The Nizkor Project: Remembering the Holocaust (Shoah)

Minutes of Order & Reasons for Judgment
The Hon. Justice Davies


THE COURT ORDERS THAT: The appeal be dismissed with costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


Davies J:- This is an appeal from a judgment of a judge of the Court, Carr J, in which his Honour dismissed an application which sought orders of review with respect to two decisions made by the respondent, the Minister for Immigration, Local Government & Ethnic Affairs ("the Minister"), on 3 May 1993, refusing applications made by the appellant, David John Cawdell Irving, on 7 December 1992 and on 3 June 1993 for a Business Visitor (Short Stay) Visa.

In the first application, M: Irving sought a class 672 visa, that is to say a Business Visitor (Short Stay) Visa, which was specified in Schedule 2 of the Migration Regulations 1989 ("the 1989 Regulations") to the Migration Act 1958 (Cth) ("the Act"). An applicant for a class 672 visa was required to satisfy, among other things, certain "public interest criteria" which were set out in reg. 2. The public interest criterion which is in issue was that the person "is of good character".

Regulation 4(1) of the 1989 Regulations relevantly provided: "4. (1) For the purposes of these Regulations, a person is to be taken not to be of good character if: (a) in the case of an applicant for a visa or an entry permit of any class: ... (ii) the applicant: ... (D) has been deported from another country; or (E) has been exduded from another country in the circumstances prescribed for the purposes of sub-paragraph 11A(1)(d)(vi) of the Act; ... '

One of the circumstances referred to in sub-paragraph (E) was that set out in reg. 177(d) which read as follows: "(d) that the authorities of that country considered the person to be a threat to the national security of the country."

The Minister had a discretion under reg. 143(a)(ii) of the 1989 Regulations to waive the requirement that the applicant be of good character. This regulation provided that the Minister could grant the visa to an applicant who had failed to satisfy public interest criteria only because he was taken not to be of good character if the Minister was satisfied that "the applicant has shown by subsequent conduct that he or she is reformed."

When the second application was lodged, the statutory and regulatory provisions had altered but their effect was similar. On 3 June 1993, s.180A of the Act relevantly provided:

     "180A (1) The Minister may refuse to grant a visa or an entry 
     permit to a person, or may cancel a valid visa or a valid entry 
     permit that has been granted to a person, if:
     (a)     subsection (2) applies to the person; or
     (b)     ...
     (2)     This subsection applies to a person if the Minister:
     (a)     having regard to:
          (i)      the person's past criminal conduct; or
          (ii)     the person's general conduct;
     is satisfied that the person is not of good character,

The Migration (1993) Regulations ("the 1993 Regulations") provided in Schedule 1 for a class 672 visa, which was a Business Visitor (Short Stay) Visa. One of the criteria for the visa was that the applicant satisfy the public interest criteria specified in Clause 4001 of Schedule 4 which read as follows:


4001(1) The applicant meets the requirements of subclause (2), (3) or (4).

(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit.

(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit, the Minister has decided that the evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.

(4) An applicant meets the requirements of this subclause if, despite being satisfied that the refusal, under section 180A of the Act, to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa or entry permit."

After considering each application, the decision-maker, the Minister, concluded that he was not satisfied that the applicant was a person of "good character" and he refused to waive compliance with this criterion.

The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review. The Administrative Decisions (Judicial Review) Act 1977 (Cth) confers on the Court not the function of reviewing decisions on their merits, but the function of correcting those errors which may loosely be described as errors of law, that is to say errors which offend the legal principles laid down for administrative decision-making.

It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

Mr Irving is an English historian who, over a number of years, has propounded views relating to the Holocaust which are controversial and which some persons, particularly those of the Jewish people, find disturbing. However, the Minister did not examine or base his decisions on Mr. Irving's writings and speeches. There is no challenge to that course.

There was not tendered before the learned trial Judge, and there is not before the Court, any statement of the reasons for the decisions of the Minister. But, there are in evidence lengthy, written recommendations which were put to the Minister prior to his making both decisions. Counsel have accepted that these recommendations may be treated as a reliable guide to the factors to which the Minister had regard and, by reason of his approving of the recommendations without comment, to the reasoning process of the Minister himself.

The case which Mr Irving put to the Minister was not a promising one. It was not in dispute that Mr Irving had been convicted of an offence in West Germany and expelled therefrom, that he had been deported from Canada for breach of Canada's migration regulations, that there was a warrant for his arrest in Austria and that he had been refused entry to Italy and to South Africa. Deportation and refusal of entry do not of themselves throw much light upon the inherent qualities which a person may have. But it would be fair to say that it would be seldom that a person of good character had been expelled from or refused entry into so many countries. Regulation 2 of the 1989 Regulations specifically provided that a person was to be taken to be not of good character if the person had been deported from another country.

The recommendations put to the Minister concentrated upon certain principal circumstances. The first was that the applicant had been convicted in West Germany in 1992 of the offence of "defaming the memory of the dead", contrary to s.189 of the Criminal Code of the Federal Republic of Germany, an offence punishable by up to two years imprisonment or by a fine. He pleaded not guilty but, on 5 May 1992, was convicted by the Municipal Court in Munich and was ordered to pay a fine of DM10,000 (about $10,000). Mr Irving appealed to the State Court in Munich. That Court dismissed Mr Irving's appeal and increased his fine to DM30,000.

A subsequent order for Mr Irving's expulsion from Germany stated, inter alia:

"Your presence in the Federal Republic of Germany infringes public security, public order and also considerably the interests of the Federal Republic of Germany ...

