1.3.3 Could the applicant be a "member of a group" even if he was not suspected of having any sympathy with, or support for, or involvement in, the group's suspected criminal conduct?
133 The applicant contends that Parliament should be taken to have intended either or both of the following.
(1) The term "member" in s 501(6)(b)(i) should be taken to bear an analogous meaning to "association" as construed by the Full Court in Minister for Immigration Citizenship v Haneef [2007] FCAFC 203;(2007) 163 FCR 414 (Haneef), that is, a person is not a "member" of a group which is involved in criminal conduct unless the person has some sympathy with, or support for, or involvement in, the criminal conduct.
(2) Alternatively, the reference in s 501(6)(b) to a "group" involved in criminal conduct should be taken to refer only to the group of persons in fact so involved. On this construction, the section would not pick up "members" of that entity who are not themselves involved in that conduct. Rather, the word "group" would bear its ordinary meaning, being "[a] number of people that work together or share certain beliefs" (referring to the Oxford English Dictionary meaning 1.1 of "group").
134 In my view, neither construction of s 501(6)(b) should be accepted.
135 First, as the applicant accepted, the decision in Haneef concerned the construction of s 501(6)(b) before its repeal and substitution in 2014. At that time, s 501(6)(b) provided that a person did not meet 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". In Haneef, the Full Court held that "the association to which s 501(6)(b) refers is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person's character" (at 447 [130]) (emphasis in the original).
136 Section 501(6)(b) in its present terms was inserted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) which came into effect in December 2014 (the 2014 Amendment Act). It remains the case following this amendment that a person does not meet the character test under s 501(6)(b) if the Minister reasonably suspects that the person has had or has an association with a group or organisation suspected of involvement in criminal conduct (the association limb). However, it also now suffices if the person "has been or is a member" of such a group or organisation (the membership limb). In so amending the provision, it is plain in my view that the Parliament intended to create an alternative and additional ground on which the Minister might find that a person does not pass the character test: see also Mrishaj v Minister for Immigration and Border Protection [2016] FCA 456 (Mrishaj) at [36] (Besanko J). This is apparent from the use of the word "or" in s 501(6)(b)(i) between the association and membership limbs of the provision. As such, membership of a group is, as the Minister submits, "a distinct basis, separate and different from and alternative to association with a group, on which a person might not pass the character test." So much is apparent from the language of the provision which is, in turn, "the surest guide to legislative intention": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
137 Secondly, in line with the approach in Alcan, the starting point for the Full Court in Haneef was that the word "association" is a word of wide import which of its nature posed a constructional choice between two or more meanings. As the Full Court explained at 442 [106] after referring to cases of ambiguity:
Alternatively, words may be used which have an ambulatory significance capable of a wide range of applications. Construction involves determining the limits of that range. Terms such as "in relation to", or "in connection with" raise that kind of problem which, strictly speaking is not a problem of ambiguity at all. The word "association" falls into this category. It may be read widely enough to pick up many completely innocent connections between people. On the other hand, it may be read narrowly to require some sort of positive involvement in criminal conduct with others.
138 Accordingly in reaching the view that the word "association" was used in the narrow sense adverted to, the Court had regard to the principle that Acts should be construed where constructional choices are open so as not to encroach upon common law rights and freedoms (at 442-443 [107]), together with the context in which the term was used and the legislative history of the provision.
139 By contrast, in my view the word "member" is not a word of wide import and does not pose an equivalent constructional choice. In its ordinary meaning, "member" connotes a person who belongs to, or comprises part of, the group: see e.g. Macquarie Dictionary (online edition), meaning 1, and Oxford Online English Dictionary, meaning III, 9. This is not to deny that the question of whether a person is in fact a member of a group will depend on the particular facts of the case and that what might be sufficient to constitute membership of a particular group in one case may be insufficient in another depending, for example, on the membership rules of the group or organisation.
140 Thirdly, as the Minister submitted, the Court must construe s 501(6)(b) in a way that will give meaningful work to each word to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71] (McHugh, Gummow, Kirby and Hayne JJ). If construed in the way the applicant contends, membership would be merely a subcategory of an association in the narrow sense in which that word is used in s 501(6)(b). In other words, a member of the group or organisation who was suspected of involvement in the criminal activities would plainly have an association with the group or organisation in the sense construed in Haneef. It follows that, if the membership limb of s 501(6)(b) is to have any operation beyond that already achieved by the association limb, the word "member" cannot be confined in the same manner as the word "association" in that provision. The applicant's construction would therefore render the 2014 amendment otiose.
141 In the fourth place, the proposition that the word "group" in s 501(6)(b) should be confined to the group of persons in fact involved in criminal conduct engaged in by the group does not fit with the words of the provision and would equally render redundant or otiose the 2014 amendment. On an ordinary reading of s 501(6)(b), it is sufficient if a group, such as a bikie gang or club, has been or is involved in criminal conduct and the person is a member of that group. The group is not defined as a subgroup of a group of those suspected of being involved or complicit in the criminal conduct. As a matter of substance, the applicant's construction of "group" would effectively add a third criterion to s 501(6)(b), namely, that the Minister reasonably suspects that the person has been or is involved or complicit in the suspected criminal conduct engaged in by the group: see Taylor at 548 [38] (French CJ, Crennan and Bell JJ).
