Newsgroups: alt.revisionism,alt.fan.ernst-zundel
Subject: David Irving: "Not of good character" (3/4)
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              federal-court.950831-03
Last-Modified: 1995/12/24

Mitchell J's Adverse Comments
-----------------------------

Similar arguments were advanced to support the submission that
to take into account Mitchell J's disbelief of Mr. Irving's
affidavit evidence was to take into account an irrelevant
consideration. At one stage, Mr. Bates sumitted that false
evidence in an affidavit was "indicative of a weakness of
character at its lowest level". Even if Mr. Irving lied on
oath to a quasi-judicial tribunal and to the High Court of
Justice in the United Kingdom, Mr. Bates questioned whether
that was sufficiently indicative of bad character as to "fall
within the character requirements of Regulation 2(1)". Again
that submission, in my view, side steps the issue. The issue
is whether, when deciding whether Mr. Irving was of good
character, the respondent was entitled to take into account
the fact that Mr. Irving had been found by a judge in London
to have lied on oath in proceedings before the High Court of
Justice. For similar reasons to those which I have expressed
above, I do not think that factor was an irrelevant
consideration. A finding that a person has deliberately given
false evidence to a court of law is clearly, in my opinion,
capable of being relevant to a decision whether that person is
of good character.

Mr. Bates admitted on behalf of the applicant that the good
character requirements of the Act and the regulations made
under it must be intended to prevent people coming to
Australia whose presence would harm Australia or the
Australian community, or be adverse to the interests of
Australia. In my view, the answer to that submission is that
it is sufficient, to deny entry, that the person not be of
good character; neither the Act nor the regulations require
any more.

If my view is wrong, then the potential for harm or adverse
interest to Australia may arise in the context of whether Mr.
Irving's character was sufficiently good that he could be
relied upon to comply with Australian law generally. It may
well be harmful or adverse to Australia's interests to allow
into Australia a person (even a visitor) who cannot be so
relied upon. I accept Mr. Owen-Conway's alternative submission
that even if such harm or adverse interest is required, the
respondent was entitled to have regard to Mr. Irving's
contravention of Canadian immigration laws and the German
criminal law when making this assessment of his character.

The First Decision - Ground 4
----------------------------- 

Further an in the alternative, Mr. Irving relies on ss.5(1)(h)
and 5(3) of the ADJR Act and says that there was no evidence
or other material within the meaning of those provisions to
justify the making by the respondent of the decision to reuse
to grant Mr. Irving a visa on the ground that he was not of
good character within the meaning of Regulation 2(1). The
applicant's particulars in relation to this ground were that:

	(a) the respondent was required to make a decision
	whether or not to grant Mr. Irving a visa; 
	(b) the respondent was required by law to exercise
	his discretion against Mr. Irving only if a particular
	matter were established, namely that he was not of
	good character; and
	(c) there was no evidence or no relevant evidence upon
	which the respondent could have relied to come to that
	decision. Those particulars incorporate by reference
	the particulars relied upon in respect of the first
	three grounds referred to above.

Mr. Bates argued that the respondent could not make the
decision to refuse Mr. Irving a visa until a particular fact
was established, namely whether or not Mr. Irving was of good
character. He then submitted that the words "... there was no
evidence or other material (including facts of which he was
entitled to take notice) from which he could reasonably be
satisfied that the matter was established: in s.5(3)(a) of the
ADJR Act were equivalent to "there being _insufficient_
evidence" which introduced concepts of weight. Mr. Bates
submitted that even if the three matters of the German
conviction, Adjudicator Thompson's findings and Mitchell J's
findings were relevant matters, they were of such minimal
weight when viewed against the factual background in which
they occurred that they constitute insufficient evidence to
justify the decision. In that regard I was referred to Mr.
Irving's various versions of the three events, which were set
out in his affidavits, as evidencing extenuating
circumstances.

