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Bad Character the Second Part


‘Kill them all; God will recognise his own’

(Papal legate Arnald-Armoury when asked how Catholics could be distinguished from heretics during a massacre in the Albigensian Crusade of the 13th century)

In February 2006, the Commonwealth Ombudsman issued a report criticising parts of section 501 character decisions by the Immigration Department. What was particularly criticised was how these decisions affected long term residents of Australia. In part of the report, the Ombudsman was critical of the reliance on ‘protected’ information under section 503A, and whether this power should be used as often as it has been. The report recommended that visa holders be given notification of an intention to cancel their visa and be given copies of all documents to be taken into account in the decision-making process. Cases were identified by the Ombudsman where someone’s own criminal record was not released on the grounds it was ‘protected information’.

Whilst accepting this recommendation, the Department replied that there was no discretion for the Department to release information under section 503A when an agency supplying the information refuses Immigration permission to disclose that information. This may be so, but it is possible for the information to be supplied to a court or legal representatives on condition that the information not be discussed outside the court.

In Dr Haneef’s case, it appears that no attempt was made to provide this ‘natural justice’ process as recommended by the Ombudsman. In fact, government ministers have strongly defended the view that the critical information should not have been released to Dr Haneef. This information was so important that it could not even be given to the Court in the bail application. The government view seems to be that it is better to cancel a visa and drop the charges against Dr Haneef, rather than give Dr Haneef a chance to reply to the accusations. Once his visa was cancelled, he could be forced to leave Australia.

Dr Haneef cannot return to Australia while the Federal Court is still considering the case. Once a visa is cancelled under section 501, an individual is prohibited from ever being able to return. So unless the Immigration Minister revokes the cancellation, or the Federal Court overturns the minister’s decision, Dr Haneef is gone from Australia forever.

Being banned from ever being able to visit Australia is a very serious matter and these decisions should not be made lightly. When such a the decision is made without giving the aggrieved person the chance to even respond to the accusations, one would hope the information waupon which the decision was based is strong and that the character of this person was indeed of the worst kind. In this case the charges have been withdrawn and it seems that the Indian authorities, not averse to serious action against terrorists, have not seen fit to bring their own charges.

Meanwhile we are told that in the 'war on terror', it is better to be certain than sorry. At no stage in this process was Dr Haneef given an opportunity to respond to the Minister for Immigration regarding allegations against him before his visa was cancelled.

The government seems certain it is right, but one of the crucial elements of a liberal democracy is accountability in each part of government. Decisions to cancel a visa without a chance to reply to accusations should not be made lightly, but section 503A provides a mechanism for the Minister for Immigration to act as prosecution, judge and jury.

In 2006 the Ombudsman expressed concern about the way the system was operating for long term residents. What we have seen in this case so far only strengthens the concerns about how the system is operating, not just for long term residents, but all visa holders in Australia.

This comment follows Kerry Murphy's first article in the 27 July 2007 issue of Eureka Street - "Law overboard in pythonesque Section 501 application".



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Existing comments

Kerry Murphy's analysis is timely and helpful in explaining how Minister Andrews cheerfully ignores essential elements of a Liberal Democracy, such as ministerial responsibity and innocence unless proved guilty. Sadly, for the past decade, blatant duplicity, for the sake of political advantage, has been a trait of the Howard government.

David Dyer | 02 August 2007  

I am heartened by Kerry's two articles on this matter. Kerry continues to combine his expertise in law with his commitment to justice. Well done, Kerry, you've gone from strength to strength.

Vivienne Goldstein | 02 August 2007  

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