FEDERAL COURT OF AUSTRALIA

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

EXPLANATORY STATEMENT

It is the practice of this Court in matters which are of significant public interest to make a brief explanatory statement when delivering judgment.

This statement describes the main issues in the proceedings and the conclusions I have reached.  As it is a summary statement only, it is necessarily incomplete.  The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

On 16 July 2007, the Minister for Immigration and Citizenship (the Minister) cancelled Dr Mohamed Haneef’s subclass 457 Business (Long Stay)(Class UC) visa.

Dr Haneef claimed that in so doing, the Minister exceeded his powers.  Amongst other claims, it is said that the Minister misconstrued the provisions of s 501 of the Migration Act 1958 (Cth), (the Migration Act), and in particular, the criterion for “failing the character test” in s 501(6)(b); it is also claimed that the cancellation decision was for an improper purpose.

 By s 476A of the Migration Act, the Parliament has conferred on the Federal Court in respect of certain decisions made under that Act, the same jurisdiction as is conferred on the High Court by s 75(v) of the Constitution.

            “[Section 75(v) of the Constitution] serves a basic element of the Rule of Law” – Gleeson CJ in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [5].

“Such jurisdiction exists to maintain the federal compact by ensuring that federal laws are constitutionally valid, and ministerial or other official action lawful and within jurisdiction.” – Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157 at [103].

“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.”: per Gaudron J in Re Patterson ex parte Taylor (2001) 182 ALR 657 at [82].

The central question in these proceedings concerns the construction of the provision that “a person does not pass the character test if: … 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.”

Dr Haneef claims that the requirement for “not passing the character test” in s 501(6)(b) of the Migration Act requires that there be some nexus between the relationship that the visa holder has to the other person, and the criminal activity of that other person.  An “innocent” association is not enough. 

The Minister says that there is no such requirement, and that any association is sufficient. Alternatively, the Minister says that on its proper construction, all that the “association test” requires is that the visa holder be a “friend” or a “good mate”. 

The Minister stated in his Reasons that from the information that (a) that Dr Haneef is the second cousin of Dr Sabeel Ahmed and Dr Kafeel Ahmed; (b) Dr Haneef and Dr Sabeel Ahmed have been in correspondence via on-line chat rooms; and (c), the most recent correspondence was on 26 June 2007 regarding the birth of Dr Haneef’s daughter, he reasonably suspected that he that Dr Haneef has and has had previously an association with Dr Sabeel Ahmed and Dr Kafeel Ahmed.

The Solicitor-General submitted for the Minister that the following matters:

(1)               Dr Haneef and the Ahmed brothers were second cousins.

(2)               Dr Haneef had stayed in the same boarding house accommodation in the United Kingdom with Dr Sabeel Ahmed.

(3)               Kafeel had lent money to Dr Haneef .

(4)               Dr Haneef had left his mobile phone with some credit remaining on his SIM card to Sabeel Ahmed.

(5)               There had been conversations in an internet chat-room mainly relating to family matters,

were sufficient to enliven the Minister’s discretion to cancel Dr Haneef’s visa.  Those matters established an association between Dr Haneef and both of the Ahmed Brothers.

The Minister contends that the decision of Emmett J in MIMA v Kuen Chan [2001] FCA 1552 (Chan) establishes that even an “innocent” association is sufficient to satisfy the test; that he applied that test and that Chan was rightly decided.

I am satisfied, from his Statement of Reasons and the submissions made on his behalf to this Court, that the Minister applied the Chan test, in determining whether Dr Haneef failed the character test in s 501(6)(b).

In my judgment, Chan was wrong decided.  It is not correct to consider the words “an association with a person or group” by themselves, and then consider, as a separate question, whether the person or group is reasonably suspected of involvement in criminal activity.

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).

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 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.  In my opinion s 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.

The Minister cancelled the visa by adopting a wrong criterion; he fell into jurisdictional error by applying the wrong test.   That error infects the cancellation decision.  It follows that the decision must be set aside.

Nonetheless I am of the opinion that, had the Minister applied the right test, it would have been competent for the Minister to cancel Dr Haneef’s visa.

This is because, in addition to the matters which the Solicitor-General identified as supporting the Minister’s view of the “association” of Dr Haneef with the Ahmed brothers, there was before the Minister:

(a)    advice from the Metropolitan Police Services Counter Terrorism Command 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; and

(b)    On 14 July 2007, Dr Haneef was formally charged with intentionally providing resources to a terrorist organization consisting of persons including Sabeel Ahmed and Kafeel Ahmed, and being reckless as to whether the organization was a terrorist organization, contrary to s 102.7 of the Criminal Code.

These matters  would have permitted the Minister to conclude that the association between Dr Haneef and the Ahmed brothers went beyond a purely familial, social, “innocent” relationship.  On that material, it would have been open to the Minister, applying the proper construction of s 501(6)(b), to cancel Dr Haneef’s visa.

The circumstances have changed when the Minister cancelled Dr Haneef’s visa.

The other grounds of challenge to the Minister’s decision are rejected.

In particular, it has not been shown that the Minister’s purpose in canceling Dr Haneef’s visa was other than to have Dr Haneef removed from Australia as soon as was reasonably practicable.

I propose to order 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.

I propose to give a declaration that:

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