Irving v Minister for Immigration

No judgment structure available for this case.

DAVID JOHN CAWDELL IRVING v. MINISTER OF STATE FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC ARRAIRS
No. WAG79 of 1993
FED No. 646
Number of pages - 23
Immigration
(1993) 44 FCR 540

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
RYAN(1), LEE(2) AND DRUMMOND(3) JJ

CATCHWORDS

Immigration - visa - prescribed criteria - "relevant public interest criteria" - whether applicant for visa "likely to become involved in activities disruptive to the Australian community or a group within the Australian community" - whether decision of Minister took into account an irrelevant consideration.

Administrative Decisions (Judicial Review) Act 1977 ss.3(a); 5(1)(h), 5(1)(a), 5(3), 5(3)(a), 5(3)(b), 13(1), 13(2); cl.(d)(ii) of Schedule 2

Australian Security Intelligence Organisation Act 1979 ss.17(1)(c),4

Crimes Act 1914

Migration Act 1958 ss.17(2), 18(4), 23, 23(1)(a), 23(2), 24, 24(3), 24(7)

Racial Discrimination Act 1975

Racial Discrimination Legislation Amendment Bill 1992

Migration Regulations 1989 Schedule 2, regs.2, 4, 4(a)(ii)(B), 4(a)(ii)(D), 4(1), 4(1)(a), 4(1)(a)(ii)(D), 13(2)(a)(iii), 17, 41, 41(1), 41(2), 88A, 143

Migration (1993) Regulations

Macquarie Dictionary

Shorter Oxford English Dictionary

Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Forbutt v. Blake (1981) 51 FLR 465

Kioa v. West (1985) 159 CLR 550

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

Minister for Immigration v. Kumar and Govind, Unreported (Federal Court of Australia, Davies, Foster and Hill JJ, 31 May 1990)

Minister for Immigration v. Pochi (1980) 31. ALR 666

Minister for Immigration, Local Government and Ethnic Affairs v. Hells Angels Motorcycle Club Incorporated (1991) 25 ALD 667

The Queen v. Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456

Sinnathamby v. Minister for Immigration (1986) 66 ALR 502

Television Capricornia Pty Ltd v. Australian Broadcasting Tribunal (1986) 70 ALR 147

Western Television Ltd v. Australian Broadcasting Tribunal (1986) 69 ALR 465

Wise v. Dunning (1902) 1 KB 167

HEARING

PERTH, 23 July 1993

#DATE 16:9:1993

Counsel for the Applicant: Mr P.S. Bates

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

Counsel for the Respondent: S. Owen-Conway QC and P.R. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Court dated 13 May 1993 be set aside and in lieu of it be ordered that:

i) the decision of the Minister made 8 February 1993 be reviewed and the decision set aside; ii) the matter be returned to the Minister for determination according to law;

iii) the respondent pay the appellant's costs of the application to be taxed.

3. The respondent pay the appellant's costs of the appeal to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

RYAN J In this matter I have had the advantage of reading in draft the reasons for judgment of Lee and Drummond JJ and it is, therefore, unnecessary for me to reproduce in detail the factual or legislative context in which this appeal has to be decided.

Mr Irving admittedly failed to satisfy the "good character" criterion directed by Reg. 4(1) of the Migration Regulations (1989) ("the Regulations") because he had been deported from Canada and was therefore caught by Reg. 4(1)(a)(ii)(D). However, a power of waiver arose if the Minister was satisfied that the applicant had shown, by subsequent conduct, that he was reformed and that undue harm would be unlikely to result to the Australian community if the visa were granted. As Lee J has noted in his reasons, a consideration by the Minister of whether he was satisfied of the exempting facts of reformation and unliklihood of undue harm to the Australian community was foreclosed by his affirmative personal decision that Mr Irving was "likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community".
Accordingly, this appeal turns on the narrow point of whether there was evidence or material on which the Minister could reasonably have concluded that Mr Irving was likely to become involved in activities of the specified kind.
In the first place, the word "likely" imports more than a real possibility. As a Full Court of this Court said in Hand v Hell's Angels Motor Cycle Club Inc. (1991) 25 ALD 667 at 672:

"Paragraph (c) of the defined "public interest criteria" is much narrower than para (a). It too involves a factual assessment. It involves a determination as to the "likely" behaviour of a person who is seeking to enter, or to remain in, Australia under a visa or an entry permit. Paragraph (c) is in terms directed to a person who is likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community. 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 Australian community would quite clearly fall within para (c), although the paragraph, in its terms, is apt to cover other activities. It would, for example, be open to the appellant 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 with para (c).

Paragraph (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."

Secondly, the activities on which public interest criterion (c) in Reg. 2 of the Regulations is predicated need not be likely to be engaged in by the applicant. It is sufficient for the Minister to assess the applicant as likely to be "involved" in those activities in the sense of being bound up or connected with them, by, for example, providing a focal point or cause or occasion for them. I agree in this respect with Drummond J that the test imported by the word "involved" may be satisfied by something less than likely participation by the applicant in the presumptive activities.
However, the Minister has also to be satisfied that what I have just called the presumptive activities answer the description of being disruptive to the Australian community or a group within that community. In my view, the adjective "disruptive" in that context has its ordinary English meaning of "tending to rend or burst asunder or forcibly sever" which is proffered, for example, by the Shorter Oxford English Dictionary. That requires the activities to be likely to have the effect of polarising two sections of the Australian community, or two elements of a group within that community, to an extent, beyond mere disagreement or controversy, which threatens, in a harmful way, the normal cohesiveness of the community or the group. It is not enough for the activities to be likely to cause pain, distress or offence within the Australian community or a group within it. On the other hand, I am not persuaded that the supposed breakdown or division needs to be accompanied by physical violence as that would subsume the second element imported by the stipulation that the applicant not be determined by the Minister to be likely to be involved in "violence threatening harm to the Australian community or a group within it".
I have been unable to discern in the evidence or material before the Minister anything to support a conclusion that the activities in which Mr Irving can be regarded as likely to become involved would be disruptive to the Australian community or a group within it in the sense just indicated. The evidence and material does not suggest the existence in Australia of any significant group which endorses the views which have been attributed to Mr Irving. As Drummond J has demonstrated, the furthest one can go on the evidence is to postulate the existence of a group which although disapproving, or at least not supportive, of what Irving says, will in the words attributed to Voltaire, defend to the death his right to say it.
Nor does the evidence, or other material, suggest that it is likely that Mr Irving's presence in Australia will be disruptive, in the sense which I have suggested, to the Jewish community in this country. All of the indications are that the Jewish community is united in deploring and contradicting the Irvingite view of recent history. The only active division which one can impute to that community is between those who believe that Irving's views should be denied any opportunity of further promotion and those who subscribe to the Voltarean tenet that he should be allowed to express his views however abhorrent or unfounded they may be. In this context it is appropriate to recall that Irving's books have been published and are freely available in Australia for a considerable time, without any apparent disruptive effect on the Jewish community.
It follows that there are only two bases on which the Minister could have attained the requisite degree of satisfaction. The first requires the conclusion that Mr Irving's presumptive activities were likely to be disruptive to the Australian community because of the discord which they would engender between the proponents of free speech and a united Jewish community. The second is that the same activities were likely to be disruptive of the Jewish community. In my view, these two bases have only to be articulated to make it clear that neither is supported by the evidence or material before the Minister.
I agree with Lee J that Mr Irving's own allegation in his letter to the "Australian Jewish News" that the "organised Jewish community" in Britain and North America had tried to suppress a public debate about his views by violence, or window smashing or blackmail, does not amount to evidence or material reasonably supporting a conclusion that his proposed activities in Australia would be likely to be disruptive to the Australian community or the Jewish community in the sense which I have just discussed. In its context, as Lee J suggests, that statement may have been based on no more than a desire to make a gratuitously offensive allegation against the wider Jewish community. At all events, it is not clear that the Minister accepted that assertion, but, even if he did, it would be necessary for him to conclude that a similar reaction is likely to be provoked in Australia by Mr Irving's presence here and his promotion, in the ways indicated, of sales of his books. The evidence and material before the Minister affords no reasonable basis for that conclusion.
It follows, a fortiori that I can find in the material or evidence, no ground for concluding that Mr Irving is likely to be involved in violence threatening harm either to the wider Australian community or to the Jewish community. For these reasons, I agree that the appeal should be allowed with costs and the matter be returned to the Minister for determination according to law.

