Keeping Australia safe by an improper exercise of power?

The arrest, detention and cancellation of the visa of Dr Mohammed Haneef by the Australian Government have evoked strong reactions or concerns from a range of people and institutions.

Although this piece is also reflective of few such concerns, I do not intend to use this space to defend Haneef or discredit the prosecution case against him for “recklessly” providing support to a terrorist organisation. I would rather let the Australian judicial system deal with the merits of the charge, though on the basis of the information available in public domain it seems that the prosecution case might not be very sound.

Doubts, for example, have been raised if the SIM card that Haneef had left with his cousins was actually found in the jeep that smashed into the Glasgow airport. Even if Haneef’s SIM card was used to carry out a terrorist act, it is doubtful if the requirement of mens rea under Section 102.7(2) read with Section 5.4 of the Schedule to the Commonwealth Criminal Code Act 1995 could be satisfied.

Was Haneef really “reckless” as to the activities and/or connections of his cousins with a terrorist organisation? Probably not, but conclusively only time will tell this.

However, more than the suitability of this charge against Haneef, I am perplexed by the manner in which the Immigration Minister Kevin Andrews exercised his power under Section 501 of the Migration Act 1958 and cancelled Haneef’s visa on the ground of failing the “character test”. The circumstances and the timing of visa cancellation (hours after Haneef was released on bail but almost two weeks after his arrest on July 2, 2007) raise serious questions as to the rule of law, the rights of accused persons, the working of the administrative system and the independence of judiciary. Let me touch upon some of these questions here.

Visa cancellation power under the Migration Act

The Migration Act gives the Immigration Minister the power to refuse or cancel a visa if the concerned person does not satisfy the character test.

In Haneef’s case, the Minister acted under Section 501(3) under which the Minister may cancel the visa if s/he (i) reasonably suspects that the person does not pass the character test, and (ii) is satisfied that the cancellation is in the national interest.

There is nothing unusual about conferring such a power on the Immigration Minister. In fact, vesting such discretionary power might be necessary to ensure that only those non-citizens are allowed to remain in Australia who do not compromise its national interests.

It should be noted though that unlike subsections (1) and (2), the power under subsection (3) of Section 501 may only be exercised by the Minister personally and such exercise of power is not subject to the rules of natural of justice. The fact that the Minister cannot delegate this power suggests its special nature.

Nevertheless, like any discretionary power, this power cannot be used in an arbitrary or unreasonable fashion, by ignoring relevant considerations, for improper purpose, without complying with the required procedure, by acting under dictation, or in total disregard of constitutional principles.

Even errors of fact could vitiate a decision in a given case. One should also consider that once a visa is issued to a person under law, s/he has a legitimate expectation that the visa shall not be revoked unless there are legally permissible (and not extra-legal or political) grounds for doing so.

Doing indirectly what could not be done directly

So what made the exercise of power in cancelling Haneef’s visa of questionable character and a subject matter of judicial review? Was there enough evidence, first, to reasonably suspect that Haneef does not pass the “character test” and, second, to satisfy the Immigration Minister Kevin Andrews that the cancellation is in the “national interest”?

Although the Federal Court is likely to rule on this issue in the near future, it is arguable that that it was an instance of colourable exercise of power. It seems that the Minister tried to do indirectly what could not be done directly, that is, keeping Haneef behind the bars at any cost and just for the sake of it.

In reaching a conclusion about the character test, one of the factors that the Minister had to consider under Section 501 was 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”.

The meaning of the term “association” is critical here. Whether an innocent association with criminals or criminal groups will suffice, or should there be something more than that?

The counsel representing the Minister before Justice Jeffrey Spender took the position that an association of any kind with criminals is enough for a non-citizen to fail the Migration Act's character test. It is submitted that such literal interpretation might result, as Justice Spender pointed out, in absurd results, which should be avoided by resorting to the mischief rule or the golden rule of interpretation.

Similarly, the law required the Immigration Minister to satisfy himself that the cancellation of Haneef’s visa, which would entail deportation from Australia, is in the national interest. Of course, it plausible to think that as compared to the judiciary, the executive could be more suitable to assess what is or is not in the national interest of Australia. Nevertheless, this decision should be made bona fide and on the basis of some material rather than to serve a given political agenda.

It looks like the Minister probably did not satisfy himself in this manner, unless he had access to some evidence which was not put before the magistrate that granted bail to Haneef. If deportation of Haneef was in the national interest, the Minister should have known that the deportation might not be possible in view of the pending criminal trial. On the other hand, if his detention was in the Australian national interest, the Minister should not have indirectly overruled the magistrate’s decision of releasing Haneef on bail.

Rather than interfering with the independence of judiciary and its process by cancelling Haneef’s visa in this way, the government should have appealed against the magistrate’s decision if they were convinced about their position and had strong evidence against Haneef. It is a matter of some consolation though that Australia has an independent judiciary which provide recourse in redressing such colourable exercise of power by the executive branch.

Reckless use of terrorism laws

Australia, like other countries, has a right and power to defend itself against terrorist threats arising from both inside and outside. But the Australian Government also has a duty under the Constitution as well as international law to protect civil liberties not only of its citizens but also of non-citizens in some cases.

Did not the government justify an illegal invasion of Iraq, among others, on the grounds of securing the liberties and freedoms of the people of Iraq, that is, non-citizens? The duty on states to promote human rights nationally and internationally is not abrogated or diluted while exercising their right-power to protect themselves from terrorism. Therefore, striking a right balance between security concerns and human rights is of fundamental importance.

As people should not knowingly or recklessly support terrorists who do not respect the value of life, even the government should not knowingly or recklessly misuse terrorist laws to trample civil liberties or settle political scores.

Solitary confinements (to which Haneef has been subjected), harsh detention conditions, draconian interviewing techniques, fabricating evidence and bypassing the due process are no guarantees for safety against increasing terrorist threats.

Rather than containing terrorism, terrorist organisations and radical ideologies, Abu Ghraib and Guantanamo Bay might have done exactly the opposite. Reckless use of the anti-terrorism laws might prove counter-productive in the longer run, because every innocent incarceration provides a fertile ground for germinating the seeds of terrorism.

In short, if Haneef is found guilty, he should get what he deserves under the law, even if some of us might contest the inhumane nature of such law. But, if it is found that the police and/or prosecuting agencies were reckless in doing what they did to Haneef, no great harm would be done by making them accountable personally and institutionally. This should only promote fairness and justice.

Coming from the land of Gandhi, I have no sympathy with those who use violent means to espouse their cause. However, even government agencies, which have a legalised monopoly over the use of violence, should not be allowed to inflict violence under the pretext of securing noble objectives.

It is high time that amidst a war against terrorism the Australian Government shows some character in protecting the human rights not only of its citizens (like David Hicks) but also of those non-citizens who are living in Australia legally for legitimate reasons (like Dr Haneef). Human rights after all become more, and not less, important when states wield absolute power to arrest and detain anyone indefinitely without charges.

I am not convinced if the Immigration Minister Kevin Andrews showed an appreciable character in cancelling the visa of Haneef on character grounds.