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Subject: David Irving: "Not of good character" (2/4)
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              federal-court.950831-02
Last-Modified: 1995/12/24


Second Decision
---------------

It was common ground that the 1993 Regulations applied to the
second decision. Section 33 of the Act provides for the making
of certain regulations including regulations concerning entry
permits. By following "a tortuous trail" [Wilcox J's very apt
description of portions of these regulations in _Kramer v.
Immigration Review Tribunal (1992) 36 FCR 544 at p.545_]
through Part 2 and in particular Division 1, Regulations 2.1,
2.2, 2.3, 2.335 and Schedule 4, one can eventually discover
that the public interest criteria which Mr. Irving is required
to satisfy are set out in clause 4001 of Schedule 4 which
reads as follows:

                         SCHEDULE 4

                  PUBLIC INTEREST CRITERIA

	4001(1) The applicant meets the requirements of
	subclauses (2), (3) or (4).
	(2) An applicant meets the requirements of this
	subclass if, after appropriate enquiries, the Minister
	has decided that there is no evidence of anything that
	might justify the refusal, under section 180A of the 
	Act, to grant the visa or entry permit.
	(3) An applicant meets the requirements of this
	subclause if, after appropriate enquiries and
	consideration of all available evidence of anything
	that might justify the refusal, under section 180A
	of the Act, to grant the visa or entry permit, the
	Minister has decided that the evidence is insufficient
	to satisfy the Minister of any of the matters referred
	to in paragraph (1)(ii)[??] and subsection (2) of that
	section.
	(4) An applicant meets the requirements of this
	subclause if, despite being satisfied that the
	refusal, under section 180A of the Act, to grant the
	visa or entry permit is justified, the Minister has
	decided not to exercise the power under that section
	to refuse the visa or entry permit."

The key provision of the Act, for present purposes, is s.180A
which materially provides as follows:

	"180A (1) The Minister may refuse to grant a visa to a
	person, or may cancel a valid visa or a valid entry
	permit that has been granted to a person if: (a)
	subsection (2) applies to the person; or
	(b) ...
	(2) This subsection applies to a person if the
	Minister:
	(a) having regard to:
		(i) the person's past original conduct; or
		(ii) the person's general conduct; 
	is satisfied that the person is not of good 
	character; or ..."

 The Grounds Upon Which the Applicant Seeks an Order to Review
 -------------------------------------------------------------

The First Decision - Grounds 1, 2 and 3
---------------------------------------

The applicant relies on ss.5(1)(e) and 5(2)(a) of the ADJR[??]
Act and says that the respondent's decision to refuse the
application of 7 December 1992 for a visa because Mr. Irving
was not of good character was an improper exercise of the
power conferred on the Minister by s.24(7) of the Act because,
so it is alleged, the respondent took into account
considerations which were irrelevant, namely:

	* Mr. Irving's conviction in Germany in 1992;
	* The adverse findings by Mr. Thompson, the
	  Canadian Immigration Adjudicator; and
	* Mitchell J's adverse comments upon Mr. Irving
	  in the United Kingdom proceedings.

Mr. P.S. Bates, counsel for the applicant, submitted that
whether a person is of good character must be determined
objectively in accordance with "ordinary notions" rather than
the subjective views of the particular Minister. He referred
to paragraph 2.2 of a Procedures Advice Manual issued by the
respondent's department in March 1991 ("the Manual") and
entitled "Character Requirement" which reads:

	"2.2 The overall objective of the character
	requirement is to protect the resident
	Australian community from the actions and influence
	of people who may:
	* threaten the security of the nation through acts
	  of espionage, sabotage, politically motivated violence
	  or foreign interference; promotion of communal
	  violence or attacks on Australia's defense systems;
	  (the 'security' element of the character requirement)
	  ; or 
	* pose an unacceptable threat to public safety or
	  property (the 'personal' element of the character
	  requirement)."

Mr. Bates submitted that in order to be relevant, the
"ordinary notions" would have to be circumscribed by the above
paragraph to security matters or criminal matters. He
submitted that the expression "good character" was so wide as
to be ambifuous or obscure so that I could, pursuant to
s.15AB(1) of the _Acts Interpretation Act 1901 (Cth)_ have
regard to the manual to determine its meaning. Alternatively,
he submitted that the Manual provided guidance to departmental
decision-making as to what should be considered relevant
matters to take into account when dealing with good character.
In written submissions, the applicant conceded that such
manuals are not necessarily exhaustive when providing examples
of what might constitute lack of good character but, so it was
said, they provide very real guidelines as to what matters are
relevant and what are not.

