Minutes of Order & Reasons for Judgment MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.
REASONS FOR JUDGMENT
Davies J:- This is an appeal from a judgment of a judge of the Court,
Carr J, in which his Honour dismissed an application which sought orders
of review with respect to two decisions made by the respondent, the
Minister for Immigration, Local Government & Ethnic Affairs ("the
Minister"), on 3 May 1993, refusing applications made by the appellant,
David John Cawdell Irving, on 7 December 1992 and on 3 June 1993 for a
Business Visitor (Short Stay) Visa.
In the first application, M: Irving sought a class 672 visa, that is to
say a Business Visitor (Short Stay) Visa, which was specified in Schedule
2 of the Migration Regulations 1989 ("the 1989 Regulations") to the
Migration Act 1958 (Cth) ("the Act"). An applicant for a class 672 visa
was required to satisfy, among other things, certain "public interest
criteria" which were set out in reg. 2. The public interest criterion
which is in issue was that the person "is of good character".
Regulation 4(1) of the 1989 Regulations relevantly provided:
"4. (1) For the purposes of these Regulations, 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:
...
(ii) the applicant:
...
(D) has been deported from another country; or
(E) has been exduded from another country in the
circumstances prescribed for the purposes of
sub-paragraph 11A(1)(d)(vi) of the Act;
... '
One of the circumstances referred to in sub-paragraph (E) was that set
out in reg. 177(d) which read as follows: "(d) that the authorities of
that country considered the person to be a threat to the national
security of the country."
The Minister had a discretion under reg. 143(a)(ii) of the 1989 Regulations
to waive the requirement that the applicant be of good character. This
regulation provided that the Minister could grant the visa to an applicant
who had failed to satisfy public interest criteria only because he was
taken not to be of good character if the Minister was satisfied that
"the applicant has shown by subsequent conduct that he or she is reformed."
When the second application was lodged, the statutory and regulatory
provisions had altered but their effect was similar. On 3 June 1993,
s.180A of the Act relevantly provided:
The Migration (1993) Regulations ("the 1993 Regulations") provided in
Schedule 1 for a class 672 visa, which was a Business Visitor (Short Stay)
Visa. One of the criteria for the visa was that the applicant satisfy the
public interest criteria specified in Clause 4001 of Schedule 4 which
read as follows:
"SCHEDULE 4
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
the evidence is insufficient to satisfy the Minister of any of the
matters referred to in paragraph (1)(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."
After considering each application, the decision-maker, the Minister,
concluded that he was not satisfied that the applicant was a person of
"good character" and he refused to waive compliance with this criterion.
The question whether a person is or is not of "good character" is
primarily an issue of fact. It is not the function of this Court to form its
own view of such a fact. Provided that the decision-maker has approached the
issue correctly, has acted in accordance with the principles of procedural
fairness, has taken into account all material factors, has disregarded
immaterial factors and has reached a decision which was open on the
material, which is to say that the decision made was not one which no
reasonable decision-maker would have made, then this Court will not grant
an order of review. The Administrative Decisions (Judicial Review) Act
1977 (Cth) confers on the Court not the function of reviewing decisions on
their merits, but the function of correcting those errors which may
loosely be described as errors of law, that is to say errors which offend
the legal principles laid down for administrative decision-making.
It should also be observed that the term "good character" is not
precise in its denotation. In one sense, it refers to the mental and
moral qualities which an individual has. In another sense, it refers to
the individual's reputation or repute. See Oxford English Dictionary,
meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and
5. Necessarily, when decisions are made in Australia under the Act in
relation to persons who are overseas, greater attention tends to be given
to objective facts and to reputation or repute rather than to a detailed
analysis of the person's inherent qualities. I do not suggest that, in
the context, "good character" refers to reputation and repute as such. It
does not. But criminal convictions or the absence of them and character
references are likely to be an important source of primary information. If
there is a criminal conviction, the decision-maker will have regard to
the nature of the crime to determine whether or not it reflected adversely
upon the character of the applicant. If the conviction was in the past,
the decision maker will turn his attention to whether or not the applicant
has shown that he has reformed. If persons speak well of the applicant,
the decision-maker will take that into account.