JUDGE2

LEE J This is an appeal from a judgment of a Judge of this Court (French J) dismissing an application by the appellant ("Irving") for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") in respect of a decision by the respondent ("the Minister") refusing Irving's application for the grant of a business visitor (short stay) visa.Irving is described as a British historian. Irving's published works have focused on the participation of senior German figures in the events of World War II. Some of his work has been the subject of controversy and has isolated Irving from other historians, particularly in respect of his views on the extent to which Germany engaged in genocide of the Jewish race in Germany and in countries under its control during World War II. For example, Irving maintains that his research of historical records has revealed no evidence that "gas chambers" were operated in the Auschwitz concentration camp in Poland, notwithstanding evidence from survivors of that camp that mass executions were effected in that way.

He has published his works since 1963 and his views are neither new nor lacking dissemination.
Irving has been granted a visa to visit Australia on two previous occasions. In March 1986 he visited Australia for two weeks and in 1987 he was in Australia for a month. On each occasion Irving had been granted a visa allowing him to travel to Australia to promote sales of his books. On those visits Irving participated in media interviews and delivered a number of speeches across Australia, including addresses to audiences on four university campuses. Although Irving's presence initiated debate, there was no suggestion that whilst in Australia Irving was involved in any activities disruptive to the Australian community.
Irving's most recent application for a visa was lodged with the Australian High Commission in London on 7 December 1992. If the visa had been granted, Irving's activities would have been those undertaken by other authors visiting Australia to promote their books, namely participation in numerous speaking engagements and media interviews.
At the time he lodged his application for a visa the relevant regulations were the Migration Regulations 1989 ("the Regulations"). The Regulations were repealed by the Migration (1993) Regulations on 1 February 1993 but transitional provisions in the Migration (1993) Regulations provided that an application for a visa lodged before 1 February 1993 was to be determined according to the Regulations.
Under s.23 of the Migration Act 1958, regulations made with respect to visas may provide for different classes of visas and for a person to be entitled to be granted a visa of a particular class if he or she satisfies all the prescribed criteria in relation to that class. The business visitor (short stay) visa is one of the classes of visas provided for under the Regulations.
Under s.24 of the Migration Act, where it appears to the Minister that an applicant for a visa is entitled to be granted a visa of the class applied for, the Minister shall give the applicant written notice that the Minister proposes to grant the visa and, amongst other conditions, if, and only if, the Minister is satisfied there has been no material change in the applicant's circumstances since the application was made, the Minister shall grant the visa.
Regulation 41(1) provides that a person is entitled to be granted a visa of a specified class if the person satisfies the prescribed criteria in relation to that class of visa. In relation to the business visitor (short stay) visa, the prescribed criteria were those specified in column 3 of Schedule 2 of the Regulations, namely the criteria specified in reg.88A and included the requirement that the applicant "meets relevant public interest criteria".
It was not in issue that Irving met all prescribed criteria other than the "relevant public interest criteria" and otherwise was entitled to be granted a business visitor (short stay) visa.
"Public interest criteria" is a term defined in reg.2 of the Regulations. The part of that definition relevant to an application for a business visitor (short stay) visa and, therefore, apparently within the expression "relevant public interest criteria" would be as follows:

"'public interest criteria', in relation to a person who seeks to enter, or to remain in, Australia under a visa or an entry permit, means the following criteria, namely, the person:

(a) is of good character;

(b) does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment;

(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; ...

(g) is not determined by the Minister for Foreign Affairs and Trade to be a

person whose presence in Australia

would prejudice relations between

Australia and a foreign country;"

Irving satisfied criteria (b) and (g).
With regard to criterion (a), reg.4 of the Regulations defined "good character" as follows, inter alia:

"4(1) For the purposes of these Regulations, a person is to be taken not to be of good character if:

(a) in the case of an applicant for a visa or an entry permit of any class: (i)

the applicant has been assessed by the competent Australian authorities to be a risk, 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 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;

..."

Regulation 143 of the Regulations allowed the Minister to waive the requirement that an applicant be of good character if failure to satisfy that requirement was the only impediment preventing the applicant from meeting the public interest criteria. Regulation 143 relevantly provided 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) (sic) - the circumstance no longer obtains; or

(ii) in the case of conduct referred to in subparagraph 4(a)(ii) (sic) or (iii) (sic) 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; ..."

In his application for a visa, Irving stated that subsequent to his last visit to Australia he had been convicted of an offence in Germany and had been deported from Canada. In a letter attached to the application Irving gave an account of the circumstances that led to each event. In 1991 Irving was convicted in Germany of insulting and slandering the memory of the dead by making a statement in Munich that there had not been gas chambers at the concentration camp at Auschwitz. Irving advised that he had lodged an appeal against that conviction.

In November 1992 Irving was deported from Canada on the ground that he had failed to leave Canada when required to do so.
The conviction in Germany resulted in the imposition of a fine and no sentence of imprisonment and, therefore, the terms of reg.4 did not apply to the conviction. Irving's deportation from Canada did attract the operation of reg.4 and for the purpose of the Regulations, Irving was to be taken not to be of good character.
On 8 February 1993 the Minister received a submission from an officer of his Department setting out the matters the officer believed the Minister should consider in determining whether to grant Irving's application for a visa. The Minister was advised by that officer that under the Regulations Irving was not of good character by reason of his deportation from Canada. The officer advised that it was possible for the Minister to waive the requirement of good character but not if the Minister was not satisfied that undue harm would be unlikely to result to the Australian community if the visa were granted. The officer apparently had in mind the provisions of reg.143(b). The submission went on 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."

The submission "recommended" that it was open to the Minister not to waive the requirement of good character in which event Irving would fail to meet the public interest criteria and would not be entitled to be granted a visa. It was suggested, to the Minister that he decline to waive the requirement of good character rather than make a "positive determination...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".

Endorsed on the submission were the following alternative "Decisions" for the Minister's consideration:

"(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 endorsed alternatives appeared to misunderstand the operation of the Regulations.
The Minister made his decision on 8 February 1993 by striking out alternatives (i) and (iii) and the words "not refused" in alternative (ii) so that his decision read as follows:

"VISA ISSUE IS 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."

By determining that Irving was likely to become involved in activities disruptive to the Australian community or a group within the Australian community, the Minister foreclosed any consideration by him of waiving the requirement of good character under reg.143. By reason of that determination it could not be said that Irving failed to satisfy the public interest criteria only because he had been taken not to be of good character.
By letter dated 10 February 1993 the Australian High Commission advised Irving that his application for a visa had been refused by the Minister who "found that he was unable to be satisfied that (Irving) met the public interest criteria, specifically...criterion '(c)'".
If that paragraph of the letter had been an accurate account of the process the Minister had followed in determining Irving's application for a visa, it would have revealed that the exercise of the Minister's decision-making power had miscarried in that the Minister could not ground rejection of the application on a failure to be satisfied that Irving was unlikely to become involved in activities disruptive to the Australian community. It was not submitted that the letter of the Australian High Commission contained an accurate account of the manner in which the Minister determined Irving's application.
On 8 March 1993 the Minister wrote to Irving in the following terms:

"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 opinions, 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 issue before his Honour and before this Court was whether there was any material before the Minister on which the Minister could make the determination that Irving was likely to become involved in activities disruptive to the Australian community or a group within the Australian community. The Minister said he was satisfied that Irving's activities in relation to the promotion of his books (emphasis added) would have been disruptive to the Australian community or a group within the Australian community.
The elements of this criterion have been considered by a Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v. Hells Angels Motorcycle Club Incorporated (1991) 25 ALD 667. The Court said as follows:

"Paragraph (c) of the defined 'public interest critera' is much narrower than para (a). It too involves a factual assessment. It involves a determination as to the 'likely' behaviour of a person who is seeking to enter, or to remain in, Australia under a visa or an entry permit. Paragraph (c) is in terms directed to a person who is likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community. 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 Australian community would quite clearly fall within para (c), although the paragraph, in its terms, is apt to cover other activities. It would, for example, 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). Paragraph (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.