As Drummond J. observed in _Irving v. Minister for Immigration
(1993) 44 FCR 540_ at p.560, the making of the decision to
refuse the visa depends upon the establishment of the matter,
viz, the failure by the applicant to satisfy the good
character requirement. The question is whether there was any
evidence in the sense of material admissible according to the
rules of evidence or other material relevant to, and logically
probative in respect of Mr. Irving's character upon which the
respondent could reasonably be satisfied that Mr. Irving was
not of good character.

In essence, the applicant's attack on the respondent's
decision was based on the proposition that the weight to be
attached to the German conviction, Adjudicator Thompson's
finding and what Mr. Bates described as the "Mitchell J.
incident" was lessened to such a substantial extent that it
should not have been relied upon.

The problem with that proposition is that generally the weight
to be attached to any individual matter or combination of
matters is a question for the respondent to decide: _Minister
for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24_
at p.42. The question for the Court is as I have just outlined
above.

Given that it was for the respondent to decide what weight, if
any, to give to Mr. Irving's explanations, there was in my
view evidence or other material from which the respondent
could reasonably be satisfied that Mr. Irving had failed to
satisfy the good character criterion. By that I refer to the
evidence of Mr. Irving's conviction in Germany for defaming
the dead. It was open to the Minister to have regard to that
factor in assessing Mr. Irving's character regardless of
whether that conduct would constitute a criminal offense in
Australia. Similarly there was the evidence of Immigration
Adjudicator Thompson's findings that Mr. Irving had lied to
him on oath at the immigration hearing and, finally, Mitchell
J's finding that Mr. Irving had lied in an affidavit filed in
the High Court of Justice in England. In my view, the
applicant has not made out Ground 4.

The First Decision - Ground 5
-----------------------------

Further an in the alternative, the applicant relies on
ss.5(1)(c) and 5(2)(g) of the ADJR Act on the basis that the
respondent's decision to refuse the visa because Mr. Irving
was not of good character was, so it was submitted, an
improper exercise of the power conferred by s.24(7) of the
Act. It was contended that the finding that Mr. Irving was not
of good character within the meaning of Regulation 2(1) was so
unreasonable that no reasonable person could have so exercised
the power to make that finding. The applicant's particulars in
respect of this ground were that neither the German
conviction, the finding of Immigration Adjudicator Thompson
nor the comments of Mitchell J., nor any combination thereof,
could reasonably have formed a basis for the respondnet's
decision.

In his oral submissions, Mr. Bates expressed this slightly
differently but with similar effect. He submitted that the
respondent's decision was so capricious that no sensible
decision-maker with a due appreciation of his responsibilities
would have made it. I was referred once again to paragraph 2.2
of the Manual (set out above) and the security and penal
elements of the good character requirement. Mr. Bates
submitted that there was no considered basis for the Minister
to conclude that Mr. Irving "... would harm the Australian
community so as to render himself not of good character."

The test is, as both counsel agreed, an objective one but
nonetheless a stringent one in terms of administrative law.
Before the respondent's decision is reviewable as being
unreasonalbe to the requisite degree, the Court must be
satisfied that no decision-maker, acting reasonably, could
have arrived at such a decision: _Associated Provincial
Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B.
223_ at p.230; _Parramatta City Council v. Pestell (1972) 128
CLR 305_ at p.327. In this matter, where Mr. Irving has been
found to have committed a serious crime against German law
(defaming the dead) and furthermore to have lied on oath to a
quasi-judical tribunal and more recently to the High Court of
Justice in England I am not satisfied that no decision-maker,
acting reasonably, could have arrived at the decision that Mr.
Irving is not of good character. On the contrary, such a
decision was clearly one that could have been made quite
reasonably, viewing the circumstances objectively.

The First Decision - Ground 6 (The Discretion Conferred by
----------------------------------------------------------
Regulation 143)
---------------

In respect of the respondent's decision not to exercise his
discretion to waive the good character requirement under
Regulation 143, Mr. Irving relies on s.5(1)(c), in combination
with s.5(2)(a) or in the alternative s.5(2)(b) of the ADJR
Act. Mr. Irving contends that in finding that he had not
reformed within the meaning of Regulation 143(a)(ii), the
respondent took into account as irrelevant considerations:

	* the adverse comments of Immigration Adjudicator 
          Thompson;
	* Mitchell J's adverse comments; and
	* Mr. Irving's expulsion from Germany.

