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Subject: David Irving: "Not of good character" (1/4)
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Archive/File: /home/ftp/pub/people/i/irving.david/australia
              federal-court.950831-01
Last-Modified: 1995/12/24

(Transcription Note: This judgement has been transcribed from a
photocopy. Parts of the photocopy contain very small text,
which is somewhat blurry in spots, and therefore difficult to
read. In any instance where I am uncertain, I have included
[??] after the questionable word or text. All typos mine. KNM,
Sept. 8, 1995.)

IN THE FEDERAL COURT	)
OF AUSTRALIA		)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)	No. WAG 63 of 1994
GENERAL DIVISION	)

BETWEEN:			DAVID JOHN CAWDELL IRVING
					Applicant

				and

				MINISTER OF STATE FOR
				IMMIGRATION, LOCAL
				GOVERNMENT AND ETHNIC
				AFFAIRS
					Respondent

CORAM:	CARR J.
PLACE:  PERTH
DATE:   31 AUGUST 1995

		REASONS FOR JUDGEMENT
                ---------------------

                    Introduction
                    ------------

This is an application under s.5 of the _Administrative
Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act")
for an order of review in respect to two decisions made by the
respondent on 3 May 1994. The first decision was to refuse an
application made by the applicant, Mr. David John Caldwell
Irving, on 7 December 1992 for a Business Visitor (Short Stay)
Visa. In summary, the respondent refused that application on
the ground that Mr. Irving did not meet the good character
requirements of Regulations 2(1) and 4(1) of the Migration
Regulations 1989 ("the 1989 Regulations"). The respondent
decided also that he would not exercise the power conferred on
him by Regulation 143 of those regulations wo waive that
requirement, because Mr. Irving had not shown by subsequent
conduct that "he is reformed." The respondent's second
decision was to refuse Mr. Irving's application, again for a
Business Visitor (Short Stay) Visa, made on 3 June 1993. This
second application and the decision upon it were made under a
different statutory and regulatory regime to the first
application and decision. When making the second decision the
respondent determined, pursuant to s.180A(2) of the _Migration
Act 1958_ (Cth)("the Act"), that Mr. Irving was not of good
character and further that Mr. Irving failed to meet all the
requirements of the public interest criterial set out in
Schedule 4 of the Migration (1993) Regulations ("the 1993
Regulations"). The second decision also involved a decision
not to exercise the discretion to waive the good character
requirement.

For the benefit of anyone reading these reasons who is not a
lawyer, I think it is appropriate that I should, very briefly,
say something about the Court's function in this matter. It is
not for the Court, in applications of this type, to decide the
merits of the matter in the sense of whether Mr. Irving should
be granted a visa. That decision is an administrative one to
be made by the executive arm of government. The Court's role
is to review the administrative decisions to ascertain whether
they were made in accordance with the law, including any
procedures which may expressly, or by implication, condition
the decision-making process. As part of that process, the
Court may have regard to the merits of the matter if the Court
is asked to set aside a decision on the basis that the
decision was so unreasonable that no reasonable decision-maker
could have made it. This is a step which the Court will not
take lightly. It proceeds with particular caution when
considering a submission to that effect (i.e. of manifest
unreasonableness) lest it usurps the administrative function
of weighing and balancing the merits of the matter.

                   Factual Background
                   ------------------

Mr. Irving is a historian, normally resident in England, who
has written many books and who has travelled widely. He has
twice visited Australia. The first visit was in 198[??] for
approximately a fortnight and the second in 1987 for almost a
month.

On 21 April 1990, while at a function in Germany, Mr. Irving
stated in public:

	"We now know - I need mention that here only as a
	footnote - that there never were gas chambers in
	Auschwitz. Meanwhile, we believe that just as the
	gas chambers that the Americans erected here in Dachau
	in the first days after the war was a  mock[??] up,
	so too the gas chamber [??] that you visit as a
	tourist in Auschwitz now, were constructed by the
	Polish authorities after the Second World War ...
	so the German taxpayer has had to pay around 16
	billion marks as a punishment for Auschwitz ..
	for a mock up."

For making that statement Mr. Irving was charged with the
offence of defaming the memory of the dead contrary to s.189
of the _Criminal Code_ of the Federal Republic of Germany, an
offence punishable by up to two years imprisonment or with a
fine. He pleaded not guilty but on 5 May 1992 was convicted on
that charge by the Municipal Court in Munich and was ordered
to pay a fine of DM10,000 (about $10,000). Mr. Irving appealed
against that decision to the State Court in Munich. That Court
dismissed Mr. Irving's appeal and increased his fine to
DM30,000.