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.The relevance of a particular fact to an issue can obviously depend upon the combination of facts of which it forms a part.

...

Of course, in an application for review under the ADJR Act a court is not looking to material that would necessarily be admissible in a Court of law, and it must always bear in mind that questions of weight are in general questions for the decision-maker. But where it is known what material was or will be before the decision-maker, the same principles for ascertaining the relevance of an individual matter generally will apply. Where a matter can only be relevant if it operates in combination with other matters a similar inquiry must be made as to whether the necessary other matters are present.

It is therefore necessary to examine the scope of the material to be put before the (Minister)." (at pp 672-673)

Having examined the material to be put before the Minister the Court went on to find as follows:

"Here, the information in the Joseph letter, examined in the context of the totality of the information available at this stage and to be placed before the

(Minister) makes it quite impossible to conclude, on any reasonable basis, that an individual applicant for a visa would be likely - we stress 'likely' - to engage in conduct of the nature referred to in para (c). The information is simply insufficient to support a positive prediction that an (applicant) is likely to become involved in activities of the kind described in criterion (c). ...

Accordingly, we conclude that if the information in the Joseph letter comprises, as at this stage in the decision-making process it does, virtually all of the information that will be placed before the

(Minister), it will be irrelevant to public interest criterion (c). We so conclude not because of its nature or because of the criticisms that may be made about its generality; those are matters which go to its weight. We reach this conclusion because there will be insufficient material before the (Minister) to make the information in the Joseph letter relevant to the determination of one of the issues that the (Minister) may have to consider." (pp 674-675)

Before the Minister could determine that it was likely that Irving would become involved in activities disruptive to the Australian community, it was necessary for there to be credible material supporting a conclusion that there was a likelihood that, first, activities would occur which would be disruptive to the Australian community and, second, that Irving would be involved in those activities.
The likelihood of the involvement of a person in activities disruptive to the Australian community could not be demonstrated by showing that opinions held by that person would inspire the expression of supporting or opposing views by members of the Australian community.
First, the activities contemplated in criterion (c) are more than vigorous expressions of support for, or opposition to, the opinions of another. The term "activities disruptive to the Australian community" connotes actions designed to divide or to rend the cohesiveness of the community. A broad range of events, including minor breaches of the peace, would not be conduct to which criterion (c) was directed. That conduct would entail divisive acts the community would not be expected to tolerate. Determining what activities would be disruptive to the community would be a matter of judgment for the Minister. No doubt, consideration would be given to the extent to which the events likely to occur would be expected to be controlled by enforcement of the laws of the community.
Second, the requirement in criterion (c) that there be a likelihood that a person would be involved in such activities would require material or evidence to show that there was a probability that a proposed visitor would be the cause of, or inspiration for, those events. The use of the word "involvement" indicates that the operation of criterion (c) is predicated upon the existence of material showing a likelihood that the proposed visitor would be connected with the occurrence of disruptive activities, that connection being more than the mere presence of the visitor in Australia at the time the activities occurred. If it had been intended that criterion (c) operate in the latter circumstance, it would have been a simple matter for the criterion to be so expressed.
In his Honour's opinion there was material before the Minister from which the Minister could reach the conclusion that Irving's activities would involve "a risk of conflict amounting to disruption". His Honour referred to a statement by Irving in a letter to "Australian Jewish News" as a statement in which the Minister could see "the potential for disruptive communal confrontation".
The relevant paragraph in Irving's letter was as follows:

"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."

The paragraph was part of a letter Irving sought to have published in "Australian Jewish News". The attribution of responsibility for unlawful activities in other countries to an "organized Jewish community" may have been a gratuitous and offensive assertion that Irving was prepared to have published in a newspaper circulating in the Jewish community but as the Minister was advised in a Minute from an officer in the Ethnic Affairs Branch of his Department "there is nothing evident to warrant an apprehension that Mr Irving would go so far as publicly and intentionally to stir up racially offensive hatred, or fear of violence."
If it stood alone, Irving's statement in his letter to "Australian Jewish News" could not support the conclusion that if Irving entered Australia he was likely to become involved in activities that would disrupt the Australian community.
Absent from material before the Minister was any information capable of sustaining a conclusion that it was likely that if Irving entered Australia and engaged in activities to promote his books, conflict of such a degree as to be disruptive to the Australian community would be generated by those activities. There was simply no material which suggested that such events were likely to occur. It was acknowledged that there was no organized group in the Australian community supporting Irving's views and certainly no suggestion that any group opposed to those views would instigate such conduct as a result of Irving engaging in promoting the sale of his books.
Counsel for the Minister acknowledged that activities disruptive to the Australian community required more than the demonstration of distress, upset or disagreement within the community as a result of the activities of Irving. Counsel suggested that a combination of extracts from the material before the Minister suggested that there would be "vigorous opposition" to Irving's visit. But none of that material was capable of supporting a view that it was likely that Irving's interviews and appearances would result in conflict amounting to disruption to the Australian community. There was no rational connection between the material before the Minister and a determination that Irving was likely to be involved in activities disruptive to the Australian community.
The ground on which an order for review was sought was that there had been an improper exercise of power by the Minister in that the Minister had taken into account an irrelevant consideration. As stated in Minister v. Hells Angels, regard to material that is shown to be non-probative upon examination of the whole of the material before the Minister will establish that ground. It may also be said that there was an error of law in that the decision was manifestly unreasonable. (See Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at pp 40-41.) It is not the function of this Court to review a decision on the merits but the Court is bound to set aside a decision if it is "so unreasonable that no reasonable person could have come to it". (See Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at p 388.)
It is unnecessary to deal with any of the remaining grounds of appeal. The question whether the Minister failed to extend procedural fairness to Irving in deciding Irving's application does not appear to arise on the actual material considered by the Minister and the submission that his Honour erred in failing to allow Irving to adduce evidence of bias on the part of the Minister is without substance for the reasons set out by Drummond J.
It follows from the foregoing that an order to review the Minister's decision should be made and the matter returned to the Minister for determination according to law.

JUDGE3

DRUMMOND J This is an appeal from an order of French J dismissing an application by the appellant, Mr. Irving, for the review of a decision of the respondent Minister for Immigration made on 8 February, 1993 to refuse Mr. Irving a visa.

The Visa Application
2. By application lodged with the Australian High Commission in London and dated 7 December, 1992, Mr. Irving sought a visa to enter Australia for a stay of one month ten days commencing 17 March, 1993. The reason he gave in his application for visiting Australia was "media interviews to promote my latest books". Mr. Irving holds views, developed in his books, which conflict with the widely accepted understanding of what happened to Jews throughout Europe, when it was under German occupation in the Second World War. The Holocaust was, according to him, a much less devastating event for European Jewry than is accepted to be the case. His views are offensive to many Australians, including Australians of Jewish origin. They must be particularly offensive to those remaining Australians who survived the implementation of the Nazis' genocidal policies.

Mr. Irving's application was made under the Migration Regulations 1989 for a class 672 visa, i.e., for a business visitor (short stay) visa. It is the provisions of those regulations that govern the appellant's case, not the Migration Regulations 1993: see regulation 8.2 the Migration Regulations 1993.
By letter dated 10 February, 1993, the Senior Migration Officer with the Australian High Commission in London wrote to Mr. Irving, apparently pursuant to regulation 35, to inform him "on behalf of the Minister" that his application for a visitor's visa had been refused on 8 February, 1993, the Minister having personally found that he was unable to be satisfied that Mr. Irving met the public interest criteria, specifically the criterion, which I will call "criterion (c)", that the applicant "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". Mr. Irving says in an affidavit read before French J that his solicitor, on 14 February, 1993, applied to the Minister for formal reasons, pursuant to s. 13 the Administrative Decisions (Judicial Review) Act. The Minister cannot be compelled to give reasons for his decision - see ss. 13(1) and (11) and clause (d)(ii) of Schedule 2 to the Administrative Decisions (Judicial Review) Act - although there is nothing to stop him doing so, if he wishes. Mr. Irving says that while he has never been given reasons, on 8 March, 1993 he did receive from the Minister, through his solicitors, a letter of that date in the following terms:

"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 opinions, 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."

