The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

The Statutory and Regulatory Framework

The First Decision

The visa for which Mr. Irving first applied was described in the 1989 Regulations as a "class 672 visa". Section 24 of the Migration Act governed the grant or refusal of visas. Section 24(7) relevantly provided that where it appeared to the Minister that an applicant for a visa was not, under the regulations, entitled to be granted a visa of the class concerned, "the Minister shall refuse to grant the applicant which such a visa". An applicant for a class 672 visa was required to satisfy, among other things, public interest criteria as provided for in the 1989 Regulations - [see Regulations 2, 4, 10, 34A, 41, Schedule 1 item 5 and Schedule 2 item 45] The only public interest criterion in issue in this matter is that referred to in Regulation 2, namely that the person "is of good character". Regulation 4 prescribes certain circumstances in which a person is taken not to be of good character. Regulation 4(1) relevantly provides as follows:

"4. (1) For the purposes of these regulations, a person is 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:

(1) the applicant has been assessed [??] by the competent Australian authorities to be a risk to Australian national security; or

(2) the applicant:

(A) has at any time been convicted of a crime and sentenced to death, 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 sub-paragraph 11A(1)(d)(vi) of the Act; ...."

I have placed an asterisk beside the two sub-paragaphs upon which the respondent relies in this matter.

The circumstances prescribed in sub-paragraph (E) above can be found in Regulation 177 which relevantly provides that each of a list of circumstances is a prescribed circumstance upon which the respondent relies in this matter is set out in regulation 177(d) which reads as follows:

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

The respondent has a discretion to waive the requirement that the applicant be of good character where the applicant fails to satisfy public interest criteria only because he or she is to be taken not to be of good character. In the present matter the relevant basis for the excercise of that discretion is provided by Regulation 143(a)(ii) which provides that the Minister may grant the visa if he is satisfied that "the applicant has shown by subsequent conduct that he or she is reformed".

In summary, the applicant says that he is of good character and but for the deeming provisions in Regulation 4, satisfies the public interest criterion. Mr. Irving disputes that his exclusion from the Federal Republic of Germany falls within Regulation 4(1)(E) when read with Regulation 177(d) upon the proper construction of the term "national security". Mr. Irving does not dispute that he has been deported from another country, namely Canada. However, he submits that the Minister should, in the circumstances, exercise the discretion conferred on him by Regulation 143, to waive the good character requirement.

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