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 - Ground 4

Further an in the alternative, Mr. Irving relies on ss.5(1)(h) and 5(3) of the ADJR Act and says that there was no evidence or other material within the meaning of those provisions to justify the making by the respondent of the decision to reuse to grant Mr. Irving a visa on the ground that he was not of good character within the meaning of Regulation 2(1). The applicant's particulars in relation to this ground were that:

(a) the respondent was required to make a decision whether or not to grant Mr. Irving a visa;

(b) the respondent was required by law to exercise his discretion against Mr. Irving only if a particular matter were established, namely that he was not of good character; and

(c) there was no evidence or no relevant evidence upon which the respondent could have relied to come to that decision. Those particulars incorporate by reference the particulars relied upon in respect of the first three grounds referred to above.

Mr. Bates argued that the respondent could not make the decision to refuse Mr. Irving a visa until a particular fact was established, namely whether or not Mr. Irving was of good character. He then submitted that the words "... there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established: in s.5(3)(a) of the ADJR Act were equivalent to "there being insufficient evidence" which introduced concepts of weight.

Mr. Bates submitted that even if the three matters of the German conviction, Adjudicator Thompson's findings and Mitchell J's findings were relevant matters, they were of such minimal weight when viewed against the factual background in which they occurred that they constitute insufficient evidence to justify the decision. In that regard I was referred to Mr. Irving's various versions of the three events, which were set out in his affidavits, as evidencing extenuating circumstances.

As Drummond J. observed in Irving v. Minister for Immigration (1993) 44 FCR 540 at p.560, the making of the decision to refuse the visa depends upon the establishment of the matter, viz, the failure by the applicant to satisfy the good character requirement. The question is whether there was any evidence in the sense of material admissible according to the rules of evidence or other material relevant to, and logically probative in respect of Mr. Irving's character upon which the respondent could reasonably be satisfied that Mr. Irving was not of good character.

In essence, the applicant's attack on the respondent's decision was based on the proposition that the weight to be attached to the German conviction, Adjudicator Thompson's finding and what Mr. Bates described as the "Mitchell J. incident" was lessened to such a substantial extent that it should not have been relied upon.

The problem with that proposition is that generally the weight to be attached to any individual matter or combination of matters is a question for the respondent to decide: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at p.42. The question for the Court is as I have just outlined above.

Given that it was for the respondent to decide what weight, if any, to give to Mr. Irving's explanations, there was in my view evidence or other material from which the respondent could reasonably be satisfied that Mr. Irving had failed to satisfy the good character criterion. By that I refer to the evidence of Mr. Irving's conviction in Germany for defaming the dead.

It was open to the Minister to have regard to that factor in assessing Mr. Irving's character regardless of whether that conduct would constitute a criminal offense in Australia. Similarly there was the evidence of Immigration Adjudicator Thompson's findings that Mr. Irving had lied to him on oath at the immigration hearing and, finally, Mitchell J's finding that Mr. Irving had lied in an affidavit filed in the High Court of Justice in England. In my view, the applicant has not made out Ground 4.

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

[ Previous | Index | Next ]

Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.