Newsgroups: alt.revisionism,alt.fan.ernst-zundel Subject: David Irving: "Not of good character" (2/4) References:Followup-To: alt.revisionism X-Web: http://www.nizkor.org/hweb/people/i/irving-david/australia/fc-index.html Archive/File: /home/ftp/pub/people/i/irving.david/australia federal-court.950831-02 Last-Modified: 1995/12/24 Second Decision --------------- It was common ground that the 1993 Regulations applied to the second decision. Section 33 of the Act provides for the making of certain regulations including regulations concerning entry permits. By following "a tortuous trail" [Wilcox J's very apt description of portions of these regulations in _Kramer v. Immigration Review Tribunal (1992) 36 FCR 544 at p.545_] through Part 2 and in particular Division 1, Regulations 2.1, 2.2, 2.3, 2.335 and Schedule 4, one can eventually discover that the public interest criteria which Mr. Irving is required to satisfy are set out in clause 4001 of Schedule 4 which reads as follows: SCHEDULE 4 PUBLIC INTEREST CRITERIA 4001(1) The applicant meets the requirements of subclauses (2), (3) or (4). (2) An applicant meets the requirements of this subclass if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit. (3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit, the Minister has decided that the evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(ii)[??] and subsection (2) of that section. (4) An applicant meets the requirements of this subclause if, despite being satisfied that the refusal, under section 180A of the Act, to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse the visa or entry permit." The key provision of the Act, for present purposes, is s.180A which materially provides as follows: "180A (1) The Minister may refuse to grant a visa to a person, or may cancel a valid visa or a valid entry permit that has been granted to a person if: (a) subsection (2) applies to the person; or (b) ... (2) This subsection applies to a person if the Minister: (a) having regard to: (i) the person's past original conduct; or (ii) the person's general conduct; is satisfied that the person is not of good character; or ..." The Grounds Upon Which the Applicant Seeks an Order to Review ------------------------------------------------------------- The First Decision - Grounds 1, 2 and 3 --------------------------------------- The applicant relies on ss.5(1)(e) and 5(2)(a) of the ADJR[??] Act and says that the respondent's decision to refuse the application of 7 December 1992 for a visa because Mr. Irving was not of good character was an improper exercise of the power conferred on the Minister by s.24(7) of the Act because, so it is alleged, the respondent took into account considerations which were irrelevant, namely: * Mr. Irving's conviction in Germany in 1992; * The adverse findings by Mr. Thompson, the Canadian Immigration Adjudicator; and * Mitchell J's adverse comments upon Mr. Irving in the United Kingdom proceedings. Mr. P.S. Bates, counsel for the applicant, submitted that whether a person is of good character must be determined objectively in accordance with "ordinary notions" rather than the subjective views of the particular Minister. He referred to paragraph 2.2 of a Procedures Advice Manual issued by the respondent's department in March 1991 ("the Manual") and entitled "Character Requirement" which reads: "2.2 The overall objective of the character requirement is to protect the resident Australian community from the actions and influence of people who may: * threaten the security of the nation through acts of espionage, sabotage, politically motivated violence or foreign interference; promotion of communal violence or attacks on Australia's defense systems; (the 'security' element of the character requirement) ; or * pose an unacceptable threat to public safety or property (the 'personal' element of the character requirement)." Mr. Bates submitted that in order to be relevant, the "ordinary notions" would have to be circumscribed by the above paragraph to security matters or criminal matters. He submitted that the expression "good character" was so wide as to be ambifuous or obscure so that I could, pursuant to s.15AB(1) of the _Acts Interpretation Act 1901 (Cth)_ have regard to the manual to determine its meaning. Alternatively, he submitted that the Manual provided guidance to departmental decision-making as to what should be considered relevant matters to take into account when dealing with good character. In written submissions, the applicant conceded that such manuals are not necessarily exhaustive when providing examples of what might constitute lack of good character but, so it was said, they provide very real guidelines as to what matters are relevant and what are not. In my view there is no need to have recorse to the Manual for the purposes of resolving Grounds 1, 2 and 3. First, I do not agree that the expression "good character" is so wide as to be ambiguous or obscure and thus warrant recourse to s.15AB for assistance. Secondly, although the list of material referred to in s.15AB(2) is expressly stated not to be exhaustive, the Manual does not fall into the category common to all the various materials referred to in that subsection, namely, that they were in existence or came into