Irving v Minister of State for Immigration, Local Government and Ethnic Affairs [1995] FCA 685

CATCHWORDS

ADMINISTRATIVE LAW - immigration - applications for Business Visitor (Short Stay) Visa - historian seeking to promote sales of his books in Australia - holds controversial views on the mass murder of Jews by Nazis during World War II - conviction in Germany in 1992 for defaming the dead - fined equivalent of $30,000 for that offence - applicant's sworn oral evidence disbelieved by Canadian administrative tribunal in 1992 - applicant's conviction and imprisonment for contempt of court in England in 1994 - applicant's affidavit evidence rejected with adverse comments by High Court judge in England when seeking to purge that contempt - Minister personally refused application for visa - failure to meet requirement of good character - whether improper exercise of power - whether Minister took into account irrelevant considerations - whether evidence or other material to justify decision - whether decision unreasonable in Wednesbury sense - whether failure to take into account relevant consideration - whether error of law - whether denial of natural justice in not putting all matters to applicant - application for order of review dismissed.

Migration Act 1958 (Cth) ss.20, 24, 33, 180A

Migration (Criteria and General) Regulations 1989. Regs. 2, 4, 10, 34A, 41, Schedule 1 item 5, Schedule 2 item 45

Migration (1993) Regulations. Regs. 2.1, 2.2, 2.35, Schedule 4 clause 4001

Administrative Decisions (Judicial Review) Act 1977 ss.5(1)(d),(e),(f),(h),(j), (2)(a),(f), (r), (3)

Acts Interpretation Act 1901 (Cth) s.15AB

Kioa v. West (1985) 159 CLR 550

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24

Hand v. Hell's Angels Motorcycle Club Inc (1991) 25 ALD 667

Irving v. Minister for Immigration (1993) 44 FCR 540

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223

Parramatta City Council v. Pestell (1972) 128 CLR 305

DAVID JOHN CAWDELL IRVING v. MINISTER OF STATE FOR

IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

No. WAG 63 of 1994

CARR J.

PERTH

31 AUGUST 1995

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 63 of 1994

GENERAL DIVISION )

B E T W E E N: DAVID JOHN CAWDELL IRVING

Applicant

and

MINISTER OF STATE FOR

IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE:31 AUGUST 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY) No. WAG 63 of 1994

GENERAL DIVISION)

B E T W E E N: DAVID JOHN CAWDELL IRVING

Applicant

and

MINISTER OF STATE FOR

IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE:31 AUGUST 1995

REASONS FOR JUDGMENT

Introduction

This is an application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for an order of review in respect of two decisions made by the respondent on 3 May 1994. The first decision was to refuse an application made by the applicant, Mr David John Cawdell Irving, on 7 December 1992 for a Business Visitor (Short Stay) Visa. In summary, the respondent refused that application on the ground that Mr Irving did not meet the good character requirements of Regulations 2(1) and 4(1) of the Migration Regulations 1989 ("the 1989 Regulations"). The respondent decided also that he would not exercise the power conferred on him by Regulation 143 of those regulations to waive that requirement, because Mr Irving had not shown by subsequent conduct that "he is reformed". The respondent's second decision was to refuse Mr
Irving's application, again for a Business Visitor (Short Stay) Visa, made on 3 June 1993. This second application and the decision upon it were made under a different statutory and regulatory regime to the first application and decision. When making the second decision the respondent determined, pursuant to s.180A(2) of the Migration Act 1958 (Cth) ("the Act"), that Mr Irving was not of good character and further that Mr Irving failed to meet all the requirements of the public interest criteria set out in Schedule 4 of the Migration (1993) Regulations ("the 1993 Regulations"). The second decision also involved a decision not to exercise the discretion to waive the good character requirement.

For the benefit of anyone reading these reasons who is not a lawyer, I think it is appropriate that I should, very briefly, say something about the Court's function in this matter. It is not for the Court, in applications of this type, to decide the merits of the matter in the sense of whether Mr Irving should be granted a visa. That decision is an administrative one to be made by the executive arm of government. The Court's role is to review the administrative decisions to ascertain whether they were made in accordance with the law, including any procedures which may expressly, or by implication, condition the administrative decision-making process. As part of that process, the Court may have regard to the merits of the matter if the Court is asked to set aside a decision on the basis that the decision was so unreasonable that no reasonable decision-maker could have made it. That is a step which the Court will not take lightly. It proceeds with particular caution when considering a submission to that effect (i.e. of manifest unreasonableness) lest it usurps the administrative function of weighing and balancing the merits of the matter.

Factual Background

Mr Irving is a historian, normally resident in England, who has written many books and who has travelled widely. He has twice visited Australia. The first visit was in 1986 for approximately a fortnight and the second in 1987 for almost a month.

On 21 April 1990, while at a function in Germany, Mr Irving stated in public:

"We now know - I need mention that here only as a footnote - that there never were gas chambers in Auschwitz. Meanwhile, we believe that just as the gas chambers that the Americans erected here in Dachau in the first days after the war was a mock up, so too the gas chamber sites that you can visit as a tourist in Auschwitz now, were constructed by the Polish authorities after the Second World War ... so the German taxpayer has had to pay around 16 billion marks as a punishment for Auschwitz ... for a mock up."

For making that statement Mr Irving was charged with 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 with a fine. He pleaded not guilty but on 5 May 1992 was convicted on that charge by the Municipal Court in Munich and was ordered to pay a fine of DM10,000 (about $10,000). Mr Irving appealed against that decision to the State Court in Munich. That Court dismissed Mr Irving's appeal and increased his fine to DM30,000.