On 28 October 1992, while in Canada, Mr. Irving was arrested
at the instance of immigration authorities and appeared before
an immigration hearing on 29 October 1992. During the course
of that hearing Mr. Irving entered into negotiations with the
Canadian immigration officials. As a result of those
negotiations Mr. Irving admitted an offence under s.27(2)(g)
of the Canadian _Immigration Act_. The essence of the offence
was that upon entering Ontario Mr. Irving had stated that he
would only be spending two weeks in the Province when he
should have stated that he intended to visit British Columbia
and other Provinces. Mr. Irving also agreed to the issue of a
Departure Notice requiring him to depart from Canada by
midnight on Sunday 1 November 1992. In an affidavit sworn by
Mr. Irving on 8 February `1994 and tendered to the respondent
in support of his application for a visa, Mr. Irving says that
on the evening of Friday 30 October 1992 a Canadian
businessman, Mr. Brian Fisher, drove him from Canada to Blaine
in Washington State, USA. He says that he was there for two
hours before returning to Canada and that the next day, a
Saturday, he flew to Toronto and at 11:00 pm on Sunday 1
November 1992 he presented himself at the Rainbow Bridge
between Canada and the United States. When he arrived at the
American end of that bridge, Mr. Irving says that the American
officials delayed him for one hour during which they engaged
in telephone conversations and exchanged messages with
officials at the Canadian end of the bridge. Eventually at
12.05 am on Monday 2 November 1992, so Mr. Irving deposes in
his affidavit, an American immigration official told him to
return to the Canadian end of the bridge "to sort everything
out". On his return to the Canadian end of the bridge Mr.
Irving was arrested by Canadian immigration officials and
charged with failing to leave Canada in accordance with the
Departure Order. Mr. Irving's evidence is that at the relevant
time he held a valid visa for multiple entry into the USA,
that he has since that episode lawfully visited the USA three
times and that the delay on the evening of 1 November 1992 was
due to someone having inserted a considerable amount of
libellous material about him on the US Immigration and
Naturalization Service's computer.

Between 2 November and 13 November 1992 an immigration hearing
took place at Niagara Falls before Immigration Adjudicator Mr.
Kenneth Thompson. Mr. Irving gave sworn evidence and adduced
evidence from others at that hearing concerning his departure
from Canada on the evening of Friday 30 October 1992. Mr.
Thompson, in his findings, said that he did not believe Mr.
Irving and gave written reasons for that finding. Mr.
Thompson's conclusions included the following:

	"In [??] your evidence as a whole, you have been
	unable to persuade me that you did leave Canada on
	October 30, 1992. I have a great deal of difficulty
	accepting your evidence. It did [??] not have the
	ring of truth to it, but observing you and listening
	to your testimony, I could not help but get the
	impression that you were at times re-citing [sic]
	a rehearsed script. I found you to [sic] a difficult
	witness who was often confrontational with the Case
	presenting officer when he asked you straightforward
	questions.

	When viewed as a whole this evidence can lead to only
	one conclusion; the event was a total fabrication
	and never took place."

Mr. Thompson then ordered, pursuant to a.32(6) of the
_Immigration Act_, that Mr. Irving be deported from Canada.

On 7 December 1992 (as mentioned above) Mr. Irving lodged his
first application for a visitor's visa to tour Australia. On 8
February 1993 the respondent rejected Mr. Irving's application
on the grounds that Mr. Irving's precence in Australia would
be "disruptive to the Australian community" - see paragraph
(c) of the definition of "public interest criteria" in
Regulation 2(1) of the 1989 Regulations.

In March 1993 Mr. Irving applied to this Court for an order of
review in respect of the respondent's decision to reject his
application for a visitor's visa. On 13 May 1993 French J.
dismissed that application. On 16 September 1993 the Full
Court of this Court allowed an appeal from that decision. The
Full Court ordered that the respondent's decision of 8
February 1993 be reviewed and set aside and that it be
returned to him for determination according to law.

On 9 November 1993, while Mr. Irving was in Munich, he was
served by the relevant German authority with an order
expelling him from the Federal Republic of Germany. The order
obliged him to leave that country immediately or no later than
10 November 1993. Mr. Irving complied with that order.

