The reasons for judgment of the primary judge
63 The learned primary judge commenced his reasons for judgment with a discussion of the jurisdiction of this Court in relation to judicial review of decisions under the Act. He referred to the application of the privative clause, s 474 of the Act, and the requirement to demonstrate jurisdictional error to secure the issue of a constitutional writ or its statutory equivalent. He posed the question that 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 persons who are criminals does not bear adversely on their character, as well as to those whose "association" with such persons does bear adversely on their character?
64 The Minister had submitted that the "association" limb of the character test set out in s 501(6)(b) required no element of personal fault. Counsel for Dr Haneef on the other hand had argued that, on its proper construction, s 501(6)(b) required a connection between the visa holder and those suspected of criminal conduct that involved personal fault or reflected adversely on the character of the visa holder. Mere connection was not sufficient.
65 The evidence did not include any part of the protected information before the Minister. His Honour said (at [80]):
This case has to be decided on the evidence properly before the Court, which includes, of course, that there was protected information before the Minister that was not before the Court.
The judge set out the factual background already outlined in these reasons. He noted that neither the minute to the Minister nor the Statement of Reasons referred to the date of the charge against Dr Haneef, nor identified the resources allegedly provided as the SIM card (at [114]). It appears from the context that his Honour intended to refer to the date of the alleged offence set out in the charge, which was 25 July 2006.
66 His Honour found, from facsimile markings on the Statement of Reasons delivered to Dr Haneef on 16 July 2007, that they had been signed by the Minister before 1.22 pm that day. He found that following the cancellation decision and before its communication to Dr Haneef, the Minister held a press 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 the AFP will issue a criminal justice certificate, the effect of which is that Dr Haneef will remain in immigration detention whilst the legal proceedings are on foot.
Dr Haneef will be detained by immigration authorities and relocated to the Villawood Immigration Detention Centre as soon as arrangements can be made. In the meantime, he'll be held in immigration detention in Brisbane.
67 Mr Cosgrove, a solicitor with the Australian Government Solicitor, having carriage of the matter on behalf of the Minister, said that the criminal justice certificate, executed pursuant to s 147 of the Act, had been provided to the Minister by persons from the Attorney-General's Department by email received at 11.09 am on 17 July 2007.
68 His Honour described as the central question in the case whether the Minister had misconstrued the terms of s 501(6)(b). He cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 as being directly relevant. Its relevance lay in its support for the proposition that misconstruction of a criterion for the exercise of a ministerial power under the Act (in that case the grant of a visa) can amount to jurisdictional error.
69 The issue between the Minister and Dr Haneef on the construction of s 501(6)(b) was whether or not the "association" to which it refers encompasses an "innocent association" or whether there must be some connection between the visa holder and the criminal conduct of those with whom he is said to be associated. As previously indicated, the Minister's contention was that "any association" would suffice. In support of that contention he relied upon the ex tempore judgment of Emmett J in Minister for Immigration and Multicultural Affairs v Chan (2001) 34 AAR 94. That case concerned cancellation of a Class UC (Temporary Business Entry) Subclass 457 visa on the basis that the Minister was not satisfied that the visa holder passed the character test pursuant to s 501(6) of the Act. The matter had gone to the Administrative Appeals Tribunal (the Tribunal) where Purvis DP held that "association" in s 501(6) encompassed persons associated, connected or combined with a common purpose or having a community of ideas where one of the associates was reasonably suspected of having been, or being, involved in criminal conduct. In his view the "reasonably believed association, connection, combination, community of ideas of the one" must have a nexus with the reasonably believed involvement of the other, in criminal conduct. The case concerned a woman who had been found to have had a relevant association with her ex-husband who could reasonably be suspected of having been involved in criminal conduct. There was, however, no suggestion of any guilty connection on the part of the woman.
70 On appeal by the Minister from the decision of the Tribunal, the woman did not appear. In the ex tempore judgment Emmett J said (at [7]):
The Tribunal considered that it was necessary that there be some nexus between the visa holder and the criminal conduct of the person with whom the visa holder was 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 limit the association in that way. Rather, the scheme of the provision is to confer upon the Minister a discretion under s 501(2) to cancel a visa if certain prerequisites are satisfied. The first prerequisite is that the Minister reasonably suspects that the person does not pass the character test and the second is that the person does not satisfy the Minister that the person passes the character test.
His Honour said (at [9]) that it might be relevant that the visa holder had no knowledge of the criminal conduct of the other person or did not knowingly take a benefit from the proceeds of such conduct. Such matters fell for consideration upon the exercise of the discretion if it were to arise. They were not matters to be taken into account in determining whether or not the discretion arose.
