On the 21st December, 2007 the Full Bench of the Federal Court of Australia unanimously rejected the former immigration minister's interpretation of the character test in the Migration Act 1958 (Cth) relied on in the cancellation of the visa of former terrorism suspect Dr Mohamed Haneef.
The Federal Court decision in Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 set a new standard for the character test effectively narrowing the test and rejecting the Minister's interpretation of the test which the Court found included links that could not conceivably have had any bearing on Dr Haneef's character.
The Facts
Mr Haneef was working in Australia as a doctor under a 457 (temporary long stay) visa when he was arrested at Brisbane Airport on the 2nd July, 2007.
He was charged with providing "reckless support" in the form of a SIM card to a terrorist organisation. The terrorist organisation included two of his cousins Dr Sabeel Ahmed and Dr Kafeel Ahmed who were allegedly involved in the failed car bomb attacks in Glasgow and London.
The former immigration minister immediately cancelled the visa of Dr Haneef. However, the police charges against Mr Haneef were dropped on the 27th July, 2007 and he returned to India two days later.
On the 21st August, 2007 Justice Jeffrey Spender held that the former immigration minister had misinterpreted the character test in the Migration Act when cancelling Mr Haneef's visa. The decision to reinstate Dr Haneef's visa was appealed by the former coalition government and this appeal was dismissed by the Full Federal Court on the 21st December, 2007.
The character test under the Migration Act
The former immigration minister cancelled the work visa of Dr Haneef on the grounds that Dr Haneef had failed the character test because two of his second cousins were allegedly involved in the failed car bomb attacks in Glasgow and London.
Dr Haneef's visa was cancelled under section 501(3) of the Migration Act on the basis that the Minister reasonably suspected that Dr Haneef did not pass the character test and the Minister was satisfied that it was in the national interest to cancel the visa.
The Migration Act specifies various circumstances under which a person does not pass the character test. These circumstances include that a person has or has had "an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct."
The reason for the Minister's suspicion that Dr Haneef did not pass the character test relied on his "association" with the Ahmeds and in coming to this view he applied a wide interpretation of the word "association" which did not require any suspicion that Dr Haneef was sympathetic to, or supportive of, or in any way involved in the criminal conduct of which the Ahmeds were suspected.
The Federal Court decision
The Federal Court confirmed the decision of Justice Spender that the Minster had misinterpreted the character test and applied a test that was too wide and could encompass links that could not have conceivably had any bearing on the visa holder's character.
The Federal Court applied the principles of common law concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected. In so applying the court found that a narrower interpretation of "association" than that applied by the Minister should be taken to reflect the intention of the Parliament when it enacted the character test.
The Federal Court concluded that the "association" to which the Act refers is one involving some sympathy with, or support for, or involvement in, the criminal condict of the person, group or organisation with whom the visa holder is said to have associated. The Federal Court clearly stated that the "association" must have some bearing upon the person's character.
The current immigration minister has not indicated whether the gorvernment will challenge the interpretation of the character test in the High Court of Australia.