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 - 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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