Irving, D.J.C. v Minister of State for Immigration Local Government and Ethnic Affairs
[1993] FCA 309
•13 MAY 1993
Re: DAVID JOHN CAWDELL IRVING
And: MINISTER OF STATE FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WAG33 of 1993
FED No. 309
Number of pages - 18
Administrative Law
(1993) 115 ALR 125
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J(1)
CATCHWORDS
Administrative Law - immigration - application for business (short stay) visa - application by historian - unconventional views on the persecution of Jews in World War II - strong opposition to visit - refusal of visa - public interest criterion - activities disruptive to the Australian community or a group within the Australian community - construction - limitation by reference to freedom of opinion and speech - whether rules of natural justice observed - whether decision rationally open on materials before Minister - relevant considerations - irrelevant considerations - improper purpose - application dismissed.
Immigration Act
Racial Discrimination Legislation Amendment Bill 1992
Migration (1993) Regulations
Migration Regulations 1989
Migration Act 1958 s.4, s.16A, s.16B, s.17(2), s.18(2)
Human Rights and Equal Opportunity Act 1986
Administrative Decisions (Judicial Review) Act 1977 s.5(1)(h)
Minister for Immigration Local Government and Ethnic Affairs v. Hells Angels Motor Cycle Club Incorporated (F.C. unrep. 16/12/91)
Polites v. The Commonwealth (1945) 70 CLR 60
Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24
HEARING
PERTH, 30 April 1993
#DATE 13:5:1993
Counsel for the Applicant: Mr P.S. Bates
Solicitors for the Applicant: E.J. Wall and Associates
Counsel for the Respondent: Mr C. Pullin QC
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The Court orders that:
1. The application is dismissed.
2. The applicant to 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.
JUDGE1
FRENCH J David John Cawdell Irving is a British historian. On 7 December 1992 he applied through the Australian High Commission in London for a Business Visitor (Short Stay) Visa. Such a visa, also known as a Class 672 Visa, will authorise a visit to Australia for a period of up to three months for business purposes. The proposed duration of Mr Irving's visit was 20 January 1993 to 17 March 1993. His principal reason for visiting Australia was described in the application as "Media Interviews to promote my latest books". The books in question are a biography of the Nazi leader, Herman Goring, and a revised edition of a book entitled "Hitler's War".
Mr Irving's proposed visit to Australia is being promoted by a company called Veritas Publishing Company Pty Ltd ("Veritas") of Cranbrook in Western Australia. Mr Irving describes Veritas as his Australian publishers. According to an affidavit he swore on 26 February 1993, Veritas began preparing an itinerary for his visit not long after he had lodged his application. In the course of that preparation, he said, Veritas contacted the media, booksellers and universities as a result of which the intended visit became known. It is evident, however, from the materials which were before the Minister in this case that the proposed visit had become public well before he applied for his visa. Press reports about it began appearing in July 1992. It became a matter of some controversy related to Mr Irving's expressed views about the war time history of the German persecution and extermination of people of Jewish origin known as the Holocaust. On 29 September 1992, Mr Irving wrote to "Australian Jewish News" referring to an article about his visit which had appeared in that publication on 25 September. His letter was among the materials which were before the Minister when the visa application was considered. In it he sought to respond to a description of him as "a man who states that the Holocaust was a hoax". He wrote:
"My views are simple: after thirty years working in archives of German documents, including those in Moscow, I have found not one wartime document referring to "gas chambers". Furthermore, there is no reference to any gassings in the daily top secret reports from the commandant of Auschwitz, Rudolf Hoss, to his superiors in Berlin, which we British decoded at Bletchley Park during 1942 and 1943. Furthermore, there is no significant trace of cyanide residues (ferric ferrocyanide) in the fabric of the buildings identified by popular Holocaust mythology as "gas chambers" at the Auschwitz site; both forensic tests published by "revisionists" and clandestine tests conducted by the present Auschwitz authorities in 1989, have established this fact beyond doubt. Those same authorities now admit that the gas chambers they display to tourists are postwar fakes, like the "execution wall". The eye-witness evidence does not, in the circumstances, reflect well on the eye-witnesses. That having been said, let me make it plain that I have also found in the archives abundant evidence that mass shootings took place in Russia and the Baltic states, with perhaps as many as 100,000 Jews and others perishing in this way from 1941 to 1943. Clearly there is the substance for a compelling public debate -- though this is not the topic of my forthcoming visit. If the organised Jewish community tries to suppress such a debate, whether by violence, or window-smashing, or blackmail (methods they have employed in Britain and North America), they will only increase anti-Semitism, which I utterly deplore."
He denied an allegation in the Australian Jewish News article that he had been banned from Germany, Austria, Italy and South Africa.
Also before the Minister was a copy of a front page article headlined "The Odious Irving", which appeared in the Australia/Israel Review of 3-16 November 1992. The writer of the article alleged that the Australian League of Rights had informed its supporters that "Nazi apologist David Irving" planned to conduct a lecture tour in Australia early in 1993. Irving was said to be an apologist for Goring and a denigrator of Churchill and to have claimed that Hitler knew nothing of the "Final Solution of the Jewish question". He was described in the article as the "key academic agitator supporting neo-Nazis in Europe, the Americas, South Africa and Australia". His views on women, immigration policies and Hitler were said to have earned him the contempt of thinking people everywhere. The article went on:
"His adulation by brawling street thugs in Germany has led David Irving to boast that he is the right person to lead a revival of Nazi sentiment in Europe."
