Involved in a Group Involved in Criminal Conduct

 
 

……a person does not pass the character test if :

(b)   the Minister reasonably suspects:

  • that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

The classic case on this provision is Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (21 August 2007), where Spender J of the Federal Court quashed the decision of the Minister to cancel Dr Haneef’s visa.  Here’s why:
On 16 July 2007, the Minister for Immigration and Citizenship (the Minister) cancelled Dr Mohamed Haneef’s subclass 457 Business (Long Stay)(Class UC) visa.

Dr Haneef claimed that in so doing, the Minister exceeded his powers. Amongst other claims, it is said that the Minister misconstrued the provisions of s 501…and in particular, the criterion for “failing the character test” in s 501(6)(b); it is also claimed that the cancellation decision was for an improper purpose.

The central question in these proceedings concerns the construction of the provision 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.”

Dr Haneef claims that the requirement for “not passing the character test” in s 501(6)(b).. requires that there be some nexus between the relationship that the visa holder has to the other person, and the criminal activity of that other person. An “innocent” association is not enough.

The Minister says that there is no such requirement, and that any association is sufficient. Alternatively, the Minister says that on its proper construction, all that the “association test” requires is that the visa holder be a “friend” or a “good mate”.

The Minister stated in his Reasons that from the information that (a) that Dr Haneef is the second cousin of Dr Sabeel Ahmed and Dr Kafeel Ahmed; (b) Dr Haneef and Dr Sabeel Ahmed have been in correspondence via on-line chat rooms; and (c), the most recent correspondence was on 26 June 2007 regarding the birth of Dr Haneef’s daughter, he reasonably suspected that he that Dr Haneef has and has had previously an association with Dr Sabeel Ahmed and Dr Kafeel Ahmed.

The Solicitor-General submitted for the Minister that the following matters:

(1)Dr Haneef and the Ahmed brothers were second cousins.

(2)Dr Haneef had stayed in the same boarding house accommodation in the United Kingdom with Dr Sabeel Ahmed.

(3)Kafeel had lent money to Dr Haneef .

(4)Dr Haneef had left his mobile phone with some credit remaining on his SIM card to Sabeel Ahmed.

(5)There had been conversations in an internet chat-room mainly relating to family matters,

were sufficient to enliven the Minister’s discretion to cancel Dr Haneef’s visa. Those matters established an association between Dr Haneef and both of the Ahmed Brothers.
The Minister contends that the decision of Emmett J in MIMA v Kuen Chan [2001] FCA 1552 (Chan) establishes that even an “innocent” association is sufficient to satisfy the test; that he applied that test and that Chan was rightly decided.

I am satisfied, from his Statement of Reasons and the submissions made on his behalf to this Court, that the Minister applied the Chan test, in determining whether Dr Haneef failed the character test in s 501(6)(b).

In my judgment, Chan was wrongly decided. It is not correct to consider the words “an association with a person or group” by themselves, and then consider, as a separate question, whether the person or group is reasonably suspected of involvement in criminal activity.

It is necessary to construe s 501(6)(b) having regard to the context in which it appears. It is necessary to pay particular regard to the fact it is defined to be one criterion on which a visa applicant or holder fails the character test. Its meaning has to be derived having regard to the other criteria having that consequence, namely s 501(6)(a), s 501(6)(c) and s 501(6)(d).

I reject the submission by the Solicitor-General for the Minister that the “character test”, which a person does not pass if the person has or has had an association with a person or group or organisation that the Minister reasonably suspects has been or is involved in criminal conduct, does not involve any question about the character of the person. In my opinion s 501(6)(b) is a composite phrase and has to be construed as such. In my opinion it has the connotation that there is an alliance or link or combination between the visa holder with the persons engaged in criminal activity. That alliance, link, or combination reflects adversely on the character of the visa holder. Such a meaning would exclude professional relationships, or those which are merely social or familial. It would exclude the victim of domestic violence.

The Minister cancelled the visa by adopting a wrong criterion; he fell into jurisdictional error by applying the wrong test. That error infects the cancellation decision. It follows that the decision must be set aside.