Despite what was said in the letter of 10 February, 1993, it is clear from the Minister's own letter of 8 March, 1993 that he did not make any determination that Mr. Irving's proposed activities were likely to give rise to violence threatening harm to the community and that his decision was made solely on the ground that Mr. Irving's proposed activities would be disruptive to the community.

The Statutory Framework
6. A visa of the kind applied for by Mr. Irving allows the applicant to enter Australia (s. 17(2) the Migration Act 1958), subject to any limitation of the period during which he is thereunder authorised to remain here and subject also to any conditions attached to the visa (s. 18(4)). By s. 23(1)(a) of the Act, regulations under the Act may make provision in relation to the granting and refusal of visas, including the granting of visas subject to conditions or subject to a limitation as to the time the holder is authorised to remain in Australia. Regulation 17 of the Migration Regulations 1989 contains the conditions that may be imposed in connection with the grant of a visa of any class. By s. 23(2) of the Act, the regulations may provide for different classes of visas and that "a person is entitled to be granted a visa of a particular class if a person satisfies all the prescribed criteria in relation to that class". Regulation 10 provides that the classes of visas are, among others, those specified in Column 2 in Schedule 2 to the Regulations. One of these classes is designated "Business visitor (short stay)". Such a visa must not be granted as an entry visa having effect as a permanent entry permit: regulation 13(2)(a)(iii).

Sections 24(3) and (7) of the Act govern respectively the grant and refusal of visas. They provide:

"(3) ... where it appears to the Minister that an applicant for a visa ... is, under the regulations, entitled to be granted a visa of the class concerned, then:

(a) the Minister shall give the applicant written notice:

(i) stating that the Minister proposes to grant a visa; and

(ii) requiring the applicant to notify the Minister, as prescribed, if there has been any material change in his or her circumstances since the application was made; and

...

(b) if and only if the Minister becomes satisfied that there has been no material change in the applicant's circumstances since the application was made, the Minister shall ... grant the visa.

(7) ... 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 applicant such a visa."

Regulation 41(1) provides that: "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." The criteria prescribed pursuant to regulation 41(2) for a class 672 visa are those specified in regulation 88A and in criteria B1, D, H, J and K in Column 3 of the Schedule 1 to the regulations. The only criterion of relevance to the applicant's case specified by regulation 88A is that: "The period of stay in Australia proposed in the application does not exceed three months." The applicant met this criterion. Of the other criteria, the only relevant one is criterion D: "The applicant meets relevant public interest criteria." Regulation 2 provides that:

"... 'Public interest criteria' in relation to a person who seeks to enter ... Australia under a visa ... means the following criteria, namely, the person:

(a) is of good character;

(b) does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment;

(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;"

Criterion (c) is oddly worded. Read literally, a person who was certain to cause turmoil in the Australian community would meet that particular criterion if the Minister, in the teeth of all the evidence, simply declined to make any determination on the matter. I think that the scheme of the Act and Regulations as reflected in s. 24(3) and (7) and regulation 41 read with the relevant definitions in regulations 2 and 4, and in the limited waiver provisions of regulation 143, is such as to show that the Minister must make a determination one way or the other on whether an applicant for a visa satisfies criterion (c): he cannot decline to decide that issue and then invoke the applicant's failure to satisfy this criterion as a reason for refusing the visa.
Regulation 4(1) provides that:

"For the purposes of these Regulations, a person is to be taken not to be of good character if:

(a) in the case of an applicant for a visa or an entry permit of any class:

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

(ii) the applicant:

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

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

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

(D) has been deported from another country; or

(E) has been excluded from another country in the circumstances prescribed for the purposes of 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 ..."

In order to comply with public interest criterion (a) and thus to become entitled pursuant to regulation 41 to a visa, the applicant must positively establish his good character. But while the Minister cannot waive this particular requirement, he can waive his right to rely on the provisions of regulation 4(1)(a), which define certain circumstances in which want of good character is presumed. Regulation 143 provides that:

"... the Minister may grant a visa ... 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 ..."

It would have been open to the Minister to refuse Mr. Irving's visa application in reliance on regulation 4(a)(ii)(D) and his deportation from Canada. It would not have been open to the Minister to refuse the visa in reliance upon regulation 4(a)(ii)(B) by reason of Mr. Irving's conviction in Germany since it appears he has not as yet been sentenced to any term of imprisonment in respect of that offence. Mr. Parker, the Director of the Department's Entry Policy and Procedures Section, in his minute to the Minister drew the Minister's attention to there being grounds to deny Mr. Irving his visa because of a want of presumed good character, if the Minister chose to act upon them, as well as drawing the Minister's attention to his entitlement to waive that requirement. The Minister cannot be taken to have waived his right to rely on regulation 4(a)(ii)(D) by endorsing the three options set out at the end of Mr. Parker's minute as he did. Because the Minister's decision to refuse the visa was based on Mr. Irving's failure to meet public interest criterion (c), it is likely he never got to the stage of considering whether to refuse the visa on the ground of Mr. Irving's lack of good character, as evidenced by his deportation from Canada.
The Department's Controversial Visitors Policy contains in section 9.1. an indication as to how the Minister will seek to discharge his duty of deciding whether a visa applicant, whose presence in Australia will provoke controversy, nevertheless satisfies criterion (c). It provides:

"9.1.1 Visitor policy seeks to exclude from Australia persons who have planned or participated in, or been active in promoting politically motivated violence or criminal violence including particularly acts of terrorism; and/or are likely to propagate or encourage such actions during a visit to Australia. It also seeks to exclude persons who may pose some threat or harm to the Australian community.

9.1.2 A proposed visit by a person, the presence of whom in Australia may precipitate the sort of vigorous or controversial debate which may take place in a democratic society, is not sufficient reason to refuse that person a visa."

In sections 9.2 and 9.3 of this Policy, officials are also given directions as to the information to be gathered for assessment by the Minister in making his decision to grant or refuse a visa to such a person.

Activities Disruptive to the Community
15. The learned primary judge dealt with what the Minister had to turn his mind to in deciding whether Mr. Irving met criterion (c). He said:

"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 society 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. ..."

