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 8 (Further Error of Law)

The applicant advances similar claims of error of law and improper exercise of power in respect of the characterisation, for the purposes of the application of Regulation 4(1)(a)(ii(D), of Mr. Irving's deportation from Canada. It was submitted that as a matter of construction, the regulation refers to deportation that involves moral turpitude on the part of the deportee and that deportation which involves no such culpability is not caught by the regulations.

Mr. Bates submitted that Regulation 4(1)(a)(ii)(D) which refers to a circumstance that the applicant "has been deported from another country" should be contrued as referring only to deportation which involves moral turpitude on the part of the deportee. This was because, so it was said, of its inclusion in a regulation which deals with criminal activity and breaches of national security. The sub-regulation was to be interpreted in the light of those surrounding provisions. Mr. Bates submitted that there was no moral turpitude in the circumstances of Mr. Irving's deportation.

It is possible that this issue is foreclosed by the earlier decision of the Full Court in respect of Mr. Irving's first application. Ryan J. (at p.543) said:

"Mr. Irving admittedly failed to satisfy the 'good character' criterion directed by reg. 4(1) of the Migration Regulations 1989 (Cth) ("the Regulations") because he had been deported from Canada and was therefore caught by reg.4(1)(a)(ii)(D)."

Drummond J. (at p.556) observed:

"It would have been open to the Minister to refuse Mr. Irving's visa application in reliance on reg. 4(1)(a)(ii)(D) and his deportation from Canada."

However, that conclusion was not essential to the court's finding. In my view the wording of the sub-regulation "has been deported from another country" is so clear that it is not to be read down in the manner contended for by the applicant i.e. by reference to the other sub-paragraphs of this regulation. In my opinion, it is not necessary for moral turpitude to be involved in any such deportation.

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