Nonetheless I am of the opinion that, had the Minister applied the right test, it would have been competent for the Minister to cancel Dr Haneef’s visa.

This is because, in addition to the matters which the Solicitor-General identified as supporting the Minister’s view of the “association” of Dr Haneef with the Ahmed brothers, there was before the Minister:

(a) advice from the Metropolitan Police Services Counter Terrorism Command that Dr Haneef was a person of interest to their investigation through his association with two of the United Kingdom suspects believed to have been involved in the London incident and the Glasgow bombings; and

(b) On 14 July 2007, Dr Haneef was formally charged with intentionally providing resources to a terrorist organization consisting of persons including Sabeel Ahmed and Kafeel Ahmed, and being reckless as to whether the organization was a terrorist organization, contrary to s 102.7 of the Criminal Code.

These matters would have permitted the Minister to conclude that the association between Dr Haneef and the Ahmed brothers went beyond a purely familial, social, “innocent” relationship. On that material, it would have been open to the Minister, applying the proper construction of s 501(6)(b), to cancel Dr Haneef’s visa.

The circumstances have changed when the Minister cancelled Dr Haneef’s visa.

The other grounds of challenge to the Minister’s decision are rejected.

In particular, it has not been shown that the Minister’s purpose in canceling Dr Haneef’s visa was other than to have Dr Haneef removed from Australia as soon as was reasonably practicable.

I propose to order that:

  1. An order in the nature of certiorari quashing the Minister for Immigration and Citizenship’s decision made on 16 July 2007 to cancel the applicant’s Subclass 457 Business (Long Stay) (Class UC) visa. 

Immigration appealed to the Full Federal Court which dismissed the appeal (Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 (21 December 2007).  Here is what the Full Federal Court said:

The Minister’s appeal was heard in Brisbane last month by a Full Court constituted by the Chief Justice and Justices French and Weinberg.

The facts can be briefly summarised. Dr Mohamed Haneef and his wife arrived in Australia from India in September 2006. Following attempted terrorist bombings in London on 29 June 2007 and in Glasgow on the following day, two suspects, Dr Sabeel Ahmed and Dr Kafeel Ahmed, were arrested. Both were second cousins of Dr Haneef.

On 2 July 2007 Dr Haneef, who was then working as a doctor at Southport Hospital, was arrested by the Australian Federal Police and later charged with having intentionally provided resources, namely a SIM card, to a terrorist organisation consisting of persons including his two second cousins. On 16 July 2007 he was granted bail by a magistrate in Queensland. Immediately upon the grant of his bail, the Minister cancelled his visa under s 501(3) of the Migration Act and Dr Haneef was kept in detention. The Minister cancelled the visa on the ground that Dr Haneef did not pass the “character test” and that the Minister was satisfied that the cancellation was in the national interest.

On 27 July 2007 the charge against Dr Haneef was dismissed.

The Migration Act specifies various circumstances under which a person does not pass the character test. They include that a 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 Minister suspected that Dr Haneef did not pass the character test because of his “association” with the Ahmeds.

Justice Spender considered that the Minister had misinterpreted the character test and had applied a test that was too wide and could encompass links that could not, in his Honour’s view, conceivably have had any bearing on the visa holder’s character.

On the Minister’s appeal to the Full Court the central issue was, again, the scope of “association” and whether the Minister had applied the incorrect test.

It was common ground on the appeal that there had to be some limits on the scope of “association”, but there was disagreement between the parties as to what those limits were. The Minister argued for a wide definition, relying upon an earlier decision of a single judge of the Federal Court, and Dr Haneef’s counsel argued for a narrower one.

Applying the principles of the common law concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected, the Full Court has agreed with Justice Spender that a narrower interpretation of “association” than that applied by the Minister should be taken to reflect the intention of the Parliament when it enacted the character test.

In a unanimous judgment, the Full Court has concluded that the “association” to which s 501(6)(b) of the Migration Act refers is one involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation with whom the visa holder is said to have associated. The association must be such as to have some bearing upon the person’s character.

The Court has therefore dismissed the Minister’s appeal, with costs.

