The Nizkor Project: Remembering the Holocaust (Shoah)

Reasons for Judgment
The Hon. Justice Lee
(Part 1 of 2)



On 7 December 1992, and on 3 June 1993, the appellant applied for a Business Visitor (Short Stay) Visa pursuant to regulations made under the Migration Act 1958 (Cth) ("the Act"). The appellant is a well-known author and historian and the purpose of his proposed visit to Australia was to promote the sale of his books. The views of the appellant expressed in his publications and in lectures have challenged accepted facts on the genocide of the Jewish race under the third Reich. As a result the appellant is not a popular figure and attracts controversy.

The appellant had been granted permission to enter Australia for business purposes on two previous occasions, in 1986 and 1987, and visits had been made by the appellant in compliance with the terms of those permits.

Notwithstanding his lack of popularity, in the ordinary course of events the issue of the prior permits would have given the appellant cause to expect that a visa of the type applied for would be granted to him. (See: R v Secretary of State for the Home Department ex parte Moon, 1 November 1995, QB Div, Sedley J; Civ Lib, Vol 1 (1996), 96-97.) However, subsequent to the last visit to Australia the appellant's circumstances changed in that in May 1992 he was convicted of an offence in Germany and in November 1992 he was deported from Canada. In November 1993 the appellant was served in Germany with an order excluding him from that country.

On 3 May 1994 the Minister refused to grant a visa to the appellant on either application.

The relevant provisions pursuant to which the Minister's decisions were made were the Migration (1989) Regulations ("the 1989 Regulations") and the Migration (1993) Regulations ("the 1993 Regulations"). The 1993 Regulations repealed and replaced the 1989 Regulations on 1 February 1993. (See: S.R. 367/1992 - "Migration (1993) Regulations - Part 8 - Repeal and Saving Provisions".) The 1993 Regulations were repealed by the Migration (1994) Regulations on 1 September 1994. (See: S.R. 261/1994 - "Migration Reform (Transitional Provisions) Regulations.)

It was not submitted that the repeal of the regulations in 1993 and 1994, or that amendments to the relevant sections of the Act that were made subsequent to the applications, had any impact upon the respective applications or upon the decisions able to be made thereon.

A Business Visitor (Short Stay) Visa, as the name implies, is a visa constructed to accommodate the interests of a person intending to visit Australia for a limited period for the purpose of business. The meaning of the criteria prescribed as qualifying cirsumstances for the grant of such a visa must be determined according to the context in which the words are used.

Pursuant to sub-s 23(2) of the Act, as it stood at the time both applications were made, regulations made under the Act may provide that a person is entitled to be granted a visa of a particular class if the person "satisfies" all the prescribed criteria in relation to that class. Sub-section 24(7) of the Act provided that where it "appears" to the Minister that the applicant is not, under the regulations, entitled to be granted the visa applied for, the Minister shall refuse to grant the applicant the visa.

Under the 1989 Regulations one of the prescribed criteria for entitlement to the grant of a visa of the class applied for by the appellant was that the applicant "meets relevant public interest criteria". The words "relevant public interest criteria" were defined in reg 2. The only public interest criterion of relevance to this case was that the applicant be "of good character".

Regulation 4 of the 1989 Regulations provided that 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:

(i) the applicant has been assessed by the competent Australian authorities to be a risk, directly or indirectly, to Australian national security; or

(ii) the applicant:

(A) has at any time been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year; or

(B) has at any time been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling not less than one year; or

(C) has at any time been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while the person was of unsound mind; or

(D) has been deported from another country; or

(E) has been excluded from another country in the circumstances prescribed for the purposes of subparagraph 20 (1)(d)(vi) of the Act; or

(iii) the applicant has, in the reasonable belief of the Minister, been involved in activities indicating contempt, or disregard, for the law or for human rights; and

(b) in the case of an applicant for an entry visa having effect as a permanent entry permit, or for a permanent entry permit - the applicant has at any time been convicted of an offence (other than an offence referred to in paragraph (a)) in circumstances indicating, in the reasonable belief of the Minister, habitual contempt, or disregard, for the law or for human rights "

The prescribed cirsumstances referred to in item (ii)(E) of reg 4 are those set out in reg 177 of the 1989 Regulations of which reg 177(d) is relevant in the present case, namely:

"(d) that the authorities of that country considered the person to be a threat to the national sesurity of the country "

Regulation 143 purported to provide the Minister with power to grant a visa to a person who failed to satisfy the prescribed criteria. It read [sic] as follows:

"143 Notwithstanding any other provision of these Regulations, the Minister may grant a visa or an entry permit to an applicant who fails to satisfy public interest criteria only because the applicant is to be taken not to be of good character, if

(a) the Minister is satisfied that:

(i) in the case of the cirsumstance referred to in subparagraph 4(a)(i) - the cirsumstance no longer obtains; or

(ii) in the case of conduct referred to in subparagraph 4(a)(ii) or (iii) - the applicant has shown by subsequent conduct that he or she is reformed; and

(b) the Minister is satisfied that undue harm would be unlikely to result to the Australian community if the visa or entry permit was granted; and


Regulation 143 should not be read as the creation of a power in the Minister to grant a visa to a person who does not satisfy the prescribed criteria - such a regulation likely to be beyond power having regard to the mandatory terms of sub-s 24(7) of the Act - but as a power in the Minister to waive or vary the prescribed criteria or, as appears to be a more appropriate construction, as confirmation that if at the time of consideration of the application by the Minister the applicant satisfies the prescribed criteria the Minister may grant the visa. That is to say, if, at that time, an applicant is not assessed as a risk to Australian national security and is of good character by reason of reformation, the prescribed criteria are satisfied and the Minister may grant the visa.

Section 180A was inserted in the Act on 24 December 1992 and it read as follows:

"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) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i) be likely to engage in criminal conduct in Australia; or (ii) vilify a segment of the Australian community; or (iii) incite discord in the Australian community or in a segment of that community; or (iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.

(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; or

(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

(3) The power under this section to refuse to grant a visa or an entry permit to a person, or to cancel a valid visa or a valid entry permit that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa or an entry permit to a person, or to cancel a valid visa or a valid entry permit that has been granted to a person."

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