Minister relying on weak case: lawyer
The Sydney Morning Herald
August 23, 2007
THE legal precedent used by the Immigration Minister, Kevin Andrews, to appeal the Federal Court decision to restore Dr Mohamed Haneef's visa was “particularly weak”, according to a barrister involved with the original case.
The minister will continue to rely on that precedent in his appeal to the full bench of the Federal Court, claiming his broad interpretation of association as grounds for failing the character test was the intent of the Parliament.
The precedent on association was set in a 2001 Federal Court decision by Justice Emmett in Chan vs. the Immigration Minister. The case centred on the relationship of Wai Kuen Chan to her former husband, a Triad member, and whether association with his criminal activities, by way of their former relationship, meant she failed the character test.
The Administrative Appeals Tribunal ruled in Ms Chan's favour, saying the association had to be “relevant association”.
The Minister won on appeal to the Federal Court when Justice Emmett ruled “neither knowledge of associate's criminality or guilty participation is necessary for a person to fail the character test”.
In overturning the visa cancellation on Tuesday, Justice Jeffrey Spender said the minister did have a case for cancellation on character grounds, in that Dr Haneef had faced a terrorism related charge and had been a person of interest to the British police, but not on the grounds of association. The charge has now been dropped.
Barrister Nicholas Poynder, who represented Ms Chan at the Administrative Appeals Tribunal, said the minister took a broad view of association but there needed to be a distinction between guilty and innocent association.
Mr Poynder described the Justice Emmett decision as “particularly weak” and “ripe to be overturned”.
Mr Andrews has confirmed his decision was based on Justice Emmett's ruling in the Chan case. “I believe Justice Emmett's interpretation is proper and what the Parliament intended,” Mr Andrews said, referring to amendments to the Migration Act.
Democrats Senator Andrew Bartlett, who opposed the 1998 Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill, said “it was stretching it” to say Justice Emmett's ruling was the intent of the Parliament.