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Subject: David Irving: "Not of good character" (2/3)
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Archive/File: people/i/irving.david/australia/wag-107-1995.02
Last-Modified: 1996/09/19

IN THE FEDERAL COURT         )
OF AUSTRALIA                 )
WESTERN AUSTRALIA            )
DISTRICT REGISTRY            )
GENERAL DIVISION             )   NO. WAG 107 OF 1995

                                 ON  APPEAL FROM A SINGLE  JUDGE  OF
                                 THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:                   DAVID JOHN CAWDEIL IRVING
                                 Appellant

                                 and

                                 MINISTER OF STATE FOR IMMIGRATION,
                                 LOCAL GOVERNMENT AND ETHNIC AFFAIRS
                                 Respondent


CORAM: DAVIES, LEE, R.D. NICHOLSON JJ
DATE : 30 JULY 1996
PLACE: PERTH
                        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:

          (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.

     (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;

             is satisfied that the person is not of good character; or
                                     
         (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."

The effect of s 180A was that notwithstanding an applicant may be 
entitled to the grant of a visa pursuant to the terms of sub-s 23(2) of 
the Act, the Minister was able to refuse to  grant  such a visa if the 
Minister was satisfied of certain matters under sub-ss 180A(1) or (2). 
That is, notwithstanding that an applicant was not deemed to be not of 
good character by the terms of reg 4, the Minister may be "satisfied"  
that the applicant was not of good character pursuant to sub-s 180A(2).

Under regs 2.1 and 2.2 and Schedule 2 (cl 672.333) of
the 1993 Regulations one of the prescribed criteria in relation
to the class of visa applied for by the appellant was that the
applicant "satisfies  public interest criteri[on] 4001" which
appeared as cl 4001 of Schedule 4 to the regulations as follows:

          "4001 (1) The applicant meets the requirements of 
          subclause  (2), (3) or (4).
                (2) An applicant meets the requirements of this 
          subclause 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 that evidence is insufficient to 
          satisfy the Minister of any of the matters referred to in 
          paragraph (l)(b) 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 to grant the visa or entry permit."

The effect of reg 4001, in particular sub-reg 4001(4), is to include in
the prescribed criteria the discretion of the Minister to accept that an  
applicant meets the requirements of reg 4001 notwithstanding that after  
making appropriate enquiries the Minister is satisfied that sub-ss 1 or 
2 of s 180A applies to the applicant.

Expressed in that way the regulation is not contrary to the terms of sub-s 
24(7) of the Act but it does impose an obligation on the Minister to 
decide whether to exercise his discretion to allow an applicant to meet 
the requirements of reg 4001 before the visa applied for may be granted 
or refused.

Unless the terms of the Act and regulations require some other meaning 
be applied, the words "good character" should be taken to be used in 
their ordinary sense, namely, a reference to the enduring moral qualities 
of a person, and not to the good standing, fame or repute of that person 
in the community. The former is an objective assessment apt to be proved
as a fact whilst the latter is a review of subjective public opinion.  
(See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian 
Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films
Ltd v Speidel [1961] AC 1090 per Ld Radcliffe at 1128-1129, Ld Denning at 
1138.) A person who has been convicted of a serious crime and thereafter
held in contempt in the community, nonetheless may show that he or she 
has reformed and is of good character, (see: In Re Davis (1947) 75 CLR 
409 per Latham CJ at 416; Clearihan per Miles CJ at 461).  Conversely,
a person of good repute may be shown by objective assessment to be a 
person of bad character.


In respect of the first application for a visa, the Minister had to 
determine whether it "appeared" to him that the appellant was entitled 
to be granted the visa applied for.  That is, did it "appear" to the 
Minister that the appellant had "satisfied" the prescribed criterion  
that the appellant was required to "meet", namely, that he is of good
character?  In determining what had "appeared" to him the Minister had  
to  have regard to the adverse presumption applied by reg 4 of the 1989  
Regulations and to any evidence that was capable of rebutting that 
presumption. (See: Secretary, Department of Social Security v Leahy 
(1989) 93 ALR 373 at 379.) In respect of the second application the 
Minister had to determine whether it "appeared" to him that the 
appellant "satisfied" the criterion prescribed in cl 4001 that the 
appellant "meet" the requirements of either sub-cll 4001(2), (3) or 
(4). The appellant would not "meet" such a requirement if, under 
sub-s 180A(2) of the Act, the Minister, having regard to the appellant's  
past criminal conduct or his general conduct, was "satisfied" that the 
appellant "is not of good character", unless the Minister decided to 
exercise his discretion to accept that the applicant met the 
requirements of sub-cl 4001(4).