For years you have been entering the Federal Republic of Germany, to publicise your ideas at functions ...

These ideas constitute the criminal act of insulting and reviling the memory of the dead.

The execution of such criminal acts constitute regularly the infringement of public security and order. In this case this is of great importance as the insults and reviling concern a whole group of the population and since they are perpetrated in a very public manner.


Your behaviour constitutes a danger to the inner security of the Federal Republic of Germany in the greater sense and at the same time does damage to the reputation of the German State ..."

An issue in this appeal is whether, in expelling Mr Irving, the German authorities considered him to be a threat to the "national security" of the country. It was submitted by counsel for Mr Irving that the term "national security" in reg. 177(d) refers to external security rather than to internal security. "National security" is not, however, limited to external matters. It looks to matters affecting the country in general rather than individual persons. Mr Irving's conduct in West Germany concerned both the internal security of the country and also its relations with other countries. It is not in dispute that Mr Irving's views are regarded as offensive by many people, particularly Jewish people. Therefore, Mr Irving was expelled for reasons of national security.

It was submitted by counsel for Mr Irving that the offence committed in West Germany was irrelevant, as there is no law in Australia which prohibits the conduct for which Mr Irving was convicted in Germany. It was submitted, somewhat loosely, that, in Australia, freedom of speech is a fundamental right and it was further submitted that no reasonable person in Australia would regard the conviction in Germany as bearing upon good character. The conviction, it was said, arose from Mr Irving's attempts to speak freely on an issue of public interest.

This submission misunderstands the function of the Court. It was for the administrative decision-maker to decide whether he was satisfied that Mr Irving was of good character. The conviction in West Germany was not irrelevant and it was not of so little weight that no reasonable decision-maker would give attention to it. Germany, like Australia, is a democratic country and Mr Irving's conduct in that country was an offence against its laws. What weight the Minister attached to the conviction was a matter for him, not for the Court.

Another matter to which the Minister gave attention was that, in October 1992, Mr Irving was arrested by immigration authorities in Canada and appeared at an immigration hearing. After negotiation, Mr Irving admitted an offence under s.27(2)(g) of the Canadian Immigration Act. A departure notice requiring him to depart Canada by midnight on Sunday, 1 November 1992 was issued. On Monday, 2 November 1992, Mr Irving was again arrested. At a further hearing, presided over by Immigration Adjudicator Mr K Thompson, Mr Irving gave evidence that he had sought to leave Canada on 1 November 1992, that he had driven to the United States' end of the Rainbow Bridge, which ran between Canada and the United States, but had been returned by the American immigration officials notwithstanding he held a valid visa for multiple entry into the United States. That evidence was rejected by Mr Thompson who said, inter alia:

"In assessing your evidence as a whole, you have been unable to persuade me that you did leave Canada on October 30, 1992. I have a great deal of difficulty accepting your evidence. It did it [sic] not have the ring of truth to it, but observing you and listening to your testimony, I could not help but get the impression that you were at times re-citing [sicl a rehearsed script. I found you to [sic] a difficult witness who as often confrontational with the case presenting officer when he asked you straight forward [sic] questions.

When viewed as a whole this evidence can lead to only one conclusion; the event was a total fabrication and never took place ..."

Mr Thompson then ordered that Mr Lrving be deported from Canada.

Mr Irving's explanation of the Canadian events was again put to the Minister in this country. However, an administrative decision-maker is not bound to accept a version of events put by an applicant for a visa. The decision-maker will give the applicant's story such weight as he or she considers appropriate in all the circumstances. See, eg., Singh v Minister for Immigration and Ethnic Affairs (Branson J, 29 April 1996, unreported).

Another relevant occurrence was that, on 11 February 1994, in the High Court of Justice in London, Brooke J found that Mr Irving was in contempt of that Court for failing to comply with an order of Morison J. Brooke J ordered that Mr Irving be committed to prison for a period of three months. Subsequently, on 21 February 1994, Mitchell J heard an application on Mr Irving's behalf for his discharge and ordered that Mr Irving be released from prison. In the course of his reasons for judgment, Mitchell J indicated that he did not accept Mr Irving's explanations. His Lordship said, inter alia:

"... I am afraid I do not accept the explanations appearing in his affidavit, that is to say, his explanation to me that he had not the faintest idea that any of this was going on - that includes that he had not the faintest idea that the German judgment was even registered in this countly; I am afraid I do not accept that for one moment."

In my opinion, all these matters, the offences against the laws, the conviction, the contempt of court, the orders for deportation and the findings of lack of veracity, were matters which the Minister was entitled to take into account in his assessment whether or not Mr Irving was a person of "good character". No matter taken into account by the Minister was irrelevant to his task.

In my opinion, the decision of the Minister was not such that no reasonable decision-maker could have arrived at it.

I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision. Once the decision has been made, it matters not that another decision-maker may have concluded differently. The decision will stand unless an error of law is established, eg., that the decision was such that no reasonable decision-maker could have arrived at it. No such error has been established in the present case.

It was further submitted that the provisions in reg. 143(a)(ii) of the 1989 Regulations did not apply, or had been satisfied, as Mr Irving had never been culpable and therefore there was no occasion for his reform. I am satisfied, however, that the regulation was applicable and that the Minister was entitled not to be satisfied that Mr Irving had shown by subsequent conduct that he had reformed. Indeed, the inference was open to the Minister that Mr Irving proposed to continue to act in the future as he had in the past, because he considered it right to do so.

I would dismiss the appeal with costs.

I certify that this and the 10 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Davies.
Date: 30 July 1996

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