Reasons for Judgment REASONS FOR JUDGMENT
LEE J:
On 7 December 1992, and on 3 June 1993, the appellant applied for
a Business Visitor (Short Stay) Visa pursuant to regulations made
under the Migration Act 1958 (Cth) ("the Act"). The appellant is
a well-known author and historian and the purpose of his proposed
visit to Australia was to promote the sale of his books. The views
of the appellant expressed in his publications and in lectures have
challenged accepted facts on the genocide of the Jewish race under
the third Reich. As a result the appellant is not a popular figure
and attracts controversy.
The appellant had been granted permission to enter Australia for
business purposes on two previous occasions, in 1986 and 1987, and
visits had been made by the appellant in compliance with the terms of
those permits.
Notwithstanding his lack of popularity, in the ordinary course of
events the issue of the prior permits would have given the appellant
cause to expect that a visa of the type applied for would be granted
to him. (See: R v Secretary of State for the Home Department ex parte
Moon, 1 November 1995, QB Div, Sedley J; Civ Lib, Vol 1 (1996),
96-97.) However, subsequent to the last visit to Australia the
appellant's circumstances changed in that in May 1992 he was convicted
of an offence in Germany and in November 1992 he was deported from
Canada. In November 1993 the appellant was served in Germany with an
order excluding him from that country.
On 3 May 1994 the Minister refused to grant a visa to the appellant on
either application.
The relevant provisions pursuant to which the Minister's decisions were
made were the Migration (1989) Regulations ("the 1989 Regulations") and
the Migration (1993) Regulations ("the 1993 Regulations"). The 1993
Regulations repealed and replaced the 1989 Regulations on 1 February 1993.
(See: S.R. 367/1992 - "Migration (1993) Regulations - Part 8 - Repeal and
Saving Provisions".) The 1993 Regulations were repealed by the Migration
(1994) Regulations on 1 September 1994. (See: S.R. 261/1994 - "Migration
Reform (Transitional Provisions) Regulations.)
It was not submitted that the repeal of the regulations in 1993 and 1994,
or that amendments to the relevant sections of the Act that were made
subsequent to the applications, had any impact upon the respective
applications or upon the decisions able to be made thereon.
A Business Visitor (Short Stay) Visa, as the name implies, is a visa
constructed to accommodate the interests of a person intending to visit
Australia for a limited period for the purpose of business. The meaning
of the criteria prescribed as qualifying cirsumstances for the grant of
such a visa must be determined according to the context in which the
words are used.
Pursuant to sub-s 23(2) of the Act, as it stood at the time both
applications were made, regulations made under the Act may provide that
a person is entitled to be granted a visa of a particular class if the
person "satisfies" all the prescribed criteria in relation to that class.
Sub-section 24(7) of the Act provided that where it "appears" to the
Minister that the applicant is not, under the regulations, entitled to
be granted the visa applied for, the Minister shall refuse to grant the
applicant the visa.
Under the 1989 Regulations one of the prescribed criteria for entitlement
to the grant of a visa of the class applied for by the appellant was that
the applicant "meets relevant public interest criteria". The words
"relevant public interest criteria" were defined in reg 2. The only
public interest criterion of relevance to this case was that the
applicant be "of good character".
Regulation 4 of the 1989 Regulations provided that a person "is to be
taken not to be of good character" if:
"(a) in the case of an applicant for a
visa or an entry permit of any class:
(i) the applicant has been assessed by the
competent Australian authorities to be a risk,
directly or indirectly, to Australian national
security; or
(ii) the applicant:
(A) has at any time been convicted of a crime and
sentenced to death, to imprisonment for life or to
imprisonment for a period of not less than one
year; or
(B) has at any time been convicted of 2 or more crimes
and sentenced to imprisonment for a period totalling
not less than one year; or
(C) has at any time been charged with a crime and either
found guilty of having committed the crime while of
unsound mind or acquitted on the ground that the
crime was committed while the person was of unsound
mind; or
(D) has been deported from another country; or
(E) has been excluded from another country in the
circumstances prescribed for the purposes of
subparagraph 20 (1)(d)(vi) of the Act; or
(iii) the applicant has, in the reasonable belief of the
Minister, been involved in activities indicating
contempt, or disregard, for the law or for human
rights; and
(b) in the case of an applicant for an entry visa
having effect as a permanent entry permit, or for a
permanent entry permit - the applicant has at any
time been convicted of an offence (other than an
offence referred to in paragraph (a)) in circumstances
indicating, in the reasonable belief of the Minister,
habitual contempt, or disregard, for the law or for
human rights "
The prescribed cirsumstances referred to in item (ii)(E) of reg 4 are
those set out in reg 177 of the 1989 Regulations of which reg 177(d)
is relevant in the present case, namely:
"(d) that the authorities of that country
considered the person to be a threat to
the national sesurity of the country "
Regulation 143 purported to provide the Minister with power to grant a
visa to a person who failed to satisfy the prescribed criteria. It
read [sic] as follows:
"143 Notwithstanding any other provision of these
Regulations, the Minister may grant a visa or an
entry permit to an applicant who fails to
satisfy public interest criteria only because
the applicant is to be taken not to be of good
character, if
(a) the Minister is satisfied that:
(i) in the case of the cirsumstance referred
to in subparagraph 4(a)(i) - the
cirsumstance no longer obtains; or
(ii) in the case of conduct referred to in
subparagraph 4(a)(ii) or (iii) - the
applicant has shown by subsequent conduct
that he or she is reformed; and
(b) the Minister is satisfied that undue harm would be
unlikely to result to the Australian community if the
visa or entry permit was granted; and
..."
Regulation 143 should not be read as the creation of
a power in the Minister to grant a visa to a person who does not
satisfy the prescribed criteria - such a regulation likely to be
beyond power having regard to the mandatory terms of sub-s 24(7)
of the Act - but as a power in the Minister to waive or vary the
prescribed criteria or, as appears to be a more appropriate
construction, as confirmation that if at the time of
consideration of the application by the Minister the applicant
satisfies the prescribed criteria the Minister may grant the
visa. That is to say, if, at that time, an applicant is not
assessed as a risk to Australian national security and is of
good character by reason of reformation, the prescribed criteria
are satisfied and the Minister may grant the visa.
Section 180A was inserted in the Act on 24 December
1992 and it read as follows:
"180A(1) The Minister may refuse to grant a visa or an entry
permit to a person, or may cancel a valid visa or a valid entry
permit that has been granted to a person, if:
(2) This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
(b) is satisfied that the person is not of good character
because of the person's association with another person, or
with a group or organisation, who or that the Minister has
reasonable grounds to believe has been or is involved in
criminal conduct.
(3) The power under this section to refuse to grant a visa or an
entry permit to a person, or to cancel a valid visa or a valid
entry permit that has been granted to a person, is in addition
to any other power under this Act, as in force from time to
time, to refuse to grant a visa or an entry permit to a person,
or to cancel a valid visa or a valid entry permit that has been
granted to a person."
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The Hon. Justice Lee
(Part 1 of 2)
(a) subsection (2) applies to the person; or
(b) the Minister is satisfied that, if the person were
allowed to enter or to remain in Australia, the person
would:
(i) be likely to engage in criminal conduct
in Australia; or
(ii) vilify a segment of the Australian community; or
(iii) incite discord in the Australian community or in a
segment of that community; or
(iv) represent a danger to the Australian community or
to a segment of that community, whether by way of
being liable to become involved in activities that
are disruptive to, or violence threatening harm to,
that community or segment, or in any other way.
is satisfied that the person is not of good character; or