On 28 October 1992, while in Canada, Mr Irving was arrested at the instance of immigration authorities and appeared before an immigration hearing on 29 October 1992. During the course of that hearing Mr Irving entered into negotiations with the Canadian immigration officials. As a result of those negotiations Mr Irving admitted an offence under s.27(2)(g) of the Canadian Immigration Act. The essence of the offence was that upon entering Ontario Mr Irving had stated that he would only be spending two weeks in that Province when he should have stated that he intended to visit British Columbia and other Provinces. Mr Irving also agreed to the issue of a Departure Notice requiring him to depart from Canada by midnight on Sunday 1 November 1992. In an affidavit sworn by Mr Irving on 8 February 1994 and tendered to the respondent in support of his application for a visa, Mr Irving says that on the evening of Friday 30 October 1992 a Canadian businessman, Mr Brian Fisher, drove him from Canada to Blaine in Washington State, USA. He says that he was there for two hours before returning to Canada and that the next day, a Saturday, he flew to Toronto and at 11.00 pm on Sunday 1 November 1992 he presented himself at the Rainbow Bridge between Canada and the United States. When he arrived at the American end of that bridge, Mr Irving says that the American officials delayed him for one hour during which they engaged in telephone conversations and exchanged messages with officials at the Canadian end of the bridge. Eventually at 12.05 am on Monday 2 November 1992, so Mr Irving deposes in his affidavit, an American immigration official told him to return to the Canadian end of the bridge "to sort everything out". On his return to the Canadian end of the bridge Mr Irving was arrested by Canadian immigration officers and charged with failing to leave Canada in accordance with the Departure Order. Mr Irving's evidence is that at the relevant time he held a valid visa for multiple entry into the USA, that he has since that episode lawfully visited the USA three times and that the delay on the evening of 1 November 1992 was due to someone having inserted a considerable amount of libellous material about him on the US Immigration and Naturalization Service's Computer.

Between 2 November 1992 and 13 November 1992 an immigration hearing took place at Niagara Falls before Immigration Adjudicator Mr Kenneth Thompson. Mr Irving gave sworn evidence and adduced evidence from others at that hearing concerning his departure from Canada on the evening of Friday 30 October 1992. Mr Thompson, in his findings, said that he did not believe Mr Irving and gave written reasons for that finding. Mr Thompson's conclusions included the following:

"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 [sic] a rehearsed script. I found you to [sic] a difficult witness who was often confrontational with the Case presenting officer when he asked you straightforward 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, pursuant to s.32(6) of the Immigration Act, that Mr Irving be deported from Canada.

On 7 December 1992 (as mentioned above) Mr Irving lodged his first application for a visitor's visa to travel to Australia. On 8 February 1993 the respondent rejected Mr Irving's application on the grounds that Mr Irving's presence in Australia would be "disruptive to the Australian community" - see paragraph (c) of the definition of "public interest criteria" in Regulation 2(1) of the 1989 Regulations.

In March 1993 Mr Irving applied to this Court for an order of review in respect of the respondent's decision to reject his application for a visitor's visa. On 13 May 1993 French J. dismissed that application. On 16 September 1993 the Full Court of this Court allowed an appeal from that decision. The Full Court ordered that the respondent's
decision of 8 February 1993 be reviewed and set aside and that it be returned to him for determination according to law.

On 9 November 1993, while Mr Irving was in Munich, he was served by the relevant German authority with an order expelling him from the Federal Republic of Germany. The order obliged him to leave that country immediately or no later than 10 November 1993. Mr Irving complied with that order.

On 11 February 1994 in the High Court of Justice (Queen's Bench Division) in London, Brooke J. found that Mr Irving was in contempt of that court by failing to comply with an order of Morison J. For that contempt Brooke J. ordered Mr Irving to be committed to prison for a period of three months. On 21 February 1994 Mitchell J. heard an application on Mr Irving's behalf to purge his contempt and to obtain a discharge of the order made on 11 February 1994 committing him to prison. Mitchell J's written reasons in respect of that application included the following paragraph:

"I have not found this an easy decision because I have made it clear more than once during the course of today - and I adhere to the conclusions that I have been forming and expressing - that 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 country; I am afraid I do not accept that for one moment."

Mitchell J, for reasons which he then gave and which were concerned with compliance with Brooke J's order, ordered that Mr Irving be released from prison.

On 3 May 1994 the respondent refused both of Mr Irving's applications for visas on the grounds which I have summarised above. On 27 May 1994 Mr Irving filed this application.

The Statutory and Regulatory Framework

The First Decision

The visa for which Mr Irving first applied was described in the 1989 Regulations as a "class 672 visa". Section 24 of the Migration Act governed the grant or refusal of visas. Section 24(7) relevantly provided that where it appeared to the Minister that an applicant for a visa was not, under the regulations, entitled to be granted a visa of the class concerned, "the Minister shall refuse to grant the applicant such a visa". An applicant for a class 672 visa was required to satisfy, among other things, public interest criteria as provided for in the 1989 Regulations - [see Regulations 2, 4, 10, 34A, 41, Schedule 1 item 5 and Schedule 2 item 45.] The only public interest criterion in issue in this matter is that referred to in Regulation 2, namely that the person "is of good character". Regulation 4 prescribes certain circumstances in which a person is taken not to be of good character. Regulation 4(1) relevantly provides as follows:

"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:

(i) the applicant has been assessed by the competent Australian authorities to be a risk to Australian national security; or

(ii) the applicant:

(A) has at any time been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year; or

(B) has at any time been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling not less than one year; or

(C) has at any time been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while the person was of unsound mind; or

* (D)has been deported from another country; or

* (E) has been excluded from another country in the circumstances prescribed for the purposes of sub-paragraph 11A(1)(d)(vi) of the Act;

. . ."

I have placed an asterisk beside the two sub-paragraphs upon which the respondent relies in this matter.

The circumstances prescribed in sub-paragraph (E) above can be found in Regulation 177 which relevantly provides that each of a list of circumstances is a prescribed circumstance in relation to the exclusion of a person from a country other than Australia. The circumstance upon which the respondent relies in this matter is set out in regulation 177(d) which reads as follows:

"(d) that the authorities of that country considered the person to be a threat to the national security of the country."

The respondent has a discretion to waive the requirement that the applicant be of good character where the applicant fails to satisfy public interest criteria only because he or she is to be taken not to be of good character. In the present matter the relevant basis for the exercise of that discretion is provided by Regulation 143(a)(ii) which provides that the Minister may grant the visa if he is satisfied that "the applicant has shown by subsequent conduct that he or she is reformed."

In summary, the applicant says that he is of good character and but for the deeming provisions in Regulation 4, satisfies that public interest criterion. Mr Irving disputes that his exclusion from the Federal Republic of Germany falls within Regulation 4(1)(E) when read with Regulation 177(d) upon the proper construction of the term "national security". Mr Irving does not dispute that he has been deported from another country, namely Canada. However, he submits that the Minister should, in the circumstances, exercise the discretion conferred on him by Regulation 143, to waive the good character
requirement.

Second Decision

It was common ground that the 1993 Regulations applied to the second decision. Section 33 of the Act provides for the making of certain regulations including regulations concerning entry permits. By following "a tortuous trail" [Wilcox J's very apt description of portions of these regulations in Kumar v. Immigration Review Tribunal (1992) 36 FCR 544 at p.545] through Part 2 and in particular Division 1, Regulations 2.1, 2.2, 2.3, 2.335 and Schedule 4, one can eventually discover that the public interest criteria which Mr Irving is required to satisfy are set out in clause 4001 of Schedule 4 which reads as follows:

"SCHEDULE 4

PUBLIC INTEREST CRITERIA

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 that 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."

The key provision of the Act, for present purposes, is s.180A which materially provides as follows:

"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; or

. . ."

The Grounds Upon Which the Applicant Seeks An Order to Review

The First Decision - Grounds 1, 2 and 3

The applicant relies on ss.5(1)(e) and 5(2)(a) of the ADJR Act and says that the respondent's decision to refuse the application of 7 December 1992 for a visa because Mr Irving was not of good character was an improper exercise of the power conferred on the Minister by s.24(7) of the Act because, so it is alleged, the respondent took into account considerations which were irrelevant, naoely:

. Mr Irving's conviction in Germany in 1992;

. The adverse findings by Mr Thompson, the Canadian Immigration Adjudicator; and

. Mitchell J's adverse comments upon Mr Irving in the United Kingdom proceedings.

Mr P.S. Bates, counsel for the applicant, submitted that whether a person is of good character must be determined objectively in accordance with "ordinary notions" rather than the subjective views of the particular Minister. He referred to paragsaph 2.2 of a Procedures Advice Manual issued by the respondent's department in March 1991 ("the Manual") and entitled "Character Requirement" which reads:

"2.2 The overall objective of the character requirement is to protect the resident Australian community from the actions and influence of people who may:

. threaten the security of the nation through acts of espionage, sabotage, politically motivated violence or foreign interference; promotion of communal violence or attacks on Australia's defence system; (the `security' element of the character requirement); or

. pose an unacceptable threat to public safety or property (the `penal' element of the character requirement)."

Mr Bates submitted that in order to be relevant, the "ordinary notions" would have to be circumscribed by the above paragraph to security matters or criminal matters. He submitted that the expression "good character" was so wide as to be ambiguous or obscure so that I could, pursuant to s.15AB(1) of the Acts Interpretation Act 1901 (Cth) have regard to the Manual to determine its meaning. Alternatively, he submitted that the Manual provided guidance to departmental decision-makers as to what should be considered relevant matters to take into account when dealing with good character. In written submissions, the applicant conceded that such manuals are not necessarily exhaustive when providing examples of what might constitute lack of good character but, so it was said, they provide very real guidelines as to what matters are relevant and what are not.

In my view there is no need to have recourse to the Manual for the purposes of resolving Grounds 1, 2 and 3. First, I do not agree that the expression "good character" is so wide as to be ambiguous or obscure and thus warrant recourse to s.15AB for assistance. Secondly, although the list of material referred to in s.15AB(2) is expressly stated not to be exhaustive, the Manual does not fall into the category common to all the various materials referred to in that subsection, namely, that they were in existence or came into existence at or about the time of the enactment of the legislation in question. The Manual is dated March 1991. Alternatively, if I am wrong in that conclusion I cannot see why a statement of the overall objective of the character requirement, as set
out above, should have the result of limiting the construction of the expression "good character" to the matters of security and public safety. Mr Bates was on firmer ground with his submission that "good character" is something which is capable of assessment according to "ordinary notions" an expression which comes from the Full Court decision of Hand v. Hell's Angels Motorcycle Club Inc (1991) 25 ALD 667 at p.672 where the Full Court said:

"The assessment of "good character" contemplated by reg 2(1) is a familiar task. Many matters will be relevant to this assessment most of which, taken individually, will not conclude the issues. Regulation 4(1) provides that for the purposes of the Regulations a person is taken not to be of good character if certain defined circumstances exist in relation to that person, but reg 4(1) is not a code that defines good character for the purposes of the Regulations. An applicant for a visa must positively establish good character and reg 4(1) does no more than to provide, in effect, that good character is not established if certain circumstances exist. Circumstances can well be envisaged in which a person would fail to satisfy the requirement of good character according to ordinary notions but would not fall within reg. 4(1). Regulation 143, which provides for the waiver of the good character requirement, supports the conclusion that there is no code. It allows the grant of a visa in certain circumstances to an applicant who fails to satisfy public interest criteria "only because the applicant is to be taken not to be of good character ..." (our emphasis)."

As mentioned above, Mr Bates acknowledged that the Manual was not necessarily exhaustive when providing examples of what might constitute lack of good character. In my view, a person who may threaten the security of Australia or who poses an unacceptable threat to public safety or property may well be characterised as being not of good character but the application of "ordinary notions" does not mean that a person who does not pose any such threat must necessarily be of good character within the meaning of Regulation 2.2.

Alternatively, it was suggested that the expression "good character" should be interpreted in a manner which would exclude from Australia people whose presence will in some way be of harm to Australia or be detrimental to Australia's interest and that "ordinary notions of good character" should be confined in that manner. I reject that submission. The question is whether in accordance with ordinary notions, the three matters which the Minister is alleged to have taken into account when assessing whether Mr Irving was a person of good character, were irrelevant considerations.

As a matter of fact, there was no evidence that the Minister took into account these three matters when making his decision. The Minister was not required, under the relevant statutory provisions, to furnish a statement of his reasons and no such statement was put into evidence.

The evidence and other material which was before the respondent when he made the two decisions which are challenged in these proceedings comprised a separate departmental minute in respect of each visa application. Each minute set out the factual background and the statutory and regulatory provisions summarised above and had attached to it documents relating to Mr Irving's conviction in Germany in 1992, the adverse findings of Mr Thompson, Mitchell J's adverse comments and the German expulsion order. Also attached to each minute were submissions from Mr Irving in the form of affidavits and other documents. In each case, the minute concluded with a recommendation and endorsement setting out alternative decisions for the respondent's consideration. The respondent made his decision in respect of each visa application by striking out alternatives which resulted in the decisions which I have summarised earlier in these reasons. Copies of those minutes and accompanying documents, together with a further affidavit by way of explanation from Mr Irving comprised the bulk of the evidence before the Court in these proceedings.

The applicant tendered an affidavit from a Mr De Bruin to which was annexed a copy of a letter dated 21 January 1994 to Mr De Bruin on the respondent's letterhead signed by Ms Bronwyn McNaughton, Senior Adviser to the respondent. This was with a view to adducing some evidence of the respondent's reasons for his decisions. The relevant paragraph of that letter read as follows:

"The Minister has now done so [a reference to reconsidering the matter] and, having concluded that Mr Irving did not meet the `good character' requirements of the Migration Act and Regulations, has refused to grant him a visa. The reason for doing so had no bearing on Mr Irving's views on the `Holocaust'. Mr Irving's views and writings remain readily available in Australia."

Mr S. Owen-Conway QC, senior counsel (with Mr P. Macliver) for the respondent objected to this letter being admitted into evidence, on the grounds of relevance and hearsay. There was no suggestion that the letter was a forgery. I admitted the document into evidence, subject to those objections, on the basis that I would rule upon its admissibility in the course of giving my reasons for judgment. I shall give those reasons briefly. In my view, the letter is admissible as being relevant to a fact in issue. That fact is the Minister's reasons for his decisions. On the face of the document it is written on behalf of the respondent by his Senior Adviser and, for that reason, is not hearsay. Nevertheless it does not, in my opinion, establish that the respondent took into account the three matters referred to above. However, on the assumption that the respondent did so, I consider now whether they were irrelevant considerations.

The German Conviction

On the applicant's behalf it was said that this was simply a conviction arising out of the expression of Mr Irving's views, that Australia, being a democratic country, espouses freedom of speech and that a reasonable person would regard such a conviction as being
irrelevant to the question of good character. The Germanconviction for "slander concomitant with disparagement of the dead", so it was put, had no equivalent in Australia.

In my view, that does not mean that the conviction in Germany was irrelevant to the matter of Mr Irving's character. The fact that a person is prepared to break the law of a country, which he happens to be visiting, is capable of demonstrating a lack of respect for the law and that cannot be said to be irrelevant to the question of good character. When the nature of the conviction is taken into account, defaming the memory of the dead, in a country where the Holocaust might well be a matter of particular sensitivity, the proposition that the conviction is irrelevant to character becomes even harder to sustain. This was no traffic infringement. This was an offence for which the German legislature saw fit to provide for punishment by up to two years imprisonment and for which an appellate court imposed a fine equivalent to approximately $30,000. It is enough that such a conviction may be relevant to the question of Mr Irving's character. The weight to be given to that factor is a matter for the Minister and not for this Court.

Then it was said, on behalf of the applicant, that it would be inconsistent to regard the German conviction as being relevant when there is an express provision in Regulation 4(1)(b) dealing with convictions for offences in circumstances indicating, in the reasonable belief of the Minister, habitual contempt or disregard for the law or for human rights. That submission suggests that Regulation 4(1) is a code that defines good character for the purposes of the regulations. The Full Court held to the opposite effect in the extract from the Hell's Angels case which I have set out above. Regulation 4 is a deeming provision and, in my opinion, cannot render irrelevant a conviction, for example, which might indicate other serious but not habitual contempt or disregard for the law. For those reasons I reject that alternative submission.

Immigration Adjudicator Thompson's Comments

The same reasoning, in my opinion, applies to the comments of Adjudicator Thompson in 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 applies the test of "ordinary notions" 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 overlook 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.

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 submitted 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 requirement 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 submitted on behalf of the applicant that the good character requirement 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.

The First Decision - Ground 4

Further and in the alternative, Mr Irving relies on ss.5(1)(h) and 5(3) of the ADJR Act and says that there was no evidence or other material within the meaning of those provisions to justify the making by the respondent of the decision to refuse to grant Mr Irving a visa on the ground that he was not of good character within the meaning of Regulation 2(1). The applicant's particulars in relation to this ground were that:

(a) the respondent was required to make a decision whether or not to grant Mr Irving a visa;

(b) the respondent was required by law to exercise his discretion against Mr Irving only if a particular matter were established, namely that he was not of good character; and

(c) there was no evidence or no relevant evidence upon which the respondent could have relied to come to that decision. Those particulars incorporate by reference the particulars relied upon in respect of the first three grounds referred to above.

Mr Bates argued that the respondent could not make the decision to refuse Mr Irving a visa until a particular fact was established, namely whether or not Mr Irving was of good character. He then submitted that the words "... there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established" in s.5(3)(a) of the ADJR Act were equivalent to "there being insufficient evidence" which introduced concepts of weight. Mr Bates submitted that even if the three matters of the German conviction, Adjudicator Thompson's findings and Mitchell J's findings were relevant matters, they were of such minimal weight when viewed against the factual background in which they occurred that they constitute insufficient evidence to justify the decision. In that regard I was referred to Mr Irving's various versions of the three events, which were set out in his affidavits, as evidencing extenuating circumstances.

As Drummond J. observed in Irving v. Minister for Immigration (1993) 44 FCR 540 at p.560, the making of the decision to refuse the visa depends upon the establishment of the matter, viz, the failure by the applicant to satisfy the good character requirement. The question is whether there was any evidence in the sense of material admissible according to the rules of evidence or other material relevant to, and logically probative in respect of Mr Irving's character upon which the respondent could reasonably be satisfied that Mr Irving was not of good character.

In essence, the applicant's attack on the respondent's decision was based on the proposition that the weight to be attached to the German conviction, Adjudicator Thompson's finding and what Mr Bates described as the "Mitchell J. incident" was lessened to such a substantial extent that it should not have been relied upon.

The problem with that proposition is that generally the weight to be attached to any individual matter or combination of matters is a question for the respondent to decide: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at p.42. The question for the Court is as I have just outlined above.

Given that it was for the respondent to decide what weight, if any, to give to Mr Irving's explanations, there was in my view evidence or other material from which the respondent could reasonably be satisfied that Mr Irving had failed to satisfy the good character criterion. By that I refer to the evidence of Mr Irving's conviction in Germany for defaming the dead. It was open to the Minister to have regard to that factor in assessing Mr Irving's character regardless of whether that conduct would constitute a criminal offence in Australia. Similarly there was the evidence of Immigration Adjudicator Thompson's findings that Mr Irving had lied to him on oath at the immigration hearing and, finally, Mitchell J's finding that Mr Irving had lied in an affidavit filed in the High Court of Justice in England. In my view, the applicant has not made out Ground 4.

The First Decision - Ground 5

Further and in the alternative, the applicant relies on ss.5(1)(e) and 5(2)(g) of the ADJR Act on the basis that the respondent's decision to refuse the visa because Mr Irving was not of good character was, so it was submitted, an improper exercise of the power conferred by s.24(7) of the Act. It was contended that the finding that Mr Irving was not of good character within the meaning of Regulation 2(1) was so unreasonable that no reasonable person could have so exercised the power to make that finding. The applicant's particulars in respect of this ground were that neither the German conviction, the finding of Immigration Adjudicator Thompson nor the comments of Mitchell J, nor any combination thereof, could reasonably have formed a basis for the respondent's decision.

In his oral submissions, Mr Bates expressed this slightly differently but with similar effect. He submitted that the respondent's decision was so capricious that no sensible decision-maker with a due appreciation of his responsibilities would have made it. I was referred once again to paragraph 2.2 of the Manual (set out above) and the security and penal elements of the good character requirement. Mr Bates submitted that there was no considered basis for the Minister to conclude that Mr Irving "... would harm the Australian community so as to render himself not of good character."

This test is, as both counsel agreed, an objective one but nonetheless a stringent one in terms of administrative law. Before the respondent's decision is reviewable as being unreasonable to the requisite degree, the Court must be satisfied that no decision-maker, acting reasonably, could have arrived at such a decision: Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223 at p.230; Parramatta City Council v. Pestell (1972) 128 CLR 305 at p.327. In this matter, where Mr Irving has been found to have committed a serious crime against German law (defaming the dead) and furthermore to have lied on oath to a quasi-judicial tribunal and more recently to the High Court of Justice in England I am not satisfied that no decision-maker, acting reasonably, could have arrived at the decision that Mr Irving is not of good character. On the contrary, such a decision was clearly one that could have been made quite reasonably, viewing the circumstances objectively.

The First Decision - Ground 6 (The Discretion Conferred by Regulation 143)

In respect of the respondent's decision not to exercise his discretion to waive the good character requirement under Regulation 143, Mr Irving relies on s.5(1)(e), in combination with s.5(2)(a) or in the alternative s.5(2)(b) of the ADJR Act. Mr Irving contends that in finding that he had not reformed within the meaning of Regulation 143(a)(ii), the respondent took into account as irrelevant considerations:

. the adverse comments of Immigration Adjudicator Thompson;

. Mitchell J's adverse comments; and

. Mr Irving's expulsion from Germany.

Alternatively, the applicant claims that the respondent failed to take into account a relevant consideration namely Mr Irving's compliance with immigration laws since the Canadian deportation. As a further alternative, the applicant relies on ss.5(1)(e) and 5(2)(g) of the ADJR Act and says that the finding that Mr Irving had not reformed was so unreasonable that no reasonable person could have exercised the power.

Strictly speaking, in view of my findings above, it is not necessary to consider this
ground. The discretion conferred by Regulation 143 on the respondent to waive the good character requirement only arises in circumstances where the applicant fails to satisfy the public interest criteria only because he is "to be taken not to be of good character". In the present matter the respondent has found that Mr Irving has not established that he is of good character and for that reason has failed to meet the public interest criteria for the relevant visa. In those circumstances, the respondent was obliged to refuse the visa. On the basis of my foregoing findings, that obligation did not arise out of the operation of the deeming provisions of Regulation 4 and the present application will be dismissed in any event. However, the ground was fully argued and I shall deal with it in these reasons.

The two bases upon which the respondent says that he was obliged by Regulation 4 to take Mr Irving not to be of good character were the fact that Mr Irving has been deported from another country, namely Canada [Regulation 4(1)(ii)(D)] and that he has been excluded from another country (The Federal Republic of Germany) in circumstances where the authorities of that country considered Mr Irving to be a threat to the national security of the country [Regulation 4(1)(ii)(E) when read with Regulation 177(b)]. The applicant's primary submission was that it was only the Canadian deportation which required the respondent to take Mr Irving as not being of good character. That was consistent with Mr Bates' submission that the applicant had not been excluded from Germany in circumstances prescribed by Regulation 177(b). Nevertheless, Mr Bates put some alternative submissions in that respect. In essence, they were that Mr Irving had demonstrated his reform of character by complying with the German expulsion order and German and American immigration laws.

It was common ground that in those circumstances the onus was on Mr Irving to show by subsequent conduct that he is reformed.

Mr Bates referred to what he described as a paradox in that if Mr Irving's deportation from Canada did not involve culpability on his part, then how was he to demonstrate that he had reformed? It was submitted on Mr Irving's behalf that he had done everything within his power to comply with the departure notice and it was only because of the material wrongfully placed on the American computer that he was sent back to Canada and thereafter arrested by the Canadian authorities.

Alternatively, Mr Bates pointed to some evidence of reform in Mr Irving's compliance with immigration requirements subsequent to that date. For example, Mr Irving had complied with the German expulsion order and there was evidence of that before the Minister. There was also evidence that Mr Irving had complied with German prohibitions from engaging in political activities while in Germany and had made repeated trips to the USA in full compliance with the immigration laws of that country. Mr Bates' submissions depended to some extent on the proposition that the evidence of reform would have to relate to the culpable act which led to the applicant being deemed not to be of good character. The respondent contends that he is not confined in his consideration of whether an applicant is reformed to particular issues or matters but may have regard to any matter which he considers relevant to the question of whether the applicant has shown by subsequent conduct that he is reformed.

Regulation 143(a)(ii) relevantly provides for a discretion to waive the good character requirement if:

"(a) the Minister is satisfied that:

(i) in the case of the circumstances referred to in subparagraph 4(a)(i) [a reference to the circumstance that the applicant has been assessed by the competent Australian authorities to be a risk to Australian national security] - the circumstance no longer obtains; or

(ii) in the case of conduct referred to in subparagraph 4(a)(ii) or (iii)* - the applicant has shown by subsequent conduct that he or she is reformed;"

[* the case was conducted on the basis that this was a reference to Regulation 4(1)(a)(ii) or (iii)].

The conduct referred to in Regulation 4(1)(a)(iii) is that the applicant has in the reasonable belief of the Minister, been involved in activities indicating contempt or disregard for the law or for human rights. That conduct is not in issue in the present matter. Subparagraph 4(1)(a)(ii) refers to five situations. The first three are where the applicant has been convicted of crimes or charged with a crime which was committed while he was of unsound mind. The draftsman of Regulation 143(a)(ii) when referring to Regulation 4(1)(a)(ii) may have been intending to refer to the conduct which was the subject of the particular crime. However, in my opinion it would be wrong to construe the two regulations in such a narrow way, bearing in mind their obvious purpose of denying entry to Australia to persons not of good character. The matter can be tested by assuming a hypothetical case in which an applicant was convicted of the crime of murder and thus deemed by Regulation 4 not to be of good character. If the applicant were able to demonstrate that he had committed no further murders but had subsequently been convicted for theft, it could not be the case that the Minister was obliged to ignore the conviction for theft and find that the applicant "is reformed". Strictly speaking, rather than simply referring to the conduct of the applicant, the conduct referred to in subparagraph 4(a)(ii) is in fact official conduct viz. conviction of crime, being charged with a crime, being found guilty, being sentenced, being acquitted on grounds of unsoundness of mind, being deported or being excluded from another country. It is that official conduct which has, in one sense, resulted in the applicant being deemed to be not of good character. However, in my view, the sensible way of construing the reference to conduct is to take it to include both the conduct in which the applicant engaged and the resultant official sanction both of which not only characterise a person as being not of good character but also form part of the background for assessing the possible operation of Regulation 143.

The use of the word "reformed" is, admittedly, apt to describe a person who no longer exhibits criminal tendencies. It is equally apt, if not more apt, to describe someone who was previously of bad character but has since improved morally.

Although I have not found the matter easy to decide, in my opinion, given the purpose of excluding from Australia persons who are not of good character, the Minister's task is to make the assumption that by virtue of Mr Irving's deportation and exclusion respectively (being the circumstances applicable in the present matter) the applicant is not of good character and then to consider whether the applicant has established by his subsequent conduct that he is reformed i.e. is of good character. The Minister, in deciding whether the applicant has satisfied that onus should not be confined to the circumstances which gave rise to such deportation or exclusion. Once the applicant has satisfied that onus then the Minister has a discretion whether to waive the good character requirement. In this matter the respondent found that the applicant was not reformed.

If I am correct in my assumption that the assessment of whether the applicant is reformed is not confined to the circumstances which gave rise to the deportation or exclusion then, in my opinion, the respondent did not take into account irrelevant considerations, if he took into account Immigration Adjudicator Thompson's adverse comments, Mitchell J's finding that Mr Irving had given untruthful evidence in his affidavit when seeking to purge his contempt of court and both the expulsion from Germany and the circumstances which gave rise to that expulsion order. Furthermore, there is no evidence that the respondent in fact took these matters into consideration. The applicant points to the facts that he complied with the German expulsion order and that he has complied with German and American immigration laws since the Canadian deportation and since the German expulsion order as being evidence of his reform. There is no evidence that the respondent failed to take those circumstances into account. Once again, it was up to the Minister to decide what weight, if any, to give to such compliance.

As to the submission that the finding that Mr Irving had not reformed was unreasonable in the Wednesbury sense, in my view the conviction and imprisonment for contempt of court and the subsequent false affidavit evidence to the same Court alone would be sufficient to preclude a finding that the respondent's decision on the question of reform was unreasonable to the requisite extent. Furthermore, in respect of the Canadian deportation, within a year of being deported from Canada, the applicant was expelled from Germany. Accordingly, I reject that submission.

The First Decision - Ground 7 (Error of Law)

The applicant claims that the respondent made an error of law within the meaning of s.5(1)(j) of the ADJR Act or, in the alternative, that there had been an improper exercise of power because the German expulsion order was not an expulsion from another country in prescribed circumstances. It was submitted that the applicant's conduct did not constitute a "threat to national security" within the meaning of Regulation 177(d).

It is important to have regard to the precise manner in which Regulation 177(d) prescribes the relevant circumstance. Regulation 177(d) reads as follows:

"(d) That the authorities of that country considered the person to be a threat to the national security of the country."

Mr Bates submitted that the expression "national security" in the phrase "the national security of the country" should be construed in the same way as what would be regarded as national security in Australia. He submitted that the terms of the German expulsion order itself showed that the Federal Republic of Germany was concerned more with public security and public order than national security. In essence, so it was put, the German authorities' complaint was that Mr Irving would express controversial views and would attend public gatherings which they alleged would require considerable police resources. As an example of why the regulation should be so construed, Mr Bates suggested that the Chinese authorities might regard criticism of their regime as a breach of their national security but that Australian authorities would be unlikely to regard such circumstances as falling within Regulation 177.

The problem with that submission is that it ignores the clear words of the regulation
which defines the relevant circumstance in terms of the authorities of the deporting country considering the person to be a threat to the national security of the country. Whether the person would be considered to be a threat to the national security of Australia is not to the point. The regulation expressly defers to the views of the authorities of the deporting country.

I have examined the terms of the German expulsion order which include the following:

"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.

... Despite the decisions of the Municipal Court in Munich of 05.05.1992 and the Munich State Court I of 13.01.1993 you persistently keep on publicising your ideas.

Your behaviour apart from the illegality of your statements infringes public security and order ...

Your appearances are being increasingly noticed, which is due to heightened sensitivity of the population concerning right-extremist ideas but mainly due to the resurgence of right-extremist and Neo-Nazist parties... That you don't regard yourself as an active member of right-extremist groups is insignificant. Determining is the fact that these groups use your ideas for their own purposes, become encouraged by your ideas and gain increased importance ...

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 great damage to the reputation of the German State:

Your statements and comments on the ideas as given under number I.1 [a reference to an earlier paragraph in the Expulsion Order] are able to endanger the peaceful co-existence between Germans and foreigners; they are being regarded as the truth by a small but radical part of the population and they are motivating in the long run to violence and racial hatred."

The Expulsion Order then refers to strengthened National Socialism and right-extremism, the escalation of violence and continues:

"Although the majority of the German population distances itself from such activities, most recent developments show that there is a base of right-extremists prepared for violence. This group of people is especially susceptible to revisionist ideas, feels supported in its political attitude while expressing its opinion with violence ... Your activities as speaker have harmed public security and order ... The interest of revisionist, right-extremist and Neo-Nazi groups at your participation is unabated.

It cannot reasonably be expected of the authorities to supervise your statements at numerous political appearances and to be able to criminally prosecute only after the event. Besides in view of your reputation in right-extremist circles your mere presence at political events is able to harm the interests of the public in the sense illustrated above.

. . .

An expulsion is therefore imperative as defence against the danger of recurrence ... Therefore your immediate departure is necessary as defence against the danger to public law and order as well as defence against lasting damage to the Federal Republic of Germany."

The New Shorter Oxford English Dictionary (at p.2754) defines "security" relevantly as being "The condition of being protected from or not exposed to danger; safety spec. the condition of being protected from espionage, attack or theft". The same dictionary defines "national" as "Of or pertaining to a nation or country, esp. as a whole; affecting or shared by the whole nation". I reject the distinction which the applicant seeks to make between "public security and public order" and "national security". At p.10 of the German expulsion order there appears the following:

"The term public security is understood as a state in which the community and individuals can enjoy undisturbed the rights granted by the Constitution and other rules. Protective legal norms are particularly the criminal law and the penal law, which have the purpose of protecting public security.

Public order comprises all norms concerning actions, omissions and conditions, its observance - beyond the limits of current positive public and civil law - in accordance with the prevailing understanding, which may change in sometimes short periods of time, is the imperative condition for a productive human and civic co-existence."

The relevant German authority, at the same page, came to the conclusion that Mr Irving's continued presence in the Federal Republic of Germany impaired public order and security or interfered with other important interests of that country contrary to s.45(1) of the Law Concerning Foreigners.

In my view, sufficient appears from the German expulsion order to indicate that the authorities of that country considered Mr Irving to be a threat to the national security of the country not just to local public security. It is also of some relevance that his expulsion was not from a particular area or State of Germany but from the whole of the Federal Republic of Germany. Accordingly, in my opinion, the circumstances of Mr Irving's expulsion from that country fell within Regulation 177(d).

The First Decision - Ground 8 (Further Error of Law)

The applicant advances similar claims of error of law and improper exercise of power in respect of the characterisation, for the purposes of the application of Regulation 4(1)(a)(ii)(D), of Mr Irving's deportation from Canada. It was submitted that as a matter of construction, the regulation refers to deportation that involves moral turpitude on the part of the deportee and that deportation which involves no such culpability is not caught by the regulations.

Mr Bates submitted that Regulation 4(1)(a)(ii)(D) which refers to a circumstance that the applicant "has been deported from another country" should be construed as referring only to deportation which involves moral turpitude on the part of the deportee. This was because, so it was said, of its inclusion in a regulation which deals with criminal activity
and breaches of national security. The sub-regulation was to be interpreted in the light of those surrounding provisions. Mr Bates submitted that there was no moral turpitude in the circumstances of Mr Irving's deportation.

It is possible that this issue is foreclosed by the earlier decision of the Full Court in respect of Mr Irving's first application. Ryan J. (at p.543) said:

"Mr Irving admittedly failed to satisfy the "good character" criterion directed by reg.4(1) of the Migration Regulations 1989 (Cth) ("the Regulations") because he had been deported from Canada and was therefore caught by reg.4(1)(a)(ii)(D)."

Drummond J. (at p.556) observed:

"It would have been open to the Minister to refuse Mr Irving's visa application in reliance on reg.4(1)(a)(ii)(D) and his deportation from Canada."

However, that conclusion was not essential to the court's finding. In my view the wording of the sub-regulation "has been deported from another country" is so clear that it is not to be read down in the manner contended for by the applicant i.e. by reference to the other sub-paragraphs of this regulation. In my opinion, it is not necessary for moral turpitude to be involved in any such deportation.

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 respondent 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 prescribed 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, inconsistent 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 of the first decision, that for a deportation to be relevant to good character it must be a deportation 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 submissions 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 Adviser to Mr De Bruin 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 submissions 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.

The Second Decision - Ground 2 (Improper Exercise of Power)

The basis of this ground was that the respondent's decision under s.180A(1) to refuse Mr Irving a visa on the grounds that he was not of good character by reason of:

(a) the adverse comments of Immigration Adjudicator Thompson:

(b) the adverse comments of Mitchell J;

(d) the expulsion order served on Mr Irving by the German authorities;

was an improper exercise of the power conferred by that section in that the respondent, by taking into account those four matters, took into account irrelevant considerations within the meaning of ss.5(1)(e) and 5(2)(a) of the ADJR Act or, in the alternative, failed to take into account relevant considerations within the meaning of s.5(2)(b) of the ADJR Act.

The complaints raised under this heading are essentially the same as those advanced
as Grounds 1, 2 and 3 in respect of the first decision. This ground is rejected for the reasons which I have set out earlier in these reasons in respect of those grounds. No particulars were given of the relevant considerations which it was alleged the respondent had failed to take into account.

Second Decision - Ground 3 (Exercise of a Discretionary Power in Accordance with a Policy Without Regard to the Merits of the Particular Case)

The applicant contended that the making of the decision that he should be refused a visa on the grounds that he was not of good character was an improper exercise of the power conferred by s.180A(1) when read with s.180A(2)(a)(ii) of the Act. The applicant relied on ss.5(1)(e) and 5(2)(g) of the ADJR Act. The applicant claimed that the discretionary power to exclude Mr Irving because he was deported from Canada in November 1992, and further on the grounds of the German expulsion order, was exercised in accordance with the policy enshrined in paragraph 8.5.6 of the 1993 PAM Update without regard to the merits of the particular case.

The answer to this complaint is that there is simply no evidence to support it. Such evidence as there is on this point (see paragraph 23 of Mr Joseph's minute dated 29 April 1994) indicates that it was made clear to the Minister that he should not consider himself bound by the guidelines in the 1993 PAM Update and that he should carefully consider the issue of Mr Irving's character on its merits.

Second Decision - Ground 4 (No Evidence)

Next the applicant contended that there was no evidence or other material within the meaning of ss.5(1)(h) and 5(3) of the ADJR Act to justify the respondent's decision to
refuse Mr Irving a visa on the grounds that he was not of good character having regard to his "general conduct" within the meaning of s.180A(2)(a)(ii) having regard to all or any of the following considerations:

(a) Immigration Adjudicator Thompson's adverse findings;

(b) Mitchell J's adverse findings;

(d) the exclusion from Germany.

Alternatively, the decision, so it was contended, was an improper exercise of the power within the meaning of s.5(1)(e) and 5(2)(g) of the ADJR Act in that the exercise of the power was said to be so unreasonable that no reasonable person could have so exercised it.

These complaints mirror the complaints made under Grounds 4 and 5 against the first decision and for the reasons which I have given above in respect of those complaints I reject them in respect of the second decision.

Both Decisions - Procedural Unfairness [s.5(1)(a) of the ADJR Act]

The applicant claimed that both of the respondent's decisions were based on matters contained in the German expulsion order which had not been put to Mr Irving for comment. The particular matter was the finding of the German authorities that Mr Irving's presence in the Federal Republic of Germany infringes public security, public order and the interests of that country.

Mr Bates referred to a letter dated 13 January 1994 from the respondent to Mr Irving inviting him to answer certain questions. It was said that seven of those questions invited comment upon Mr Irving's expulsion from Germany and related to matters contained in the German expulsion order. However, it was argued that by not inviting Mr Irving to comment upon the allegation in the German expulsion order that his conduct infringed German public security, public order or the interests of the Federal Republic of Germany and then making a decision based on that matter, there had been a breach of the rules of natural justice.

I pressed Mr Bates during argument to confirm whether or not his client relied on certain evidence from Mr Irving that he personally did not receive a copy of the German expulsion order. I was told that Mr Irving did rely on that factor, in addition to the fact that the respondent had not specifically put to him the assertion which was contained in that order and which I have set out above. The evidence [Exhibit B] from Mr Irving on this point included the following:

"In relation to the German Expulsion Order issued against me in November 1993 the first time I had the opportunity of reading this was when my solicitors in these proceedings in Australia sent me a copy of the annexures attached to the Greenup affidavit in August 1994. Although I was served with an order to leave Germany within 48 hours in November, 1993 (which I fully complied with), I refused to sign an acknowledgment of receipt of the order and so as a consequence it was sent instead to my German Lawyers and I never read it at the time."

Insofar as Mr Irving's complaints of being denied procedural fairness are based upon the fact (which for present purposes I will assume to be the case) that he did not read and was not in possession of the German expulsion order, I reject that complaint. He chose not to accept service of the document and he chose not to read it. In any event, his German lawyers had constructive possession of that document on his behalf.

There was no dispute that the applicant was entitled to be accorded procedural fairness in respect of both decisions. The content of the requirement to accord procedural fairness varies according to the circumstances: Kioa v. West (1985) 159 CLR 550 at pp.584-585. In the present matter Mr Irving was sent letters dated 13 January 1994, 4 February 1994 and 24 February 1994 inviting him to comment on a number of issues which might be taken into consideration when deciding his application for a visa. Mr Irving responded with an affidavit sworn on 8 February 1994, a letter dated 24 February 1994, an affidavit from his Canadian lawyer Mr Christie, an affidavit from Mr Fisher, a video of an interview with Dr Piper, curator of the Auschwitz Museum and a further letter of explanation dated 14 April 1994.

One of the issues which Mr Irving was invited to address by the letter dated 13 January 1994 was:

"(m) That the Munich Aliens' Office issued you with an expulsion order on 9 November 1993".

Attached to that letter were copies of the relevant provisions of the Act and Regulations relevant to the public interest criteria and the exercise of the Minister's discretion. Mr Irving responded to each of the matters referred to in that letter by his affidavit sworn on 8 February 1994. The portion of the affidavit which dealt with the German expulsion order was as follows:

"13. Voluntary Departure Notice - Munich, November 9, 1993 (Paragraph m).

13.1 On the 9th November, 1993 the Munich District Administration Council (Kreisverwaltungsreferat) aliens department issued the order referred to, a voluntary departure notice requiring me to leave within 24 hours.

13.2 I at once complied, pending the appeal which my German lawyer has already
initiated on a number of legal grounds. I reiterate I have never been notified of any formal prohibition against entering Germany."

In terms of procedural fairness, in my view Mr Irving was put squarely on notice that the Minister intended to have regard to the circumstances of the German departure order when deciding Mr Irving's application for a visa to enter Australia. He was invited to comment in respect of that order. The fact that Mr Irving chose not to obtain a copy of that order and to deal with the matters set out in it, is entirely his responsibility. He declined to read the document when it was served upon him, declined to accept service of it and, apparently, declined to obtain a copy of it from his lawyers in Germany. The respondent cannot be blamed for any consequential omissions in Mr Irving's response. Furthermore, there was unchallenged evidence that the respondent did not have a copy of the German deportation order in January 1994 and in fact did not receive a copy until mid April 1994. In my view, the respondent did not deny Mr Irving procedural fairness.

Conclusions

For the above reasons the application for orders of review in respect of each decision will be dismissed with costs.

I certify that this and the preceding forty-six (46) pages are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Date: 31 August 1995

Counsel for the Applicant: Mr P.S. Bates

Solicitors for the Applicant: E.J. Wall & Associates

Counsel for the Respondent: Mr S. Owen-Conway Q.C. with

Mr P.R. Macliver

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 24 and 25 July 1995

Date of Judgment: 31 August 1995

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