Mr Irving is an English historian who, over a number of years, has
propounded views relating to the Holocaust which are controversial and
which some persons, particularly those of the Jewish people, find
disturbing. However, the Minister did not examine or base his decisions
on Mr. Irving's writings and speeches. There is no challenge to that course.
There was not tendered before the learned trial Judge, and there is not
before the Court, any statement of the reasons for the decisions of the
Minister. But, there are in evidence lengthy, written recommendations
which were put to the Minister prior to his making both decisions. Counsel
have accepted that these recommendations may be treated as a reliable
guide to the factors to which the Minister had regard and, by reason of
his approving of the recommendations without comment, to the reasoning
process of the Minister himself.
The case which Mr Irving put to the Minister was not a promising one. It
was not in dispute that Mr Irving had been convicted of an offence in
West Germany and expelled therefrom, that he had been deported from
Canada for breach of Canada's migration regulations, that there was a
warrant for his arrest in Austria and that he had been refused entry to
Italy and to South Africa. Deportation and refusal of entry do not of
themselves throw much light upon the inherent qualities which a person
may have. But it would be fair to say that it would be seldom that a
person of good character had been expelled from or refused entry into so
many countries. Regulation 2 of the 1989 Regulations specifically
provided that a person was to be taken to be not of good character if
the person had been deported from another country.
The recommendations put to the Minister concentrated upon certain
principal circumstances. The first was that the applicant had been
convicted in West Germany in 1992 of the offence of "defaming the memory
of the dead", contrary to s.189 of the Criminal Code of the Federal
Republic of Germany, an offence punishable by up to two years imprisonment
or by a fine. He pleaded not guilty but, on 5 May 1992, was convicted by
the Municipal Court in Munich and was ordered to pay a fine of DM10,000
(about $10,000). Mr Irving appealed to the State Court in Munich. That
Court dismissed Mr Irving's appeal and increased his fine to DM30,000.
A subsequent order for Mr Irving's expulsion from Germany stated,
inter alia:
"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 constitute 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.
...
Your behaviour constitutes a danger to the inner security of the
Federal Republic of Germany in the greater sense and at the same
time does damage to the reputation of the German State ..."
An issue in this appeal is whether, in expelling Mr Irving, the German
authorities considered him to be a threat to the "national security" of
the country. It was submitted by counsel for Mr Irving that the term
"national security" in reg. 177(d) refers to external security rather
than to internal security. "National security" is not, however, limited
to external matters. It looks to matters affecting the country in general
rather than individual persons. Mr Irving's conduct in West Germany
concerned both the internal security of the country and also its
relations with other countries. It is not in dispute that Mr Irving's
views are regarded as offensive by many people, particularly Jewish
people. Therefore, Mr Irving was expelled for reasons of national
security.
It was submitted by counsel for Mr Irving that the offence committed
in West Germany was irrelevant, as there is no law in Australia which
prohibits the conduct for which Mr Irving was convicted in Germany. It
was submitted, somewhat loosely, that, in Australia, freedom of speech
is a fundamental right and it was further submitted that no reasonable
person in Australia would regard the conviction in Germany as bearing
upon good character. The conviction, it was said, arose from Mr Irving's
attempts to speak freely on an issue of public interest.
This submission misunderstands the function of the Court. It was for the
administrative decision-maker to decide whether he was satisfied that
Mr Irving was of good character. The conviction in West Germany was not
irrelevant and it was not of so little weight that no reasonable
decision-maker would give attention to it. Germany, like Australia, is a
democratic country and Mr Irving's conduct in that country was an offence
against its laws. What weight the Minister attached to the conviction was
a matter for him, not for the Court.
Another matter to which the Minister gave attention was that, in October
1992, Mr Irving was arrested by immigration authorities in Canada and
appeared at an immigration hearing. After negotiation, Mr Irving admitted
an offence under s.27(2)(g) of the Canadian Immigration Act. A departure
notice requiring him to depart Canada by midnight on Sunday, 1 November
1992 was issued. On Monday, 2 November 1992, Mr Irving was again arrested.
