The Haneef judgement has been handed down and it was determined the Minister for Immigration did not apply the correct test under the Migration Act to cancel Haneef's Visa. Spender's decision pivots on the Chan decision which he views as invalid as it intrudes too far into freedom of association such that innocent association can fail the character test under the Migration Act - such as a "woman who had suffered domestic violence at the hands of her partner".

The decision is mired in technical detail over 75v of the Constitution and s501 of the Migration Act. The two competing claims were:

Dr Haneef claims that the requirement for "not passing the character test" in s 501(6)(b) of the Migration Act requires that there be some nexus between the relationship that the visa holder has to the other person, and the criminal activity of that other person. An "innocent" association is not enough.

The Minister says that there is no such requirement, and that any association is sufficient. Alternatively, the Minister says that on its proper construction, all that the "association test" requires is that the visa holder be a "friend" or a "good mate".

The Minister for Immigration based his determination on the MIMA vs Kuen Chan case which validated an innocent association as being sufficient:

The Minister contends that the decision of Emmett J in MIMA v Kuen Chan [2001] FCA 1552 (Chan) establishes that even an "innocent" association is sufficient to satisfy the test; that he applied that test and that Chan was rightly decided.

I am satisfied, from his Statement of Reasons and the submissions made on his behalf to this Court, that the Minister applied the Chan test, in determining whether Dr Haneef failed the character test in s 501(6)(b).

In my judgment, Chan was wrong decided. It is not correct to consider the words "an association with a person or group" by themselves, and then consider, as a separate question, whether the person or group is reasonably suspected of involvement in criminal activity.

Spender is determining that under 'innocent' relationships freedom of association becomes threatened by innocuous ties which "would exclude professional relationships, or those which are merely social or familial. It would exclude the victim of domestic violence". In other words guilt by association.

Because Spender has over-ruled a prior case it doesn't make the Minister for Immigration wrong on this, as it moved the goal posts of what is an association that can fail the character test in the Migration Act.

What we are seeing is a tussle between the Executive and Judicial over national security and immigration. This is the tension between conservatism and liberalism; state dominance vs individual rights.

It must be remembered that the Minister for Immigration invoked s501 because the executive did not like the judicial's original ruling on Haneef. The Migration Act was used to continue detention when the judicial determined the state did not have a sufficient case to detain Haneef any longer. It was the executive gazumping the judicial.