Federal Court of Australia Mr. Irving is a historian, normally resident in England, who
has written many books and who has travelled widely. He has
twice visited Australia. The first visit was in 198[??] for
approximately a fortnight and the second in 1987 for almost a
month.
On 21 April 1990, while at a function in Germany, Mr. Irving
stated in public:
"We now know - I need mention that here only as a
footnote - that there never were gas chambers in
Auschwitz. Meanwhile, we believe that just as the
gas chambers that the Americans erected here in Dachau
in the first days after the war was a mock[??] up,
so too the gas chamber [??] that you visit as a
tourist in
Auschwitz now, were constructed by the
Polish authorities after the Second World War ...
so the German taxpayer has had to pay around 16
billion marks as a punishment for
Auschwitz ..
for a mock up."
For making that statement Mr. Irving was charged with 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 with a
fine. He pleaded not guilty but on 5 May 1992 was convicted on
that charge by the Municipal Court in Munich and was ordered
to pay a fine of DM10,000 (about $10,000). Mr. Irving appealed
against that decision to the State Court in Munich. That Court
dismissed Mr. Irving's appeal and increased his fine to
DM30,000.
On 28 October 1992, while in Canada, Mr. Irving was arrested
at the instance of immigration authorities and appeared before
an immigration hearing on 29 October 1992. During the course
of that hearing Mr. Irving entered into negotiations with the
Canadian immigration officials. As a result of those
negotiations Mr. Irving admitted an offence under s.27(2)(g)
of the Canadian Immigration Act. The essence of the offence
was that upon entering Ontario Mr. Irving had stated that he
would only be spending two weeks in the Province when he
should have stated that he intended to visit British Columbia
and other Provinces. Mr. Irving also agreed to the issue of a
Departure Notice requiring him to depart from Canada by
midnight on Sunday 1 November 1992. In an affidavit sworn by
Mr. Irving on 8 February `1994 and tendered to the respondent
in support of his application for a visa,
Mr. Irving says
that on the evening of Friday 30 October 1992
a Canadian
businessman, Mr. Brian Fisher, drove him from Canada to Blaine
in Washington State, USA. He says that he was there for two
hours before returning to Canada and that the next day, a
Saturday, he flew to Toronto and at 11:00 pm on Sunday 1
November 1992 he presented himself at the Rainbow Bridge
between Canada and the United States. When he arrived at the
American end of that bridge, Mr. Irving says that the American
officials delayed him for one hour during which they engaged
in telephone conversations and exchanged messages with
officials at the Canadian end of the bridge. Eventually at
12.05 am on Monday 2 November 1992, so Mr. Irving deposes in
his affidavit, an American immigration official told him to
return to the Canadian end of the bridge "to sort everything
out". On his return to the Canadian end of the bridge Mr.
Irving was arrested by Canadian immigration officials and
charged with failing to leave Canada in accordance with the
Departure Order. Mr. Irving's evidence is that at the relevant
time he held a valid visa for multiple entry into the USA,
that he has since that episode lawfully visited the USA three
times and that the delay on the evening of 1 November 1992 was
due to someone having inserted a considerable amount of
libellous material about him on the US Immigration and
Naturalization Service's computer.
Between 2 November and 13 November 1992
an immigration hearing
took place at Niagara Falls before Immigration Adjudicator Mr.
Kenneth Thompson. Mr. Irving gave sworn evidence and adduced
evidence from others at that hearing concerning his departure
from Canada on the evening of Friday 30 October 1992. Mr.
Thompson, in his findings, said that he did not believe Mr.
Irving and gave written reasons for that finding. Mr.
Thompson's conclusions included the following:
"In [??] 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 [??] 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 [sic]
a rehearsed script. I found you to [sic] a difficult
witness who was often confrontational with the Case
presenting officer when he asked you straightforward
questions.
Mr. Thompson then ordered, pursuant to a.32(6) of the
Immigration Act,
that Mr. Irving be deported from Canada.
On 7 December 1992 (as mentioned above) Mr. Irving lodged his
first application for a visitor's visa to tour Australia. On 8
February 1993 the respondent rejected Mr. Irving's application
on the grounds that Mr. Irving's precence in Australia would
be "disruptive to the Australian community" - see paragraph
(c) of the definition of "public interest criteria" in
Regulation 2(1) of the 1989 Regulations.
In March 1993 Mr. Irving applied to this Court for an order of
review in respect of the respondent's decision to reject his
application for a visitor's visa. On 13 May 1993 French J.
dismissed that application. On 16 September 1993 the Full
Court of this Court allowed an appeal from that decision. The
Full Court ordered that the respondent's decision of 8
February 1993 be reviewed and set aside and that it be
returned to him for determination according to law.
On 9 November 1993, while Mr. Irving was in Munich, he was
served by the relevant German authority with an order
expelling him from the Federal Republic of Germany. The order
obliged him to leave that country immediately or no later than
10 November 1993. Mr. Irving complied with that order.
On 11 February 1994 in the High Court of Justice (Queen's
Bench Division) in London, Brooke J. found that Mr. Irving was
in contempt of court by failing to comply with an order of
Morison J. For that comtempt Brooke J. ordered Mr. Irving to
be commited [sic] to prison for a period of three months. On 21
February 1994 Mitchell H. heard an application on Mr. Irving's
behalf to purge his contempt and to obtain a discharge of the
order made on 11 February 1994 committing him to prison.
Mitchell J's written reasons in respect of that application
included the following paragraph:
"I have not found this an easy decision because
I have made it clear more than once during the
course of today - and I adhere to the conclusions
that I have been forming and expressing - that 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 country; I am afraid I do not
accept that for one moment."
Mitchell J, for reasons which he then gave and which were
concerned with compliance with Brooke J's order, ordered that
Mr. Irving be released from prison.
On 3 May 1994 the respondent refused both of Mr. Irving's
applications for visas on the grounds which I have summarised
above. On 27 May 1994 Mr. Irving filed this application.
The
original plaintext version
of this file is available via
ftp.
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Rules Against Irving
Factual Background