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Keeping Australia safe by an improper exercise of power?

By Surya Deva - posted Friday, 27 July 2007


The arrest, detention and cancellation of the visa of Dr Mohammed Haneef by the Australian Government have evoked strong reactions or concerns from a range of people and institutions.

Although this piece is also reflective of few such concerns, I do not intend to use this space to defend Haneef or discredit the prosecution case against him for “recklessly” providing support to a terrorist organisation. I would rather let the Australian judicial system deal with the merits of the charge, though on the basis of the information available in public domain it seems that the prosecution case might not be very sound.

Doubts, for example, have been raised if the SIM card that Haneef had left with his cousins was actually found in the jeep that smashed into the Glasgow airport. Even if Haneef’s SIM card was used to carry out a terrorist act, it is doubtful if the requirement of mens rea under Section 102.7(2) read with Section 5.4 of the Schedule to the Commonwealth Criminal Code Act 1995 could be satisfied.

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Was Haneef really “reckless” as to the activities and/or connections of his cousins with a terrorist organisation? Probably not, but conclusively only time will tell this.

However, more than the suitability of this charge against Haneef, I am perplexed by the manner in which the Immigration Minister Kevin Andrews exercised his power under Section 501 of the Migration Act 1958 and cancelled Haneef’s visa on the ground of failing the “character test”. The circumstances and the timing of visa cancellation (hours after Haneef was released on bail but almost two weeks after his arrest on July 2, 2007) raise serious questions as to the rule of law, the rights of accused persons, the working of the administrative system and the independence of judiciary. Let me touch upon some of these questions here.

Visa cancellation power under the Migration Act

The Migration Act gives the Immigration Minister the power to refuse or cancel a visa if the concerned person does not satisfy the character test.

In Haneef’s case, the Minister acted under Section 501(3) under which the Minister may cancel the visa if s/he (i) reasonably suspects that the person does not pass the character test, and (ii) is satisfied that the cancellation is in the national interest.

There is nothing unusual about conferring such a power on the Immigration Minister. In fact, vesting such discretionary power might be necessary to ensure that only those non-citizens are allowed to remain in Australia who do not compromise its national interests.

It should be noted though that unlike subsections (1) and (2), the power under subsection (3) of Section 501 may only be exercised by the Minister personally and such exercise of power is not subject to the rules of natural of justice. The fact that the Minister cannot delegate this power suggests its special nature.

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Nevertheless, like any discretionary power, this power cannot be used in an arbitrary or unreasonable fashion, by ignoring relevant considerations, for improper purpose, without complying with the required procedure, by acting under dictation, or in total disregard of constitutional principles.

Even errors of fact could vitiate a decision in a given case. One should also consider that once a visa is issued to a person under law, s/he has a legitimate expectation that the visa shall not be revoked unless there are legally permissible (and not extra-legal or political) grounds for doing so.

Doing indirectly what could not be done directly

So what made the exercise of power in cancelling Haneef’s visa of questionable character and a subject matter of judicial review? Was there enough evidence, first, to reasonably suspect that Haneef does not pass the “character test” and, second, to satisfy the Immigration Minister Kevin Andrews that the cancellation is in the “national interest”?

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About the Author

Surya Deva is Lecturer at School of Law, City University of Hong Kong, Hong Kong. He recently completed his PhD at the Sydney Law School. Surya has published widely in law journals also blogs at Glocal Canvas.

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