KERRY O’BRIEN: Okay. The Federal Police were also given every opportunity to convince the magistrate hearing the case against Dr Haneef that he should be held in custody, and the magistrate rejected their arguments. Have federal police given you information that they haven’t given to the magistrate?
KEVIN ANDREWS: I wasn’t in the courts, I’m not a party to the information provided to the magistrate. But the test which I have to apply for myself is a simple test. And that is, is there evidence which is in this case provided by the Federal Police, and that evidence reveals or establishes in my mind a reasonable suspicion of association with people engaged in criminal conduct?
KERRY O’BRIEN: But Mr Andrews, I assume that if there was any strong evidence against Dr Haneef it would have been entered in the magistrate’s hearing. Surely the Federal Police haven’t withheld information from her, but have given it to you in such a way that you can act on it but not reveal it to anybody else?
KEVIN ANDREWS: These are parallel inquiries, if I can put it that way.
KERRY O’BRIEN: They’re disconnected surely?
KEVIN ANDREWS: No. But, the magistrate could not be properly asked to determine whether or not the visa should be revoked. Nor was I determining whether or not there should be bail granted. I have a set of strict criteria which I look at pursuant to the immigration law.
So there you go. What does it matter what the magistrate knew? The government wants this guy locked up. Whether the magistrate thinks Dr Haneef poses any danger to society is neither here nor there. She is, after all, only pursuing some trivial ‘parallel inquiry’ about some possible criminal offence. She can’t be expected to trouble her pretty head about really serious questions such as whether Dr Haneef might have an association with people involved in criminal conduct. For that sort of matter we need grown-ups like the Immigration Minister to gather the relevant information and make the decisions.
O’Brien asked most of the right questions, but I wish he’d asked how many precedents there are for an intervention like this. Certainly S.501 of the Migration Act allows the minister to cancel someone’s visa for “failing the character test”. There are several ways to fail the test, but the relevant ones are these two:
* When the person either has, or has had, an association with an individual, group or organisation suspected of having been involved in criminal conduct.
* When there is a significant risk that the person will engage in criminal conduct in Australia, harass, molest, intimidate or stalk another person in Australia, vilify a segment of the Australian community, or incite discord in the Australian community or in a segment of that community.
The recent case that comes to mind is that of Scott Parkin. The political parallels are striking if not surprising, with a pathetic acquiescence by Labor, and a principled stand by the Greens and Democrats.
But that was a case of the minister throwing someone out of the country. The Haneef case is different because there is no option for the visitor in question to leave the country; indeed, the government is actually using the legislation precisely to keep him in detention.
So, the question is: Has an Australian government ever done this before — namely, cancelled the visa of a non-resident who has been charged with a crime but granted bail, solely in order to over-rule the judge’s decision and keep them locked up?