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Australia court rules Haneef work visa improperly revoked

[JURIST] The Federal Court of Australia ruled [text] Tuesday that Australian Immigration and Citizenship Minister Kevin Andrews improperly revoked the work visa of Mohammad Haneef [JURIST news archive], who was detained by Australian authorities last month in connection with the attempted UK car bomb terror attacks [JURIST report]. Andrews revoked Haneef's work visa and placed him under "immigration detention" shortly after he was granted bail by a magistrate, and later said that he revoked the visa on "character test" grounds under the Migration Act [text] due to Haneef's "associations with people who have been involved in criminal conduct." Haneef had been accused of leaving a subscriber identity module [Wikipedia backgrounder] with his second cousin, one of the alleged bombers, when Haneef left the UK over a year ago and of borrowing money from one of the terrorist suspects.

The Federal Court overturned Andrew's decision, and according to the court's explanatory statement:

The central question in these proceedings concerns the construction of the provision that "a person does not pass the character test if: ... the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct."

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

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

I reject the submission by the Solicitor-General for the Minister that the "character test", which a person does not pass if the person has or has had an association with a person or group or organisation that the Minister reasonably suspects has been or is involved in criminal conduct, does not involve any question about the character of the person. In my opinion s 501(6)(b) is a composite phrase and has to be construed as such. In my opinion it has the connotation that there is an alliance or link or combination between the visa holder with the persons engaged in criminal activity. That alliance, link, or combination reflects adversely on the character of the visa holder. Such a meaning would exclude professional relationships, or those which are merely social or familial. It would exclude the victim of domestic violence.

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

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

This is because, in addition to the matters which the Solicitor-General identified as supporting the Minister's view of the "association" of Dr Haneef with the Ahmed brothers, there was before the Minister:
    (a) advice from the Metropolitan Police Services Counter Terrorism Command that Dr Haneef was a person of interest to their investigation through his association with two of the United Kingdom suspects believed to have been involved in the London incident and the Glasgow bombings; and

    (b) On 14 July 2007, Dr Haneef was formally charged with intentionally providing resources to a terrorist organization consisting of persons including Sabeel Ahmed and Kafeel Ahmed, and being reckless as to whether the organization was a terrorist organization, contrary to s 102.7 of the Criminal Code.
These matters would have permitted the Minister to conclude that the association between Dr Haneef and the Ahmed brothers went beyond a purely familial, social, "innocent" relationship. On that material, it would have been open to the Minister, applying the proper construction of s 501(6)(b), to cancel Dr Haneef's visa.
The Australian government has indicated that it plans to appeal the decision.

Haneef, who has not been implicated by UK authorities in the attacks, was detained as a terror suspect for 25 days for allegedly providing reckless material support to the suspected terrorists. The terror charge against him was dropped [JURIST reports] after the Australian director of public prosecutions reviewed the case and concluded that there was insufficient evidence [press release]. Haneef has been allowed to leave the country, but earlier this month the Australian Federal Police said that he is still considered a suspect [JURIST report]. He has said that he wants to return to work as a doctor at the Gold Coast Hospital in Queensland, Australia. BBC News has more.

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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