It was again alleged that he was banned from entering Germany and Austria and that he had been denied entry into Italy, South Africa and Canada. There was said to be good reason to believe he would break laws in Australia should he be permitted to visit. The writer went on:
"The Australian Government has a duty to protect the social fabric of Australia and our communal harmony. In the past, immigration restrictions have been placed on sportsmen from South Africa as a show of Australian opposition to apartheid and to individuals from other countries who have records and reputations which suggest that their purpose in visiting Australia would have been to provoke others to break Australian law or to themselves present a threat to social harmony. Australia should follow the example of Canada and tell Mr Irving, unambiguously, that his rabble-rousing may be appropriate in the beer cellars of Munich but that this country has no desire to accommodate another whistle-stop on his international tour of turpitude."
On 3 December 1992, Mr Irving sent a press release to Mr Murray Pope, the manager of Veritas, for distribution to the Australian press. This too was among the papers before the Minister. The text of the release was as follows:
"PRESS RELEASE IMMEDIATE RELEASE DAVID IRVING TOUR: A STATEMENT
Responding to news reports (December 2) that pressure is to be applied to Prime Minister Keating to refuse a visa to British historian David Irving, scheduled to lecture again in Australia next year, Veritas Publishing Company Pty Ltd., Western Australia distributors of his books, issued this statement from Mr. Irving who is currently working on his next manuscript in South Florida, USA: "I am furious at childish allegations that I am likely to break anti-racist laws. These pressure-groups are well aware that during none of my previous lecture tours did I break any of Australia's laws. My books are published by the world's most respected firms, including Macmillan, Hutchinson, and Penguin; I am a frequent radio and TV broadcaster worldwide, seen Down Under most recently in discussion with Jana Wendt in July; my works are probably in every university and public library. As recently as July The Australian serialized the sensational extracts from the long-lost Joseph Goebbels diaries which I personally retrieved from the Moscow secret state archives where they have been hidden for nearly fifty years. I appreciate that I have aroused much envy and that many colleagues challenge my revisionist views on history; but the proper procedure in a free society is to encourage open debate, and not to seek spiteful, backdoor methods to stifle it. I approached a number of Jewish historians in Australia's leading universities, proposing a forum discussion during my five week tour. Instead of replying, some of these professors have tried to have my visit banned. What are they afraid of? You cannot handcuff history." Veritas Publishing confirm that Mr Irving is coming to Australia to introduce his two most recent works, the famous biography of Hermann Goring (Macmillan Ltd and HarperCollins) which earned him accolades from newspapers around the world; and the revised and lavishly illustrated Focal Point edition of HITLER'S WAR, the flagship of Mr Irving's thirty-year writing career. Mr Irving dismisses allegations that he said that "the Holocaust never occurred" as a lie; equally untrue are stories that he was convicted in Germany for inciting racial hatred, or was banned from entering Austria and Italy. "Smear tactics and childish name-calling are not good enough", says Irving. "If these bullying pressure groups want to ban free historical discussion in Australia, that is because they are cowards - - they fear free debate. They shall risk forfeiting their case by default."
The visa application required answers to a number of questions. The applicant was asked whether he had been convicted or had any charges outstanding on a criminal offence in any country and if he had been deported or excluded from any country. Mr Irving answered "Yes" to each of these questions and referred to a covering letter dated 7 December 1992 explaining the circumstances of a conviction in Germany and his deportation from Canada. Both events, he said, had arisen from a campaign conducted against him by "Leftwing agitators" who put pressure on the German and Canadian governments as a mark of disapproval of his books. He had been convicted in Germany in 1991 for "defamation". The conviction, he said, was under appeal. In Canada the government had put pressure on him to leave as a result of "pressure from political groups". At a hearing in Vancouver on October 30, 1992 he had reached an agreement with the Canadian Department of Immigration under which he "conceded a technical offence under section 27(2)(g) of the Immigration Act". The offence thus "conceded" involved entry into Canada by reason of misrepresentation of a material fact. According to Mr Irving the misrepresentation alleged was in his answer to a question put to him at the point of entry at Niagara Falls. He had been asked, he said, how long he would be in Ontario and replied "two weeks". He should have volunteered that he also planned to visit British Columbia and other provinces in that time. The Canadian government agreed to let him voluntarily depart Canada by midnight on 1 November. He presented himself at the United States border an hour before that time. He was sent back across the border bridge by a United States Immigration Official and then became liable to deportation. The deportation order was under appeal. At the time of writing his letter to the Minister, Mr Irving was in the United States. He expressed the suspicion that he was the victim of "a little plot by local officials at either end of the bridge". His explanation concluded:
"I felt it right to set out the two cases above in detail, because planning for my Australian tour is already far advanced and many television, radio, and newspaper personalities are awaiting my arrival with keen interest. I shall be promoting my books GORING (published by Macmillan Ltd and Harper Collins), and HITLER'S WAR (published by Hodder and Stoughton Ltd., by Macmillan Ltd., and now by Focal Point Publishing.)"
Shortly after the application was lodged, a letter appeared in the Melbourne Age of 12 December written by Mr Isi Leibler. Mr Irving replied by a letter to the Age on 14 December and a copy of his reply was before the Minister. In it he challenged Mr Leibler to justify the "odious claim "that he" (incited) the gullible to racist violence". He wrote:
"As the noted British writer Auberon Waugh asked recently, writing in the London Daily Telegraph: are the truths on which the Holocaust relies so flimsy that they need smears to protect them, coupled with censorship, draconic fines, and even prison sentences like those now imposed in Germany, Austria, and France on any historian who ventures to challenge any aspect whatever of the Holocaust?"
