Federal Court of Australia The First Decision - Grounds 1, 2 and 3
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.
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Rules Against Irving
The Grounds Upon Which the Applicant Seeks an Order to Review