In my view there is no need to have recorse to the Manual for
the purposes of resolving Grounds 1, 2 and 3. First, I do not
agree that the expression "good character" is so wide as to be
ambiguous or obscure and thus warrant recourse to s.15AB for
assistance. Secondly, although the list of material referred
to in s.15AB(2) is expressly stated not to be exhaustive, the
Manual does not fall into the category common to all the
various materials referred to in that subsection, namely, that
they were in existence or came into existence at or about the
time of the enactment of the legislation in question. The
Manual is dated March 1991. Alternatively, if I am wrong in
that conclusion I cannot see why a statement of the overall
objective of the character requirement, as set out above,
should have the result of limiting the construction of the
expression "good character" to the matters of security and
public safety. Mr. Bates was on firmer ground with his
submission that "good character" is something which is capable
of assessment according to "ordinary notions" an expression
which comes from the Full Court decision of _Hand v. Hell's
Angels Motocycle Club Inc (1991) 25 ALD 667_ at p. 672 where
the Full Court said:

	"The assessment of 'good character' contemplated by
	reg 2(1) is a familiar task. Many matters will be
	relevant to this assessment most of which, taken
	individually, will not conclude the issues.
	Regulation 4(1) provides that for the purposes of
	the Regulations a person is taken not to be of
	good character if certain defined circumstances
	exist in relation to that person, but reg [??](1) is
	not a code that defines good character for the
	purposes of the Regulations. An applicant for a visa
	must positively establish: good character and reg 
	4(1) does no more than to provide, in effect, that
	good character is not established if certain 
	circumstances exist. Circumstances can well be
	envisaged in which a person would fail to satisfy
	the requirements of good character according to
	ordinary notions but would not fall within reg.
	4(1). Regulation 143, which provides for the waiver
	of the good character requirement, supports the
	conclusion that there is no code. It allows the grant
	of a visa in certain circumstances to an applicant who
	fails to satisfy public interest criteria 'only
	because the applicant is to be taken _not to be
	of good character_ ...' (our emphasis)."

As mentioned above, Mr. Bates acknowledged that the Manual was
not necessarily exhaustive when providing examples of what
might constitute lack of good character. In my view, a person
who may threaten the security of Australia or who poses an
unacceptable threat to public safety or property may well be
characterised as being not of good character but the
application of "ordinary notions" does not mean that a person
who does not pose any such threat must necessarily be of good
character within the meaning of Regulation 2.2.

Alternatively, it was suggested that the expression "good
character" should be interpreted in a manner which would
exclude from Australia people whose presence will in some way
be of harm to Australia or be detrimental to Australia's
interest and that "ordinary notions of good character" should
be confined in that manner. I reject that submission. The
question is whether in accordance with ordinary notions, the
three matters which the Minister is alleged to have taken into
account when assessing whether Mr. Irving was a person of good
character, were irrelevant considerations.

As a matter of fact, there was no evidence that the Minister
took into account these three matters when making his
decision. The Minister was not required, under the relevant
statutory provisions, to furnish a statement of his reasons
and no such statement was put into evidence.

The evidence and other material which was before the
respondent when he made the two decisions which are challenged
in these proceedings comprised a separate departmental
minute in respect of each visa application. Each minute set
out the factual background and the statutory and regulatory
provisions summarised above and had attached to it documents
relating to Mr. Irving's conviction in Germany in 1992, the
adverse findings of Mr. Thompson, Mitchell J's adverse
comments and the German expulsion order. Also attached to each
minute were submissions from Mr. Irving in the form of
affidavits and other documents. In each case, the minute
concluded with a recommendation and endorsement setting out
alternative decisions for the respondent's consideration. The
respondent made his decision in respect of each visa
application by striking out alternatives which resulted in the
decisions which I have summarized earlier in these reasons.
Copies of those minutes and accompanying documents, together
with a further affidavit by way of explanation from Mr. Irving
comprised the bulk of the evidence before the Court in these
proceedings.

The applicant tendered an affidavid from a Mr. DeBruin to
which was annexed a copy of a letter dated 21 January 1994 to
Mr. DeBruin on the respondent's letterhead signed by Ms.
Bronwyn McNaughton, Senior Advisor to the respondent. The
relevant paragraph of the letter reads as follows:

	"The Minister has now done so [a reference to
	reconsidering the matter] and, having concluded
	that Mr. Irving did not meet the 'good character'
	requirements of the Migration Act and Regulations,
	has refused to grant him a visa. The reason for
	doing so had no bearing on Mr. Irving's views on
	the 'Holocaust'. Mr. Irving's views and writings
	remain readily available in Australia."

