character test it may be taken to require the minister to make relevant findings of fact as to the knowledge, or awareness, by the visa applicant of the facts that point to the involvement of the person, group or organisation in criminal conduct.
103 It is apparent from his Honour’s reasons that he regarded the question whether the visa applicant “passed the character test” as a substantive question about the applicant’s character and not merely a label attaching to the criteria set out in the section. He said (at [51]):
The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day-to-day activities and in dealing with fellow citizens.
He added (at [52]):
A finding that a person is “not of good character” requires the minister to make a supervening determination after having regard to the matters set out in s 501(6)(c).
104 As indicated above, his Honour’s observations about the association test were obiter and were not the subject of comment in the Full Court on appeal. It was submitted for the Minister that the dicta were “mere hypothesising about the operation of the provision” in contrast with the analysis of its operation by Emmett J in Chan 34 AAR 94. The submission asserted that it was apparent that neither Lee J nor the Full Court had been referred to Chan 34 AAR 94 or to the legislative history of the provisions, which had been considered by Emmett J.
The approach to construction – effects of common law rights and freedoms
105 The construction of any statute commences with the ordinary meaning of its words by reference to their context and the statutory purpose. Statutory purpose may be ascertained from express statements of objectives in the Act itself and/or by reference to the scheme and function of the Act overall. Extrinsic materials such as Second Reading Speeches, Explanatory Memoranda or Reports of Law Reform Commissions may throw light upon the purpose of a statute and even in some cases the meaning to be given to its words.
106 Acts of Parliament frequently use words of wide import which require courts to make constructional choices. They may be words capable of two or more meanings, each of which might make sense in the context in which it appears in the Act. Such a case is one of ambiguity and reference to extrinsic materials may point in the direction of one intended meaning rather than another. Alternatively, words may be used which have an ambulatory significance capable of a wide range of applications. Construction involves determining the limits of that range. Terms such as “in relation to”, or “in connection with” raise that kind of problem which, strictly speaking, is not a problem of ambiguity at all. The word “association” falls into this category. It may be read widely enough to pick up many completely innocent connections between people. On the other hand, it may be read narrowly to require some sort of positive involvement in criminal conduct with others.
107 It is an important principle that Acts should be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms. An early, well known and still authoritative statement of that principle is found in Potter v Minahan (1908) 7 CLR 277 which was a case involving the Immigration Restriction Act 1901 (Cth). O’Connor J quoted from the 4th Edition of Maxwell’s Interpretation of Statutes (1905, Sweet & Maxwell) (at 304):
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
See also Bropho v State of Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994) 179 CLR 427 at 437.
108 In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364, the Full Court of the Federal Court considered the application of s 20 of the Migration Act as it then stood. It provided for a person who had been convicted of a crime or crimes and sentenced to imprisonment totalling at least one year to be an illegal entrant and, under s 59, liable to deportation. The question was whether the section was directed to one period of imprisonment resulting from multiple convictions. Relevantly to the present case, Burchett and Lee JJ said (at 372):
Persons whose liberties are protected by the common law, who live in our community, are entitled to have laws of the nature of s 20 read with scrupulous care, and in their narrowest, rather than in some wider, sense. That is because s 20 deprives those caught by it of one of their most precious rights, their right of community. There is no limit to its retroactive effect upon a person who may have lived here as a lawful entrant for, perhaps, 20 or more years. The making of a deportation order is the plainest infringement of liberty; the making of it under a retroactive law underlines the common law’s concern. Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation.
109 The judgment was cited by Sackville J in Gunner v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 507. In Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 his Honour said (omitting case references) (at 401):
I have referred elsewhere to the need to exercise “scrupulous care” in construing legislation which curtails liberties, including laws which deprive people of their “right of community”. … It is, of course, true that the task is ultimately to ascertain the intention of Parliament. Thus, if the statutory language is unmistakable and unambiguous, the Court (subject to any constitutional issues) must give effect to the language, even if the consequence is that the legislation detracts from basic rights and immunities… In this case, however, as I have explained, s 140(1) is ambiguous. It should be given a construction which minimises rather than expands the likelihood that innocent permanent residents will have their entitlement to remain in this country taken away without any opportunity to have their case considered on its merits.
