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Shofar FTP Archive File: people/i/irving.david/australia/federal-court.950831-04

Newsgroups: alt.revisionism,
Subject: David Irving: "Not of good character" (4/4)
Followup-To: alt.revisionism

Archive/File: /home/ftp/pub/people/i/irving.david/australia
Last-Modified: 1995/12/24

The First Decision - Ground 7 (Error of Law)

The applicant claims that the respondent made an error of law
within the meaning of s.5(1)(j) of the ADJR Act or, in the
alternative, that there had been an improper exercise of power
because the German expulsion order was not an expulsion from
another country in prescribed circumstances. It was submitted
that the applicant's conduct did not constitute a "threat to
national security" within the meaning of Regulation 177(d).

It is importand to have regard in the precise manner in which
Regulation 177(d) prescribes the relevant circumstances.
Regulation 177(d) reads as follows:

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

Mr. Bates submitted that the expression "national security" in
the phrase "the national security of the country" should be
construed in the same way as what would be regarded as
national security in Australia. He submitted that the terms of
the German expulsion order itself showed that the Federal
Republic of Germany was concerned more with public security
and public order than national security. In essence, so it was
put, the German authorities' complaint was that Mr. Irving
would express controversial views and would attend public
gatherings which they alleged would require considerable
police resources. As an example of why the regulation should
be so construed, Mr. Bates suggested that the Chinese
authorities might regard criticism of their regime as a breach
of their national security but the Australian authorities
would be unlikely to regard such circumstances as falling
within Regulation 177.

The problem with that submission is that it ignores the clear
words of the regulation which defines the relevant
circumstances in terms of the authorities of the deporting
country considering the person to be a threat to the national
security of the country. Whether the person would be
considered to be a threat to the national security of
Australia is not to the point. The regulation expressly defers
to the views of the authorities of the deporting country.

I have examined the terms of the German expulsion order which
include the following:

	"Your presence in the Federal Republic of Germany
	infringes public security, public order and also
	considerably the interests of the Federal Republic
	of Germany.

	For years you have been entering the Federal Republic
	of Germany, to publicise your ideas at functions ...
	These ideas constitute the criminal act of insulting
	and reviling the memory of the dead. The execution of
	such criminal acts continues regularly the
	infringement of public security and order. In this
	case this is of great importance as the insults and
	reviling concern a whole group of the population and
	since they are perpetrated in a very public manner.

	... Despite the decisions of the Municipal Court in
	Munich of 06.05.1992 and the Munich State Court of
	13.01.1993 you persistantly keep on publicising your

	Your behavior apart from the illegality of your 
	statements infringes public security and order...

	Your appearances are being increasingly noticed,
	which is due to heightened sensitivity of the
	population concerning right-extremist ideas but
	mainly due to the resurgence of right-extremist and
	Neo-Nazi parties... That you don't regard yourself
	as an active member of right-extremist groups is
	insignificant. Determining is the fact that three
	groups use your ideas for their own purposes,
	become encouraged by your ideas and gain increased

	Your behavior consitutes a danger to the inner
	security of the Federal Republic of Germany in the
	greater[??] sense[??] and at the same time does
	great damage to the reputation of the German State:

	Your statements and comments[??] as given under
	number 1.1 [a reference to an earlier paragraph in
	the Expulsion Order] are able to endanger the
	peaceful co-existence between Germans and foreigners:
	they are being regarded as the truth by a small but
	radical part of the population and they are motivating
	in the long run to violence and racial hatred."

The Expulsion Order then refers to strengthened National
Socialism and right-extremism, the escalation of violence and

	"Although the majority of the German population
	distances itself from such activities, most
	recent developments show that there is a base of
	right-extremist prepared for violence. This group of
	people is especially susceptable to revisionist ideas,
	feels supported in its political attitude while 
	expressing its opinion with violence ... Your 
	activities as speaker have harmed public security
	and order ... The interest of revisionists, right-
	extremists and Neo-Nazi groups at your participation
	is unabated.

