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Character Test Visa Cancellation: Federal Court Reasons

Matter: Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203

This was an appeal of an order by a single judge to set aside a decision of the Minister for Immigration & Citizenship (the Appellant/Minister) regarding the cancellation of a visa issued to a Dr Haneef (the Respondent) permitting him to come to Australia and work as a medical practitioner.

On appeal, the Full Court considered the scope of the so called 'character test' and whether the Minister had correctly applied the test.

The respondent, who was working as a doctor at a hospital, was arrested by the Australian Federal Police on 2 July 2007 and later charged with having intentionally provided resources, namely a SIM card, to a terrorist organisation consisting of persons including two of the respondent's second cousins.

The respondent's cousins, had been arrested earlier under the suspicion of attempted terrorist bombings in London and Glasgow. The charges against the respondent were later dropped. This is not a matter our firm handled.

Upon grant of the respondent's bail, the Minister immediately cancelled the respondent's visa under s501(3) of the Migration Act 1958 (Cth) (the Migration Act) on grounds that the respondent did not pass the 'character test' and that the Minister was satisfied that the cancellation was of national interest.

Under s501(3), a Minister has the power to cancel a visa where '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 the respondent had not passed the character test due to his 'association' with his cousins.

The Full Court upheld the decision, that the Minister had misinterpreted the character test and applied a test that was too broad, and which could encompass links that had no bearing on a visa-holder's character.

The Court held that the interpretation of 'association' should be used to reflect Parliament's intention when it enacted the character test.

The Court 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 dismissed the Minister's appeal.

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