His Honour also said, in reliance on Hand v Hell's Angels Motorcycle Club Inc. (1991) 25 ALD 667 at 672, that it was not enough to prevent an applicant for entry meeting criterion (c) that there was a chance or possibility of him becoming involved in activities disruptive to the Australian community: there must be a likelihood of that happening.
I agree with his Honour's conclusions in these respects and only add a reference to the Macquarie Dictionary which, after defining "disruptive" as "pertaining to disruption", defines "disruption" as "1. forcible separation or division into parts. 2. a disrupted condition." This definition further emphasises the need for there to be a forcible division of the Australian community into factions or a forcible division of some identifiable social group within the Australian community into factions, as a result of the activities in question, before it can be said that the applicant has become involved in activities disruptive to the Australian community or a group within the Australian community.
The requirement of forcible community division implicit in the concept of disruptive activities referred to in criterion (c) can in my opinion only be met where there is conflict between Australians in the sense of a clash between them or strife between them; there must be conflict of the kind which, while not necessarily involving actual violence, has the potential to degenerate into violent behaviour on the part of some. The ordinary meaning of the words in the phrase "activities disruptive to the Australian community" is wide enough to cover actual violence by some to others in the community, as well as conflict in the form of vehement confrontation and strife between divisions in the community which does not involve actual violence. Violence involving only a small number of people may be an activity disruptive to the community without amounting to "violence threatening harm to the community", or to a group within the community, within that expression in criterion (c). If, for example, a handful of people in the course of a confrontation jostle and assault in a minor way other members of the community, that might well not amount to "violence threatening harm to the Australian community", according to the circumstances. But once violence occurs on other than a limited scale, it is well capable of amounting to "violence threatening harm to the Australian community" or to a group in the community.
It also follows that, in the absence of conflict of this kind, it will not be enough to establish the existence of disruptive activities to show only that a person's activities are likely to generate annoyance or distress or even demonstrations of opposition to his activities by a faction within the national community or within a group within the national community. The Controversial Visitors Policy thus accurately reflects the intent of the regulations and, in particular, of the public interest criteria. The Minister, in his letter of 8 March, 1993, correctly said that the fact that persons may be affronted by Mr. Irving's opinions was not by itself relevant to what he had to decide.
It was submitted on behalf of the appellant that a person can only be said to "be likely to become involved in activities disruptive to" the Australian community for the purpose of criterion (c) if his own personal activities involve disruption; it cannot be enough, so it was said, that disruption arises only from the activities of others responding to that person's own activities. Reliance was placed particularly upon paragraph 9.1.2 of the Controversial Visitors Policy in support of this submission. I am unable to accept the submission. This criterion, to be satisfied, requires a determination by the Minister that the person in question is not likely "to become involved in" disruptive activities: it does not require a determination that that person is not likely "to take part in" disruptive activities. Involvement in disruptive activities by a person connotes, in my view, a wider range of connections between that person and those activities than does the concept of participation by a person in such activities. The wording used in the criterion is therefore apt to embrace a situation in which it is clear that the intending visitor will not himself participate in disruptive activities, but it is also clear that his lawful activities are likely to provoke disruption by others. While a person may not intend to and may not in fact himself commit any offence, while for example he may not himself deliberately incite his audience to violence, if there is evidence showing that the consequence of his perfectly lawful conduct in addressing a public meeting is likely to be a breach of the peace by some members of his audience, he can be bound over for the purpose of preventing such an apprehended breach of the peace by those others: he can be required to enter into a recognisance and, if the apprehension that alone justifies the making of the order binding him over is well-founded, the conditions of such a recognisance will necessarily be broken if he addresses another meeting. See Forbutt v Blake (1981) 51 FLR 465 at 475-476, following Wise v Dunning (1902) 1 KB 167. If the appellant's submission is correct, a person would be entitled to a visa to enter Australia for the purpose of addressing public meetings even though the moment he sets foot here he could be taken before a magistrate and bound over for the very purpose of ensuring that he does not do that. For the reasons given, I do not think that the definition of criterion (c) accommodates such a result.
It is the existence of a real risk that some Australians will, as a result of a person's presence here, be subjected by other Australians to a situation involving conflict that criterion (c) is aimed at. When a claim is made that a society which accords real, as opposed to token, respect for freedom of speech should admit a visitor, the regulations in my view nevertheless require the balance to come down against freedom of speech, if such a risk exists. So construing the regulations and, in particular, criterion (c), has the result that a person can be lawfully excluded from entry to Australia where he has only limited opposition within the Australian community, but that opposition is prepared to threaten violence in demonstrating their opposition to him, if he is allowed into the country. This can make freedom of speech a hostage to the willingness of a few already living in Australia to break the law. But I think the regulations bring the balance down between freedom of speech and the preservation of order and calm within the Australian community in this way.

The "No Evidence" Point
22. I have already set out what the Minister told Mr. Irving by way of explanation for his refusal of the visa, in his letter of 8 March, 1993. The appellant submits that French J was in error in rejecting the challenge to the Minister's decision made on the ground that there was an absence of any evidence before the Minister to justify it.

A decision of an administrative character can be reviewed on the ground that there is "no evidence or other material" to justify the making of the decision: s. 5(1)(h) the Administrative Decisions (Judicial Review) Act. A person charged with the task of making a decision can, in the absence of some statutory constraint, act on material that would not be evidence in the sense of material admissible according to the rules of evidence. It is this distinction which is reflected in the expression "evidence or other material" in s. 5(1)(h) of the Administrative Decisions (Judicial Review) Act. In my opinion, when an administrative decision is challenged on the ground of absence of evidence or other material to justify it, that ground will, subject to the requirements of s. 5(3) being met, be made out if there is an absence of evidence in the sense of material admissible according to the rules of evidence and also an absence of other material relevant to, and logically probative of, the matters upon which the decision maker has to reach a conclusion. Otherwise, an arbitrary decision would be immune from review in reliance on s. 5(1)(h), so long as there is something to which the decision maker can say he had regard, irrespective of how irrelevant or how lacking in any probative value that material may be. Cf. The Queen v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456 at 488 and Minister for Immigration v Pochi (1980) 31 ALR 666 at 688-689 and, on appeal, 149 CLR 139 at 141.
The absence of evidence or other material sufficient to justify the making of a decision is not of itself enough to warrant the review of a decision. Section 5(1)(h) is limited, as I have mentioned, in its operation by s. 5(3). If it is s. 5(3)(b) that is applicable in the circumstances of the particular case, attention must be focused on whether "a particular fact", whose existence is critical to the decision, actually existed. If it is s. 5(3)(a) that is applicable, attention has to be focused not on any particular fact, but rather on "a particular matter", i.e., on a particular combination of facts or circumstances. It is that, rather than a particular fact, that must be supported by evidence or other material if a decision to which s. 5(3)(a) applies is to be immune from review under s. 5(1)(h).
In Television Capricornia Pty. Ltd. v Australian Broadcasting Tribunal (1986) 70 ALR 147, Wilcox J took the view, at 155, that s. 5(3)(a) only has application where a particular finding is, as a matter of law, a necessary pre-condition to a decision. See also Western Television Ltd. v Australian Broadcasting Tribunal (1986) 69 ALR 465 at 479. Here, s. 24(7), read with regulation 41(1) and (2), requires the Minister to refuse a visa if the applicant does not satisfy each of the relevant public interest criteria, including criterion (c). It is a statute which says that the making of the decision to refuse the visa depends on the establishment of the following matter, viz., the failure by the applicant to satisfy that criterion. It is thus s. 5(3)(a) rather than s. 5(3)(b) the Administrative Decisions (Judicial Review) Act that is here relevant.
In Hand v Hell's Angels Motorcycle Club Inc. (1991) 25 ALD 667, this Court considered criterion (c) in regulation 2. The trial judge had granted an injunction restraining the Minister for Immigration from taking into account, in deciding whether visa applicants satisfied this particular criterion, a letter written to those applicants by one Joseph, an officer of the Department. The applicants were all American members of the Hell's Angels Motorcycle Club who sought the visas to attend the "World Run" meeting of the Club to be held in Melbourne. The Joseph letter was said, on behalf of the appellant Minister, to summarise the information obtained by the Department from law enforcement agencies concerning the activities of the Hell's Angels Motorcycle Club. Its purpose was to draw each applicant's attention to this information, which Mr. Joseph intended to put before the Minister, as information relevant to criterion (c), and to give each applicant an opportunity to respond to it. The full text of the letter is set out at pp 681-683 of the report. The Full Court upheld the injunction on the ground that, if the Minister were to take notice of the letter, a decision refusing a visa would be an improper exercise of that power: it would be irrelevant for the Minister to take into account the information in the Joseph letter concerning criterion (c) because the information was insufficient to support a positive prediction by the Minister that any individual visa applicant was likely to become involved in activities of the kind described in criterion (c).
But there are passages in the judgment which are of particular relevance to the nature of the Minister's task in considering whether Mr. Irving satisfied criterion (c), which are in turn of relevance in deciding whether review of that decision is open under s. (5)(1)(h) and (3)(a). The Court, at 671, referred to what was said in the Peko-Wallsend case to the effect that the factors which a decision maker is bound to consider in making a decision are determined by construction of the statute conferring the discretion to make that decision. The Court then said, at 672:

"It must be borne in mind that the present case does not squarely come within the principles in the Peko-Wallsend case because the application of the 'public interest criteria' defined by regulation 2 requires only the making of findings of fact, not the exercise of a discretion. ... To determine whether material is relevant or irrelevant it is of course necessary to determine the ambit of the issue to which the material is assessed to be relevant. Here, the issues are defined by the two applicable public interest criteria, namely, those in paras. (a) and (c) of reg 2(1) of the Regulations. The first is whether the present fact of good character exists, the second is whether a person is predicted as likely to do certain things. ... Paragraph (c) of the defined 'public interest criteria' is much narrower than para. (a). It too involves a factual assessment. It involves a determination as to the 'likely' behaviour of a person who is seeking to enter, or to remain in, Australia under a visa or an entry permit. ..."

