AUSTRALIAN HIGH COMMISSION
Branch, Australia House, Strand, London WC2B 4LA
Fax 020 7465 8218
08 January 2003
Dear Mr Irving
On 17 January 2002, you were informed that the Minister for Immigration and Multicultural and Indigenous Affairs intended to examine whether there were grounds to refuse your application for a visa under section 501 of the Migration Act 1958 (the Act).
You responded in writing dated 4 March 2002. Your comments were carefully considered and taken into account. The Minister for Immigration and Multicultural and Indigenous Affairs, the Honourable Philip Ruddock, has after exercising his discretion, decided to refuse the grant of the visa to you pursuant to s 501(1) of the Act. The particular grounds under which you do not pass the Character Test are s501 (6)(c)(i)&(ii) of the Act.
Since your application for a Class TR (subclass 676) visa has been refused:
If you have made another visa application prior to the date of this Notice that has neither been granted nor refused, and that visa is not a protection visa or one specified in the regulations for the purpose of s 501 F(2) of the Act, then that application is taken to be refused.
I enclose with this Notice a copy of the decision record that sets out the reasons for the decision (other than non disclosable information).
Please note, this decision is not reviewable by the Administrative Appeals Tribunal.
DECISION RECORD FOR REFUSAL UNDER SECTION 501 OF THE MIGRATION ACT 1958
PART A: PERSONAL & VISA DETAILS
1. Personal particulars of visa appplicant
2. Immigration history of visa applicant (If any)
Date of visa application: 28 November 2001
PART B: CONSIDERATION OF VISA REFUSAL
Grounds for refusal:
3 The relevant grounds for refusal of Mr Irving's subclass 676 (tourist) visa are:
(6) For the purposes of this section, a person does not pass the character test if:(a) ...
Evidence of grounds for refusal:
4 Departmental files OPF96/95128 and OPF97/95198 contain evidence of Mr Irving's past and present criminal conduct and past and present general conduct.
PART C: ASSESSMENT FOR REFUSAL
5 The Act contains a power to refuse a visa on the grounds that the Minister or his delegate suspects that the visa applicant does not pass the character test and the visa applicant is unable to satisfy the Minister or his delegate that they pass the character test.
6 The character test is defined by section 501(6) of the Act, as follows:
(6) For the purposes of this section, a person does not pass the character test if:
Findings on Character
501(6)(c)(i) - the person's past and present criminal conduct:
7 On 5 May 1992 Mr Irving was convicted for 'defaming the memory of the dead', contrary to s.189 of the Criminal Code of the Federal Republic of Germany. He was fined DM10,000. In January 1993 the State Court in Munich dismissed Mr Irving's appeal against the conviction and increased the fine to DM30,000. Details are at attachment C.
8 On 11 February 1994 a British High Court judge found Mr Irving to be in contempt of the High Court and sentenced him to three months imprisonment. On 21 February 1994 a second British High Court judge did not accept explanations provided by Mr Irving in his affidavit submitted to purge the earlier contempt of the High Court. However, the judge ordered Mr Irving be released from prison provided certain undertakings were agreed to. Details are at attachment D.
501(6)(c)(ii) - the person's past and present general conduct:
9 On 9 October 1992 Mr Irving was notified that if he entered Canada he would be in contravention of the Canadian Immigration Act. Contrary to this warning, Mr Irving entered Canada. At the subsequent inquiry, an Immigration Adjudicator issued Mr Irving a Notice of Departure to leave Canada by midnight i November 1992. Mr Irving did not depart Canada. A further inquiry was held, during which Mr Irving was found to have lied on oath before an Immigration Adjudicator. On 13 November 1992 Mr Irving was detained and removed from Canada. Details are at attachment E.
10 Mr Irving's activities in the Federal Republic of Germany over a decade, culminated in his expulsion on 9 November 1993. The German Government viewed his presence in Germany as infringing on 'public security' and 'public order'. Details are at attachment F.
11 In May 1994 the then Minister of State for Immigration, Local Government and Ethnic Affairs refused two visa applications by Mr Irving. In 1995 Mr Irving appealed the Minister's decision. The Federal Court dismissed the appeal. In 1996 the Full Federal Court dismissed Mr Irving's subsequent appeal and costs of $35,140 were awarded against Mr Irving. No effort has been made concerning repayment of this debt to the Australian Government. Details are at attachment G.
12 Based on the above information it is open to you to find that Mr Irving does not pass the character test on account of his past and present criminal conduct, and his past and present general conduct.
