RIGHTS-AUSTRALIA: Indian Doctor’s Case Challenges Migration Laws

By Stephen de Tarczynski Reprint | | Print |

Stephen de Tarczynski

MELBOURNE, Jan 2 2008 (IPS) - The decision by Australia’s federal court to uphold an earlier ruling reinstating the work visa of terror suspect Mohammed Haneef appears to have signalled the end of the Indian doctor’s involvement and possible changes to the country’s immigration laws.

”As far as the law enforcement side and then the federal government’s intervention, I don’t think that there’s really any doubt that it was appalling,” says Waleed Aly, a lecturer in politics at Monash University, describing the handling of the Haneef case to IPS.

The full bench of the apex court handed down its decision on Dec.21 after former immigration minister, Kevin Andrews, had appealed August’s verdict by Justice Jeffrey Spender to reinstate Mohammed Haneef’s work visa.

Spender found that Andrews – who had cancelled Haneef’s visa on character grounds – had used the wrong criteria to judge Haneef’s character.

Haneef, who had been working at Queensland’s Gold Coast hospital, was arrested on Jul. 2 while trying to board a Singapore Airlines flight out of Australia.

The Indian national was charged with recklessly providing support to a terrorist organisation in connection with the attempted car bombings in London and Glasgow in late June, purportedly due to Haneef leaving his mobile telephone SIM (subscriber identification module) card with one of the accused in Britain.

The case against Haneef was controversial from the beginning.

Prosecutors had initially told the court that Haneef’s SIM card was found in the vehicle that smashed into a Glasgow airport building in a failed suicide bombing. It was subsequently revealed that the SIM card was discovered with the arrest in Liverpool of Haneef’s second cousin and brother of one of the Glasgow attackers, Sabeel Ahmed.

Haneef was released after almost four weeks in custody when the charge was dropped following a review by Damian Bugg, director of public prosecutions. Bugg cited mistakes made by the Australian federal police (AFP) – such as the location of the SIM card and where Haneef had lived while in the United Kingdom – in its handling of the case.

Prominent human rights lawyer, Julian Burnside, told IPS that he was concerned with “the way in which Dr Haneef was publicly vilified’’. “He was just trashed in the public arena when the story first broke.’’

But Burnside was more concerned regarding Kevin Andrews’ cancellation of Haneef’s work visa. Burnside says the visa was cancelled “ostensibly on the character grounds, but in circumstances that I think made it fairly clear that he was doing it not in order to deport Dr Haneef, but to keep him in detention once he was given bail’’.

In November, The Australian newspaper published details of an e-mail – after it had been obtained by Haneef’s lawyer under Freedom of Information laws – sent from the AFP to an advisor to Andrews which indicates an apparent collusion between police and an Immigration Department official to detain Haneef in the event that he was granted bail.

The e-mail was sent between AFP members on Jul. 14 and then forwarded to Andrews’ advisor, Peter White, on Monday, Jul. 16, and states: “Contingencies for containing Mr Haneef and detaining him under the Migration Act, if it is the case he is granted bail on Monday, are in place as per arrangements today.”

On Jul.16, magistrate Jacqui Payne granted bail to the Indian doctor. Later that day Andrews revoked Haneef’s visa under the Migration Act, with the effect that he remained in custody. Haneef was released on July 27 when the charge against him was dropped.

Burnside describes Andrews’ intervention as “an outrageous misuse of the power to cancel a visa’’. He says that the power to cancel a visa was given in order for the government to be able to swiftly remove a person from Australia if that person was deemed to pose an immediate threat to the country.

“But, of course, they didn’t cancel it in order to send him out of Australia but in order to keep him here,” Burnside told IPS, adding that Andrews’ actions had a “tendency” to undermine Payne’s decision to grant bail to Haneef.

Waleed Aly, who describes the affair as a “contemptible episode”, regards the involvement of the previous government as “an abuse of power”.

“It’s difficult to think of one redeeming feature in the government’s conduct on the issue,” says Aly, who is also critical of the AFP’s role.

Aly says that while the reinstatement of Haneef’s work visa can be regarded as a victory for civil liberties in Australia “to the extent that it is a check on unlimited governmental power,” it is important to realise that the ruling looked only at a particular section of the Migration Act.

“It doesn’t really have anything to do with counter-terrorism legislation,” he says.

“I don’t think it’s exactly winding back the erosion of civil liberties that we’ve seen. I mean, that remains firmly in place,” says Aly.

Burnside argues that Spender’s original judgement and the subsequent rejection of Andrews’ appeal is a small win for civil rights.

“It means that the government, when they use the character test to cancel the visa, they have to apply the test in a way that reflects on the person’s character rather than being a simple, neutral association with someone,” he says.

But while the reinstatement of his work visa may signal an end to the personal involvement of Haneef in the affair – he reportedly misses his job at the hospital but says that in order to return he requires a guarantee of safety from Australian authorities – there appears to be a likelihood of further developments.

While in opposition, Prime Minister Kevin Rudd announced that he would push for a full judicial enquiry into the treatment of Haneef.

Furthermore, current minister for immigration and citizenship, Chris Evans, says that subject to the advice he receives from the solicitor-general, he “would consider a possible appeal to the High Court and/or the need for changes to the Migration Act’’.