Federal Court of Australia 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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Rules Against Irving
The Grounds Upon Which the Applicant Seeks an Order to Review