	It cannot reasonably be expected of the authorities
	to supervise your statements at numberous political 
	appearances and to be able to criminally prosecute
	only after the event. Besides in view of your
	reputation in right-extremist circles your mere
	presence at political events is able to harm the
	interests of the public in the means illustrated


	An expulsion is therefore imperative as defense
	against the danger of recurrence ... Therefor your
	immediate departure is necessary as defense against
	the danger to public law and order as well as defense
	against lasting damage to the Federal Republic of

The New Shorter Oxford English Dictionary (at p.2754) defines
'security' relevantly as being "The condition of being
protected from or not exposed to danger; safety _spec._ the
condition of being protected from espionage, attack or theft".
The same dictionary defines 'national' as "Of or pertaining to
a nation or country, esp. as a whole; affecting or shared by
the whole nation". I reject the distinction which the
applicant seeks to make between "public security and public
order" and "national security". At p.10 of the German
expulsion order there appears the following:

	"The term public security is understood as a state
	in which the community and individuals can enjoy
	undisturbed the rights granted by the Constitution
	and other rules, Protective legal norms are
	particularly the criminal law and the penal law, which
	have the purpose of protecting public security.

	Public order comprises all norms concerning actions,
	omissions and conditions, [??] observance - beyond the
	limits of current positive public and civil law - in
	accordance with the prevailing understanding, which 
	may change in sometimes short periods of time, is the
	imperative condition for a productive human and civic

The relevant German authority, at the same page, came to the
conclusion that Mr. Irving's continued presence in the Federal
Republic of Germany impaired public order and security or
interfered with other important interests of that country
contrary to s.45(1) of the Law Concerning Foreigners.

In my view, sufficient appears from the German expulsion order
to indicate that the authorities of that country considered
Mr. Irving to be a threat to the national security of the
country not just to local public security. It is also of some
relevance that his expulsion was not from a particular area or
State of Germany but from the whole of the Federal Republic of
Germany. Accordingly, in my opinion, the circumstances of Mr.
Irving's expulsion from that country fell within Regulation

The First Decision - Ground 8 (Further Error of Law)

The applicant advances similar claims of error of law and
improper exercise of power in respect of the characterisation,
for the purposes of the application of Regulation
4(1)(a)(ii(D), of Mr. Irving's deportation from Canada. It was
submitted that as a matter of construction, the regulation
refers to deportation that involves moral turpitude on the
part of the deportee and that deportation which involves no
such culpability is not caught by the regulations.

Mr. Bates submitted that Regulation 4(1)(a)(ii)(D) which
refers to a circumstance that the applicant "has been deported
from another country" should be contrued as referring only to
deportation which involves moral turpitude on the part of the
deportee. This was because, so it was said, of its inclusion
in a regulation which deals with criminal activity and
breaches of national security. The sub-regulation was to be
interpreted in the light of those surrounding provisions. Mr.
Bates submitted that there was no moral turpitude in the
circumstances of Mr. Irving's deportation.

It is possible that this issue is foreclosed by the earlier
decision of the Full Court in respect of Mr. Irving's first
application. Ryan J. (at p.543) said:

	"Mr. Irving admittedly failed to satisfy the
	'good character' criterion directed by reg. 4(1)
	of the Migration Regulations 1989 (Cth) ("the
	Regulations") because he had been deported from 
	Canada and was therefore caught by reg.4(1)(a)(ii)(D)."

Drummond J. (at p.556) observed:

	"It would have been open to the Minister to refuse
	Mr. Irving's visa application in reliance on reg.
	4(1)(a)(ii)(D) and his deportation from Canada."

However, that conclusion was not essential to the court's
finding. In my view the wording of the sub-regulation "has
been deported from another country" is so clear that it is not
to be read down in the manner contended for by the applicant
i.e. by reference to the other sub-paragraphs of this
regulation. In my opinion, it is not necessary for moral
turpitude to be involved in any such deportation.