Notwithstanding the breadth of the disqualifying elements of the 
prescribed criteria, the purpose of reliance upon the concept of good 
character in the regulations is of importance. Common sense suggests 
that the Act and  regulations are  not concerned with infractions or 
patterns of conduct  that show weaknesses or blemishes in character but 
with ensuring that the exercise of a sovereign power to prevent a 
non-citizen entering Australia is only invoked when the non-citizen
is a person whose lack of good character is such that it is for the 
public good to refuse entry.

Although  the words "good character" would bear their ordinary meaning, 
the terms of the 1989 regulations indicated that that meaning had been 
modified. Under the 1989 Regulations, absence of good character is 
presumed from the fact of deportation; exclusion from another country as 
a threat to the national security of that country; or conviction of an 
offence of a particular character. Under the 1993 Regulations the 
question whether a person is not of good character is determined not as 
a fact but upon it "appearing" to the Minister that he or she is 
"satisfied" that such is the case having had  regard to the past criminal 
conduct or the general conduct of that person and having declined to 
exercise a discretion to accept that the applicant "meets" the prescribed 
public interest criteria.

In the 1989 Regulations the connection between the
requirement that a person be of good  character and the
protection of the interests of the public was clearly expressed.
In the 1993 Regulations such a connection is implied. Counsel
for the appellant submitted that the meaning of "good character"
as used in  the 1989 Regulations, and in the 1993  Regulations,
was a meaning that was consistent with the maintenance of public
sesurity and safety and that if the presence of the appellant  in
Australia would involve no such threat it should be concluded
that the appellant had satisfied the required test.

The  appellant's contention is not without substance
but the  range and purpose of requests for entry to Australia
may require different emphases to be placed on matters that are
relevant to each applisation. For example, the requirement that
an applicant for a visa to enter Australia for business
purposes be of good character may require  consideration  of
wider matters than would apply to an applicant for  a  visa  to
enter Australia for entertainment or tourist purposes.

Undoubtedly, the  absence of harm to  the Australian
community from the issue of a visa of the type for which the
appellant had applied  was relevant to the meaning of good
character as one of the qualifications for the grant of that
visa. The task for the Minister was to have  regard to the
ordinary meaning of those words as modified by the Regulations
and to the scope and purpose of the visa sought to be granted
and to apply common sense in determining whether the appellant
"satisfied" the prescribed criterion that he be of  good
character.

It was a fact that the appellant had been deported
from Canada in 1992. It followed that in respect of the first
application the appellant was to be taken to be a person not of
good character and was not entitled to the grant of a visa
unless able to prove, to the satisfaction of the Minister,
that, in fast, he was of good character. The appellant did
not present his case on the basis that the presumption of reg 4
had been rebutted and that good character had been proved.

Therefore, the real issue of the appeal in respect of
the first application is whether the Minister erred in failing
to be satisfied under reg 143 of the 1989 Regulations that the
appellant, taken to be not of good character by reason of his
deportation from Canada, had shown by his subsequent conduct
that he had reformed and, therefore, was of good character.

In a departmental submission put before the Minister
to inform the Minister of the matters to be considered in
making his decision on the applisation, it was suggested that
it could "appear" to the Minister that the appellant did not
satisfy the prescribed criterion as to good character without
the Minister being required to consider any subsequent conduct
relied upon by the appellant to show that the appellant had
reformed and was of good character.

As set out in the analysis of the legislative
provisions recited above advice to that effect would not state
correctly the requirements of the Act and regulations.
However, by striking out the word "reformed" it appears that
the Minister considered that material separately and was not
satisfied that the appellant had shown by that conduct that he
was reformed and of good character.

Although his Honour was not persuaded that the
Minister was obliged to consider subsequent conduct of the
appellant relied upon by the appellant as evidence of
reformation, he dealt in full with the argument of the appellant
that the Minister had erred in failing to find that he was
satisfied that the appellant had reformed.

His Honour found, and with respect I agree, that reformation, and, 
therefore, good character, is not established by  consideration of any 
such subsequent conduct relevant to the ground on which the appellant was 
deemed to be not of good character pursuant to reg 4. The 1989 Regulations
in reg 143 made it clear that the Minister had to consider all subsequent 
conduct of an applicant before deciding whether it appears to the Minister
that the applicant is a person not of good character. There were matters in  
the appellant's subsequent conduct that stood in his favour but they  were 
not of such weight that it could be said that it had been shown by the 
appellant that any decision other than that he was a person of good 
character would be wholly unreasonable.

