The Minister isn’t often an appellant from an AAT decision. However, when the AAT found that Ms Darnia-Wilson passed the character test despite a foreign conviction it was a “bridge too far”. The decision in Minister v Darnia-Wilson [2022] FCAFC 28 (heard by a full court at first instance) is interesting for 3 reasons:

Reason 1

The law in respect of foreign judgments and the character test was stated by Nicholas J (with whom Moore and Rares JJ agreed) said in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33: “Unlike other provisions of the Act, s 501(7) is not restricted to sentences imposed upon conviction of an offence in Australia. A sentence to imprisonment imposed abroad is clearly within the scope of the provision“.

Reason 2

There was quite a sharp rebuke to the AAT, where at [21] the Court said: “in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152–153 [43] Gleeson CJ, Gummow, Kirby and Hayne JJ affirmed that the judicature exercises “control over administrative interpretation of legislation”. They said (at 153 [43]), in applying what Marshall CJ had held:

An essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers

Ouch!

Reason 3

Because the Tribunal made an error of statutory construction that has consequences beyond this particular case, a declaration was made: “that on its proper construction, s 501(7)(c) applies to a sentence to a term of imprisonment, whether imposed by an Australian or a foreign court“.

Creative commons acknowledgment for the photograph.