Newsgroups: alt.revisionism,soc.culture.australia,alt.fan.ernst-zundel Subject: David Irving: "Not of good character" (1/4) Followup-To: alt.revisionism X-Web: http://www.nizkor.org/hweb/people/i/irving-david/australia/fc-index.html [soc.culture.autstralia removed from subsequent posting of parts 2 through 4. See alt.revisionism for remaining transcripts.] 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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