The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

The Grounds Upon Which the Applicant Seeks an Order to Review

The First Decision - Grounds 1, 2 and 3

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.

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