The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

The Grounds Upon Which the Applicant Seeks an Order to Review

The First Decision - Grounds 1, 2 and 3

The applicant relies on ss.5(1)(e) and 5(2)(a) of the ADJR[??] Act and says that the respondent's decision to refuse the application of 7 December 1992 for a visa because Mr. Irving was not of good character was an improper exercise of the power conferred on the Minister by s.24(7) of the Act because, so it is alleged, the respondent took into account considerations which were irrelevant, namely:

* Mr. Irving's conviction in Germany in 1992;

* The adverse findings by Mr. Thompson, the Canadian Immigration Adjudicator; and

* Mitchell J's adverse comments upon Mr. Irving in the United Kingdom proceedings.

Mr. P.S. Bates, counsel for the applicant, submitted that whether a person is of good character must be determined objectively in accordance with "ordinary notions" rather than the subjective views of the particular Minister. He referred to paragraph 2.2 of a Procedures Advice Manual issued by the respondent's department in March 1991 ("the Manual") and entitled "Character Requirement" which reads:

"2.2 The overall objective of the character requirement is to protect the resident Australian community from the actions and influence of people who may:

* threaten the security of the nation through acts of espionage, sabotage, politically motivated violence or foreign interference; promotion of communal violence or attacks on Australia's defense systems; (the 'security' element of the character requirement) ; or

* pose an unacceptable threat to public safety or property (the 'personal' element of the character requirement)."

Mr. Bates submitted that in order to be relevant, the "ordinary notions" would have to be circumscribed by the above paragraph to security matters or criminal matters. He submitted that the expression "good character" was so wide as to be ambifuous or obscure so that I could, pursuant to s.15AB(1) of the Acts Interpretation Act 1901 (Cth) have regard to the manual to determine its meaning. Alternatively, he submitted that the Manual provided guidance to departmental decision-making as to what should be considered relevant matters to take into account when dealing with good character. In written submissions, the applicant conceded that such manuals are not necessarily exhaustive when providing examples of what might constitute lack of good character but, so it was said, they provide very real guidelines as to what matters are relevant and what are not.

In my view there is no need to have recorse to the Manual for the purposes of resolving Grounds 1, 2 and 3. First, I do not agree that the expression "good character" is so wide as to be ambiguous or obscure and thus warrant recourse to s.15AB for assistance. Secondly, although the list of material referred to in s.15AB(2) is expressly stated not to be exhaustive, the Manual does not fall into the category common to all the various materials referred to in that subsection, namely, that they were in existence or came into existence at or about the time of the enactment of the legislation in question. The Manual is dated March 1991.

Alternatively, if I am wrong in that conclusion I cannot see why a statement of the overall objective of the character requirement, as set out above, should have the result of limiting the construction of the expression "good character" to the matters of security and public safety. Mr. Bates was on firmer ground with his submission that "good character" is something which is capable of assessment according to "ordinary notions" an expression which comes from the Full Court decision of Hand v. Hell's Angels Motocycle Club Inc (1991) 25 ALD 667 at p. 672 where the Full Court said:

"The assessment of 'good character' contemplated by reg 2(1) is a familiar task. Many matters will be relevant to this assessment most of which, taken individually, will not conclude the issues. Regulation 4(1) provides that for the purposes of the Regulations a person is taken not to be of good character if certain defined circumstances exist in relation to that person, but reg [??](1) is not a code that defines good character for the purposes of the Regulations.

An applicant for a visa must positively establish: good character and reg 4(1) does no more than to provide, in effect, that good character is not established if certain circumstances exist. Circumstances can well be envisaged in which a person would fail to satisfy the requirements of good character according to ordinary notions but would not fall within reg. 4(1). Regulation 143, which provides for the waiver of the good character requirement, supports the conclusion that there is no code. It allows the grant of a visa in certain circumstances to an applicant who fails to satisfy public interest criteria 'only because the applicant is to be taken not to be of good character ...' (our emphasis)."

As mentioned above, Mr. Bates acknowledged that the Manual was not necessarily exhaustive when providing examples of what might constitute lack of good character. In my view, a person who may threaten the security of Australia or who poses an unacceptable threat to public safety or property may well be characterised as being not of good character but the application of "ordinary notions" does not mean that a person who does not pose any such threat must necessarily be of good character within the meaning of Regulation 2.2.

Alternatively, it was suggested that the expression "good character" should be interpreted in a manner which would exclude from Australia people whose presence will in some way be of harm to Australia or be detrimental to Australia's interest and that "ordinary notions of good character" should be confined in that manner. I reject that submission. The question is whether in accordance with ordinary notions, the three matters which the Minister is alleged to have taken into account when assessing whether Mr. Irving was a person of good character, were irrelevant considerations.

As a matter of fact, there was no evidence that the Minister took into account these three matters when making his decision. The Minister was not required, under the relevant statutory provisions, to furnish a statement of his reasons and no such statement was put into evidence.

The evidence and other material which was before the respondent when he made the two decisions which are challenged in these proceedings comprised a separate departmental minute in respect of each visa application. Each minute set out the factual background and the statutory and regulatory provisions summarised above and had attached to it documents relating to Mr. Irving's conviction in Germany in 1992, the adverse findings of Mr. Thompson, Mitchell J's adverse comments and the German expulsion order.

Also attached to each minute were submissions from Mr. Irving in the form of affidavits and other documents. In each case, the minute concluded with a recommendation and endorsement setting out alternative decisions for the respondent's consideration. The respondent made his decision in respect of each visa application by striking out alternatives which resulted in the decisions which I have summarized earlier in these reasons.

Copies of those minutes and accompanying documents, together with a further affidavit by way of explanation from Mr. Irving comprised the bulk of the evidence before the Court in these proceedings.

The applicant tendered an affidavid from a Mr. DeBruin to which was annexed a copy of a letter dated 21 January 1994 to Mr. DeBruin on the respondent's letterhead signed by Ms. Bronwyn McNaughton, Senior Advisor to the respondent. The relevant paragraph of the letter reads as follows:

"The Minister has now done so [a reference to reconsidering the matter] and, having concluded that Mr. Irving did not meet the 'good character' requirements of the Migration Act and Regulations, has refused to grant him a visa. The reason for doing so had no bearing on Mr. Irving's views on the 'Holocaust'. Mr. Irving's views and writings remain readily available in Australia."

Mr. S. Owen-Conway QC, senior counsel (with Mr. P. Macliver) for the respondent objected to this letter being admitted into evidence, on the grounds of relevance and hearsay. There was no suggestion that the letter was a forgery. I admitted the document into evidence, subject to those objections, on the basis that I would rule upon its admissibility in the course of giving my reasons for judgment. I shall give those reasons briefly.

In my view, the letter is admissible as being relevant to a fact at issue. That fact is the Minister's reasons for his decisions. On the face of the document it is written on behalf of the respondent by his Senior Advisor and, for that reason, is not hearsay. Nevertheless it does not, in my opinion, establish that the respondent took into account the three matters referred to above. However, on the assumption that the respondent di so, i consider now whether they were relevant considerations.

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