The Court also said, at p 675, that the decision for the Minister with respect to criterion (c) "involves a positive satisfaction on the part of the decision-maker about a likelihood".
The Court thus avoided the complexities in the wording of criterion (c) and took a broad common-sense approach to its interpretation. The Court held that the question for the Minister whether an applicant satisfies that criterion requires only the making of findings of fact as to the likelihood of the visa applicant becoming involved in disruptive activities. An ultimate finding that a visa applicant is or is not likely to become involved in such activities is therefore "a particular matter" within s. 5(3)(a), the establishment of which is essential before a decision to refuse or grant a visa can be made.
The question for decision is thus whether there was any evidence or other material before the Minister from which he could reasonably be satisfied, as he said he was, 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.
I have referred to the Controversial Visitors Policy. Where a person to whom this policy is applicable seeks a visa, paragraphs 9.2.1 and 9.2.2 of the Policy indicate that the Department of Foreign Affairs and Trade and the Department of the Prime Minister and Cabinet "and any other relevant agencies" will make a considered assessment of the case for the assistance of the Minister. That that procedure was followed here appears from Mr. Parker's minute, the document that was put before the Minister and which summarised the available material and the issues for his consideration.
Mr. Parker recorded the advice of the Department of the Prime Minister and Cabinet that "there would appear to be more than sufficient grounds for refusing a visa if that were the Minister's inclination". However, it appears from an examination of Exhibit "1" that nowhere in the material before the Minister were those grounds identified. That the Minister had the reassurance of that Department that there were good grounds, not however disclosed to him, that would justify the Minister refusing the visa if he were so inclined cannot amount to evidence or other material sufficient to support the Minister's decision. For the Minister to accept and act on such an unexplained reassurance would be tantamount to letting that Department decide whether a visa should be granted or refused, when s. 24(3) and (7) cast the obligation to make that decision on him.
The Department of Foreign Affairs and Trade advised that "there are no foreign policy grounds for recommending against visa issue" to Mr. Irving: see Policy, paragraph 9.3.3. ASIO, a "relevant agency" within Policy (paragraph 9.2.2) advised that "although the visit has the potential to be controversial, ASIO has no objection to visa issue". ASIO's functions include advising the Minister for Immigration on matters relating to security, insofar as those matters are relevant to his Ministerial functions and responsibilities: s. 17(1)(c) the Australian Security Intelligence Organisation Act 1979. "Security" in this context means, among other things, the protection of the Commonwealth and the people of the Commonwealth and the States and Territories from the "promotion of communal violence". This last expression means "activities that are directed to promoting violence between different groups or persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth". See the definitions in s. 4 of that Act.
The Department of Immigration's Ethnic Affairs Section generated two minutes which were included in the material which Mr. Parker placed before the Minister. Mr. Monk of this Section considered how the amendments proposed, but not yet in force, to the Crimes Act 1914 and to the Racial Discrimination Act 1975, which would make racial vilification unlawful and which are contained in the Racial Discrimination Legislation Amendment Bill 1992, might apply to Mr. Irving's proposed activities in Australia. Mr. Monk said that he did not think Mr. Irving's activities would be likely to infringe these proposed statutory provisions. He concluded:

"As far as I know, there is nothing evident to warrant an apprehension that Mr. Irving would go so far as publicly and intentionally to stir up racially offensive hatred, or fear of violence."

Mr. Hardie of this same Section agreed with Mr. Monk's view: in the course of commenting in his own minute on claims by the Australia/Israel Review that Mr. Irving "will contravene Australian anti-racism laws if he comes to Australia on a speaking tour", he observed:

"That claim seems questionable in view of what we know of Irving's mode of discourse. Ethnic Affairs Policy and Project Section has closely monitored the development of the Commonwealth legislation on racial vilification and incitement to racial hatred; it seems to us that Irving's statements as an historian on the Holocaust and associated topics would not render him liable to proposed Commonwealth legislation, nor to the criminal provisions of similar State laws."

Mr. Hardie said, in relation to community reaction to Mr. Irving's presence in Australia:

"David Irving's statements about aspects of the Holocaust are deeply offensive to the Jewish community and to many non-Jews. Peak Jewish organisations have committed themselves publicly to opposing his proposed visit. Although a prominent member of the Arab community in Australia is reported to have claimed that the Holocaust is a Zionist myth, there are no identifiable ethnic community interests publicly supporting Irving's entry. Nevertheless, despite the strength of community opposition to the proposed visit, I do not believe that community opinion should be the basis for deciding this application. ..."

He concluded:

"Mr. Irving's proposed visit needs to be distinguished from those of other controversial visitors in that he 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 are not clearly applicable to his case unless it can be shown that his visit would be likely to encourage violent neo-nazism."

In the latter regard, he commented to his superior:

"If admitted to Australia Irving would be highly likely to attract public controversy, and there would be heated confrontations with persons outraged by his statements or perceived stance on the Holocaust. However, this could hardly be classed as a 'law and order problem', as per the guidelines on controversial visitors.

The Australia/Israel Review has implied that, in some way, Irving has supported and encouraged brawling, neo-nazi lumpen thugs (see attached). 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."

No expert advice of the kind Mr. Hardie recommended might be sought is included in Exhibit "1". It can therefore be inferred either that expert advice was not sought or that, since it would clearly fall within ASIO's charter to provide such advice, ASIO undertook the task and reached the conclusion I have already referred to.
The learned primary judge referred to what Mr. Parker had to say about representations having been made, mainly from the Jewish community in Australia, urging the Minister to refuse permission for Mr. Irving to enter Australia, because his visits to other countries have incited racial disharmony, especially anti-Semitic acts of violence. His Honour here observed "that there was before the Minister no independent or specific evidence of acts of violence relating to Mr. Irving's activities".
The Minister knew that Mr. Irving's opinions have long been disseminated in Australia through his books, which are "freely available" here, according to what he said in his letter of 8 March, 1993. The Minister did not suggest, and there is no material in Exhibit "1" to suggest, that this has caused any disruption within the community.
The Minister must also have been well aware that Mr. Irving had made two prior visits to Australia, when he came to make the decision now challenged and also aware that Mr. Irving asserted he did not on either occasion break any Australian laws. Mr. Irving refers to all this in the copy of his press release of 3 December, 1992 which he sent to the Australian High Commission under cover of his letter of 28 December, 1992 and in the letter he wrote personally to the Minister on 6 January, 1993. There is nothing in Exhibit "1" that contradicts what Mr. Irving there said. His Honour held, in reliance on Minister for Aboriginal Affairs v Peko-Walsend Ltd. (1986) 162 CLR 24, that the Minister, being only "concerned with a potential for conflict amounting to disruption indicated by the current circumstances and likely response to Mr. Irving's visit", was not bound to have regard to the circumstances of these previous visits. But in view of the nature of the factual assessment that the Minister had to make in deciding whether or not Mr. Irving satisfied criterion (c), a matter to which I have already referred, what occurred in the course of Mr. Irving's two previous quite recent "lecture tours" of Australia is a matter of direct relevance to the question for determination by the Minister. He was, in my opinion, bound to take those circumstances into account. However, there is, as his Honour found, no evidence establishing that the Minister failed to do that. Mr. Irving also deals with his two previous visits to Australia - the one in March 1986, the other in September-October 1987 - in an affidavit admitted in evidence at first instance.He said both visits were for the same purpose for which he seeks the visa now in question, namely, to promote his books and conduct media interviews. He also said:

"On both my previous visits I conducted media interviews, undertook speaking engagements, and promoted my books generally. At no time did I cause, or incite, or attempt to incite any breaches of public order, or racial intimidation or discrimination, nor was I ever accused of doing so. My visits were totally peaceful with enthusiastic media (television, radio, newspaper, Jana Wendt and Hinch etc.) and public participation. I spoke to large student audiences in several universities including Murdoch (Perth), Melbourne, Sydney and Wollongong. There was not one placard to be seen, although there was at times vigorous debate conducted through phone-in, readers' letters and the like. I did not and indeed have never been involved in neo-nazi demonstrations or associations."