Alternatively, the applicant claims that the respondnet failed
to take into account a relevant consideration namely Mr.
Irving's compliance with immigration laws since the Canadian
deportation. As a further alternative, the applicant relies on
ss.5(1)(c) and 5(2)(g) of the ADJR Act and says that the
finding that Mr. Irving had not reformed was so unreasonable
that no reasonable person could have exercised the power.

Strictly speaking, in view of my findings above, it is not
necessary to consider this ground. The discretion conferred by
Regulation 143 on the respondent to waive the good character
requirement only arises in circumstances where the applicant
fails to satisfy the public interest criteria only because he
is "to be taken not to be of good character". In the present
matter the respondent has found that Mr. Irving has not
established that he is of good character and for that reason
has failed to meet the public interest criteria for the
relevant visa. In those circumstances, the respondent was
obliged to refuse the visa. On the basis of my foregoing
findings, that obligation did not arise out of the operation
of the deeming provisions of Regulation 4 and the present
application will be dismissed in any event. However, the
ground was fully argued and I shall deal with it in these
reasons.

The two bases upon which the respondent says that he was
obliged by Regulation 4 to take Mr. Irving not to be of good
character were the fact that Mr. Irving has been deported from
another country, namely Canada [Regulation 4(1)(ii)(D)] and
that he has been excluded from another country (The Federal
Republic of Germany) in circumstances where the authorities of
that country considered Mr. Irving to be a threat to the
national security of the country [Regulation 4(1)(ii)(E) when
read with Regulation 177(b)]. The applicant's primary
submission was that it was only the Canadian deportation which
required the respondent to take Mr. Irving as not being of
good character. That was consistant with Mr. Bates' submission
that the applicant had not been excluded from Germany in
circumstances prescribed by Regulation 177(b). Nevertheless,
Mr. Bates put some alternative submissions in that respect. In
essence, they were that Mr. Irving had demonstrated his reform
of character by complying with the German expulsion order and
German and American immigration laws.

It was common ground that in those circumstances the onus was
on Mr. Irving to show by subsequent conduct that he is
reformed.

Mr. Bates referred to what he described as a paradox in that
if Mr. Irving's deporation from Canada did not involve
culpability on his part, then how was he to demonstrate that
he had reformed? It was submitted on Mr. Irving's behalf that
he had done everything within his power to comply with the
departure notice and it was only because of the material
wrongfully placed on the American computer that he was sent
back to Canada and thereafter arrested by the Canadian
authorities.

Alternatively, Mr. Bates pointed to some evidence of reform in
Mr. Irving's compliance with immigration requirements
subsequent to that date. For example, Mr. Irving had complied
with the German expulsion order and there was evidence of that
before the Minister. There was also evidence that Mr. Irving
had complied with German prohibitions from engaging in
political activities while in Germany and had made repeated
trips to the USA in full compliance with the immigration laws
of that country. Mr. Bates' submissions depended to some
extent on the proposition that the evidence of reform would
have to relate to the culpable act which led to the applicant
being deemed not to be of good character. The respondent
contends that he is not confined in his consideration of
whether an applicant is reformed to particular issues or
matters but may have regard to any matter which he considers
relevant to the question of whether the applicant has shouwn
by subsequent conduct that he is reformed.

Regulation 143(a)(ii) relevantly provides for a discretion to
waive the good character requirement if:

	"(a) the Minister is satisfied that:

		(i) in the case of the circumstances referred
		    to in subparagraph 4(a)(i) [a reference
		    to the circumstances that the applicant
		    has been assessed by the competent
		    Australian authorities to be a risk
		    to Australian national security] the
		    circumstances no longer obtain; or
		(ii) in the case of conduct referred to in
		    subparagraph 4(a)(ii) or (iii)* - the
		    applicant has shown by subsequent behavior
		    that he or she is reformed."

