Lu, Ex parte - MIMA

The applicants, Mr and Mrs Lu, sought judicial review of a decision by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their application for a protection visa. The applicants, who were citizens of the People's Republic of China, claimed to fear persecution in their home country due to their involvement in the unauthorised practice of religion. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decision-maker had failed to afford procedural fairness to the applicants by not providing them with an opportunity to respond to adverse information that was taken into account in the refusal of their protection visa application. Specifically, the applicants contended that they were not given a chance to comment on information obtained from the Australian Security Intelligence Organisation (ASIO) which, they argued, was material to the assessment of their claims.

The High Court, in a joint judgment, held that the principles of procedural fairness required that a person be given a reasonable opportunity to know the case they have to meet and to present their own case. In this instance, the adverse ASIO information was a significant factor in the refusal of the visa application, and the applicants had not been afforded an opportunity to address it. The Court found that the decision-maker had breached the implied duty of procedural fairness inherent in the Migration Act 1958 (Cth).

The High Court made orders quashing the decision of the Minister and remitting the application for a protection visa to the Minister for reconsideration according to law.