Last Friday, discussing the breaking news about Dr Haneef with some colleagues over an after-work bottle of red, I predicted that Haneef would be pressured into going home quietly and that, given that he would obviously want to go home now, he would do so. That is not necessarily the end of the story, but the way it has played out so far shows how the government can play the cards it holds, even when it is losing. Being at the heart of a cause célèbre, as Haneef has been, is no fun at all. Moreover, in immigration law, the usual vulnerability to exercises of discretionary power is multiplied many times.
One of my colleagues wondered how Andrews could have got it so wrong. Leaving aside the point that he probably thought he was on to a political winner here (and in non-chatterati Australia he may still be) my own feeling was that he was just acting as he has become accustomed to act.
This has been confirmed by Nicholas Poynder, who says that [partly as paraphrased by the journalist from the SMH]:
the “toxic cocktail” of anti-terrorism laws and unchecked ministerial powers in the Mohamed Haneef case has finally shone a light on the Government’s misuse of character provisions in the Migration Act.
The minister’s power not to reveal why he had ruled someone was of bad character had always been an issue for migration lawyers, “but it is difficult to get public sympathy for treatment of non-citizens.”
The discretionary powers under the Migration Act were introduced in 1998 by the then minister, Philip Ruddock, with assurances they would be used sparingly. “What’s happened is they have been used regularly … to overcome a decision the minister doesn’t like, such as Haneef’s bail case,” Mr Poynder said.
“This power has … been misused for a long time … It’s only the toxic cocktail of anti-terror laws and extraordinary migration powers which has shone a light on these provisions now.”
This partly explains why the minute to the minister which ostensibly formed the basis for Mr Andrews’ decision is such a lengthy document.
The minute sets out the various statutory provisions and ministerial directives. The threshold question was whether the Minister “reasonably suspects that 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.” If this was the case, the Minister had a discretion to revoke Haneef’s visa if he considered it was “in the national interest.”
The directive and most of the minute and the minister’s statement of reasons related to this second limb.
These documents are really designed to prevent the decision from being set aside because of a failure to take into account a relevant consideration. In general terms, a court is powerless to revisit the merits of the decision, as opposed to the way it was arrived at. One can reasonably infer that the department has a “boilerplate” document for such cases. The individual factors merely need to be slotted in. So long as they are addressed, even if perfunctorily, the document is likely to survive this limited judicial scrutiny.
Laughably, the material provided to the minister included a few, extremely out of date, press cuttings (none dating from after 8 July). If there was any discussion of the strength of the case against Haneef, it wasn’t in the open materials. A large part of the materials related to the bombings themselves – whereas the real issue in contention was Haneef’s link to them.
The key factors as set out in the Minister’s statement of his reasons were:
- That the offence with which Haneef was charged was very serious (para 13);
- That Haneef was a person of interest to the British police (para 15);
- That the Australian Government has a strong interest in deterring non-citizens from providing support to terrorist organisations/networks (para 19);
- That “based on the materials provided to me, including section 503A protected information I found that the ‘Protection of the Australian Community” weighed in favour of visa cancellation. I gave this consideration significant weight.” (para 20) [this was essentially a summary of the factors referred to above]
- That the Australian community would expect that a non-citizen, who has had an association with persons suspected of involvement in an act of terrorism and who has been charged with an offence of providing resources to a terrorist organistion, including those persons, would have their visa cancelled. (para 21). Andrews gave this “moderate weight.” (para 22) [only moderate?]
- That the best interests of the child (ie, Haneef’s infant child) would not be harmed by Haneef living with his wife and child in India (paras 23-26).
- That the fact that Haneef had not previously been warned, and had been granted bail, and had been working as a doctor weighed against visa cancellation, and he gave that moderate weight. (para 31).
Mr Andrews has said in relation to Haneef that “ultimately, this can all be tested because there can be reviews in the courts, and the courts have the ability to test the information.” This is only true up to a point.
As the SMH story from which I have been quoting points out, Section 503 A (2c) of the Migration Act says the minister must not be required to divulge or communicate to a court, a tribunal, a person, a parliament or parliamentary committee protected information (that is, information provided on a confidential basis from and Australian or overseas law enforcement or intelligence agency which has been specified by a notice by the minister published in the Government Gazette) on which the Minister based his decision.
This doesn’t just apply to suspected terrorists: it applies to information about a whole range of people whose visas can be rejected on the quite widely-drawn grounds of the character test set out in section 501.
Even if the minister were to choose to provide the information to the court, he could ask the court to make orders keeping it from Dr Haneef and his advisers.
The SMH reported:
Mr Poynder said he had had experience with protected documents affecting cases. “I have had several, and know of several more, where under freedom of information or through error, the documents [used in the case and] protected under s503 A (2c) have come to light. When you see [them, they are] nothing. All the minister has been doing is protecting a weak case from disclosure.”
It is very hard to work out what, if anything, could have been in the protected information, contained in the not-disclosed schedule 3 to the minute. It is difficult to disagree with Mr Poynder’s comments:
The case of the Gold Coast doctor has brought ministerial decision-making to the fore. “Haneef’s case is the perfect storm. In all probability, it appears this guy is innocent, so we see the migration powers misused – not to make a proper decision as to whether he’s of good character, but to hide behind a weak case,” Mr Poynder said. “There is always a risk broad discretions with no accountability will get misused.”
The monkeys with the word-processor who helped the minister reach his decision were Peter White, Assistant Secretary, and Zoë Clarke, Character Assessments and War Crimes Screening Branch.