The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

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 judgment 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 original plaintext version of this file is available via ftp.

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