Federal Court of Australia The First Decision - Ground 6 (The Discretion Conferred by
Regulation 143)
In respect of the respondent's decision not to exercise his
discretion to waive the good character requirement under
Regulation 143, Mr. Irving relies on s.5(1)(c), in combination
with s.5(2)(a) or in the alternative s.5(2)(b) of the ADJR
Act. Mr. Irving contends that in finding that he had not
reformed within the meaning of Regulation 143(a)(ii), the
respondent took into account as irrelevant considerations:
*
the adverse comments of Immigration Adjudicator
Thompson;
* Mitchell J's adverse comments; and
* Mr. Irving's expulsion from Germany.
Alternatively, the applicant claims that the respondnet failed
to take into account a relevant consideration namely Mr.
Irving's compliance with immigration laws since the Canadian
deportation. As a further alternative, the applicant relies on
ss.5(1)(c) and 5(2)(g) of the ADJR Act and says that the
finding that Mr. Irving had not reformed was so unreasonable
that no reasonable person could have exercised the power.
Strictly speaking, in view of my findings above, it is not
necessary to consider this ground. The discretion conferred by
Regulation 143 on the respondent to waive the good character
requirement only arises in circumstances where the applicant
fails to satisfy the public interest criteria only because he
is "to be taken not to be of good character".
In the present
matter the respondent has found that Mr. Irving has not
established that he is of good character and for that reason
has failed to meet the public interest criteria for the
relevant visa. In those circumstances, the respondent was
obliged to refuse the visa. On the basis of my foregoing
findings, that obligation did not arise out of the operation
of the deeming provisions of Regulation 4 and the present
application will be dismissed in any event. However, the
ground was fully argued and I shall deal with it in these
reasons.
The two bases upon which the respondent says that he was
obliged by Regulation 4 to take Mr. Irving not to be of good
character were the fact that Mr. Irving has been deported from
another country, namely Canada [Regulation 4(1)(ii)(D)] and
that he has been excluded from another country (The Federal
Republic of Germany) in circumstances where the authorities of
that country considered Mr. Irving to be a threat to the
national security of the country [Regulation 4(1)(ii)(E) when
read with Regulation 177(b)].
The applicant's primary
submission was that it was only the Canadian deportation which
required the respondent to take Mr. Irving as not being of
good character. That was consistant with Mr. Bates' submission
that the applicant had not been excluded from Germany in
circumstances prescribed by Regulation 177(b). Nevertheless,
Mr. Bates put some alternative submissions in that respect. In
essence, they were that Mr. Irving had demonstrated his reform
of character by complying with the German expulsion order and
German and American immigration laws.
It was common ground that in those circumstances the onus was
on Mr. Irving to show by subsequent conduct that he is
reformed.
Mr. Bates referred to what he described as a paradox in that
if Mr. Irving's deporation from Canada did not involve
culpability on his part, then how was he to demonstrate that
he had reformed? It was submitted on Mr. Irving's behalf that
he had done everything within his power to comply with the
departure notice and it was only because of the material
wrongfully placed on the American computer that he was sent
back to Canada and thereafter arrested by the Canadian
authorities.
Alternatively, Mr. Bates pointed to some evidence of reform in
Mr. Irving's compliance with immigration requirements
subsequent to that date. For example, Mr. Irving had complied
with the German expulsion order and there was evidence of that
before the Minister. There was also evidence that Mr. Irving
had complied with German prohibitions from engaging in
political activities while in Germany and had made repeated
trips to the USA in full compliance with the immigration laws
of that country.
Mr. Bates' submissions depended to some
extent on the proposition that the evidence of reform would
have to relate to the culpable act which led to the applicant
being deemed not to be of good character. The respondent
contends that he is not confined in his consideration of
whether an applicant is reformed to particular issues or
matters but may have regard to any matter which he considers
relevant to the question of whether the applicant has shouwn
by subsequent conduct that he is reformed.
Regulation 143(a)(ii) relevantly provides for a discretion to
waive the good character requirement if:
"(a) the Minister is satisfied that:
(i) in the case of the circumstances referred
to in subparagraph 4(a)(i) [a reference
to the circumstances that the applicant
has been assessed by the competent
Australian authorities to be a risk
to Australian national security] the
circumstances no longer obtain; or
(ii) in the case of conduct referred to in
subparagraph 4(a)(ii) or (iii)* - the
applicant has shown by subsequent behavior
that he or she is reformed."
