FEDERAL COURT OF AUSTRALIA

 

Haneef v Minister for Immigration and Citizenship [2007] FCA 1273

MIGRATION – Section 501 Migration Act – power of Minister to cancel visa – where Migration Act grants a discretion to cancel visa if a) Minister reasonably suspects visa holder does not pass character test and b) cancellation is in the national interest – where Migration Act provides character test not passed if 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 – where Minister cancelled applicant’s visa – where applicant sought review of decision pursuant to s 476A Migration Act

CONSTITUTIONAL LAW – Commonwealth Constitution – where jurisdiction of the same kind exercisable by the High Court under s 75(v) invested in the Federal Court by s 476A Migration Act – where applicant seeks Constitutional writs – Whether Minister acted ultra vires by misconstruing ‘association’, failing to take into account relevant considerations, taking irrelevant considerations into account or acting for an improper purpose – Whether applicant has or has had an ‘association’ with those involved in criminal conduct – Meaning of ‘association’ in s 501(6)(b) Migration Act – Where ‘association’ not met by any association with a person, group or organisation – Where Minister asked the wrong question and applied the wrong test to determine ‘association’ – Where Minister did not otherwise take irrelevant considerations into account or fail to take account of relevant considerations – Where no improper purpose established having regard to the scope and purpose of the Migration Act

CONSTITUTIONAL LAW – Constitutional writs – s 75(v) – Where Minister committed jurisdictional error and decision ultra vires – Writ of certiorari issued quashing decision – Prohibition and/or injunction issued – Declaration made declaring the status of the applicant as a lawful non-citizen

 

Migration Act 1958 (Cth), ss 82, 147, 150, 162, 189, 198, 200, 201, 474, 476A, 501, 501C, 501E, 501G and 503A

The Constitution, ss 75(v) and 76

The Constitution of the United States of America, Article III

Constitutional Reform Act 2005 (UK), s 1

Criminal Code Act 1995 (Cth), s 102.7

Copyright Act 1968 (Cth), ss 10 and 77(1)

Designs (Consequential Amendments) Act 2003 (Cth)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)

Hamdan v Ramsfeld 126 S.Ct. 2749 (2006), cited

Marbury v Madison 5 U.S. 137 (1803), cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, considered

Re Patterson; Ex parte Taylor (2001) 182 ALR 657, applied

Sunday Times v United Kingdom (1979) 2 EHRR 245, cited

Short v Poole Corporation [1926] Ch 66, cited

R v Zaphir [1978] Qd R 151, considered

Railway Express Agency Inc v New York 336 US 106 (1949), cited

Church of Scientology v Woodward (1982) 154 CLR25, considered

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, cited

Craig v State of South Australia (1995) CLR 163, considered

MIMA v Yusuf (2001) 206 CLR 323, considered

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359, considered

MIMIA v SGLB  (2004) 207 ALR 12, cited

Collector of Customs v Pozzolanic (1993) 43 FCR 280, considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Godley v MIMIA (2004) ALD 411, applied

MIMIA v Godley (2005) 141 FCR 552, considered

MIMA v Wai Kuen Chan [2001] FCA 1552, not followed

Chan v MIMA [2001] AATA 487, applied

Burge v Swarbrick (2007) 234 ALR 204, considered

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied

Concrete Pty Ltd v Parramatta Design and Developments Ltd (2006) 231 ALR 663, considered

Vakauta v Kelly (1989) 87 ALR 633, considered

Akpata v MIMIA [2004] FCAFC 65, considered

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, considered

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, considered

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, considered

Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 314, cited

Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87, considered

Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467, considered

Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, considered

Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1988) 81 ALR 288, distinguished

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517, considered

Sydney Municipal Council v Campbell [1925] AC 338, cited

Industrial Equity Limited v Deputy Commissioner of Taxation (1990) 170 CLR 649, cited

Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543, considered

Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373, cited

Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40, considered

Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152, considered

Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336, cited

DR MOHAMED HANEEF v MINISTER FOR IMMIGRATION AND CITIZENSHIP

QUD208 OF 2007

 

SPENDER J

21 august 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD208 OF 2007

 

BETWEEN:	DR MOHAMED HANEEF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

 

JUDGE:	SPENDER J
DATE OF ORDER:	21 AUGUST 2007
WHERE MADE:	BRISBANE

 

THE COURT ORDERS THAT:

 

1.                  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.                  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.                  That the respondent pay the applicant’s costs of and incidental to the proceedings, to be taxed if not agreed.

THE COURT DECLARES THAT:

4.         When the applicant departed Australia on 27 July 2007, his immigration status was that of a lawful non-citizen.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD208 OF 2007

BETWEEN:	DR MOHAMED HANEEF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

 

JUDGE:	SPENDER J
DATE:	21 august 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1                     This is an application made pursuant to s 476A of the Migration Act 1958 (Cth) (the Migration Act). 

2                     On 16 July 2007, the Minister for Immigration and Citizenship (“the Minister” or “the respondent”) cancelled Dr Mohamed Haneef’s (the applicant) Subclass 457 Business (Long Stay (Class UC) visa.

3                     By an application filed on 18 July 2007, the applicant seeks:

1.         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.

 

2.         An order in the nature of a prohibition and/or an injunction restraining the Respondent from acting upon the cancellation of the Applicant’s visa.

 

4                     At the hearing, the applicant received leave, which was not opposed by the Minister, to amend the application to also seek:

3.         A declaration that when the Applicant departed Australia on 27 July 2007, his immigration status was that of a lawful non-citizen.

Jurisdiction of the Court

 

5                     Section 476A of the Migration Act relevantly provides: 

(1)       Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

 

…

 

(c)        the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

…

 

(2)       Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

 

6                     Section 75(v) of the Constitution provides:

75                Original jurisdiction of High Court

 

In all matters

…

(v)               in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

 

7                     The jurisdiction which the Federal Court is asked to exercise in the present proceedings is therefore the same as the jurisdiction of the High Court under s 75(v) of the Constitution.

8                     Of this jurisdiction, David Jackson QC has commented in “Development of judicial review in Australia over the last 10 Years: The growth of constitutional writs” (2004) 12 AJ Admin L 22 at 22:

Section 75(v) is the only provision of the Constitution which provides expressly for judicial review of officers of the Commonwealth, although s 75(iii) goes close.  Three features should be noted immediately about s 75(v):

 

(a)        it is part of the High Court’s original, rather than appellate, jurisdiction;

(b)       the grounds on which a constitutional writ may be sought may, but need not be, constitutional – the case may simply be one of statutory ultra vires;

(c)        the High Court’s jurisdiction, being conferred by the Constitution itself, cannot be taken away by legislation.

 

9                     The importance of s 75(v) of the Constitution (which confers jurisdiction on the High Court, which jurisdiction is the same as is conferred on the Federal Court by s 476A(2) of the Migration Act) cannot be over-estimated.  That provision is a primary constitutional underpinning of the Rule of Law in Australia. 

10                  While ss 75 and 76 of the Australian Constitution are derived from Article III Section 2 of the Constitution of the United States, there is no counterpart of s 75(v) to be found in the Constitution of the United States. 

11                  The absence of an equivalent of s 75(v) means that there can be conduct by officers of the government of the United States that is immune from judicial review by the Supreme Court of the United States.  The Detainee Treatment Act 2005 (US) 119 Stat. 2742. provides in par 1005(e)(1) “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.”

12                  In recent times, challenges to certain US government actions at Guantanamo Bay have centred on appeals as to the lawfulness of the laws rather than their lawful application (Hamdan v Ramsfeld 126 S.Ct. 2749 (2006)).

13                  Section 75(v) appears in the Australian Constitution as a consequence of the finding by the Supreme Court in the United States in Marbury v Madison 5 U.S. 137 (1803).Sir Edmund Barton (later an original judge of the High Court) in the debates of the Australasian Federal Convention in Melbourne in 1898 (“Official Record of the Debates of the Australasian Federal Convention”, Melbourne, 4 March 1898 Vol II at page 1883)referred to the terms of section 2 of Article III of the United States Constitution.  After referring to Marbury v Madison, Sir Edmund said:

…although jurisdiction was given as to cases arising out of the Constitution that itself was only an appellate jurisdiction.  Jurisdiction was not given in any express terms as to writs of mandamus, prohibition, or injunction.  Therefore there was only an appellate jurisdiction.  When the United States Congress tried to confer an original jurisdiction upon the Supreme Court of the United States, it was held that, as there was no such jurisdiction conferred by the Constitution, it could not be conferred by an Act of Congress, because such an Act was outside the Constitution.  For that reason, the statute was held to be void.

 

14                  The purpose of s 75(v) in the Australian Constitution was to ensure that, unlike the Supreme Court, the High Court had original jurisdiction in respect of writs of mandamus, prohibition or injunction.

15                  Sir Edmund said, at p 1884:

This will give the High Court original jurisdiction, as well as appellate jurisdiction, in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.

 

16                  Having referred to the writ of habeas corpus, Sir Edmund Barton said, at p 1884, there was no necessity to put enabling words as to that writ into the Constitution, commenting “It is one of the rights which the subject carries with him so long as he is within British territory …”

17                  Sir Edmund Barton said, at p 1885:

This provision [which became s 75(v)] is applicable to those three special classes of cases in which public officers can be dealt with, and in which it is necessary that they should be dealt with, so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution.

 

18                  As is plain from that contribution to the Constitutional Debates, the purpose of the section is to protect persons against any violation of a law made under the Constitution.  In particular, it permits the Court to restrain a Minister, who is an officer of the Commonwealth, from going beyond his or her duty, or exceeding his or her power.  If the Minister has acted ultra vires of the statute, there is jurisdiction in this case pursuant to s 476A(2), in the Federal Court to grant relief.

19                  This is no more than a manifestation of the Rule of Law.  It is an embedded constitutional guarantee that persons will be dealt with according to law.

20                  In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the High Court was concerned with provisions in the Migration Act,namely ss 474(2) and 474(1), which, on their face, purported to render some decisions made under the Migration Actimmune from judicial review.

21                  Section 474(2) provided:

In this section: “privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act ….

 

22                  Section 474(1) of the Migration Actprovided:

A privative clause decision:

(a)        is final and conclusive;

(b)       must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

(c)        is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

 

23                  Five judges of the High Court (Gaudron, McHugh, Gummow, Kirby, and Hayne JJ) said at [103] in their joint judgment:

… The issues decided in these proceedings are not merely issues of a technical kind involving the interpretation of the contested provisions of the Act.  The Act must be read in the context of the operation of s 75 of the Constitution.  That section, and specifically s 75(v), introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review.  There was no precise equivalent to s 75(v) in either of the Constitutions of the United States of America or Canada.  The provision of the constitutional writs and the conferral upon this court of an irremovable jurisdiction to issue them to an officer of the Commonwealth constitutes a textual reinforcement for what Dixon J said about the significance of the rule of law for the Constitution in Australian Communist Party v Commonwealth [(1951) 83 CLR 1 at 193; cf Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381 [89]; 152 ALR 540 at 569 per Gummow and Hayne JJ.].  In that case, his Honour stated that the Constitution [(1951) 83 CLR 1 at 193]:

 

… is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed.  Among these I think that it may fairly be said that the rule of law forms an assumption.

 

24                  The centrality of the constitutional writs for the protection of the Rule of Law in Australia appears from their Honours’ observations in Plaintiff S157/2002,immediately following the significance of the Rule of Law for the Constitution noted in the quotation by Dixon J set out above.  The five judges said:

[104]   The reservation to this court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them.  The centrality, and protective purpose, of the jurisdiction of this court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action.  Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction.  In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker.  Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this court.  The court must be obedient to its constitutional function.  In the end, pursuant to s 75 of the Constitution, this limits the powers of the parliament or of the executive to avoid, or confine, judicial review.

 

25                  The primary question in the present proceedings is whether, as the applicant claims, the Minister committed jurisdictional error in his exercise of the powers that s 501 of the Migration Actconfers on him in relation to the cancellation of the applicant’s visa. 

26                  Gaudron J said in Re Patterson; Ex parte Taylor (2001) 182 ALR 657at [82]-[83] :

A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form. 

…

… the parliamentary secretary misunderstood the nature of the jurisdiction she was exercising by failing to appreciate that there would, in effect, be no opportunity for Mr Taylor to seek revocation of her decision.

 

27                  Chief Justice Gleeson in Plaintiff S157/2002 said at [5]:

Section 75(v) of the Constitution confers upon this court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth.  It secures a basic element of the rule of law.  The jurisdiction of the court to require officers of the Commonwealth to act within the law cannot be taken away by parliament.  Within the limits of its legislative capacity, which are themselves set by the Constitution, parliament may enact the law to which officers of the Commonwealth must conform.  If the law imposes a duty, mandamus may issue to compel performance of that duty.  If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction.  An injunction may issue to restrain unlawful behaviour.  Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed.  But it cannot deprive this court of its constitutional jurisdiction to enforce the law so enacted.

 

28                  Parliament has in s 501 of the Migration Act created and defined the requirements that have to be met before the power given to the Minister to cancel a person’s visa can be exercised.

