Haneef v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 21 August 2007
• Neutral Citation: [2007] FCA 1273

FEDERAL COURT OF AUSTRALIA

Haneef v Minister for Immigration and Citizenship [2007] FCA 1273

MIGRATION – Section 501 Migration Act – power of Minister to cancel visa – where Migration Act grants a discretion to cancel visa if a) Minister reasonably suspects visa holder does not pass character test and b) cancellation is in the national interest – where Migration Act provides character test not passed if visa holder 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 – where Minister cancelled applicant’s visa – where applicant sought review of decision pursuant to s 476A Migration Act

CONSTITUTIONAL LAW – Commonwealth Constitution – where jurisdiction of the same kind exercisable by the High Court under s 75(v) invested in the Federal Court by s 476A Migration Act – where applicant seeks Constitutional writs – Whether Minister acted ultra vires by misconstruing ‘association’, failing to take into account relevant considerations, taking irrelevant considerations into account or acting for an improper purpose – Whether applicant has or has had an ‘association’ with those involved in criminal conduct – Meaning of ‘association’ in s 501(6)(b) Migration Act – Where ‘association’ not met by any association with a person, group or organisation – Where Minister asked the wrong question and applied the wrong test to determine ‘association’ – Where Minister did not otherwise take irrelevant considerations into account or fail to take account of relevant considerations – Where no improper purpose established having regard to the scope and purpose of the Migration Act

CONSTITUTIONAL LAW – Constitutional writs – s 75(v) – Where Minister committed jurisdictional error and decision ultra vires – Writ of certiorari issued quashing decision – Prohibition and/or injunction issued – Declaration made declaring the status of the applicant as a lawful non-citizen

Migration Act 1958 (Cth), ss 82, 147, 150, 162, 189, 198, 200, 201, 474, 476A, 501, 501C, 501E, 501G and 503A

The Constitution, ss 75(v) and 76

The Constitution of the United States of America, Article III

Constitutional Reform Act 2005 (UK), s 1

Criminal Code Act 1995 (Cth), s 102.7

Copyright Act 1968 (Cth), ss 10 and 77(1)

Designs (Consequential Amendments) Act 2003 (Cth)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)

Hamdan v Ramsfeld 126 S.Ct. 2749 (2006), cited

Marbury v Madison 5 U.S. 137 (1803), cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, considered

Re Patterson; Ex parte Taylor (2001) 182 ALR 657, applied

Sunday Times v United Kingdom (1979) 2 EHRR 245, cited

Short v Poole Corporation [1926] Ch 66, cited

R v Zaphir [1978] Qd R 151, considered

Railway Express Agency Inc v New York 336 US 106 (1949), cited

Church of Scientology v Woodward (1982) 154 CLR25, considered

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, cited

Craig v State of South Australia (1995) CLR 163, considered

MIMA v Yusuf (2001) 206 CLR 323, considered

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359, considered

MIMIA v SGLB (2004) 207 ALR 12, cited

Collector of Customs v Pozzolanic (1993) 43 FCR 280, considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Godley v MIMIA (2004) ALD 411, applied

MIMIA v Godley (2005) 141 FCR 552, considered

MIMA v Wai Kuen Chan [2001] FCA 1552, not followed

Chan v MIMA [2001] AATA 487, applied

Burge v Swarbrick (2007) 234 ALR 204, considered

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied

Concrete Pty Ltd v Parramatta Design and Developments Ltd (2006) 231 ALR 663, considered

Vakauta v Kelly (1989) 87 ALR 633, considered

Akpata v MIMIA [2004] FCAFC 65, considered

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, considered

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, considered

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, considered

Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 314, cited

Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87, considered

Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467, considered

Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, considered

Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1988) 81 ALR 288, distinguished

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517, considered

Sydney Municipal Council v Campbell [1925] AC 338, cited

Industrial Equity Limited v Deputy Commissioner of Taxation (1990) 170 CLR 649, cited

Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543, considered

Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373, cited

Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40, considered

Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152, considered

Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336, cited

DR MOHAMED HANEEF v MINISTER FOR IMMIGRATION AND CITIZENSHIP

QUD208 OF 2007

SPENDER J

21 august 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD208 OF 2007

BETWEEN:	DR MOHAMED HANEEF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	21 AUGUST 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. An order in the nature of certiorari quashing the Minister for Immigration and Citizenship’s decision made on 16 July 2007 to cancel the applicant’s Subclass 457 Business (Long Stay) (Class UC) visa.

2. An order in the nature of a prohibition and/or an injunction restraining the Minister from acting upon the cancellation of the applicant’s visa.

3. That the respondent pay the applicant’s costs of and incidental to the proceedings, to be taxed if not agreed.

THE COURT DECLARES THAT:

4. When the applicant departed Australia on 27 July 2007, his immigration status was that of a lawful non-citizen.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD208 OF 2007

BETWEEN:	DR MOHAMED HANEEF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	SPENDER J
DATE:	21 august 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application made pursuant to s 476A of the Migration Act 1958 (Cth) (the Migration Act).

2 On 16 July 2007, the Minister for Immigration and Citizenship (“the Minister” or “the respondent”) cancelled Dr Mohamed Haneef’s (the applicant) Subclass 457 Business (Long Stay (Class UC) visa.

3 By an application filed on 18 July 2007, the applicant seeks:

1. An order in the nature of certiorari quashing the Respondent’s decision made on 16 July 2007 to cancel the Applicant’s Subclass 457 Business (Long Stay) (Class UC) visa.

2. An order in the nature of a prohibition and/or an injunction restraining the Respondent from acting upon the cancellation of the Applicant’s visa.

4 At the hearing, the applicant received leave, which was not opposed by the Minister, to amend the application to also seek:

3. A declaration that when the Applicant departed Australia on 27 July 2007, his immigration status was that of a lawful non-citizen.

Jurisdiction of the Court

5 Section 476A of the Migration Act relevantly provides:

(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

…

(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

…

(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

6 Section 75(v) of the Constitution provides:

75 Original jurisdiction of High Court

In all matters

…

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

7 The jurisdiction which the Federal Court is asked to exercise in the present proceedings is therefore the same as the jurisdiction of the High Court under s 75(v) of the Constitution.

8 Of this jurisdiction, David Jackson QC has commented in “Development of judicial review in Australia over the last 10 Years: The growth of constitutional writs” (2004) 12 AJ Admin L 22 at 22:

Section 75(v) is the only provision of the Constitution which provides expressly for judicial review of officers of the Commonwealth, although s 75(iii) goes close. Three features should be noted immediately about s 75(v):

(a) it is part of the High Court’s original, rather than appellate, jurisdiction;

(b) the grounds on which a constitutional writ may be sought may, but need not be, constitutional – the case may simply be one of statutory ultra vires;

(c) the High Court’s jurisdiction, being conferred by the Constitution itself, cannot be taken away by legislation.

9 The importance of s 75(v) of the Constitution (which confers jurisdiction on the High Court, which jurisdiction is the same as is conferred on the Federal Court by s 476A(2) of the Migration Act) cannot be over-estimated. That provision is a primary constitutional...