Haneef case shaping future of Australian migration law


"It is right to acknowledge the political character of the Minister's office, and his accountability to the Parliament, and of the government ultimately to the electorate. The Minister is nonetheless susceptible to the requirements of the law that he act within the jurisdiction conferred by the parliament on him."

Jeffrey Spender, Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at paragraph 68.

Haneef case shaping future of Australian migration lawOn 21 August, Justice Spender of the Federal Court held that Immigration Minister Andrews had made a legal error, known as a 'jurisdictional error', when he made his decision to cancel Dr Haneef's temporary visa on 16 July. The 74-page judgment considered cases not only from the High Court of Australia but also from the US Supreme Court.

The key issue in the case was not a major legal point — "It is an embedded constitutional guarantee that persons will be dealt with according to law (19)". Even a Minister of the Crown is subject to the Rule of Law. This is well-trodden ground and not a radical proposition. The judgment does however dispose of the view that a decision of the Minster can be justified simply on security grounds, or the flawed proposition that the end justifies the means — as found in comments such as 'better to be safe than sorry'. Such logic sees the innocent hanged.

Argument in the case had focused on the interpretation of the 'association test' in s501(6)(b). It provides that a person does not pass 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."

The argument of the Minister was that the 'association' could be an innocent one, such as being related. It does not matter whether the person themselves was involved in any criminal conduct, or even was aware that the person they were associated with was involved in criminal conduct. The 'association' was enough.

Counsel for Dr Haneef argued that this was too wide a test and would catch innocent people. They argued that a victim of domestic violence would fail the character test, because they had an association (a relationship in this example) with the perpetrator of the violence against them.

Justice Spender considered the history of the relevant constitutional provisions, as well as case law, and concluded that this interpretation of the 'association test' was based on a case that had been wrongly decided. Therefore, the wrong test had been applied by the Minister when he considered whether to cancel Dr Haneef's visa.

The legal consequence of applying the incorrect legal test is what is called 'jurisdictional error'. The result is that the decision of the Minister is flawed, and so cannot stand. The Court held that the cancellation of the visa was incorrect in law.

"Having regard to the context, it seems to me impossible to conclude that Parliament would have intended that a person fail the character test where relationship of a visa holder with a person, group or organisation was utterly remote from the criminality of that person, group or organisation."(188)

Justice Spender noted that the Minister could have come to the same conclusion to cancel the visa in another way, and that would have been legally acceptable. But he did not do so.

Counsel for Dr Haneef also argued that there was illogical reasoning in the Minister's decision. But Justice Spender held:

"Faulty or illogical reasoning does not amount to jurisdictional error."(277)

Minister Andrews has stated that he has instructed the government lawyers to appeal. A further attempt to appeal to the High Court from any decision of the Full Court will need to convince the High Court that the case raises important legal issues which require the attention of the final appellate court in our democracy. It is too early in the process to predict what may happen in such an application.

On one level, the case can be simply described as the refusal of one Federal Court judge to follow the legal reasoning of another Federal Court judge. But the politicisation of this case in an election year means that the outcome of the appeal will have political as well as legal consequences. Previously the Government has changed the Migration Act when courts have held that the law was not to the liking of the Government. This could be a very significant case in Australian jurisprudence.



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Existing comments

I agree. How the Consorting Squads of old would have relished the Minister's interpretation of what 'relationship' meant!

Gerard Walsh | 23 August 2007  

From a distance it appears Justice Spender disagrees with advice given by a qualified legal person, to the Minister.

My general opinion is that activist judges have brought the law into disrepute across the board.

I look to parliament to make laws for this country.

Pat Healy | 23 August 2007  

I find the Federal Government's immoral provisions in dealing with refugees, immigrants and visa unpalatable. I cannot understand that the Australian Constitution, Australian law and sheer human decency cannot provide people coming to Australia an equitable outcome in the face of people who seem to act outside the law (sheer illegality). Miscarriage of justice should surely be sheeted back to the perpetrators for legal sanctions.

raymond lamerand | 27 August 2007  

I think Pat misses the point. Parliament certainly makes the law, but in adminstering the law even Ministers must act according to law. Consider Andrews' statement that "When I made the decision to cancel Dr Haneef's visa, I made it in the national interest and I stand by that decision" (www.theaustralian.news.com.au/story/0,25197,22286294-601,00.html) It was not what Andrew's considered to be the 'national interest' but what the law provided that should have motivated his decision.

On Pat's other point, I suggest that whatever 'acivist judges' have done to bring the law into disrepute pales into insignificance compared with what the Chief Law Officer of the Commonwealth has done during his term of office.

Warwick | 28 August 2007  

The apparent condoning (the end justifies the means)of collateral damage in Iraq seems to have a parallel in Australia where the innocent may be allowed to suffer because it is better to be safe than sorry.

Francis Brown | 01 September 2007  

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