The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

The Grounds Upon Which the Applicant Seeks an Order to Review

The First Decision - Grounds 1, 2 and 3

Mitchell J's Adverse Comments

Similar arguments were advanced to support the submission that to take into account Mitchell J's disbelief of Mr. Irving's affidavit evidence was to take into account an irrelevant consideration. At one stage, Mr. Bates sumitted that false evidence in an affidavit was "indicative of a weakness of character at its lowest level".

Even if Mr. Irving lied on oath to a quasi-judicial tribunal and to the High Court of Justice in the United Kingdom, Mr. Bates questioned whether that was sufficiently indicative of bad character as to "fall within the character requirements of Regulation 2(1)". Again that submission, in my view, side steps the issue.

The issue is whether, when deciding whether Mr. Irving was of good character, the respondent was entitled to take into account the fact that Mr. Irving had been found by a judge in London to have lied on oath in proceedings before the High Court of Justice. For similar reasons to those which I have expressed above, I do not think that factor was an irrelevant consideration. A finding that a person has deliberately given false evidence to a court of law is clearly, in my opinion, capable of being relevant to a decision whether that person is of good character.

Mr. Bates admitted on behalf of the applicant that the good character requirements of the Act and the regulations made under it must be intended to prevent people coming to Australia whose presence would harm Australia or the Australian community, or be adverse to the interests of Australia. In my view, the answer to that submission is that it is sufficient, to deny entry, that the person not be of good character; neither the Act nor the regulations require any more.

If my view is wrong, then the potential for harm or adverse interest to Australia may arise in the context of whether Mr. Irving's character was sufficiently good that he could be relied upon to comply with Australian law generally. It may well be harmful or adverse to Australia's interests to allow into Australia a person (even a visitor) who cannot be so relied upon.

I accept Mr. Owen-Conway's alternative submission that even if such harm or adverse interest is required, the respondent was entitled to have regard to Mr. Irving's contravention of Canadian immigration laws and the German criminal law when making this assessment of his character.

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