In an extraordinary decision, Justice Spender of the Federal Court today ruled that Immigration Minister Kevin Andrews’ decision to revoke Mohammed Haneef’s work visa was invalid.
This ruled was reached on extremely technical grounds, truly a triumph of form over substance.
Spender J held that, at the time Andrews’ decision was made, the visa could have been validly cancelled on the available evidence. He also ruled that Andrews did not have any improper purpose. The problem, as the Judge saw it, is that the Minister applied the wrong test. Spender J conceded that the test applied was in accordance with existing law (the decided case of Chan), but Spender J has now decided that Chan was wrong. Had the Minister applied the correct Spender J test, then the revocation would have been valid.
In my opinion, Chan was wrongly decided, and the test which the Minister applied was not the test called for by s 501(6)(b).
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As the result of this misconception as to what the exercise of the statutory power entailed, there was a purported, but not a real exercise of the power conferred by s 501(3).
As a consequence, the decision is a nullity and s 474 does not apply.
It follows that there ought to be an order in the nature of certiorari quashing the respondent’s decision made on 16 July 2007 to cancel the applicant’s Subclass 457 Business (Long Stay) (Class UC) visa, and also an order in the nature of prohibition and/or injunction restraining the respondent from acting upon the cancellation of the applicant’s visa.
The above finding is sufficient to dispose of this application.
I should however say that there was, on the material that was before the Minister, and of which is also before the Court, that had the Minister applied the correct test for which s 501(6)(b) calls, it would have been open to the Minister to cancel Dr Haneef’s visa.
This is an extraordinary reasoning process which almost seems designed to produce a desired result, regardless of the law.
Spender J was very conscious that he had made earlier remarks which may have led some people to think that he was biased had pre-judged the case. Some weeks ago, when the case first came before Spender J for directions, I [Spender J] raised the suggestion that I had been associated with persons involved in criminal activity, in that I had defended persons charged with murder. … I indicated that I would not pass the character test “on your statement”, because I was a person who had an association with someone else whom the Minister would reasonably suspect had been involved in criminal conduct.
These comments were widely published, and many people (including me) considered this to be a foolish prejudgment of the issues.
Now (at Paragraphs 221-222) Spender J seeks to defend himself from these criticisms: ‘The Socratic dialogue between Bench and Bar, so as to attempt to elucidate the proper construction of the paragraph in question, is a normal incident of a civil trial’ (222)
This decision will be interpreted in political terms. It will be represented as definitive loss for the Howard government. Proper analysis shows that that it is just the decision of one judge (who gave the appearance of having been biased by earlier prejudging the issue).
This decision demonstrates true legal-hairsplitting. The Judge concedes that the decision was for a proper purpose, that the existing law was applied in making the decision and that there was evidence to support a decision to revoke Haneef’s visa. This is also a case involving serious acts of international terrorism. But none of that is enough to save the Government. Spender J overturns the existing law and then rules that as the wrong test was applied, the visa was invalidly revoked.
It is rubbish like this that continues to give the law a bad name.