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Minister for Immigration & Citizenship v Haneef[2007] FCAFC 203

SUMMARY

MINISTER FOR IMMIGRATION AND CITIZENSHIP v DRMOHAMED HANEEF

QUD284 OF 2007





BLACK CJ, FRENCH &WEINBERG JJ

21 DECEMBER 2007

MELBOURNE (HEARD INBRISBANE)





The following is a summary of the Full Court’sreasons for judgment delivered in Melbourne on Friday, 21 December 2007.Reference should be made to the Court’s published reasons which will beavailable online at www.fedcourt.gov.au and whichare the only authoritativestatement of the Court’s reasons. The following summary is prepared toassist public understandingof the essential points on the appeal.



Thisis an appeal from orders made by Justice Spender setting aside a decision of theMinister for Immigration and Citizenship tocancel a visa that had been issuedto Dr Haneef permitting him to come to Australia and to work here as amedical practitioner.



The Minister’s appeal was heard in Brisbanelast month by a Full Court constituted by the Chief Justice and Justices Frenchand Weinberg.



The facts can be briefly summarised. Dr MohamedHaneef and his wife arrived in Australia from India in September 2006.Following attempted terrorist bombings in London on 29 June 2007 and inGlasgow on the following day, two suspects, Dr SabeelAhmed andDr Kafeel Ahmed, were arrested. Both were second cousins ofDr Haneef.



On 2 July 2007 Dr Haneef, who was then working as adoctor at Southport Hospital, was arrested by the Australian Federal Policeandlater charged with having intentionally provided resources, namely a SIM card,to a terrorist organisation consisting of personsincluding his two secondcousins. On 16 July 2007 he was granted bail by a magistrate inQueensland. Immediately upon thegrant of his bail, the Minister cancelled hisvisa under s 501(3) of theMigration Act and Dr Haneef was keptin detention. The Minister cancelled the visa on the ground that Dr Haneefdid not pass the "charactertest" and that the Minister was satisfied that thecancellation was in the national interest.



On 27 July 2007 the chargeagainst Dr Haneef was dismissed.



TheMigration Actspecifiesvarious circumstances under which a person does not pass the character test. They include that a person has or has had"an association with someone else, orwith a group or organisation, whom the Minister reasonably suspects has been oris involvedin criminal conduct".



The Minister suspected thatDr Haneef did not pass the character test because of his "association" withthe Ahmeds.



Justice Spender considered that the Minister hadmisinterpreted the character test and had applied a test that was too wide andcouldencompass links that could not, in his Honour’s view, conceivablyhave had any bearing on the visa holder’s character.



On theMinister’s appeal to the Full Court the central issue was, again, thescope of "association" and whether the Ministerhad applied the incorrecttest.



It was common ground on the appeal that there had to be some limitson the scope of "association", but there was disagreement betweenthe parties asto what those limits were. The Minister argued for a wide definition, relyingupon an earlier decision of a singlejudge of the Federal Court, andDr Haneef’s counsel argued for a narrower one.



Applying theprinciples of the common law concerning the interpretation of statutes incircumstances where the rights of individualsmay be adversely affected, theFull Court has agreed with Justice Spender that a narrower interpretationof "association" thanthat applied by the Minister should be taken to reflectthe intention of the Parliament when it enacted the character test.

In a unanimous judgment, the Full Court has concluded that the "association"to which s 501(6)(b) of theMigration Act refers is one involvingsome sympathy with, or support for, or involvement in, the criminal conduct ofthe person, group or organisationwith whom the visa holder is said to haveassociated. The association must be such as to havesome bearing upon theperson’s character.



The Court has therefore dismissed theMinister’s appeal, with costs.

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Citizenship v Haneef[2007]FCAFC 203

MIGRATION--judicial review -- cancellation of visa -- character test --suspected association with persons suspected of being or having beeninvolved incriminal conduct -- nature of association necessary to enliven ministerialdiscretion to cancel visa -- laws of construction-- common law principles --clear legislative intention necessary to encroach upon fundamental rights andfreedoms -- erroneouslywide test applied -- jurisdictional error -- appealdismissed







Migration Act 1958 (Cth)ss 501and501C





Arnhem Land AboriginalLand Trust v Northern Territory (2007) 157 FCR 255 cited

Baker vMinister for Immigration and Multicultural Affairs (1996) 69 FCR 494cited

Bropho v State of Western Australia[1990] HCA 24;(1990) 171 CLR 1cited

Re Chan and Minister for Immigration and Multicultural Affairs[2001] AATA 487;(2001) 33 AAR 191 cited

Coco v The Queen[1994] HCA 15;(1994) 179 CLR 427applied

Godley v Minister for Immigration and Multicultural and IndigenousAffairs (2004) 83 ALD 411 cited

Gunner v Minister for Immigration andMulticultural Affairs [1997] 50 ALD 507 cited

Lobo v Minister forImmigration and Multicultural and Indigenous Affairs[2003] FCAFC 168;(2003) 132 FCR 93cited

Minister for Immigration and Multicultural Affairs v Chan (2001)34 AAR 94 not followed

Minister for Immigration and Ethnic Affairs vSciascia(1991) 31 FCR 364 cited

Morales v Minister for Immigrationand Multicultural Affairs (1998) 82 FCR 374 cited

Powell vAdministrative Appeals Tribunal[1998] FCA 1747; (1998) 89 FCR 1 cited

Rani v Ministerfor Immigration and Multicultural Affairs(1997) 80 FCR 379 cited

R vSecretary of State for the Home Department; Ex parte Simms[1999] UKHL 33;[2000] 2 AC 115cited









MINISTER FORIMMIGRATION AND CITIZENSHIP v DR MOHAMED HANEEF

QUD284 OF2007





BLACK CJ, FRENCH & WEINBERG JJ

21 DECEMBER2007

MELBOURNE (HEARD IN BRISBANE)

THE COURT ORDERSTHAT:



1.The appeal be dismissed.



2.The appellant pay the respondent’s costs of the appeal.

3.The respondent’s applications by notices of motion filed on 8 November2007 and 12 November 2007 bedismissed.

Note:Settlementand entry of orders is dealt with in Order 36 of theFederal CourtRules.

INDEX

Introduction[1]

Factual and proceduralbackground[6]

Statutory framework[26]

The MinisterialDirection[40]

The Issues Paper[46]

The Statement ofReasons[57]

The grounds for review[61]

The reasons forjudgment of the primary judge[63]

The orders made by the primaryjudge[81]

The grounds of appeal [84]

The notice ofcontention[85]

Legislative history and judicialexegesis[86]

The approach to construction – effects ofcommon

law rights and freedoms[105]



The nature of"association" – construction ofs501(6)(b)[114]



Conclusion[136]

REASONS FOR JUDGMENT

Introduction

1Dr Mohamed Haneef and his wife arrived in Australia from India inSeptember 2006. In June 2007 he was an employee of the GoldCoast RegionalHealth Services at Southport Hospital in Queensland. Following attemptedterrorist bombings in London on 29 June2007 and in Glasgow on the followingday, two suspects, both second cousins of Dr Haneef, were arrested. Thesesuspects were DrSabeel Ahmed and Dr Kafeel Ahmed.

2On 2 July 2007 Dr Haneef was arrested by the Australian Federal Police(AFP) and on 14 July 2007 he was charged with having intentionallyprovidedresources in the form of a "subscriber information module" (SIM) card to aterrorist organisation consisting of personsincluding his two second cousins. He was granted bail on 16 July 2007. Immediately upon the grant of his bail theMinister forImmigration and Citizenship (the Minister) cancelled his visa unders 501(3) of theMigration Act 1958 (Cth) (the Act) on the basis that theMinister reasonably suspected that he did not pass the "character test" and thatthe Ministerwas satisfied that the cancellation was in the national interest.

3The Minister suspected that Dr Haneef did not pass the character testbecause of his "association" with the Ahmeds. In comingto that view theMinister applied a wide interpretation of the word "association" which did notrequire any suspicion that Dr Haneefwas sympathetic to, or supportive of, or inany way involved in the criminal conduct of which the Ahmeds were suspected.

4The Minister’s decision was challenged before Spender J who made anorder in the nature of certiorari to set it aside. Hedid so on the basis thatthe Minister had misinterpreted the character test under the Act. He hadapplied a test of "association"with persons reasonably suspected of beinginvolved in criminal conduct which was very broad. In his Honour’s viewit waswide enough to encompass links that could not conceivably have had anybearing on the visa holder’s character.

5The Minister appealed against Spender J’s decision. For the reasonsthat follow, the appeal should be dismissed. The Ministerdid apply a test of"association" that was erroneous because it was too wide.

Factual and procedural background

6Dr Mohamed Haneef is an Indian national. He was born on 29 September1979. He is married and has a daughter who was born on 26June 2007. In April2002, he graduated with the degree of Bachelor of Medicine from a medicalcollege in Bangalore. He completedan internship in 2003, then travelled to theUnited Kingdom where he worked in a number of hospitals between July 2004 andAugust2006. He returned to India and then decided to undertake postgraduatetraining in Australia.

7Dr Haneef and his wife arrived in Australia on 11 September 2006. Heentered on a Subclass 457 Business (Long Stay) (Class UC)visa. The visa expirydate was 30 August 2010. He secured employment with the Gold Coast RegionalHealth Services at SouthportHospital. In the middle of March 2007 his wife,who was then pregnant with their first child, returned to India so she wouldhavefamily support during the birth. The couple did not have any family orother support networks in Australia.

8On 29 June 2007, an event occurred in London which began a chain of eventsthat led to the cancellation of Dr Haneef’s visaand his confinement inimmigration detention. At about 1.40 am on 29 June 2007 a bomb was discoveredin a green coloured Mercedescar parked outside a nightclub in Haymarket. Thedevice, described as a vehicle-borne improvised explosive device was manuallydefused. At about 8.00 pm on the same day a blue Mercedes car was found inPark Lane in Mayfair containing a similar device which wasalso defused. Atabout 3.15 pm on 30 June 2007 a Jeep Cherokee was driven into the front doors ofTerminal One at Glasgow Airport. The vehicle burst into flames. Two personswere found at the scene.

9Arising out of these events, authorities in the United Kingdom arrestedseven persons on suspicion of being, or having been, concernedin thecommission, preparation or instigation of an act of terrorism contrary to s 41of theTerrorism Act 2000 (UK). Advice was provided to the AFP by theMetropolitan Police Service, Counter Terrorism Command, that Dr Haneef was apersonof interest to their investigation because of his alleged associationwith two of the suspects detained by the authorities in theUnited Kingdom.

10On 2 July 2007 at about 11.00 pm, Dr Haneef was arrested by the AFPand members of the Queensland Police attached to theJoint Counter TerrorismTeam (Brisbane). Unders 3W(1) of theCrimes Act 1914(Cth)a constable may arrest, without warrant, a person for an offence if theconstable believes on reasonable grounds that the person hascommitted or iscommitting the offence, and that proceeding by summons would not achieve one ormore of a number of specified purposes.Section 3W(2) provides that wherea person has been arrested for an offence unders 3W(1) and before theperson is charged with the offence, the constable in charge of the investigationceases to believe on reasonable groundsthat the person committed the offence orthat holding the person in custody is necessary to achieve one of the specifiedpurposes,then the person must be released.

11Unders 23CA of theCrimes Act a person arrested for a terrorismoffence may be detained for the purpose of investigating whether the personcommitted the offenceor whether the person committed another terrorism offencethat he or she is reasonably suspected of having committed. The detentionperiod cannot extend beyond the end of the "investigation period" prescribed bythe section. That period is four hours after thearrest unless extended unders23DA (s23CA(4)). An investigating official may apply at or before the end ofthat time, for a period to be specified during which the questioningof theperson is reasonably suspended or delayed(s 23CB). On 3 July 2007 a magistrateauthorised an extension of the investigating period for 48 hours.

