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The Dr Mohamed Haneef case

By Dr George Venturini  

The Dr. Mohamed Haneef case

On 1 July 2007 Scotland’s largest airport in Glasgow was shut down after a four-wheel-drive was driven into its main entrance before bursting into flames. British Prime Minister Gordon Brown and Scotland’s First Minister Alex Salmond confirmed that the attack was being treated as a ‘terrorist incident.’ Two men were arrested immediately after the botched attack. One of the men was Mr. Kafeel Ahmed, the other Mr. Sabeel Ahmed. They both are the second cousins once removed of Dr. Mohamed Haneef. Kafeel Ahmed – who was arrested immediately after the botched attack on Glasgow airport – died on 3 August 2007 in a Scotland hospital from burns he suffered in the attack.

On 2 July 2007, Dr. Haneef was arrested at Brisbane Airport, Brisbane, Australia on suspicion of terror-related activities. Until then the Indian-born doctor had been working as a registrar at the Gold Coast University Hospital in Southport, Queensland.

At the time of his arrest, Dr. Haneef was attempting to make a one-way trip to India. This led Australian authorities to believe Haneef’s attempted exit from Australia on 2 July was directly linked to the arrest of his cousin Kafeel Ahmed. The arresting authority discounted the possibility that Dr. Haneef was returning to see his six-day-old daughter, who had neonatal jaundice, and wife who had given birth to her first child by emergency caesarean section.

Following his arrest, Dr. Haneef’s family claimed that any link between him and the terrorists was only tenuous, and just a case of guilt by association, that he was not involved in the plot, and that he was returning to India for the already mentioned reason. Dr. Haneef’s father-in-law said that the doctor intended to take his wife and daughter back to Australia after getting the infant a passport, and – for that reason only – he was travelling without a return ticket.

The Australian Federal Police did not believe Dr. Haneef, despite the detailed explanation he had given while answering questions. And perhaps at this point, it may be said that Dr. Haneef is a practising Muslim.

Dr. Haneef told police that, as he did not have sufficient funds in his Australian bank account, his father-in-law had booked and paid for the one-way ticket with an understanding that “when I go there we can arrange for the coming back ticket. Because I just got 7 days’ leave approved.”

On 7 July 2007, a Brisbane magistrate granted the Australian Federal Police an additional 48 hours to detain Dr. Haneef.

A week later, on 14 July, and after eleven days in detention, Dr. Haneef could have been charged with recklessly providing resources to a terrorist organisation, more specifically recklessly supplying a mobile phone sim card to a terrorist organisation – maximum penalty 25 years in prison.

Australian authorities charged Haneef under Section 102.7(2) of the Criminal Code Act 1995. An offence under this section of the Act carries a maximum penalty of 15 years in prison. The basis of the charge was the allegation that he had intentionally provided support to an organisation, deemed to be a terrorist organisation under the terms of the Act, whilst being reckless as to whether it was a terrorist organisation. The allegation centred on the gift of his own sim card to his cousin, Sabeel Ahmed.

Haneef’s links with his cousins were cited by police as a key factor in their case, and a Commonwealth prosecutor told magistrate Jacqui Payne.

Mick Kelty, who was the Commissioner of the Australian Federal Police from 2001 to 2009, revealed that Scotland Yard had initially told Australian Federal Police investigators that the sim card was found in the jeep used in the Glasgow airport attack.

A review by Damian John Bugg, Q.C., a barrister, who was Commonwealth Director of Public Prosecutions between 1999 and 2007, revealed the allegations connected to the sim card use as “error of fact.”

Meanwhile, on 16 July 2007, a Brisbane magistrate granted bail to Dr. Haneef. He was ordered to provide a surety of $10,000 and report to the Southport police station three times a week.

On the same day, shortly after Dr. Haneef was granted bail, the Howard Government’ Immigration Minister Kevin Andrews cancelled the doctor’s visa on the grounds that he had failed ‘the character test’. He said that Dr. Haneef would be taken into immigration detention.