On 28 December, Mr Irving wrote to Mr Ian Harrop, the Senior Migration Officer at the Migration Branch of the Australian High Commission in London. He referred to a letter of 16 December from Mr Harrop in connection with his application and indicated that he intended to be in London from 12 January before commencing a round world tour intended to include Australia. He told Mr Harrop that his Australian itinerary would include lectures, television and radio interviews and bookstore signings at locations including Perth, Albany, Adelaide, Melbourne, Gippsland, Horsham, Shepparton, Hobart, Sydney, Newcastle, Canberra, Brisbane, Toowoomba, Nambour, Rockhampton and Cairns. The letter continued:
"I have seen recently a number of hostile press items, evidently centrally emanated by the same kind of people who agitated for my exclusion from Canada, with unfortunate consequences for both myself and Canada's international image. Items I have seen include the Australian Jewish News of November 27 ("Racists, war criminals will be banned"); Melbourne Herald-Sun, December 2 ("Jewish plea to PM"); Melbourne Jewish News, December 4 ("Hawke wants Irving ban"), and Sydney Morning Herald, December 8, 1992 ("Far right v violence is no titillating romp"). The references to myself are frequently untrue and would be actionable in Britain. Anxious to defuse the situation, I have written the attached Reader's Letters and press statement, which I feel should also be before your central office before they reach their decision."
The attachments to this letter were Mr Irving's letter to the Reader's Letter, "Australian Jewish News" of September 29, 1992, the press release which has already been quoted and the letter to the Age of December 14, 1992. The letter to Mr Harrop of 28 December 1992 with those attachments was among material submitted to the Minister in this case.
On 6 January 1993, Mr Irving wrote direct to the Minister of Immigration Local Government and Ethnic Affairs expressing his dismay at what he called "the worldwide campaign of hatred" being mounted against him by academic and other opponents, to try to prevent his lecture tour of Australia. He said he had no intention of breaking any laws during his visit to Australia. He referred to two previous visits to this country in March 1986 and September/October 1987 pointing out that he had broken no laws on either of those occasions. His opponents, he said, were "resorting to outright lies". He attached a letter that he had faxed to a newspaper for publication on the same day "in a vain attempt to restore some kind of balance to the debate". A further letter was sent to the Minister by Mr Irving on 17 January referring to remarks made about him in the Senate on 17 December and other attacks upon him in the Australian press. He claimed to have received many letters and faxes from academics and readers in Australia expressing their regrets about the attacks upon his reputation. He attached two copies of letters from the British Broadcasting Corporation dated 5 January and 7 January respectively seeking his assistance with forthcoming documentary films about World War II and the bombing of Dresden. In 1963 Mr Irving had written a book called "The Destruction of Dresden". In his letter of 17 January to the Minister he disclaimed an alleged connection with an American called Lyndon LaRouche which had been referred to in the Sunday Telegraph newspaper. He went on to say that the outcome of his appeal against the conviction in Germany for the offence of defaming the memory of the dead was that the Court had increased the fine imposed on him from DM10,000 to DM30,000 because he refused to change his opinion. A further appeal had been lodged and under German law he claimed the "fine and sentence therefore have no force in law -- until that appeal too has been exhausted." On this basis he contended that he had no criminal record anywhere in the world.
Among other materials provided to the Minister by his departmental officers was a report apparently from the Department of Foreign Affairs and Trade in Bonn relating to the conviction in Germany. The report referred to an article which had appeared in a German language newspaper or magazine on 15 January 1993. Its accuracy was said to have been confirmed by an official of the Federal Justice Ministry in Germany. The article set out that Mr Irving had been fined DM10,000 and that the fine had been increased to DM30,000 by the Munich State Court. The fine was imposed because of Mr Irving's statement on 21 April 1990 that there were never any gas chambers at the Auschwitz concentration camp. The Munich Court held that in spreading what it called the "Auschwitz lie" Mr Irving had been guilty of insulting and slandering the memory of the dead. The article alleged that during a break in proceedings, Mr Irving had repeated the "Auschwitz lie" in an interview in which he claimed that the Auschwitz gas chambers were a fabrication. The defence had announced its intention to appeal the decision in the Bavarian State Supreme Court. The report from the Department of Foreign Affairs and Trade added the comment that Bavarian Justice Ministry Officials had not been forthcoming on details of the case. Some advice about the system of fines under the revised German Criminal law of 1975 was included.
The Office of the Department of Immigration, Local Government and Ethnic Affairs in Vancouver provided a case summary of Mr Irving's deportation from Canada which had occurred on 13 November 1992. The somewhat cryptic summary which was among the papers submitted to the Minister, stated that on 10 October 1992 a letter was sent to Mr Irving from the Canadian Department of Employment and Immigration stating that it was believed that "he may be inadmissibility to Canada (based on a German conviction of "Defaming the memory of the Dead") and that should he appear in Canada he would be brought to an immigration inquiry" (sic). It was not clear from the summary that Mr Irving was then in Canada although it would seem that he was not. On 28 October he was arrested while giving a speech in a restaurant in the city of Victoria. At an immigration inquiry on 30 October he was said to have conceded that he had "misrepresented himself at the Port of Entry (Niagara Falls)". He was issued a departure notice requiring him to leave within 48 hours (before 2 November). The question whether he could or should have been refused entry on grounds of the criminal offence in Germany was not determined. On 2 November Mr Irving was arrested for not having left Canada. At a subsequent inquiry he was found not to have left Canada as required and was issued with a deportation order and deported on 13 November.
