Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292
Outcome: applied
In his affidavit the applicant appears to argue that in taking into account the nature and severity of the offences for which he was imprisoned and in considering the need to protect the Australian community, the Minister is usurping the role of the court which has the obligation to impose an appropriate sentence. The reference to a Chapter III court is misplaced. The applicant was tried, convicted and sentenced in the District Court of New South Wales which is not a federal court and there is no suggestion that any federal offence was involved. There is ample authority that in cancelling the applicant's visa, the Minister is not imposing any further punishment for the applicant's crimes or exercising judicial power; see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 306; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [44] ; Ex parte Walsh and Johnson; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36 at 95-96. 21 In his submissions in reply the applicant denied that he relied on any argument that s 501 is punitive. He submitted that in purporting to protect the Australian community "from past conduct already dealt with by way of a finding of guilt and sentence of imprisonment" the Minister "offends" the integrity of the courts. According to the applicant a sentence imposed by the court "is an exhaustive statement by the court as to the length of time the community needs protection from the applicant's criminal conduct". This submission must be rejected. It runs counter to the scheme of the Act as found in s 501 and following, in particular s 501(6) , which sets out the various circumstances in which a non-citizen fails the character test. Those circumstances place clear emphasis on criminal conduct (including past criminal conduct) and other behaviour which may pose a threat to the community. As the Full Court observed in Djalic at 310: The authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences. 22 Having discussed some of the relevant authorities the Full Court further observed, at 311: [T]he matters identified in s 501(6) show that the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia. It follows from what we have said that s 501(2) of the Migration Act , on its proper construction, permits the Minister to take into account, in the exercise of his or her discretion, the effect cancellation of the non-citizen's visa will have in protecting the Australian community. Similarly, s 501(2) is sufficiently broad to allow the Minister to take into account his or her assessment of the expectations of the Australian community as to whether or not a non-citizen who commits serious criminal offences should be permitted to remain in the country. 23 I accept the respondent's submission that for the Minister to make a decision in the public interest as to whether a particular non-citizen should be allowed to remain in Australia does not involve any invasion of the proper sphere of the criminal courts.