Newsgroups: alt.revisionism,alt.fan.ernst-zundel Subject: David Irving: "Not of good character" (4/4) 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.950831-04 Last-Modified: 1995/12/24 The First Decision - Ground 7 (Error of Law) -------------------------------------------- The applicant claims that the respondent made an error of law within the meaning of s.5(1)(j) of the ADJR Act or, in the alternative, that there had been an improper exercise of power because the German expulsion order was not an expulsion from another country in prescribed circumstances. It was submitted that the applicant's conduct did not constitute a "threat to national security" within the meaning of Regulation 177(d). It is importand to have regard in the precise manner in which Regulation 177(d) prescribes the relevant circumstances. Regulation 177(d) reads as follows: "(d) That the authorities of that country considered the person to be a threat to the national security of the country." Mr. Bates submitted that the expression "national security" in the phrase "the national security of the country" should be construed in the same way as what would be regarded as national security in Australia. He submitted that the terms of the German expulsion order itself showed that the Federal Republic of Germany was concerned more with public security and public order than national security. In essence, so it was put, the German authorities' complaint was that Mr. Irving would express controversial views and would attend public gatherings which they alleged would require considerable police resources. As an example of why the regulation should be so construed, Mr. Bates suggested that the Chinese authorities might regard criticism of their regime as a breach of their national security but the Australian authorities would be unlikely to regard such circumstances as falling within Regulation 177. The problem with that submission is that it ignores the clear words of the regulation which defines the relevant circumstances in terms of the authorities of the deporting country considering the person to be a threat to the national security of the country. Whether the person would be considered to be a threat to the national security of Australia is not to the point. The regulation expressly defers to the views of the authorities of the deporting country. I have examined the terms of the German expulsion order which include the following: "Your presence in the Federal Republic of Germany infringes public security, public order and also considerably the interests of the Federal Republic of Germany. For years you have been entering the Federal Republic of Germany, to publicise your ideas at functions ... These ideas constitute the criminal act of insulting and reviling the memory of the dead. The execution of such criminal acts continues regularly the infringement of public security and order. In this case this is of great importance as the insults and reviling concern a whole group of the population and since they are perpetrated in a very public manner. ... Despite the decisions of the Municipal Court in Munich of 06.05.1992 and the Munich State Court of 13.01.1993 you persistantly keep on publicising your ideas. Your behavior apart from the illegality of your statements infringes public security and order... Your appearances are being increasingly noticed, which is due to heightened sensitivity of the population concerning right-extremist ideas but mainly due to the resurgence of right-extremist and Neo-Nazi parties... That you don't regard yourself as an active member of right-extremist groups is insignificant. Determining is the fact that three groups use your ideas for their own purposes, become encouraged by your ideas and gain increased importance... Your behavior consitutes a danger to the inner security of the Federal Republic of Germany in the greater[??] sense[??] and at the same time does great damage to the reputation of the German State: Your statements and comments[??] as given under number 1.1 [a reference to an earlier paragraph in the Expulsion Order] are able to endanger the peaceful co-existence between Germans and foreigners: they are being regarded as the truth by a small but radical part of the population and they are motivating in the long run to violence and racial hatred." The Expulsion Order then refers to strengthened National Socialism and right-extremism, the escalation of violence and continues: "Although the majority of the German population distances itself from such activities, most recent developments show that there is a base of right-extremist prepared for violence. This group of people is especially susceptable to revisionist ideas, feels supported in its political attitude while expressing its opinion with violence ... Your activities as speaker have harmed public security and order ... The interest of revisionists, right- extremists and Neo-Nazi groups at your participation is unabated. It cannot reasonably be expected of the authorities to supervise your statements at numberous political appearances and to be able to criminally prosecute only after the event. Besides in view of your reputation in right-extremist circles your mere presence at political events is able to harm the interests of the public in the means illustrated above. ... An expulsion is therefore imperative as defense against the danger of recurrence ... Therefor your immediate departure is necessary as defense against the danger to public law and order as well as defense against lasting damage to the Federal Republic of Germany." The New Shorter Oxford English Dictionary (at p.2754) defines 'security' relevantly as being "The condition of being protected from or