The decision by immigration minister Kevin Andrews to throw 27-year-old Indian doctor Mohamed Haneef into immigration detention — despite a Queensland court granting Haneef bail on charges of "recklessly" (meaning not deliberately) supporting terrorism — has further exposed the Howard government's utter disregard for civil rights and the judicial system, and the dangers inherent in its "anti-terror" laws.
Haneef, an Indian citizen working as a medical registrar at the Gold Coast Hospital, was arrested at Brisbane Airport on July 2 and detained without charge. On July 14 he was finally charged with "recklessly providing support to a terrorist organisation" in Britain.
On July 16, bail was granted to Haneef on the basis that he provide a $10,000 surety and report to police three times a week. While there is a presumption against bail under the "anti-terror" laws unless exceptional circumstances can be shown, magistrate Jacqui Payne decided that there were indeed exceptional circumstances — an extremely weak prosecution case.
The only "evidence" known to link Haneef to any alleged crime was that his cousin, Sabeel Ahmed, has been charged in Britain with withholding information that could have prevented a terrorist act and that Haneef gave Ahmed a mobile phone SIM card last September — because the card had unused credit — before Haneef left Britain to work in Australia.
Payne noted that no evidence had been presented to her that linked the SIM card to any actual or planned terrorist act.
However, before Haneef could be released on bail, Andrews revoked his skilled worker visa. Andrews claimed that Haneef had failed the "character test" in the migration act. This meant that Haneef was in Australia unlawfully and thus could be placed in immigration detention.
While immigration detention is supposedly a prelude to deportation, the Australian Federal Police (AFP) issued a criminal justice certificate against Haneef. As a result, he cannot be removed from Australia until the conclusion of his trial, which could take years. The government thus used immigration law to achieve what it failed to do through the courts.
Haneef's lawyers have decided not to post the $10,000 surety to stop him being removed to Sydney's Villawood immigration detention centre, where it would be harder for his lawyers to have access to him. Haneef is currently being held in solitary confinement in Brisbane's Wolston Correctional Centre.
This is not the first time that Australia's immigration laws have been used by the Howard government to obtain an outcome through administrative processes that could not be obtained through the courts. The same stunt was used in relation to the US peace activist Scott Parkin who had his visa revoked by then immigration minister Philip Ruddock in September 2005.
"We are very concerned at the minister's actions. It is as if the commonwealth put everything they had before the umpire and then, not liking her decision, took the game into their own hands", Haneef's solicitor, Peter Russo, told reporters on July 16.
These views were supported by other prominent lawyers. Greg Barns, a former adviser to the Howard government, said: "This is a minister saying 'I don't care what the courts say … I've made an assessment that these people are guilty.' This is a very, very dangerous road to head down."
Cameron Murphy, secretary of the Australian Council for Civil Liberties, said of Haneef's situation: "Because the government doesn't like the decision of the court to grant bail, they just rely on a technicality of the immigration legislation to lock him up. The reason we have an independent court system is so these incredibly important decisions are made for the right reasons, and aren't subject to political interference. It is not appropriate for the government to just keep him incarcerated because they don't like the decision of the magistrates court."
In the face of such criticism, government and AFP spokespeople have used the media to imply Haneef was linked to a terrorist act — the June 30 attack on the entrance hall of Glasgow Airport by two men driving a burning Jeep Cherokee. It was alleged that the SIM card Haneef gave Ahmed was found in or near the Jeep.
In response to this claim Haneef's barrister, Stephen Keim, released to the media the 142-page transcript of the first AFP interrogation of Haneef. This was initially published on the Australian newspaper's website, but since removed following government pressure. It can now be accessed on the website of the Delhi-based Hindu newspaper.
What the transcript clearly revealed is that much of the "evidence" presented to Payne by the AFP was inaccurate. The AFP had claimed that Haneef had said he shared an address with his cousins Sabeel and Kafeel Ahmed in Liverpool, England. Kafeel Ahmed was in the burning Jeep that crashed into the Glasgow Airport terminal, and has bee hospitalised with severe burns.
In the transcript, Haneef is very explicit that he never shared an address with his cousins.
The AFP also alleged that Haneef had provided them with no explanation for his attempting to travel to Bangalore on a one-way air ticket. In the transcript, Haneef told the AFP, in great detail, about how his father-in-law had bought the ticket for him in Bangalore so that he could visit his wife and new-born daughter.
The AFP referred to a recent online conversation between Haneef and Sabeel Ahmed, implying it was connected to terrorism, when it was actually about the birth of Haneef's daughter.
On July 20, the ABC revealed that the centrepiece of the AFP's "evidence" against Haneef — the SIM card allegedly found in or near the burning Jeep at Glasgow Airport — had in fact been found by British police at Sabeel Ahmed's residence in Liverpool, 200 kilometres from Glasgow, eight hours after the attack.
In India, there has been widespread condemnation by politicians and the media of Australia's persecution of Haneef. His wife, Firdous Arshiya, who has been denied a visa to Australia, has been outspoken on the case. In a July 17 interview with the Melbourne Herald Sun she said: "The entire Australian government are terrorists."
While this latest abuse of "anti-terror" and immigration laws has been condemned by the Greens, the Democrats and the Socialist Alliance, the federal ALP has steadfastly stood by the Howard government.
Labor shadow immigration minister Tony Burke was quoted in the July 16 Brisbane Courier Mail saying: "The minister has obligations under the migration act and based upon what's publicly available he's exercised those obligations appropriately."
Haneef's lawyers are appealing the visa revocation in the Federal Court. At a July 18 directions hearing, that ruled that the matter would be heard on August 8, Justice Jeffery Spender said that he was astounded by the government lawyers' arguments and commented that he too would have failed the "character test".
Perhaps concerned that magistrates and judges are not being sufficiently cooperative in the government frame-up of Haneef, federal Attorney-General Philip Ruddock wrote an opnion piece in the July 17 Australian attacking "judicial activism".
Implying that legal criticism can somehow be equated with supporting terrorism, Ruddock wrote: "Make no mistake, many of the lawyers and academics calling for change in this area [relating to judicial appointments] are the same lawyers and academics who attack the government for its steadfast protection of Australia's borders, and for its strong stance on terrorism."