12On 5 July 2007, in the Brisbane Magistrates Court, Magistrate Gordonheard an application brought by the AFP for an order specifyingreasonable time(dead-time) during which suspension or delay of questioning could be disregardedpursuant tos 23CB. His Honour made the order which was sought. On 9 July 2007the AFP brought a second such application. It was made at about 4.00 pm.Mr Stephen Keim SC appeared on behalf of Dr Haneef. His Honour adjournedthe application to 11 July 2007. At the resumedhearing Mr Thomas Howe QCappeared as counsel for the AFP. Magistrate Gordon reserved his decision to 13July 2007 on which dateMr Howe QC informed him that the AFP had decided not toproceed with the application.

13On 14 July 2007 at about 9.30 am, Dr Haneef was charged in the BrisbaneMagistrates Court before Magistrate Payne with the followingoffence:

On or about the 25^th of July 2006 in the United Kingdom, MohamedHANEEF did, contrary to section 102.7(2) of the Criminal Code (Cth)intentionally provideresources, namely a subscriber information module (SIM)card to a terrorist organisation consisting of a group of persons includingSabeel AHMED and Kafeel AHMED, being reckless as to whether the organisation wasa terrorist organisation.

14An immediate application for bail was made. The magistratereserved her decision until 9.30 am on 16 July 2007. On 16 July2007, atabout 10.15 am, she announced her decision, which was to grant Dr Haneefbail. She did so on condition that he:

(a)post a surety in the amount of $10,000, or two sureties in the amount of$5,000;

(b)report to the officer in charge, Southport Police Station, each Monday,Wednesday and Friday, between the hours of 6.00 amand 10.00 pm unlesshe received the prior written consent of the Commonwealth Director of PublicProsecutions to report elsewhereor at such other times;

(c)notify the Commonwealth Director of Public Prosecutions of a residentialaddress within 24 hours of his release from custodyand thereafter to advise inwriting the Commonwealth Director of Public Prosecutions within 24 hours of anychange of residentialaddress;

(d)not apply for any passport; and

(e)not attend any point of international departure, and not leave Australia.

The matter was adjourned at approximately 11.00 am.

15On thesame day Mr Peter White, the Assistant Secretary, Character Assessment and WarCrimes Screening of the Department of Immigrationand Citizenship (theDepartment) sent a minute to the Minister to which was attached an Issues Paper.The stated purpose of the minutewas to provide information on Dr Haneef’scase and to seek the Minister’s decisions on whether Dr Haneef did notpassthe character test under s 501(6) of the Act, whether it was in thenational interest to cancel his visa under s 501(3)(b) ofthe Act andwhether, in those circumstances, his visa should be cancelled. The Ministersigned a decisional option at the end ofthe Issues Paper in the followingterms:

I reasonably suspect that Dr HANEEF does not pass the character test AND I amsatisfied that cancellation of the visa is in the nationalinterest. I havedecided to exercise my discretion under subsection 501(3)(b) to cancel hisSubclass 457 Business (Long Stay) (ClassUC) visa. My reasons for my decisionwill be set out in the Statement of Reasons.

He also signed a Statement of Reasons for his decision.

16MrPeter Russo, Dr Haneef’s solicitor, was informed at about 1.45 pm bymembers of the media that the Minister wasabout to hold a press conference toannounce the cancellation decision. His firm had not received any notice of thecancellationdecision before the Minister’s announcement at the pressconference held on that day.

17At 3.45 pm on 16 July 2007, Adrian McCabe, the Queensland DeputyState Director of the Department, accompanied by two stafffrom his office, wentto the Brisbane Watch House and delivered the following documents to Dr Haneef:

1.A Notice of Visa Cancellation under s 501(3) of the Act dated 16 July2007.

2.A copy of s 501 of the Act.

3.A copy of Directions made under s499 of the Act.

4.A Minute to the Minister dated 16 July 2007 – this was the IssuesPaper.

5.The Minister’s Statement of Reasons dated 16 July 2007.

6.A copy of s 503A of the Act.

7.A copy of s 501C of the Act.

When giving the documents toDr Haneef, Mr McCabe drew his attention to his right to make representations tothe Minister about therevocation of the decision as set out in the finalparagraphs of the Notice of Visa Cancellation. Mr Russo was present at thetime. The Notice of Visa Cancellation was signed by Mr White.

18Dr Haneef and his solicitors decided not to post bail. Their objectivewas that Dr Haneef should remain in the custody ofthe QueenslandDepartment of Corrective Services rather than be taken into immigrationdetention.

19On 17 July 2007, the Attorney-General issued a Commonwealth CriminalJustice Stay Certificate under s 147 of the Act. It recitedthat Dr Haneef wasan unlawful non-citizen who was to be, or was likely to be, deported fromAustralia and that the Attorney-Generalconsidered that he should remain inAustralia temporarily for the purposes of the administration of criminal justicein relationto an offence against a law of the Commonwealth. TheAttorney-General certified in the document "that the stay of the removal ordeportation of Mohamed HANEEF (also known as ATHAR) from Australia is requiredfor the administration of criminal justice."

20On 18 July 2007, Dr Haneef’s solicitors filed an application for anorder in the nature of certiorari to quash the Minister’sdecision tocancel his visa. He also sought an order in the nature of prohibition and/or aninjunction to restrain the Ministerfrom acting upon the cancellation of thevisa. It was a ground of the application that the Minister had misconstrued theexpression"association" in s 501(6)(b) of the Act. It was also a ground thathe had failed to take into account relevant considerations, hadtaken intoaccount irrelevant considerations and had made the decision for an improperpurpose. The alleged improper purpose wasto have Dr Haneef detained when hehad been granted bail.

21On 27 July 2007, the charge against Dr Haneef was dismissed when theCommonwealth Director of Public Prosecutions announced thathe would offer noevidence. To that point Dr Haneef had been held in the custody of theQueensland Department of Corrective Services. Upon the dismissal of the chargehe was released from that custody and immediately taken into immigrationdetention by officersof the Department.

22On the evening of 27 July 2007 Dr Haneef was informed by an officer ofthe Department that he could elect to leave Australia voluntarilyor remainpending the hearing of his judicial review application which had been set downfor 8 and 9 August 2007. He decided toleave Australia voluntarily and did soon 28 July 2007. The Commonwealth Criminal Justice Stay Certificate wascancelled prior tohis departure.

23Dr Haneef returned to Bangalore. He informed his solicitor that hewished to continue with his application to have the decisionto cancel his visaset aside. The decision had affected his reputation and would affect hisability to travel to other countriesin the future. He also told his solicitorthat he wished to return to Australia and to his position as a medical doctor atthe SouthportHospital.

24The application to quash the Minister’s decision came on forhearing before Spender J on 8 and 9 August 2007 and on21 August 2007 hisHonour delivered judgment. He made an order in the nature of certiorariquashing the Minister’s cancellationdecision, an order restraining theMinister from acting upon the cancellation of the visa and an order that he payDr Haneef’slegal costs. His Honour also made a declaration that when DrHaneef departed Australia on 27 July 2007 his immigration status wasthat of alawful non-citizen. His Honour stayed his own orders for a period of 21 daysand directed that the order of certiorarinot issue from the Registry until 21days from 21 August 2007. We note in passing the recent authority of the FullCourt inArnhem Land Aboriginal Land Trust v Northern Territory (2007)157 FCR 255 that a declaratory order cannot be stayed pending appeal.

25On 5 September 2007, the Minister lodged an appeal to the Full Court fromthe judgment of Spender J.

Statutory framework

26Before turning to the Minister’s reasons for decision and theprimary judge’s reasons for setting that decision aside,it is necessaryto set out the relevant sections of the Act.

27The provisions of the Act relating to the "Control of arrival andpresence of non-citizens" are found in Pt 2 under that title. Division 1 of Pt2, ss 13-17, concerns "Immigration status". Section 13(1) provides:

A non-citizen in the migration zone who holds a visa that is in effect is alawful non-citizen.

28Section 14(1) provides:

A non-citizen in the migration zone who is not a lawful non-citizen is anunlawful non-citizen.

29Section 15 sets out the effect of the cancellation of a visaon a non-citizen’s immigration status:

To avoid doubt, subject to subsection 13(2) (certain inhabitants of protectedzone), if a visa is cancelled its former holder, ifin the migration zone,becomes, on the cancellation, an unlawful non-citizen unless, immediately afterthe cancellation, the formerholder holds another visa that is in effect.

30The grant of visas for non-citizens is dealt with in Div 3of Pt 2 (ss 28-140). According to the interpretation section, whichis s 5 ofthe Act, the word "visa" has the meaning given by s 29. That meaning isapparent from s 29(1) which provides:

Subject to this Act, the Minister may grant a non-citizen permission, to beknown as a visa, to do either or both of the following:

(a)travel to and enter Australia;

(b)remain in Australia.

A number of sections in Div 3 confer powers to cancel visas. There is a general power in s 116. The cancellation powers donot limit oraffect each other (s 118).

31Subdivision C of Div 4 of Pt 2 deals with the issue of criminal justicecertificates staying removal or deportation. Section147 is relevant in thepresent case. It provides, inter alia:

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 inAustralia temporarily for the purposes of:

...

(iii)the administration of criminal justice in relation to an offence againsta law of the Commonwealth; and

(c)the Attorney-General considers that satisfactory arrangements have been madeto make sure that the person or organisation whowants the non-citizen for therelevant purposes or the non-citizen or both will meet the cost of keeping thenon-citizen in Australia;

the Attorney-General may give a certificate that the stay of thenon-citizen’s removal or deportation is required for the administrationofcriminal justice.

32The effect of such a certificate is set out in s 150:

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

33Division 7 of Pt 2 deals with the detention of unlawfulnon-citizens (ss 188-197AG). Section 189(1) provides:

If an officer knows or reasonably suspects that a person in the migration zone(other than an excised offshore place) is an unlawfulnon-citizen, the officermust detain the person.

34The duration of the detention of an unlawful non-citizenheld under s 189 is dealt with in s 196(1) which provides:

An unlawful non-citizen detained under section 189 must be kept in immigrationdetention until he or she is:

(a)removed from Australia under section 198 or 199; or

(b)deported under section 200; or

(c)granted a visa.

35Division 8 of Pt 2 deals with the removal fromAustralia of unlawful non-citizens. Section 198 requires that an officer mustremove as soon as reasonably practicable an unlawful non-citizen who asks theMinister, in writing, to be so removed.

36Part 9 of the Act under the title "Miscellaneous" contains the provisionswhich were relied upon by the Minister to cancel DrHaneef’s visa. Section 501 provides as follows:

501Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

(1)The Minister may refuse to grant a visa to a person if the person does notsatisfy the Minister that the person passes the charactertest.

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 thecharacter test; and

(b)the person does not satisfy the Minister that the person passes thecharacter 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 thecharacter test; and

(d)the Minister is satisfied that the refusal or cancellation is in thenational interest.

(4)The power under subsection (3) may only be exercised by the Ministerpersonally.

(5)The rules of natural justice, and the code of procedure set out inSubdivision AB of Division 3 of Part 2, do not apply to adecision undersubsection (3).

Character test

(6)For the purposes of this section, a person does not pass thecharactertest 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 groupor organisation, whom the Minister reasonably suspectshas been or is involvedin 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 thatcommunity; or

(v)represent a danger to the Australian community or to a segment of thatcommunity, whether by way of being liable to becomeinvolved in activities thatare disruptive to, or in violence threatening harm to, that community orsegment, or in any other way.

Otherwise, the person passes thecharacter test.

Substantial criminal record

(7)For the purposes of the character test, a person has asubstantialcriminal record if:

(a)the person has been sentenced to death; or

(b)the person has been sentenced to imprisonment for life; or

(c)the person has been sentenced to a term of imprisonment of 12 months ormore; or

(d)the person has been sentenced to 2 or more terms of imprisonment (whetheron one or more occasions), where the total of thoseterms is 2 years or more; or

(e)the person has been acquitted of an offence on the grounds of unsoundnessof mind or insanity, and as a result the person hasbeen detained in a facilityor institution.

Periodic detention

(8)For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonmentis taken to be equalto the number of days the person is required under that sentence to spend indetention.