PART D: DISCRETION
13 If you are satisfied that Mr Irving does not pass the character test for the purpose of section 501 of the Act, you must then consider the exercise of your discretion not to refuse the grant of the visa. You have issued directions under s499 of the Act to guide delegates and the AAT in the exercise of that discretion. It is clear from a number of decisions of the Federal Court, that when you decide a case personally, you are not bound by your s499 Directions. In making a decision on this case it is open to you to be guided by the factors set out in the Direction. However, in balancing the relevant factors, you are free to place whatever weight you regard as appropriate on those factors.
14 On 17 January 2002 Mr Irving was notified by letter of the intention to refuse the grant of a visa to him under s501 of the Act. The refusal ground was set out in the notice and he was invited to submit any comment that he thought relevant to the consideration of the issue of visa refusal. On 4 March 2002 Mr Irving responded to this notice. His comments have been included in this record where relevant.
1. The Primary Considerations:
15 In making a decision whether to refuse the visa the following considerations may be taken into account:
Protection of the Australian Community
(a) seriousness and nature of the conduct:
1992 criminal conviction in Germany
16 In his submission of 3 March 2002, Mr Irving states that "the one alleged offence was not severe, even under German law".
17 In 1992 Mr Irving was convicted of an offence that was in violation of s.189 of the Criminal Code of the Federal Republic of Germany. The offence, 'defaming the memory of the dead', is punishable under German law by up to 2 years imprisonment or with a fine. Mr Irving was fined DM10,000, which following dismissal of his appeal was increased to DM30,000.
18 Whilst Mr Irving states that the offence is "not severe", the offence contravenes Germany's Criminal Code and therefore would appear to be deemed a serious offence. Furthermore, it was for this sort of conduct that Mr Irving was subsequently expelled from Germany.
19 In his submission of 3 March 2002 Mr Irving declares "I had therefore spoken the truth, as is my wont". Contained in the submission are assertions justifying the statement which saw him contravene German Criminal Code. Mr Irving submits:
"in January 1995 the present Polish authorities conceded to a leading French news magazine that the building in question at Auschwitz, the "gas chamber" that is shown to tourists, was in fact erected in 1948, three years after the war ended..."
20 However, it is not the position of this submission to analyse Mr Irving's theories. The relevant issue is that Mr Irving has a criminal conviction in Germany.
21 It is open to you to surmise that Mr Irving was aware that his comments and conduct had the potential of violating German law. The incidents outlined below, some of which occurred after his conviction, are contained in Mr Irving's German expulsion order of 9 November 1993:
22 In his submission dated 3 March 2002 Mr Irving further demonstrates his awareness of the offence for which he was convicted through the statement:
"Germany had enacted a law making it an offence to debunk any aspect of the Holocaust. I consider however it is my duty as an historian to write what I find to be true, regardless of political expediencies."
23 Mr Irving submits that it is implied in the following comment from internal correspondence from the German authorities: "In view of the political background of the trial, I request.. ." that they view the offence as political, not criminal. Furthermore, Mr Irving states: "The central criminal register located in Berlin confirmed to Weinheim on December 9, 1996, three years after the Munich penalty was imposed, that I have no criminal record".
24 The character test treats convictions as demonstrative of a person's conduct against the community and disregard of the laws of a country.
25 In his submission Mr Irving states that:
"it is not a criminal offence to make such a remark in Australia and I have never committed criminal offences while visiting Australia (or any other country),..."
"it is perverse that Australia would consider that every "criminal offence" committed Th a foreign country is an automatic ground for exclusion, particularly when that offence is not known to Australian law."
26 Although 'defaming the memory of the dead' is not a criminal offence in Australia, it is open to you to view the conviction seriously as it demonstrates the applicant's lack of regard for the law in the country in which he was visiting.
1994 contempt of the High Court in Britain
27 On 11 February 1994 Mr Irving was sentenced to three months imprisonment for contempt of the High Court in the United Kingdom. The reason was explained in the verdict of Mr Justice Mitchell, for:
"failing to comply with Mr Justice Morison's order in that he failed to make and serve on the Judgment Creditors' solicitors within 7 days of service of the order on him the affidavit required by Mr Justice Morison."
28 In his submission, Mr Irving asserts: "I was not present during the hearing of the application, and was wholly unaware of it until court officials arrived at my Grosvenor-square home that afternoon to take me away."