Mr. S. Owen-Conway QC, senior counsel (with Mr. P. Macliver)
for the respondent objected to this letter being admitted into
evidence, on the grounds of relevance and hearsay. There was
no suggestion that the letter was a forgery. I admitted the
document into evidence, subject to those objections, on the
basis that I would rule upon its admissibility in the course
of giving my reasons for judgement. I shall give those reasons
briefly. In my view, the letter is admissible as being
relevant to a fact at issue. That fact is the Minister's
reasons for his decisions. On the face of the document it is
written on behalf of the respondent by his Senior Advisor and,
for that reason, is not hearsay. Nevertheless it does not, in
my opinion, establish that the respondent took into account
the three matters referred to above. However, on the
assumption that the respondent di so, i consider now whether
they were relevant considerations.

The German Conviction
---------------------

On the applicant's behalf it was said that this was simply a
conviction arising out of the expression of Mr. Irving's
views, that Australia, being a democratic country, espouses
freedom of speech and that a reasonable person would regard
such a conviction as being irrelevant to the question of good
character. The German conviction for "slander concomitant with
disparagement of the dead", so it was put, had no equivalent
in Australia.

In my view, that does not mean that the conviction in Germany
was irrelevant to the matter of Mr. Irving's character. The
fact that a person is prepared to break the law of a country,
which he happens to be visiting, is capable of demonstrating a
lack of respect for the law and that cannot be said to be
irrelevant to the question of good character. When the nature
of the conviction is taken into account, defaming the memory
of the dead, in a country where the Holocaust might well be a
matter of particular sensitivity, the proposition that the
conviction is irrelevant to character becomes even harder to
sustain. This was no traffic infringement. This was an offence
for which the German legislature saw fit to provide for
punishment by up to two years imprisonment and for which an
appellate court imposed a fine equivalent to approximately
$30,000. It is enough that such a conviction may be relevant
to the question of Mr. Irving's character. The weight to be
given to that factor is a matter for the Minister and not for
this Court.

Then it was said, on behalf of the applicant, that it would be
inconsistent to regard the German conviction as being relevant
when there is an express provision in Regulation 4(1)(b)
dealing with convictions for offences in circumstances
indicating, in the reasonable belief of the Minister, habitual
contempt or disregard for the law or for human rights. That
submission suggests that Regulation 4(1) is a code that
defines good character for the purposes of the regulations.
The Full Court held to the opposite effect in the extract from
the _Hell's Angels_ case which I have set out above.
Regulation 4 is a deeming provision and, in my opinion, cannot
render irrelevant a conviction, for example, which might
indicate other serious but not habitual contempt or disregard
for the law. For those reasons I reject that alternative
submission.

Immigration Adjudicator Thompson's Comments
-------------------------------------------

The same reasoning, in my opinion, applies to the comments of
Adjudicator Thompson of Canada. Mr. Bates submitted that even
if those comments indicated that there was perhaps a defect in
Mr. Irving's character on that one occasion because apparently
he told a lie, that would not on a reasonable basis be a
ground for excluding Mr. Irving from Australia. Accordingly,
so it was submitted, by taking that matter into account the
respondent took into account an irrelevant criterion. I was
then taken to some five pages of written submissions which
attacked the accuracy of Adjudicator Thompson's assertions and
concluded with the submission:

	"...if one applied the test of 'ordinary notices'[??]
	of bad character, then a person would not be deemed to
	be of bad character simply because of disputed credibility
	findings[??] made in the course of a highly
	controversial proceeding in the circumstances
	outlined."

In my view those submissions overlooked the critical issue.
That issue is whether Adjudicator Thompson's adverse findings
in respect of Mr. Irving were irrelevant considerations under
Regulation 2(1) on the question of good character. The adverse
findings were, in essence, that Mr. Irving's account of his
short visit to the United States was a total fabrication and
never took place i.e. that Mr. Irving had lied on oath to the
Immigration Adjudicator. The fact that a person may lie on
oath on one occasion may not necessarily result in a
conclusion that the person is not of good character. As the
Full Court noted in the passage set out above, many matters
will be relevant to the character assessment most of which,
taken individually, will not conclude the issue. Nevertheless,
the fact that Mr. Irving was found to have lied on oath to a
quasi-judicial tribunal was something which, in my opinion,
even on its own, could not be said to be irrelevant to the
question of his good character. When taken in conjunction with
the other two matters, the irrelevance of any one of the three
factors becomes even harder to accept and I reject the
submission.

[continued]


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