Lu v Minister for Immigration and Multicultural and Indigenous Affairs

The applicant, Lu, sought review of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs, which set aside a decision of the Administrative Appeals Tribunal and cancelled the applicant’s visa under s 501A of the Migration Act 1958 (Cth). The primary legal issue before the court was whether the Minister had the authority to set aside the Tribunal’s decision and cancel the applicant’s visa, and whether the Minister had applied the correct “character test” in doing so. The applicant argued that the Minister lacked power to set aside the Tribunal’s decision as it was not an “original decision” under s 501A of the Act, and that the Minister had applied the wrong character test when reviewing the Tribunal’s decision.

The court found that the Minister did have the authority to set aside the Tribunal’s decision and cancel the applicant’s visa, as the decision fell within the scope of s 501A. The court also found that the Minister had applied the correct character test when reviewing the Tribunal’s decision, despite the applicant’s contention to the contrary. The court held that the transitional provisions in Schedule 1 of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) ensured that the old character test applied to the Tribunal’s review of the Minister’s decision, but that the new character test applied when the Minister reviewed the Tribunal’s decision.

The court dismissed the applicant’s application and ordered that the applicant pay the respondent’s costs. The court found that the Minister had acted within his powers and had applied the correct character test when reviewing the Tribunal’s decision. The applicant’s argument that the Minister lacked power to set aside the Tribunal’s decision was rejected, as was his argument that the Minister had applied the wrong character test.