The Second Decision - Ground 1

As the statutory and regulatory framework above indicates,
there was a two-step process for the respondent to undertake
in respect of the second decision. First, the repsondent had
to decide, under s.180A(2), whether he was satisfied, having
regard to Mr. Irving's past criminal conduct or general
conduct that Mr. Irving was not of good character. Secondly,
despite being so satisfied, the Minister had a discretion not
to exercise the power under s.180A to refuse to grant the visa
to Mr. Irving. If the Minister exercised that discretion, then
Mr. Irving would have met the public interest criteria
referred to in Schedule 4 to the 1993 Regulations. The matters
of a person having been deported or excluded from another
country in prescribed circumstances, respectively, are no
longer matters which require a person to be taken not to be of
good character. However, they are still circumstances which
may give rise to a person becoming an illegal entrant - see
s.20(1)(d)(v) and (vi). In the case of exclusion from another
country in prescribed circumstances, Regulation 7.12(d) of the
1993 Regulations provides a presecribed circumstance which is
identical to the former Regulation 177(d) of the 1989

The applicant contended that the respondent's decision to
refuse him a visa under s.180A(1) on the grounds that Mr.
Irving was not of good character by reason of:

	* service on him of an expulsion order in Germany
	  in November 1993;

	* the Canadian deportation 

was contrary to law within the meaning of s.5(1)(j) of the
ADJR Act. The error of law was said to be twofold. First the
characterisation by the German authorities of the applicant's
conduct as a "threat to national security" was, so it was put,
inconsistant with the Australian concept of what constitutes a
threat to national security as set out in para. 2.2 of the
Procedures Advice Manual No. 135 dated 21 May 1993 ("the 1993
PAM Update"). The applicant also incorporated by reference his
submissions in respect of Ground 7 above. Secondly, in respect
of the Canadian deportation, it was submitted by way of
repetition of Ground 8 in respect to the first decision, that
for a deportation to be relevant to good character it must be
a deporation which involves moral turpitude on the part of the

The applicant relied in particular on paragraphs 2.12, 8.13,
8.2.2, 8.5.1, 8.5.2 and 8.5.3 of the PAM Update. The applicant
contended that s.180A(2)(a)(i) which refers to past criminal
conduct, was not applicable and that the respondent had only
had regard to Mr. Irving's general conduct being the
alternative referred to in s.180A(2)(a)(ii).

The resondent's submission refer to the fact that s.180A(2)(a)
enables the respondent to take into account a person's past
criminal conduct and general conduct when assessing whether a
person is of good character. On the respondent's behalf it was
submitted that there was no evidence that the respondent's
refusal of Mr. Irving's visa application on the grounds that
he was not of good character was by reason of the service on
Mr. Irving of an expulsion order in Germany in November 1993
and by reason of the Canadian deportation. Further, so it was
submitted, those were matters which the respondent was
nonetheless entitled to take into account if in fact he did

I accept those submissions. Even the letter dated 21 June 1994
from the Minister's Senior Advisor to Mr. DeBruin simply
confirms that the respondent had concluded that Mr. Irving did
not meet the good character requirements of the _Migration
Act_ and _Regulations_ and for that reason had refused to
grant him a visa. There were matters other than the German
expulsion and the Canadian deportation which the Minister may
have taken into account. I rerfer to the findings that Mr.
Irving had given false evidence to Immigration Adjudicator
Thompson in Canada and to the High Court of Justice in London
and Mr. Irving's conviction for contempt of court. Further,
even if the Manual as amended by the 1993 PAM Update
constrained the Minister to take a particular course in his
assessment of Mr. Irving's character (a proposition which I
reject), a careful reading of that document discloses nothing
which precludes the respondent from taking into account the
Canadian deportation and the German expulsion. Insofar as the
applicant relies on his submission in relation to Grounds 7
and 8 above I reject them for the reasons already given. 

The respondent's decision was not contrary to law.

