The Nizkor Project: Remembering the Holocaust (Shoah)

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

The effect of s 180A was that notwithstanding an applicant may be entitled to the grant of a visa pursuant to the terms of sub-s 23(2) of the Act, the Minister was able to refuse to grant such a visa if the Minister was satisfied of certain matters under sub-ss 180A(1) or (2). That is, notwithstanding that an applicant was not deemed to be not of good character by the terms of reg 4, the Minister may be "satisfied" that the applicant was not of good character pursuant to sub-s 180A(2).

Under regs 2.1 and 2.2 and Schedule 2 (cl 672.333) of the 1993 Regulations one of the prescribed criteria in relation to the class of visa applied for by the appellant was that the applicant "satisfies public interest criteri[on] 4001" which appeared as cl 4001 of Schedule 4 to the regulations 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 that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (l)(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."

The effect of reg 4001, in particular sub-reg 4001(4), is to include in the prescribed criteria the discretion of the Minister to accept that an applicant meets the requirements of reg 4001 notwithstanding that after making appropriate enquiries the Minister is satisfied that sub-ss 1 or 2 of s 180A applies to the applicant.

Expressed in that way the regulation is not contrary to the terms of sub-s 24(7) of the Act but it does impose an obligation on the Minister to decide whether to exercise his discretion to allow an applicant to meet the requirements of reg 4001 before the visa applied for may be granted or refused.

Unless the terms of the Act and regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Ld Radcliffe at 1128-1129, Ld Denning at 1138.) A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, (see: In Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

In respect of the first application for a visa, the Minister had to determine whether it "appeared" to him that the appellant was entitled to be granted the visa applied for. That is, did it "appear" to the Minister that the appellant had "satisfied" the prescribed criterion that the appellant was required to "meet", namely, that he is of good character? In determining what had "appeared" to him the Minister had to have regard to the adverse presumption applied by reg 4 of the 1989 Regulations and to any evidence that was capable of rebutting that presumption. (See: Secretary, Department of Social Security v Leahy (1989) 93 ALR 373 at 379.) In respect of the second application the Minister had to determine whether it "appeared" to him that the appellant "satisfied" the criterion prescribed in cl 4001 that the appellant "meet" the requirements of either sub-cll 4001(2), (3) or (4). The appellant would not "meet" such a requirement if, under sub-s 180A(2) of the Act, the Minister, having regard to the appellant's past criminal conduct or his general conduct, was "satisfied" that the appellant "is not of good character", unless the Minister decided to exercise his discretion to accept that the applicant met the requirements of sub-cl 4001(4).

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.

Although the words "good character" would bear their ordinary meaning, the terms of the 1989 regulations indicated that that meaning had been modified. Under the 1989 Regulations, absence of good character is presumed from the fact of deportation; exclusion from another country as a threat to the national security of that country; or conviction of an offence of a particular character. Under the 1993 Regulations the question whether a person is not of good character is determined not as a fact but upon it "appearing" to the Minister that he or she is "satisfied" that such is the case having had regard to the past criminal conduct or the general conduct of that person and having declined to exercise a discretion to accept that the applicant "meets" the prescribed public interest criteria.

In the 1989 Regulations the connection between the requirement that a person be of good character and the protection of the interests of the public was clearly expressed. In the 1993 Regulations such a connection is implied. Counsel for the appellant submitted that the meaning of "good character" as used in the 1989 Regulations, and in the 1993 Regulations, was a meaning that was consistent with the maintenance of public sesurity and safety and that if the presence of the appellant in Australia would involve no such threat it should be concluded that the appellant had satisfied the required test.

The appellant's contention is not without substance but the range and purpose of requests for entry to Australia may require different emphases to be placed on matters that are relevant to each applisation. For example, the requirement that an applicant for a visa to enter Australia for business purposes be of good character may require consideration of wider matters than would apply to an applicant for a visa to enter Australia for entertainment or tourist purposes.

Undoubtedly, the absence of harm to the Australian community from the issue of a visa of the type for which the appellant had applied was relevant to the meaning of good character as one of the qualifications for the grant of that visa. The task for the Minister was to have regard to the ordinary meaning of those words as modified by the Regulations and to the scope and purpose of the visa sought to be granted and to apply common sense in determining whether the appellant "satisfied" the prescribed criterion that he be of good character.

It was a fact that the appellant had been deported from Canada in 1992. It followed that in respect of the first application the appellant was to be taken to be a person not of good character and was not entitled to the grant of a visa unless able to prove, to the satisfaction of the Minister, that, in fast, he was of good character. The appellant did not present his case on the basis that the presumption of reg 4 had been rebutted and that good character had been proved.

Therefore, the real issue of the appeal in respect of the first application is whether the Minister erred in failing to be satisfied under reg 143 of the 1989 Regulations that the appellant, taken to be not of good character by reason of his deportation from Canada, had shown by his subsequent conduct that he had reformed and, therefore, was of good character.