29                  Callinan J in Plaintiff S157/2002 commenced his reasons for judgment with the following:

Constitutional law in a federal system has been described as “a unique mixture of history, statutory interpretation, and some political philosophy”.[Menzies, Afternoon Light, 1967, p 320.]  In resolving this case, resort to each of these is necessary: history for an understanding of the law in relation to prerogative writs at the time of Federation and the considerations which moved the founders to use the language that they did in s 51(xxix) and (xxxvii), and Ch III of the Constitution; statutory interpretation to construe both the provisions of the enactment under challenge, and the Constitution which is both the source of the power to enact them, and the instrument which prescribes the powers conferred on this court to examine and pronounce upon their validity; and, political philosophy for an understanding of the need for each of the arms of government, the parliament, the executive and the judiciary to pay due deference to, and not to intrude upon the roles of one another, in the good, that is to say the lawful and efficient government of the nation.

 

30                  As Callinan J’s observation emphasises, in the proper administration of the lawful and efficient government of the nation, each of the arms of government - the parliament, the executive, and the judiciary - has a role to play, and each of the arms of government must pay due deference to, and not to intrude upon, the roles of the other arms of government.

31                  The preceding observations demonstrate that there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security. 

32                  True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government “to ensure that ministerial or other official action (is) lawful and within jurisdiction,” as the plurality judgment at [104] of Plaintiff S157,set out at [23], makes plain.

33                  As David Jackson said in the article on the growth of constitutional writs earlier referred to (at 29):

… Section 75(v) reflects a distinct constitutional value, namely that there will always be a court which has jurisdiction to determine the legality of the performance by officers of the Commonwealth, judicial or non-judicial, of their functions, or the legality of their failure to perform them.

 

It is a value which I think does assist in maintaining the rule of law in this country ...

 

34                  The Right Honourable Lord Bingham of Cornhill, the former Lord Chief Justice of England and Wales, speaking extra-judicially on “The Rule of Law” ((2004) 15(3) Commonwealth Lawyer 22) referred tothe Constitutional Reform Act 2005 (UK), which radically reconfigures the legal system in the United Kingdom. 

35                  The Constitutional Reform Act 2005 provides in section 1 that the Act does not adversely affect “the existing constitutional principle of the rule of law” or “the Lord Chancellor’s existing constitutional role in relation to that principle”.  Lord Bingham noted that the Act does not define “the existing constitutional principle of the rule of law”, nor the “Lord Chancellor’s existing constitutional role in relation to it.”

36                  Nonetheless, Lord Bingham said , at 22-23:

…the statutory affirmation of the rule of law as an existing constitutional principle and of the Lord Chancellor’s existing role in relation to it does have an important consequence: that the judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so.

 

37                  Lord Bingham said, at 23:

The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.

…

I think that this formulation, of course owing much to Dicey, expresses the fundamental truth propounded by John Locke in 1690 that “Where-ever law ends, tyranny begins”,[John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge University Press, 1988, p 400.] and also that famously stated by Thomas Paine in 1776,

“that in America THE LAW IS KING.  For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” [Thomas Paine, Common Sense (London: Everyman’s Library 1994),p 279.]

 

38                  His Lordship suggested that there were implied a series of sub-rules which are necessary to be understood in order to examine the scope of the existing principle. 

39                  The first sub-rule enunciated by Lord Bingham at 23 was that “the law must be accessible and so far as possible intelligible, clear and predictable.”  And his Lordship said:

… without challenging the value or legitimacy of judicial development of the law, the sub-rule under consideration does in my view preclude excessive innovation and adventurism by the judges. It is one thing to alter the law’s direction of travel by a few degrees, quite another to set it off in a different direction.  The one is probably foreseeable and predictable, something a prudent person would allow for, the other not.  Thus one can agree with Justice Heydon of the High Court of Australia that judicial activism, taken to extremes, can spell the death of the rule of law. [J.D. Heydon, “Judicial Activism and the Death of the Rule of Law”, Quadrant, January-February 2003.]

 

40                  As Lord Bingham noted at 24:

The distinction between a legitimate development of the law and an objectionable departure from settled principle may of course provoke sharp differences of opinion: see, for example, Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349.

 

41                  This first sub-rule, in Lord Bingham’s view, was obvious.  He said, “… if everyone is bound by the law they must be able without undue difficulty to find out what it is.” 

42                  The European Court of Human Rights said in Sunday Times v United Kingdom (1979) 2 EHRR 245 at 271, [49]:

The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case … a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

 

43                  The third sub-rule advanced by Lord Bingham at 25 was that:

… the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. … While some special legislative provision can properly be made for some categories of people such as children, prisoners and the mentally ill, based on the peculiar characteristics of such categories, we would regard legislation directed to those with red hair (to adapt Warrington LJ’s long-lived example) as incompatible with the rule of law.

 

44                  Warrington LJ said in Short v Poole Corporation [1926] Ch 66 at 91:

It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative.  It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide.  To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for some equally frivolous and foolish reason, the Court would declare the attempted dismissal to be void.

 

My view then is that the only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters which if proved to exist might establish the ultra vires character of the act in question.

 

45                  It is perhaps anachronistic to note that Short v The Poole Corporation concerned the termination of a married woman’s engagement as a teacher, because of the adoption by the respondent corporation of a general policy against the employment of married women teachers.  Romer J, at first instance, concluded that the object of the defendants in attempting to dismiss the plaintiff was in pursuance of motives in no way connected with the efficient maintenance of the schools, or of education in their district, but for motives alien and irrelevant to the discharge of their statutory duties.  

46                  The Court of Appeal, Warrington LJ and Sargant LJ, reversed the decision of Romer J. 

47                  Warrington LJ referred to the opinion of the defendant Authority at pp 91-92: 

… that it is as a general rule inadvisable to retain married women as teachers in the public elementary schools.  I can see nothing in this view alien or irrelevant to the making and keeping efficient the public elementary schools

…

With the question whether a particular policy is wise or foolish the Court is not concerned; it can only interfere if to pursue it is beyond the power of the Authority. 

 

48                  Lord Bingham at 25 quotes David Cole, Enemy Aliens (New York: New Press, 2003 p 85), who wrote:

Virtually every significant government security initiative implicating civil liberties – including penalizing speech, ethnic profiling, guilt by association, the use of administrative measures to avoid the safeguards of the criminal process, and preventive detention – has originated in a measure targeted at noncitizens.

 

49                  Laws must be of general application.  If government can arbitrarily select those to whom the law, and consequent sanctions, will apply, there is no Rule of Law, but arbitrary whim.

50                  In R v Zaphir [1978] Qd. R 151, Zaphir had been charged with an offence under s 359 of the Criminal Code (Qld)which relevantly provided:

Any person who threatens … cause any detriment … to another with intent to compel him to do any act which he is lawfully entitled to abstain from doing, is guilty of a misdemeanour …

 

51                  On the appeal to the Court of Criminal Appeal, it was argued that the “detriment” in the section had necessarily to involve a criminal or unlawful connotation.

52                  Wanstall CJ with whom Matthews J agreed said at 164:

It is sufficient for present purposes to treat s. 359 of the Code as at least bringing within its scope the uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise.  Whether or not it extends to threats to cause a detriment to another by bringing about a consequence which is not in violation of the other’s legal right should be left for decision in an appropriate case.

 

53                  In argument it was suggested that a mother threatening to withhold pocket money if a child did not tidy their room, or a football coach refusing to give a footballer a game if he failed to attend training on Tuesday or Thursdays, or the withdrawal of sexual favours in the Lysistrata example would all fall within the literal meaning of the section and would thus require the word “detriment” to be construed more narrowly. 

54                  Differing from the view of Wanstall CJ, Justice Kelly said of this submission, at 180:

There is no reported case in which the interpretation of this section has been considered but to my mind the question which arises here is free from difficulty.  The words “injury” and “detriment” are both qualified by the further words “of any kind,” and that being so I can see no warrant for importing a qualification that the injury or detriment must involve a criminal or unlawful connotation.  Examples were given in the course of argument to illustrate the consequences which would ensue in situations in everyday life if the word “detriment” were not to be qualified in this way.  In my view these considerations do not justify placing, as it were, a gloss upon the section which would be contrary to its clear words.  It is not to be expected that the section would be invoked in circumstances such as those used by way of illustration even though on its strict terms it would seem to apply.

 

55                  Concerning the requirement that the law be of general application, and equal in operation, Lord Bingham quotes the observation of Justice Jackson in the Supreme Court of the United States in Railway Express Agency Inc v New York 336 US 106, 112-113 (1949):

The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.  Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.  Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

 

56                  These comments, in my opinion, bear on how the “association test” in s 501(6)(b) of the Migration Act is properly to be construed.  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?

57                  Lord Bingham said at 27:

My sixth sub-rule expresses what many would, with reason, regard as the core of the rule of law principle.  It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.  This sub-rule reflects the well-established and familiar grounds of judicial review. [See Jeffrey Jowell, “The Rule of Law Today” in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution, 5^th ed, (Oxford, 2004), pp 20-21] 

 

58                  There has been erroneous and ill-informed comment that the present proceedings are “a bout between a section of the judiciary and the executive.”  Lord Bingham, in observations appropriate to comments of that kind, said at 28:

Some sections of the press, with their gift for understatement, have spoken of open war between the government and the judiciary.  This is not in my view an accurate analysis.  But there is an inevitable, and in my view entirely proper, tension between the two.  There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live.  Such tension exists even in quiet times.  But it is greater at times of perceived threats to national security, since governments understandably go to the very limit of what they believe to be their lawful powers to protect the public, and the duty of the judges to require that they go no further must be performed if the rule of law is to be observed.  This is a fraught area, since history suggests that in times of crisis governments have tended to overreact and the courts to prove somewhat ineffective watchdogs. [See Tom Bingham, “Personal Freedom and the Dilemma of Democracies” (2003) 52 ICLQ 841.]  In our country and in the United States, decisions have been made of which neither country can be proud. [In this country, one would instance R v Halliday [1916] 1 KB 738, [1917] AC 260 and Liversidge v Anderson [1942] AC 206; in the United States, notably, Korematsu v United States 323 US 214 (1944), a decision which Scalia J has put on a par with that in Dred Scott, thereby assigning it to the lowest circle in Hades.] The cautionary words of Justice William Brennan of the United States Supreme Court in 1987 remain pertinent:

 

“There is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties have received in the United States during times of war and perceived threats to national security … After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary.  But it has proven unable to prevent itself from repeating the error when the next crisis came along.” [William J Brennan Jr, “The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises” 18 Israel Yearbook of Human Rights (1988) 11.]

 

59                  The Chief Justice of Australia, Murray Gleeson, speaking extra-judicially in “Courts and the Rule of Law”. (Lecture at Melbourne University, 7 November 2001,  www.hcourt.gov.au/speeches/cj/cj_ruleoflaw.htm) noted that “the rule of law does not mean rule by lawyers.”

60                  Lord Bingham concluded his paper at 30 by remarking:

The individual living in society implicitly accepts … the constraints imposed by laws properly made because of the benefits which, on balance, they confer.  The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do.  If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law.  For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live.

 

61                  Lord Bingham noted:

Lord Goldsmith (then Attorney-General for England and Wales) is of course right that responsibility for maintaining the rule of law rests on Parliament as well as the courts.

 

62                  As to the deference that Courts ought properly give to decisions of the executive in matters of national security, observations by the High Court in Church of Scientology v Woodward (1982) 154 CLR25 are relevant.

63                  Mason J, as his Honour then was, said, at 55:

It would be too much to say that the supervisory jurisdiction of the courts cannot be impliedly excluded by statute, though no case of implied exclusion was cited to us in argument.  But it is not too much to say that any suggestion that Parliament has impliedly excluded judicial review, especially for ultra vires, should be viewed with extreme caution, indeed with healthy scepticism.

 

64                  At 59, Mason J said:

Surveillance in association with the obtaining, storage and dissemination by a government organization of information relating to private citizens can only be justified in a democratic society by the need to protect that society, i.e., on security grounds.

…

No-one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security.  But it does not follow that ASIO’s activities should be completely free from judicial review.  To so conclude would be to ignore the protection which is given by the doctrine of Crown privilege to information the disclosure of which is prejudicial to national security.

 

It is one thing to say that security intelligence is not readily susceptible of judicial evaluation and assessment.  It is another thing to say that the courts cannot determine whether intelligence is “relevant to security” and whether a communication of intelligence is “for purposes relevant to security”. 

 

65                  Brennan J, as his Honour then was, said, at 70:

Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

 

66                  At 74, Brennan J asked:

… how can the gravity of a security risk be evaluated by a court?  It may be necessary to evaluate Australia’s relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof.  It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction.  It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely.  However, it does not follow that judicial review is excluded.

 

67                  As to the intersection of matters of national security with the administration of civil justice, Brennan J said at 76:

The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice. …

 

68                  It is right to acknowledge the political character of the Minister’s office, and his accountability to the Parliament, and of the government ultimately to the electorate.  The Minister is nonetheless susceptible to the requirements of the law that he act within the jurisdiction conferred by the Parliament on him.

The Legislative Framework

69                  Section 501 of the Migration Acthas the heading “Refusal or cancellation of visa on character grounds”, and provides, relevantly:

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.

70                  It is to be noted that, although “does not pass the character test” is not in the form of a definition, it clearly is a definition.  The note that follows s 501(1) confirms this. 

71                  Further, the language used in s 501(6), and, in particular, the word “if”, indicates that this definition of the “does not pass the character test” is a definition which “means” rather than “includes” the meanings provided.  The learned authors in DC Pearce and RS Geddes, Statutory Interpretation in Australia (6^thed, Butterworths, 2006) at [6.56], make it clear that such a definition is intended to be exhaustive.