On 29 January 1993, Mr Peter Hardie of the Settlement and Ethnic Affairs Branch of the Department of Immigration Local Government and Ethnic Affairs wrote a minute to Virginia Sutton of the Entry Control Section which was included among the papers placed before the Minister. Mr Hardie commented that Mr Irving's statements about aspects of the Holocaust are deeply offensive to the Jewish community and to many non-Jews. Peak Jewish organisations had committed themselves publicly to opposing his proposed visit. There are, he said, no identifiable ethnic community interests publicly supporting Mr Irving's entry to Australia. However despite the strength of community opposition to the proposed visit, he did not believe community opinion should be the basis for deciding the application. To do so could set an undesirable precedent. He pointed out that the Australian government had amply demonstrated its credentials on the Holocaust through long and expensive war crimes, investigations and trials. That process had been publicly educative in illustrating aspects of the Holocaust. He referred to racial vilification legislation recently drafted by the government in the face of strong opposition from free speech advocates. He accepted that if Mr Irving were admitted to Australia there would be heated confrontation with persons outraged by his statements and apparent stance on the Holocaust. This, however, could hardly be classed as a "law and order problem" within the guidelines relating to controversial visitors. The minute went on:
"The Australia/Israel Review has implied that, in some way, Irving has supported and encouraged brawling, neo-Nazi lumpen thugs... If the Review's claims are correct, there may be a possibility that, with or even without his active encouragement, his presence in Australia would spark the activities of violent neo-fascist groups. You may like to seek expert advice on that potential risk."
Some reference was made to the question whether Mr Irving's statements could render him liable under proposed Commonwealth laws relating to racial vilification. This was thought not to be the case and a more detailed supporting minute by Mr John Monk of the Ethnic Affairs Policy and Projects Section was attached. In conclusion, Mr Hardie pointed out that Mr Irving is a single individual who does not represent a political regime or group, ethnic community or ideological movement but a point of view. The controversial visitor guidelines were thought not to be clearly applicable to his case unless it could be shown that his visit would be likely to encourage violent neo-Nazism. The minute concluded:
"Irving appears to relish publicity and can be expected to exploit an adverse decision, for example, by portraying it in terms of a conspiracy to suppress historical truth. It therefore seems desirable that, if his application is refused, the decision is not made on the grounds of community pressure."
Mr Monk's supporting minute referred to the terms of the Racial Discrimination Legislation Amendment Bill 1992 embodying provisions which would outlaw racial vilification. The terms of the Bill are subject to completion of a process of national community consultation. Mr Monk contended that Irving would not contravene the proposed provisions in their present form by virtue of his public statements. He added that:
"If the Bill's provisions are to be taken as an indicator of current Government thinking, unpalatable revisionist academic debate should continue unfettered as a matter of freedom of expression in our democracy, notwithstanding the hurt and offence it will undoubtedly cause some."
All the papers to which I have referred above were submitted to the Minister on 8 February 1993 with a minute and recommendation from Mr John Parker, the Director, Entry Policy and Procedures Section. The expressed purpose of the minute was to seek the Minister's decision on the visa application lodged by "British Historian and Holocaust Revisionist, Mr David John Irving". The minute then set out various background facts in chronological sequence. It noted that reports had started appearing in the press in July 1992 that Mr Irving was intending to visit Australia early in 1993. His conviction in Germany and deportation from Canada were mentioned in the application, along with his explanation of those incidents.
Consultation with the Department of Foreign Affairs and Trade had yielded the advice that there was no foreign policy grounds for recommending against the grant of the visa. The Department of Prime Minister and Cabinet had said that "there would appear to be more than sufficient grounds for refusing a visa if that were the Minister's inclination". The Australian Security Intelligence Organisation had no objection to the visa issue although it accepted that the visit had the potential to be controversial. The Minister's attention was drawn to the Hardie minute. He was also informed by Mr Parker that:
"Representations, mainly from the Jewish community in Australia, have been made urging you to refuse permission for Mr Irving to enter Australia. In the main these representations has (sic) been that he should be refused entry to Australia because his visits to other countries have incited racial disharmony, especially anti-Semitic acts of violence."
It may be observed that there was before the Minister no independent or specific evidence of acts of violence relating to Mr Irving's activities. Mr Parker went on to say that there had been a lesser number of representations in favour of the visit expressed in terms of principles of freedom of speech and movement.
The minute identified various public interest criteria to be satisfied for the issue of a Class 672 visa. The only criteria of direct relevance for the present case were cited as criteria 4001 and 4002, namely that Mr Irving:
". be of good character (4001);
. not be determined by the Minister (acting personally) to be likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community (4002);"
The numerical designations of these criteria referred to in the minutes indicate that Mr Parker was relying upon the Migration (1993) Regulations which came into effect on 1 February 1993. By reason of reg.8.2 of those Regulations however, the Migration Regulations 1989 continued to apply in respect of applications for visas lodged before 1 February 1993. The texts of the relevant public interest criteria are the same in each set of Regulations. Mr Parker submitted that it was open to the Minister to find that Mr Irving was not of good character because of his deportation from Canada. It was also possible to waive the good character requirement but, it was submitted:
"...you may consider, in the light of potential disruption within the Australian community, that this should not be done on the basis that you are not satisfied that undue harm would be unlikely to result to the Australian community if the visas was granted (clause 4001(3) of the public interest criteria)." (sic)
In paragraph 14 of the minute, Mr Parker wrote:
"With respect to criterion 4002, there is a need for you to consider whether, on the basis of the views expressed by the group who oppose Mr Irving's entry to Australia, you should determine that there is a likelihood of Mr Irving's book promotional activities falling within the scope of the activities described in public interest criterion 4002. It seems clear that Mr Irving's views on the holocaust are not a part of the conventional wisdom on the subject although there is a little support for his views. Those persons who defend his visit do so more on the basis of defending the right to freedom of speech than the actual content of what Mr Irving has to say. It is equally clear that Mr Irving's unconventional views do cause distress among the Jewish community in Australia and thus might be properly considered disruptive to that particular group. It is thus open to you to make a determination that Mr Irving's intended activities in Australia are likely to cause disruption to a group within the Australian community."
