Lu v Minister for Immigration and Multicultural Affairs

The case of Lu v Minister for Immigration and Multicultural Affairs concerns the appellant's challenge to the Minister's decision to cancel his visa under sections 501 and 502 of the Migration Act 1958 (Cth). The Federal Court was required to determine whether the Minister could make an order to cancel a visa under these sections when a deportation order had already been made and subsequently set aside by the Tribunal. The appellant argued that the Minister's power to cancel a visa was constrained by the prior deportation process. However, the Full Court had previously ruled that the Minister could exercise the powers under sections 501 and 502 despite the deportation process having been undertaken.

The Court examined the relevant statutory provisions, including sections 200 and 201, which deal with the deportation of non-citizens convicted of crimes, and sections 501 and 502, which relate to the Minister's power to refuse or cancel a visa based on character and national security grounds. The Court noted the differences in the legal consequences of deportation and visa cancellation, with the former involving rights to merits review and the latter involving the cancellation of a visa, also with rights to merits review unless excluded by the Minister.

The Court concluded that the appellant's appeal should be dismissed and that the Minister had the authority to cancel the appellant's visa under sections 501 and 502, notwithstanding the prior deportation order. The Court found that the previous Full Court decision in Minister for Immigration and Multicultural Affairs v Gunner was binding and that the appellant had not successfully distinguished his case from Gunner's. The Court further ordered that the appellant pay the respondent's costs of the appeal.