For civil libertarians there is some reassurance in the most recent episode of the Haneef saga. I refer to the decision of Spender, J in Haneef v. Minister for Immigration and Citizenship (2007) FCA 1273 on August 21, 2007.
As is by now well known, Dr Mohamed Haneef was a medical registrar at a Gold Coast, Queensland, hospital from September 2006 until recently.
On July 2, 2007 Dr Haneef was arrested by the Australian Federal Police and Queensland Police members attached to the Joint Counter Terrorism Team for allegedly “providing support to a terrorist organisation contrary to part of the Criminal Code Act 1995 (Cth).
On July 14, Dr Haneef was formally charged with a terrorist related offence and two days later granted conditional bail by the Brisbane Magistrates Court. In due course this charge was dropped. Then, on July 16, Minister for Immigration and Citizenship Kevin Andrews cancelled Haneef’s work visa.
The cancellation of a work visa is authorised by the Migration Act, 1958,(Cth) S.501.This section empowers the Minister either to refuse to issue or to cancel a visa on what are referred to as “character grounds”. In other words the Minister is granted executive power to perform a function traditionally seen as an exercise of judicial power. Moreover, the Act specifically states that in the exercise of this power under this section the Minister does not need to comply with natural justice.
Section 502 of the Act states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. According to this section a person does not pass this test if, among other reasons, “the person has or has had an association with someone else or with a group or organisation, whom the Minister suspects has been or is involved in criminal conduct …”
In the Haneef court proceedings it was argued on behalf of the Minister that the relevant test as to whether a visa holder failed the character test required no more than that the visa holder had an “association” with someone engaged in criminal conduct.
To capture the meaning and significance of this interpretation imagine the following scenario: Dr Haneef and a group of visa-holding doctors dine at an Indian restaurant. Later it transpires that the chef at the restaurant was involved in criminal activity. According to the argument submitted on behalf of the Minister, the Chan test (MIMA v Kuen Chan (2001) FCA 1552) the Minister is empowered to cancel the visas of all the doctors including Haneef who dined at the Indian restaurant.
This argument and indeed the correctness of the decision in Chan was challenged by Haneef’s legal team. They argued that there must be some link, connection or nexus between the visa holder and his or her association with the person or organisation involved in the criminal activity.
In a carefully crafted and meticulously researched decision, Justice Spender agreed with the gist of the arguments made on behalf of Haneef. His Honour ruled that to be a valid exercise of Ministerial power the Minister must be able to identify an association by the visa holder with a person or group or organisation that reflects adversely on the character of the visa holder and that this is a consequence of his association with the person or group suspected of the criminal activity.
Accordingly, it is open for a visa holder to argue that any association he or she has had with a person suspected of criminal activity was totally in ignorance of the relevant activity, or that the association was for purely professional purposes: for example, appearing in legal proceedings or in some other way that does not reflect adversely on their character.
Of course there is implicit in this ruling a reversal of the onus of proof and a denial of the presumption of innocence. This is quite distinct from the accepted common law tradition where it rests upon a prosecutor to prove his case and where procedural fairness is the norm.
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