Revocation of Dr Haneef’s visa focuses attention on fundamental breaches of human rights and the rule of law under the Migration Act 1958. Dr Haneef’s case is subjudice: his lawyers have sought a review of the Minister for Immigration’s decision to revoke Dr Haneef’s visa.
Yet Australians can and should query the Act’s provisions as they could apply in future cases, to future visa holders or applicants. Principles of “natural justice” or procedural fairness are fundamental in Australia’s legal system. They rest squarely on notions of fairness.
Nonetheless, since the 1990s the Australian Parliament has, to its shame, infected the Migration Act with provisions seriously breaching an individual’s rights to natural justice in decision-making, ignoring international treaties and conventions Australia has ratified.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
Every politician who voted for these restrictions is responsible for the serious erosion not only of the rights of those directly affected by the Act, but of the whole community. Everyone has (or should have) an interest in ensuring that Australia’s laws are fair.
The Migration Act is not fair
Natural justice requires that a before a judicial or administrative decision is made, the person concerned has a right to be heard. It requires the party making the decision to be unbiased, taking into account relevant information only, and putting aside irrelevant information. Decisions must be prompt or timely.
Yet the Migration Act is framed to deny or truncate natural justice. It is responsible for decisions denying fairness to visa applicants and visa holders, many of whom have lived in Australia since they were infants, believing they were, for all purposes, Australian.
It is responsible for poor decision-making by successive ministers for immigration, officers of the immigration department, migration and refugee tribunals, and courts constrained by its provisions.
The High Court has sometimes interpreted the Act’s restrictive provisions to reincorporate fairness and the Federal Court has generally done its best to avoid the worst consequences of executive and legislative repressive excesses.
Indeed, the Federal Court’s response in promoting fairness led to the major parties introducing and supporting provisions seeking to further restrict the court’s ability to ensure the Act is fair.
Section 501(3), the section applied to Dr Haneef, restricts to the Minister the decision to refuse or cancel a visa. It differs from section 501(1) and (2) where the Minister or Minister’s delegate has the power of visa cancellation or refusal. Whereas a section 501(1) and (2) decision is subject to natural justice, section 501(3) is extraordinary in saying “natural justice” does not apply.
Under section 501(1) and (2) the decision is made if the Minister or delegate reasonably suspects the person does not pass the character test, and the person whose visa is in question fails to satisfy the Minister or delegate that s/he passes the character test. Under section 501(3) the decision depends upon the Minister’s reasonably suspecting the person does not pass the character test, and being satisfied refusal or cancellation is “in the national interest”.
Under section 501(1) and (2), the person affected has a right to be told ahead of any decision that the Minister or delegate in considering refusal or cancellation, and to be heard on the question.
Section 501(3) has been interpreted by the Minister as denying the person any right to be heard before that decision is made, although such interpretation is not necessarily required.
Clearly, any failure to hear from the person concerned inevitably leads to inferior decision-making.
Section 503A compounds the problem. It “protects” information supplied by law enforcement agencies or intelligence agencies. Yet even that provision can be overridden by the Minister. Albeit it restricts authorized migration officers from divulging the information to anyone other than the Minister or another authorized migration officer, the Minister is entitled to make a written declaration that the specified information can be provided to, amongst others, a “specified court” or “specified tribunal” and the Federal Court or Federal Magistrates Court.
Canada has dealt with a similar problem, with the Supreme Court striking down a provision preventing visa holders from being able to see and respond to “protected” information. Though the Court may be criticised for not going far enough, the principles applied have a resonance with the Australian situation.
In the Charkaoui case, decided in February this year, Adil Charkaoui spent 21 months in gaol as a suspected terrorist. Chief Justice McLachlin, with whom the entire court agreed, accepted as one of “the most fundamental responsibilities of a government” ensuring security of its citizens.
This means sometimes a government must “act on information it cannot disclose and detain people who threaten national security”. However, in a constitutional democracy “governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees”. The tension “lying at the heart of modern democratic governance” must be resolved so to respect “the imperatives both of security and of accountable constitutional governance”.
In Canada, the Immigration and Refugee Protection Act said visa holders or applicants had no right to look at or respond to “protected information”; it was open to scrutiny by the judge alone. This, the Court said, not only hampered the affected person, but put judges in an invidious position, limiting their decision-making capacity. The adversary system , inherited from Britain by Canada and Australia , counts on each party being able to answer material provided by the other. It depends on cross-examination, countering evidence, and the possibility of challenge and contradiction. It relies on judges weighing countervailing evidence and arguments. If “protected information” is not subject to this process, judges are denied a key aspect of the adversary system, are hampered in their judicial role, running the risk of poor decision-making.
Invalidating the provision, the Court gave government and parliament 12 months to get it right. It suggested that at minimum “protected information” should be subject to the scrutiny of appointed special counsel as an antidote to the one-man band approach. This might at least obviate the risk of false information influencing decisions, untruths dictating the outcome of decisions, or “errors” being allowed to stand unchecked.
Ministers and minister’s delegates, like courts and judges, cannot make decisions in a vacuum filled with the “evidence” of one side, or one party, particularly a party with huge resources and powers. Hopefully, when they get the chance, Australian courts will follow Canada in recognising the flawed wisdom of the Migration Act’s provisions and the Minister’s interpretation, their breach of fundamental justice principles and international treaties, and the need to strike them down.