Residential schemes or programs

(9)For the purposes of the character test, if a person has been convicted of anoffence and the court orders the person to participatein:

(a)a residential drug rehabilitation scheme; or

(b)a residential program for the mentally ill;

the person is taken to have been sentenced to a term of imprisonment equal tothe number of days the person is required to participatein the scheme orprogram.

Pardons etc

(10)For the purposes of the character test, a sentence imposed on a person isto be disregarded if:

(a)the conviction concerned has been quashed or otherwise nullified; or

(b)the person has been pardoned in relation to the conviction concerned.

Conduct amounting to harassment or molestation

(11)For the purposes of the character test, conduct may amount to harassment ormolestation of a person even though:

(a)it does not involve violence, or threatened violence, to the person; or

(b)it consists only of damage, or threatened damage, to property belonging to,in the possession of, or used by, the person.

Definitions

(12)In this section:

courtincludes a court martial or similar military tribunal.

imprisonmentincludes any form of punitive detention in afacility or institution.

sentenceincludes any form of determination of the punishment foran offence.

Note 1:Visais defined by section 5 and includes, but is notlimited to, a protection visa.

Note 2:For notification of decisions under subsection (1) or (2), see section501G.

Note 3:For notification of decisions under subsection (3), see section 501C.

37It is open to an applicant to seekrevocation under s 501C of a decision made under s 501(3) or s 501A(3). The latter sectionis not relevant for present purposes. Section 501Cprovides:

(1)This section applies if the Minister makes a decision (theoriginaldecision) under subsection 501(3) or 501A(3) to:

(a)refuse to grant a visa to a person; or

(b)cancel a visa that has been granted to a person.

(2)For the purposes of this section,relevant information isinformation (other than non-disclosable information) that the Ministerconsiders:

(a)would be the reason, or a part of the reason, for making the originaldecision; and

(b)is specifically about the person or another person and is not just about aclass of persons of which the person or other personis a member.

(3)As soon as practicable after making the original decision, the Ministermust:

(a)give the person, in the way that the Minister considers appropriate in thecircumstances:

(i)a written notice that sets out the original decision; and

(ii)particulars of the relevant information; and

(b)except in a case where the person is not entitled to make representationsabout revocation of the original decision (see subsection(10)) – invitethe person to make representations to the Minister, within the period and in themanner ascertained in accordancewith the regulations, about revocation of theoriginal decision.

(4)The Minister may revoke the original decision if:

(a)the person makes representations in accordance with the invitation; and

(b)the person satisfies the Minister that the person passes the character test(as defined by section 501).

(5)The power under subsection (4) may only be exercised by the Ministerpersonally.

(6)If the Minister revokes the original decision, the original decision istaken not to have been made. This subsection has effectsubject to subsection(7).

(7)Any detention of the person that occurred during any part of the period:

(a)beginning when the original decision was made; and

(b)ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against theCommonwealth, an officer or any other person because of thedetention.

(8)If the Minister makes a decision (thesubsequent decision) torevoke, or not to revoke, the original decision, the Minister must cause noticeof the making of the subsequent decision to belaid before each House of theParliament within 15 sitting days of that House after the day on which thesubsequent decision wasmade.

(9)If the person does not make representations in accordance with theinvitation, the Minister must cause notice of that fact tobe laid before eachHouse of the Parliament within 15 sitting days of that House after the last dayon which the representationscould have been made.

(10)The regulations may provide that, for the purposes of this section:

(a)a person; or

(b)a person included in a specified class of persons;

is not entitled to make representations about revocation of an originaldecision unless the person is a detainee.

(11)A decision not to exercise the power conferred by subsection (4) is notreviewable under Part 5 or 7.

38Section 501G provides for the notification of decisions madeunder s 501(1) or (2). Notification of decisions under s 501(3)is covered by s501C.

39Section 503A provides for the protection of information supplied by lawenforcement agencies or intelligence agencies. It isnot necessary to set outits text but we note that where such information is communicated to the Ministerthe Minister must not berequired to divulge or communicate the information to acourt (s 503A(2)(c)). The Minister may, however, by writing declare thatthatand related prohibitions do not prevent the disclosure of specified informationin specified circumstances to a specified court(s 503A(3)). The Minister doesnot have a duty to consider whether to exercise the power to make such adeclaration (s 503A(3A)). In the event that the Minister makes such adeclaration a prior application may be made to the Federal Court for what iscalleda "permanent non-disclosure order" preventing disclosure of the protectedinformation to the applicant, the applicant’s legalrepresentative or anyother member of the public (s 503B(1)).

The Ministerial Direction

40Section 499 of the Act provides for the making of ministerial directionsthus:

(1)The Minister may give written directions to a person or body havingfunctions or powers under this Act if the directions areabout:

(a)the performance of those functions; or

(b)the exercise of those powers.

...

(2A)A person or body must comply with a direction under subsection (1).

Such directions self-evidently are not addressed tothe Minister. The Minister however has, from time to time, and in this casedid,take into account in the exercise of the powers under s 501, theministerial direction relevant to the cancellation of visasunder that sectionby officers of the Department.

41The relevant direction is Direction 21 "DIRECTION – VISA REFUSALAND CANCELLATION UNDER SECTION 501 – No 21". Itcannot apply to theexercise of ministerial power under s 501(3) as that is a power which may onlybe exercised by the Minister personally. So while the direction has relevanceto the application of the character test in the exercise of discretion under s501, it hasnothing to say about the national interest criterion in s 501(3)(d).

42The direction begins with a Preamble which states the objects of thediscretion to cancel a visa and the operation of the charactertest. The tworelevant paragraphs state:

The object of the Act is to regulate, in the national interest, the coming intoand presence in Australia of non-citizens. To facilitatethis object theMinister has been given a discretion to refuse or cancel a visa where the visaapplicant or visa holder does notpass the Character Test. In exercising thispower, the Minister has a responsibility to the Parliament and to the Australiancommunityto protect the community from criminal or other reprehensible conductand to refuse to grant visas, or cancel visas held by non-citizenswhose actionsare so abhorrent to the community that they should not be allowed to enter orremain within it. The powers conferredunder section 499 enable directions tobe given, in exercising discretions under section 501, for the protection of theAustraliancommunity.

Under the Character Test, visa applicants and visa holders must satisfydecision-makers that they can pass the test. When a visaapplicant or visaholder does not pass the Character Test, decision-makers will decide whether torefuse the application or to cancela visa. Exercise of this discretion willtake into account a wide range of factors including the expectations of thecommunity,the nature of crimes committed, the non-citizen’s links toAustralia and any relevant international law obligations.

The substantive part of the direction comprises two parts. Part1 gives directions on the application of the character test. Part2 givesdirections on considerations relevant to the exercise of the discretion tocancel and the weight to be given to them.

43Under Pt 1 entitled "APPLICATION OF THE CHARACTER TEST", the directionidentifies the four grounds under s 501(6) upon which anon-citizen may beconsidered to not pass the character test. Paragraphs 1.5 and 1.6 deal with theapplication of s 501(6)(b), the"association" ground. They state:

1.5The meaning of "association" for the purposes of the Character Testencompasses a very wide range of relationships includinghaving an "alliance" ora "link" or "connection" with a person, a group or an organised body that isinvolved in criminal activities. "Association" does not require actualmembership of a group or an organised body that is involved in criminalactivities. In establishingcriminal association, the decision-maker may haveregard to the following:

(a)the degree and frequency of association the non-citizen had or has with theindividual, group or organisation;

(b)the duration of the association; and

(c)the nature of the association.

1.6In some cases the information concerning association will be protected fromdisclosure by section 503A of the Act. In all cases,great care should be takennot to disclose information that might put the life or safety of informants orother persons at risk.

44Part 2 of the direction concerns the exercise of thediscretion to cancel when that discretion has been enlivened by satisfactionofthe threshold requirements. Those threshold requirements in relation to thediscretion under s 501(2), to which the directionapplies, are that the Ministerreasonably suspects that the person does not pass the character test and theperson does not satisfythe Minister that the person passes the character test. The second threshold requirement, namely that the person does not satisfytheMinister that the person passes the character test, is a precondition of theexercise of the discretion under s 501(3). Underthat section the personaffected by the cancellation is not heard until after the event.

45The direction identifies what it designates as "PRIMARY CONSIDERATIONS"and "OTHER CONSIDERATIONS" relevant to the discretion. The primaryconsiderations under para 2.3 are:

(a)the protection of the Australian community, and members of the community;

(b)the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between achild or children and the person under consideration,the best interests of thechild or children.

The "Other Considerations" which are identified in para 2.17relate to matters personal to the non-citizen and his family and othermattersrelated to the risk of misconduct on the part of the non-citizen.

The Issues Paper

46The Issues Paper submitted to the Minister by Mr White commenced byreferring the Minister to the terms of s 501(6) and statedthat:

The relevant ground in subsection 501(6) in this case is subparagraph501(6)(b)...

47It then referred to Ministerial Direction 21 and observed(at [7]):

Ministerial Direction 21 onVisa Refusal and Cancellation under Section 501(the Direction) provides guidance to decision-makers in making decisions torefuse to grant or to cancel a visa under section 501of the Act. It is clearfrom a number of decisions of the Federal Court that, when you decide a casepersonally, you are not boundby a section 499 Direction. However, in making adecision on this case it is open to you to be guided by the factors set out inthe Direction. In balancing the relevant factors in this case, you are free togive whatever weight you regard as appropriate tothose factors.

48The advice was, strictly speaking, slightly misleadingbecause Ministerial Direction 21, as noted above, does not deal withcancellationdecisions under s 501(3). It considers the "Character Test" inrelation to decisions under ss 501(1) and (2) but has nothing tosay about the"national interest" criterion in s 501(3). It does not, nor could it, deal withthe way, if any, in which the Minister’sdiscretion under s 501(3) may beshaped or influenced by the application of the "national interest" criterion andthe denial of proceduralfairness in relation to such decisions which iseffected by s 501(5). Neither the national interest criterion nor the denial ofprocedural fairness apply to cancellation decisions under s 501(2).

49The Issues Paper set out paragraph 1.5 of the direction about the meaningof the word "association" in s 501(6)(b). It then gavea factual history. Thiscommenced with the arrest of Dr Haneef on 2 July 2007 "for allegedly ProvidingSupport to a Terrorist Organisation,contrary to section 102.7Criminal CodeAct 1995". The Minister was referred to Annex 2 to the Issues Paper. PartA of Annex 2 described the attempted bombings in London on29 June 2007and the bombing at Glasgow Airport on 30 June 2007, thearrest of seven persons in the United Kingdom in that regard and the advicetheAFP had received about Dr Haneef being "a person of interest" to theinvestigation "through his association with two ofthe UK suspects". Furtherdetail of this association was said to have been provided to the AFP and"expanded in the document titled‘Part B’." Part B did not appearin the papers before the primary judge. There is no statement in the IssuesPaperto suggest that Part B was protected information under the Act.

50Dr Haneef was not charged with any offence at the time of his arrest. However on 14 July 2007, as the Minister was informedin the Issues Paper,he was "formally charged" with an offence under s 102.7 of theCriminal CodeAct.

51The Minister was informed in the Issues Paper that Dr Haneef was arrested(at [11]):

... after the AFP received information from Metropolitan Police Service (MPS)Counter Terrorism Command (CTC), that Dr HANEEF isa person of interest totheir investigation through his association with two of the United Kingdomsuspects believed to be involvedin the London incident and Glasgow bombings(Annexes 4 and 5). Further information that is protected under section 503A ofthe Act,is at Annex 3.

