FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203
SUMMARY
MINISTER FOR IMMIGRATION AND CITIZENSHIP v DR MOHAMED HANEEF
QUD284 OF 2007
BLACK CJ, FRENCH & WEINBERG JJ
21 DECEMBER 2007
MELBOURNE (HEARD IN BRISBANE)
The following is a summary of the Full Court’s reasons for judgment delivered in Melbourne on Friday, 21 December 2007. Reference should be made to the Court’s published reasons which will be available online at www.fedcourt.gov.au and which are the only authoritative statement of the Court’s reasons. The following summary is prepared to assist public understanding of the essential points on the appeal.
This is an appeal from orders made by Justice Spender setting aside a decision of the Minister for Immigration and Citizenship to cancel a visa that had been issued to Dr Haneef permitting him to come to Australia and to work here as a medical practitioner.
The Minister’s appeal was heard in Brisbane last month by a Full Court constituted by the Chief Justice and Justices French and Weinberg.
The facts can be briefly summarised. Dr Mohamed Haneef and his wife arrived in Australia from India in September 2006. Following attempted terrorist bombings in London on 29 June 2007 and in Glasgow on the following day, two suspects, Dr Sabeel Ahmed and Dr Kafeel Ahmed, were arrested. Both were second cousins of Dr Haneef.
On 2 July 2007 Dr Haneef, who was then working as a doctor at Southport Hospital, was arrested by the Australian Federal Police and later charged with having intentionally provided resources, namely a SIM card, to a terrorist organisation consisting of persons including his two second cousins. On 16 July 2007 he was granted bail by a magistrate in Queensland. Immediately upon the grant of his bail, the Minister cancelled his visa under s 501(3) of the Migration Act and Dr Haneef was kept in detention. The Minister cancelled the visa on the ground that Dr Haneef did not pass the “character test” and that the Minister was satisfied that the cancellation was in the national interest.
On 27 July 2007 the charge against Dr Haneef was dismissed.
The Migration Act specifies various circumstances under which a person does not pass the character test. They include that a 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”.
The Minister suspected that Dr Haneef did not pass the character test because of his “association” with the Ahmeds.
Justice Spender considered that the Minister had misinterpreted the character test and had applied a test that was too wide and could encompass links that could not, in his Honour’s view, conceivably have had any bearing on the visa holder’s character.
On the Minister’s appeal to the Full Court the central issue was, again, the scope of “association” and whether the Minister had applied the incorrect test.
It was common ground on the appeal that there had to be some limits on the scope of “association”, but there was disagreement between the parties as to what those limits were. The Minister argued for a wide definition, relying upon an earlier decision of a single judge of the Federal Court, and Dr Haneef’s counsel argued for a narrower one.
Applying the principles of the common law concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected, the Full Court has agreed with Justice Spender that a narrower interpretation of “association” than that applied by the Minister should be taken to reflect the intention of the Parliament when it enacted the character test.
In a unanimous judgment, the Full Court has concluded that the “association” to which s 501(6)(b) of the Migration Act refers is one involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation with whom the visa holder is said to have associated. The association must be such as to have some bearing upon the person’s character.
The Court has therefore dismissed the Minister’s appeal, with costs.