Under the heading RECOMMENDATION the following appeared:
"15. As indicated above, it is open to you to reject Mr Irving's application for a class 672 visa on the basis that he fails to satisfy the public interest criteria and that you are not prepared to waive the good character requirement on the ground indicated in paragraph 13 above.
16. You may consider it appropriate to find that Mr Irving fails to satisfy the criterion relating to good character rather than to make a positive determination under criterion 4002, on the basis of representations against Mr Irving's visit, that Mr Irving's activities are likely to disrupt the Australian community or a group within the Australian community, although this course is open to you."
Decisional options were endorsed on the bottom of the minute in block letters:
"(i) VISA ISSUE IS REFUSED/NOT REFUSED ON THE GROUNDS OF GOOD CHARACTER; AND/OR
(ii) VISA ISSUE IS REFUSED/NOT REFUSED ON THE GROUNDS THAT HE IS LIKELY TO BECOME INVOLVED IN ACTIVITIES DISRUPTIVE TO THE AUSTRALIAN COMMUNITY OR A GROUP WITHIN THE AUSTRALIAN COMMUNITY
(iii) VISA ISSUE IS NOT REFUSED AGAINST (i) OR (ii) ABOVE AND THE GOOD CHARACTER REQUIREMENT IS WAIVED."
The Minister deleted (i) and (iii) and the words "NOT REFUSED" in (ii).
On 10 February 1993, the Australian High Commission in London wrote to Mr Irving advising of the Minister's decision. On 4 March 1993 the present proceedings were instituted. On 8 March 1993, the Minister wrote to Mr Irving in the following terms:
"Dear Mr Irving
I refer to my decision of 8 February 1993 rejecting your application for a visa to visit Australia. Needless to say, there was vigorous opposition to your proposed visit within the Australian community. I was mindful also of the support which your proposed visit had. There have been suggestions that my decision is a blow to fundamental freedoms in this country. While I do not accept that view since your books are freely available in Australia to those who may be interested in your opinion, this is not germane to my decision in your case. Equally, the fact that persons may be affronted by your opinions is not relevant. What is of concern, is the effect that your presence in Australia will have within the community. As Minister, I am charged with giving effect to Australia's immigration laws. They demand that I consider a number of matters in deciding upon the entry to Australia of persons such as yourself. Among the matters which I have considered is whether you were likely to become involved in activities disruptive to, or giving rise to violence threatening harm to, the Australian community or a group within the Australian community.
In all the circumstances, I am satisfied that if I had approved your proposed visit your activities in relation to the promotion of your books would have been disruptive to the Australian community or a group within the Australian community and that you do not, therefore, meet the requirements of the law for entry to Australia."
The Statutory Framework
16. The word "visa" is defined in s.4 of the Migration Act 1958 to mean an entry visa or a travel-only visa. The holder of a valid visa may travel to Australia (s.16A) but a travel-only visa does not entitle the holder to enter Australia or be granted an entry permit into this country (s.16B). On the other hand, the holder of an entry visa that is in force may enter Australia (s.17(2)) and upon the holder's entry into Australia the entry visa has effect as if it were an entry permit (s.18(2)).
By s.181 of the Act the Governor-General is empowered to make regulations not inconsistent with the Act, prescribing, inter alia, matters which by the Act are required or permitted to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Without limiting the generality of s.181 the regulations may make provision in relation to the granting and refusal of visas with respect to travel to Australia (s.23(1)). They may also provide for different classes of visa (s.23(2)(a)) and that a person is entitled to be granted a visa of a particular class if that person satisfies all prescribed criteria in relation to that class (s.23(2)(b)). The grant or refusal of visas is governed by s.24. That section applies where and only where the applicant makes application for a visa of a particular class in the approved form and in accordance with the regulations and any fee payable in respect of the application is paid (s.24(1)). Unless it applies, the Minister is not required to consider the application and shall not in any circumstance grant a visa (s.24(2)). Where it appears to the Minister that an applicant for a visa is, under the regulations, entitled to be granted a visa then, subject to certain requirements which are not presently material, the Act provides that the Minister shall grant the visa (s.24(3)). Similarly where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted a visa of the class concerned, the Minister shall refuse to grant the visa (s.24(7)).
The application for visa was lodged on 7 December 1992. The regulations then applicable to such applications were the Migration Regulations 1989. These were repealed by the Migration (1993) Regulations with effect from 1 February 1993. However, the transitional provisions of the new regulations require that applications lodged before their enactment be dealt with under the Migration Regulations 1989 (see reg.8.2 of the Migration (1993) Regulations).
