July 30, 1996
FEDERAL COURT OF AUSTRALIA -- GENERAL DIVISION
DAVIES, LEE and R D NICHOLSON JJ
21 March, 30 July 1996 -- Perth
Citizenship 2nd migration -- visa -- Application for business visitor (short stay) visa -- Whether appellant was of 'good character" -- Primarily issue or fact -- Whether "good character" refers to mental and moral qualities of individual -- Whether "good character" refers to reputation and repute -- Interests of public -- Ministerial discretion to waive requirement -- Whether shown by subsequent conduct that appellant had "reformed" -- Meaning of "national security" -- (CTH) Migration Act 1958 s 180A -- (CTH) Migration Regulations 1989 -- (CTH) Migration (1993) Regulations -- (CTH) Administrative Decisions (Judicial Review) Act 1977.
ON 7 DECEMBER 1992 and on 3 June 1993, the appellant applied for a business visitor (short stay) visa under the Migration Act 1958 (Cth) (the Act). On 3 May 1994, the minister refused to grant both applications, on the basis that he was not satisfied that the appellant was a person of good character.
The appellant was an English historian who challenged accepted facts on the genocide of the Jewish race under the Third Reich. In 1992, the appellant was convicted for the offence of defaming the dead to Germany and was subsequently expelled from that country. In 1992 he was deported from Canada for breach of Canada's migration regulations, and was found to have lied on oath by a Canadian adjudicator. In 1994, the appellant was found in contempt of court by the High Court of Justice in London. The High Court also questioned the appellant's veracity. There was a warrant for the appellant's arrest in Austria, and he had been refused entry to Italy and South Africa.
The first application was subject to the Migration Regulations 1989 (the 1989 regulations). The appellant was required to demonstrate that he was "of good character". Regulation 4(l) of the 1989 regulations relevantly provided that a person was to be taken not to be of good character if the applicant was deported from another country or had been excluded from another country in prescribed circumstances. A prescribed circumstance was that the authorities of that country considered the person to be a threat to the national security of the country: reg. 177(d). The minister had a discretion to waive the good character requirement if the minister was satisfied that the applicant had shown by subsequent conduct that he or she had reformed; reg. 143. A critical issue with respect to the first application was whether the appellant had shown by subsequent conduct that he had reformed, and was therefore of good character.
The second application was subject to the Migration (1993) Regulations (the 1993 regulations). Section 180A of the Act, among other things, provided the minister with a discretion to refuse to grant a visa if having regard to a person's past criminal conduct or general conduct, the minister was satisfied that the person was not of good character. One criterion for the class 672 visa was that there was no evidence or insufficient evidence of anything that could have justified the refusal of the visa under s 180A: criterion 4001(2) and (3) in Sch. 4. However, if the minister was satisfied that the refusal, under s 180A, to the grant of a visa was justified, the minister was nonetheless entitled not to exercise the power under s 180A: criterion 4001(4).
Held, dismissing the appeal:
Per Davies and R D Nicholson JJ:
(i) The question whether a person was or was not of good character was an issue of fact, the determination of which was reposed in the minister and his delegates. No error of law was disclosed in the minister's decision. The offences against the laws, the conviction of contempt of court, the orders for deportation and the findings of lack of veracity were matters which the minister was entitled to take into account in his assessment whether or not Mr Irving was a person of "good character". The minister was entitled not to be satisfied that the appellant had shown by subsequent conduct that he had reformed.
(ii) The term "good character" referred in one sense to the mental and moral qualities of a person, and in another sense, it referred to a person's reputation or repute. In the context, "good character" did not refer to reputation and repute as such. However, criminal convictions or the absence of them and character references were likely to be an important source of primary information as to the character of the appellant.
(iii) The appellant was expelled from Germany for reasons of "national security" within the meaning of reg. 177(d) of the 1989 regulations. "National security" was not limited to external matters, but was concerned with matters affecting the country in general.
Per Lee J:
(iv) The words "good character" were to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame of repute of that person in the community. The former was an objective assessment apt to be proved as a fact while the latter was a review of subjective public opinion.
Clearihan v' Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455; Plato Films Ltd v Speidel (1961) AC 1090; Re Davis (1947) 75 CLR 409, considered.
(v) The Act and the regulations were not concerned with infractions or patterns of 25 conduct that showed weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia was only invoked when the non-citizen was a person whose lack of good character was such that it was for the public good to refuse entry. The task for the minister, therefore, was to have regard to the ordinary meaning of the words "good character" as modified by the regulations and to the scope and purpose of the visa sought to be granted and to apply common sense in determining whether the appellant satisfied the criterion.
(vi) With respect to the 1989 regulations, reformation, and therefore, good character, was to be established by a consideration of all subsequent conduct of the application. There were matters in the appellant's subsequent conduct that stood in his favour, but they were not of such weight that it could have been said that the decision that the appellant was not of good character was wholly unreasonable.
(vii) With respect to the 1993 regulations, the conduct of the appellant which resulted in the appellant being found in contempt of court in England and the conviction in Germany of an offence were aspects of the appellant's conduct which the minister was entitled to consider. Singly, each matter would have provided little insight into the inherent qualities of the character of the appellant but in combination they may have enabled a view to be formed that the appellant was not a person of good character. No error of law was disclosed by the minister decision.
(viii) Obiter: The minister might have erred in law if he had taken into account the extent to which the appellant's opinions as a historian were unpopular or controversial, or if he had failed to consider the implied right of the Australian people as a democratic society under the terms of the Constitution to have freedom of communication in matters of public affairs and political discussions. However, no case was sought to be made out by the appellants in these respects.