Federal Court of Australia 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 ..."
The
original plaintext version
of this file is available via
ftp.
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Rules Against Irving
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