110 Dr Haneef was not, of course, “a permanent resident” (as in Rani 80 FCR 379) but his visa gave him valuable rights. They included the right, for the term of his visa, to live here, to be at liberty here, to be with his wife here, and to work here.
111 The interpretive principle stated in Sciascia 31 FCR 364 and in Rani 80 FCR 379 finds strong expression in the “principle of legality” enunciated by courts in the United Kingdom. Lord Hoffmann put it thus in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 (at 131):
…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
112 These words were anticipated by those of the joint judgment in Coco179 CLR 427 (at 437):
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
113 Freedom is not merely what is left over when the law is exhausted. As TRS Allan put it in 1996:
Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal.
Allan TRS, The Common Law of the Constitution: Fundamental Rights and First Principles in Saunders (ed) Courts of Final Jurisdiction – The Mason Court in Australia (1996, Federation Press) at 148.
It is in this respect, amongst others, that the common law has a constitutional role to play.
The nature of “association” – construction of s 501(6)(b)
114 The construction of “association” in s 501(6)(b) of the Act is to be approached in light of the common law principles reflected in the authorities cited. Those principles, in this context, tend against a construction of s 501 authorising the Minister to “reasonably suspect that [a person] does not pass the character test” merely on the basis of an innocent association with persons whom the Minister reasonably suspects have been or are involved in criminal conduct.
115 The relevant ordinary meaning of the word “association” taken from the Shorter Oxford English Dictionary (5th ed, Oxford University Press, 2002) is:
1. The action of joining or uniting for a common purpose; the state of being so joined.
…
4. Fellowship, companionship; social intercourse (esp in prison).
5. The conjoining or uniting of things or persons with another or others; the state of being so conjoined, conjunction.
116 The Solicitor-General submitted that “association” in s 501(6)(b) refers to “… an association by way of friendship …”. He used the word “mate” to describe the nature of the connection contemplated by the paragraph. Importantly, he eschewed any suggestion that an association could be discerned in such connection as exists between the occasional providers of goods or services and their recipients such as the relationship between shopkeeper and customer, doctor and patient or lawyer and client. A mere family relationship was not enough absent “the relevant degree of friendship”. In doing so he correctly accepted that there were sensible and practical limits to the intended scope of “association” in its relevant context.
117 It should be noted that the Solicitor-General’s “mateship” submission to this Court differed significantly from the submission that he advanced before Spender J. Before his Honour the Solicitor-General submitted that the Minister had based his decision upon Chan 34 AAR 94, and that that judgment was correct (see primary judgment at [154]).
118 In his written submissions on this appeal the Solicitor-General argued that Spender J had misunderstood Chan 34 AAR 94, and that, for example, Emmett J had never intended to include mere familial relationships within the concept of “association”. However, the Solicitor-General made no mention in those submissions, in terms, of “mateship” as being at the core of the notion of “an association with”. Instead, he argued for an intermediate position, submitting that the term connotes a relationship arising from the act of associating with one another. And, that that in turn involved “the deliberate or intentional act of joining with each other in a loose relationship as friends, companions, colleagues, partners, allies or confederates”. He added that it “requires some degree of continuity” and “mutual consent”.
119 The “mateship” submission cannot be accepted. It lacks precision and would be difficult, if not impossible, to apply in practice. Moreover, it imposes a constraint upon the range of connections contemplated by s 501(6)(b) which is not supported by its language or purpose. Whether or not the association contemplated by s 501(6)(b) must reflect upon a person’s actual character, which is the debate before this Court, friendship is no prerequisite for its existence. Accomplices, collaborators or fellow travellers in crime or terrorism need not be friends. It would suffice that they have a common purpose.
120 Both the “mateship” submission, and the intermediate position taken in the written submissions, are difficult to reconcile with the text of the Act. Section 501C(4) allows the Minister to revoke an original decision to refuse to grant a visa, or to cancel a visa, if two conditions are met. The first is that the person makes representations in accordance with an invitation extended under s 501C(3). The second is that the person satisfies the Minister that he or she “passes the character test”, as defined by s 501.