52Additional information was proffered about the AFP’sinvestigation into Dr Haneef’s association with the UK suspectsand hispossible connection to terrorist incidents in London and Glasgow. According toAnnex 2, Dr Haneef departed his residenceat Southport, Queensland on theevening of 2 July 2007 and went to Brisbane International Airport where heattempted to board a oneway flight to Bangalore, India via Singapore. Histicket had been purchased on the same day. He was arrested at the airport. TheAnnex went on to refer to a taped record of interview between police and DrHaneef in which he was said to have stated the following(at [11]):

.He first arrived in the UK in March 2004;

.He is related to two of the UK suspects (hereinafter referred to as UKsuspect 2 and UK suspect 5), who are brothers, and second cousinsto Haneef onhis mother’s side of the family;

.He resided with the UK suspect 5 at 13 Bentley Road Liverpool, UK,which is a boarding house;

.This was the main address he resided in the UK;

.A number of doctors of like nationality resided at the address;

.He visited Cambridge University in June/July 2004 and also in November2004 to visit UK suspect 2, who was studying a PhD in Engineeringat theuniversity;

.In October 2005, UK suspect 2 loaned him 300 pounds so he could sit amedical exam;

.When he left the UK in September 2006, he left a number of items at theLiverpool address to minimise excess baggage;

.He left behind his mobile telephone SIM card, which was connected tothe UK service provider ‘O2’ and due to expire inAugust 2006;

.UK suspect 5 wanted the SIM card to access the ‘extra minutedeal’ offered by O2 at that time;

.UK suspect 5 said he would take over the SIM card and register it withUK suspect 5’s details;

.He and UK suspect 5 have continued to correspond in on-line chat rooms,the most recent of which was following the birth of Haneef’schild on 26June 2007;

.He occasionally chats with UK suspect 5 on-line. The last time wasaround March/April 2007;

.He knows a person named ‘Bilal’, however knew no furtherdetails apart from this name;

.That he had only met Bilal once in Cambridge;

.He is currently employed as a medical doctor with the Gold CoastRegional Health Services at Southport Hospital;

.He has been a doctor since April 2002 and graduated from the Dr BRAmbedkar Medical College in Bangalore. He then did a term of12 monthsinternship;

.He is a trainee physician with the Australian Royal College ofPhysicians;

.On 2 July 2007 he attended Brisbane International Airport in an attemptto travel to Bangalore where his wife has recently givenbirth. There werecomplications during the birth and he was travelling to Bangalore to see hiswife;

.Earlier on 2 July 2007 he had a telephone conversation with hisfather-in-law in Bangalore for approximately 5 minutes, who thenmade the flightarrangements for Haneef to return to Bangalore to see his family;

.The ticket was purchased one-way to Bangalore;

.When questioned why it was a one-way ticket Haneef stated that therewas no particular reason for this and he intended to returnto Australia within7 days;

.He was not returning to Bangalore for any reason connected with thebombing incidents in London and Glasgow;

.He later checked his yahoo e-mail account and noticed that he had beensent an e-ticket from a travel agency that he cannot remember;

.On 2 July 2007 he advised the medical administrator of SouthportHospital that he had to return to Bangalore urgently to see hisfamily due toissues with his newborn child;

.He is a devout Muslim; and

.He did not wish to discuss his political views with police.

12.Haneef remains in police custody following an order pursuant to section23CA(8)(m)Crimes Act 1914 authorising the disregard of a specified period inthe calculation of the investigation period.

53Annex 4 entitled "Attempted London CarBombings" set out the names of the six suspects and the dates and places oftheir arrestsand the fact that one of them, Dr Sabeel Ahmed, was DrHaneef’s second cousin on Dr Haneef’s mother’s side. InAnnex5 similar details were given in relation to two suspects arrested in connectionwith the Glasgow Airport bombing. One of them,Dr Abdullah, had also beenarrested in relation to the London incident. The second, Dr Kafeel Ahmed, wassaid to have been confirmedas Dr Haneef’s second cousin on DrHaneef’s mother’s side of the family.

54The Issues Paper pointed out that Dr Haneef had advised that when hefirst arrived in the United Kingdom in March 2004 he wasemployed as a locum atHalton Hospital, Runcorn, Cheshire where he remained until 2005 and that thiswas the same hospital in whichDr Sabeel Ahmed was employed. Reference was madeto Annex 6 which appeared to be an online press article in which a spokeswomanfor the North Cheshire Hospitals NHS Trust said that Dr Haneef was employed as alocum at that hospital until 2005 and that one ofthe doctors arrested hadworked at the same hospital.

55The Issues Paper stated that Dr Haneef had advised that he had residedwith Dr Sabeel Ahmed at a boarding house at Liverpool andthat he had visited DrKafeel Ahmed at Cambridge University in June/July 2004 and November 2004 andthat in October 2005 Dr KafeelAhmed had lent him [sterling]300 to sit amedical exam.

56The Issues Paper went on to refer to Dr Haneef leaving several items atthe Liverpool address when he departed for Australia. These included his mobiletelephone (both the handset and the SIM card) which was connected to a UnitedKingdom service provider"O2". Since leaving the United Kingdom he and DrSabeel Ahmed had been in correspondence via on-line chat rooms. Their mostrecentcorrespondence was said to have been on 26 June 2007 concerningthe birth of Dr Haneef’s daughter. The Issues Paperwent on(at [16]):

... There is additional material to support the association that is protectedunder section 503A of the Act, and this is at Annex3.

The Issues Paper then said:

17.Based on the information provided in this submission, including section 503Aprotected information, it is open for you to reasonablysuspect Dr Sabeel AHMEDand Dr Kafeel AHMED are, or have been, involved in criminal conduct.

18.Based on the above information, it is open for you to reasonably suspectthat Dr HANEEF has or has had an association with DrSabeel AHMED and Dr KafeelAHMED.

19.Additional information relating to Dr HANEEF’s possible associationwith Dr Sabeel AHMED and De [sic] Kafeel AHMED thatis protected under section503A of the Act, is at Annex 3. This evidence cannot be disclosed to Dr HANEEFor his authorised recipientfor comment.

20.Based on the information provided in this submission, it is open for you toreasonably suspect that Dr HANEEF does not pass thecharacter test atparagraph 501(6)(b) of the Act.

The Statement of Reasons

57The Statement of Reasons signed by the Minister on 16 July 2007 beganwith four paragraphs under the heading "CHARACTER TEST". It is desirable to setthose paragraphs out in full. They stated:

1.I noted that on 14 July 2007, Dr HANEEF was formally charged withintentionally providing resources to a terrorist organisation,consisting ofpersons including Sabeel AHMED and Kafeel AHMED, being reckless as to whetherthe organisation was a terrorist organisation,contrary to section 102.7Criminal Code Act 1995.

2.Dr HANEEF has advised the Australian Federal Police (AFP) that he is thesecond cousin of two people suspected of involvementin the London incident andthe Glasgow bombings: Dr Sabeel AHMED and Dr Kafeel AHMED. Further, I note thatsince leaving the UK,Dr HANEEF and Dr Sabeel AHMED have been incorrespondence via on-line chat rooms. The most recent correspondence was on 26June 2007, regarding the birth of Dr HANEEF’s daughter. From thisinformation, I reasonably suspected that Dr HANEEFhas, and has hadpreviously, an association with Dr Sabeel AHMED and Dr Kafeel AHMED.

3.Dr Sabeel AHMED and Dr Kafeel AHMED are suspected of involvement in theLondon incident, and the Glasgow bombings. Based on thisinformation, andfurther information provided to me including section 503A protected information,I reasonably suspect that Dr SabeelAHMED and Dr Kafeel AHMED are, or have been,involved in criminal conduct.

4.Based on the information provided to me, including section 503A protectedinformation, I reasonably suspect that Dr HANEEF doesnot pass the charactertest by virtue of section 501(6)(b) in that he is a person who has or has had anassociation with Dr SabeelAHMED and Dr Kafeel AHMED whom I suspect are or havebeen involved in criminal conduct.

58The next three paragraphs of the Statement ofReasons were headlined "NATIONAL INTEREST". They were in the following terms:

5.I considered that the criminal conduct in which Dr HANEEF’s associatesare suspected to have engaged in is particularlyserious.

6.I considered that it was in Australia’s national interest to preventDr HANEEF who was charged with intentionally providingresources to aterrorist organisation, consisting of persons including Sabeel AHMED and KafeelAHMED, being reckless as to whetherthe organisation was a terroristorganisation, contrary to section 102.7Criminal Code Act 1995fromcontinuing to hold a valid visa and to remain in the Australian community, Inote that this is clearly a serious offence in nationaland international terms.

7.On this basis, I was satisfied that cancellation of Dr HANEEF’s visawas in the national interest.

59The Minister’s reasons then turned tomatters relevant to the exercise of his discretion. The "PrimaryConsiderations"were "Protection of Australian Community" and the "Seriousnessand nature of conduct". Under those headings he referred to the chargebroughtagainst Dr Haneef. Under the heading "Expectations of Australian Community" theMinister said:

21.I had regard, as a primary consideration, to the expectations of theAustralian community, and consider that the Australian communitywould expectthat a non-citizen, who has had an association with persons suspected ofinvolvement in an act of terrorism and whohas been charged with an offence ofproviding resources to a terrorist organisation, including those persons, wouldhave their visacancelled.

22.I found that the ‘Expectations of Australian Community’ weighedin favour of visa cancellation. I gave this considerationmoderate weight.

60Under the heading "Conclusion" the ministerialreasons said:

32.I considered all relevant matters including (1) an assessment against thecharacter test as defined by s501(6) of the MigrationAct 1958, (2) MinisterialDirection 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 thecharacter test, and having decided that cancellation ofDr HANEEF’s visawould be in the national interest, I concluded that the seriousness ofDr HANEEF’s suspected conductand, to a lesser extent, theexpectations of the Australian community outweighed all other considerationsmentioned above.

34.I therefore decided to exercise my discretion to cancel Dr HANEEF’svisa under s501(3).

The grounds for review

61The application for certiorari, prohibition and/or injunction brought onbehalf of Dr Haneef relied upon four grounds. Theywere:

1.The Respondent fell into jurisdictional error by deciding that the thresholdrequirement unders 501(3)(c) of theMigration Act had been satisfied based uponmisconstruction of the expression "association" ins 501(6)(b).

2.The Respondent fell into jurisdictional error by failing to take into accounta relevant consideration in the exercise of thediscretion unders 501(3),namely:

(a)the nature and extent of the alleged "association" between the Applicantand the persons whom the Respondent suspected of criminalconduct;

(b)the weakness or strength of the evidence supporting the charge against theApplicant;

(c)hardship to the Applicant as a result of the cancellation;

(d)hardship to the Applicant’s family as a result of the cancellation.

3.The Respondent fell into jurisdictional error by taking irrelevantconsiderations into account in the exercise of the discretionunders 501(3),namely:

(a)that the Applicant had been granted bail by the BrisbaneMagistrates Court;

(b)that the "Australian Government has a strong interest in deterringnon-citizens from providing support to terrorist organisations/networks",whenthe Applicant has not been convicted of any offence involving provision of suchsupport.

4.The Respondent’s purpose in cancelling the visa unders 501(3) was toallow the Applicant to be detained when he had been granted bail and that was animproper purpose.

62The particulars relied upon to support ground 4alleged, inter alia, that the Minister, when he cancelled the visa, knew andtookinto account the fact that Dr Haneef had been granted bail. They furtheralleged that the Minister also knew that the Commissionerof the AFP intended toask the Attorney-General to issue a criminal justice stay certificate and thatit would operate to requireDr Haneef to remain in immigration detention untilhis trial.

The reasons for judgment of the primary judge

63The learned primary judge commenced his reasons for judgment with adiscussion of the jurisdiction of this Court in relation tojudicial review ofdecisions under the Act. He referred to the application of the privativeclause, s 474 of the Act, and the requirementto demonstrate jurisdictionalerror to secure the issue of a constitutional writ or its statutory equivalent. He posed the questionthat was central to the case (at [56]):

Did Parliament intend that the definition of "not passing the character test"should apply to persons whose "association" with personswho are criminals doesnot bear adversely on their character, as well as to those whose "association"with such persons does bearadversely on their character?

64The Minister had submitted that the "association" limb ofthe character test set out in s 501(6)(b) required no element of personalfault.Counsel for Dr Haneef on the other hand had argued that, on its properconstruction, s 501(6)(b) required a connection betweenthe visa holder andthose suspected of criminal conduct that involved personal fault or reflectedadversely on the character of thevisa holder. Mere connection was notsufficient.

65The evidence did not include any part of the protected information beforethe Minister. His Honour said (at [80]):

This case has to be decided on the evidence properly before the Court, whichincludes, of course, that there was protected informationbefore the Ministerthat was not before the Court.

