The Nizkor Project: Remembering the Holocaust (Shoah)

Reasons for Judgment
The Hon. Justice Nicholson



In a democracy where free speech is cherished (even if not recognized as a fundamental overriding consideration of law), the application of a "good character" test to deny a visa to a person who espouses controversial public views must necessarily raise the question in the mind of the unsuccessful applicant or others whether the test has been applied in truth to deny the opportunity for espousal by that person of his or her views within the country in respect of which the visa was sought. When the decision to deny such a visa is arguably based upon the application of such tests or the denial of such visas elsewhere, the question also arises whether the denial by one country of the opportunity for entry has an unmerited snowballing effect; unmerited because the denials in other countries are arguably founded on denial of an opportunity to espouse the view rather than truly on grounds of character. While these may be questions raised by the circumstance of denial of the application, they are not considerations which are determinative at law of either this appeal or the application for review at first instance.

The decisions which gave rise to this appeal and the relevant le, al framework are set out in the reasons for judgment of Davies J which I have had the advantage of considering in draft.

Those reasons make apparent that courts on an appeal such as this, while required to scrutinise with care the legal framework within which the administrative decisions containing the denials on grounds of good character have occurred, nevertheless have a limited role. As stated by Davies J and recognized by Carr J at first instance, it is not the function of the Court from which review was first sought (nor of this Court on appeal) to form its own view of the applicant's "good character" or to decide whether it would have reached the same decision as the primary decision-maker. Specifically, the question of weight to be accorded a matter or combination of matters properly before him or her is a question for the decision-maker.

On the assumption (made by Carr J) that the respondent took the matters before him into account, there was evidence before the respondent capable of supporting his decisions. The German conviction arose from the appellant's espousal, in defiance of the law, of views of high controversy. Later the appellant was made subject to an order expelling him from the Federal Republic of Germany. Nevertheless, the fact of conviction was capable, as Carr J recognized, of demonstrating a lack of respect for the law and for the sensitivities which the law sought to win respect by controlling the exercise of free speech in relation to them and so was relevant to the issue of the appellant's good character.

The other matters before the respondent and considered by Carr J did not derive their character from criminality arising from the exercise of free speech. The findings of Immigration Adjudicator Thompson were that the appellant lied on oath. A deportation order from Canada was made against him. He was found in contempt of court in the High Court of Justice in London and imprisoned. Later he was found to be a person who deliberately gave false evidence. Carr J was not in-error in holding these and the German matters relevant material to the question of the appellant's good character or his reform.

I am of the same opinion as Davies J and I agree with his reasons and conclusion that the appeal should be dismissed.

Since arriving at the preceding conclusion I have had the benefit of reading in draft the reasons of Lee J in which his Honour also reaches the same conclusion.

I certify that this and the preceding 2 pages are a true copy of the reasons for Judgment of his Honour Justice R D Nicholson.

Associate: [signature]
Date: 30 July 1996

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