121 It is one thing for the 1999 amendments to have brought about a reversal of the onus, as they plainly did, but it is quite another to contemplate a situation in which the Minister is given the power to revoke a decision, but which in practice cannot ever be enlivened. If the Solicitor-General’s submission as to the meaning of association is accepted, it would be impossible for a person who can prove that they are of good character, and that their “association” was entirely innocent, to establish that they pass the character test. Yet the whole purpose of s 501C(4) seems to be to allow them to do so. See generally Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65.
122 The Solicitor-General submitted that the object of the 1999 amendments was to make it easier for the Minister to exclude from Australia persons who might be thought to pose a risk. He submitted that if some entirely innocent people were caught up in the process that was regrettable, but it was simply the price that had to be paid to ensure the safety of the Australian community.
123 Much of what the Solicitor-General said regarding the object of “risk management” may be accepted. Nonetheless, it is significant that the Parliament did not simply entrust the Minister with an unfettered power to refuse or cancel visas, as it might have done. Rather, it established a scheme whereby a person who had been judged to fail the character test could be given the opportunity to have the decision revoked. The expression “passes the character test” in s 501C(4) must be given meaningful content.
124 The Solicitor-General submitted that the 1999 amendments reversed the effect of the decision in Morales 82 FCR 374 so that the Minister was required to make no judgment as to a person’s character when determining whether that person had failed to pass the character test. It is clear that the power of the Minister to cancel a visa pursuant to ss 501(2) or 501(3) is no longer conditioned on the requirement that the Minister be satisfied that the visa holder is not of good character, as was required under the former s 501(2). The threshold state of mind required of the Minister is that he or she reasonably suspect that the visa holder does not pass the character test. Reading that requirement with the association limb of the test the discretion to cancel is enlivened if the Minister reasonably suspects that the visa holder has, or has had, an association with someone else or with a group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct.
125 Independently of the proper construction of “association” the section achieves the objectives set out in the Second Reading Speech. Relevantly to the character test the objective was to put the “onus … on visa applicants and visa holders to satisfy decision makers that they can pass the test”. This had nothing to do with the meaning to be given to “association”. It was never suggested that the character test was a “deeming provision” in relation to any kind of association with persons suspected of involvement in criminal conduct. The deeming provisions, as they were called in the Second Reading Speech, were those parts of s 501(6) whereby a person would fail the character test if that person had been sentenced to a term or terms of imprisonment in excess of a specified minimum period. It is significant that, in a passage quoted earlier from his Second Reading Speech, the Minister said of that criterion (at 1231):
This will truncate the character assessment process and cover most non-citizens of character concern who come to notice.
The association criterion did not fall into that category and the Parliament was told, through the Senate Legal and Constitutional Legislation Committee, that the Bill did “not change the fact that a person may be judged to be of bad character on being a member of an organisation or an associate of an organisation”. Nor did it necessarily extend to links with family members and other groups that were lawful.
126 These representations to the Parliament left open the view that the association test was based upon associations reflecting adversely upon the character of the visa holder as one who sympathised with, or was supportive of, or was involved in, the suspected criminal conduct. That is not the same as saying that the test had to be applied in such a way as to lead to the conclusion that the person was not of good character in the sense used under the law as it stood prior to the amendments in 1999.
127 We reject the Minister’s submission that the word “character” in the legislative expression “character test” is devoid of significance. The use of the term “character test” itself suggests a legislative purpose directed to the exclusion or removal from Australia of people whose character, a reference to their enduring moral qualities, is at least questionable. Moreover, the Minister’s Second Reading Speech (as noted at [95] above) suggests that the fundamental aim was to deal with persons not of good character, also pointing to the need for some connection between an association and bad character, even if the connection were speculative. Most of the elements of the test set out in s 501(6) are plainly consistent with that purpose. There are some elements that catch persons who might reasonably be regarded as a danger to the community but who would not be regarded as morally blameworthy. A clear example is a person acquitted of an offence on the grounds of unsoundness of mind who has thereafter been detained in a facility or institution.