Regulation 10 of the Migration Regulations 1989 provided that for the purposes of s.23(2) of the Act, the classes of visas are those specified in Column 2 in Schedule 2 of the Regulations and the classes specified in Division 3 of Part 2 or Division 4 of Part 3 of the Regulations. One of those classes is designated Business Visitor (Short Stay). Such classes cannot be granted as entry visas having effect as a permanent entry permit (reg.13(2)(iii)). Conditions that may be imposed in connection with the grant of a visa of any class include:
"(T)he condition that the holder is not to become involved in activities disruptive to, or violence threatening harm, to the Australian community or a group within the Australian community." (reg. 17(1)(m))
An applicant for a visa must satisfy prescribed criteria in relation to the relevant class of visas (other than public interest criteria and prescribed health criteria) at the time of application (reg.34A(1)). A person is entitled to be granted a visa of a class specified in Column 2 of an item in Schedule 2 if the person satisfies the prescribed criteria in relation to that class of visas (reg.41(1)). The criteria are those specified against the item in Column 3 of Schedule 2. The Business Visitor (Short Stay) Visa which is given a code number, 672, in Column 4 of the Second Schedule, attracts criteria specified in reg.88A and criteria designated B1, D, H, J and K. By reg.41(4) a reference in Schedule 2 to a criterion by an expression comprising a letter or a letter and a number is a reference to the criterion so described in Column 3 of Schedule 1. The criterion D is designated in Schedule 1 as:
"(T)he applicant meets relevant public interest criteria."
"Public interest criteria" is defined in reg.2 as follows:
""Public interest criteria", in relation to a person who seeks to enter, or remain in, Australia under a visa or an entry permit, means the following criteria, namely, the person:
(a) is of good character;
.
.
.
(c) is not determined by the Minister acting personally to be likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community."
The concept of "good character" is defined in reg.4:
"(1) For the purposes of these Regulations, a person is 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:
(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-para.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) (not material to this case)"
Under the heading "Waiver of good character requirement", reg.143 provides:
"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
.
.
."
Grounds for Review
20. By his amended application for review, Mr Irving alleges that the decision to refuse him the grant of an entry visa:
1. Involved a breach of the rules of natural justice contrary to s.5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977;
2. Was made in the absence of evidence or other material which justified the making of the decision contrary to s.5(1)(h) of the Administrative Decisions (Judicial Review) Act.
3. Was an improper exercise of power contrary to ss.5(1)(e) and 5(2)(b) of the Act in that the Minister failed to take into account relevant considerations in the exercise of the power conferred by the Migration Act 1958.
4. Was an improper exercise of power contrary to ss.5(1)(e) and 5(2)(a) of the Act in that the Minister took into account irrelevant considerations in the exercise of the power conferred by the Migration Act 1958.
The fifth ground which alleged that the Minister had exercised a personal discretionary power at the direction or behest of another person or persons was not the subject of any submission as none of the evidence relied upon to support it was admissible. The sixth ground was that the making of the decision was an exercise of a power for an improper purpose. Ground 7 was not able to be supported by admissible evidence and was not argued at trial.
The grounds of the application are expressed in terms which suggest contraventions or breaches by the Minister of duties imposed by s.5. To that extent they are misconceived in form. Section 5 does not create duties. It sets out the grounds upon which an order of review may be made. It does not, for example, impose a general duty to comply with the rules of natural justice. But where a decision is made under an enactment which does not exclude the application of those rules, then if the rules apply to the making of that decision, the section provides a procedure for obtaining appropriate orders. The grounds upon which such orders may be obtained generally reflect those upon which review is available at common law although there are some differences which it is not necessary to discuss for present purposes.
The Basis of the Minister's Decision
22. The contentions in this case require consideration of the basis upon which the Minister made his decision. In the absence of any evidence from the Minister himself this has to be inferred from other material before the Court. The principal documents in this respect are Mr Parker's minute of 8 February 1993 and the Minister's letter to Mr Irving of 8 March 1993. In the letter the Minister said that he did not view as relevant the fact that Mr Irving's opinions might affront some people. On the other hand, he took account of "vigorous opposition" to the proposed visit and was "mindful also" of support for the visit. The decision as explained by the Minister turned upon his conclusion that Mr Irving's activities in relation to the promotion of his books would have been "disruptive to...the Australian community or a group within the Australian community". The apprehended disruption could not have been based upon the fact of affront given to some sections of the Australian community by the expression of Mr Irving's opinions for that was treated by the Minister as irrelevant. And the Minister does not appear to have accepted, nor was it suggested to him, that there was any possibility that Mr Irving would become involved in violence threatening harm to the Australian community or a group within the Australian community which is the other limb of the relevant public interest criterion.
The Minister's expression of his reasoning in the letter to Mr Irving was not consistent with the submissions put by Mr Parker in his minute so far as it related to the "disruptive activities" ground for refusal. In para.14 of the minute Mr Parker submitted that "Mr Irving's unconventional views do cause distress among the Jewish community in Australia and this might be properly considered disruptive to that particular group." That reasoning, although advanced in support of a recommendation which was accepted by the Minister, was explicitly disclaimed in his letter of 8 March. The basis for his determination therefore appears to have been related to the existence of "vigorous opposition" and "support" for the proposed visit.
