The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

Second Decision - Ground 3 (Exercise of a Discretionary Power
in Accordance with a Policy Without Regard to the Merits of
the Particular Case)

The applicant contended that the making of the decision that he should be refused a visa on the grounds that he was not of good character was an improper exercise of the power conferred by s.180A(1) when read with s.180A(2)(a)(ii) of the Act. The applicant relied on ss.5(1)(e) and 5(2)(g) of the ADJR Act. The applicant claimed that the discretionary power to exclude Mr. Irving because he was deported from Canada in November 1992, and further on the grounds of the German expulsion order, was exercised in accordance with the policy enshrined in paragraph 8.5.6 of the 1993 PAM Update without regard to the merits of the particular case.

The answer to this complaint is that there is simply no evidence to support it. Such evidence as there is on this point (see paragraph 23 of Mr. Joseph's mintute dated 29 April 1994) indicates that it was made clar to the Minister that he should not consider himself bound by the guildelines in the 1993 PAM Update and that he should carefully consider the issue of Mr. Irving's character on its merits.

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