Federal Court of Australia 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 respondent'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 refer 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.
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