The Second Decision - Ground 2 (Improper Exercise of Power)

The basis of this ground was that the respondent's decision
under s.180A(1) to refuse Mr. Irving a visa on the grounds
that he was not of good character by reason of:

	(a) the adverse comments of Immigration Adjudicator
	(b) the adverse comments of Mitchell J.;
	(c) the deporatation from Canada; and
	(d) the expulsion order served on Mr. Irving by the
	    German authorities;

was an improper exercise of the power conferred by that
section in that the respondent, by taking into account those
four matters, took into account irrelevant consideratons
within the meaning of ss.5(1)(e) and 5(2)(a) of the ADJR Act
or, in the alternative, failed to take into account relevant
considerations within the meaning of s.5(2)(b) of the ADJR

The complaints raised under this heading are essentially the
same as those advanced as Grounds 1, 2 and 3 in respect of the
first decision. This ground is rejected for the reasons which
I have set out earlier in these reasons in respect of those
grounds. No particulars were given of the relevant
considerations which it was alleged the respondent had failed
to take into account.

Second Decision - Ground 3 (Exercise of a Discretionary Power
in Accordance with a Policy Without Regard to the Merits of
the Particular Case)

The applicant contended that the making of the decision that
he should be refused a visa on the grounds that he was not of
good character was an improper exercise of the power conferred
by s.180A(1) when read with s.180A(2)(a)(ii) of the Act. The
applicant relied on ss.5(1)(e) and 5(2)(g) of the ADJR Act.
The applicant claimed that the discretionary power to exclude
Mr. Irving because he was deported from Canada in November
1992, and further on the grounds of the German expulsion
order, was exercised in accordance with the policy enshrined
in paragraph 8.5.6 of the 1993 PAM Update without regard to
the merits of the particular case.

The answer to this complaint is that there is simply no
evidence to support it. Such evidence as there is on this
point (see paragraph 23 of Mr. Joseph's mintute dated 29 April
1994) indicates that it was made clar to the Minister that he
should not consider himself bound by the guildelines in the
1993 PAM Update and that he should carefully consider the
issue of Mr. Irving's character on its merits.

Second Decision - Ground 4 (No Evidence)

Next the applicant contended that there was no evidence or
other material within the meaning of ss.5(1)(h) and 5(3) of
the ADJR Act to justify the respondent's decision to refuse
Mr. Irving a visa on the grounds that he was not of good
character having regard to his "general conduct" within the
meaning of s.180A(2)(a)(ii) having regard to all or any of the
following considerations:

	(a) Immigration Adjudicator Thompson's adverse
	(b) Mitchell J's adverse findings;
	(c) the Canadian deportation;
	(d) the exclusion from Germany.

Alternatively, the decision, so it was contended, was an
improper exercise of the power within the meaning of s.5(1)(a)
and 5(2)(g) of the ADJR Act in that the exercise of the power
was said to be so unreasonable that no reasonable person
could have so exercised it.

These complaints mirror the complaints made under Grounds 4
and 5 against the first decision and for the reasons which I
have given above in respect of those complaints I reject them
in respect to the second decision.

Both Decisions - Procedural Unfairness [s.5(1)(a) of the ADJR

The applicant claimed that both of the respondent's decisions
were based on matters contained in the German expulsion order
which had not been put to Mr. Irving for comment. The
particular matter was the finding of the German authorities
that Mr. Irving's presence in the Federal Republic of Germany
infringes public security, public order and the interests of
that country.

Mr. Bates referred to a letter dated 13 January 1994 from the
respondent to Mr. Irving inviting him to answer certain
questions. It was said that seven of those questions invited
comment upon Mr. Irving's expulsion from Germany and related
to matters contained in the German expulsion order. However,
it was argued that by not inviting Mr. Irving to comment upon
the allegation in the German expulsion order that his conduct
infringed German public security, public order or the
interests of the Federal Republic of Germany and then making a
decision based on that matter, there had been a breach of the
rules of natural justice.