71 Emmett J referred (at [10]) to the amendment to s 501 which took effect on 1 June 1999. He accepted that, under the section in its earlier form, the Minister was required to make a judgment as to whether or not the visa holder was not of good character because of the association with the person involved in criminal conduct.
72 Spender J observed that Emmett J did not express an opinion about the meaning of "association" in s 501(6)(b) even though it might be inferred that he had 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 itself sufficient to ground the necessary "association". That view suggests that any association, whether innocent or sinister, whether fleeting or regular, whether in the distant past or contemporary, is sufficient to enliven the discretion to cancel.
73 He went on (at [176]):
In my opinion, that is the test which the Minister applied, that is the test which the Solicitor-General on behalf of the Minister says the Minister applied, and further, that is the test which the Solicitor-General on behalf of the Minister contends is the correct test.
74 His Honour thought that Chan 34 AAR 94 was wrongly decided. He considered that the meaning given to "association" by Purvis DP in the Tribunal in Re Chan and Minister for Immigration and Multicultural Affairs (2001) 33 AAR 191 and by Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 was correct. In the latter case, Lee J said (at [47]):
It is unnecessary to consider the meaning of the word "association" but for a visa applicant not to pass the character test it may be taken to require the minister to make relevant findings of fact as to the knowledge, or awareness, by the visa applicant of the facts 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 the appeal but did not refer to or deal with the passage quoted.
75 Spender J referred to the other criteria, in s 501(6), by which a person may fail the character test. Each of the other criteria required the decision-maker to look at the visa holder and make an assessment of qualities personal to the visa holder which qualities Parliament has said determine that that person fails the character test. His Honour said (at [187]):
In that context, it would be striking if the criterion in (b), which this case is concerned, could be met by an or any association with a person, group or organisation reasonably suspected of having been or is involved in criminal conduct. Such an association could be completely innocent, and involve not the slightest reflection on that person's character. The association could be of the most transient kind, could be not only innocent but historically ancient.
76 His Honour held, having regard to the context, that it seemed impossible to conclude that Parliament would have intended that a person fail the character test where the relationship of the visa holder with a person, group or organisation was utterly remote from the criminality of that person, group or organisation. He attached significance to the use of the words "the character test". They were not "just a convenient definition" but were words to be read as having a meaning (at [205]).
77 His Honour referred to the amendments effected by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill l997 and the Report of the Senate Legal and Constitutional Legislation Committee in respect of that Bill. He noted that the Minister's department was cited by the Senate Committee as having reiterated that (at [217]):
… a criminal association was already part of the Act, and that the proposed provision did not necessarily extend to links with family members and other groups that were lawful:…
78 His Honour said that the changes introduced in 1999 did not make the relationship between the suspected association and the visa holder's character irrelevant. What the legislative amendments did was to reverse the onus. The Minister's contention that the amendments were intended to go further, and broaden the character test to include even the most innocent association, was not supported by the Second Reading Speech. His Honour said (at [256] - [259]):
In my opinion, Chan was wrongly decided, and the test which the Minister applied was not the test called for by s 501(6)(b).
As the result of this misconception as to what the exercise of the statutory power entailed, there was a purported, but not a real exercise of the power conferred 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 quashing the respondent's decision made on 16 July 2007 to cancel the applicant's Subclass 457 Business (Long Stay) (Class UC) visa, and also an order in the nature of prohibition and/or injunction restraining the respondent from acting upon the cancellation of the applicant's visa.
79 His Honour found that there was material before the Minister and also before the Court upon which it would have been open to the Minister to cancel Dr Haneef's visa had the correct test been applied. In addition to the circumstances of connection to the Ahmed brothers relied upon by the Minister to find the relevant association, there were two other factors in particular which would take the case into one where it was open to the Minister to have a reasonable suspicion that the requisite association existed. These were:
1. The information contained in Annex 2 of the material before the Minister, namely that the Metropolitan Police Service Counter Terrorism Command had advised the AFP that Dr Haneef was a person of interest to their investigation through his association with two of the United Kingdom suspects. The fact that he was a person of interest to those investigating the terrorist events bore upon the nature of the association between him and the two United Kingdom terrorists; and
2. That on 14 July 2007 Dr Haneef had been charged with intentionally providing resources to a terrorist organisation. The fact that the AFP and/or the Director of Public Prosecutions had laid the charge was, in his Honour's opinion, a factor relevant to the nature of the association between Dr Haneef and the Ahmed brothers.
80 His Honour also dealt with other grounds raised by Dr Haneef, none of which was made out. Among those grounds was an allegation that the Minister made his decision for an improper purpose in that, contrary to the statutory scheme, he did not intend to remove Dr Haneef from Australia "as soon as reasonably practicable". His Honour was not prepared to find the alleged improper purpose on the materials before him.