The judge set out the factual background already outlined inthese reasons. He noted that neither the minute to the Minister northeStatement of Reasons referred to the date of the charge against Dr Haneef, noridentified the resources allegedly provided asthe SIM card (at [114]). Itappears from the context that his Honour intended to refer to the date of thealleged offence setout in the charge, which was 25 July 2006.

66His Honour found, from facsimile markings on the Statement of Reasonsdelivered to Dr Haneef on 16 July 2007, that they had beensigned by theMinister before 1.22 pm that day. He found that following the cancellationdecision and before its communicationto Dr Haneef, the Minister held apress conference at about 1.45 pm and, among other things, said (at [117]):

The Commissioner of the Australian Federal Police has intimated to me that theAFP will issue a criminal justice certificate, theeffect of which is that DrHaneef will remain in immigration detention whilst the legal proceedings are onfoot.

Dr Haneef will be detained by immigration authorities and relocated to theVillawood Immigration Detention Centre as soon as arrangementscan be made. Inthe meantime, he’ll be held in immigration detention in Brisbane.

67Mr Cosgrove, a solicitor with the Australian GovernmentSolicitor, having carriage of the matter on behalf of the Minister, saidthatthe criminal justice certificate, executed pursuant to s 147 of the Act,had been provided to the Minister by persons fromthe Attorney-General’sDepartment by email received at 11.09 am on 17 July 2007.

68His Honour described as the central question in the case whether theMinister had misconstrued the terms of s 501(6)(b). He citedLobo v Ministerfor Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 168; (2003) 132 FCR 93as being directly relevant. Its relevance lay in its support for theproposition that misconstruction of a criterionfor the exercise of aministerial power under the Act (in that case the grant of a visa) can amount tojurisdictional error.

69The issue between the Minister and Dr Haneef on the construction of s501(6)(b) was whether or not the "association" to whichit refers encompasses an"innocent association" or whether there must be some connection between the visaholder and the criminalconduct of those with whom he is said to be associated. As previously indicated, the Minister’s contention was that "anyassociation"would suffice. In support of that contention he relied upon theex tempore judgment of Emmett J inMinister for Immigration andMulticultural Affairs v Chan (2001) 34 AAR 94. That case concernedcancellation of a Class UC (Temporary Business Entry) Subclass 457 visa on thebasis thatthe Minister was not satisfied that the visa holder passed thecharacter test pursuant to s 501(6) of the Act. The matter had goneto theAdministrative Appeals Tribunal (the Tribunal) where Purvis DP held that"association" in s 501(6) encompassed persons associated,connected or combinedwith a common purpose or having a community of ideas where one of the associateswas reasonably suspected ofhaving been, or being, involved in criminal conduct.In his view the "reasonably believed association, connection, combination,communityof ideas of the one" must have a nexus with the reasonably believedinvolvement of the other, in criminal conduct. The case concerneda woman whohad been found to have had a relevant association with her ex-husband who couldreasonably be suspected of having beeninvolved in criminal conduct. There was,however, no suggestion of any guilty connection on the part of the woman.

70On appeal by the Minister from the decision of the Tribunal, the womandid not appear. In theex tempore judgment Emmett J said (at [7]):

The Tribunal considered that it was necessary that there be some nexus betweenthe visa holder and the criminal conduct of the personwith whom the visa holderwas associated. However, I do not consider that the language of s 501(6)(b)justifies such a limitation. There is nothing in the paragraph itself to limitthe association in that way. Rather, the scheme of the provision is to conferupon the Minister adiscretion under s 501(2) to cancel a visa if certainprerequisites are satisfied. The first prerequisite is that the Ministerreasonably suspectsthat the person does not pass the character test and thesecond is that the person does not satisfy the Minister that the personpassesthe character test.

His Honour said (at [9]) that it might be relevant that the visaholder had no knowledge of the criminal conduct of the other personor did notknowingly take a benefit from the proceeds of such conduct. Such matters fellfor consideration upon the exercise ofthe discretion if it were to arise. Theywere not matters to be taken into account in determining whether or not thediscretionarose.

71Emmett J referred (at [10]) to the amendment to s 501 which took effecton 1 June 1999. He accepted that, under thesection in its earlierform, the Minister was required to make a judgment as to whether or not the visaholder was not of good characterbecause of the association with the personinvolved in criminal conduct.

72Spender J observed that Emmett J did not express an opinion about themeaning of "association" in s 501(6)(b) even though it mightbe inferred that hehad considered that a mere connection was enough. Spender J said (at [175]):

He clearly held that an association by way of family ties was of itselfsufficient to ground the necessary "association". That viewsuggests that anyassociation, whether innocent or sinister, whether fleeting or regular, whetherin the distant past or contemporary,is sufficient to enliven the discretion tocancel.

73He went on (at [176]):

In my opinion, that is the test which the Minister applied, that is the testwhich the Solicitor-General on behalf of the Ministersays the Minister applied,and further, that is the test which the Solicitor-General on behalf of theMinister contends is the correcttest.

74His Honour thought thatChan34 AAR 94 was wronglydecided. He considered that the meaning given to "association" by Purvis DP inthe Tribunal inRe Chan and Minister for Immigration and MulticulturalAffairs[2001] AATA 487;(2001) 33 AAR 191 and by Lee J inGodley v Minister forImmigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 wascorrect. In the latter case, Lee J said (at [47]):

It is unnecessary to consider the meaning of the word "association" but for avisa applicant not to pass the character test it maybe taken to require theminister to make relevant findings of fact as to the knowledge, or awareness, bythe visa applicant of thefacts that point to the involvement of the person,group or organisation in criminal conduct.

The case went on appeal to the Full Court, which dismissed theappeal but did not refer to or deal with the passage quoted.

75Spender J referred to the other criteria, in s 501(6), by which a personmay fail the character test. Each of the other criteriarequired thedecision-maker to look at the visa holder and make an assessment of qualitiespersonal to the visa holder which qualitiesParliament has said determine thatthat person fails the character test. His Honour said (at [187]):

In that context, it would be striking if the criterion in (b), which this caseis concerned, could be met byan orany association with a person,group or organisation reasonably suspected of having been or is involved incriminal conduct. Such anassociation could be completely innocent, and involvenot the slightest reflection on that person’s character. The associationcould be of the most transient kind, could be not only innocent but historicallyancient.

76His Honour held, having regard to the context, that itseemed impossible to conclude that Parliament would have intended thata personfail the character test where the relationship of the visa holder with a person,group or organisation was utterly remotefrom the criminality of that person,group or organisation. He attached significance to the use of the words "thecharacter test". They were not "just a convenient definition" but were words tobe read as having a meaning (at [205]).

77His Honour referred to the amendments effected by theMigrationLegislation Amendment (Strengthening of Provisions Relating to Character andConduct) Bill l997 and the Report of the Senate Legal and ConstitutionalLegislation Committee in respect of that Bill. He noted that theMinister’sdepartment was cited by the Senate Committee as havingreiterated that (at [217]):

... a criminal association was already part of the Act, and that the proposedprovision did not necessarily extend to links withfamily members and othergroups that were lawful:...

78His Honour said that the changes introduced in 1999 did notmake the relationship between the suspected association and the visaholder’s character irrelevant. What the legislative amendments did was toreverse the onus. The Minister’s contentionthat the amendments wereintended to go further, and broaden the character test to include even the mostinnocent association, wasnot supported by the Second Reading Speech. HisHonour said (at [256] – [259]):

In my opinion,Chan was wrongly decided, and the test which the Ministerapplied was not the test called for by s 501(6)(b).

As the result of this misconception as to what the exercise of the statutorypower entailed, there was a purported, but not a realexercise of the powerconferred by s 501(3).

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

It follows that there ought to be an order in the nature of certiorari quashingthe respondent’s decision made on 16 July 2007to cancel theapplicant’s Subclass 457 Business (Long Stay) (Class UC) visa, and also anorder in the nature of prohibitionand/or injunction restraining the respondentfrom acting upon the cancellation of the applicant’s visa.

79His Honour found that there was material before the Ministerand also before the Court upon which it would have been open to theMinister tocancel Dr Haneef’s visa had the correct test been applied. In addition tothe circumstances of connection to theAhmed brothers relied upon by theMinister to find the relevant association, there were two other factors inparticular which wouldtake the case into one where it was open to the Ministerto have a reasonable suspicion that the requisite association existed. Thesewere:

1.The information contained in Annex 2 of the material before the Minister,namely that the Metropolitan Police Service CounterTerrorism Command hadadvised the AFP that Dr Haneef was a person of interest to their investigationthrough his association withtwo of the United Kingdom suspects. The fact thathe was a person of interest to those investigating the terrorist events boreuponthe nature of the association between him and the two United Kingdomterrorists; and

2.That on 14 July 2007 Dr Haneef had been charged with intentionally providingresources to a terrorist organisation. The factthat the AFP and/or theDirector of Public Prosecutions had laid the charge was, in his Honour’sopinion, a factor relevantto the nature of the association between Dr Haneefand the Ahmed brothers.

80His Honour also dealt with othergrounds raised by Dr Haneef, none of which was made out. Among those groundswas an allegationthat the Minister made his decision for an improper purpose inthat, contrary to the statutory scheme, he did not intend to removeDr Haneef from Australia "as soon as reasonably practicable". His Honourwas not prepared to find the alleged improper purposeon the materials beforehim.

The orders made by the primary judge

81The learned primary judge made the following orders on 21 August 2007:

1.There be an order in the nature of certiorari quashing the Minister forImmigration and Citizenship’s decision made on 16July 2007 to cancel theapplicant’s Subclass 457 Business (Long Stay) (Class UC) visa.

2.There be an order in the nature of a prohibition and/or an injunctionrestraining the Minister from acting upon the cancellationof theapplicant’s visa.

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

82His Honour also made a declaration that:

4.When the applicant departed Australia on 28 July 2007, his immigration statuswas that of a lawful non-citizen.

83On the same day he also made the followingorders:

1.The orders and declaration of Spender J on 21 August 2007 are stayed for 21days from today.

2.The order of certiorari is not to issue from the Registry until 21 days fromtoday.

3.There be liberty to apply on 48 hours written notice.

The grounds of appeal

84The grounds of appeal are as follows:

The test imposed by s 501(6)(b)

2.The Learned Judge erred in law in holding, at [56] of his Reasons, that the"principles" discussed by His Honour, at [48]-[55]of his Reasons, bore upon howthe "association test" in 501(6)(b) of theMigration Actwas to beproperly construed.

3.The Learned Judge erred in law, at [180] of his Reasons, in holding that themeaning of the expression ‘an association with’in 501(6)(b) of theMigration Act, as applied by Emmett J inMinister forImmigration and Multicultural Affairs v Chan [(2001) 34 AAR 94] waserroneous.

4.The Learned Judge erred in law in holding, at [239] of his Reasons, that itwas no answer to the criticism of the decision inChan that theMinister’s power could be expected to be exercised only in thosecircumstances where the Minister thought it appropriateto exercise the power,because the exercise of power conditioned upon such a consideration would be anexercise of power alien tothe object of the purposes of theMigrationAct.

5.The Learned Judge erred in failing to adopt a construction of 501(6)(b) oftheMigration Act which accorded with the ordinary and naturalmeaning of the words used in the section.

6.The Learned Judge erred in law in holding, at [229] of his Reasons, that themeaning of 501(6)(b) is to be derived having regardto the other criteria onwhich a visa applicant or holder fails the character test, namely 501(6)(a),501(6)(c) and 501(6)(d) oftheMigration Act.

7.The Learned Judge erred in law in holding, at [230] and [254] of his Reasons,that 501(6)(b) of theMigration Act is a composite phrase that hasthe connotation that there is an alliance or link or combination between thevisa holder and the personsengaged in criminal activity which reflectsadversely on the character of the visa holder.

8.In the alternative to paragraph 3 hereof, the Learned Judge below erred infailing to determine that the connection which 501(6)(b)of theMigrationAct required was a "personal" association with persons engaged incriminal activity which wasboth more than accidental (such as a familialor incidental relationship) and involved intentional or deliberate interactionwith thosepersons so engaged in the criminal activity.