142 Properly construed, therefore, I consider that the membership limb of s 501(6)(b) operates in effect as a "deeming provision" whereby a person suspected of being a member of a group or organisation which is suspected of being involved in criminal conduct will fail the character test in the same way that, for example, a person would "automatically" fail the character test if sentenced to a term of imprisonment in excess of a specified minimum period: Haneef at 446 [125] (referring to the language used in the Second Reading Speech to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (Australia, House of Representatives, Debates (1998) Vol HR 223 at 1231). In this respect, the membership limb of s 501(6)(b) stands in stark contrast to the association limb of that provision as construed in Haneef.
143 The applicant contends that this construction would mean that a person could not, as a matter of substance, be afforded a meaningful opportunity to make submissions that the decision to refuse or cancel the visa should be revoked on the ground that she or he does in fact pass the character test. In order, therefore, to give effect to the Minister's power to revoke a refusal decision having regard to representations from an applicant, the applicant contends that it is necessary to read the membership limb of s 501(6)(b) in essentially the same way as the association limb, namely, so as to enable a person to pass the character test by establishing that her or his membership of the group or organisation is innocent. In support of this submission, the applicant relies upon the Full Court's reasons in Haneef for rejecting the Minister's submission that a person could fail the character test merely by being friends or "mates" with a person involved in criminal activities. Specifically in Haneef at [121]-[123], the Court held that:
It is one thing for the 1999 amendments to have brought about a reversal of the onus [by requiring the visa holder or applicant to establish her or his good character], as they plainly did, but it is quite another to contemplate a situation in which the Minister is given the power to revoke a decision, but which in practice cannot be enlivened. If the Solicitor-General's submission as to the meaning of association is accepted, it would be impossible for a person to prove that they are of good character, and that their "association" was entirely innocent, to establish that they pass the character test. Yet the whole purpose of s 501C(4) seems to be to allow them to do so. See generally Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65.
…
…it is significant that the Parliament did not simply entrust the Minister with an unfettered power to refuse or cancel visas, as it might have done. Rather, it established a scheme whereby a person who had been judged to fail the character test could be given the opportunity to have the decision revoked. The expression "passes the character test" in s 501C(4) must be given meaningful content.
144 I do not agree that the reasoning in Haneef applies in the context of the amended provision to the membership limb. Membership implies at the least a voluntary decision by the person to assume membership of the group and recognition by the group of the person as a member. It is open to a person to lead evidence to demonstrate that she or he is not in fact a member of a group suspected of criminal activities. Consequently while the provision may operate harshly in some cases, to read the membership limb in this way does not therefore mean that the person has no real opportunity to persuade the Minister that in fact she or he passes the character test.
145 Finally, the construction which I have reached by reference to the ordinary meaning of the provision is confirmed by the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (see s 15AB(1)(a) of the Interpretation Act). Specifically, at paragraph 41, the Explanatory Memorandum explained that:
The intention of this amendment is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. Further, a reasonable suspicion of such membership or association is sufficient to not pass the character test. There is no requirement that there be a demonstration of special knowledge of, or participation in, the suspected criminal conduct by the visa applicant or visa holder. (emphasis added)
146 While the decision in Haneef is not expressly referred to in the Explanatory Memorandum, it is apparent from this passage that the intention was to override the decision in Haneef to the extent that a person was suspected of being a member of the group or organisation, as opposed to having an association with it of the kind which required some degree of complicity in the group or organisation's criminal conduct. Contrary to the applicant's submission, I do not consider that that explanation of the intended operation of s 501(6)(b) is inconsistent with the general statement in the Second Reading Speech that the 2014 Amendment Bill as a whole reflected the "government's and the Australian community's low tolerance for criminal, non-compliant or fraudulent behaviour by those who are given the privilege of holding a visa to enter and stay in Australia."
147 It follows in my view that the expression "member of a group" must be given its ordinary meaning that mere (suspected) membership of a group suspected of criminal activity is sufficient. Those words in my view evince by necessary and plain implication an intention to derogate from an individual's freedom of association to the extent to which that freedom might otherwise have applied. There is no room in the language for importing into the membership limb a further requirement of sympathy with, knowledge of, or involvement in, the suspected criminal activities: see also Mrishaj at [37] (Besanko J); cf Haneef at 442 [113] - 424 [114] (the Court).
148 In light of the view which I have reached, it is unnecessary therefore for me to reach a view on the Minister's submission that there is no common law freedom to be a member of a group suspected of being involved in criminal conduct. Nonetheless, I note that here the interference is on the basis of the group's suspected involvement in criminal conduct only, albeit that the suspicion must be reasonably formed. Nor is there any express requirement, for example, that the criminal conduct be an object or purpose of the group.
149 For these reasons, I consider that ground 3 of the application for judicial review should be dismissed.