Mr. Andrews said that the Australian Federal Police would have issued a ‘criminal justice certificate’, the effect of which was that Dr. Haneef would have remained in immigration detention while legal proceedings were afoot. Mr. Andrews said he had revoked Dr. Haneef’s 457 temporary skills visa on character grounds, because he “reasonably suspected” that Dr. Haneef had an association with people involved in terrorism. He further said “I’m satisfied the cancellation is in the national interest. I have a responsibility and a duty as minister under the Act to turn my mind to the question of whether Haneef passes the character test.” This decision was criticised by the chairman of the Australian Bar Association, Stephen Estcourt.

The decision to revoke Haneef’s visa was given in principle (?), support by the Shadow Minister of Immigration, Tony Burke.

After the decision by Immigration Minister to cancel his work visa, Dr. Haneef chose not to post bail, opting instead to remain in police custody until his appeal against the visa cancellation decision could be heard.

On 22 July 2007, the Queensland government revealed that Dr. Haneef was being treated ‘as a terrorist’ while detained in gaol and subject to special conditions, including solitary confinement for 23 hours a day. Queensland Police and Corrective Services Minister said that the conditions of his detention included no contact with other inmates, meaning that Dr. Haneef would be alone in a cell for all but one hour a day, when he would be allowed to exercise.

On 18 July 2007 Mr. Stephen Keim, S.C., the barrister representing Dr. Haneef, released the transcript of a police interview with the accused doctor to The Australian newspaper. The Howard Government’s Attorney-General Philip Ruddock and A.F.P. Commissioner Mick Keelty raised concerns that the leak undermined the case against Dr. Haneef.

On 22 July 2007, some of Murdoch’s papers reported unsubstantiated claims from unnamed law enforcement sources that the A.F.P. was investigating Dr. Haneef’s alleged involvement in a plot to blow up a Gold Coast skyscraper. The reports also alleged that Dr. Haneef may have been one of a number of people who had expressed interest in the operations of planes at premises in Queensland. The Australian Federal Police commissioner Mick Keelty was forced to take the extraordinary step of publicly denying any substance to these claims.

Dr. Haneef was released when the Director of Public Prosecutions withdrew its charge on 27 July 2007. The Public Prosecutor said that there would be “no reasonable prospect of a conviction of Haneef being secured.” He told the court that prosecutors had made two mistakes at a bail hearing on 14 July.

One was their claim that Dr. Haneef’s sim card had been found in a burning jeep at Glasgow Airport when, in fact, it had been found in the possession of the brother of a terrorism suspect in Liverpool. The second error was their accusation that Dr. Haneef had once lived with some of the English bombing suspects, when in fact he had not. The Labor Opposition called for an external review of the handling of the Haneef case by the Office of the Commonwealth Director of Public Prosecutions.

On 27 July 2007 following the abandonment of the case by the Director of Public Prosecutions, the Immigration Minister held a press conference to announce that he had requested that the Commonwealth Solicitor General provide him with advice about whether his decision to cancel Dr. Haneef’s visa should be reviewed, given the collapse of the prosecution’s case. Pending the receipt of that advice, Minister Kevin Andrews made a Residence Determination under s.197AB of the Migration Act 1958 to allow Dr. Haneef to be detained in the community, although with some restrictions on his movements and a requirement to report to authorities daily.

On 28 July 2007, the Minister announced that the Solicitor General had completed his review of the Minister’s decision and formed the conclusion that Dr. Haneef’s appeal would fail. As a result, the Minister declined to reverse his decision and reaffirmed the intention of the Commonwealth to resist the appeal in the Federal Court.

The Minister stated that: “After taking advice, including from the Australian Federal Police, I have indicated that the Commonwealth has no objection to Haneef leaving Australia. Indeed the effect of the visa cancellation is that he should remove himself, he should depart Australia in any event.”

