Haneef visa decision quashed; Govt to appeal
Justice Spender of the Federal Court of Australia has today given his judgment in Haneef v Minister for Immigration and Citizenship [2007] FCA 1273. In short, Spender J held that although the Minister applied the "association" test from Minister for Immigration & Multicultural Affairs v Chan [2001] FCA 1552, (which held that even an innocent association was sufficient to satisfy the legislative test), that that was not the correct test and that Chan was wrongly decided.
Interestingly, Spender J observed that had the Minister applied the correct test, it would have been open to him to cancel Haneef's visa on the basis of the evidence before him at the time. That is presumably no longer the case, the charges against Haneef having been dropped and the prosecution's case against him generally descending into a farce that the Queensland Premier accurately compared to the Keystone Cops.
The Commonwealth, predictably, announced within hours of the judgment that they would appeal. I'm glad to see that the Commonwealth has adopted a responsible attitude to this litigation, and took the time to thoroughly read the judgment, analyse its implications, and take legal advice on the prospects of an appeal, before they publicly committed to a course of action. I am, of course, being sarcastic. It would be irresponsible to waste public funds on an appeal to the Full Court simply because the government didn't like the first-instance decision, or because it made them look silly.
Interestingly, Spender J observed that had the Minister applied the correct test, it would have been open to him to cancel Haneef's visa on the basis of the evidence before him at the time. That is presumably no longer the case, the charges against Haneef having been dropped and the prosecution's case against him generally descending into a farce that the Queensland Premier accurately compared to the Keystone Cops.
The Commonwealth, predictably, announced within hours of the judgment that they would appeal. I'm glad to see that the Commonwealth has adopted a responsible attitude to this litigation, and took the time to thoroughly read the judgment, analyse its implications, and take legal advice on the prospects of an appeal, before they publicly committed to a course of action. I am, of course, being sarcastic. It would be irresponsible to waste public funds on an appeal to the Full Court simply because the government didn't like the first-instance decision, or because it made them look silly.
Yet, by announcing the appeal so soon after the judgment was given, the
Commonwealth has if nothing else created the perception of a knee-jerk
response to a decision that they just didn't like. I am reminded of
the old joke about a lawyer representing a particularly niggardly
client, who when the judgment was given, in the interests of economy,
telegraphed to the client only the words "justice prevailed"; the
client then responding "appeal".
Still, there could be something deeper at work here. The Howard government is extremely protective of their powers to arrest, detain, deport, and generally do as they please with anyone, not being an Australian citizen, who has the misfortune to come within the reach of the Australian government. They are also extremely adverse to judicial review of administrative decisions made in these cases: witness the Migration Legislation Amendment (Judicial Review) Act 2001, which inserted the following provision into the Migration Act 1958 in a fairly blatant attempt to oust the jurisdiction of Australian courts over certain immigration decisions:
The appeal should be an interesting one. Hopefully it will be heard in Brisbane, so that I can attend.
Still, there could be something deeper at work here. The Howard government is extremely protective of their powers to arrest, detain, deport, and generally do as they please with anyone, not being an Australian citizen, who has the misfortune to come within the reach of the Australian government. They are also extremely adverse to judicial review of administrative decisions made in these cases: witness the Migration Legislation Amendment (Judicial Review) Act 2001, which inserted the following provision into the Migration Act 1958 in a fairly blatant attempt to oust the jurisdiction of Australian courts over certain immigration decisions:
474 Decisions under Act are finalIn Plaintiff S157/2002 v Commonwealth [2003] HCA 2, the High Court held that administrative decisions tainted by jurisdictional error (such as the Haneef case) were not decisions made "under this Act" because they were "regarded, in law, as no decision at all." They also held that s 474 would be invalid if, on its proper construction, it attempted to oust the jurisdiction of the High Court under s 74(v) of the Constitution - although the Commonwealth conceded that point.(1) A privative clause decision:(a) is final and conclusive; and(2) In this section:
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). [emphasis added]
The appeal should be an interesting one. Hopefully it will be heard in Brisbane, so that I can attend.
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