not exposed to danger; safety _spec._ the condition of being protected from espionage, attack or theft". The same dictionary defines 'national' as "Of or pertaining to a nation or country, esp. as a whole; affecting or shared by the whole nation". I reject the distinction which the applicant seeks to make between "public security and public order" and "national security". At p.10 of the German expulsion order there appears the following: "The term public security is understood as a state in which the community and individuals can enjoy undisturbed the rights granted by the Constitution and other rules, Protective legal norms are particularly the criminal law and the penal law, which have the purpose of protecting public security. Public order comprises all norms concerning actions, omissions and conditions, [??] observance - beyond the limits of current positive public and civil law - in accordance with the prevailing understanding, which may change in sometimes short periods of time, is the imperative condition for a productive human and civic co-existance." The relevant German authority, at the same page, came to the conclusion that Mr. Irving's continued presence in the Federal Republic of Germany impaired public order and security or interfered with other important interests of that country contrary to s.45(1) of the Law Concerning Foreigners. In my view, sufficient appears from the German expulsion order to indicate that the authorities of that country considered Mr. Irving to be a threat to the national security of the country not just to local public security. It is also of some relevance that his expulsion was not from a particular area or State of Germany but from the whole of the Federal Republic of Germany. Accordingly, in my opinion, the circumstances of Mr. Irving's expulsion from that country fell within Regulation 177(d). The First Decision - Ground 8 (Further Error of Law) ---------------------------------------------------- The applicant advances similar claims of error of law and improper exercise of power in respect of the characterisation, for the purposes of the application of Regulation 4(1)(a)(ii(D), of Mr. Irving's deportation from Canada. It was submitted that as a matter of construction, the regulation refers to deportation that involves moral turpitude on the part of the deportee and that deportation which involves no such culpability is not caught by the regulations. Mr. Bates submitted that Regulation 4(1)(a)(ii)(D) which refers to a circumstance that the applicant "has been deported from another country" should be contrued as referring only to deportation which involves moral turpitude on the part of the deportee. This was because, so it was said, of its inclusion in a regulation which deals with criminal activity and breaches of national security. The sub-regulation was to be interpreted in the light of those surrounding provisions. Mr. Bates submitted that there was no moral turpitude in the circumstances of Mr. Irving's deportation. It is possible that this issue is foreclosed by the earlier decision of the Full Court in respect of Mr. Irving's first application. Ryan J. (at p.543) said: "Mr. Irving admittedly failed to satisfy the 'good character' criterion directed by reg. 4(1) of the Migration Regulations 1989 (Cth) ("the Regulations") because he had been deported from Canada and was therefore caught by reg.4(1)(a)(ii)(D)." Drummond J. (at p.556) observed: "It would have been open to the Minister to refuse Mr. Irving's visa application in reliance on reg. 4(1)(a)(ii)(D) and his deportation from Canada." However, that conclusion was not essential to the court's finding. In my view the wording of the sub-regulation "has been deported from another country" is so clear that it is not to be read down in the manner contended for by the applicant i.e. by reference to the other sub-paragraphs of this regulation. In my opinion, it is not necessary for moral turpitude to be involved in any such deportation. The Second Decision - Ground 1 ------------------------------ As the statutory and regulatory framework above indicates, there was a two-step process for the respondent to undertake in respect of the second decision. First, the repsondent had to decide, under s.180A(2), whether he was satisfied, having regard to Mr. Irving's past criminal conduct or general conduct that Mr. Irving was not of good character. Secondly, despite being so satisfied, the Minister had a discretion not to exercise the power under s.180A to refuse to grant the visa to Mr. Irving. If the Minister exercised that discretion, then Mr. Irving would have met the public interest criteria referred to in Schedule 4 to the 1993 Regulations. The matters of a person having been deported or excluded from another country in prescribed circumstances, respectively, are no longer matters which require a person to be taken not to be of good character. However, they are still circumstances which may give rise to a person becoming an illegal entrant - see s.20(1)(d)(v) and (vi). In the case of exclusion from another country in prescribed circumstances, Regulation 7.12(d) of the 1993 Regulations provides a presecribed circumstance which is identical to the former Regulation 177(d) of the 1989 Regulations. The applicant contended that the respondent's decision to refuse him a visa under s.180A(1) on the grounds that Mr. Irving was not of good character by reason of: * service on him of an expulsion order in Germany in November 1993; * the Canadian deportation was contrary to law within the meaning of s.5(1)(j) of the ADJR Act. The error of law was said to be twofold. First the characterisation by the German authorities of the applicant's conduct as