No vitiation of the exercise of discretion by the Minister

9.The Learned Judge erred in law in holding, at [234] of his Honour’sReasons, that jurisdictional error underpinned the exerciseof the discretion tocancel the visa.

10.The Learned Judge erred in law in holding, at [257] of his Reasons, that asa result of the misconception referred to at [254]of his Reasons, there was apurported, but not a real exercise by the Minister of the statutory powerconferred by 501(3).

11.The Learned Judge erred in law in holding, at [258] of his Reasons, that theMinister’s decision was a nullity ands474 did not apply.

Errors in granting relief

12.The Learned Judge erred in law in exercising his discretion to grant theorders he did in that he failed to consider, irrespectiveof His Honour’sviews in respect of the meaning of 501(6)(b), that there were valid grounds forthe Minister’s decision.

13.The Learned Judge erred in granting the remedies of prohibition and or aninjunction when there were no grounds for believingthat the respondent wouldnot act in accordance with the determination of the Court.

14.The Learned Judge erred in granting the relief by way of a declaration whensuch relief was futile.

The noticeof contention

85A notice of contention was filed on behalf of Dr Haneef on 21 September2007. It was in the following terms:

The Respondent contends that the judgement below should be affirmed on groundsother than those relied on by the Court below.

The grounds contended for are:

GROUNDS:

1.The Respondent fell into jurisdictional error by failing to take into accountrelevant considerations in the exercise of the discretionunders 501(3) of theMigration Act1958, namely:

(a)the nature and extent of the alleged"association"between theRespondent and the persons whom the Appellant suspected of criminal conduct;

(b)hardship to the Respondent as a result of the cancellation of his visa.

2.The Appellant’s purpose when cancelling the visa unders 501(3) of theMigration Act was to allow the Respondent to be detained in Australia andthat was an improper purpose.

Legislative history and judicialexegesis

86Australia’s migration law, post-federation, began with theImmigration Restriction Act 1901 (Cth). It was derived in part from thestatutes of the colonies which became the States of Australia. It provided forrestrictionson immigration and the removal from Australia of prohibitedimmigrants. Its definition of "prohibited immigrant" included any personwhohad been convicted and sentenced to imprisonment for a year or more for anoffence which was not a mere political offence. TheImmigration RestrictionAct and cognate statutes relating to Pacific Islanders and the deportationof aliens were repealed upon the enactment of theMigration Act 1958(Cth).

87TheMigration Act 1958 provided for entry into Australia to beregulated by entry permits which could be cancelled by the Minister "in hisabsolute discretion"(s 7). There were provisions for the deportation of aliensconvicted of violent offences against the person or extortion using force orthreats. Immigrants in Australia who had been convicted of an offencepunishable by death or by imprisonment for one year or longer,being an offencecommitted within five years after entry into Australia, were subject todeportation by ministerial order. So toowere persons convicted ofprostitution-related offences or any person who within five years after entryinto Australia became aninmate of a mental hospital or a public charitableinstitution.

88The Act provided that the Minister could order the deportation of aliensor immigrants whose conduct appeared to the Ministerto have been such that theyshould not be allowed to remain in Australia. In the case of the immigrant, therelevant conduct hadto be within five years prior to the ministerialconsideration of it (s 14). In addition the Minister could order thedeportationof an immigrant if:

14(2)(b)he is a person who advocates the overthrow by force or violence of theestablished government of the Commonwealth or ofa State or of any othercivilized country or of all forms of law, or advocates the abolition oforganized government or the assassinationof public officials, or advocates orteaches the unlawful destruction of property, or is a member of an organizationwhich entertainsand teaches any of the doctrines and practices specified inthis paragraph...

89The Human Rights Commission and the Administrative ReviewCouncil both published reports on the operation of the Act in 1985. Followingthese reports theMigration Legislation Amendment Act 1989(Cth) wasenacted. Under those comprehensive amendments new provisions for the control ofentry into Australia involved entry permitsand visas.

90The precursors to s 501, s 502 and s 503 of the present Act,wereintroduced by theMigration (Offences and Undesirable Persons) Amendment Act1992(Cth). Section5 of the amending Act introduced s 180A, theprecursor of the present s 501 and ss 180B and 180C which were the precursors ofss 502and 503. A character test was set out in s 180A(2) which provided:

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 theperson’s association with another person, or witha group or organisation,who or that the Minister has reasonable grounds to believe has been or isinvolved in criminal conduct.

The application of subs (2) to a person was asufficient condition for the Minister to cancel that person’s visa under s180A(1).

91Reference to entry permits was deleted from s 180A by theMigrationLegislation Amendment Act 1994(Cth) (the 1994 Amending Act) –Schedule 1, Item 113. The 1994 Amending Act also renumbered theMigrationAct which by that time bore a large number of alphanumeric sectiondesignations. The several sections of the amended Act were renumberedin asingle series so that they bore consecutive Arabic numerals starting with "1":s 83(5) of the 1994 Amending Act.

92Before the amendments to s 501 in 1999 which cast it into its presentform, the Minister, if relying upon a visa holder’sassociation withcriminal elements as a basis for cancelling a visa, had to be satisfied that thevisa holder was not of good character. A substantive moral judgment wasrequired. It was a judgment about the visa holder’s "enduring moralqualities":Powell v Administrative Appeals Tribunal[1998] FCA 1747; (1998) 89 FCR 1 at14 (French J). In the context of consideration of the relationship between aperson’s character and criminalor general conduct for the purpose of s501(1)(a) as it was, Whitlam J inBaker v Minister for Immigration andMulticultural Affairs (1996) 69 FCR 494 also focused upon the need to findwant of good character. As he pointed out, conduct that might be criminal inaforeign country might not be criminal in Australia (at 500):

It follows that in some cases the nature or circumstances of the criminalconduct will not suggest that a person is "not of goodcharacter".

93In relation to the "association" criterion under the sectionin its previous form the Full Court inMorales v Minister for Immigration andMulticultural Affairs (1998) 82 FCR 374 said (at 380):

The question under s 501(2)(b) is whether the Minister is satisfied that aperson is not of "good character"because of the person’sassociation. The latter words are important. They require a causal link. The association must be such that it impacts adversely on the characterof theperson to such an extent that he or she can be said to benot of goodcharacter...

The Full Court there accepted that there might be circumstancesof association with a person or group involved in criminal activitywhere theassociation would not detract from the good character of the visa holder. Whileany assessment had to depend upon the particularcircumstances of each case andthe nature of the association, awareness would usually be an important element.

94By theMigration Legislation Amendment (Strengthening of ProvisionsRelating to Character and Conduct) Act 1998(Cth) (No 114 of 1998),s 501 was repealed and replaced by the section in its present form.Sections 501A to 501H were also introduced. Section 503A relating to protectionof information supplied by law enforcement agencies or intelligence agencies wasenacted atthe same time. The amendments came into force on 1 June1999.

95In his Second Reading Speech for the Bill, the Minister described thepurpose of the Bill thus (Australia, House of Representatives,Debates(1998) Vol HR 223, at 1230):

The purpose of this bill is to ensure that the government can effectivelydischarge its fundamental responsibility to prevent theentry and stay inAustralia of non-citizens who have a criminal background or have criminalassociations.

He said in his Second Reading Speech that experience over recentyears had shown that the existing legislative provisions were inadequateto thetask. This was despite the fact that they had been amended as recently as 1992with the express purpose of improving thegovernment’s ability to dealwith visa applicants and visa holders with substantial criminal backgrounds. Hesaid (at 1230):

In broad terms, the bill seeks to enhance the government’s ability to dealwith non-citizens who are not of good character...

96The Minister set out three ways in which the Bill sought toachieve that objective. One of those ways was that (at 1230):

... in exceptional or emergency circumstances, the minister, acting personally,will be given powers to act decisively on mattersof visa refusal, cancellationand the removal of non-citizens ...

The Minister also observed that information provided byAustralian and international law enforcement agencies would be afforded moreeffective protection so that such agencies could be confident about passinginformation to immigration decision-makers.

97In describing the character test, the Minister said (at 1230-1231):

The amendments proposed in this bill introduce the concept of a character test. Under this test, the onus will be on visa applicantsand visa holders to satisfydecision makers that they can pass the test. This will redress a significantdeficiency in the legislationarising from the changes made in 1992. Since thattime, decision makers have been required to establish that a person is not ofgood character before they could refuse a visa to an applicant or cancel a visa.This has meant that whenever there has been doubtabout the criminal backgroundor criminal associations of a non-citizen, the doubt has been resolved in thenon-citizen’s favour. I understand that this was not the intention of the1992 amendments.

This bill takes us back to the situation that existed before 1992 by placing theonus of proof on the visa applicant to demonstratethat he or she is of goodcharacter. This means that, where there are real doubts about the criminalbackground or criminal associationsof a visa applicant or visa holder, theobjective of protecting the Australian community will take precedence inimmigration decisionmaking.

98In his speech for the Bill, under the heading "Deemingprovisions", the Minister further said (at 1231):

This bill also seeks to establish clear benchmarks for criminal behaviour thatwould automatically lead to a non-citizen failingthe character test. Non-citizens who have been convicted to [sic] a single sentence of detention of12 months or more, or wherethe length of several sentences aggregates to twoyears or more, will fail the character test. This will truncate the characterassessment process and cover most non-citizens of character concern who come tonotice. This will provide more certainty as to whois able to pass thecharacter test.

99A feature of the Minister’s speech is that nowhere init is the Parliament informed of the possibility that an innocentassociationwith criminal elements could mandate a determination that a person failed topass the character test. The only elementsof the Bill which were described as"deeming provisions" were those relating to persons sentenced to terms ofimprisonment of 12months or more. The focus was rather upon the onus of proofof character.

100The Senate Legal and Constitutional Legislation Committee had reportedon a previous version of the Bill in March 1998. Thatversion was theMigration Legislation Amendment (Strengthening of Provisions Relating toCharacter and Conduct) Bill 1997which was identical in the parts relevantfor present purposes to the 1998 Bill. In its report the Senate Committeediscussed whatit called the "Criminal association provision". The Committeehad received several submissions expressing concern about the proposedsubs 501(6)(b). The Queensland Branch of the International Commission ofJurists had submitted that the provision was too wideas it might encompasspeople who were completely unaware of another person’s criminal conductand might even extend to charityworkers. On the basis of that provisionGalileo, Ghandi and Mandelawould all fail the character test. TheCentral Coast Legal Centre was also concerned about the scope of the provisionand queriedwhether women who had suffered domestic violence might be regardedas being of bad character because of their association with violentpartners. The Committee’s report noted (at [2.31]):

In response, the Department reiterated that a criminal association was alreadypart of the Act, and that the proposed provision didnot necessarily extend tolinks 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 badcharacter on being a member of an organisation or anassociate of anorganisation. I do not think that necessarily means that a family member isdamned by the family member’sassociation with thatorganisation.

A Hansard record of the Committee’s proceedings shows thatthis was said in response to the following question from SenatorBartlett on 13February 1998:

Is it correct that the legislation brings in a great ability to judgesomeone’s character through their associates? It coversthe membership ofterrorist groups, but does it extend to links with family members and othergroups that are not necessarily unlawful?

101The Committee’s conclusions and recommendationsappear in Ch 3 of its report. As to the character test and the reversalof theonus of proof, the Committee concluded that:

.migration decisions on character are not concerned with determiningcriminal guilt or innocence, but simply with determining whethera particularnon-citizen should be permitted to live in the Australian community;

.a visa applicant or visa holder should bear the onus of proving thatthey satisfy the character test – such a situation existedin 1992 andappropriately gives the benefit of any doubt to Australia rather than theapplicant;

.the ‘character’ test as included in the Bill should makedecisions in this area more simple and more certain;

.those aspects of the character test dealing with spent convictions,juvenile offences and mental illness are an attempt to ensurethat seriousrelevant anti-social conduct may be taken into account by decision-makers inexercising their discretion under the legislation;and

.the exercise of discretions under the character test will be informedby sensible and sensitive policy considerations.