72                  The contention by the Minister is that the second instance of the character test, that in s 501(6)(b), has no element of personal fault.  In support of this contention, the Solicitor-General, David Bennett QC, contrasts the language at s 501(6)(b) with the other paragraphs of the subsection.  Further, he suggests that even in relation to s 501(6)(a), there is scope for an absence of relevant fault, and gives by way of example “a person convicted and sentenced for blasphemy in a Middle Eastern country”.

73                  Counsel for the applicant contends that s 501(6)(b), on its proper construction, requires a connection between the visa holder and those suspected of criminal conduct that involves personal fault, or reflects adversely on the character of, the visa holder; any connection is not sufficient.

74                  These submissions will be considered in greater detail later.

75                  The Minister complied with his statutory obligations under s 501C(3).  Further, the Minister provided a statement of reasons.  There was no express statutory obligation to do so.   Section 501G(1)(e) imposes an obligation of the Minister to give reasons for a decision made under s 501 subss (1) or (2) or s 501A(2) or s 501B or s 501F.  The decision in the present proceedings was made under s 501(3) and is not therefore a decision to which the obligations in s 501G applied.

76                  Section 503A is headed “Protection of information supplied by law enforcement agencies or intelligence agencies” and provides: 

(2)       If:

 

(a)        information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or

 

(b)        information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);

then:

 

(c)        the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and

 

(d)       if the information was communicated to an authorised migration officer – the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or persons.

 

(3)       The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal  However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.           

77                  Protected information under s 503A communicated to an authorised migration officer cannot be communicated or divulged by that officer except to the Minister, or an authorised migration officer.  Section 503A permits the Minister to authorise the disclosure of specified information to specified persons or bodies.

78                  There has not been a declaration under s 503(3) in force which authorised the disclosure of protected information to the Federal Court for the purposes of this proceeding.

79                  It follows that there has been no occasion to consider whether the Court should make non-disclosure orders concerning the protection of confidential information disclosed to it.

80                  The evidence before the Court on this application does not include any part of the protected information that was before the Minister.  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.

81                  The contents of any release to the public, by or on behalf of the Minister of what might, or might not be part of that protected information, or a summary or version of part of that protected information, is not in evidence before the Court.    I am not concerned with the lawfulness or propriety of any such release of that protected information to the public.

82                  The Minister could have made a declaration pursuant to s 503A(3) for authorising the disclosure of specified information to this Court, but has not done so.

Factual Background

83                  At 3.46 pm on 16 July 2007, Dr Haneef was hand-delivered a notice of visa cancellation under s 501(3) of the Migration Act, which had been signed by Peter White, the Assistant Secretary, Character Assessment and War Crimes Screening Branch of the Department of Immigration and Citizenship.

84                  With that notice was a copy of the full text of s 501 of the Migration Act.

85                  The notice said, in part:

In making this decision, the Minister also had reference to Ministerial General Direction Number 21 -  “Visa refusal and cancellation under s 501 of the Migration Act 1958”.  While the Minister is not bound by the Direction in making the decision under section 501(3), it is open to him to be guided by the Direction in making a decision personally.

 

86                  A copy of Direction 21 was included in the material hand delivered to the applicant.

87                  That material also included a copy of the submission and attached evidence that the Minister considered in making the decision to cancel the applicant’s visa under s 501(3).  The notice of cancellation further stated:

One of the documents considered by the Minister (Annexe 3 of the Issues Paper) is protected under section 503A and cannot be disclosed to you.

 

88                  The notice invited the applicant to make representations to the Minister about revocation of the decision to cancel his visa pursuant to s 501C of the Act, a copy of which was in the material delivered to the applicant.

89                  Direction 21, a copy of which was given to Dr Haneef, was made by Phillip Maxwell Ruddock, the then Minister for Immigration and Multicultural Affairs, on 23 August 2001.  Mr Ruddock gave the Direction pursuant to s 499 of the Migration Act. 

90                  The Direction says:

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 purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.

 

91                  Direction 21 provides:

1.3              There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501(6).

Paragraph 501(6)(a) “substantial criminal record”

 

…

 

Paragraph 501(6)(b) “association” grounds

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.

 

Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct

 

1.7       Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is “not of good character” on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test.  In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

 

92                  Under this last heading relating to s 501(6)(c), the decision-maker is obliged to take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

93                  The comments under 501(6)(c) are divided into two sections, the first dealing with past and present criminal conduct and the second dealing with past and present general conduct. 

94                  In considering whether a non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights, the Direction 21 includes, but is not limited to a consideration  of the following matters:

·        engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;

·        continual evasion or non-payment of debt;

·        continual disregard as to payments of family maintenance;

·        involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, “white collar” crime, fraud, breaches of immigration law; or

·        involvement in war crimes or crimes against humanity.

 

95                  The Minister also had before him, at the time of making the decision to cancel the applicant’s visa, a submission prepared by Mr Peter White; the applicant’s Movement Details; Protected Information pursuant to s 503A of the Act, which material was not delivered to the applicant, but was referred to in the material that was delivered to him as “Annex 3”.

96                  Also in the material hand delivered to the applicant on the afternoon of 16 July 2007, and which material was before the Minister when he made his decision to cancel the applicant’s visa, was annex 4 detailing the attempted London car bombings; annex 5 detailing the Glasgow airport bombing; annex 6, being an extract from an article on the website for the Sydney Morning Herald, entitled “Britain wants doctor extradited”; annex 7 being an extract of an article entitled “Suspect arrested at Brisbane airport used to be doctor at NHS hospital in Liverpool” from the Guardian in the United Kingdom; and annex 8 being an extract of an article “Hospital keeping Haneef’s job open” from the ABC.

97                  The Chronology presented to the Court by the respondent says, accurately, that the material before the Minister disclosed the following factual and relevant allegations: 

(a)                That Dr Haneef arrived in Australia on 11 September 2006 on a Subclass 457 – Business (Long Stay) (Class UC) visa (“the visa”) and had not departed since;

 

(b)               That Dr Haneef had not previously been considered under s.501 or 2.200 of the Act;

 

(c)                That Dr Haneef was currently on remand at the Brisbane City Watchhouse;

 

(d)               That on the 2^nd of July 2007 Dr Haneef was arrested by the Australian Federal Police (“the AFP”) and Queensland Police members attached to the Joint Counter Terrorism Team (Brisbane) at Brisbane International Airport for allegedly Providing Support to a Terrorist Organisation contrary to s.102.7 of the Criminal Code Act 1995 (Cth) (“the Criminal Code”);

 

(e)                That on 14^th of July 2007 Dr Haneef was formally charged with intentionally providing resources to a terrorist organisation, consisting of persons including Sabeel [Ahmed] and Kafeel [Ahmed], and being reckless as to whether the organisation was a terrorist organisation, contrary to s.102.7 of the Criminal Code;

 

(f)                 That the AFP and Queensland Police arrested Dr Haneef after the AFP received information from the Metropolitan Police Services (“MPS”) Counter Terrorism Command (“CTC”) that Dr Haneef was a person of interest to their investigation through his association with two of the United Kingdom suspects believed to have been involved in the London incident and the Glasgow bombings;

 

(g)                That Dr Haneef had advised the AFP that he was the second cousin (on his mother’s side) of two of the UK suspects, Sabeel and Kafeel;

 

(h)                That according to information provided by Dr Haneef to the AFP, Dr Haneef first arrived in the United Kingdom in March 2004 and was employed as a locum at the Halton Hospital, Runcorn, Cheshire until 2005 which was the same hospital with which Dr Sabeel Ahmed was employed;

 

(i)                  That Dr Haneef advised the AFP that he resided with Dr Sabeel Ahmed at a boarding house located at 13 Bentley Road, Liverpool, UK;

 

(j)                 That Dr Haneef advised the AFP that in June/July 2004 and November 2004 he visited Kafeel at Cambridge University and further advised the AFP that in October 2005 Kafeel loaned Dr Haneef ₤300 to sit a medical exam;

 

(k)               That when Dr Haneef left for Australia he left several items at the abovementioned Liverpool address including his mobile telephone, including both the handset and the SIM card.  The mobile phone was connected to the UK service provider “O2”;

 

(l)                  That since leaving the UK, Dr Haneef and Dr Sabeel Ahmed had been in correspondence via online chat rooms.  The most recent correspondence was the 26^th of June 2007 regarding the birth of Dr Haneef’s daughter;

 

98                  The Minute by Mr White to the Minister, dated 16 July 2007, after noting the information set out in (l) immediately above, continued:  “There is additional material to support the association that is protected under s 503A of the Act, and this is at annex 3.”

99                  The Minute without annexures is of some 14 typed pages.  Paragraph 62, which is on page 12 of the Minute, says:

On 16 July 2007, Dr HANEEF was granted bail by the Brisbane Magistrates Court in relation to the charge against him under section 102.7 of the Criminal Code Act 1995.

 

100               On 16 July 2007, Mr Kevin Andrews, the Minister for Immigration and Citizenship, signed a document dated 16 July 2007 headed “Decision by the Minister for Immigration and Citizenship”.

101               Omitting deletions, that document stated: 

I have considered all the relevant matters including an assessment of the character test as defined by subsection 501(6) of the Migration Act 1958, the Ministerial Direction under section 499 of that Act, an assessment of the national interest, and all evidence before me provided by, on behalf of, or in relation to Dr HANEEF’s [sic] in connection with the proposed cancellation of his Subclass 457 Business (Long Stay)(Class UC) visa.

…

 

(d)       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.

 

102               The Minister’s Statement of Reasons dated 16 July 2007 was hand delivered to the applicant on 3.45 pm on that day.

103               The Statement of Reasons was divided into three sections.  

104               Under the heading, “CHARACTER TEST”, the following appears:

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.

 

105               Under the heading “NATIONAL INTEREST” the following appears:

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.

 

106               Under the heading “DISCRETION” the following appears:

8.                  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 carefully assessed all of the information set out in the Issues Paper and considered whether to exercise my discretion to cancel Dr HANEEF’s visa.  Although there are no particular considerations governing the exercise of my discretion, I decided, using Direction 21 on Visa Refusal and Cancellation under Section 501 as a guide, to consider and balance the following factors:

 

107               The Statement of Reasons then set out matters headed Primary Considerations, and Other Considerations.  Under Primary Considerations, the first subheading was Protection of the Australian Community.  Under this subheading,  the Statement of Reasons said:

9.         I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Dr HANEEF’S suspected conduct, the likelihood that such conduct  might be repeated (risk of recidivism), and general deterrence.

 

108               The Minister’s Statement continued:

10.       I am aware that Dr HANEEF has been charged but not convicted of 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.  I also noted that on 16 July 2007, Dr HANEEF was granted bail by the Brisbane Magistrates Court in relation to that charge.

 

109               Under subheading Seriousness and nature of conduct, the Minister said that he regarded the offence created by s 102.7 with which Dr Haneef has been charged as “very serious” and also noted that on 16 July 2007, Dr Haneef was granted bail by the Brisbane Magistrates Court in relation to that charge.  The Minister also said:

15.       I also note that Dr HANEEF is a person of interest to the British Metropolitan Police Service, Counter Terrorism Command (MPS CTC), and to their investigation of the recent bombings in London and Glasgow.

 

110               Under the subheading Deterrent to others, the Minister said:

19.       I note that the Australian Government has a strong interest in deterring non-citizens from providing support to terrorist organisations/networks.

 

111               Under the heading Other Considerations, the Minister said:

28.       I also considered that 16 July 2007, Dr HANEEF was granted bail in relation to the charge against him under section 102.7 of the Criminal Code Act 1995.

29.       I also considered that Dr HANEEF is currently on a Subclass 457 Business (long stay)(class UC) visa, and was working at the Gold Coast Hospital.

 

30.       I also noted that he had not previously been warned of visa cancellation under section 501 or criminal deportation under section 201 of the Act.

 

31.       I found that the ‘other considerations’ weigh against visa cancellation.  I gave these considerations moderate weight.

 

112               The Minister concluded his Statement of Reasons with the following:

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).

 

113               On 14 July 2007, an application for bail had been made on behalf of the applicant in the Brisbane Magistrates Court, and the Magistrate reserved her decision until 9.30 am on 16 July 2007.  The charge that had been laid that day against the applicant was:

On or about 27 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.

 

114               Neither the Minute to the Minister, nor the Minister’s Statement of Reasons refer to the date of the charge, 27 July 2006, nor identify the resources alleged to have been provided as a subscriber information module (SIM) card.

115               On 16 July 2007, at about 11 am, the Magistrate granted conditional bail to the applicant.  As noted earlier in these reasons, paragraph 62 of the Minute to the Minister dated 16 July 2007 recorded that Dr Haneef had been granted bail by the Brisbane Magistrates Court.  Paragraph 3 of that Minute under the heading Current Location says, “Dr HANEEF is currently on remand at the Brisbane City watch house.”  

116               It is apparent from facsimile markings from the statement of reasons that was hand delivered to Dr Haneef on 16 July 2007, that the reasons for decision had been signed by the Minister before 1.22 pm on 16 July 2007. 

117               The evidence before the Court establishes that subsequent to the decision to cancel the applicant’s visa, and before the communication of that decision to Dr Haneef, the Minister held a press conference at about 1.45 pm on 16 July 2007.  In that press conference, the Minister, amongst other things,  said:

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.

 

118               On 17 July 2007, the Attorney-General, Phillip Ruddock, signed a Commonwealth Criminal Justice Stay Certificate under s 147 of the Migration Act. 

119               Section 147 of the Migration Act relevantly provides:

147      Commonwealth criminal justice stay certificate

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

…

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.