29 It is not the intention of this submission to contend the rights and wrongs of Mr Irving's conduct in regard to the case before the British High Court. However, it is open to you to recognise that the three months sentence imposed on Mr Irving demonstrate that the High Court judge deemed his actions to be a serious breach of UK law.
30 On 21 February 1994 Mr Irving sought to purge his earlier contempt and obtain a discharge from prison. Whilst the British High Court judge ordered his release from prison, given certain conditions were met, he found that Mr Irving gave false evidence ,in his affidavit, Mr Justice Mitchell remarked:
"I have not found this an easy decision because I have made it clear more than once during the course of today - and I adhere to the conclusions that I have been forming and expressing - that I am afraid I do not accept the explanations appearing in his [David Irving's] affidavit, that is to say, his explanation to me. "
31 In his submission, Mr Irving points out that:
"it was not of course a finding of "perjury"... Although I had been required to give oral evidence, again on oath, during the application for my release which was heard before Davies J. on February 22, 1994, he made no attempt to question me on the affidavit matters to which he refers, although he had every opportunity to do so while I was in the witness stand... It is therefore not open... to anybody else to put a construction of perjury or giving false evidence on his remarks about my affidavit."
32 It is open to you to conclude that an appropriate body, in this case the British High Court, has decided that the applicant provided false evidence. The provision of false evidence to a court of law is clearly a serious concern.
1992 removal from Canada
33 As summarised in the decision record of Davies, Lee & RD Nicholson JJ of the Federal Court of Australia on 30 July 1996:
". .. in October 1992, Mr Irving was arrested by immigration authorities in Canada and appeared at an immigration hearing. After negotiation, Mr Irving admitted an offence under s.27(2)(g) of the Canadian Immigration Act. A departure notice requiring him to depart Canada by midnight on Sunday, i November 1992 was issued. On Monday, 2 November 1992 Mr Irving was again arrested. At a further hearing, presided over by Immigration Adjudicator Mr K Thompson, Mr Irving gave evidence that he had sought to leave Canada on i November 1992, that he had driven to the United States' end of the Rainbow Bridge, which ran between Canada and the United States, but had been returned by the American immigration officials notwithstanding he held a valid visa for multiple entry in the United States. That evidence was rejected by Mr Thompson... Mr Thompson then ordered that Mr Irving be deported from Canada."
34 Although it was found that Mr Irving had lied on oath before a Canadian Immigration Adjudicator, Mr Irving disputes the findings. In his submission he reasons that:
"It later emerged that a low level Canadian immigration investigation official, one Harold Musetescu, who was close to the influential political bodies opposing my lecture tour, had himself requested the US colleagues to delay me and then return me to the Canadian side just after midnight, as a tactic to prevent me complying with the order; Musetescu was later separated from the Canadian immigration service."
35 Whilst this submission includes counter arguments presented by Mr Irving for your consideration, it is open to you to reasonably presume that an appropriate body considered the facts in depth before handing down its judgement. Furthermore the Canadian Federal Court, an adjudicator of law, dismissed Mr Irving's appeal.
36 It is Mr Irving's firm belief that it is not his own conduct which finds him impinging on the laws of the countries he resides in or visits. Instead the laws are used against him to prevent him from speaking publicly on his theories. In his submission, Mr Irving asserts that it is:
"the misguided effort of a small section of the population in each country concerned, for which they are happy to take the full credit. There is no exception to be seen in Australia."
37 It is open to you to conclude that it was found that Mr Irving had lied under oath, and had therefore committed a serious offence for which he was subsequently deported from Canada, by the Canadian authorities and not "Canadian Jewish and leftwing organizations".
1993 expulsion from Federal Republic Germany
38 It is stated, in Mr Irving's German expulsion order of 9 November 1993, that from the early 1980s Mr Irving visited Germany to speak at political functions for the German National Union and National Party of Germany. The list of incidents leading to Mr Irving's expulsion is referred to in the previous table.
39 Mr Irving's presence in Germany was viewed by the authorities as infringing on public security, public order and Germany's interests:
"For years you have been entering the Federal Republic of Germany, to publicise your ideas at functions. These ideas constitute the criminal act of insulting and reviling the memory of the dead. The execution of such criminal acts constitutes regularly the infringement of public security and order."
40 Mr Irving does not dispute that he was expelled from Germany, however he does not accept the seriousness of his actions, responding:
"No comment. A minor official in a Munich municipal body crafted and signed this order, which has nationwide validity. It is a patently political decision. It is illegal under the Helsinki Accords and under European law."
