Cao and Minister for Home Affairs (Migration)

This matter concerned an application by Van Thuc Cao, a Vietnamese national, for review of a decision to refuse his visa application. Mr. Cao first arrived in Australia in 2008 on a student visa. In 2010, he was arrested and subsequently convicted for cultivating a commercial quantity of cannabis, for which he received a custodial sentence. Following his release, he was placed in immigration detention, from which he escaped and remained unlawfully in the community for approximately two years. He later married an Australian citizen and applied for a partner visa. The Minister for Home Affairs (Migration) had previously considered Mr. Cao's character in 2014, when a delegate decided not to exercise the discretion to refuse his bridging visa application under section 501(1) of the *Migration Act 1958* (Cth), despite his criminal history and escape from detention.

The primary legal issue before the court was whether the previous decision in 2014, where a delegate chose not to refuse Mr. Cao's bridging visa application under section 501(1) of the Act, precluded the Tribunal from considering his character in the current visa application. The applicant argued that this prior exercise of discretion, with full knowledge of his criminal conduct and escape, meant that a subsequent refusal on character grounds based on the same conduct would constitute an abuse of process and a form of "double jeopardy." He contended that given his subsequent law-abiding conduct since 2010, the likelihood of future harm was low, and the tolerance for risk should not be less than it was in 2014.

The court affirmed the decision, finding that the applicant's submissions regarding the 2014 decision were not accepted. The court reasoned that the discretion under section 501(1) of the Act is not exhausted by a single exercise. Each visa application requires a fresh consideration of the relevant factors, including character, in accordance with the principles outlined in Direction No. 65. This Direction mandates decision-makers to consider primary considerations such as the protection of the Australian community and other relevant factors, weighing them appropriately. The court acknowledged the applicant's evidence of good character and his efforts to control his temper, as well as the positive statements from his wife's sister and a community member. However, it found that the departure basis weighed only moderately in his favour. The court ultimately concluded that the previous decision in 2014 did not prevent a subsequent assessment of his character in the context of his current visa application.