existence at or about the time of the enactment of the legislation in question. The Manual is dated March 1991. Alternatively, if I am wrong in that conclusion I cannot see why a statement of the overall objective of the character requirement, as set out above, should have the result of limiting the construction of the expression "good character" to the matters of security and public safety. Mr. Bates was on firmer ground with his submission that "good character" is something which is capable of assessment according to "ordinary notions" an expression which comes from the Full Court decision of _Hand v. Hell's Angels Motocycle Club Inc (1991) 25 ALD 667_ at p. 672 where the Full Court said: "The assessment of 'good character' contemplated by reg 2(1) is a familiar task. Many matters will be relevant to this assessment most of which, taken individually, will not conclude the issues. Regulation 4(1) provides that for the purposes of the Regulations a person is taken not to be of good character if certain defined circumstances exist in relation to that person, but reg [??](1) is not a code that defines good character for the purposes of the Regulations. An applicant for a visa must positively establish: good character and reg 4(1) does no more than to provide, in effect, that good character is not established if certain circumstances exist. Circumstances can well be envisaged in which a person would fail to satisfy the requirements of good character according to ordinary notions but would not fall within reg. 4(1). Regulation 143, which provides for the waiver of the good character requirement, supports the conclusion that there is no code. It allows the grant of a visa in certain circumstances to an applicant who fails to satisfy public interest criteria 'only because the applicant is to be taken _not to be of good character_ ...' (our emphasis)." As mentioned above, Mr. Bates acknowledged that the Manual was not necessarily exhaustive when providing examples of what might constitute lack of good character. In my view, a person who may threaten the security of Australia or who poses an unacceptable threat to public safety or property may well be characterised as being not of good character but the application of "ordinary notions" does not mean that a person who does not pose any such threat must necessarily be of good character within the meaning of Regulation 2.2. Alternatively, it was suggested that the expression "good character" should be interpreted in a manner which would exclude from Australia people whose presence will in some way be of harm to Australia or be detrimental to Australia's interest and that "ordinary notions of good character" should be confined in that manner. I reject that submission. The question is whether in accordance with ordinary notions, the three matters which the Minister is alleged to have taken into account when assessing whether Mr. Irving was a person of good character, were irrelevant considerations. As a matter of fact, there was no evidence that the Minister took into account these three matters when making his decision. The Minister was not required, under the relevant statutory provisions, to furnish a statement of his reasons and no such statement was put into evidence. The evidence and other material which was before the respondent when he made the two decisions which are challenged in these proceedings comprised a separate departmental minute in respect of each visa application. Each minute set out the factual background and the statutory and regulatory provisions summarised above and had attached to it documents relating to Mr. Irving's conviction in Germany in 1992, the adverse findings of Mr. Thompson, Mitchell J's adverse comments and the German expulsion order. Also attached to each minute were submissions from Mr. Irving in the form of affidavits and other documents. In each case, the minute concluded with a recommendation and endorsement setting out alternative decisions for the respondent's consideration. The respondent made his decision in respect of each visa application by striking out alternatives which resulted in the decisions which I have summarized earlier in these reasons. Copies of those minutes and accompanying documents, together with a further affidavit by way of explanation from Mr. Irving comprised the bulk of the evidence before the Court in these proceedings. The applicant tendered an affidavid from a Mr. DeBruin to which was annexed a copy of a letter dated 21 January 1994 to Mr. DeBruin on the respondent's letterhead signed by Ms. Bronwyn McNaughton, Senior Advisor to the respondent. The relevant paragraph of the letter reads as follows: "The Minister has now done so [a reference to reconsidering the matter] and, having concluded that Mr. Irving did not meet the 'good character' requirements of the Migration Act and Regulations, has refused to grant him a visa. The reason for doing so had no bearing on Mr. Irving's views on the 'Holocaust'. Mr. Irving's views and writings remain readily available in Australia." Mr. S. Owen-Conway QC, senior counsel (with Mr. P. Macliver) for the respondent objected to this letter being admitted into evidence, on the grounds of relevance and hearsay. There was no suggestion that the letter was a