The Disruptive Activities Criterion
24. The prescribed public interest criterion which conditions the grant of a business visitor (short stay) visa requires, inter alia, that the applicant is not determined by the Minister to be likely to become involved in activities disruptive to the Australian community or a group within the Australian community. The text of this criterion does not appear to have any statutory antecedent which pre-dates the Migration Regulations 1989. The concept of "activities disruptive to the Australian community or a group within the Australian community" is central to this criterion. The activity must be disruptive of a "community" and the apprehended disruption is to be judged in that context. The relevant dictionary meaning of "community" is "a body of people organised into a political, municipal or social unity" - Shorter Oxford English Dictionary. When the criterion speaks of the Australian community it may be taken as referring to the people who live in this country and, in context, refers to their organisation as a social and political unit. The reference to groups within the Australian community does not extend to any numerical sub-set but, in the context of potential disruption, groups with some degree of social cohesion or definition. The category of such groups is not closed but could no doubt include people of common religious or ethnic affiliation. "Disruptive" is defined in the Shorter Oxford English Dictionary as "causing or tending to disruption; bursting or breaking asunder". "Disruption" is "the action of rending or bursting asunder; forcible severance". Taken together the words "activities disruptive of the Australian community or a group within the Australian community" in my opinion refer to some acute division or conflict within the community taken as a whole or within some community group. Such disruption might be generated where there is a violent opposition of views between factions of some group of people of common ethnic origin whose country of origin is involved in civil war. The arrival in Australia of a protagonist of one side in the war might be judged to be likely to fuel division to a degree that could be adjudged disruptive of that community. As a matter of logic it could no doubt be argued also that what is disruptive of a group within the Australian community is disruptive of the community as a whole.
The Full Court of this Court considered the public interest criterion in Minister for Immigration Local Government and Ethnic Affairs v. Hells Angels Motor Cycle Club Incorporated (FC unrep. 16/12/91). At p 32 of the joint judgment the Court said that the criterion involves a factual assessment and a determination of the likely behaviour of a person seeking to enter or to remain in Australia:
"The focus is upon the likelihood of involvement in activities having a broader impact than that which the activities may have upon an individual victim. A person likely to foment hatred on account of religious or racial differences in the Australia community would quite clearly fall within paragraph (c), although the paragraph, in its terms, is apt to cover other activities."
The Court also said that it would be open to the Minister to determine that certain types of criminal activity, including drug-related activities, would have a sufficient impact upon the Australian community as a whole or upon a group within that community to fall within para.(c) of the public interest criteria. Their Honours went on to point out that para.(c) has quite clearly defined limits, the most important of which is the necessity for determination of a likelihood. A mere chance or possibility is not enough. The limited role of the Court in dealing with an application for judicial review in such a case was emphasised:
"Many matters may be relevant to a determination of whether a person is likely to become involved in activities of a specified class if considered in combination with other matters. By itself, an individual matter may have no probative value, but in combination with others its relevance may become apparent. The weight to be attached to an individual relevant matter or a combination of matters is a question for the (Minister) and it is beside the point that a Court entrusted with judicial review of the
(Minister's) decision might, if deciding the matter for itself on the merits, have taken an entirely different view about questions of weight." (p 33)
Although defined by reference to the words "burst" or "break asunder", the concept of disruption in this context does not necessarily involve some irrevocable breakdown in social relationships. It may encompass a temporary division or rift that will heal with the passage of time. It may also involve the acute manifestation of some pre-existing division. It may range from heated and angry confrontation productive of lingering hurts and resentments to acute conflict giving rise to a real possibility of economic or physical retribution. Ultimately the notion of disruption shades into the extreme of communal violence. The concept of disruption does not provide an absolute and objective standard by which the likely outcome of a person's activities can be measured. The ministerial determination necessarily involves a judgment of risk and provided that the determination confines itself to risks intended to be covered by the Regulations, then it will not be questioned on its merits in judicial review proceedings.
There is a threshold below which it could not be said on any view that communal response to the activities of a visitor to this country would involve disruption. Below that limit a proper protection of the social fabric shades into paternalism. The public interest criterion was not intended to provide a charter for denying entry to people wishing to visit Australia merely on the ground that they hold and are likely to express unpopular opinions, even if these opinions may attract vigorous expressions of disagreement and condemnation from some elements of the Australian community. This lower limit upon the operation of the criterion is consistent with Australia's established tradition of free expression and its international obligation to adhere to the guarantees of freedom of opinion and expression to be found in Article 19 of the International Covenant on Civil and Political Rights. That is subject, of course, to public order limits (Article 19(3)) and the prohibition on advocacy of national, racial or religious hatred (Article 20(2)). That such international obligations may be regarded in the construction of domestic legislation is supported by dicta in Polites v. The Commonwealth (1945) 70 CLR 60 at 68 (Latham CJ), 78 (Dixon J) and 81 (Williams J). That approach to construction is strengthened in this case by the legislative recognition, albeit short of direct domestic force, given to the rights and freedoms under the covenant in the Human Rights and Equal Opportunity Act 1986.
In the present case, the Minister made clear that he had considered the freedom of speech issue and that his determination would have no impact on the availability or Mr Irving's books in Australia. The question that remains is whether it has been demonstrated that he failed to act fairly or that the basis upon which he made his determination fell outside the proper protective purpose of the public interest criterion in question.
Natural Justice
29. Mr Irving contends that the Minister's decision involved a breach of the rules of natural justice. The particulars of that ground which were ultimately relied upon at the hearing were:
"(a) In concluding that the Applicant was likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community, the Respondent took into account information purportedly available to the Respondent without advising the Applicant of the nature of that information and of affording the Applicant an opportunity to comment thereon; .
.
.
(f) The Respondent did not inform the Applicant which of the comment he was taking notice of, nor invite the Applicant to respond to that comment."
In support of the ground it was submitted that Mr Irving had been admitted to Australia on two previous occasions, that his views had not altered substantially since that time and that the circumstances of his current application were similar in all relevant respects to the circumstances of his previous visits. The Minister, it was said, was bound to notify him of factors seen as relevant to the present application which were not considered relevant on previous occasions and to allow him the opportunity to comment on the change of circumstances. The opportunity to be heard was, it was submitted, particularly relevant when, as in this case, the applicant's livelihood is involved. The Minister was said to have had before him at the time he made his decision public statements about Mr Irving which were defamatory and inaccurate. If he had intended to reject the application on the basis of such comment which was personal to Mr Irving and not dealt with by him in his application, then the Minister should have given him a right to respond.
