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Subject: David Irving: "Not of good character" (3/3)
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Archive/File: people/i/irving.david/australia/wag-107-1995.04
Last-Modified: 1996/09/19

IN THE FEDERAL COURT OF AUSTRALIA    )
                                     )
WESTERN AUSTRALIA DISTRICT REGISTRY  ) No WAG 107 of 1995
                                     }
GENERAL DIVISION                     )

On appeal from a single judge of the Federal Court of Australia

                             BETWEEN: DAVID JOHN CAWDELL IRVING
                                      Appellant

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

Coram: Davies, Lee & R.D. Nicholson JJ 
Date: 30 July 1996
Place: Perth

                       REASONS FOR JUDGMENT

R D NICHOLSON J:

In a democracy where free speech is cherished (even if not
recognized as a fundamental overriding consideration of law),
the application of a "good character" test to deny a visa to a
person who espouses controversial public views must necessarily
raise the question in the mind of the unsuccessful applicant or
others whether the test has been applied in truth to deny the
opportunity for espousal by that person of his or her views
within the country in respect of which the visa was sought. When
the decision to deny such a visa is arguably based upon the
application of such tests or the denial of such visas elsewhere,
the question also arises whether the denial by one country of
the opportunity for entry has an unmerited snowballing effect;
unmerited because the denials in other countries are arguably
founded on denial of an opportunity to espouse the view rather
than truly on grounds of character. While these may be questions
raised by the circumstance of denial of the application, they
are not considerations which are determinative at law of either
this appeal or the application for review at first instance.

The decisions which gave rise to this appeal and the relevant
legal framework are set out in the reasons for judgment of
Davies J which I have had the advantage of considering in draft.

Those reasons make apparent that courts on an appeal such as
this, while required to scrutinise with care the legal framework
within which the administrative decisions containing the denials
on grounds of good character have occurred, nevertheless have a
limited role. As stated by Davies J and recognized by Carr J at
first instance, it is not the function of the Court from which
review was first sought (nor of this Court on appeal) to form
its own view of the applicant's "good character" or to decide
whether it would have reached the same decision as the primary
decision-maker. Specifically, the question of weight to be
accorded a matter or combination of matters properly before him
or her is a question for the decision-maker.

On the assumption (made by Carr J) that the respondent took the
matters before him into account, there was evidence before the
respondent capable of supporting his decisions. The German
conviction arose from the appellant's espousal, in defiance of
the law, of views of high controversy. Later the appellant was
made subject to an order expelling him from the Federal Republic
of Germany. Nevertheless, the fact of conviction was capable, as
Carr J recognized, of demonstrating a lack of respect for the
law and for the sensitivities which the law sought to win
respect by controlling the exercise of free speech in relation
to them and so was relevant to the issue of the appellant's good
character.

The other matters before the respondent and considered by Carr J
did not derive their character from criminality arising from the
exercise of free speech. The findings of Immigration Adjudicator
Thompson were that the appellant lied on oath. A deportation
order from Canada was made against him. He was found in contempt
of court in the High Court of Justice in London and imprisoned.
Later he was found to be a person who deliberately gave false
evidence. Carr J was not in-error in holding these and the
German matters relevant material to the question of the
appellant's good character or his reform.

I am of the same opinion as Davies J and I agree with his
reasons and conclusion that the appeal should be dismissed.

Since arriving at the preceding conclusion I have had the
benefit of reading in draft the reasons of Lee J in which his
Honour also reaches the same conclusion.

I certify that this and the preceding 2 pages are a true copy of
the reasons for Judgment of his Honour Justice R D Nicholson.

Associate:
[signature]
Date: 30 July
1996


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