Lu v Minister for Immigration and Multicultural and Indigenous Affairs

In the case of Lu v Minister for Immigration and Multicultural and Indigenous Affairs, the appellant, Mr. Lu, contested the decision of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel his visa on character grounds. The primary dispute involved the application of the correct legal test for assessing the appellant's character, specifically whether the Minister applied the old or new character test when reviewing a decision of the Administrative Appeals Tribunal (AAT). The Federal Court of Australia was tasked with determining the validity of the Minister's decision and the correct interpretation of the transitional provisions in the Migration Act 1958.

The central legal issues the court had to resolve were whether the Minister applied the correct legal test in reviewing the AAT's decision and whether the transitional provisions of the Migration Act 1958 mandated the application of the old character test in such circumstances. The appellant argued that the Minister should have applied the same old character test as the AAT, as required by the transitional provisions, whereas the Minister applied the new character test. The court needed to ascertain whether this discrepancy constituted a jurisdictional error.

The court considered the principles set forth by Mason J in Peko-Wallsend and the decision in Ex parte Aala, which informed the understanding of jurisdictional error and the appropriate exercise of judicial review. The court concluded that the Minister's failure to apply the correct character test was indeed a jurisdictional error. The court further determined that the transitional provisions did require the Minister to apply the old character test in reviewing the AAT's decision. As a result, the Minister's decision to cancel the appellant's visa was void and of no legal effect.

The Federal Court of Australia allowed the appeal, set aside the orders of the primary judge, and issued new orders. The court prohibited the Minister from acting on the decision made on 14 March 2002, declared that decision void and of no legal effect, and ordered the Minister to pay the appellant's costs for both the proceeding before the primary judge and the appeal.