A day later, the minister took advantage of the circumstance – as he put it – that Dr. Haneef had acted in accordance with his own advice as evidence that ‘heightens, rather than lessens’ his suspicions about the correctness of his own as yet unpublished assessment of Haneef’s alleged bad character.

However, Dr. Haneef’s passport was returned and he departed Australia voluntarily on 29 July 2007. Immigration authorities prevented him from holding a press conference prior to his departure.

On 31 July 2007, Mr. Andrews released further details of the review by the Solicitor General which – the minister so claimed – affirmed the minister’s decision to revoke Dr. Haneef’s visa.

Mr. Andrews claimed to have cancelled Dr. Haneef’s visa based in part on an online chat that Haneef had with his brother prior to attempting to leave Australia.

Dr. Haneef’s passport had been returned to him, but his work visa was not returned.

On 21 August 2007, a Federal Court sitting in Brisbane ruled that Dr. Haneef’s visa should be reinstated. The court ruled that Immigration Minister Kevin Andrews made a jurisdictional error when he cancelled Dr. Haneef’s visa on character grounds. Mr. Andrews announced that he would lodge an official appeal.

On 29 August 2007, a lawyer representing Dr. Haneef said his client would be seeking compensation after the A.F.P. officially dropped the doctor as a ‘person of interest’.

On 21 December 2007, the Full Bench of the Federal Court upheld a Brisbane judge’s earlier decision to reinstate former Dr. Haneef’s work visa. The Rudd Government Immigration Minister Chris Evans said he would not block the reinstatement of the visa.

On 13 March 2008, the Australian Government launched a judicial inquiry into the handling of the case against Dr. Haneef. The review was to be carried out by former New South Wales Supreme Court Justice John Clarke, Q.C.

The Attorney-General labelled the Clarke inquiry a “judicial inquiry.” Dr. Haneef’s lawyer, Stephen Keim S.C. called it a “virtual inquiry.” The president of the Australian Council for Civil Liberties, Terry O’Gorman, called it a “Mickey Mouse inquiry.”

The report was presented to the government on 21 November 2008, and made public about 23 December 2008.

The report concluded: 1) that the evidence against Dr. Mohamed Haneef was “completely deficient”; 2) that the Australian Security Intelligence Organisation had reported to the government two days after Dr. Haneef’s arrest that there was no information that he was guilty of anything; 3) that Commander Ramzi Jabbour, manager, counter-terrorism (domestic), had lost objectivity and was “unable to see that the evidence he regarded as highly incriminating in fact amounted to very little”; and 4) that Police officers Neil Thompson and Adam Simms, who interrogated Dr. Haneef, refused to charge him, so Jabbour did so himself.

Then A.F.P. commissioner Mick Keelty was barely mentioned in the report.

During the 2008 inquiry into the Haneef affair, documents revealed that former Prime Minister John Howard became involved in the case within 48 hours of Dr. Haneef’s arrest. Lawyers in the case have suggested that the early involvement of the Prime Minister means that John Howard colluded with Immigration Minister Kevin Andrews to politicise the issue. (C. Hammer, ‘Papers link Howard’s department to Haneef’, The (Melbourne) Age, 18 June 2008).

Prime Minister Howard has maintained that he had no involvement with the handling of the Haneef case.

There is something Nixonian about Prime Minister John Winston Howard: he could lie with conviction, almost always to be ‘believed’ by the plebes, subjects and helots.

On 29 July 2008, the Australian Security Intelligence Organisation said that it did not believe Dr. Haneef was a threat to national security. The agency told the inquiry into the handling of the Haneef case it was not involved the decision to arrest, charge, prosecute or release Dr. Haneef, nor cancel his Australian visa.

On 29 August 2008, the A.F.P. dropped its case against Dr. Haneef, saying that there was insufficient evidence to charge Dr. Haneef with any criminal offence.