forgery. I admitted the document into evidence, subject to those objections, on the basis that I would rule upon its admissibility in the course of giving my reasons for judgement. I shall give those reasons briefly. In my view, the letter is admissible as being relevant to a fact at issue. That fact is the Minister's reasons for his decisions. On the face of the document it is written on behalf of the respondent by his Senior Advisor and, for that reason, is not hearsay. Nevertheless it does not, in my opinion, establish that the respondent took into account the three matters referred to above. However, on the assumption that the respondent di so, i consider now whether they were relevant considerations. The German Conviction --------------------- On the applicant's behalf it was said that this was simply a conviction arising out of the expression of Mr. Irving's views, that Australia, being a democratic country, espouses freedom of speech and that a reasonable person would regard such a conviction as being irrelevant to the question of good character. The German conviction for "slander concomitant with disparagement of the dead", so it was put, had no equivalent in Australia. In my view, that does not mean that the conviction in Germany was irrelevant to the matter of Mr. Irving's character. The fact that a person is prepared to break the law of a country, which he happens to be visiting, is capable of demonstrating a lack of respect for the law and that cannot be said to be irrelevant to the question of good character. When the nature of the conviction is taken into account, defaming the memory of the dead, in a country where the Holocaust might well be a matter of particular sensitivity, the proposition that the conviction is irrelevant to character becomes even harder to sustain. This was no traffic infringement. This was an offence for which the German legislature saw fit to provide for punishment by up to two years imprisonment and for which an appellate court imposed a fine equivalent to approximately $30,000. It is enough that such a conviction may be relevant to the question of Mr. Irving's character. The weight to be given to that factor is a matter for the Minister and not for this Court. Then it was said, on behalf of the applicant, that it would be inconsistent to regard the German conviction as being relevant when there is an express provision in Regulation 4(1)(b) dealing with convictions for offences in circumstances indicating, in the reasonable belief of the Minister, habitual contempt or disregard for the law or for human rights. That submission suggests that Regulation 4(1) is a code that defines good character for the purposes of the regulations. The Full Court held to the opposite effect in the extract from the _Hell's Angels_ case which I have set out above. Regulation 4 is a deeming provision and, in my opinion, cannot render irrelevant a conviction, for example, which might indicate other serious but not habitual contempt or disregard for the law. For those reasons I reject that alternative submission. Immigration Adjudicator Thompson's Comments ------------------------------------------- The same reasoning, in my opinion, applies to the comments of Adjudicator Thompson of Canada. Mr. Bates submitted that even if those comments indicated that there was perhaps a defect in Mr. Irving's character on that one occasion because apparently he told a lie, that would not on a reasonable basis be a ground for excluding Mr. Irving from Australia. Accordingly, so it was submitted, by taking that matter into account the respondent took into account an irrelevant criterion. I was then taken to some five pages of written submissions which attacked the accuracy of Adjudicator Thompson's assertions and concluded with the submission: "...if one applied the test of 'ordinary notices'[??] of bad character, then a person would not be deemed to be of bad character simply because of disputed credibility findings[??] made in the course of a highly controversial proceeding in the circumstances outlined." In my view those submissions overlooked the critical issue. That issue is whether Adjudicator Thompson's adverse findings in respect of Mr. Irving were irrelevant considerations under Regulation 2(1) on the question of good character. The adverse findings were, in essence, that Mr. Irving's account of his short visit to the United States was a total fabrication and never took place i.e. that Mr. Irving had lied on oath to the Immigration Adjudicator. The fact that a person may lie on oath on one occasion may not necessarily result in a conclusion that the person is not of good character. As the Full Court noted in the passage set out above, many matters will be relevant to the character assessment most of which, taken individually, will not conclude the issue. Nevertheless, the fact that Mr. Irving was found to have lied on oath to a quasi-judicial tribunal was something which, in my opinion, even on its own, could not be said to be irrelevant to the question of his good character. When taken in conjunction with the other two matters, the irrelevance of any one of the three factors becomes even harder to accept and I reject the submission. [continued]
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