 

120               Section 150 of the Migration Act provides:

150      Criminal justice stay certificates stay removal or deportation

 

If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.

 

121               Mr Barry Cosgrove, a solicitor with the Australian Government Solicitor having carriage of the matter on behalf of the Minister, said that the certificate had been provided to the Minister by persons from the Attorney-General’s Department by email, which was received at 11.09 am on 17 July 2007.  That certificate certifies that, “… thestay of the removal or deportation of Mohamed HANEEF … from Australia is required for the administration of criminal justice.”

122               At 3 pm on 27 July 2007, the Commonwealth Director of Public Prosecutions offered no evidence in respect of the charge against the applicant under s 102.7 of the Criminal Code (Cth), and the charge was dismissed in the Brisbane Magistrates Court.

123               The Criminal Justice Stay Certificate was cancelled by the Attorney-General, either on 27 or 28 July 2007. 

124               The applicant left Australia on 28 July 2007 and is presently in Bangalore, India.

The Issues on this Application

125               The power of the Federal Court is limited by the privative clause provision in s 474(1) of the Migration Act.  However that provision has application only to a decision that does not involve jurisdictional error.  It is the contention of the applicant that the decision of the Minister to cancel the applicant’s visa on 16 July 2007 involved jurisdictional error.

126               As to what constitutes jurisdictional error, the High Court in Craig v State of South Australia (1995) CLR 163 said at 179:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.   Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

 

127               This passage was referred to by McHugh, Gummow and Hayne JJ in MIMA v Yusuf (2001) 206 CLR 323.  Their Honours continued at [82]:

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.

 

128               The central question in this case is whether the Minister misconstrued the terms of s 501(6)(b):

A person does not pass the character test if:

…

(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;

 

129               The judgment of the Full Court of the Federal Court (French, Sackville and Hely JJ) in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 (Lobo) is directly relevant to the present question.

130               In Lobo, the delegate of the Minister was concerned with the grant of a subclass 845 visa.  Clause 845.216 of the Second Schedule of the Migration Regulations prescribed a criterion in which the Minister must be satisfied before he could grant such a visa.  His satisfaction that the criterion had been satisfied was a necessary condition of his power to grant the visa.  If he was satisfied that the criterion had been satisfied, and that the other conditions set out in s 65(1)(a) of the Migration Act were met, then he had a statutory duty to grant the visa.

131               The Full Court said at [43]:

Where the minister misconstrues one of the criteria prescribed in the Act or regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all.  For, on the face of it, he has failed to ask the question which the Act and regulations, upon a proper construction of the criterion, require him to ask.  In such a case, absent s 474, the minister’s decision would be a nullity.  The minister has not done that which the Act requires him to have done.  The decision would be a purported decision of no legal effect.

 

132               The Full Court noted that the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157 held, at [76], that an administrative decision which involves jurisdictional error is “regarded in law as no decision at all”.  

133               On the appeal to the Full Court in Lobo, it was not disputed that the departmental policy to which the Tribunal adverted was narrower than the criterion for a subclause 845 visa set out in cl 845.216 of the Second Schedule to the regulations.  In the light of that concession, the Full Court concluded that failure to satisfy the criteria set out in the departmental policy did not equate to failure to satisfy the criterion in cl 845.216.  In consequence, the Tribunal fell into jurisdictional error. 

134               The Full Court said at [65]:

It is apparent from the reasons of the tribunal … that the tribunal treated assessment according to the departmental policy as assessment for the purposes of cl 845.216.  In so doing it erred and its error was jurisdictional.  It did not address the question which s 65(1) of the Act required it to address.

 

135               An application for special leave was refused by the High Court (Gummow and Hayne JJ) [2004] HCATrans 21) on 13 February 2004, their Honours stating that the decision in Lobo by the Full Court of the Federal Court was “not attended by doubt”.

136               In MIMIA v SGLB  (2004) 207 ALR 12, Gummow and Hayne JJ (with whom Gleeson CJ agreed) indicated at [49] that the nature of the alleged error in Plaintiff 157 was the denial to the plaintiff of jurisdictional fairness. 

137               Their Honours in [50] and [51] turned to other cases where the nature of the alleged error turned on the meaning of the legislative criterion of jurisdiction.  Their Honours said:

[50]     In other cases, the nature of the alleged error will turn upon the meaning of the legislative criterion of jurisdiction, making the construction of the legislation the primary and essential task.  Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Applicants S134/2002 was such a case.  The court divided on the question whether, on the proper construction of the relevant regulations under the Act, as picked up by s 65(1), the tribunal had been obliged to determine to its satisfaction whether applicants were entitled to protection visas by reason of membership of the family unit of a person who had already been granted a protection visa.  The majority answered “no”; Gaudron and Kirby JJ were of the other view.

 

[51]     However, in the light of the detailed specification of the criteria for the grant of the various classes of visa, including protection visas, it is impossible to treat the consideration by the minister’s delegate (and hence the tribunal) of what are the relevant criteria (the issue in Applicants S134), and the satisfaction thereof, as other than conditions precedent to the making of a valid decision to grant or refuse to grant a visa under s 65.  Further, certain observations by Gaudron and Kirby JJ in Applicants S134 (not on an issue upon which the division in the court turned) are, with respect, compelling.  Their Honours said:

The detailed specification of matters bearing upon the grant of a protection visa inserted into the Act at the same time as was s 474 makes it clear that the Parliament was not enacting provisions to the effect that decision-makers could validly grant or refuse to grant protection visas on the basis of a bona fide attempt to determine whether the criteria for the grant of a protection visa have been satisfied, as distinct from the decision-maker’s actual satisfaction or lack of satisfaction as to those criteria.  And as already pointed out, a decision-maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked.

 

138               The grounds of the application to this Court by Dr Haneef are:

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 on 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;

…

 

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.

 

Particulars

 

(a)        The Respondent knew that the Applicant had been granted bail on 16 July 2007;

 

(b)       the Respondent expressly took into account that that Applicant had been granted bail in making his decision to cancel the Applicant’s visa;

 

(c)        the Respondent cancelled the visa on 16 July 2007 within several hours of the decision to grant bail being made;

 

(d)       the Respondent had not previously notified the Applicant that he was considering the cancellation of the visa;

 

(e)        on 16 July 2007 the Respondent also knew that the Commissioner of the Australian Federal Police intended to ask the Attorney-General to issue a criminal justice stay certificate, or believed that the Commissioner had the power to issue such a certificate himself;

 

(f)        on 17 July 2007 the Respondent informed the media that the Applicant would remain in detention until his trial;

 

(g)        the Respondent knew that if he cancelled the visa and a criminal justice stay certificate was issued by the Attorney-General, ss.150 and 152 of the Migration Act  would operate to require that the Applicant be kept in immigration detention pending his trial;

 

(h)        a criminal justice stay certificate will be issued which will operate to authorise the detention of the Applicant;

 

(i)         the purpose of the Respondent is to be inferred from the matters set out above.

 

139               It is to be noted, particularly in the light of ground 4, that ground 3(a) was not pressed by the applicant in these proceedings.

140               It is necessary to consider each of these grounds in turn.

Ground 1: The Proper Construction of s 501(6)(b) Migration Act

141               The argument for the application on this ground focuses on the four paragraphs of the Minister’s Statement of Reasons which appear under the heading “Character Test”.

142               The applicant concedes, “The Respondent’s reasons cannot be construed as if they were as statute, or with an eye finely attuned for error.”   This statement adopts the thrust of the observations of the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280, including the mis-combination of visual and aural senses.  Of these observations, the joint judgment in the High Court of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 said:

These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.  For example, it was said by Brennan J in Attorney-General (NSW) v Quin: [(1990) 170 CLR 1 at 35-36.]

            The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 

 

143               Nonetheless, the applicant contends that the Statement of Reasons by the Minister, on  a fair reading, indicate that:

29.       The second paragraph of the statement of reasons deals with the question of whether the Applicant has or has had an association with Dr Sabeel Ahmed and Dr Kafeel Ahmed.  The only matters relied upon by the Respondent in finding that he reasonably suspected that there was an association were:

 

(a)        that the Applicant is the second cousin of Dr Sabeel Ahmed and Dr Kafeel Ahmed;

 

(b)       the Applicant and Dr Sabeel Ahmed have been in correspondence via on-line chat rooms;

 

(c)        the most recent correspondence was on 26 June 2007, regarding the birth of the Applicant’s daughter.

 

30.       The third paragraph deals with whether the Respondent reasonably suspects that Dr Sabeel Ahmed and Dr Kafeel Ahmed are, or have been, involved in criminal conduct.  The Respondent had regard to s.503A protected information with respect to this issue.

 

31.       In the fourth paragraph, the Respondent reaches a conclusion that the Applicant does not pass the character test by combining the findings he made under paragraphs 2 and 3.  The reference in the fourth paragraph to s.503A protected information, read in context, refers only to the issue of the Minister’s reasonable suspicion that Dr Sabeel Ahmed and Dr Kafeel Ahmed are, or have been, involved in criminal conduct and does not suggest that the Respondent relied upon s.503A protected information to reach the conclusion that the Applicant has, and has had previously, an association with Dr Sabeel Ahmed and Dr Kafeel Ahmed.

 

144               The submissions, in short, by the applicant are:

32.       The Respondent’s statement of reasons shows that he considered that the “association” required under s.501(6)(b) could be a merely familial relationship and correspondence with persons whom the Respondent reasonably suspects has been or are involved in criminal conduct.  There is nothing in the reasons to show or suggest that the association of the Applicant with Dr Sabeel Ahmed and Dr Kafeel Ahmed relied upon by the Respondent was an association that reflected adversely upon the character of the Applicant.

 

145               The submission for the applicant is that the expression “an association” in s 501(6)(b) of the Migration Act must be an association that reflects adversely upon the character of the visa holder.  An “innocent association” is not sufficient for the purposes of s 501(6)(b).  There must be some nexus between the visa holder and the criminal conduct.

146               The applicant submitted that some support for the conclusion that an “innocent association” is not sufficient for the purposes of s 501(6)(b) and that there must be some nexus between the visa holder and the criminal conduct by way of knowledge of, or belief in, or even suspicion of criminal conduct, was to be found in the observations, albeit dicta, of Lee J in Godley v MIMIA (2004) ALD 411.

147               Lee J said at [47]:

[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.

 

148               The decision of Lee J was upheld on appeal in MIMIA v Godley (2005) 141 FCR 552.  The Full Court, however, did not refer to or deal with that passage in Lee J’s judgment. 

149               It was submitted by the Solicitor-General that the Full Court quoted the passage of Lee J’s judgment preceding [47] and subsequent to that paragraph, but did not quote that passage, the suggestion being that the Full Court declined to endorse those remarks.

150               However, the position is that, having spoken of s 501(6) generally, Lee J, in [46] dealt with s 501(6)(a); in [47], dealt with s 501(6)(b), and in [48], dealt with s 501(6)(d).

151               The Full Court referred to the general observations about s 501(6), and then went directly to Lee Js observations about s 501(6)(c), which commenced at [49] of Lee Js reasons.   The reason for the omission of Lee J’s observations about s 501(6)(a), s 501(6)(b), s 501(6)(d), is that Godley was concerned with s 501(6)(c).

152               It seems to me relevant to note that the Full Court (Madgwick, Lander, and Crennan JJ) adopted at p 560 the observations by Lee J where his Honour said:

The construction of s 501(6)(c) depends on the context and purpose of the Act and, in particular, of s 501.  Section 501(6) defines the limits of the discretion Parliament has conferred on the Minister.  As set out above, the other paragraphs of s 501(6) require the Minister to make findings of fact, or to form opinions or suspicions based on reasonable grounds, before a discretion to refuse a visa will be conferred.

(Emphasis added)

 

153               The contention by the Minister is that any “association” is enough.  The Minister says that all that s 501(6)(b) requires is that the visa holder has an “association” with a person, group, or organisation that the Minister reasonably suspects has been involved in criminal conduct.  If the visa holder has an association, the threshold test, the Minister submits, is satisfied.

154               For the Minister it was submitted that that test is supported by the decision of Emmett J in MIMA v Wai Kuen Chan [2001] FCA 1552; that judgment of Emmett J is correct, and that that is the test which the Minister applied. 

155               It is on these competing interpretations that an issue is joined.

156               For the Minister, it was submitted that the expression “an association with” can have various meanings which may range from a mere connection or link, to participation in a common goal or purpose.  It was submitted that: 

In the present case, when the word “association” is used as noun without any adjectival qualification the expression of words affords a low threshold test.  All that paragraph 501(6)(b) requires is that the visa holder has “an association with” the person, group or organisation that the Minister reasonably suspects has been involved in criminal conduct.  If the visa holder has an association the threshold test is satisfied.

157               The submissions by the Minister on the establishment of the required association are as follows: 

8.3       The Minister was entitled to take into account and did take into account the following matters of fact relevant to the existence of an association between the Applicant Dr Haneef and Kafeel Ahmed (“Kafeel”) and Dr Sabeel Ahmed (“Sabeel”) (hereinafter collectively referred to as “the Ahmed Brothers”):

 

8.3.1.   Dr Haneef and the Ahmed Brothers were second cousins;

 

8.3.2.   They had stayed in the same boarding house accommodation in the United Kingdom;

 

8.3.3.      Kafeel had lent money to Dr Haneef;

 

8.3.4        Dr Haneef had left his mobile phone with some credit remaining on his SIM card to Sabeel;

 

8.3.5    There had been conversations in an internet chat room with Sabeel mainly relating to family matters; and

 

8.4.      These matters were sufficient to enliven the Minister’s discretion.  They established an association between Dr Haneef and both of the Ahmed Brothers.