The Minister did not attempt to contradict this evidence at the hearing. The inference must be that Mr. Irving gave an accurate account of what occurred on his previous visits.
Questions as to the weight that should be given to material relevant to the decision the Minister has to make are solely for the Minister: they are not questions for the Court that is asked to review the Minister's decision. But it could be expected, in view of this mass of material that points to a conclusion that Mr. Irving could satisfy criterion (c), that there was a substantial body of material before the Minister pointing the other way that led him to make his decision against the grant of the visa.
This was not, however, the case. We do not know what was the material which led the Minister to the conclusion he expressed in his letter of 8 March, 1993: he did not expose his reasons for reaching that view. The learned primary judge could identify only two possible evidentiary supports for the Minister's decision. His Honour, quoting from the Minister's letter of 8 March, 1993, said:

"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 oppose 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 (the Minister) 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."

The material before his Honour, to which I have referred at page 3, shows that he was in error when he said that Mr. Irving had not sought reasons from the Minister for his decision. Moreover, the statement by his Honour that the evidence was incomplete is also erroneous: Exhibit "1" is described in the index to the appeal book as "bundle of documents before the Respondent at the time of making decision". When tendering it in the proceedings before his Honour, counsel for the Minister said that he was instructed that the bundle of documents which became Exhibit "1" was all the material that was before the Minister when he made his decision to refuse Mr. Irving a visa. His Honour had everything that the Minister had.
His Honour considered that one possible basis for the Minister's conclusion that Mr. Irving's activities in relation to the promotion of his books would have been disruptive to the Australian community or to a group within it could be found in the assessment he thought it was arguable that the Minister had made that there would be conflict between supporters and opponents of Mr. Irving's visit. That there was evidence before the Minister that Mr. Irving's presence would provoke vigorous opposition and evidence that there was also support for his visit does not, without more, amount to material sufficient to justify any view that there might be conflict between Mr. Irving's supporters and opponents and thus ground for rejecting the visa application because of Mr. Irving's inability to satisfy criterion (c). Before this assessment could be justified, there would, at the very least, have to be material indicating both the nature of the opposition to and support for Mr. Irving and that that was such as to create a risk of conflict. Since everything that was before the Minister was before the learned primary judge, the matters that the Minister described in his letter of 8 March, 1993 as pointing to "vigorous opposition" to Mr. Irving's entry and the material upon which the Minister concluded that Mr. Irving's visit had supporters can be identified and evaluated to see if the attack on the decision in reliance on s. 5(1)(h) is well-founded. The only material as to the nature of the opposition in Australia to Mr. Irving's visit comprised what the various public officials had to say in Exhibit "1" about the visit being controversial and about there being community opposition to it, including the commitment by peak Jewish organisations to publicly oppose it. There was no material suggesting that any of those opposing Mr. Irving's visit were likely themselves to cause conflict within the community because of the way they intended to demonstrate their opposition to his presence here. So far as the nature of the support for his visit is concerned, the material indicated that it came from persons interested more in free speech considerations than in endorsing Mr. Irving's views. There was no material before the Minister suggesting that supporters of Mr. Irving would themselves provoke conflict, apart from the comment by Mr. Parker in his minute that forms part of Exhibit "1" in which he noted that representations had been made, mainly from the Jewish community in Australia, against Mr. Irving being allowed entry "because his visits to other countries have incited racial disharmony, especially anti-Semitic acts of violence" and apart from allegations in the issue of the Australia/Israel Review for 3-16 November, 1992.
Of these representations, his Honour observed, correctly in my opinion, that "there was before the Minister no independent or specific evidence of acts of violence relating to Mr. Irving's activities". That assertions in the general terms mentioned by Mr. Parker in his minute were made by various community representatives cannot, in my view, by themselves constitute material from which the Minister "could reasonably be satisfied" that Mr. Irving's presence here is likely to give rise to disruptive activities. There would, at the very least, have to be information, either from the people making those assertions or from other sources, that suggested that his visit would be likely to produce similar responses here; there would, for example, have to be information throwing light on what occurred overseas that was sufficient to suggest the likelihood of a similar situation arising here.
If someone is prepared to make allegations of matters discreditable to a visa applicant and that, without more, can constitute material reasonably sufficient to satisfy the Minister that the applicant does not meet the requirements of the regulations entitling him to enter Australia, the expression in the Controversial Visitors Policy of the intent of the legislative scheme would be very much a token acknowledgment only of the freedom of debate that is said to be acceptable in a democratic society such as this.
As to the allegations in the issue of the Australia/Israel Review to which I have referred, the learned primary judge did not find any support in them for the Minister's determination. These allegations are not capable of amounting to material sufficient to justify an assessment by the Minister of the likelihood of conflict arising in the wake of Mr. Irving's entry to Australia, for the same lack of confirmatory information that prevents the community representations I have referred to being capable of supporting the Minister's decision. Mr. Hardie, in his minute, which is included in Exhibit "1", I think correctly assessed the relevance of the Review allegations when he said:

"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."

As Mr. Hardie suggested, the allegations warranted investigation, but in the absence of information confirming that they might have substance, the allegations by themselves were not enough to justify a conclusion adverse to Mr. Irving.
There may be circumstances in which media comment might be sufficient to justify the Minister in refusing a person entry to Australia. The Minister has to make an assessment whether the applicant's presence in Australia will lead to community disruption. The likelihood of that occurring may depend just as much on the perceptions people here have of the applicant and his opinions as it does on the applicant's real attitudes and views. The way the media depicts such a person may be a guide, unfair though it will be, if inaccurate, to the reaction by people here to his presence. But the Review article, which deals only with events said to have occurred overseas, does not provide any foundation for a conclusion that the likely reaction of some people in Australia to Mr. Irving's presence would be productive of conflict. And, insofar as the Review article refers to what has occurred overseas, it could not be acted upon by the Minister without some confirmatory details of the kind I have said are necessary before the community representations Mr. Parker referred to could be acted on by the Minister.
In the Hell's Angels case, it is apparent from what was said at 675 that the Court held that the information in the Joseph letter could not justify a decision adverse to the applicants only because it was insufficient to enable any conclusion to be formed as to the likely behaviour of particular applicants and not because of the hearsay nature of that information or because of its generality. Those were considerations that went only to weight. The information there in question, in contrast to the allegations in the Review article, was however identified by a Departmental official as being information received by the Department from "law enforcement authorities in Australia"; moreover, while the information contained a number of general assertions about the Hell's Angels Club, each assertion was supported by detailed material.
The second basis upon which the learned primary judge considered the Minister's determination adverse to Mr. Irving might be justified was that Mr. Irving himself provided the Minister with enough material for that purpose. To find that Mr. Irving's own statements may have provided evidence sufficient to prevent an attack on the Minister's decision under s. 5(1)(h) succeeding involves in my opinion a misapprehension of what Mr. Irving said. The only part of Mr. Irving's letter of 29 September, 1992 of possible relevance to the issues the Minister had to decide in considering whether to grant a visa or not is as follows:

"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."

This letter was sent by Mr. Irving in reply to a reader's letter published in the Australian Jewish News, that was not before the Minister. All that this passage in his letter could be said to show is Mr. Irving's opinion as to what the result would be if what he calls "the organised Jewish community" were to try to suppress debate in Australia in the way in which he asserted members of the Jewish communities in Britain and North America had acted. But there was nothing before the Minister to suggest that Mr. Irving had opponents in the Jewish community in Australia who would behave violently in demonstrating their opposition to his visit here. This was the only statement by Mr. Irving that his Honour identified as sufficient to support the decision. The press release prepared by Mr. Irving on 3 December, 1992, a copy of which was included in Exhibit "1", contains the following:

"... '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.' ..."

All that predicts is (adopting the wording of paragraph 9.1.2 of the Controversial Visitor's Policy) "the sort of vigorous or controversial debate which may take place in a democratic society (and which) is not sufficient reason to refuse" a controversial visitor a visa. In his letter of 14 December, 1992 to the editor of "The Age", in reply to a letter published in that newspaper on 12 December, which also was not before the Minister, Mr. Irving wrote:

"I challenge your correspondent Isi Leibler (12/12) to justify his odious claim that I "incite the gullible to racist violence". Can he produce one sentence from a book, article, lecture or speech by myself which would justify this ugly allegation? ..."

