The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

The Second Decision - Ground 2 (Improper Exercise of Power)

The basis of this ground was that the respondent's decision under s.180A(1) to refuse Mr. Irving a visa on the grounds that he was not of good character by reason of:

(a) the adverse comments of Immigration Adjudicator Thompson;

(b) the adverse comments of Mitchell J.;

(c) the deporatation from Canada; and

(d) the expulsion order served on Mr. Irving by the German authorities;

was an improper exercise of the power conferred by that section in that the respondent, by taking into account those four matters, took into account irrelevant consideratons within the meaning of ss.5(1)(e) and 5(2)(a) of the ADJR Act or, in the alternative, failed to take into account relevant considerations within the meaning of s.5(2)(b) of the ADJR Act.

The complaints raised under this heading are essentially the same as those advanced as Grounds 1, 2 and 3 in respect of the first decision. This ground is rejected for the reasons which I have set out earlier in these reasons in respect of those grounds. No particulars were given of the relevant considerations which it was alleged the respondent had failed to take into account.

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