Court clears way for Haneef's return to Australia

Updated at 12.55 PM

MELBOURNE: In a major embarrassment to Australian government, a Brisbane court on Tuesday quashed its controversial decision to cancel Indian doctor Mohammed Haneef's work visa on character grounds after terror charges against him over the botched UK terror plot were dropped.

Immigration Minister Kevin Andrews "fell into jurisdictional error" by applying the wrong test when determining whether to cancel the visa of the 27-year-old medico from Bangalore, federal court judge Jeff Spender said.

However, Haneef's return would be delayed as Justice Spender granted a 21-day stay on his decision to allow the Minister to appeal against the ruling.

Issuing an injunction restraining Andrews from acting upon the cancellation of the work visa, the judge ordered the government to pay Haneef's legal expenses.

"The Minister cancelled the visa by adopting a wrong criterion. He fell into jurisdictional error by applying the wrong test," Justice Spender said.

The judge said that had the Minister relied upon information that Haneef was considered a person of interest by UK counter-terrorism police and had been formally charged with providing resources to a terrorist organisation, the Minister would have been justified in cancelling his visa.

"These matters would have permitted the Minister to conclude that the association between Haneef and the Ahmed brothers went beyond a purely familial, social and 'innocent' relationship," Justice Spender said.

However, he said Andrews may no longer be able to use those grounds to cancel Haneef's visa as the circumstances had changed and the charge against the doctor had been dropped.

Outside the court, Haneef's solicitor Peter Russo called on Andrews to abide by the decision of the court and let Haneef get on with his life.

"I will hope the minister will accept the court's decision with good grace and clear the way for Haneef to return to Australia and complete his studies," Russo said.

Haneef, who worked as a junior doctor at the Gold Coast Hospital, was arrested on July two at the airport with a one-way ticket to India. He was charged with "recklessly" providing support to a terrorist organisation on July 14, following 12 days in detention under anti-terror laws.

A Brisbane magistrate granted him bail on July 16.

But his detention continued as Australian Immigration Minister Kevin Andrews Andrews cancelled his work visa saying he had a reasonable suspicion that Haneef had "associated" with terrorists, specifically his second cousins Kafeel and Sabeel Ahmed, both allegedly involved in failed car bomb plot in London and Glasgow in June.

Andrews, whose decision triggered a political storm and drew flak from lawyers' group and rights bodies, said earlier today that he expected more court challenges over Haneef's visa.

"I don't think today will be the end of the matter, I think whatever the result in the court today that'll probably end up on appeal and who knows even in the high court one day," he said.

There is likely to be a challenge, regardless of today's ruling, he said.

The terror charge against Haneef was dropped after Commonwealth Director of Public Prosecutions Damian Bugg found there was no reasonable prospect of a conviction against the Indian.

Haneef returned to India on July 29, but has stated he wants to return to Australia to continue his physician training.

His lawyers had appealed against the decision and at a hearing in the Federal Court at Brisbane on August eight, they disputed the minister's use of the word "association" and questioned whether any relationship with an alleged criminal, even an innocent one, would be enough to justify a visa cancellation.

Justice Spender on Tuesday said that contrary to some media commentary, which he described as "almost scandalous", the case wasn't a contest between the judiciary and the John Howard Government.

He described remarks making claims of tension between judges and the federal government as ignorant and grossly misinformed.

Russo said Haneef had reaffirmed to him his wish to return to Australia and hoped that today's court decision would signal an end to the ordeal the Indian had endured.

"The Federal Court decision to grant his application for a judicial review of the Immigration Minister's cancellation of his work visa is crucial to Haneef's future," he said.

"Had the decision gone against Haneef, he would have been denied a working visa not only in Australia but effectively in other countries where he may wish to work. This would have a disastrous effect on his life and career," Russo said.

"He understands, however, that today's decision may just be just a first step in a legal battle that is not over. He and his family are gratified by  the decision, but prepared for further legal battles, if necessary," the lawyer said.

Russo said Haneef hoped that, in deciding whether to take any further action concerning his visa, Andrews would consider all of the changed circumstances.

He said Haneef was willing to answer any continuing inquiries the Minister may have, because his reputation and his ability to work and study at medical institutions around the world, including in Australia, were very important to him and his family.

"Until these matters are finally resolved Haneef and his family are unable to return to a normal life, both in India and abroad," Russo said.

"The Immigration Minister holds the key to where this issue goes now. If he accepts the Federal Court decision then Haneef's life and work can get back on track.

"It's now up to Andrews as to whether the Haneef case is finished today," Russo said.