Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292
Outcome: applied
As to the second submission, the High Court has held that s 501(2) is a valid law with respect to aliens: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Full Court of this Court held, after it had identified the relevant considerations to the exercise of the power in s 501(2), that the section did not infringe or contravene Chapter III of the Constitution . I will not repeat what I said in Pull at [35]-[37]. 38 The other aspect of the applicant's third submission is his assertion made in his written submissions that the Tribunal member failed to give proper and genuine consideration to the relevant consideration of the expectations of the Australian community. There is no doubt that that is a relevant consideration: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (supra); Direction No 21. 39 Paragraph 2.12 of Direction No 21 provides as follows: 'Expectations of the Australian community 2.12 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. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.' 40 The approach of the Tribunal member was to note that the applicant had accumulated an extensive criminal record in a relatively short time. He referred to the arguments put on the applicant's behalf to the effect that the Tribunal should take a broader view of community expectations. It was put to him that if a person had been in Australia for almost 10 years, the community would expect that he would not be 'dumped' on another country and he should be regarded as Australia's problem. It was put to the Tribunal member that the applicant had been punished by imprisonment and should not be further punished by deportation, and even if he were, the visa cancellation process should be completed while he was still in prison. It was put to the Tribunal member that the community would also expect that the applicant would be rewarded for his attempts at rehabilitation and for a reasonable work history before he was sent to prison. It was put to the Tribunal member that evidence of the applicant's personal circumstances was also relevant to any assessment of expectations. The Tribunal member said: 'In part the broader interpretation advocated depends on shifting factors from the community protection and other considerations categories into the process of evaluating community expectations. While the categories laid down in Direction No 21 cannot be regarded as rigid or inflexible, the approach laid down by the Direction is prima facie the one that the Tribunal should follow.'