Regardless of the rights or wrongs of the Minister's reasoning and whether or not it was within the proper scope of the public interest criterion there was no failure of natural justice. Mr Irving was well aware of the controversy which his proposed visit had engendered. He wrote to the Minister direct on two occasions, namely 6 January 1993 and 17 January 1993. He specifically drew the Minister's attention to his previous visits and his intentions to abide by the laws of this country. He wrote to Mr Harrop at the Australian High Commission on 28 December setting out the nature of his itinerary and responding to hostile press articles about his visit. These and other public responses to attacks upon him were before the Minister when he made his determination.
It is well established that the requirements of the rules of procedural fairness vary from case to case according to the circumstances. The battlelines were well drawn when the Minister came to make his decision in this case. The decision involved elements of evaluation and risk assessment on matters of fact which were known to Mr Irving and in respect of which he had had ample opportunity to comment. Contrary to Mr Irving's contention it has not been demonstrated that the Minister took into account any material, the substance of which was not already known to him and on which he had had and exercised the opportunity to comment. The natural justice ground fails.
Absence of Evidence
33. Mr Irving contended that the Minister's decision was made in the absence of evidence or other material which justified the making of the decision. He relied upon s.5(1)(h) of the Administrative Decisions (Judicial Review) Act 1977. It was submitted that Mr Parker's minute indicated that disruption to the Jewish community in Australia was apprehended only on the basis of the distress generated in that community by Mr Irving's unconventional views. Distress, it was said, is not to be equated with disruption. The fact that Mr Irving's views might cause distress did not of itself mean that they would result in disruption.
These submissions rest upon the assumption that the Minister had applied Mr Parker's logic in coming to the conclusion he did. But as observed earlier, his letter to Mr Irving is not consistent with unqualified reliance upon distress as a basis for disruption. Affront at Mr Irving's opinions was a factor he expressly disclaimed. What he did take into account was the "vigorous opposition" and the support of which he was also "mindful". It is at least arguable from the Minister's letter that he made an assessment that there would be conflict between those who opposed Mr Irving's visit and those who supported it. The onus was upon Mr Irving at all times in this application to make the case that the Minister had no proper basis for the determination which he made. In this respect it may be said that the evidence was incomplete. It does not appear that any statement of reasons was sought or obtained from the Minister as provided for in the Administrative Decisions (Judicial Review) Act 1977. Nevertheless, there was material before him from which he could, in my opinion, have concluded that the visit and Mr Irving's proposed activities involved a risk of conflict amounting to disruption. Mr Irving's own letter of 29 September 1992 to Australian Jewish News referred to "the organised Jewish community" which he said had tried in Britain and North America to suppress debate "by violence or window smashing or blackmail". Such methods he said would "only increase anti-semitism". The Minister could have seen in that language and some of Mr Irving's other utterances the potential for disruptive communal confrontation.
In the end the "no evidence" point as propounded by counsel for Mr Irving seemed to reduce to a rationality argument which proceeded on the assumption that the Minister had equated distress suffered by members of the Jewish community and disruption to that community. However, that assumption is not well founded for the reasons already outlined. In my opinion Mr Irving has failed to discharge the onus upon him to make out this ground. He has also failed, in my opinion, to demonstrate that there was no rational connection between the material before the Minister and the assessment that he made.
Failure to take into Account Relevant Considerations
36. It was submitted that the Minister had failed to take into account the fact of Mr Irving's two previous visits to Australia and the absence of any disruption on those occasions. Mr Irving's views were already well known, it was said. The fact that he was coming to repeat those views orally was relevant and should have been taken into account but was not. The material referred to was before the Minister and the evidence does not establish that he failed to take it into account. The application of this ground of review is constrained by the principles enunciated by Mason J in Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24. Before the ground can be made out it is necessary to establish that the factors relied upon were matters which the decision-maker was bound to take into account. The Minister in this case was concerned with a potential for conflict amounting to disruption indicated by the current circumstances and likely response to Mr Irving's visit. He was not bound by the statute to have regard to the circumstances of previous visits. But as I have said, the evidence does not establish that he failed to do so.
Irrelevant Considerations
37. The Minister is said to have taken into account some irrelevant considerations but the submissions on this ground reduce to the proposition that he had failed logically in finding a causal link between apprehended disruption and distress within the Jewish community caused by Mr Irving's views. For reasons I have already given, that argument fails. It was, in any event, only tenuously related to the pleaded ground.
Improper Purposes
38. The submissions on this ground sought to attack in another way the alleged linkage between Mr Irving's controversial views and apprehended disruption. It was submitted that if the Minister were really exercising his power under the public interest criteria because of Mr Irving's unconventional views, then he was exercising it for a purpose other than that for which the power was granted. The argument however fails at the threshold for lack of evidence that the Minister in fact acted upon the basis attributed to him.
CONCLUSION
39. For the reasons set out above, the application fails. It is important to note that this decision does not involve the expression of a view on the merits of the Minister's determination. Mr Irving has simply failed to demonstrate that the Minister has erred in applying the law or in observing procedural fairness. The rational basis of his decision has not been impugned. The reasons for the decision were not fully exposed. However it cannot be said that on the materials before him it was not open to the Minister to make the determination which he did. The application will be dismissed with costs.
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