I pressed Mr. Bates during argument to confirm whether or not
his client relied on certain evidence from Mr. Irving that he
personally did not receive a copy of the German expulsion
order. I was told that Mr. Irving did rely on that factor, in
addition to the fact that the respondent had not specifically
put to him the assertion which was contained in that order and
which I have set out above. The evidence [Exhibit B] from Mr.
Irving on this point included the following:

	"In relation to the German Expulsion Order issued
	against me in November 1993 the first time I had the
	opportunity of reading this was when my solicitors
	in these proceedings in Australia sent me a copy of
	the annexures[??] attached to the Greenup[??]
	affidvait in August 1994. Although I was served with
	an order to leave Germany within 48 hours in November
	1993 (which I fully complied with), I refused to sign
	an acknowledgement of receipt of the order and so as a
	consequence it was sent instead to my German Lawyers
	and I never read it at the time."

Insofar as Mr. Irving's complaints of being denied procedrual
fairness are based upon the fact (which for present purposes I
will assume to be the case) that he did not read and was not
in possession of the document and he chose not to read it. In
any event, his German lawyers had constructive possession of
that document on his behalf.

There was no dispute that the applicant was entitled to be
accorded procedural fairness in respect to both decisions. The
content of the requirement to accord procedural fairness
varies according to the circumstances: _Loa v. West (1985) CLR
550_ at pp.584-585. In the present matter Mr. Irving was sent
letters dated 13 January 1994, 4 February 1994 and 24 February
1994 inviting him to comment on a number of issues which might
be taken into consideration when deciding his application for
a visa. Mr. Irving responded with an affidavit sworn on 8
February 1994, a letter dated 24 February 1994, an affidavit
from his Canadian lawyer Mr. Christie, an affidavit from Mr.
Fisher, a video of an interview with Dr. Piper, curator of the
Auschwitz Museum and a further letter of explanation dated 14
April 1994.

One of the issues which Mr. Irving was invited to address by
the letter dated 13 January 1994 was:

	"(m) That the Munich Aliens' Office issued you with an
	expulsion order on 9 November 1993".

Attached to that letter were copies of the relevant provisions
of the Act and Regulations relevant to the public interest
criteria and the exercise of the Minister's discretion. Mr.
Irving responded to each of the matters referred to in that
letter by his affidavit sworn on 8 February 1994. The portion
of the affidavit which dealt with the German expulsion order
was as follows:

	"13.  Voluntary Departure Notice - Munich, November 9,
	      1993 (Paragraph m)
	 13.1 On the 9th. November, 1993 the Munich District 
	      Administration Council
              (Kreisverwaltungareferat[??]) aliens department
	      issued the order referred to, a voluntary
              departure notice requiring me to leave within 
              24 hours.
         13.2 I at once complied, pending the appeal which my
              German lawyer has already initiated on a number
              of legal grounds. I reiterate I have never been
	      notified of any formal prohibition against
	      entering Germany."

In terms of procedural fairness, in my view Mr. Irving was put
squarely on notice that the Minister intended to have regard
to the circumstances of the German departure order when
deciding Mr. Irving's application for a visa to enter
Australia. He was invited to comment in respect of that order.
The fact that Mr. Irving chose not to obtain a copy of that
order and to deal with the matters set out in it, is entirely
his responsibility. He declined to read the document when it
was served upon him, declined to accept service of it and,
apparently, declined to obtain a copy of it from his lawyers
in Germany. The respondent cannot be blamed for any
consequential omissions in Mr. Irving's response. Furthermore,
there was unchallenged evidence that the respondent did not
have a copy of the German deportation order in January 1994
and in fact did not receive a copy until mid April 1994. In my
view, the respondent did not deny Mr. Irving procedural


For the above reasons the application for orders of review in
respect of each decision will be dismissed with costs.

	I certify that his and the preceding thirty-nine 
	(39) pages are a true copy of the Reasons for Judgement 
	of Justice Carr.

	Associate: [signature]
	Date: 31 August 1995

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