128 Some aspects of the test apply adversely to persons of good character who pose no danger to Australia. An example might be a person sentenced to death or imprisonment in another country for public criticism of a harsh or repressive government. No doubt, as Emmett J pointed out in Chan 34 AAR 94, such anomalies can be corrected by use of the ministerial discretion to decline to cancel a visa notwithstanding that a person has failed the character test in that way. These are cases in which the overreach of some aspects of the character test cannot be avoided by construing its words narrowly. But that is not to say that the Court should construe words widely to allow them to apply to persons of good character when a narrower construction which would exclude such persons is open.
129 It might be said that the examples of legislative overreach that cannot be construed away reflect a precautionary approach which has been accepted by the legislature and requires a wide construction of all elements of the test. On that view Parliament may be taken to have accepted as collateral damage the risk that the legislation would expose a wide range of innocent people to the risk of cancellation of their visas, detention in immigration facilities and removal from Australia. Although it accommodates anomalies which may impact adversely upon innocent people, the language of s 501(6) does not mandate such a universally wide reading of its terms. The common law principles of interpretation referred to earlier still apply where the language allows. The language of the association test does allow its limitation.
130 Having regard to its ordinary meaning, the context in which it appears and the legislative purpose, we conclude that the association to which s 501(6)(b) refers is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person’s character. It is, of course, not necessary, to enliven the Minister’s discretion to cancel the visa, that the Minister be satisfied that such an association actually exists. It is enough for the purposes of s 501(6) that the Minister reasonably suspects that the visa holder has such an association with someone else or a group or organisation which the Minister reasonably suspects has been or is involved in criminal conduct.
131 In the Minister’s Statement of Reasons (at [2]), under the heading “CHARACTER TEST”, he indicated the following matters as supportive of his reasonable suspicion of the relevant association:
(i) Dr Sabeel Ahmed and Dr Kafeel Ahmed are suspected of involvement in the London incident and the Glasgow bombings.
(ii) Dr Haneef has advised the AFP that he is the second cousin of the Ahmeds.
(iii) Since leaving the United Kingdom Dr Haneef and Dr Sabeel Ahmed have been in correspondence via on-line chat rooms. The most recent correspondence, on 26 June 2007, concerned the birth of Dr Haneef’s daughter.
132 None of these elements, individually or together, is capable of supporting a reasonable suspicion that Dr Haneef knew of, was sympathetic to, supported, or was involved in any way in criminal conduct undertaken by the Ahmeds. The Minister said nothing in his Statement of Reasons to indicate that he had turned his mind to those questions.
133 It is not clear, having regard to the way in which the Statement of Reasons was framed, whether the Minister relied upon the fact that Dr Haneef had been charged on 14 July 2007 as supporting a reasonable suspicion of association with the Ahmeds. It is not possible to glean from the Statement of Reasons whether the Minister relied upon the fact of the charge alone, or at all, or on evidence upon which the laying of the charge was based. No reference to that evidence appeared in the part of the Statement of Reasons that dealt with the test for association.
134 A more expansive view of the Minister’s reasons for his decision may be taken by reference to the Issues Paper. Elements of Dr Haneef’s relationship with the Ahmeds emerged from his taped record of interview with police, the contents of which were referred to in an Annex attached to the Issues Paper. These elements were:
1. Dr Haneef resided with one of his cousins at a boarding house in the United Kingdom when he lived there.
2. He visited another of his cousins at Cambridge University in June/July 2004 and in November 2004.
3. One of his cousins lent him £300 in October 2005 so he could sit a medical exam.
4. When he left the United Kingdom he left behind his mobile telephone SIM card which one of his cousins wanted in order to access the “extra minute deal” offered by the UK service provider, O2, at that time.
5. He and that cousin have continued to correspond in on-line chat rooms, the last time they chatted was March/April 2007.
None of these matters supports an inference of sympathy for, support of, or involvement in, criminal conduct on the part of the Ahmeds.
135 Importantly, whether or not there were materials upon which reasonable suspicion of association properly construed could be found, it is clear that the Minister did not apply the proper test. The Issues Paper directed the Minister to Ministerial Direction 21. Paragraph 1.5 of that direction, which is set out earlier in these reasons, proposed a wide view of “association” as encompassing:
… a very wide range of relationships including having an “alliance” or a “link” or “connection” with a person, a group or an organised body that is involved in criminal activities.