            (Emphasis added).

 

158               The fact recited in 8.3.2 involves a slight overstatement.  The information before the Minister was that Dr Haneef had stayed in the same boarding house accommodation in the United Kingdom as Dr  Sabeel Ahmed.

159               The factors referred to in submissions by the Solicitor-General for the Minister   confirm that it is the Minister’s case that because of those matters, Dr Haneef had an association with his cousins.  Those cousins were involved in criminal activities.  The Minister was therefore entitled to conclude that Dr Haneef failed the character test and the Minister’s discretion to cancel his visa was thereby enlivened.

160               Mr Bennett submitted that facts pointing to an innocent connection was sufficient to establish the “association” in s 501(6)(b), and that the Minister was correct to so find.  He advanced six reasons:

18.1     First, in applying the test which he did the Minister complied with the only direct authority of this Court on the meaning of the expression “an association with”;

 

18.2     Secondly, the Minister also applied the test which has been set out in Ministerial Direction 21 in relation to the operation of s.501;

 

18.3     Thirdly, the decision of Emmett J in Minister for Immigration and Multicultural Affairs v Chan is correct and ought to be followed because it accords with the ordinary meaning of the words used by the section, it accords with the Legislative intention of the provision as derived from the Second Reading Speech in relation to the introduced section and it gives effect to the purpose of the section in its amended form;

 

18.4     Fourthly, the Applicant’s submissions adopt a meaning of “association” not relevant to the word as used in the legislation and by doing so ask the Court to read the section as if it had not been the subject of the 1999 amendment;

 

18.5     Fifthly, the construction sought to be placed on s.501(6)(b) by the Applicant would deprive it of much of its utility;

 

18.6          Sixthly, the effect of the legislation was that the circumstances arose (Dr Haneef had an association with his cousins who were involved in criminal activities) which entitled the Minister to cancel Dr Haneef’s visa in the first instance.  Dr Haneef was invited to and entitled to satisfy the Minister that he did not fail the “character test”.  He chose not to do so.

 

161               The Solicitor-General submitted:

The Minister has adopted the approach authorised by this Court in Minister for Immigration and Multicultural Affairs v Chan.  There Emmett J rejected the submission that in order to come within the scope of the section the person had to have some form of community of purpose or ideas with the person, group or organisation involved in the criminal conduct such that there was a nexus between the visa holder and the alleged criminal conduct. 

 

162               The applicant conceded, “The Respondent’s view that any association is enough is supported by the decision of Emmett J in MIMA v Wai Kuen Chan [2001] FCA 1552.”  For the applicant, however, it was pointed out that there was no contradictor in Chan, and that Emmett J’s attention “does not seem to have been drawn to all the relevant legislative provisions and the extrinsic material”.  Emmett J’s judgment was given ex tempore, and in particular, the significance of s 501C(4) was not adverted to.  The applicant respectfully submitted that Chan was wrongly decided.

163               It is necessary to consider Emmet Js judgment in Chan in some detail, as well as the reasons for decision of Deputy President Purvis QC in the Administrative Appeals Tribunal from whose decision the appeal was made to the Federal Court by the Minister: Chan v MIMA [2001] AATA 487.  Mrs Wai Kuen Chan did not appear on the appeal.

164               The Minister for Immigration and Multicultural Affairs, on 26 February 2001, cancelled the applicant’s class UC (temporary business entry) sub class 457 visa on the basis that the respondent Minister was not satisfied that the applicant passed the character test, pursuant to s 501(6) of the Migration Act.  Deputy President Purvis said, at [3]:

The issues that arise for determination in this application are:

 

(a)        Whether there is or has been a relevant association between the Applicant and her ex husband Mr Wong Kam Fei.

(b)       if the answer to (a) is in the affirmative whether, the Tribunal reasonably suspects that Mr Wong has been or is involved in criminal conduct.

(c)        if the answers to (a) and (b) above are both in the affirmative and the applicant thereby does not satisfy the character test, whether the Tribunal should or should not exercise its discretion to cancel the Applicant’s visa.

 

165               Deputy President Purvis, at [10],  referred to paragraph 1.5 of Direction Number 17, the forerunner to Direction Number 21, which replaced it.  The paragraphs in each Direction are identical:

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.

 

166               Ms Chan was the former wife of Mr Wong Kam Fei.  On 17 October 1997, they were each granted a four-year Sub-class 457 Visa.   Ms Chan and her husband had met in 1987.  They began living together in 1990, married in 1991, and the relationship produced three children.  The family visited Sydney in 1996 and 1997, and they entered Australia on 17 October 1997 on tourist visas and they were granted Sub-Class 457 Business Visas.  Golden Win International Pty Limited, with the husband and wife as sole shareholders, was incorporated on 28 July 1998, and in September of that year, entered into a joint venture with another company for the purpose of developing real estate.

167               Mr Wong’s visa was cancelled on 12 October 1999.  On 8 February 2000, he resigned as director of, and transferred his shareholding in, Golden Win International Pty Ltd, to his wife.  On 25 July 2000, their marriage was dissolved by the Family Court of Australia.

168               Ms Chan gave evidence that by June 1998, she regarded herself as separated from Mr Wong.  He made several trips to Australia during school holidays in order to see the children, but did not live with the applicant as her husband. She last saw Mr Wong in Australia in July/August 1999, when he was in Australia to visit the children.   Since August 1999, she had had minimal contact with him. 

169               The only time she had spoken to him by telephone was when the children had asked her to call him or he had telephoned from Hong Kong or elsewhere to speak with the children.  The only time she had seen him since August 1999 was when she visited Hong Kong in December 2000 on occasions when he called to pick up and return the children.  Ms Chan first became aware that her former husband had a criminal conviction some time after August 2000.  She said that up until that time, she had no idea he had a criminal record.

170               Deputy President Purvis said at [16] and [17]:

16.       The Macquarie Essential Dictionary defines association as being:

1.         An organisation of people with a common purpose 2. The act of associating 3. Companionship or partnership 4. Connection or combination 5. The connection of ideas in thought …..

 

17.       The word “association” in the present context encompasses persons associated, connected or combined with a common purpose, or having a community of ideas, where one of the associates is reasonably suspected of having been, or being, involved in criminal conduct.  The reasonably believed association, connection, combination, community of ideas of the one must then have a nexus with the reasonably believed involvement of the other, in criminal conduct.  It is necessary for there to be a reasonable belief in the existence of the nexus.  This in the context of section 501(6) of the Act.

 

171               The Tribunal said, at [35], that it was submitted on behalf of the Minister that a relevant association existed by virtue of:

·        The Applicant’s her ex-husbands marriage continuing from November 1991 until its dissolution in July 2000;

·        three children resulting from the relationship;

·        the Applicant and her ex-husband living under the same roof as recently as late 1998 and early 1999.  The Tribunal accepts the evidence of the Applicant that there was not a resumption of cohabitation.

·        the application for a subclass 457 visa being joint;

·        the initial ownership of shares in Golden Win International Pty Ltd;

·        the joint venture agreement and the investment of monies derived from Mr Wong’s business;

·        the transfer by Mr Wong of his interest in Golden Win International Pty Ltd to the Applicant as part of the divorce settlement and the Applicant using monies so provided;

·        a continuing financial link between the Applicant and Mr Wong by reason of the divorce settlement;

·        contact between them by telephone and face to face in Hong Kong in association with Mr Wong spending time with the children.

 

172               The Tribunal’s conclusion is to be found in [36]-[37]:

36.       It was submitted on the basis of the above facts that, if a person has family ties to a person who is connected to a group or organisation that is involved in criminal activities, then the person having the family tie will not pass the character test.  It is the opinion of the Tribunal that this is not a correct statement of the law.  The existence or otherwise of the association will depend upon the particular circumstances of each case and whether or not the connection, combination, community of ideas, common purpose directly, or indirectly, results in establishing a criminal association.

           

37.       The Tribunal is satisfied in the present matter that the Applicant is not one who may reasonably be suspected of not passing the character test.  The Tribunal is not satisfied that the Applicant has or has had a relevant association with her ex-husband Mr Wong, who may reasonably be suspected of having been, or being, involved in criminal conduct.

            (Emphasis added).

 

173               The Tribunal was satisfied as to the reasonableness of the suspicion of Mr Wong having been or being involved in criminal conduct.

174               On the appeal, Ms Chan did not appear.  Emmett J summarised the Minister’s contention as to the existence of an association between Mrs Chan and her husband, which have been earlier set out.  Emmett J said:

[6]       The Tribunal concluded that an association by way of family ties such as I have just summarised is not of itself sufficient to ground the relevant association.   

[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 s501(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.

 

[8]       Even if those prerequisites are satisfied, the words “the Minister may cancel a visa” (emphasis added) indicate that there is still a discretion to be exercised by the Minister or his delegate as to whether or not to cancel a visa.  There may be good reasons why, in a particular case, notwithstanding that the prerequisites are satisfied, the Minister may in the exercise of his discretion decide not to cancel a visa.  For example, it may be that there is no nexus between the criminal conduct of the person with whom the visa holder had an association and the visa holder, as was found to be the case in relation to Mrs Chan.

 

[9]       It may be a relevant consideration that the visa holder had no knowledge of the criminal conduct of the other person.  It may be a relevant consideration that the visa holder did not knowingly take a benefit from the proceeds of the associate’s criminal conduct.  Those matters, however, are matters for consideration upon the exercise of the discretion if the discretion arises.  They are not matters to be taken into account in determining whether or not the discretion arises, namely, whether or not the person has had an association with someone else whom the Minister reasonably suspects has been involved in criminal conduct.

 

[10]     It may be significant that s 501 was relevantly amended with effect from June 1999.  Prior to 1 June, 1999, the Minister had power to refuse to grant a visa or to cancel a visa, “if … the Minister … is satisfied that the person is not of good character because of the person’s association with another person … who the Minister has reasonable grounds to believe has been or is involved in criminal conduct”.  In that 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.

 

[11]     The effect of the amendment was to remove any question of whether the Minister is satisfied as to the good character of a visa holder.  The provisions in their present form merely require that the Minister be satisfied that the person does not pass the character test.  The character test requires a more mechanical exercise, namely, whether or not for present purposes, the person has satisfies any of the four criteria set out in s 501(6)(a)-(d).

 

[12]     The change in the legislation confirms the construction that I consider is the proper construction of the words contained in the paragraph.  It follows in my view that the Tribunal erred in law.  Accordingly, the decision should be set aside and the matter should be remitted to the Tribunal for decision according to law.

(Emphasis added).

 

175               Emmett J in his reasons for judgment, did not give his opinion as to what the “association” in s 501(6)(b) meant, although it may be inferred that a connection or combination was enough.  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.

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.

177               In my respectful opinion, Chan was wrongly decided. 

178               On its proper construction, the composite phrase “has an association with someone else, or with a group or organisation, who the Minister reasonably suspects has been, or is involved, in criminal conduct” is not properly to be interpreted by considering separately whether there is an association between the visa holder and a person or group, and then consider as a separate matter, whether the Minister reasonably suspects that the person or group is or has been engaged in criminal activity.  

179               The proper connotation of the phrase has to be ascertained from the context in which it appears; the object and purpose of the statute in which the provision is found; the legislative history of the matter; and a consideration of the consequences of adopting the competing interpretations. 

180               All of these considerations lead me to conclude that the test in Chan that all the test requires is “an association”, is erroneous. 

181               The meaning of the phrase given by Deputy President Purvis QC in Chan in the Administrative Appeals Tribunal and the dicta of Lee J in Godley at paragraph[47]better meets those considerations, and, in my view, correctly reflect the true meaning of s 501(6)(b). 

182               In a case factually quite different from the present, and involving quite a different statutory regime, namely the Copyright Act 1968 (Cth) (the Copyright Act) the High Court was concerned with the application of  provisions of the Copyright Act, particularly the phrase “a work of artistic craftsmanship” which appears in the definition of “artistic work” in s 10 and in s 77(1) of the Copyright Act:   Burge v Swarbrick (2007) 234 ALR 204.  The case was concerned with the Copyright Act in its form before amendment by the Designs (Consequential Amendments) Act 2003 (Cth). 

183               Its relevance for the present case is for the guidance it gives as to the proper approach of statutory construction of a composite phrase.  The High Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ) said at [66]:

The primary judge considered “craftsmanship” and “aesthetic appeal” as distinct and consecutive questions, before going on and “considering both aspects together”.  This was an error in the construction and application of the Copyright Act …

 

184               In this case, in my opinion, the importance of context cannot be overestimated. 

185               The “association test” is one of four criteria by which a person does not pass the character test.  It is relevant that the other three are (a)  if the person has a substantial criminal record; (c) if, having regard to either or both of the person’s past and present criminal conduct, or the person’s past and present general conduct, the person is not of good character; or (d) the presence of the person in Australia would involve a significant risk that the person would engage in criminal conduct or act in the other reprehensible ways specified in s 501(6)(d)(ii)-(v). 

186               Each of (a), (c) and (d) requires the decision maker to look at the person (ie, the visa holder); each of them requires an assessment of qualities personal to them, which qualities, parliament has said, determine that that person fails the character test. 

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 a 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. 

188               Having regard to the context, it seems to me impossible to conclude that Parliament would have intended that a person fail the character test where relationship of a visa holder with a person, group or organisation was utterly remote from the criminality that person, group or organisation.

