Bou and Minister for Immigration and Border Protection (Migration)

This case concerned Mr Bou, a Cambodian citizen whose visa was cancelled by a delegate of the Minister for Immigration and Border Protection on the grounds that he had a substantial criminal record. Mr Bou sought review of this decision by the Administrative Appeals Tribunal, arguing that the delegate had failed to properly exercise the discretion available under section 501(2) of the *Migration Act 1958* (Cth) by not taking into account all relevant circumstances as guided by Ministerial Direction No. 65.

The primary legal issue before the Tribunal was whether the delegate had properly exercised the discretion under section 501(2) of the Act. This required the Tribunal to consider whether Mr Bou passed the character test, and if not, to then apply the considerations outlined in Ministerial Direction No. 65 to determine whether to exercise the discretion to cancel his visa. The Tribunal was mandated to comply with this Direction pursuant to section 499(2A) of the Act.

The Tribunal found that Mr Bou did not pass the character test due to his substantial criminal record, which included multiple terms of imprisonment totalling 12 months or more. In considering the exercise of discretion under section 501(2), the Tribunal weighed various factors, including Mr Bou's criminal history, his lack of memory regarding some offences, his ongoing struggles with anger management and substance abuse, and his limited ties to Cambodia. Countervailing considerations included the impact on his mother and children, and his expressed desire to cease drug use and alcohol consumption. However, the Tribunal ultimately determined that the primary considerations of protecting the Australian community from the risk of further violent conduct and the expectations of the Australian community outweighed these other factors.

Consequently, the Tribunal affirmed the decision to cancel Mr Bou's visa.