The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving


The Statutory and Regulatory Framework

Second Decision

It was common ground that the 1993 Regulations applied to the second decision. Section 33 of the Act provides for the making of certain regulations including regulations concerning entry permits. By following "a tortuous trail" [Wilcox J's very apt description of portions of these regulations in Kramer v. Immigration Review Tribunal (1992) 36 FCR 544 at p.545] through Part 2 and in particular Division 1, Regulations 2.1, 2.2, 2.3, 2.335 and Schedule 4, one can eventually discover that the public interest criteria which Mr. Irving is required to satisfy are set out in clause 4001 of Schedule 4 which reads as follows:

SCHEDULE 4

PUBLIC INTEREST CRITERIA

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

(2) An applicant meets the requirements of this subclass 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)(ii)[??] 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 the visa or entry permit."

The key provision of the Act, for present purposes, is s.180A which materially provides as follows:

"180A (1) The Minister may refuse to grant a visa 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 original conduct; or

(ii) the person's general conduct; is satisfied that the person is not of good character; or ..."


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