102The association criterion in s 501(6)(b) wasconsidered by Lee J inGodley 83 ALD 411. The case concerned refusal ofa spouse visa on the ground of alleged failure by the applicant to satisfy theMinisterthat he passed the character test. The refusal was not based onassociation, but rather upon past general conduct. Neverthelesshis Honourundertook a general discussion as to the construction of s 501(6). In relationto s 501(6)(b) he said (at [47]):

Section 501(6)(b) combines a finding of fact by the minister with the formationof a reasonable suspicion. First, the minister mustform a reasonable suspicionthat a person, group or organisation has been or is involved in criminalconduct. It may be taken thatto be a reasonable suspicion the suspicion mustbe based on reasonable grounds. Second, the minister must make a finding offactthat the visa applicant has, or has had, an association with that person,group or organisation. Again it would be necessary forthere to be materialcapable of supporting that finding. It is unnecessary to consider the meaningof the word "association" butfor a visa applicant not to pass the charactertest it may be taken to require the minister to make relevant findings of factasto the knowledge, or awareness, by the visa applicant of the facts that pointto the involvement of the person, group or organisationin criminal conduct.

103It is apparent from his Honour’s reasons that heregarded the question whether the visa applicant "passed the charactertest" asa substantive question about the applicant’s character and not merely alabel attaching to the criteria set out inthe section. He said(at [51]):

The words "of good character" mean enduring moral qualities reflected insoundness and reliability in moral judgment in the performanceof day-to-dayactivities and in dealing with fellow citizens.

He added (at [52]):

A finding that a person is "not of good character" requires the minister to makea supervening determination after having regardto the matters set out in s501(6)(c).

104As indicated above, his Honour’s observations aboutthe association test were obiter and were not the subject of commentin the FullCourt on appeal. It was submitted for the Minister that the dicta were "merehypothesising about the operation of theprovision" in contrast with theanalysis of its operation by Emmett J inChan34 AAR 94. The submissionasserted that it was apparent that neither Lee J nor the Full Court had beenreferred toChan 34 AAR 94 or to the legislative history of theprovisions, which had been considered by Emmett J.

The approach to construction – effects of common lawrights and freedoms

105The construction of any statute commences with the ordinary meaning ofits words by reference to their context and the statutorypurpose. Statutorypurpose may be ascertained from express statements of objectives in the Actitself and/or by reference to thescheme and function of the Act overall. Extrinsic materials such as Second Reading Speeches, Explanatory Memoranda orReports ofLaw Reform Commissions may throw light upon the purpose of a statuteand even in some cases the meaning to be given to its words.

106Acts of Parliament frequently use words of wide import which requirecourts to make constructional choices. They may be wordscapable of two or moremeanings, each of which might make sense in the context in which it appears inthe Act. Such a case is oneof ambiguity and reference to extrinsic materialsmay point in the direction of one intended meaning rather than another. Alternatively,words may be used which have an ambulatory significance capableof a wide range of applications. Construction involves determiningthe limitsof that range. Terms such as "in relation to", or "in connection with" raisethat kind of problem which, strictly speaking,is not a problem of ambiguity atall. The word "association" falls into this category. It may be read widelyenough to pick upmany completely innocent connections between people. On theother hand, it may be read narrowly to require some sort of positiveinvolvementin criminal conduct with others.

107It is an important principle that Acts should be construed, whereconstructional choices are open, so as not to encroach uponcommon law rightsand freedoms. An early, well known and still authoritative statement of thatprinciple is found inPotter v Minahan[1908] HCA 63; (1908) 7 CLR 277 which was a caseinvolving theImmigration Restriction Act 1901 (Cth). O’Connor J quoted from the 4^th Edition of Maxwell’sInterpretation of Statutes(1905, Sweet & Maxwell) (at 304):

It is in the last degree improbable that the legislature would overthrowfundamental principles, infringe rights, or depart fromthe general system oflaw, without expressing its intention with irresistible clearness; and to giveany such effect to general words,simply because they have that meaning in theirwidest, or usual, or natural sense, would be to give them a meaning in whichtheywere not really used.

See alsoBropho v State of Western Australia[1990] HCA 24; (1990) 171CLR 1 at 18;Coco v The Queen[1994] HCA 15;(1994) 179 CLR 427 at 437.

108InMinister for Immigration and Ethnic Affairs v Sciascia (1991)31 FCR 364, the Full Court of the Federal Court considered the application ofs20 of theMigration Actas it then stood. It provided for a person whohad been convicted of a crime or crimes and sentenced to imprisonment totallingatleast one year to be an illegal entrant and, unders 59, liable todeportation. The question was whether the section was directed to one period ofimprisonment resulting from multipleconvictions. Relevantly to the presentcase, Burchett and Lee JJ said (at 372):

Persons whose liberties are protected by the common law, who live in ourcommunity, are entitled to have laws of the nature ofs 20 read with scrupulouscare, and in their narrowest, rather than in some wider, sense. That is becauses 20 deprives those caught by it of one of their most precious rights, theirright of community. There is no limit to its retroactiveeffect upon a personwho may have lived here as a lawful entrant for, perhaps, 20 or more years. Themaking of a deportation orderis the plainest infringement of liberty; themaking of it under a retroactive law underlines the common law’s concern. Bothretrospectivity and curtailment of liberty, when found in any statute, arestrong pointers towards a construction strictly confiningits operation.

109The judgment was cited by Sackville J inGunner vMinister for Immigration and Multicultural Affairs (1997) 50 ALD 507. InRani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR379 his Honour said (omitting case references) (at 401):

I have referred elsewhere to the need to exercise "scrupulous care" inconstruing legislation which curtails liberties, includinglaws which deprivepeople of their "right of community". ... It is, of course, true that the taskis ultimately to ascertain theintention of Parliament. Thus, if the statutorylanguage is unmistakable and unambiguous, the Court (subject to anyconstitutionalissues) must give effect to the language, even if the consequenceis that the legislation detracts from basic rights and immunities...In thiscase, however, as I have explained,s 140(1) is ambiguous. It should be given aconstruction which minimises rather than expands the likelihood that innocentpermanent residentswill have their entitlement to remain in this country takenaway without any opportunity to have their case considered on its merits.

110Dr Haneef was not, of course, "a permanent resident" (as inRani80 FCR 379) but his visa gave him valuable rights. Theyincluded the right, for the term of his visa, to live here, to be at libertyhere, tobe with his wife here, and to work here.

111The interpretive principle stated inSciascia31 FCR 364 andin Rani 80 FCR 379 finds strong expression in the "principle of legality"enunciated by courts in the United Kingdom. Lord Hoffmann put itthus inR vSecretary of State for the Home Department; Ex parte Simms[1999] UKHL 33; [2000] 2 AC 115(at 131):

...the principle of legality means that Parliament must squarely confront whatit is doing and accept the political cost. Fundamentalrights cannot beoverridden by general or ambiguous words. This is because there is too great arisk that the full implicationsof their unqualified meaning may have passedunnoticed in the democratic process. In the absence of express language ornecessaryimplication to the contrary, the courts therefore presume that eventhe most general words were intended to be subject to the basicrights of theindividual.

112These words were anticipated by those of the joint judgmentinCoco[1994] HCA 15; 179 CLR 427 (at 437):

The insistence on express authorization of an abrogation or curtailment of afundamental right, freedom or immunity must be understoodas a requirement forsome manifestation or indication that the legislature has not only directed itsattention to the question ofthe abrogation or curtailment of such basic rights,freedoms or immunities but has also determined upon abrogation or curtailmentofthem. The courts should not impute to the legislature an intention to interferewith fundamental rights. Such an intention mustbe clearly manifested byunmistakable and unambiguous language. General words will rarely be sufficientfor that purpose if theydo not specifically deal with the question because, inthe context in which they appear, they will often be ambiguous on the aspectofinterference with fundamental rights.

113Freedom is not merely what is left over when thelaw is exhausted. As TRS Allan put it in 1996:

Liberty is not merely what remains when the meaning of statutes and the scope ofexecutive powers have been settled authoritativelyby the courts. Thetraditional civil and political liberties, like liberty of the person andfreedom of speech, have independentand intrinsic weight: their importancejustifies an interpretation of both common law and statute which serves toprotect them fromunwise and ill-considered interference or restriction. Thecommon law, then, has its own set of constitutional rights, even if thesearenot formally entrenched against legislative repeal.

Allan TRS, The Common Law of theConstitution: Fundamental Rights and FirstPrinciples in Saunders (ed)Courts of Final Jurisdiction – The MasonCourt in Australia(1996, Federation Press) at 148.

It is in this respect, amongst others, that the common law has aconstitutional role to play.

The nature of "association" – constructionof s 501(6)(b)

114The construction of "association" in s 501(6)(b) of the Act is to beapproached in light of the common law principles reflectedin the authoritiescited. Those principles, in this context, tend against a construction of s 501authorising the Minister to "reasonablysuspect that [a person] does not passthe character test" merely on the basis of an innocent association with personswhom the Ministerreasonably suspects have been or are involved in criminalconduct.

115The relevant ordinary meaning of the word "association" taken from theShorter Oxford English Dictionary (5^th ed, Oxford University Press,2002) is:

1. The action of joining or uniting for a common purpose; the state of being sojoined.

...

4. Fellowship, companionship; social intercourse (esp in prison).

5. The conjoining or uniting of things or persons with another or others; thestate of being so conjoined, conjunction.

116The Solicitor-General submitted that "association" in s501(6)(b) refers to "... an association by way of friendship ...". Heused theword "mate" to describe the nature of the connection contemplated by theparagraph. Importantly, he eschewed any suggestionthat an association could bediscerned in such connection as exists between the occasional providers of goodsor services and theirrecipients such as the relationship between shopkeeper andcustomer, doctor and patient or lawyer and client. A mere family relationshipwas not enough absent "the relevant degree of friendship". In doing so hecorrectly accepted that there were sensible and practicallimits to the intendedscope of "association" in its relevant context.

117It should be noted that the Solicitor-General’s "mateship"submission to this Court differed significantly from the submissionthat headvanced before Spender J. Before his Honour the Solicitor-Generalsubmitted that the Minister had based his decisionuponChan34 AAR 94,and that that judgment was correct (see primary judgment at [154]).

118In his written submissions on this appeal the Solicitor-General arguedthat Spender J had misunderstoodChan34 AAR 94, and that, forexample, Emmett J had never intended to include mere familial relationshipswithin the concept of "association". However, the Solicitor-General made nomention in those submissions, in terms, of "mateship" as being at the core ofthe notionof "an association with". Instead, he argued for an intermediateposition, submitting that the term connotes a relationship arisingfrom the actof associating with one another. And, that that in turn involved "thedeliberate or intentional act of joining witheach other in a loose relationshipas friends, companions, colleagues, partners, allies or confederates". He addedthat it "requiressome degree of continuity" and "mutual consent".

119The "mateship" submission cannot be accepted. It lacks precision andwould be difficult, if not impossible, to apply in practice.Moreover, itimposes a constraint upon the range of connections contemplated by s 501(6)(b)which is not supported by its languageor purpose. Whether or not theassociation contemplated by s 501(6)(b) must reflect upon a person’sactual character, whichis the debate before this Court, friendship is noprerequisite for its existence. Accomplices, collaborators or fellow travellersin crime or terrorism need not be friends. It would suffice that they have acommon purpose.

120Both the "mateship" submission, and the intermediate position taken inthe written submissions, are difficult to reconcile withthe text of the Act. Section 501C(4) allows the Minister to revoke an original decision torefuse to grant a visa, or to cancela visa, if two conditions are met. Thefirst is that the person makes representations in accordance with an invitationextendedunder s 501C(3). The second is that the person satisfies theMinister that he or she "passes the character test", as definedby s 501.

121It is one thing for the 1999 amendments to have brought about a reversalof the onus, as they plainly did, but it is quite anotherto contemplate asituation in which the Minister is given the power to revoke a decision, butwhich in practice cannot ever be enlivened. If the Solicitor-General’ssubmission as to the meaning of association is accepted, it would be impossiblefor a person whocan prove that they are of good character, and that their"association" was entirely innocent, to establish that they pass the charactertest. Yet the whole purpose of s 501C(4) seems to be to allow them to doso. See generallyAkpata v Minister for Immigration & Multicultural& Indigenous Affairs[2004] FCAFC 65.