[* the case was conducted on the basis that this was
a reference in Regulation 4(1)(a)(ii) or (iii)].
The conduct referred to in Regulation 4(1)(a)(iii) is that the
applicant has in the reasonable belief of the Minister, been
involved in activities indicating contempt or disregard for
the law or for human rights. That conduct is not the issue in
the present matter.
Subparagraph 4(1)(a)(ii) refers to five
situations.
The first three are where the applicant has been
convicted of crimes or charged with a crime which was
committed while he was of unsound mind. The draftsman of
Regulation 143(a)(ii) when referring to Regulation 4(1)(a)(ii)
may have been intending to refer to the conduct which was the
subject of the particular crime.
However, in my opinion it
would be wrong to construe the two regulations in such a
narrow way, bearing in mind their obvious purpose of denying
entry to Australia to persons not of good character. The
matter can be tested by assuming a hypothetical case in which
the applicant was convicted of the crime of murder and thus
deemed by Regulation 4 not to be of good character.
If the
applicant were able to demonstrate that he had committed no
further murders but had subsequently been convicted for theft,
it could not be the case that the Minister was obliged to
ignore the conviction for theft and then find that the
applicant "is reformed". Strictly speaking, rather than simply
referring to the conduct of the applicant, the conduct
referred to in subparagraph 4(a)(ii) is in fact official
conduct viz. conviction of crime, being charged with a crime,
being found guilty, being sentenced, being acquitted on
grounds of unsoundness of mind, being deported or being
excluded from another country.
It is that official conduct
which has, in one sense, resulted in the applicant being
deemed to be not of good character. However, in my view, the
sensible way of construing the reference to conduct is to take
it to include both the conduct in which the applicant engaged
and the resultant offical sanction both of which not only
characterise a person as being not of good character but also
form part of the background for assessing the possible
operation of Regulation 143.
The use of the word "reformed" is, admittedly, apt to describe
a person who no longer exhibits criminal tendencies. It is
equally apt, if not more apt, to describe someone who was
previously of bad character but has since improved morally.
Although I have not found the matter easy to decide, in my
opinion, given the purpose of excluding from Australia persons
who are not of good character, the Minister's task is to make
the assumption that by virtue of Mr. Irving's deportation and
exclusion respectively (being the circumstances applicable in
the present matter) the applicant is not of good character and
then to consider whether the applicant has established by his
subsequent conduct that he is reformed i.e. is of good
character.
The Minister, in deciding whether the applicant has
satisfied that onus should not be confined to the
circumstances which gave rise to such deportation or
exclusion. Once the applicant has satisfied that onus then the
Minister has a discretion whether to waive the good character
requirement. In this matter the respondent found that the
applicant was not reformed.
If I am correct in my assumption that the assessment of
whether the applicant is reformed is not confined to the
circumstances which gave rise to the deportation or exclusion
then, in my opinion, the respondent did not take into account
irrelevant considerations, if he took into account Immigration
Adjudicator Thompson's adverse comments, Mitchell J's finding
that Mr. Irving had given untruthful evidence in his affidavit
when seeking to purge his contempt of court and both the
expulsion from Germany and the circumstances which gave rise
to that expulsion order.
Furthermore, there is no evidence
that the respondent in fact took these matters into
consideration. The applicant points to the facts that he
complied with the German expulsion order and that he has
complied with German and American immigration laws since the
Canadian deportation and since the German expulsion order as
being evidence of his reform. There is no evidence that the
respondent failed to take these circumstances into account.
Once again, it was up to the Minister to decide what weight,
if any, to give to such compliance.
As to the submission that the finding that Mr. Irving had not
reformed was unreasonable in the Wednesbury sense, in my
view the conviction and imprisonment for contempt of court and
the subsequent false affidavit evidence to the same Court
alone would be sufficient to preclude a finding that the
respondent's decision on the question of reform was
unreasonalbe to the requisite extent. Furthermore, in respect
of the Canadian deportation, within a year of being deported
from Canada, the applicant was expelled from Germany.
Accordingly, I reject that submission.
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Rules Against Irving
The Grounds Upon Which the Applicant Seeks an Order to Review