With regard to the second application, as has been recited, the 
Minister's desision-making power was described in a different form under 
the Act and the 1993 Regulations. The prescribed criteria in reg 4001 
depended for their operation upon the terms of s 180A. The operation of 
s 180A was in two parts,  namely,  whether  the Minister was  satisfied  
that  the appellant  was a person to whom sub-s 180A(2) applied;  and,  
if so, whether in the exercise of a discretion the appellant was to be 
accepted as a person who met the terms of the prescribed criteria.

The past criminal conduct of the appellant was reflected in the 
conviction in Germany in 1992 of the offence of "slander concomitant 
with disparagement of the dead" arising out of statements by the 
appellant which reflected his controversial views on the occurrence of 
events in countries  under  German control prior to and during the 
Second World War. In the absence of  any  material to the contrary it 
should be assumed that,  as recommended  in the submission put before 
him, the Minister  did not  form  his satisfaction that the appellant 
was not  of  good character  on  that  ground  and that  the  foundation  
for  the Minister's  satisfaction arose out of the consideration  of  
the appellant's general conduct.

The  appellant submitted that a number of matters  to
which  the  Minister may have turned his mind  would  have  been
irrelevant  to the decision the Minister was required  to  make,
namely,  whether it appeared to the Minister that the  appellant
satisfied the prescribed criteria.


The  appellant submitted that the Minister  erred  by
having regard to the service upon the appellant of an
expulsion order in Germany in November 1993, the deportation  of
the  appellant from Canada in November 1992 and adverse findings
of  fast made against the appellant in an administrative  review
of  that  deportation  order.  It was not contended  that  the
Minister was not able to have regard to events that had occurred
after  the date on which the application for the visa was  made.
The appellant relied upon conduct subsequent to the applications
as evidence of his good character.


Although the recited aspects of the appellant's general conduct may have
given little assistance to a determination of whether the appellant was 
not a person of good character,  it is not possible to say they were 
irrelevant considerations in such a determination. Similarly, the conduct 
of the appellant which resulted in the appellant being found in contempt
of Court in the United Kingdom in February 1994 by failing to file an 
affidavit within the time directed in an order deemed to have been served 
upon him by post, and the conviction in 1992 of the offence against the 
Criminal Code of the Federal Republic of Germany were aspects of the 
appellant's conduct the Minister was entitled to consider. Singly, each 
matter would have provided little insight into the inherent qualities of
the character of the appellant but in combination perhaps a view may have 
been formed that the appellant was not a person of good character in the
sense in which that qualification was expressed in the 1993 Regulations.

With regard to the Minister's failure to exercise the discretion 
conferred by sub-r 4001(4) to regard the appellant as a person who meets 
the prescribed criteria, the exercise of that discretion was unfettered 
by the terms of the sub-clause.

A decision to refuse to exercise such a discretion would not be amenable 
to review unless it could be shown that the refusal was based on 
irrelevant considerations or on a failure to have regard to relevant 
considerations or was so unreasonable that no reasonable decision-maker 
could have so decided. In respect of the last mentioned ground, it would 
have to  be  shown that the decision offended reason and common sense, not 
merely that it was a decision that carried a harsh result. No case of that
nature was established by the  appellant.  In respect  of the first 
mentioned grounds, perhaps it may  be  said that an error in the 
decision-making process may be shown if  the decision  was formed by 
consideration of the extent to which  the appellant's opinions as an 
historian or author were unpopular  or controversial. It was not 
submitted that the Minister's  decision was  controlled by the opinion he 
had formed on that issue. In respect of the second ground an error may be 
disclosed if the Minister failed to consider the implied right of the  
Australian people as a democratic  society  under the  terms of the 
Constitution to have freedom of communication in matters of public affairs 
and political discussion,  (see: Australian Capital Territory Television 
Pty Ltd v The Commonwealth (1992) 177 CLR 106), including freedom to 
communicate in such matters with external sources or with visiting 
non-nationals. Again, no case was sought to be made out by the 
appellant in that respect.

The appeal must be dismissed.

     I certify that this and the preceding eighteen (18) pages are 
     a true copy of the Reasons for Judgment of his Honour Justice Lee.

          Associate: [signature] Alisen Murphy
          Date: 30 July 1996

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