For Mr. Irving to repeat such an allegation solely in order to deny it cannot provide any foundation, let alone a reasonable foundation, for the Minister to accept the allegation as justification for refusing the visa.
I have referred to all the statements by Mr. Irving that were before the Minister which might be thought to have some possible relevance to there being material before him to justify his decision. For the reasons given, none of them can constitute material or evidence sufficient for that purpose.
In my opinion, the challenge to the Minister's decision based on the absence of any material sufficient to support it is made out.

The "Natural Justice" Point
60. If I am wrong in thinking that what Mr. Irving himself had to say, or what Mr. Parker recorded about the representations made to the effect that Mr. Irving should be refused entry or what is alleged against Mr. Irving in the article on the Australia/Israel Review is insufficient to justify the Minister's decision, the question then arises whether the Minister's failure to give Mr. Irving an opportunity to comment on these matters amounts to a breach of the rules of natural justice within s. 5(1)(a) sufficient of itself to require the review of the decision.

It was not disputed that the nature of the power exercised by the Minister under s. 24 was such as to oblige him to observe appropriate requirements of natural justice. A fundamental requirement applicable here is that Mr. Irving was entitled to know the case against him and to be given an opportunity of replying to it. Kioa v West (1985) 159 CLR 550 at 582. There would, however, be no denial of natural justice if, without notice to the applicant, the Minister decided to refuse the visa in reliance on information provided by the applicant himself. Kioa v West, supra, at 587 and Sinnathamby v Minister for Immigration (1986) 66 ALR 502 at 506 and 513.
But the position is different if the Minister had before him information obtained from a source other than the applicant himself which touched on the personal circumstances of the applicant and which was not dealt with by the applicant in the material he put before the Minister. There would be a denial of natural justice, in my opinion, if the Minister refused a visa in reliance upon that material if it was adverse to the applicant, credible and both relevant and objectively significant to the decision to be made, unless he first gave the applicant a proper opportunity to comment upon it. Cf. Kioa v West at 587, per Mason J and at 628, per Brennan J and Minister for Immigration v Kumar and Govind (Davies, Foster and Hill JJ, unreported, 31 May, 1990), per Foster and Hill JJ.
In Kumar and Govind, Hill J also observed:

"It is of course not to the point in determining whether a matter is required to be put to a person that that person may ultimately have no answer to it. It is the failure to give the person the opportunity to be heard that constitutes the breach of procedural fairness, not the question whether the person does in fact have an answer to the adverse matter which might affect the decision."

The nub of the assertion in the representations against Mr. Irving's visit which Mr. Parker records in his minute is not that Mr. Irving by his own behaviour in other countries incited racial disharmony but rather that, quite apart from his own conduct, the mere fact of his visits to other countries was sufficient to incite racial disharmony there. It is clear that Mr. Irving was aware of allegations that, by his own conduct, he incited racist violence: he denies such assertions in his letter to the Minister of 6 January, in his press release of 3 December, 1992 which he forwarded to the Minister and in his letter of 14 December, 1992 to the editor of "The Age" newspaper, which was also before the Minister. But nowhere in the material which he placed before the Minister did he deal with the separate allegation that his mere presence in a country, quite apart from his own personal activities, was sufficient to generate racial disharmony. If there were credible material before the Minister to that effect, it would be both relevant and significant to the decision he had to make. A failure of natural justice sufficient to require the review of the Minister's decision would exist even if Mr. Irving might not have a good answer to it, since there is nothing to suggest that Mr. Irving was aware of that particular allegation. But in any event, it is apparent from what he says in paragraphs 20 and 21 of his affidavit of 26 February, 1993 that there is material upon which Mr. Irving could have relied in answer to this particular allegation, if he had been aware of the need to put it before the Minister.
The allegations in the article in the Australia/Israel Review, on the assumption that they constituted credible information, were also relevant and significant to the decision to be made by the Minister. As to the allegations in this article that Mr. Irving had been convicted of criminal offences in Germany and had been deported from Canada, Mr. Irving was well aware that the Minister might have regard to those matters. He put material before the Minister relating to both. In any event, those matters were not relied on by the Minister to justify Mr. Irving's denial of a visa. It seems that Mr. Irving was also aware of some of the other allegations in this article since they appear to have been made in an earlier article of 25 September in the Australian Jewish News: see Mr. Irving's letter of 29 September, 1992 and his denials of the allegations that he was banned from entering Germany, Austria, Italy and South Africa. However, he denies that he was aware of the later article and, in particular, the allegation therein contained concerning his being an agitator who supported neo-Nazis and concerning his having attracted the adulatory support of brawling street thugs in Germany. Mr. Parker regarded this particular allegation as of sufficient potential significance to the decision the Minister had to make to suggest that the Minister seek expert advice on it. Mr. Irving says he only became aware of this particular article as a result of the discovery process in the present proceedings. There was no challenge to this. He sets out, at some length, in paragraph 8 of his second affidavit read before French J his reasons for denying the allegation.
His Honour, however, held that Mr. Irving was not denied natural justice. He said:

"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."

This is in my view not a sufficient basis upon which the decision here in question can be shielded from challenge on the ground of a denial of natural justice. There were, in the material before the Minister, at least two specific matters prejudicial to Mr. Irving, one in Mr. Parker's minute and the other in the article in the Australia/Israel Review, both of which came from sources other than Mr. Irving himself which were not in fact dealt with by Mr. Irving in the material he put before the Minister. If, contrary to my primary view, each constitutes credible information, it was clearly relevant and significant to the decision the Minister had to make, particularly in view of the paucity of other material adverse to Mr. Irving that was available to the Minister. There is no ground for inferring that Mr. Irving knew of those considerations but deliberately refrained from dealing with them.
In my view, this is therefore a clear case of the Minister denying natural justice to Mr. Irving by failing to alert him to material prejudicial to his claim for a visa which the Minister may well have taken into account in denying the visa. That Mr. Irving may have been aware of some of the allegations contained in the Review article and that he may have made an answer to those allegations he knew of does not mean that the battle lines were drawn so clearly as to leave him without a remedy when the Minister may well have taken into account other quite specific allegations prejudicial to him, to which Mr. Irving says, in the material before his Honour, he could have made an answer, if only he had known that the Minister might have regard to those allegations.

The "Bias" Point
69. The only other ground of appeal with which it is necessary to deal is that which in effect asserts that the appellant was denied the opportunity to seek a review of the Minister's decision on the ground that he exercised his powers under the Act improperly and under the influence of bias against the appellant. The appellant says he was denied this opportunity as a result of the learned primary judge's ruling against the admissibility of an article that appeared in the 12 February, 1993 issue of the Australian Jewish News. This was a few days only after the Minister made his decision on 8 February, 1993. The article attributed to the Minister a comment apparently explanatory of his decision to refuse the visa.

The article was unsuccessfully tendered as evidence of what was said to be the Minister's state of mind and thus as evidence of his true reason for rejecting the visa application.
In my view, the tender of this newspaper article was rightly rejected. It is true that where an allegation is made to a person in circumstances in which he could reasonably be expected to answer it, a failure to do so may provide evidence that the person admitted the truth of the allegation. But insofar as the article records a refusal on behalf of the Minister to confirm or deny what was put to him, that provides no evidence that the Minister admitted the truth of what was alleged. Nor, in the absence of a proper foundation for a finding that he accepted what was put to him, can it provide any evidence of what his state of mind was when he decided to refuse the visa application. There are numerous reasons why a person may decline to confirm or deny the correctness of an assertion put to him by a media reporter, all inconsistent with the inference that a person is acknowledging its correctness. Even if the assertion is entirely without foundation, the inquirer may make that sort of response in the expectation that it may cause the reporter or his editor not to publish anything about the matter for want of a sufficient foundation for a story or because he hopes that that will best ensure public controversy is not created or, if it already exists, is not exacerbated.
In my opinion, the appeal should be allowed and the matter remitted to the respondent to make a decision according to law on Mr. Irving's application for a visa.

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Citations

Irving, D.J.C. v. Minister of State for Immigration, Local Government & Ethnic Affairs [1993] FCA 646 ((1993) 44 FCR 540)

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[1993] FCA 646

16 SEPTEMBER 1993