	[* the case was conducted on the basis that this was
	a reference in Regulation 4(1)(a)(ii) or (iii)].

The conduct referred to in Regulation 4(1)(a)(iii) is that 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. That conduct is not the issue in
the present matter. Subparagraph 4(1)(a)(ii) refers to five
situations. The first three are where the applicant has been
convicted of crimes or charged with a crime which was
committed while he was of unsound mind. The draftsman of
Regulation 143(a)(ii) when referring to Regulation 4(1)(a)(ii)
may have been intending to refer to the conduct which was the
subject of the particular crime. However, in my opinion it
would be wrong to construe the two regulations in such a
narrow way, bearing in mind their obvious purpose of denying
entry to Australia to persons not of good character. The
matter can be tested by assuming a hypothetical case in which
the applicant was convicted of the crime of murder and thus
deemed by Regulation 4 not to be of good character. If the
applicant were able to demonstrate that he had committed no
further murders but had subsequently been convicted for theft,
it could not be the case that the Minister was obliged to
ignore the conviction for theft and then find that the
applicant "is reformed". Strictly speaking, rather than simply
referring to the conduct of the applicant, the conduct
referred to in subparagraph 4(a)(ii) is in fact official
conduct viz. conviction of crime, being charged with a crime,
being found guilty, being sentenced, being acquitted on
grounds of unsoundness of mind, being deported or being
excluded from another country. It is that official conduct
which has, in one sense, resulted in the applicant being
deemed to be not of good character. However, in my view, the
sensible way of construing the reference to conduct is to take
it to include both the conduct in which the applicant engaged
and the resultant offical sanction both of which not only
characterise a person as being not of good character but also
form part of the background for assessing the possible
operation of Regulation 143.

The use of the word "reformed" is, admittedly, apt to describe
a person who no longer exhibits criminal tendencies. It is
equally apt, if not more apt, to describe someone who was
previously of bad character but has since improved morally.

Although I have not found the matter easy to decide, in my
opinion, given the purpose of excluding from Australia persons
who are not of good character, the Minister's task is to make
the assumption that by virtue of Mr. Irving's deportation and
exclusion respectively (being the circumstances applicable in
the present matter) the applicant is not of good character and
then to consider whether the applicant has established by his
subsequent conduct that he is reformed i.e. is of good
character. The Minister, in deciding whether the applicant has
satisfied that onus should not be confined to the
circumstances which gave rise to such deportation or
exclusion. Once the applicant has satisfied that onus then the
Minister has a discretion whether to waive the good character
requirement. In this matter the respondent found that the
applicant was not reformed.

If I am correct in my assumption that the assessment of
whether the applicant is reformed is not confined to the
circumstances which gave rise to the deportation or exclusion
then, in my opinion, the respondent did not take into account
irrelevant considerations, if he took into account Immigration
Adjudicator Thompson's adverse comments, Mitchell J's finding
that Mr. Irving had given untruthful evidence in his affidavit
when seeking to purge his contempt of court and both the
expulsion from Germany and the circumstances which gave rise
to that expulsion order. Furthermore, there is no evidence
that the respondent in fact took these matters into
consideration. The applicant points to the facts that he
complied with the German expulsion order and that he has
complied with German and American immigration laws since the
Canadian deportation and since the German expulsion order as
being evidence of his reform. There is no evidence that the
respondent failed to take these circumstances into account.
Once again, it was up to the Minister to decide what weight,
if any, to give to such compliance.

As to the submission that the finding that Mr. Irving had not
reformed was unreasonable in the _Wednesbury_ sense, in my
view the conviction and imprisonment for contempt of court and
the subsequent false affidavit evidence to the same Court
alone would be sufficient to preclude a finding that the
respondent's decision on the question of reform was
unreasonalbe to the requisite extent. Furthermore, in respect
of the Canadian deportation, within a year of being deported
from Canada, the applicant was expelled from Germany.
Accordingly, I reject that submission.

[continued]

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