189               In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ held at [69], [71] and [78]:

[69]    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

…

 

[71]    Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

…

[78]    However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

190               The third edition of the Macquarie Dictionary defines “association” as:

1. An organisation of people with a common purpose and having a formal structure. 2. the act of associating. 3. the state of being associated. 4. companionship or intimacy. 5. connection or combination.; 6. the connection of ideas in thought, or an idea connected with or suggested by a subject of thought. …

191               The word “associate”, which can either be a verb or a noun, is defined as: 

1. to connect by some relation, as in thought. 2. to join as a companion, partner, or ally. 3. to unite; combine: coal associated with shale. – verb (i) 4. to enter into a league or union; unite. 5. to keep company, as a friend or intimate; to associate only with wealthy people. – noun 6. a partner in interest, as in business or in an enterprise or action. 7. a companion or comrade: my most intimate associates. 8. a confederate; an accomplice; an ally.

 

192               It is relevant to note that the relationship is expressed by the phrase “has, or has had, an association with”.  The words used are not “is or was an associate of”.  This consideration tends, in my view, to support the connotation of the necessary relationship as the “state of being associated with”, so that the feature of involvement in criminal activity of the person or group is not divorced from the existence of relationship.

193               The relevant connotation of “association” in my view, is reflected in the words of explanation in paragraph 1.5 of Direction 21 – “link” or “alliance”.  So too, the notion of “association” as comprehending a “combination”.

194               That there is necessarily some nexus or connection between the relationship and the criminal activity is reinforced by the repeated use of the phrase “criminal association”, in the extrinsic material and in paragraph 1.5 of Direction 21 itself.

195               Many examples can be given of circumstances in which an innocent association would, on the interpretation for which the Minister contends,  result in a person being unable to satisfy the respondent that he or she passes the character test.  Mere familial interaction, mere social interaction, mere involvement by the provision of professional services, the battered wife scenario, would all result in the person not passing the character test, on the test for which the Minister contends. 

196               Emmett J opined in Chan that the innocence of the association would be a relevant consideration in the exercise of the Minister’s discretion.  However, the Act does not confer any opportunity to be heard on how the discretion should be exercised, either prospectively or retrospectively, after the decision to cancel: cf s 501C(4).  There is no opportunity for a person to make representations as to the exercise of discretion about cancellation, or as to the circumstances whether cancellation was or was not in the national interest.  The only opportunity afforded by s 501C(4) is to seek to establish that the person passes the character test.  That opportunity is empty, and is doomed to fail if, by definition, totally innocent associations mean that the person does not pass the character test. 

197               Section s 501C(4) provides that a person whose visa has been cancelled can make representations to the Minister and the Minister may revoke the original decision if the person satisfies the Minister that the person passes the character test, as defined by s 501. 

198               The decision under s 501(3) to cancel a visa is made without any obligation to accord natural justice to the visa holder.  The opportunity conferred by s 501C(4) is not to make representations to the Minister concerning whether to exercise the discretion to cancel the visa, nor whether the cancellation is in the national interest.  That opportunity is only in respect of the element of whether the person can satisfy the Minister that the person passes the character test.

199               If a person were to fail the association test in s 501(6)(b) by a merely innocent association, then there would be no utility in conferring opportunity on that person to be heard on the jurisdictional fact on which the cancellation decision was made.  This is to be contrasted with the opportunity under s 501C(4) to correct reliance on s 501(6)(a), (b) or (d).   

200               Section 501C(4) is directed to giving the person whose visa has been cancelled, based on a failure to pass the character test in s 501(6)(b), the opportunity to demonstrate that the basis for that failure, and therefore the basis for the cancellation is erroneous.  If innocent association was sufficient to ground failure of the character test, the scope of s 501C(4) would have no work to do in that circumstance.

201               The observations of the High Court in Project Blue Sky at [71] in the judgment earlier set out have direct application to this consideration.

202               Counsel for the Minister said that the character test, which a person does not pass if the person has or has an association with a person or group or organisation that the Minister reasonably suspects has been or is involved in criminal conduct, does not involve any question about the character of the person being assessed. 

203               Mr Bennett submitted that the words “the character test” are not words to be read as having a meaning.  He says that those words are “just a convenient definition”.  He submitted, “one does not read character test and say, ‘oh, well, this is about character;  that means something about character’.  Of course it doesn’t.” 

204               To put this important submission in context, Mr Bennett referred to the old form of the Act and said (recorded at page 58 of the transcript of 8 August 2007):

Your Honour will see the old section 501(2) said that the Minister, (b):

 

… is satisfied that the person is not of good character, because of the person’s association …

Etcetera.  So what is being looked at there is whether the association leads one to the conclusion that the person is not of good character.  Now, my learned friend says, when one looks at the new version of the Act, that it does the same thing.  We submit it doesn’t.  The new version in 501(6)(b) is:

 

A person does not pass the character test if the person has an association –

Etcetera.  Now, the phrase, “the character test”, my friend uses to get in the same sort of requirements, but, of course, those words are nothing more than a statutory definition.  They’re not words to be read as having a meaning.  They’re just a convenient definition.  One does read “character test” and say, oh, well, “This is about character.  That means something about character.”  Of course it doesn’t.  It’s just a statutory definition and, being just a statutory definition, which then fits into other parts of the section, the requirement simply is that the person has – well, has had – an association of the relevant kind.

 

205               I simply do not accept that the words “the character test” are not words to be read as having a meaning; they are not “just a convenient definition”.

206               In the light of what I regard as the very bold submission that the “character test of course don’t mean something about character” and the words “the character test are not words to be read as having a meaning”, I asked counsel for the Minister (recorded at page 58 of the transcript of 8 August 2007):

Well, if you say that a character test is a label that could be replaced by any other word, it is essentially meaningless.  Why does one then look at (a), (b) – (a), (c) and (d), including (c)(ii) – (c)(1), (c)(ii), (d)(i), (d)(ii), (d)(iii), (d)(iv), (d)(v), all of which separate integers reflect poorly on the character of the person the subject of pass or failure of the character, when (b) alone doesn’t?

 

207               Mr Bennett replied:

Well, your Honour, because it is so – the noscitur a sociis maxim has to be weighed against the expressio unius maxim.

 

208               The submission that the words “the character test” are not words to be read as having a meaning, starkly reveals the distance between the scope and object of s 501(3) of the Migration Act and the construction that the Minister wishes to make of s 501(6)(b).

209               A professional association, whether as a doctor, lawyer, social worker, or teacher, would be within the respondent’s construction of the association test.  A mere familial or social association would be enough.  So much is implicit in Emmet J’s rejection of the view of the Tribunal that the association by way of family ties, summarised by Emmett J in [7] of his reasons, was sufficient to ground the relevant association.

210               The primary submission for the Minister is that “if the visa holder has an association, the threshold test is satisfied.”

211               When the examples of a professional association was put to the Minister as being within the respondent’s contention, it was said, at paragraph 26 of the Minister’s submissions:

The test would probably not be satisfied by an association arising only out of the provision of a professional or commercial service by one person to another or by a mere casual acquaintanceship.

 

212               In further development of this fall-back position, the counsel for the Minister said that the word “association” could bear the meaning of “friend” or “good mates with”.  This connotation would also not involve any type of relationship which would or might reflect adversely on the character of the person.  It would, however, exclude those who had a professional or commercial relationship from being within s 501(6)(b).

213               Mr Bennett submitted, at page 61 of the transcript of 8 August 2007:

…if you are a person who is, using the loose expression, a friend or a good mate of, or a person who associates in that sort of way with, people who fall into the relevant category, then the Minister is entitled to say, ‘My discretion is enlivened. …’

 

214               In my opinion, the contention that the association goes no further than requiring a person be a friend or a good mate of  the person or group suspected of engaging in criminal activity also ignores the context of the test, and the scope and object of the section.

215               There is a further example to which reference may be made in attempting to elucidate the correct or proper interpretation of s 501(6)(b).

216               It was questioned in the course of argument that a woman who had suffered domestic violence at the hands of her partner would fall within the “association test” in s 501(6)(b)

217               Before the section in its present form received parliamentary approval, the Senate Legal and Constitutional Legislation Committee issued a report in respect of its consideration of legislation that had been referred to it, and in respect of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997, under the heading “Criminal association provision” the committee reported:

2.27     The Committee received several submissions expressing concern about proposed subsection 501(6)(b).  This provides that a person does not pass the character test if they have or have had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal activity.

 

2.28     The Queensland Branch of the International Commission of Jurists stated 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.  It also pointed out that, on the basis of the provision, “Galileo, Ghandi and Mandela would all fail the character test”.

 

2.29     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:

 

                        Guilt by association is a highly questionable concept.  It is not inconceivable that victims of crime will be tarred with the same brush as the perpetrator simply because the perpetrator is someone close to them.

 

2.30     Although VIARC [Victorian Immigration Advice and Rights Centre] objected to the proposed provision, they also pointed out that section 501(2)(b) of the Act currently allowed the Minister to refuse or cancel a visa on the basis of a person’s association with criminals.  However, this was in the context of an onus on the Department to show bad character.

 

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.

 

218               No reason was advanced for that concession, which contradicts the primary submission on behalf of the Minister as to what the expression of words means.

219               It is necessary to say something about the raising of hypothetical examples in an attempt to elucidate the proper construction of the phrase in s 501(6) of the Migration Act.

220               When this matter was first before the Federal Court for directions, the nature of the association required was referred to, and whether that an association based on family relationship, with a number of communications between the relatives was within the paragraph.   Mr Roger Derrington SC, who appeared on behalf of the Minister on that occasion, said that the relevant association was an association with people suspected of being involved in criminal activities.

221               I raised the suggestion that I had been associated with persons involved in criminal activity, in that I had defended persons charged with murder.  Mr Derrington said that my right to remain in the country rests on Australian citizenship; Dr Haneef’s rests on his entitlement as a visa holder.  I indicated that I would not pass the character test “on your statement”, because I was a person who had an association with someone else whom the Minister would reasonably suspect had been involved in criminal conduct. Mr Derrington said “Quite.  Even if it were to be so, it would be sufficient, because the purpose of the migration legislation, as it says in the legislation, is to protect the national interest.”

222               The Socratic dialogue between Bench and Bar, so as to attempt to elucidate the proper construction of the paragraph in question, is a normal incident of a civil trial. 

223               In Concrete Pty Ltd v Parramatta Design and Developments Ltd (2006) 231 ALR 663 at 690, Kirby and Crennan JJ said at [111]:

… it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnsonv Johnson [(2000) 174 ALR 655] (at [13]):

[13]  Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.  They develop to take account of the exigencies of modern litigation.  At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.  In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”.  Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment.  Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.  On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

            (Emphasis added).

224               In Vakauta v Kelly (1989) 87 ALR 633, after comments set out in the above observation, Brennan, Deane, and Gaudron JJ said at  p 635:

It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in her or her judgment would not represent a model to be emulated.

 

225               According to Direction 21:

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 … cancel a visa where … the 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 … cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to … remain within it.

(Emphases added).

 

226               In my opinion, the requirement of some nexus between the visa holder and the criminal conduct suspected of the person or group with whom the visa holder has an association, is reinforced by the terms of paragraph 1.5 of Direction 21.

227               It will be remembered that that paragraph says:

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 …

 

228               The examples - “alliance”, “link”, and “connection” - tends to suggest that the nature of the “association” has to involve an adverse reflection on the character of the visa holder, as the other criteria in s 501(6) of failing to pass the character test require.  Paragraph 1.5 of Direction 21 makes it plain that actual membership of a group or body that is involved in criminal activities is not required, and there is then specified that relevant factors are the degree and frequency of association, the duration of the association, and the nature of the association.

229               It is necessary to construe s 501(6)(b) having regard to the context in which it appears.  It is necessary to pay particular regard to the fact it is defined to be one criterion on which a visa applicant or holder fails the character test.  Its meaning has to be derived having regard to the other criteria having that consequence, namely s 501(6)(a), s 501(6)(c) and s 501(6)(d).

230               I reject the submission by the Solicitor-General for the Minister that the “character test” which a person does not pass if the person has or has had an association with a person or group or organization that the Minister reasonably suspects has been or is involved in criminal conduct, does not involve any question about the character of the person.  In my opinion  501(6)(b) is a composite phrase and has to be construed as such.  In my opinion it has the connotation that there is an alliance or link or combination between the visa holder with the persons engaged in criminal activity.  That alliance, link, or combination reflects adversely on the character of the visa holder.  Such a meaning would exclude professional relationships, or those which are merely social or familial.  It would exclude the victim of domestic violence.

231               Lander J in Akpata v MIMIA [2004] FCAFC 65 (with whom Carr and Sundberg JJ agreed) said of the purpose of s 501:

[103]   Section 501 is designed to provide a procedure whereby persons who have been granted visas or persons who would otherwise be entitled to the grant of a visa may have that visa cancelled or refused if those persons are undesirable persons to travel to or remain in Australia.  Persons will be undesirable if they fail to pass the character test.

…

 

[105]   The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia.  Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia.  Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

            (Emphases added).

 

232               For the Minister, it is said that the approach for the applicant to the interpretation of s 501(6)(b) is to impose limitations in the section, which do not exist, and which could have been easily imposed if the legislature had so intended.

