Dr Mohamed Haneef, an Indian citizen, was working at a hospital on Australia's Gold Coast when he was arrested on 2 July 2007. He was held for several days before being charged with giving "reckless support" to terrorism.
The charges against Dr Haneef were eventually dropped due to flawed evidence which linked him to the suspects involved in failed attacks in London and Glasgow on 30 June 2007. Dr Haneef is the cousin of Sabeel Ahmed - 1 of 3 people charged in the UK over the failed attacks. As the criminal case against Dr Haneef collapsed (the chief prosecutor reviewed the case and said a mistake had been made), Kevin Andrews, the Immigration Minister, cancelled his visa and kept him detained under Australian immigration laws.
Andrews revoked Dr Haneef's visa under s501 of the Migration Act 1958, stating that Dr Haneef had failed the 'character test' referred to under the section. It states that a person does not pass the character test if a person has had an association with somebody who has been involved in criminal conduct. The Minister stated that there was an 'association' between Dr Haneef and his cousins (one of which was Sabeel Ahmed). Dr Haneef appealed the decision to the Federal Court, which was overturned in his favor on 21 August 2007.
On appeal, Justice Spender held that the Minister had misconstrued the provisions of the character test and therefore failed to apply it correctly. Relying on precedent, Spender J concluded that an association by way of family ties is insufficient to constitute an 'association' within the meaning of the Act. Such an interpretation would permit a cancellation of any visa regardless of how innocent the association happened to be. Spender J stated that an 'association' must adversely reflect on the character of a visa holder. In other words, the association must go beyond a familial relationship. In Dr Haneef's case, it was not established that the association was anything more than familial.
Accordingly, the Minister's decision was held to be void and Dr Haneef's status as a lawful non-citizen was restored. The government plans to appeal.
This case highlights the importance of striking a delicate balance between national security on one hand and the preservation of human rights on the other. In the course of his judgment, Spender J noted that governmental organisations, such as the Australian Security Intelligence Organisation (ASIO), should not be exempt from judicial scrutiny under any circumstances, simply because they deal in matters of national security.