On 1 September 2008 the former Federal Attorney-General Philip Ruddock told the inquiry he had no problems with the way the A.F.P. conducted their investigation into Dr. Haneef.

On 8 September 2008, the A.F.P. Commissioner Mick Keelty said that he cooperated fully with the inquiry.

On 15 October 2008, the former Immigration Minister Kevin Andrews appeared before the inquiry.

On 16 October 2008  Dr. Haneef’s lawyers said that the A.F.P. had received advice that there was insufficient evidence to lay a charge against the doctor. They cited documents obtained under Freedom of Information legislation. (‘Not one shred of evidence’, smh.com.au, 25 October 2008).

In December 2008 the Clarke Inquiry into the handling of the case against Dr. Haneef concluded that he should never have been arrested in the first place. The inquiry found that former Immigration Minister Kevin Andrews did not reflect deeply enough on his department’s advice, but – it said – Mr. Andrews’ decision was not politically motivated and he did not act improperly. (‘Mohamed Haneef Case’ – Law Council of Australia).

On 1 July 2010, Dr. Haneef’s legal team lodged a defamation and wrongful detention action against former Immigration Minister Kevin Andrews. The lawyers said that they lodged proceedings in case compensation negotiations with the government did not produce a satisfactory outcome. (‘The Haneef affair: From arrest to inquiry’ – ABC News. 2 July 2010).

In December 2010, Dr. Haneef returned to Australia to seek damages for loss of income, interruption of his professional work, and emotional distress. He was awarded compensation from the Australian Government. The amount of compensation awarded was not disclosed, but was described by reliable sources as ‘substantial’. (‘Muhamed Haneef’ – Wikipedia).

Continued Saturday – The spying on Timor-Leste case … et cetera (part 1)

Previous instalment – The Tampa, Hicks, and Other Cases

Dr. Venturino Giorgio Venturini devoted some seventy years to study, practice, teach, write and administer law at different places in four continents. He may be reached at George.venturini@bigpond.com.au.

 

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7 comments

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  1. Lambchop Simnel

    Well. well at this of all times…

    Yes the month democracy in Australia expired.

    Does any forget that few weeks of shame and the shock at the emergence of the new authoritarian state arising out of the ashes of the democracy those of us old enough remembered?

    All that monstrous persecution by zealots of some little guy who was basically a case of mistaken identity, when they thought they had found the excuse to impose their Nuremberg Laws and on such a monstrous stuff up.

    If anything should have woken Australians up as to the nature of Howard and Bush it was this incident, part of the universalisation of asylum seeker policy, I suppose they did for a bit because it was the sort of thing that led to the down fall of Howard, but after Rudd bailed us out of the GFC, the pubic went back to sleep.

  2. Roswell

    What a disgraceful episode this was.

  3. Glenn Barry

    We are still suffering the horrible consequences of JW hoWARd

  4. Phil

    Don’t forget this was a little out of their area of expertise.1. There were no lost dogs involved. 2. No push bikes from any of the local schools were reported stolen. 3. Tiddles the cat was rescued from a rather tall gumtree a week before Haneef left Australia. Was that the police that rescued Tiddles? Oh that’s right it was the local fire brigade. Thank God for the fire brigade, a win win for Tiddles, he wasn’t traumatized by having his anus probed looking for hidden drugs and he was reunited with his loving family. The End.

  5. Florence Howarth

    A great example along with with a couple of others at the time why the separation of powers is important. Politicians make the laws. That is where their involvement ends. The judiciary decides whether they comply with the constitution. The police enforce the laws. Courts convict or clears. The voter at the next election decides whether they accept them or not.

    At all times we are innocence until the courts say we are guilty.

  6. Brozza

    His crime – guilt by association, plus, being non-white and Muslim.

  7. Pingback: The spying on Timor-Leste case ... et cetera (part 1) - » The Australian Independent Media Network

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