233               However, the submissions by the Minister attribute to the applicant a desire to introduce limitations, which in fact the applicant does not seek to do.  The Minister’s submissions assert that the section does not say that the visa holder need be a member of a group or organisation, nor a participant in criminal activity, nor does the section say that the association of the visa holder with the person, group, or organisation, need be an ideological or criminal association, or an association by which the visa holder or applicant would benefit from the criminal activity.  Moreover, the section does not say that the circumstances identified have to be such as to reflect adversely on the character of the visa holder or applicant.  All of this may be accepted.

234               The submissions for the applicant do not speak of any such necessity.  The submission is simply that, by orthodox methods of construction, and particularly having regard to the context in which the association test is to be found, and its purpose, the Chan test namely, that any association, however innocent, is sufficient, is wrong.  That was the test which the Minister applied, and which the Solicitor-General has sought to defend, with the consequence that the Minister has applied the wrong test.  That being so, jurisdictional error   underpins the exercise of the discretion to cancel the visa.

235               To counter the difficulties suggested that would flow from a consequence of the Chan interpretation of the character test, it was submitted for the Minister that if the association was purely innocent, then that would be taken into account as a factor in whether the Minister would exercise the discretion conferred by s 501(3).  Emmett J advanced that possibility in Chan.  It ignores that criterion (b) follows criterion (a), and precedes (c) and (d), and that its meaning has to have regard to that context.  It ignores the significance of s 501C(4).  And it strips the words “the character test” of any meaning.

236               I have already noted the Majority Report of the Senate Legal and Constitutional Legislation Committee in its consideration of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill, rejected the idea that a construction of par (b) would have the effect that women, who had suffered domestic violence, might be regarded as not passing the character test because of their association with violent partners.

237               It seems to me that a woman who has suffered domestic violence by her partner would fall within the test of s 501(6)(b) that the Minister propounds: she has an association with a person reasonably suspected of criminal activity. 

238               Further, if the discretion to cancel a visa holder’s visa were to be enlivened on the basis of a perfectly innocent association with a person who had engaged in criminal activity, the position is not much different from the exercise of a power conditioned on the circumstance that a person had red hair, in the celebrated example of Warrington LJ in  Short v Poole Corporation [1926] Ch 66.

239               It is no answer to this criticism of the Chan test that the Minister’s power, if conditioned on such a premise, could be expected to be exercised only in those circumstances where the Minister thought it appropriate to exercise the power.  The exercise of a power conditioned on such an consideration would be an exercise of power alien to the object of the purposes of the Migration Act.

240               It is not consistent with the direction given by the High Court in Project Blue Sky to construe a statutory provision in such a wide fashion as to include circumstances that are clearly alien to the object of the statute.  The provision should be read so as to accord with the object and purpose of the statute.  A wider construction, which goes beyond that object, is not to be adopted on the basis that the Minister will confine the exercise of his powers to only  those instances within the wider construction which are consistent with the object and purpose of the statute.

Legislative history

241               In my opinion, there is nothing in the legislative history of the section, including the changes introduced by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, which provides support for the interpretation which the Minister applied, and for which his counsel in these proceedings, seeks to vindicate.

242               Emmett J in Chan placed some reliance on the amendments to s 501 brought about by that Amending 1998 Act in reaching the “any association is sufficient” view.  

243               The former section provided:

SECT 501 Special power to refuse or to cancel visa or entry permit

(1)       The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a)        subsection (2) applies to the person; or

(b)       the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

(i)         be likely to engage in criminal conduct in Australia; or

(ii)        vilify a segment of the Australian community; or

(iii)        incite discord in the Australian community or in a segment of that community; or

(iv)       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 violence threatening harm to, that community or segment, or in any other way.

(2)       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.

 

244               Section 501(1)(b) in that section conditioned the refusal or cancellation of a visa, on the Minister being satisfied that the person would be likely to engage in criminal conduct or engage in other disreputable conduct, or represent a danger to the Australian community.

245               Section 501(2) provided that the Minister had a discretion to refuse or cancel a visa if, relevantly, the Minister was satisfied that the person is not of good character because of the person’s association with another person, or a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved with criminal conduct. 

246               The change introduced in 1999 in my opinion did not have the effect of removing the relevance of the impact on a person’s character to be derived from a consideration of the association of that person with persons who engage in criminal conduct.  What the legislative amendments did do is reverse the onus.  The previous terms of s 501 conditioned the grant or cancellation of a visa on a satisfaction in the Minister that the person is not of good character because of the person’s association with those who were believed on reasonable grounds to have been involved in criminal conduct.

247               Section 501, as amended, has effect if the Minister reasonably suspects that a person fails the character test, and a person fails the character test if there is an association of the visa holder with that other person or group.  The change in the section did not alter the quality or nature of the association required.

248               The Second Reading speech gives no comfort to the suggestion that reflection on the good character on the visa holder was done away with by the changes introduced by the Bill.  Quite the contrary.  The then Minister said:

Steps to improve the Department of Immigration and Multicultural Affairs’s ability to detect visa applicants with substantial criminal backgrounds or associations are being taken, including consultation with law enforcement bodies overseas.  For these steps to be effective, however, they must be complemented by legislative provisions to ensure that non-citizens with criminal backgrounds or criminal associations can be refused a visa.  The provisions must also enable the government to remove those non-citizens who are detained following convictions for crimes committed in Australia.

 

Experience over recent years has shown that the existing legislative provisions are inadequate for this task.  This is despite the fact that they were amended as recently as 1992 with the express purpose of improving the government’s ability to deal with the visa applicants and visa holders with substantial criminal backgrounds.  In broad terms, the bill seeks to enhance the government’s ability to deal with non-citizens who are not of good character in three ways: …

(Emphasis added).

 

249               The first way referred to decision making in routine cases and changes in that decision-making process.  Secondly, in exceptional or emergency circumstances, by giving the Minister acting personally powers to act decisively on matters of visa refusal, cancellation, and removal of non-citizens; and thirdly, giving information effective protection, so that Australian and international law enforcement agencies can be confident about passing information to immigration decision makers.

250               The then Minister, under the heading “The character test”, said  the following:

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.

(Emphasis added).

 

251               The Minister said that, since 1992, “whenever there has been a doubt about the criminal background or criminal associations of a non-citizen, the doubt has been resolved in the non-citizen’s favour”. (Emphasis added).  The Minister said that “this was not the intention of the 1992 amendments.”  The Minister said that the position after the amendments was: “where there are real doubts about the criminal background or criminal associations the objective of protecting the Australian community will take precedence in immigration decision making.” (Emphasis added).

252               The Minister’s comments do not suggest that the amendment of s 501(6)(b) was intended to catch merely innocent associations.  The repeated references to “criminal associations” suggests that it was associations having a sinister connotation for the character of the visa holder that the provision was being aimed at.  The reference by the Minister to placing the onus of proof on the visa applicant to “demonstrate that he or she is of good character” confirms that the character test was concerned with whether the Minister  had a reasonable suspicion that the visa holder is not of good character.

253               The Minister’s statement in the Second Reading speech would have no meaning if innocent or merely familial associations were sufficient to satisfy the test.

254               For the above reasons, in my opinion, the Minister misconstrued the expression “has or has had an association with someone else, or with a group or organisation, who the Minister reasonably suspects has been or is involved in criminal conduct” in s 501(6)(b) as including an association which does not reflect adversely upon the character of the visa holder. 

255               He did this, as the submissions by the Solicitor-General corroborate, on the basis that the decision of this Court in Chan was correct, and that a relationship which evinced no suggestion of knowledge of, or suspicion of, or any hint of involvement in, criminal activity was nonetheless within the paragraph. 

256               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).

257               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). 

258               As a consequence, the decision is a nullity and s 474 does not apply.

259               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.

260               The above finding is sufficient to dispose of this application.

261               I should however say that there was, on the material that was before the Minister, and of which is also before the Court, that had the Minister applied the correct test for which s 501(6)(b) calls, it would have been open to the Minister to cancel Dr Haneef’s visa. 

262               It seems to me that in addition to the circumstances of connection to the Ahmed brothers on which the Solicitor-General has argued the Minister was entitled to conclude that there was the relevant association, there are other factors, two in particular, which would take the case into one where it was open to the Minister to have a reasonable suspicion that there was the requisite association. 

263               The first is the information contained in annex 2 of the materials that was before the Minister, namely, that the United Kingdom Metropolitan Police Service Counter Terrorism Command had advised the Australian Federal Police that Dr Haneef was a person of interest to their investigation through his association with two of the UK suspects.  The fact that Dr Haneef was a person of interest to the Counter Terrorism Command persons investigating the terrorist events bears on the nature of the association between Dr Haneef and the two UK terrorists.

264               The second is that on 14 July 2007, Dr Haneef had been charged with intentionally providing resources to a terrorist organisation consisting of persons including the Ahmed brothers, being reckless as to whether the organisation was a terrorist organisation, contrary to s 102.7 of the Criminal Code (Cth).

265               The fact that the Australian Federal Police and/or the Director of Public Prosecutions had laid that charge is a factor relevant to the nature of the association between Dr Haneef and the Ahmed brothers. The factors of association on which the Minister did rely (see [139] above) together with the two matters set out above would have entitled the Minister to conclude that the association between Dr Haneef and the Ahmed brothers was of the kind for which s 501(6)(b) calls.

266               The legality of the decision to cancel a person’s visa depends on the circumstances as they exist to the knowledge of the decision maker at the time of making the decision, and the tests applied at that time by the decision maker.

267               It is not to the point that the circumstances may change at a later time.  That occurred in this case, where the Director of Public Prosecutions offered no evidence in respect of the charge against Dr Haneef pursuant to s 102.7 of the Criminal Code Act (Cth).

Other Grounds

268               While it is strictly unnecessary to consider the other grounds on which the applicant challenges the legality on this application, having regard to the conclusion that I have reached and the orders that are properly to be made on this application, I should express my opinion on those grounds.

Ground 2(a)

269               Section 501(3) of the Act confers a discretion on the Minister which is in terms “unconfined”.  The Minister is not bound to take a particular matter into account in the exercise of that discretion unless an implication to that effect is to be found in the subject matter, scope, and purpose of the statute: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 (per Mason J, as his Honour then was).  Failure to take into account a particular consideration cannot constitute jurisdictional error unless the consideration is one which, on the proper construction of the Act, is made compulsorily relevant: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 423. 

270               See also Herrera v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FCAFC 314 at [5]; and  Minister for Immigration v Huynh (2004) 139 FCR 535 per Kiefel and Bennett JJ at [71]-[74].

271               The nature and extent of the “association” is relevant to whether the test in s 501(6)(b) is made out.  If that test is met, the Minister is not required by the Act to consider it in the exercise of his discretion under s 501(3).

Ground 2(b)

272               The consideration that the respondent Minister did not take into account the weakness or strength of the evidence supporting the charge against the applicant is in the same category.  The respondent acknowledged that the applicant had been charged with the offence, but that the defence had not been proved.  The significance of the fact that Dr Haneef had been charged with a serious offence of intentionally supporting a terrorist organisation lay not in whether that charge was strong or weak, but with the fact that the Australian Federal Police and/or the Director of Public Prosecutions were at the time the decision to cancel Dr Haneef’s visa was made, of the view that there was evidence sufficient to charge Dr Haneef with that offence.

273               It is not to the point that at a later time, after the decision to cancel the visa had been made, the Director of Public Prosecutions offered no evidence in relation to the charge, and it was dismissed.

Ground 3(c)

274               Hardship to the applicant.  This consideration again is one which the respondent Minister was not obliged to take into account.  There is nothing on the proper construction of the Act which makes this consideration “compulsorily relevant”.

Ground 3(b)

275               The complaint by the applicant based on paragraph 19 of the respondent’s Statement of Reasons is that the Minister took an irrelevant consideration into account.  At paragraph 19, the Minister said:

19.       I note that the Australian Government has a strong interest in deterring non-citizens from providing support to terrorist organisations/networks.

 

276               It seems to me that the complaint really is that the Minister displayed illogical reasoning in this respect, being of the view that the cancellation of the applicant’s visa, where he had been charged but not convicted of having committed an offence, would deter other non-citizens from providing supporting to terrorist organisations or networks. 

277               Faulty or illogical reasoning does not amount to jurisdictional error.

Ground 4: Improper Purpose

278               A person challenging the exercise of a power on the basis of improper purpose has the onus of establishing that contention: Sydney Municipal Council  v Campbell [1925] AC 338 at 343.    Where the purpose of a decision has to be ascertained by inference from other facts, there is a presumption of regularity: Industrial Equity Limited v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671 per Gaudron J.

279               Gaudron J dissented on the question of whether a notice to produce documents made as the result of a random selection of the top hundred companies, was within the purposes of the Income Tax Assessment Act 1936 (Cth).

280               Gaudron J nonetheless observed, at 672:

An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power, See Inland Revenue Commissioners v Rossminster [1980] AC 952 at 1013, per Lord Diplock.

 

281               The submissions for the applicant can be shortly stated: 

282               First, the power contained in s 501 was conferred solely for the purpose of protecting the Australian community by giving the respondent power, relevantly, to remove a person from Australia.  That is, removal must be the purpose for which the power is exercised. 

283               Secondly, if, at the time power to cancel a visa is exercised, the decision maker does not have the purpose of removal as soon as is reasonably practicable, the exercise of the power is invalid.

284               Thirdly, detention by and of itself cannot be a valid purpose for exercising the power to cancel a visa contained in s 501 of the Migration Act.  Detention under s 189 must be for the purpose of removal from Australia.

285               Fourthly, when the Minister made the cancellation decision on 16 July 2007, the Court can infer that he did not have the purpose of removing the applicant from Australia as soon as is reasonably practicable. (Emphasis added).