Clarke Inquiry Report of the inquiry into the case of Dr Mohamed Haneef to the Australian Parliament 2008

Here is what the Clarke Inquiry found about the Haneef matter:

I do not accept that Dr Haneef left because he was in some way involved in the attack.

After Dr  Haneef had been arrested the AFP and then the government—which had no intelligence supporting the existence in Australia of a terrorist cell involving Dr Haneef—became concerned that there might be a terrorist attack  imminent in Australia, as well as with the need to investigate whether Dr Haneef was in some way involved in the UK incidents. As a result, what started as a small investigation blew out, coming to involve an investigation of nearly 50 people from Perth to North Queensland and occupying the attention of many officers, from the AFP, the Queensland Police Service, other members of the Australian Intelligence Community (in particular, ASIO and the Defence Signals Directorate) and the Australian Customs Service

In interview, both the Minister and the Acting Secretary echoed the retort I heard many times during the Inquiry—that ASIO had another remit and did not have the same information as the AFP. But ASIO did have the same information and, being Australia’s primary intelligence organisation in relation to domestic matters, had furnished intelligence to the AFP. The fact that, when confronted with the detail of the ASIO report, Mr Andrews said he probably would not have acted differently had he seen it, tells me the Minister did not reflect deeply on the detail of the AFP information in the rambling brief he had been given. Nor did he analyse the conflict between that and the ASIO information, of which he had a broad knowledge. As a result, he failed to ask the questions that would have alerted him to the fact that the AFP material he had been given contained  information that was somewhat equivocal and, at its highest, was in complete conflict with the assertions of ASIO. In addition, as it seems to me, the Minister failed to consider what purpose he was achieving when at the time he made the visa-cancellation decision he knew it was likely the AFP would, in the event that he made such a decision, seek a Criminal Justice Stay Certificate.

Finally, I record my surprise that not one of the people involved in the police investigation and the charging whom the Inquiry interviewed stood back at any time prior to the decision to charge and reflected on what Dr Haneef was known to have done. That was to give a SIM card registered in his name—a card that could have been bought for a small sum of money, even with a false name in the UK his cousin, who had asked for it, about 12 months before the terrorist attack. If the police officers had reflected on those basic facts they would have realised that in such circumstances the evidence demonstrating criminal intent or recklessness would have had to be very strong indeed if a conviction were to be secured. Only one person who provided a statement to the Inquiry seems to have expressed that view at the time: the CDPP specialist counsel who appeared in the bail application emphatically questioned the case. By then, of course, Dr Haneef had been charged.

Note that ministerial direction No 65 has this to say about this part of the character test

  1. Membership/Association (section 501(6)(b))

(1) A person does not pass the character test if the Minister reasonably suspects:

  1. a) that the person has been or is a member of a group or organisation, or has or has had an association with a group, organisation or person; and
  2. b) that the group, organisation or person has been, or is, involved in criminal conduct.

(2) A suspicion is less than a certainty or a belief, but more than a speculation or idle wondering. For a suspicion to be reasonable, it should be:

  1. a) a suspicion that a reasonable person could hold in the particular circumstances; and
  2. b) based on an objective consideration of relevant material.

(3) A member is a person who belongs to a group or organisation. The evidence required to establish reasonable suspicion of membership of a group or organisation will depend on the circumstances of the case. Decision-makers should note that failure of this limb of the character test does not require an assessment that the person was sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is sufficient under this element of the test that the decision-maker has a reasonable suspicion that:

  1. a) the person has been, or is a member of a group or organisation; and
  2. b) the group or organisation has been, or is, involved in criminal conduct.

(4) In establishing association, the following factors are to be considered:

  1. a) the nature of the association;
  2. b) the degree and frequency of association the person had or has with the individual, group or organisation; and
  3. c) the duration of the association.

(5) Decision-makers should note that in order for a person to fail the association limb of the character test, the delegate must have a reasonable suspicion that the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation – mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association. In order to not pass the character test on this ground, the association must have some negative bearing upon the person’s character.

(6) In some cases the information concerning association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other people at risk.

The writer queries whether this is consistent with Haneef.

Barbara DavidsonInvolved in a Group Involved in Criminal Conduct