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 5

Further an in the alternative, the applicant relies on ss.5(1)(c) and 5(2)(g) of the ADJR Act on the basis that the respondent's decision to refuse the visa because Mr. Irving was not of good character was, so it was submitted, an improper exercise of the power conferred by s.24(7) of the Act. It was contended that the finding that Mr. Irving was not of good character within the meaning of Regulation 2(1) was so unreasonable that no reasonable person could have so exercised the power to make that finding. The applicant's particulars in respect of this ground were that neither the German conviction, the finding of Immigration Adjudicator Thompson nor the comments of Mitchell J., nor any combination thereof, could reasonably have formed a basis for the respondnet's decision.

In his oral submissions, Mr. Bates expressed this slightly differently but with similar effect. He submitted that the respondent's decision was so capricious that no sensible decision-maker with a due appreciation of his responsibilities would have made it. I was referred once again to paragraph 2.2 of the Manual (set out above) and the security and penal elements of the good character requirement. Mr. Bates submitted that there was no considered basis for the Minister to conclude that Mr. Irving "... would harm the Australian community so as to render himself not of good character."

The test is, as both counsel agreed, an objective one but nonetheless a stringent one in terms of administrative law. Before the respondent's decision is reviewable as being unreasonalbe to the requisite degree, the Court must be satisfied that no decision-maker, acting reasonably, could have arrived at such a decision: Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223 at p.230; Parramatta City Council v. Pestell (1972) 128 CLR 305 at p.327.

In this matter, where Mr. Irving has been found to have committed a serious crime against German law (defaming the dead) and furthermore to have lied on oath to a quasi-judical tribunal and more recently to the High Court of Justice in England I am not satisfied that no decision-maker, acting reasonably, could have arrived at the decision that Mr. Irving is not of good character. On the contrary, such a decision was clearly one that could have been made quite reasonably, viewing the circumstances objectively.

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