286               The consequence, it is submitted, is that the Minister’s exercise of the power contained in s 501 was invalid and of no effect.

287               If a discretionary statutory power is exercised for a purpose other than the purpose for which the power was conferred, the exercise of that power is invalid.  The purpose for the grant of a power is to be derived from the statute conferring it.  If there is a combination of purposes actuating the exercise of the discretionary power, the exercise will be invalid if an improper purpose was the “substantial” or the “true and dominant” purpose of the exercise of the power: Thompson v The Council of Municipality of the Randwick (1950) 81 CLR 87 at [186]; Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 at [7]-[8].

288               Thus in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, the Full Court of the Federal Court (Fox, Wilcox and French JJ) held that where a particular deportee was wanted by authorities in West Germany, of which he was a national, Australian authorities were entitled to do everything necessary for the enforcement of a deportation order under the Act, but were not entitled to go beyond that.  In particular, the Court held that to deport a person to a particular country for the purpose of presenting a person to the law enforcement authorities of that country is outside the purposes of the Migration Act.

289               Wilcox and French JJ in their joint judgment said, at 731:

The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act and the proper implementation of the deportation order.  But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country.  At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition.

290               In Park Oh Ho v Minister of State for Immigration and Ethnic Affairs  (1988) 81 ALR 288, the Full Court of the Federal Court (Sweeney and Foster JJ, Morling J dissenting) held that a deportation order had not been issued for the purpose of securing various persons’ removal from Australia, but was to secure their continued detention in custody, so that their evidence would be available in contemplated criminal proceedings.

291               The decision of the Full Court upheld the decision of Davies J at first instance, to declare the deportation orders a nullity and set them aside. The matter went to the High Court, but only on the question of whether the Full Court had been correct in upholding the refusal of Davies J to make a declaration of unlawfulness.  It was on this basis that the decision of the Full Court of the Federal Court was reversed.

292               In the High Court, Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517, (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) referred to the findings of Davies J, confirmed by the Full Court, that more of the deportation orders had been made by the delegate of the Minister for the legitimate purpose of giving effect to a decision that a prohibited non-citizen should be deported as soon as appropriate arrangements for that deportation could be made, and that each had been made for the impermissible purpose of detaining the particular appellant in custody so that his evidence would be available in the criminal proceedings, and the conclusion of Davies J that the deportations were all intrinsically flawed.

293               Their Honours noted at 519:

Davies J. held that each of them [the deportation orders] “should be treated as a nullity” and ordered that they be “set aside ab initio”.

 

294               A decision by the Minister to cancel a visa on character grounds under s 501 of the Migration Act, validly made, has the result of the visa thereupon ceases to be in effect: s 82(1) of the Migration Act.  Thereafter, the person to whom the visa is issued is an unlawful non-citizen, in the terms of sections 14 and 15 of the Migration Act, is liable to detention under s 189 of the Migration Act, and for removal from Australia under s 198 of the Migration Act.

295               As a consequence of s 501E, no further application for the grant of a visa can be made by the person whose visa has been cancelled.  The only exception, pursuant to s 501E(2)(a), is an application for a protection visa.  Because the person cannot, after cancellation, obtain a visa, that person’s status has been determined for all time.  That person is an unlawful non-citizen liable to detention and removal from Australia.

296               I think it may be accepted that the power in s 501 can only be validly invoked if the purpose of the exercise of the power is, relevantly, to achieve a person’s removal from Australia as soon as is reasonably practicable.

297               True it is that the Minister’s decision was made immediately after the applicant had been granted conditional bail by the Brisbane Magistrates Court, and that the effect of cancellation of his visa meant that he would be detained in immigration detention, and would not be free to move about the community on bail.  Paragraph 43 of the Minute by Mr White to the Minister suggests that the Minister was not given the Minute until after the applicant had been granted bail by the Brisbane Magistrates Court.

298               The Minister’s press statement earlier set out indicates that either before, at the time of, or shortly after his decision to cancel the applicant’s visa, the Minister expected that a Criminal Justice Stay Certificate would be issued by the Attorney-General.  The consequence of that certificate is specified by the Migration Act, in particular, s 150.  Where there is a Criminal Justice Stay Certificate in force, the non-citizen is not to be removed or deported. 

299               The consequences of the cancellation of the applicant’s visa, and the issuing of a Criminal Justice Certificate by the Attorney-General are consequences which are dictated by the Act.

300               I am not prepared to infer that the Minister, at the time of making the decision to cancel the visa, did not have the purpose to secure the removal from Australia of Dr Haneef as soon as was reasonably practicable.

301               The reasonable practicability of removal is influenced by, and in fact dictated by the issue a Criminal Justice Stay Certificate.  The fact that the Minister was aware of the possible issue of such a certificate at the time he made the decision to cancel the visa does not, in my opinion, establish that he did not have the required purpose of removing the applicant from Australia “as soon as was reasonably practicable”.

302               The circumstances in the present case are significantly different from those in Park v Oh Ho,as is the applicable statutory scheme.

303               In that case, no consideration was given to the provisions of Part 2 Division 4 of the Migration Act as it presently stands, which deals with Criminal Justice Stay Certificates.  The reason was that no such certificate had been issued in that case.  Further, none of the appellants in that case were charged with any offence, and otherwise apparently did not meet the requirements for the issue of a Criminal Justice Stay Certificate pursuant to the Act, as it then stood.

304               It seems to me that the fact that immigration detention was a likely consequence of the visa cancellation does not indicate that that was part of the Minister’s purpose.  The obligation to detain was a consequence of the Migration Act, a consequence of which I am sure the Minister was well aware.  More importantly, in my opinion, the fact that the Minister was aware of the consequences of his cancellation decision did not mean that he did not have the intention to remove the applicant from Australia “as soon as was reasonably practicable”.

305               In essence, the contention on the applicant’s behalf as to improper purpose seems to be that the decision to cancel the visa is void ab initio because it was made for the purpose of preventing the release of the applicant from detention, and was made only colourably for the purpose of deportation.

306               The provisions of s 150 of the Act, which provides that if a Criminal Justice Stay Certificate about a non-citizen is in force, the non-citizen is not to be removed or deported, and s 162, which deals with cancellation of that certificate, are part of the legislative scheme, dealing with the timing of when a person might be removed from Australia, and impact on that timing. 

307               A visa is simply a permission to enter or remain in Australia.  The decision to cancel a person’s visa pursuant to s 501 is the cancellation of that permission.  The powers to deport in ss 200 and 201 are different powers from the power to cancel a person’s visa in s 501. 

308               The timing of the departure of a person whose visa is cancelled pursuant to s 501, and  whether it eventuates at all, will depend upon the particular circumstances of the case, and the operation of the other provisions of the Act, in particular, s 198 and the provisions of Part 2 of Division 4, including s 150.

309               It is relevant to note that although the Minister was aware at the time he made the decision to cancel the applicant’s visa that he had been charged with a serious criminal offence, it was not the role of the Minister to decide whether or not the applicant should remain in Australia to stand trial for that Commonwealth offence. 

310               It is the Attorney-General who has the role and function of issuing a Criminal Justice Stay Certificate.  He chose to do so on 17 July 2007, the day following the cancellation of the applicant’s visa.

311               On the material before me there is no proper basis for any inference that when the Minister made the decision to cancel the applicant’s visa, the Minister did not intend to remove the applicant from Australia “as soon as reasonably practicable”. 

312               There is one final matter to which reference must be made in respect of the ground of improper purpose. 

313               It was submitted for the applicant that a Jones v Dunkel inference can be drawn against the Minister as to his purpose, from the circumstance that he did not give evidence in these proceedings. 

314               Whether such an inference can be drawn in the circumstances where a Minister of the Crown has not given evidence was the subject of separate observations by  Kirby J and  Callinan J in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. 

315               Before that decision, there was commentary in the textbooks and in the authorities supporting the view that the rule did, in fact, apply to Ministers. 

316               In Cross on Evidence (6^th Edition, Butterworth, 2000), the learned authors stated at p 39:

A Jones v Dunkel inference can be drawn against a Minister who does not give evidence, [Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 62] notwithstanding that the difficulties busy Ministers could have in giving evidence frequently might justify a departure from the ordinary application of Jones v Dunkel. [Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548.]

 

317               In Lebanese Moslem Association (reversed on other points of law in Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373) Pincus J, at 548, found it “hard to resist” drawing certain inferences that assisted the applicants in that case.  This was despite the fact that Senior Counsel to the respondent Minister argued, so Pincus J said, “with some cogency that performance of his ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions.”

318               In Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia, the Full Court of the Federal Court (Black CJ, Burchett and Kiefel JJ) at 62 (citing the Lebanese Moslem Association) concluded that the Minister’s failure to call evidence allowed the Court to more confidently draw an inference favourable to the other party.  See also Citibank Ltd v Federal Commissioner of Taxation & Others (1988) 83 ALR 144 at 159, where Lockhart J notes that if the inference is capable of applying to Ministers and senior corporate executives, then it is capable of applying to senior public servants (citing to Lebanese Moslem Association, Cross on Evidence, and Electronics Industries Ltd v Mayor of City of Oakleigh [1973] VR 177 at 189).

319               In Minister for Immigration and Multicultural Affairs v Jia,  Kirby J and Callinan J, in separate opinions, observed that the rule in Jones v Dunkel may not apply in the same way to Ministers as it does to others.

320               Kirby J said at [143]:

Similarly, I would not attach a great deal of significance to (or draw adverse inferences in these cases from) the failure of the Minister to give oral evidence or to submit himself to cross-examination.  Although Ministers, whilst holding office, are not immune in this country from giving evidence before courts, a court would not ordinarily hasten to draw an inference that the Minister had deliberately refrained from giving oral evidence because of a concern that the impugned decision would be revealed as affected by bias or that the Minister would be forced to make concessions damaging to the Minister’s case.  Ministers have to perform highly complex and onerous functions.   They carry heavy burdens that severely limit the time available for them to give evidence in individual cases.  In Mr Jia’s case, the Minister might have considered it sufficient to rely on the record as, in the opinion of the majority of this Court, it is held to be.  Applying the test of whether the parties, or the public, might entertain a reasonable apprehension that the Minister might have been biased, I do not believe that the principle expressed in Jones v Dunkel, that an adverse inference may sometimes be drawn from a failure to give evidence, should loom large in evaluating appearances in the applications brought to this Court by Mr Jia and Mr White.

 

321               Similarly, Callinan J stated at [284]:

Adverse inferences may not be so readily drawn against a Minister in this type of litigation as might be drawn against a party who avoids the witness box in other proceedings.

 

322               After stating, at [316], that Pincus J only hesitantly concluded in Lebanese Moslem Association that the rule applied to Ministers not giving evidence, Callinan J said, at [317]:

It is unnecessary to decide in this case whether the rule should have application to a Minister in modern times.  But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent.  Considerations of public interest immunity may loom large in some cases.  A Minister is a policymaker and policy advocate as well as a decision-maker.  Further, the statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer and cited recently by this Court in Vetter v Lake Macquarie City Council, that evidence has to be weighed according to the circumstances of, as well as the capacity of, a party to adduce it.

 

323               More recently, in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [72], Sackville J referred to the High Court’s observations in Jia but found it unnecessary to decide whether it applied to the circumstances of the case before him which did not involve purported bias by the Minister as was the case in Jia, but rather, failure to have regard to certain information.  Sackville J had concluded, at [71], that assuming the rule applied, it would not assist the applicant.

324               Given the rule in Jones v Dunkel is one of the “commonsense reasoning” and one which allows parties to satisfactorily explain their failure to call a witness (Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 342), there can be no per se rule that a Jones v Dunkel inference is not available where a Minister does not testify.

325               However, in most, if not all, cases, because of the factors expressed by Pincus J, and also Kirby J and Callinan J in the passages set out above, the absence of a Minister giving evidence in the for the witness box will be easily understood.

326               There is, nonetheless, a certain piquancy in the present case, in that the Minister has chosen to give a selected part of what is said to be protected information to the public by way of press release, but has not sought to divulge to the Court any part of the protected information under s 503A(3) of the Act.

327               The Minister is, in a sense, presenting one case in the public arena, a case the accuracy of which cannot be challenged in any meaningful way, and a smaller and not the same case in the Court, in a way which does not permit explanation or challenge by way of cross-examination.

328               Since this case can and indeed must be determined on the material that is before the Court, and since on that material it has not been shown that the Minister cancelled the applicant’s visa for an improper purpose, it is unnecessary to consider whether the principle of Jones v Dunkel has any application in this case.

329               For the above reasons, I propose to order:

1.                  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.

2.                  An order in the nature of a prohibition and/or an injunction restraining the respondent from acting upon the cancellation of the applicant’s visa.

330               The applicant also sought a declaration that when the applicant departed Australia on 27 July 2007, his immigration status was that of a lawful non-citizen.  I have concluded that the purported cancellation of Dr Haneef’s visa was invalid.  It is therefore appropriate to make the declaration sought.

331               I propose also to order:

3.         That the respondent pay the applicant’s costs of and incidental to the proceedings, to be taxed if not agreed.

I certify that the preceding three hundred and thirty-one (331) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:         21 August 2007

Counsel for the Applicant:	S Keim SC, with D Rangiah, and N Kidson
Solicitor for the Applicant:	Ryan & Bosscher Lawyers
Counsel for the Respondent:	The Solicitor-General, D Bennett QC with R Derrington SC, P Bickford and E Ford
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 and 9 August 2007
Date of Judgment:	21 August 2007