The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

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 Regulations.

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 deportee.

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 respondent'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 so.

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 refer 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.

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