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Subject: David Irving: "Not of good character" (2/3)
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Last-Modified: 1996/09/19
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 CAWDEIL 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; 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Regulations repealed and replaced the 1989 Regulations on 1 February 1993.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 cirsumstances 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 cirsumstances 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 sesurity 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 [sic] 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 cirsumstance referred
to in subparagraph 4(a)(i) - the
cirsumstance 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).
(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 (l)(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 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
sesurity 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 applisation. 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 fast, 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 applisation, 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 desision-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 fast 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: [signature] Alisen Murphy
Date: 30 July 1996
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