On 11 February 1994 in the High Court of Justice (Queen's
Bench Division) in London, Brooke J. found that Mr. Irving was
in contempt of court by failing to comply with an order of
Morison J. For that comtempt Brooke J. ordered Mr. Irving to
be commited [sic] to prison for a period of three months. On 21
February 1994 Mitchell H. heard an application on Mr. Irving's
behalf to purge his contempt and to obtain a discharge of the
order made on 11 February 1994 committing him to prison.
Mitchell J's written reasons in respect of that application
included the following paragraph:

	"I have not found this an easy decision because
	I have made it clear more than once during the
	course of today - and I adhere to the conclusions
	that I have been forming and expressing - that I
	am afraid I do not accept the explanations appearing
	in his affidavit, that is to say, his explanation
	to me that he had not the faintest idea that any of
	this was going on - that includes that he had not the
	faintest idea that the German judgement was even
   	registered in this country; I am afraid I do not 
	accept that for one moment."

Mitchell J, for reasons which he then gave and which were
concerned with compliance with Brooke J's order, ordered that
Mr. Irving be released from prison.

On 3 May 1994 the respondent refused both of Mr. Irving's
applications for visas on the grounds which I have summarised
above. On 27 May 1994 Mr. Irving filed this application.

          The Statutory and Regulatory Framework
          --------------------------------------

The First Decision
------------------

The visa for which Mr. Irving first applied was described in
the 1989 Regulations as a "class 672 visa". Section 24 of the
_Migration Act_ governed the grant or refusal of visas.
Section 24(7) relevantly provided that where it appeared to
the Minister that an applicant for a visa was not, under the
regulations, entitled to be granted a visa of the class
concerned, "the Minister shall refuse to grant the applicant
which such a visa". An applicant for a class 672 visa was
required to satisfy, among other things, public interest
criteria as provided for in the 1989 Regulations - [see
Regulations 2, 4, 10, 34A, 41, Schedule 1 item 5 and Schedule
2 item 45] The only public interest criterion in issue in this
matter is that referred to in Regulation 2, namely that the
person "is of good character". Regulation 4 prescribes certain
circumstances in which a person is _taken_ not to be of good
character. Regulation 4(1) relevantly provides as follows:

	"4. (1) For the purposes of these regulations, a
	person is taken not to be of good character if:
	(a) in the case of an applicant for a visa or an
	entry permit of any class:
		(1) the applicant has been assessed [??]
		by the competent Australian authorities
		to be a risk to Australian national security;
		or
		(2) the applicant:
			(A) has at any time been convicted
			of a crime and sentenced to death,
			to imprisonment for a period of not
			less than one year; or
			(B) has at any time been convicted
			of 2 or more crimes and sentenced to
			imprisonment for a period totalling
			not less than one year; or
			(C) has at any time been charged with
			a crime and either found guilty of
			having committed the crime while of
			unsound mind or acquitted on the
			ground that the crime was committed
			while the person was of unsound mind;
			or
		*	(D) has been deported from another
			country; or
		*	(E) has been excluded from another
			country in the circumstances
			prescribed for the purposes of 
			sub-paragraph 11A(1)(d)(vi) of the
			Act; ...."

I have placed an asterisk beside the two sub-paragaphs upon
which the respondent relies in this matter.

The circumstances prescribed in sub-paragraph (E) above can be
found in Regulation 177 which relevantly provides that each of
a list of circumstances is a prescribed circumstance upon
which the respondent relies in this matter is set out in
regulation 177(d) which reads as follows:

	"(d) that the authorities of that country considered
	the person to be a threat to the national security
	of the country."

The respondent has a discretion to waive the requirement that
the applicant be of good character where the applicant fails
to satisfy public interest criteria only because he or she is
to be taken not to be of good character. In the present matter
the relevant basis for the excercise of that discretion is
provided by Regulation 143(a)(ii) which provides that the
Minister may grant the visa if he is satisfied that "the
applicant has shown by subsequent conduct that he or she is
reformed".

In summary, the applicant says that he is of good character
and but for the deeming provisions in  Regulation 4, satisfies
the public interest criterion. Mr. Irving disputes that his
exclusion from the Federal Republic of Germany falls within
Regulation 4(1)(E) when read with Regulation 177(d) upon the
proper construction of the term "national security". Mr.
Irving does not dispute that he has been deported from another
country, namely Canada. However, he submits that the Minister
should, in the circumstances, exercise the discretion
conferred on him by Regulation 143, to waive the good
character requirement.

[continued]


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