At a further hearing, presided over by Immigration Adjudicator
Mr K Thompson, Mr Irving gave evidence that he had sought to leave Canada
on 1 November 1992, that he had driven to the United States' end of the
Rainbow Bridge, which ran between Canada and the United States, but had
been returned by the American immigration officials notwithstanding he
held a valid visa for multiple entry into the United States. That evidence
was rejected by Mr Thompson who said, inter alia:
"In assessing your evidence as a whole, you have been unable to
persuade me that you did leave Canada on October 30, 1992. I have a
great deal of difficulty accepting your evidence. It did it [sic]
not have the ring of truth to it, but observing you and listening to
your testimony, I could not help but get the impression that you were
at times re-citing [sicl a rehearsed script. I found you to [sic] a
difficult witness who as often confrontational with the case
presenting officer when he asked you straight forward [sic] questions.
When viewed as a whole this evidence can lead to only one conclusion;
the event was a total fabrication and never took place ..."
Mr Thompson then ordered that Mr Lrving be deported from Canada.
Mr Irving's explanation of the Canadian events was again put to the
Minister in this country. However, an administrative decision-maker is not
bound to accept a version of events put by an applicant for a visa. The
decision-maker will give the applicant's story such weight as he or she
considers appropriate in all the circumstances. See, eg., Singh v Minister
for Immigration and Ethnic Affairs (Branson J, 29 April 1996, unreported).
Another relevant occurrence was that, on 11 February 1994, in the High
Court of Justice in London, Brooke J found that Mr Irving was in contempt
of that Court for failing to comply with an order of Morison J. Brooke J
ordered that Mr Irving be committed to prison for a period of three months.
Subsequently, on 21 February 1994, Mitchell J heard an application on
Mr Irving's behalf for his discharge and ordered that Mr Irving be released
from prison. In the course of his reasons for judgment, Mitchell J
indicated that he did not accept Mr Irving's explanations. His Lordship
said, inter alia:
"... I am afraid I do not accept the explanations appearing in his
affidavit, that is to say, his explanation to me that he had not the
faintest idea that any of this was going on - that includes that he
had not the faintest idea that the German judgment was even
registered in this countly; I am afraid I do not accept that for one
moment."
In my opinion, all these matters, the offences against the laws, the
conviction, the contempt of court, the orders for deportation and the
findings of lack of veracity, were matters which the Minister was entitled
to take into account in his assessment whether or not Mr Irving was a
person of "good character". No matter taken into account by the Minister
was irrelevant to his task.
In my opinion, the decision of the Minister was not such that no
reasonable decision-maker could have arrived at it.
I should reiterate that the issue for decision was an issue of fact,
the determination of which Parliament reposed in the Minister and his
delegates. It is not the task of this Court to come to its own view of
that fact. The drawing of a conclusion by a decision-maker as to whether
he or she is satisfied that an applicant for a visa is of "good character"
requires the exercise of a value judgment. There are no precise parameters
which distinguish "good character" from "bad character". Although, in
general, "good character" can be readily recognised, in a particular case
views may differ. It is for the administrative decision-maker, in whom
Parliament has reposed the function of making that assessment, to arrive
at a decision. Once the decision has been made, it matters not that another
decision-maker may have concluded differently. The decision will stand
unless an error of law is established, eg., that the decision was such
that no reasonable decision-maker could have arrived at it. No such error
has been established in the present case.
It was further submitted that the provisions in reg. 143(a)(ii) of the
1989 Regulations did not apply, or had been satisfied, as Mr Irving had
never been culpable and therefore there was no occasion for his reform.
I am satisfied, however, that the regulation was applicable and that the
Minister was entitled not to be satisfied that Mr Irving had shown by
subsequent conduct that he had reformed. Indeed, the inference was open
to the Minister that Mr Irving proposed to continue to act in the future
as he had in the past, because he considered it right to do so.
I would dismiss the appeal with costs.
I certify that this and the 10 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.
The original plain text version of this file is available via
ftp.
[
Index ]
The Hon. Justice Davies
"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) ...
(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,
PUBLIC INTEREST CRITERIA
Associate:
Date: 30 July 1996