Immigration Minister Kevin Andrews yesterday made material public relating to his decision to cancel Dr Haneef’s visa. He released Advice obtained from the Solicitor-General David Bennett QC which quoted some material.

First, does the material provided yesterday prove Haneef guilty of criminal conduct? Answer: No.

Second, does that material provide a proper and legal basis for the visa revocation? Answer: Yes.

None of the “new” material is sufficient to support the criminal charges laid against Haneef. It is clear that Haneef should never have been charged. The responsibility for this embarrassment lies with the DPP and the AFP. The test in criminal proceedings in a court of law is proof beyond reasonable doubt. This is the highest test known to our law. It certainly has not been satisfied.

The test for revocation of a visa by an Immigration Minister is quite different. It sets a very low hurdle. Some people might say that this law is unfair, but that is not to the point at the moment. The issue is: did the Minister properly cancel the visa? Law reform is a separate issue.

According to the Advice (p1), Haneef’s visa was cancelled under section 501(3) of the Migration Act 1958 (Advice p2).

Under section 501(3) The Minister may:

… (b) cancel a visa that has been granted to a person; if (c) the Minister reasonable suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest.

Section 501(5) states that the “rules of natural justice” do not apply to a decision under ss3. Under (c), all the Minister must have is a reasonable suspicion, not proof beyond reasonable doubt.

Section 510(6) sets out the circumstances when a person does not pass the character test (Advice p3).

Relevantly, it seems that the failure here relates to section 501(6)(b):

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.

In this case, the associates are the Ahmed brothers whom the Minister reasonably suspects were involved in the London and Glasgow terrorist attacks.

Bennett QC analyses what “association” means at law (pp5-6) and the evidence of association that the Minster acted upon (pp6-8).

The test for association is very low: there can be no doubt that (1) Haneef associated with the Ahmed brothers and (2) the Ahmeds were allegedly involved in criminal conduct.

Bennett QC concludes that “there was material before the Minister on which he could validly make the decision to cancel the visa” (p9).

Thus the Solicitor-General of the Commonwealth has advised that the material before Andrews was sufficient. That advice will be tested when Haneef’s challenge to the cancellation proceeds in the Federal Court. I think Haneef will lose, but we will see.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey