Irving, David John Cawdell v Minister of State for Immigration, Local Government & Ethnic Affairs [1996] FCA 663

C A T C H W O R D S

MIGRATION - application for Business Visitor (Short Stay) Visa under Migration Act 1958 (Cth) - Migration Regulations - whether applicant of "good character" - Ministerial discretion to waive requirement - whether shown by subsequent conduct that applicant had "reformed" - English historian convicted of "defaming the memory of the dead" in Germany - expulsion order - deported from another foreign jurisdiction for breach of migration regulations - contempt of court in England - freedom of speech in Australia.

JUDICIAL REVIEW - Administrative Decisions (Judicial Review) Act 1977 (Cth) - function of the Court in reviewing administrative decisions - whether error of law.

WORDS & PHRASES - meaning of "good character" - primarily an issue of fact - term not precise in denotation - whether refers to mental and moral qualities of an individual - whether means "reputation or repute" - interests of public - meaning of "national security" - whether includes internal security and matters affecting the country in general.

Migration Act 1958 (Cth)

Australian Capital Territory Television Pty Ltd v The Commonwealth (1992) 177 CLR 106

Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455

In Re Davis (1947) 75 CLR 409

Plato Films Ltd v Speidel [1961] AC 1090

R v Secretary of State for the Home Department ex parte Moon (1 November 1995, QB Div, Sedley J; J Civ Lib, Vol 1 (1996), 96-97)

Secretary, Department of Social Security v Leahy (1989) 93 ALR 373

Singh v Minister for Immigration and Ethnic Affairs (unreported, Branson J, 29 April 1996)

DAVID JOHN CAWDELL IRVING v MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT & ETHNIC AFFAIRS

No. WAG 107 of 1995

Davies, Lee & R.D. Nicholson JJ

30 July 1996

Perth

IN THE FEDERAL COURT OF AUSTRALIA )

)

WESTERN AUSTRALIA DISTRICT REGISTRY ) No WAG 107 of 1995

)

GENERAL DIVISION )

On appeal from a single judge of the Federal Court of Australia

BETWEEN: DAVID JOHN CAWDELL IRVING

Appellant

AND: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

Coram: Davies, Lee & R.D. Nicholson JJ

Date: 30 July 1996

Place: Perth

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.

IN THE FEDERAL COURT OF AUSTRALIA )

)

WESTERN AUSTRALIA DISTRICT REGISTRY ) No WAG 107 of 1995

)

GENERAL DIVISION )

On appeal from a single judge of the Federal Court of Australia

BETWEEN: DAVID JOHN CAWDELL IRVING

Appellant

AND: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

Coram:Davies, Lee & R.D. Nicholson JJ

Date: 30 July 1996

Place: Perth

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, Mr 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 excluded 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:-

"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;

..."

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

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 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 [sic] 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 Irving 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 country; 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.

Associate:

Date: 30 July 1996

IN THE FEDERAL COURT)

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY )

GENERAL DIVISION ) NO. WAG 107 OF 1995

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

Appellant

and

MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: DAVIES, LEE, R.D. NICHOLSON JJ

DATE : 30 JULY 1996

PLACE: PERTH

REASONS FOR JUDGMENT

LEE J:

On 7 December 1992, and on 3 June 1993, the appellant applied for a Business Visitor (Short Stay) Visa pursuant to regulations made under the Migration Act 1958 (Cth) ("the Act"). The appellant is a well-known author and historian and the purpose of his proposed visit to Australia was to promote the sale of his books. The views of the appellant expressed in his publications and in lectures have challenged accepted facts on the genocide of the Jewish race under the third Reich. As a result the appellant is not a popular figure and attracts controversy.

The appellant had been granted permission to enter Australia for business purposes on two previous occasions, in 1986 and 1987, and visits had been made by the appellant in
compliance with the terms of those permits.

Notwithstanding his lack of popularity, in the ordinary course of events the issue of the prior permits would have given the appellant cause to expect that a visa of the type applied for would be granted to him. (See: R v Secretary of State for the Home Department ex parte Moon, 1 November 1995, QB Div, Sedley J; J Civ Lib, Vol 1 (1996), 96-97.) However, subsequent to the last visit to Australia the appellant's circumstances changed in that in May 1992 he was convicted of an offence in Germany and in November 1992 he was deported from Canada. In November 1993 the appellant was served in Germany with an order excluding him from that country.

On 3 May 1994 the Minister refused to grant a visa to the appellant on either application.

The relevant provisions pursuant to which the Minister's decisions were made were the Migration (1989) Regulations ("the 1989 Regulations") and the Migration (1993) Regulations ("the 1993 Regulations"). The 1993 Regulations repealed and replaced the 1989 Regulations on 1 February 1993. (See: S.R. 367/1992 - "Migration (1993) Regulations - Part 8 - Repeal and Saving Provisions".) The 1993 Regulations were repealed by the Migration (1994) Regulations on 1 September 1994. (See: S.R. 261/1994 - "Migration Reform (Transitional Provisions) Regulations".)

It was not submitted that the repeal of the regulations in 1993 and 1994, or that amendments to the relevant sections of the Act that were made subsequent to the applications, had any impact upon the respective applications or upon the decisions able to be made thereon.

A Business Visitor (Short Stay) Visa, as the name implies, is a visa constructed to accommodate the interests of a person intending to visit Australia for a limited period for the purpose of business. The meaning of the criteria prescribed as qualifying circumstances for the grant of such a visa must be determined according to the context in which the words are used.

Pursuant to sub-s 23(2) of the Act, as it stood at the time both applications were made, regulations made under the Act may provide that a person is entitled to be granted a visa of a particular class if the person "satisfies" all the prescribed criteria in relation to that class. Sub-section 24(7) of the Act provided that where it "appears" to the Minister that the applicant is not, under the regulations, entitled to be granted the visa applied for, the Minister shall refuse to grant the applicant the visa.

Under the 1989 Regulations one of the prescribed criteria for entitlement to the grant of a visa of the class applied for by the appellant was that the applicant "meets relevant public interest criteria". The words "relevant public interest criteria" were defined in reg 2. The only public interest criterion of relevance to this case was that the applicant be "of good character".

Regulation 4 of the 1989 Regulations provided that 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, directly or indirectly, 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 subparagraph 20(1)(d)(vi) of the Act; or

(iii) 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; and

(b) in the case of an applicant for an entry visa having effect as a permanent entry permit, or for a permanent entry permit - the applicant has at any time been convicted of an offence (other than an offence referred to in paragraph (a)) in circumstances indicating, in the reasonable belief of the Minister, habitual contempt, or disregard, for the law or for human rights."

The prescribed circumstances referred to in item (ii)(E) of reg 4 are those set out in reg 177 of the 1989 Regulations of which reg 177(d) is relevant in the present case, namely:

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

Regulation 143 purported to provide the Minister with power to grant a visa to a person who failed to satisfy the prescribed criteria. It read as follows:

"143 Notwithstanding any other provision of these Regulations, the Minister may grant a visa or an entry permit to an applicant who fails to satisfy public interest criteria only because the applicant is to be taken not to be of good character, if:

(a) the Minister is satisfied that:

(i) in the case of the circumstance referred to in subparagraph 4(a)(i) - 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; and

(b) the Minister is satisfied that undue harm would be unlikely to result to the Australian community if the visa or entry permit was granted; and

..."

Regulation 143 should not be read as the creation of a power in the Minister to grant a visa to a person who does not satisfy the prescribed criteria - such a regulation likely to be beyond power having regard to the mandatory terms of sub-s 24(7) of the Act - but as a power in the Minister to waive or vary the prescribed criteria or, as appears to be a more appropriate construction, as confirmation that if at the time of consideration of the application by the Minister the applicant satisfies the prescribed criteria the Minister may grant the visa. That is to say, if, at that time, an applicant is not assessed as a risk to Australian national security and is of good character by reason of reformation, the prescribed criteria are satisfied and the Minister may grant the visa.

Section 180A was inserted in the Act on 24 December 1992 and it read 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) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

(i) be likely to engage in criminal conduct in Australia; or

(ii) vilify a segment of the Australian community; or

(iii) incite discord in the Australian community or in a segment of that community; or

(iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.

(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

(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

(3) The power under this section to refuse to grant a visa or an entry permit to a person, or to cancel a valid visa or a valid entry permit that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa or an entry permit to a person, or to cancel a valid visa or a valid entry permit that has been granted to a person."

The effect of s 180A was that notwithstanding an applicant may be entitled to the grant of a visa pursuant to the terms of sub-s 23(2) of the Act, the Minister was able to refuse to grant such a visa if the Minister was satisfied of certain matters under sub-ss 180A(1) or (2). That is, notwithstanding that an applicant was not deemed to be not of good character by the terms of reg 4, the Minister may be "satisfied" that the applicant was not of good character pursuant to sub-s 180A(2).

Under regs 2.1 and 2.2 and Schedule 2 (cl 672.333) of the 1993 Regulations one of the prescribed criteria in relation to the class of visa applied for by the appellant was that the applicant "satisfies public interest criteri[on] 4001" which appeared as cl 4001 of Schedule 4 to the regulations as follows:

"4001 (1) The applicant meets the requirements of subclause (2), (3) or (4).

(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.

The effect of reg 4001, in particular sub-reg 4001(4), is to include in the prescribed criteria the discretion of the Minister to accept that an applicant meets the requirements of reg 4001 notwithstanding that after making appropriate enquiries the Minister is satisfied that sub-ss 1 or 2 of s 180A applies to the applicant.

Expressed in that way the regulation is not contrary to the terms of sub-s 24(7) of the Act but it does impose an obligation on the Minister to decide whether to exercise his discretion to allow an applicant to meet the requirements of reg 4001 before the visa applied for may be granted or refused.

Unless the terms of the Act and regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Ld Radcliffe at 1128-1129, Ld Denning at 1138.) A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, (see: In Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

In respect of the first application for a visa, the Minister had to determine whether it "appeared" to him that the appellant was entitled to be granted the visa applied for. That is, did it "appear" to the Minister that the appellant had "satisfied" the prescribed criterion that the appellant was required to "meet", namely, that he is of good character? In determining what had "appeared" to him the Minister had to have regard to the adverse presumption applied by reg 4 of the 1989 Regulations and to any evidence that was capable of rebutting that presumption. (See: Secretary, Department of Social Security v Leahy (1989) 93 ALR 373 at 379.) In respect of the second application the Minister had to determine whether it "appeared" to him that the appellant "satisfied" the criterion prescribed in cl 4001 that the appellant "meet" the requirements of either sub-cll 4001(2), (3) or (4). The appellant would not "meet" such a requirement if, under sub-s 180A(2) of the Act, the Minister, having regard to the appellant's past criminal conduct or his general conduct, was "satisfied" that the appellant "is not of good character", unless the Minister decided to exercise his discretion to accept that the applicant met the requirements of sub-cl 4001(4).

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.

Although the words "good character" would bear their ordinary meaning, the terms of the 1989 regulations indicated that that meaning had been modified. Under the 1989 Regulations, absence of good character is presumed from the fact of deportation; exclusion from another country as a threat to the national security of that country; or conviction of an offence of a particular character. Under the 1993 Regulations the question whether a person is not of good character is determined not as a fact but upon it "appearing" to the Minister that he or she is "satisfied" that such is the case having had regard to the past criminal conduct or the general conduct of that person and having declined to exercise a discretion to accept that the applicant "meets" the prescribed public interest criteria.

In the 1989 Regulations the connection between the requirement that a person be of good character and the protection of the interests of the public was clearly expressed. In the 1993 Regulations such a connection is implied. Counsel for the appellant submitted that the meaning of "good character" as used in the 1989 Regulations, and in the 1993 Regulations, was a meaning that was consistent with the maintenance of public security and safety and that if the presence of the appellant in Australia would involve no such threat it should be concluded that the appellant had satisfied the required test.

The appellant's contention is not without substance but the range and purpose of requests for entry to Australia may require different emphases to be placed on matters that are relevant to each application. For example, the requirement that an applicant for a visa to enter Australia for business purposes be of good character may require consideration of wider matters than would apply to an applicant for a visa to enter Australia for entertainment or tourist purposes.

Undoubtedly, the absence of harm to the Australian community from the issue of a visa of the type for which the appellant had applied was relevant to the meaning of good character as one of the qualifications for the grant of that visa. The task for the Minister was to have regard to the ordinary meaning of those words as modified by the Regulations and to the scope and purpose of the visa sought to be granted and to apply common sense in determining whether the appellant "satisfied" the prescribed criterion that he be of good character.

It was a fact that the appellant had been deported from Canada in 1992. It followed that in respect of the first application the appellant was to be taken to be a person not of good character and was not entitled to the grant of a visa unless able to prove, to the satisfaction of the Minister, that, in fact, he was of good character. The appellant did
not present his case on the basis that the presumption of reg 4 had been rebutted and that good character had been proved.

Therefore, the real issue of the appeal in respect of the first application is whether the Minister erred in failing to be satisfied under reg 143 of the 1989 Regulations that the appellant, taken to be not of good character by reason of his deportation from Canada, had shown by his subsequent conduct that he had reformed and, therefore, was of good character.

In a departmental submission put before the Minister to inform the Minister of the matters to be considered in making his decision on the application, it was suggested that it could "appear" to the Minister that the appellant did not satisfy the prescribed criterion as to good character without the Minister being required to consider any subsequent conduct relied upon by the appellant to show that the appellant had reformed and was of good character.

As set out in the analysis of the legislative provisions recited above advice to that effect would not state correctly the requirements of the Act and regulations. However, by striking out the word "reformed" it appears that the Minister considered that material separately and was not satisfied that the appellant had shown by that conduct that he was reformed and of good character.

Although his Honour was not persuaded that the Minister was obliged to consider subsequent conduct of the appellant relied upon by the appellant as evidence of reformation, he dealt in full with the argument of the appellant that the Minister had erred in failing to find that he was satisfied that the appellant had reformed.

His Honour found, and with respect I agree, that reformation, and, therefore, good character, is not established by consideration of any such subsequent conduct relevant to the ground on which the appellant was deemed to be not of good character pursuant to reg 4. The 1989 Regulations in reg 143 made it clear that the Minister had to consider all subsequent conduct of an applicant before deciding whether it appears to the Minister that the applicant is a person not of good character. There were matters in the appellant's subsequent conduct that stood in his favour but they were not of such weight that it could be said that it had been shown by the appellant that any decision other than that he was a person of good character would be wholly unreasonable.

With regard to the second application, as has been recited, the Minister's decision-making power was described in a different form under the Act and the 1993 Regulations. The prescribed criteria in reg 4001 depended for their operation upon the terms of s 180A. The operation of s 180A was in two
parts, namely, whether the Minister was satisfied that the appellant was a person to whom sub-s 180A(2) applied; and, if so, whether in the exercise of a discretion the appellant was to be accepted as a person who met the terms of the prescribed criteria.

The past criminal conduct of the appellant was reflected in the conviction in Germany in 1992 of the offence of "slander concomitant with disparagement of the dead" arising out of statements by the appellant which reflected his controversial views on the occurrence of events in countries under German control prior to and during the Second World War. In the absence of any material to the contrary it should be assumed that, as recommended in the submission put before him, the Minister did not form his satisfaction that the appellant was not of good character on that ground and that the foundation for the Minister's satisfaction arose out of the consideration of the appellant's general conduct.

The appellant submitted that a number of matters to which the Minister may have turned his mind would have been irrelevant to the decision the Minister was required to make, namely, whether it appeared to the Minister that the appellant satisfied the prescribed criteria.

The appellant submitted that the Minister erred by having regard to the service upon the appellant of an
expulsion order in Germany in November 1993, the deportation of the appellant from Canada in November 1992 and adverse findings of fact made against the appellant in an administrative review of that deportation order. It was not contended that the Minister was not able to have regard to events that had occurred after the date on which the application for the visa was made. The appellant relied upon conduct subsequent to the applications as evidence of his good character.

Although the recited aspects of the appellant's general conduct may have given little assistance to a determination of whether the appellant was not a person of good character, it is not possible to say they were irrelevant considerations in such a determination. Similarly, the conduct of the appellant which resulted in the appellant being found in contempt of Court in the United Kingdom in February 1994 by failing to file an affidavit within the time directed in an order deemed to have been served upon him by post, and the conviction in 1992 of the offence against the Criminal Code of the Federal Republic of Germany were aspects of the appellant's conduct the Minister was entitled to consider. Singly, each matter would have provided little insight into the inherent qualities of the character of the appellant but in combination perhaps a view may have been formed that the appellant was not a person of good character in the sense in which that qualification was expressed in the 1993
Regulations.

With regard to the Minister's failure to exercise the discretion conferred by sub-r 4001(4) to regard the appellant as a person who meets the prescribed criteria, the exercise of that discretion was unfettered by the terms of the sub-clause.

A decision to refuse to exercise such a discretion would not be amenable to review unless it could be shown that the refusal was based on irrelevant considerations or on a failure to have regard to relevant considerations or was so unreasonable that no reasonable decision-maker could have so decided. In respect of the last mentioned ground, it would have to be shown that the decision offended reason and common sense, not merely that it was a decision that carried a harsh result. No case of that nature was established by the appellant. In respect of the first mentioned grounds, perhaps it may be said that an error in the decision-making process may be shown if the decision was formed by consideration of the extent to which the appellant's opinions as an historian or author were unpopular or controversial. It was not submitted that the Minister's decision was controlled by the opinion he had formed on that issue. In respect of the second ground an error may be disclosed if the Minister failed to consider the implied right of the Australian people as a democratic society under the terms of the Constitution to have
freedom of communication in matters of public affairs and political discussion, (see: Australian Capital Territory Television Pty Ltd v The Commonwealth (1992) 177 CLR 106), including freedom to communicate in such matters with external sources or with visiting non-nationals. Again, no case was sought to be made out by the appellant in that respect.

The appeal must be dismissed.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:

Date:

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 107 OF 1995

ON APPEAL from a judgment of a single judge of the Federal Court of Australia

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

Appellant

and

MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: DAVIES, LEE and R D NICHOLSON JJ

DATE: 30 July 1996

PLACE: PERTH

REASONS FOR JUDGMENT

R D NICHOLSON J:

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 legal 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:

Date: 30 July 1996

APPEARANCES

Counsel for the Appellant: Mr P.S. Bates

Solicitors for the Appellant: Messrs E J Wall & Associates

Counsel for the Respondent: Mr S. Owen-Conway and mr P Macliver

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 21 March 1996

Date of Judgment: 30 July 1996

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