41 It is open to you to conclude that the penalty imposed is an indication of the seriousness of the crime, and it reasonable to conclude that expulsion from Germany clearly demonstrates that the applicant's conduct was considered serious at that time.
Debt to the Commonwealth
42 Mr Irving has a debt to the Australian Government of $35,140.00 for costs incurred when he appealed the 1994 decision of the then Minister to refuse Mr Irving a visa to enter Australia. No action had been taken to resolve this debt.
43 On 25 March 2002 the Department received a letter from Baker Tilly International informing it that Mr Irving had been declared bankrupt.
44 Mr Irving states: "in my view Australia is mature enough to distinguish between real crimes -- e.g., arson, drug-dealing, murder, Nazi genocide, Irish terrorism -- on the one hand, and the "thought crimes" of which author George Orwell warned us."
45 Mr Irving's behaviour demonstrates a defiance and contempt for the laws of some of the countries he visited. His conduct was deemed serious enough by those countries to see him deported and excluded. It is open to you to conclude that viewed in its entirety Mr Irving's conduct was serious.
(b) the likelihood that the conduct may be repeated (inc any recidivism)
46 Under your General Direction No 21 of 2001, it is the Government's view that the person's previous general conduct is highly relevant to assessing the likelihood of an offence and risk of recidivism.
47 Mr Irving was convicted for 'defaming the memory of the dead' in May
1992, removed from Canada in November 1992, excluded from Germany in November 1993 and found to be in contempt of the High Court in February 1994. The last known act for which he was penalised occurred nine years ago.
48 In his submission, Mr Irving declares that he "would not have the slightest hesitation in making the same remark in Germany again, were in not for the absurd law which criminalizes it." He demonstrates little remorse for his actions whilst in Germany and, in fact, continued to conduct himself in the same manner. This recidivism led to his expulsion from Germany.
49 Further, the applicant's overall perception is that he has been wrongly accused, treated and penalised in regard to the offences he has committed. In his submission he quotes the Annual Report of the League for Human Rights of B'nai Brith Canada:
"BRITISH HOLOCAUST denier David Irving attempted to conduct one of his cross-Canada tours in 1992, but thanks in part to League [League of Human Rights of the B'nai Brith Canada] interventions, and excellent cooperation between a number of police agencies and government departments, Irving was arrested and deported.... Australian and South African Jewish communities have used materials provided by the League to lobby their governments for similar treatment of Irving.
Mr Irving goes on to say: "It appears from this that the global attempts to silence me are the misguided effort of a small section of the population in each country concerned, for which they are happy to take the full credit".
50 It is open to you to conclude that Mr Irving's repeated reluctance to accept that he has committed any offences or wrongdoings in the past leads to the conclusion that it is difficult to determine that Mr Irving wouldn't behave similarly whilst in Australia.
(b) general deterrence
51 General deterrence aims to deter other people from committing the same or a similar offence. Whilst the refusal of the visa would underline the seriousness with which the Australian Government views the contravening of migration and criminal law, albeit other countries, it is, however, unlikely that the refusal of a visa to Mr Irving would deter others from behaving similarly.
The Expectations of the Australian Community
52 The expectations of the Australian community are a primary consideration which must be taken into account in exercising my discretion. In this regard, Ministerial Direction No. 21 states that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person.
53 In view of Mr Irving's past conduct, and the overt message contained in his submission that he is unwilling to take responsibility for, or change his behaviour, it is open to you to conclude that it can not be assumed that Mr Irving can be relied on to abide by Australian laws whilst in Australia and that the Australian community would expect the visa application to be refused.
The Best interests of the Child
54 Mr Irving's Australian citizen daughter is over 18 years and therefore this consideration is not applicable.
2. Other Considerations
55 Mr Irving has applied for a short-stay tourist visa. He states the purpose of his proposed visit is to promote his latest book on Churchill.
56 Mr Irving also has an Australia citizen daughter, Beatrice Irving, who resides in Queensland. No representations have been received from his daughter.
3. Other International Obligations
57 No other international obligations appear to be applicable to this case, nor has Mr Irving indicated that such obligations exist.
PART E: DECISION
I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Irving's comments, and have decided that:
Please delete whichever is NOT applicable:
(d) I reasonably suspect that Mr Irving does not pass the character test and Mr Irving has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) OF THE ACT TO REFUSE THE VISA, so I hereby refuse the visa.
Minister for Immigration and Multicultural and Indigenous Affairs