a "threat to national security" was, so it was put, inconsistant with the Australian concept of what constitutes a threat to national security as set out in para. 2.2 of the Procedures Advice Manual No. 135 dated 21 May 1993 ("the 1993 PAM Update"). The applicant also incorporated by reference his submissions in respect of Ground 7 above. Secondly, in respect of the Canadian deportation, it was submitted by way of repetition of Ground 8 in respect to the first decision, that for a deportation to be relevant to good character it must be a deporation which involves moral turpitude on the part of the deportee. The applicant relied in particular on paragraphs 2.12, 8.13, 8.2.2, 8.5.1, 8.5.2 and 8.5.3 of the PAM Update. The applicant contended that s.180A(2)(a)(i) which refers to past criminal conduct, was not applicable and that the respondent had only had regard to Mr. Irving's general conduct being the alternative referred to in s.180A(2)(a)(ii). The resondent's submission refer to the fact that s.180A(2)(a) enables the respondent to take into account a person's past criminal conduct and general conduct when assessing whether a person is of good character. On the respondent's behalf it was submitted that there was no evidence that the respondent's refusal of Mr. Irving's visa application on the grounds that he was not of good character was by reason of the service on Mr. Irving of an expulsion order in Germany in November 1993 and by reason of the Canadian deportation. Further, so it was submitted, those were matters which the respondent was nonetheless entitled to take into account if in fact he did so. I accept those submissions. Even the letter dated 21 June 1994 from the Minister's Senior Advisor to Mr. DeBruin simply confirms that the respondent had concluded that Mr. Irving did not meet the good character requirements of the _Migration Act_ and _Regulations_ and for that reason had refused to grant him a visa. There were matters other than the German expulsion and the Canadian deportation which the Minister may have taken into account. I rerfer to the findings that Mr. Irving had given false evidence to Immigration Adjudicator Thompson in Canada and to the High Court of Justice in London and Mr. Irving's conviction for contempt of court. Further, even if the Manual as amended by the 1993 PAM Update constrained the Minister to take a particular course in his assessment of Mr. Irving's character (a proposition which I reject), a careful reading of that document discloses nothing which precludes the respondent from taking into account the Canadian deportation and the German expulsion. Insofar as the applicant relies on his submission in relation to Grounds 7 and 8 above I reject them for the reasons already given. The respondent's decision was not contrary to law. The Second Decision - Ground 2 (Improper Exercise of Power) ----------------------------------------------------------- The basis of this ground was that the respondent's decision under s.180A(1) to refuse Mr. Irving a visa on the grounds that he was not of good character by reason of: (a) the adverse comments of Immigration Adjudicator Thompson; (b) the adverse comments of Mitchell J.; (c) the deporatation from Canada; and (d) the expulsion order served on Mr. Irving by the German authorities; was an improper exercise of the power conferred by that section in that the respondent, by taking into account those four matters, took into account irrelevant consideratons within the meaning of ss.5(1)(e) and 5(2)(a) of the ADJR Act or, in the alternative, failed to take into account relevant considerations within the meaning of s.5(2)(b) of the ADJR Act. The complaints raised under this heading are essentially the same as those advanced as Grounds 1, 2 and 3 in respect of the first decision. This ground is rejected for the reasons which I have set out earlier in these reasons in respect of those grounds. No particulars were given of the relevant considerations which it was alleged the respondent had failed to take into account. 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. Second Decision - Ground 4 (No Evidence) ---------------------------------------- Next the applicant contended that there was no evidence or other material within the meaning of ss.5(1)(h) and 5(3) of the ADJR Act to justify the respondent's decision to refuse Mr. Irving a visa on the grounds that he was not of good character having regard to his "general conduct" within the meaning of s.180A(2)(a)(ii) having regard to all or any of the following considerations: (a) Immigration Adjudicator Thompson's adverse findings; (b) Mitchell J's adverse findings; (c) the Canadian deportation; (d) the exclusion from Germany. Alternatively, the decision, so it was contended, was an improper exercise of the power within the meaning of s.5(1)(a) and 5(2)(g) of the ADJR Act in that the exercise of the power was said to be so unreasonable that no reasonable person could have so exercised it. These complaints mirror the complaints made under Grounds 4 and 5 against the first decision and for the reasons which I have given above in respect of those complaints I reject them in respect to the second decision. Both Decisions - Procedural Unfairness [s.5(1)(a) of the ADJR -------------------------------------- Act] 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. Conclusions ----------- For the above reasons the application for orders of review in respect of each decision will be dismissed with costs. I certify that his and the preceding thirty-nine (39) pages are a true copy of the Reasons for Judgement of Justice Carr. Associate: [signature] Date: 31 August 1995
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