Federal Court of Australia Both Decisions
The applicant claimed that both of the respondent's decisions
were based on matters contained in the German expulsion order
which had not been put to Mr. Irving for comment. The
particular matter was the finding of the German authorities
that Mr. Irving's presence in the Federal Republic of Germany
infringes public security, public order and the interests of
that country.
Mr. Bates referred to a letter dated 13 January 1994 from the
respondent to Mr. Irving inviting him to answer certain
questions. It was said that seven of those questions invited
comment upon Mr. Irving's expulsion from Germany and related
to matters contained in the German expulsion order. However,
it was argued that by not inviting Mr. Irving to comment upon
the allegation in the German expulsion order that his conduct
infringed German public security, public order or the
interests of the Federal Republic of Germany and then making a
decision based on that matter, there had been a breach of the
rules of natural justice.
I pressed Mr. Bates during argument to confirm whether or not
his client relied on certain evidence from Mr. Irving that he
personally did not receive a copy of the German expulsion
order. I was told that Mr. Irving did rely on that factor, in
addition to the fact that the respondent had not specifically
put to him the assertion which was contained in that order and
which I have set out above. The evidence [Exhibit B] from Mr.
Irving on this point included the following:
"In relation to the German Expulsion Order issued
against me in November 1993 the first time I had the
opportunity of reading this was when my solicitors
in these proceedings in Australia sent me a copy of
the annexures[??] attached to the Greenup[??]
affidvait in August 1994. Although I was served with
an order to leave Germany within 48 hours in November
1993 (which I fully complied with), I refused to sign
an acknowledgement of receipt of the order and so as a
consequence it was sent instead to my German Lawyers
and I never read it at the time."
Insofar as Mr. Irving's complaints of being denied procedrual
fairness are based upon the fact (which for present purposes I
will assume to be the case) that he did not read and was not
in possession of the document and he chose not to read it. In
any event, his German lawyers had constructive possession of
that document on his behalf.
There was no dispute that the applicant was entitled to be
accorded procedural fairness in respect to both decisions. The
content of the requirement to accord procedural fairness
varies according to the circumstances: Loa v. West (1985) CLR
550 at pp.584-585. In the present matter Mr. Irving was sent
letters dated 13 January 1994, 4 February 1994 and 24 February
1994 inviting him to comment on a number of issues which might
be taken into consideration when deciding his application for
a visa. Mr. Irving responded with an affidavit sworn on 8
February 1994, a letter dated 24 February 1994, an affidavit
from his Canadian lawyer Mr. Christie, an affidavit from Mr.
Fisher, a video of an interview with Dr. Piper, curator of the
Auschwitz Museum and a further letter of explanation dated 14
April 1994.
One of the issues which Mr. Irving was invited to address by
the letter dated 13 January 1994 was:
"(m) That the Munich Aliens' Office issued you with an
expulsion order on 9 November 1993".
Attached to that letter were copies of the relevant provisions
of the Act and Regulations relevant to the public interest
criteria and the exercise of the Minister's discretion. Mr.
Irving responded to each of the matters referred to in that
letter by his affidavit sworn on 8 February 1994. The portion
of the affidavit which dealt with the German expulsion order
was as follows:
"13. Voluntary Departure Notice - Munich, November 9,
1993 (Paragraph m)
13.1 On the 9th. November, 1993 the Munich District
Administration Council
(Kreisverwaltungareferat[??]) aliens department
issued the order referred to, a voluntary
departure notice requiring me to leave within
24 hours.
13.2 I at once complied, pending the appeal which my
German lawyer has already initiated on a number
of legal grounds. I reiterate I have never been
notified of any formal prohibition against
entering Germany."
In terms of procedural fairness, in my view Mr. Irving was put
squarely on notice that the Minister intended to have regard
to the circumstances of the German departure order when
deciding Mr. Irving's application for a visa to enter
Australia. He was invited to comment in respect of that order.
The fact that Mr. Irving chose not to obtain a copy of that
order and to deal with the matters set out in it, is entirely
his responsibility.
He declined to read the document when it
was served upon him, declined to accept service of it and,
apparently, declined to obtain a copy of it from his lawyers
in Germany. The respondent cannot be blamed for any
consequential omissions in Mr. Irving's response. Furthermore,
there was unchallenged evidence that the respondent did not
have a copy of the German deportation order in January 1994
and in fact did not receive a copy until mid April 1994. In my
view, the respondent did not deny Mr. Irving procedural
fairness.
The
original plaintext version
of this file is available via
ftp.
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Rules Against Irving
Procedural Unfairness [s.5(1)(a) of the ADJR Act]