Federal Court of Australia The First Decision - Ground 4
Further an in the alternative, Mr. Irving relies on ss.5(1)(h)
and 5(3) of the ADJR Act and says that there was no evidence
or other material within the meaning of those provisions to
justify the making by the respondent of the decision to reuse
to grant Mr. Irving a visa on the ground that he was not of
good character within the meaning of Regulation 2(1). The
applicant's particulars in relation to this ground were that:
(a) the respondent was required to make a decision
whether or not to grant Mr. Irving a visa;
(b) the respondent was required by law to exercise
his discretion against Mr. Irving only if a particular
matter were established, namely that he was not of
good character; and
(c) there was no evidence or no relevant evidence upon
which the respondent could have relied to come to that
decision. Those particulars incorporate by reference
the particulars relied upon in respect of the first
three grounds referred to above.
Mr. Bates argued that the respondent could not make the
decision to refuse Mr. Irving a visa until a particular fact
was established, namely whether or not Mr. Irving was of good
character. He then submitted that the words "... there was no
evidence or other material (including facts of which he was
entitled to take notice) from which he could reasonably be
satisfied that the matter was established: in s.5(3)(a) of the
ADJR Act were equivalent to "there being insufficient
evidence" which introduced concepts of weight.
Mr. Bates
submitted that even if the three matters of the German
conviction,
Adjudicator Thompson's findings and Mitchell J's
findings were relevant matters, they were of such minimal
weight when viewed against the factual background in which
they occurred that they constitute insufficient evidence to
justify the decision. In that regard I was referred to Mr.
Irving's various versions of the three events, which were set
out in his affidavits, as evidencing extenuating
circumstances.
As Drummond J. observed in Irving v. Minister for Immigration
(1993) 44 FCR 540 at p.560, the making of the decision to
refuse the visa depends upon the establishment of the matter,
viz, the failure by the applicant to satisfy the good
character requirement. The question is whether there was any
evidence in the sense of material admissible according to the
rules of evidence or other material relevant to, and logically
probative in respect of Mr. Irving's character upon which the
respondent could reasonably be satisfied that Mr. Irving was
not of good character.
In essence, the applicant's attack on the respondent's
decision was based on the proposition that the weight to be
attached to the German conviction, Adjudicator Thompson's
finding and what Mr. Bates described as the "Mitchell J.
incident" was lessened to such a substantial extent that it
should not have been relied upon.
The problem with that proposition is that generally the weight
to be attached to any individual matter or combination of
matters is a question for the respondent to decide: Minister
for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24
at p.42. The question for the Court is as I have just outlined
above.
Given that it was for the respondent to decide what weight, if
any, to give to Mr. Irving's explanations, there was in my
view evidence or other material from which the respondent
could reasonably be satisfied that Mr. Irving had failed to
satisfy the good character criterion. By that I refer to the
evidence of Mr. Irving's conviction in Germany for defaming
the dead.
It was open to the Minister to have regard to that
factor in assessing Mr. Irving's character regardless of
whether that conduct would constitute a criminal offense in
Australia. Similarly there was the evidence of Immigration
Adjudicator Thompson's findings that Mr. Irving had lied to
him on oath at the immigration hearing and, finally, Mitchell
J's finding that Mr. Irving had lied in an affidavit filed in
the High Court of Justice in England. In my view, the
applicant has not made out Ground 4.
The
original plaintext version
of this file is available via
ftp.
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Rules Against Irving
The Grounds Upon Which the Applicant Seeks an Order to Review