Government loses Haneef appeal

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. [Haneef's second cousins]

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.