This test, especially in encompassing “links” or connections” without any need to show sympathy, support for, or involvement in, criminal activity runs far too wide. It is a misconstruction of the statutory criterion. Having regard to its place in the Issues Paper and the way in which the Minister appears to have approached his decision, the proper inference is that he applied the wide and therefore incorrect test. In so doing, on the basis of the principles enunciated by this Court in Lobo 132 FCR 93, he fell into jurisdictional error. This was essentially the conclusion reached by Spender J.
Conclusion
136 The Solicitor-General submitted that even if the Court rejected his primary argument regarding the construction of “association”, the appeal should be allowed.
137 He submitted that Spender J had failed to consider whether to grant the relief sought, in the exercise of his discretion, even assuming that the Minister had wrongly interpreted the expression “an association with” in s 501(6)(b). He further submitted that on the material before the Minister, and also on the material before the Court, it would have been open to the Minister to cancel Dr Haneef’s visa in any event. Spender J had accepted that submission, but had not gone on to consider whether, in those circumstances, the relief sought should have been granted.
138 The Solicitor-General argued that the legality of the decision to cancel a visa depends upon the circumstances as they exist to the knowledge of the decision-maker at the time the decision is made. He said that it is nothing to the point that circumstances may change at a later time. Spender J had however noted that the fact that the AFP, and the Director of Public Prosecutions, had charged Dr Haneef with a serious offence was of itself relevant to the nature of the association between Dr Haneef and the Ahmed brothers. That fact, together with the contact which Dr Haneef had had with his cousins would have entitled the Minister to conclude that his association with them was of a kind which fell within s 501(6)(b).
139 According to the Solicitor-General, despite these observations, Spender J did not apply them to the exercise of his discretion regarding the relief sought by Dr Haneef. The question of discretion had been squarely raised, on behalf of the Minister, but not considered by his Honour at all. In oral submissions the Solicitor-General argued that Spender J should have concluded that it would be futile to remit this matter because it would be virtually certain that Dr Haneef’s visa would be cancelled in any event. We are unable to accept these submissions. It is true that Spender J did not refer, in terms, to the discretionary aspects of the relief sought. However, having found that the Minister applied the wrong test, and that this was very much to Dr Haneef’s disadvantage, it is difficult to see how, or why, relief should have been refused in the exercise of discretion. It is certainly far from clear that it would have been futile to remit the matter for reconsideration. Apart from anything else, when the Minister next considers whether to revoke Dr Haneef’s visa the circumstances will have changed. For example, he will be aware of the fact that the charge against Dr Haneef has been withdrawn. The Minister may regard that fact as highly significant.
140 Dr Haneef raised, by way of notice of contention, the issue of the alleged improper purpose of the Minister. He claimed that Spender J should not have rejected his challenge to the Minister’s decision on that ground and he sought to support his case on appeal by giving notice of a motion for an order to adduce further evidence. We stood over that application to await the outcome of our consideration of the principal issues on the appeal. The circumstances that give rise to the alleged improper purpose in cancelling the visa, ie the detention of Dr Haneef in Australia, no longer exist since he has returned to India. The matter is to be remitted to the Minister in accordance with the orders made by the trial judge. There is no practical purpose to be served in dealing with this ground. The applications by notices of motion associated with that ground should be dismissed, but without costs.
141 It follows that the orders made by Spender J should not be disturbed. The appeal should be dismissed with costs.
| I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 21 December 2007
| Counsel for the Appellant: | Dr DMJ Bennett QC, Solicitor-General of the Commonwealth, Mr R Derrington SC, Mr P Bickford, Ms E Ford and Mr G Del Villar |
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| Solicitor for the Appellant: | Australian Government Solicitor |
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| Counsel for the Respondent: | Mr SJ Keim SC, Mr D Rangiah and Ms N Kidson |
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| Solicitor for the Respondent: | Ryan & Bosscher Lawyers |
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| Date of Hearing: | 15 November 2007 |
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| Date of Judgment: | 21 December 2007 |