In a departmental submission put before the Minister to inform the Minister of the matters to be considered in making his decision on the applisation, it was suggested that it could "appear" to the Minister that the appellant did not satisfy the prescribed criterion as to good character without the Minister being required to consider any subsequent conduct relied upon by the appellant to show that the appellant had reformed and was of good character.

As set out in the analysis of the legislative provisions recited above advice to that effect would not state correctly the requirements of the Act and regulations. However, by striking out the word "reformed" it appears that the Minister considered that material separately and was not satisfied that the appellant had shown by that conduct that he was reformed and of good character.

Although his Honour was not persuaded that the Minister was obliged to consider subsequent conduct of the appellant relied upon by the appellant as evidence of reformation, he dealt in full with the argument of the appellant that the Minister had erred in failing to find that he was satisfied that the appellant had reformed.

His Honour found, and with respect I agree, that reformation, and, therefore, good character, is not established by consideration of any such subsequent conduct relevant to the ground on which the appellant was deemed to be not of good character pursuant to reg 4. The 1989 Regulations in reg 143 made it clear that the Minister had to consider all subsequent conduct of an applicant before deciding whether it appears to the Minister that the applicant is a person not of good character. There were matters in the appellant's subsequent conduct that stood in his favour but they were not of such weight that it could be said that it had been shown by the appellant that any decision other than that he was a person of good character would be wholly unreasonable.

With regard to the second application, as has been recited, the Minister's desision-making power was described in a different form under the Act and the 1993 Regulations. The prescribed criteria in reg 4001 depended for their operation upon the terms of s 180A. The operation of s 180A was in two parts, namely, whether the Minister was satisfied that the appellant was a person to whom sub-s 180A(2) applied; and, if so, whether in the exercise of a discretion the appellant was to be accepted as a person who met the terms of the prescribed criteria.

The past criminal conduct of the appellant was reflected in the conviction in Germany in 1992 of the offence of "slander concomitant with disparagement of the dead" arising out of statements by the appellant which reflected his controversial views on the occurrence of events in countries under German control prior to and during the Second World War. In the absence of any material to the contrary it should be assumed that, as recommended in the submission put before him, the Minister did not form his satisfaction that the appellant was not of good character on that ground and that the foundation for the Minister's satisfaction arose out of the consideration of the appellant's general conduct.

The appellant submitted that a number of matters to which the Minister may have turned his mind would have been irrelevant to the decision the Minister was required to make, namely, whether it appeared to the Minister that the appellant satisfied the prescribed criteria.

The appellant submitted that the Minister erred by having regard to the service upon the appellant of an expulsion order in Germany in November 1993, the deportation of the appellant from Canada in November 1992 and adverse findings of fast made against the appellant in an administrative review of that deportation order. It was not contended that the Minister was not able to have regard to events that had occurred after the date on which the application for the visa was made. The appellant relied upon conduct subsequent to the applications as evidence of his good character.

Although the recited aspects of the appellant's general conduct may have given little assistance to a determination of whether the appellant was not a person of good character, it is not possible to say they were irrelevant considerations in such a determination. Similarly, the conduct of the appellant which resulted in the appellant being found in contempt of Court in the United Kingdom in February 1994 by failing to file an affidavit within the time directed in an order deemed to have been served upon him by post, and the conviction in 1992 of the offence against the Criminal Code of the Federal Republic of Germany were aspects of the appellant's conduct the Minister was entitled to consider. Singly, each matter would have provided little insight into the inherent qualities of the character of the appellant but in combination perhaps a view may have been formed that the appellant was not a person of good character in the sense in which that qualification was expressed in the 1993 Regulations.

With regard to the Minister's failure to exercise the discretion conferred by sub-r 4001(4) to regard the appellant as a person who meets the prescribed criteria, the exercise of that discretion was unfettered by the terms of the sub-clause.

A decision to refuse to exercise such a discretion would not be amenable to review unless it could be shown that the refusal was based on irrelevant considerations or on a failure to have regard to relevant considerations or was so unreasonable that no reasonable decision-maker could have so decided. In respect of the last mentioned ground, it would have to be shown that the decision offended reason and common sense, not merely that it was a decision that carried a harsh result. No case of that nature was established by the appellant. In respect of the first mentioned grounds, perhaps it may be said that an error in the decision-making process may be shown if the decision was formed by consideration of the extent to which the appellant's opinions as an historian or author were unpopular or controversial. It was not submitted that the Minister's decision was controlled by the opinion he had formed on that issue. In respect of the second ground an error may be disclosed if the Minister failed to consider the implied right of the Australian people as a democratic society under the terms of the Constitution to have freedom of communication in matters of public affairs and political discussion, (see: Australian Capital Territory Television Pty Ltd v The Commonwealth (1992) 177 CLR 106), including freedom to communicate in such matters with external sources or with visiting non-nationals. Again, no case was sought to be made out by the appellant in that respect.

The appeal must be dismissed.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate: [signature] Alisen Murphy
Date: 30 July 1996

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