Limits on executive power

I venture into questions of migration law and executive power somewhat tentatively. They are far from my “comfort zone”. But I couldn’t help having a curious look at the case of Haneef v Minister for Immigration [2007] FCA 1273.

The primary question in this decision is the interpretation of s 501(6)(b) of the Migration Act 1958 (Cth). Section 501 (3) provides that the Minister can cancel a person’s visa if the Minister suspects that a person does not pass the “character test” and the Minister believes the cancellation is in the national interest. Section 501(6)(b) says that person will not pass the character test if the person “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 question for the consideration of the Court was the test to be applied in deciding whether a person has an “association” with a group or organisation which was involved in criminal conduct.

The facts of the Haneef case are well known (and discussed in a previous post here). Dr Haneef, a doctor working in a Gold Coast hospital, apparently loaned his SIM card to his second cousins, Kafeel and Sabeel Ahmed, who went on to make attempted suicide bombing attacks in London and Glasgow. He was charged with recklessly providing resources to a terrorist organisation. After the magistrate granted bail to Dr Haneef, the Minister for Immigration, Kevin Andrews, immediately revoked his visa, meaning that the government would be entitled to detain him under its immigration powers.

The Minister argued that he was entitled to judge Dr Haneef as failing the character test because of his association with Kabeel and Sabeel Ahmed. It did not matter whether the association was innocent or not, or whether Dr Haneef had any knowledge of his second cousins’ plans – any association was enough (applying MIMA v Wai Kuen Chan [2001] FCA 1552). Spender J said that Chan was incorrect, and that accordingly, the Minister had not applied the correct test and the decision was a nullity. However, it is important to note that his Honour was of the opinion that the Minister could have been entitled to cancel Dr Haneef’s visa if he had applied the proper test. The proper test would have taken into account the fact that UK Police had advised the AFP that Dr Haneef was a person of interest to their investigation through his association with the Ahmed brothers, and that Dr Haneef had been charged with a criminal offence pursuant to the Criminal Code, and found that there was more than just any association.

His Honour made a number of pertinent comments about the rule of law. He found that the breadth of the test in Chan allowed the administrative arm of the government free rein. A woman who was battered by her husband could be said to have an association with a criminal by reason of the fact that a crime had been committed against her. There had to be some limits to the way in which the administrative arm of government could exercise its powers.

The decision of Minister Andrews to revoke Dr Haneef’s visa makes me deeply uncomfortable. It seems to me that if the court was satisfied that he should be let out on bail on strict conditions, then that was enough. Of course the administrative arm of government should be allowed to intervene in matters of national security, but they should not have carte blanche to do as they wish. The fall-out of the Haneef affair establishes why this is so. The government should have put all relevant facts before the magistrate who heard the bail application, and should not have tried to get around the exercise of independent judicial power which has been delegated to the courts.

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2 Comments

Filed under Federal Court, immigration, law, politics, terrorism

2 responses to “Limits on executive power

  1. However, it is important to note that his Honour was of the opinion that the Minister could have been entitled to cancel Dr Haneef’s visa if he had applied the proper test.

    I have a reasonable amount of experience with this area of law, and in the end this remark goes to the fundamental problem from the perspective of a common law rule-of-law believer: the High Court has said that the Parliament can delegate all kinds of merits assessments to the relevant Minister/delegate who can make it freely so long as he/she swims between the flags in a jurisdictional sense. So in this case, Andrews can make an adverse assessment based on secret information from unreliable sources and it could still be valid, so long as he says he is applying the correct test.

    Once you get into the realm of pure merits, i.e. you just disagree with his assessment but can’t establish a jurisdictional error in the approach taken, it’s a very high hurdle to show that a decision was so irrational/unreasonable, or alternatively was tainted by bias such that it should be disturbed by a Court.

  2. Paul, upon reading your comment, the words “Wednesbury unreasonableness” have popped into my head. Perhaps I do remember more of this topic than I thought?

    You have really hit the nail on the head. The difficulty occurs when one disagrees with the decision but there is no error in law: one thing I always found frustrating about administrative law (despite the merits review procedures)! 🙂

    Dr Haneef was just damned lucky the Minister applied the wrong test. If he’d have applied the right test, Dr Haneef wouldn’t have had a leg to stand on.

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