Haneef failed visa 'risk test'
The Brisbane Times
November 16, 2007 – 4:32AM
Immigration Minister Kevin Andrews was “damned if he did and damned if he didn't” in his controversial decision to cancel the visa of one-time terror suspect Mohamed Haneef, a top government lawyer has argued.
The full bench of the Federal Court in Brisbane is expected to decide in the coming days whether to reinstate the Indian doctor's immigration status.
Mr Andrews used his ministerial powers to have him booted out of the country in July, citing his “association” with two male relatives linked to a UK terrorist plot.
Dr Haneef, who is now living in Bangalore, India, won the first round of a legal battle to have his 457 work visa restored in August, when Federal Court Justice Jeffrey Spender ruled Mr Andrews had applied the wrong legal test when cancelling Dr Haneef's visa on the grounds he was of bad character.
Despite the victory, the former Gold Coast hospital registrar has been prevented from a possible return to Australia as the government launches an appeal.
Solicitor General David Bennett, acting for Mr Andrews, told Federal Court Chief Justice Michael Black and bench colleagues Robert French and Mark Weinberg at a hearing yesterday there had been nothing improper in the Minister's decision to apply the character test to cancel Dr Haneef's visa, describing the legislative powers as “a safety test, a risk test” designed to protect the national interest.
He also dismissed suggestions by Dr Haneef's lawyers and the media that the timing of the Minister's decision – just hours after a Brisbane Magistrate granted the doctor bail on terrorism charges – was a sinister maneuver to subvert the justice system.
Terror charges were later dropped due to lack of evidence.
“Had the minister made the decision before (the bail hearing) … it might well have been said that he was seeking to foreclose the Magistrate's decision or put pressure on the Magistrate,” Mr Bennett told the court.
“It was eminently proper for the Minister to wait for the Magistrate's decision.
“He's damned if he does and damned if he doesn't.”
But Dr Haneef's barrister, Stephen Keim SC, said it didn't make sense for Mr Andrews to cancel the visa – and effectively guarantee detention and deportation – before criminal charges could be dealt with through the courts.
“If he intended that Dr Haneef face trial then he could not possibly have intended to have him removed from the country,” Mr Keim said.
“His actions would defeat the purpose of the criminal justice system.”
The judges at times appeared critical of aspects of the Migration Act, described by one as “draconian”, as well as the government's character test and the use of the national interest to justify all manner of crimes.
“It's about as long as a piece of string,” Justice Robert French said of the concept of the national interest.
The judges have reserved their decision.