The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

Both Decisions
Procedural Unfairness [s.5(1)(a) of the ADJR Act]

The applicant claimed that both of the respondent's decisions were based on matters contained in the German expulsion order which had not been put to Mr. Irving for comment. The particular matter was the finding of the German authorities that Mr. Irving's presence in the Federal Republic of Germany infringes public security, public order and the interests of that country.

Mr. Bates referred to a letter dated 13 January 1994 from the respondent to Mr. Irving inviting him to answer certain questions. It was said that seven of those questions invited comment upon Mr. Irving's expulsion from Germany and related to matters contained in the German expulsion order. However, it was argued that by not inviting Mr. Irving to comment upon the allegation in the German expulsion order that his conduct infringed German public security, public order or the interests of the Federal Republic of Germany and then making a decision based on that matter, there had been a breach of the rules of natural justice.

I pressed Mr. Bates during argument to confirm whether or not his client relied on certain evidence from Mr. Irving that he personally did not receive a copy of the German expulsion order. I was told that Mr. Irving did rely on that factor, in addition to the fact that the respondent had not specifically put to him the assertion which was contained in that order and which I have set out above. The evidence [Exhibit B] from Mr. Irving on this point included the following:

"In relation to the German Expulsion Order issued against me in November 1993 the first time I had the opportunity of reading this was when my solicitors in these proceedings in Australia sent me a copy of the annexures[??] attached to the Greenup[??] affidvait in August 1994. Although I was served with an order to leave Germany within 48 hours in November 1993 (which I fully complied with), I refused to sign an acknowledgement of receipt of the order and so as a consequence it was sent instead to my German Lawyers and I never read it at the time."

Insofar as Mr. Irving's complaints of being denied procedrual fairness are based upon the fact (which for present purposes I will assume to be the case) that he did not read and was not in possession of the document and he chose not to read it. In any event, his German lawyers had constructive possession of that document on his behalf.

There was no dispute that the applicant was entitled to be accorded procedural fairness in respect to both decisions. The content of the requirement to accord procedural fairness varies according to the circumstances: Loa v. West (1985) CLR 550 at pp.584-585. In the present matter Mr. Irving was sent letters dated 13 January 1994, 4 February 1994 and 24 February 1994 inviting him to comment on a number of issues which might be taken into consideration when deciding his application for a visa. Mr. Irving responded with an affidavit sworn on 8 February 1994, a letter dated 24 February 1994, an affidavit from his Canadian lawyer Mr. Christie, an affidavit from Mr. Fisher, a video of an interview with Dr. Piper, curator of the Auschwitz Museum and a further letter of explanation dated 14 April 1994.

One of the issues which Mr. Irving was invited to address by the letter dated 13 January 1994 was:

"(m) That the Munich Aliens' Office issued you with an expulsion order on 9 November 1993".

Attached to that letter were copies of the relevant provisions of the Act and Regulations relevant to the public interest criteria and the exercise of the Minister's discretion. Mr. Irving responded to each of the matters referred to in that letter by his affidavit sworn on 8 February 1994. The portion of the affidavit which dealt with the German expulsion order was as follows:

"13. Voluntary Departure Notice - Munich, November 9, 1993 (Paragraph m)

13.1 On the 9th. November, 1993 the Munich District Administration Council (Kreisverwaltungareferat[??]) aliens department issued the order referred to, a voluntary departure notice requiring me to leave within 24 hours.

13.2 I at once complied, pending the appeal which my German lawyer has already initiated on a number of legal grounds. I reiterate I have never been notified of any formal prohibition against entering Germany."

In terms of procedural fairness, in my view Mr. Irving was put squarely on notice that the Minister intended to have regard to the circumstances of the German departure order when deciding Mr. Irving's application for a visa to enter Australia. He was invited to comment in respect of that order. The fact that Mr. Irving chose not to obtain a copy of that order and to deal with the matters set out in it, is entirely his responsibility.

He declined to read the document when it was served upon him, declined to accept service of it and, apparently, declined to obtain a copy of it from his lawyers in Germany. The respondent cannot be blamed for any consequential omissions in Mr. Irving's response. Furthermore, there was unchallenged evidence that the respondent did not have a copy of the German deportation order in January 1994 and in fact did not receive a copy until mid April 1994. In my view, the respondent did not deny Mr. Irving procedural fairness.

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