Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340

FEDERAL COURT OF AUSTRALIA

Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340

MIGRATION – character test – decision of Minister under Migration Act 1958 (Cth) s 501A(2) to set aside non-adverse decision of the Administrative Appeals Tribunal – substantial criminal record – cancellation of visa in national interest – departmental issues paper before Minister – misstatement in issues paper of appellant's criminal record – relevant considerations – whether failure to consider accurate statement of appellant's criminal record constituted jurisdictional error – whether errors so insignificant as could not materially have affected the decision ADMINISTRATIVE LAW – relevant considerations – test stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 – jurisdictional error

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 501A(2)(b) Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) sch 1

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Craig v South Australia (1995) 184 CLR 163 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 applied R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 cited Stead v State Government Insurance Commission (1986) 161 CLR 141 cited Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 cited Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 23 cited Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 184 cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 cited Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 211 ALR 126 considered R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227 referred to Hanks v Minister of Housing and Local Government [1963] 1 QB 999 referred to Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139 distinguished Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453 referred to