122The Solicitor-General submitted that the object of the 1999 amendmentswas to make it easier for the Minister to exclude fromAustralia persons whomight be thought to pose a risk. He submitted that if some entirely innocentpeople were caught up in theprocess that was regrettable, but it was simply theprice that had to be paid to ensure the safety of the Australian community.

123Much of what the Solicitor-General said regarding the object of "riskmanagement" may be accepted. Nonetheless, it is significantthat the Parliamentdid not simply entrust the Minister with an unfettered power to refuse or cancelvisas, as it might have done. Rather, it established a scheme whereby a personwho had been judged to fail the character test could be given the opportunity tohave the decision revoked. The expression "passes the character test" ins 501C(4) must be given meaningful content.

124The Solicitor-General submitted that the 1999 amendments reversed theeffect of the decision inMorales 82 FCR 374 so that the Minister wasrequired to make no judgment as to a person’s character when determiningwhether that personhad failed to pass the character test. It is clear that thepower of the Minister to cancel a visa pursuant to ss 501(2) or 501(3)is nolonger conditioned on the requirement that the Minister be satisfied that thevisa holder is not of good character, as wasrequired under the former s 501(2).The threshold state of mind required of the Minister is that he or shereasonably suspect thatthe visa holder does not pass the character test. Reading that requirement with the association limb of the test the discretiontocancel is enlivened if the Minister reasonably suspects that the visa holderhas, or has had, an association with someone elseor with a group ororganisation whom the Minister reasonably suspects has been or is involved incriminal conduct.

125Independently of the proper construction of "association" the sectionachieves the objectives set out in the Second Reading Speech. Relevantly to thecharacter test the objective was to put the "onus ... on visa applicants andvisa holders to satisfy decisionmakers that they can pass the test". This hadnothing to do with the meaning to be given to "association". It was neversuggestedthat the character test was a "deeming provision" in relation toany kind of association with persons suspected of involvement in criminalconduct. The deeming provisions, as they were called in theSecond ReadingSpeech, were those parts of s 501(6) whereby a person would fail the charactertest if that person had been sentencedto a term or terms of imprisonment inexcess of a specified minimum period. It is significant that, in a passagequoted earlierfrom his Second Reading Speech, the Minister said of thatcriterion (at 1231):

This will truncate the character assessment process and cover most non-citizensof character concern who come to notice.

The association criterion did not fall into that category andthe Parliament was told, through the Senate Legal and ConstitutionalLegislationCommittee, that the Bill did "not change the fact that a person may be judged tobe of bad character on being a memberof an organisation or an associate of anorganisation". Nor did it necessarily extend to links with family members andother groupsthat were lawful.

126These representations to the Parliament left open the view that theassociation test was based upon associations reflecting adverselyupon thecharacter of the visa holder as one who sympathised with, or was supportive of,or was involved in, the suspected criminalconduct. That is not the same assaying that the test had to be applied in such a way as to lead to theconclusion that the personwas not of good character in the sense used under thelaw as it stood prior to the amendments in 1999.

127We reject the Minister’s submission that the word "character" inthe legislative expression "character test" is devoidof significance. The useof the term "character test" itself suggests a legislative purpose directed tothe exclusion or removalfrom Australia of people whose character, a referenceto their enduring moral qualities, is at least questionable. Moreover, theMinister’s Second Reading Speech (as noted at [95] above) suggests thatthe fundamental aim was to deal with persons not ofgood character, alsopointing to the need for some connection between an association and badcharacter, even if the connection werespeculative. Most of the elements of thetest set out in s 501(6) are plainly consistent with that purpose. There aresome elementsthat catch persons who might reasonably be regarded as a danger tothe community but who would not be regarded as morally blameworthy. A clearexample is a person acquitted of an offence on the grounds of unsoundness ofmind who has thereafter been detained in afacility or institution.

128Some aspects of the test apply adversely to persons of good characterwho pose no danger to Australia. An example might be aperson sentenced todeath or imprisonment in another country for public criticism of a harsh orrepressive government. No doubt,as Emmett J pointed out inChan 34 AAR94, such anomalies can be corrected by use of the ministerial discretion todecline to cancel a visa notwithstanding thata person has failed the charactertest in that way. These are cases in which the overreach of some aspects of thecharacter testcannot be avoided by construing its words narrowly. But that isnot to say that the Court should construe words widely to allowthem to apply topersons of good character when a narrower construction which would exclude suchpersons is open.

129It might be said that the examples of legislative overreach that cannotbe construed away reflect a precautionary approach whichhas been accepted bythe legislature and requires a wide construction of all elements of the test. On that view Parliament may betaken to have accepted as collateral damage therisk that the legislation would expose a wide range of innocent people to theriskof cancellation of their visas, detention in immigration facilities andremoval from Australia. Although it accommodates anomalieswhich may impactadversely upon innocent people, the language of s 501(6) does not mandate such auniversally wide reading of itsterms. The common law principles ofinterpretation referred to earlier still apply where the language allows. Thelanguage of theassociation test does allow its limitation.

130Having regard to its ordinary meaning, the context in which it appearsand the legislative purpose, we conclude that the associationto which s501(6)(b) refers is an association involving some sympathy with, or support for,or involvement in, the criminal conductof the person, group or organisation. The association must be such as to havesome bearing upon theperson’s character. It is, of course, not necessary, to enliven theMinister’s discretion to cancelthe visa, that the Minister be satisfiedthat such an association actually exists. It is enough for the purposes of s501(6) thatthe Minister reasonably suspects that the visa holder hassuchan association with someone else or a group or organisation which theMinister reasonably suspects has been or is involved in criminalconduct.

131In the Minister’s Statement of Reasons (at [2]), under the heading"CHARACTER TEST", he indicated the following mattersas supportive of hisreasonable suspicion of the relevant association:

(i)Dr Sabeel Ahmed and Dr Kafeel Ahmed are suspected of involvement in theLondon incident and the Glasgow bombings.

(ii)Dr Haneef has advised the AFP that he is the second cousin of the Ahmeds.

(iii)Since leaving the United Kingdom Dr Haneef and Dr Sabeel Ahmed have beenin correspondence via on-line chat rooms. The mostrecent correspondence, on 26June 2007, concerned the birth of Dr Haneef’s daughter.

132None of these elements, individually or together, iscapable of supporting a reasonable suspicion that Dr Haneef knew of, wassympathetic to, supported, or was involved in any way in criminal conductundertaken by the Ahmeds. The Minister said nothing inhis Statement of Reasonsto indicate that he had turned his mind to those questions.

133It is not clear, having regard to the way in which the Statement ofReasons was framed, whether the Minister relied upon thefact that Dr Haneef hadbeen charged on 14 July 2007 as supporting a reasonable suspicion of associationwith the Ahmeds. It isnot possible to glean from the Statement of Reasonswhether the Minister relied upon the fact of the charge alone, or at all, oronevidence upon which the laying of the charge was based. No reference to thatevidence appeared in the part of the Statement ofReasons that dealt with thetest for association.

134A more expansive view of the Minister’s reasons for his decisionmay be taken by reference to the Issues Paper. Elementsof Dr Haneef’srelationship with the Ahmeds emerged from his taped record of interview withpolice, the contents of which werereferred to in an Annex attached to theIssues Paper. These elements were:

1.Dr Haneef resided with one of his cousins at a boarding house in the UnitedKingdom when he lived there.

2.He visited another of his cousins at Cambridge University in June/July 2004and in November 2004.

3.One of his cousins lent him [sterling]300 in October 2005 so he could sit amedical exam.

4.When he left the United Kingdom he left behind his mobile telephone SIM cardwhich one of his cousins wanted in order to accessthe "extra minute deal"offered by the UK service provider, O2, at that time.

5.He and that cousin have continued to correspond in on-line chat rooms, thelast time they chatted was March/April 2007.

None of thesematters supports an inference of sympathy for, support of, or involvement in,criminal conduct on the part of the Ahmeds.

135Importantly, whether or not there were materials upon which reasonablesuspicion of association properly construed could be found,it is clear that theMinister did not apply the proper test. The Issues Paper directed the Ministerto Ministerial Direction 21. Paragraph 1.5 of that direction, which is set outearlier in these reasons, proposed a wide view of "association" as encompassing:

... a very wide range of relationships including having an "alliance" or a"link" or "connection" with a person, a group or an organisedbody that isinvolved in criminal activities.

This test, especially in encompassing "links" or connections"without any need to show sympathy, support for, or involvement in, criminalactivity runs far too wide. It is a misconstruction of the statutory criterion.Having regard to its place in the Issues Paper andthe way in which the Ministerappears to have approached his decision, the proper inference is that he appliedthe wide and thereforeincorrect test. In so doing, on the basis of theprinciples enunciated by this Court inLobo[2003] FCAFC 168; 132 FCR 93, he fell intojurisdictional error. This was essentially the conclusion reached by Spender J.

Conclusion

136The Solicitor-General submitted that even if the Court rejected hisprimary argument regarding the construction of "association",the appeal shouldbe allowed.

137He submitted that Spender J had failed to consider whether to grantthe relief sought, in the exercise of his discretion,even assuming that theMinister had wrongly interpreted the expression "an association with" ins 501(6)(b). He further submittedthat on the material before theMinister, and also on the material before the Court, it would have been open tothe Minister to cancelDr Haneef’s visa in any event. Spender J hadaccepted that submission, but had not gone on to consider whether, in thosecircumstances, the relief sought should have been granted.

138The Solicitor-General argued that the legality of the decision to cancela visa depends upon the circumstances as they existto the knowledge of thedecision-maker at the time the decision is made. He said that it is nothing tothe point that circumstancesmay change at a later time. Spender J hadhowever noted that the fact that the AFP, and the Director of PublicProsecutions,had charged Dr Haneef with a serious offence was of itselfrelevant to the nature of the association between Dr Haneefand the Ahmedbrothers. That fact, together with the contact which Dr Haneef had hadwith his cousins would have entitled theMinister to conclude that hisassociation with them was of a kind which fell within s 501(6)(b).

139According to the Solicitor-General, despite these observations,Spender J did not apply them to the exercise of his discretionregardingthe relief sought by Dr Haneef. The question of discretion had beensquarely raised, on behalf of the Minister, butnot considered by his Honour atall. In oral submissions the Solicitor-General argued that Spender Jshould have concludedthat it would be futile to remit this matter because itwould be virtually certain that Dr Haneef’s visa would be cancelledin any event. We are unable to accept these submissions. It is true thatSpender J did not refer, in terms, to the discretionaryaspects of therelief sought. However, having found that the Minister applied the wrong test,and that this was very much to Dr Haneef’sdisadvantage, it isdifficult to see how, or why, relief should have been refused in the exercise ofdiscretion. It is certainlyfar from clear that it would have been futile toremit the matter for reconsideration. Apart from anything else, when theMinisternext considers whether to revoke Dr Haneef’s visa thecircumstances will have changed. For example, he will be awareof the fact thatthe charge against Dr Haneef has been withdrawn. The Minister may regardthat fact as highly significant.

140Dr Haneef raised, by way of notice of contention, the issue of thealleged improper purpose of the Minister. He claimed thatSpender J should nothave rejected his challenge to the Minister’s decision on that ground andhe sought to support his caseon appeal by giving notice of a motion for anorder to adduce further evidence. We stood over that application to await theoutcomeof our consideration of the principal issues on the appeal. Thecircumstances that give rise to the alleged improper purpose in cancellingthevisa, ie the detention of Dr Haneef in Australia, no longer exist since he hasreturned to India. The matter is to be remittedto the Minister in accordancewith the orders made by the trial judge. There is no practical purpose to beserved in dealing withthis ground. The applications by notices of motionassociated with that ground should be dismissed, but without costs.

141It follows that the orders made by Spender J should not be disturbed.The appeal should be dismissed with costs.

Associate:



Dated:21 December 2007