Gundesen and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Kyle Gundesen (“the applicant”) for review of a decision by a delegate of the Minister for Immigration and Border Protection (“the respondent”) not to revoke the mandatory cancellation of his visa. The applicant, a New Zealand citizen who arrived in Australia as a child, had his visa cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, specifically a sentence of 15 months imprisonment for breaking and entering. The review was heard by Deputy I R Molloy P.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the applicant's visa should be revoked, as contemplated by s 501CA(4)(b)(ii) of the Act. While the Tribunal was bound to find that the applicant did not pass the character test due to his criminal record, the question was whether the circumstances warranted revocation of the cancellation decision.

The Tribunal considered the applicant's extensive criminal history, which spanned over a decade and included a range of offences. However, it also took into account significant mitigating factors, including the applicant's extremely difficult childhood marked by parental neglect, placement in foster care, and periods of homelessness. The Tribunal noted the applicant's diagnosis of Post Traumatic Stress Disorder and his history of substance abuse. Crucially, it considered the applicant's strong ties to Australia, having lived there since infancy and having no connections in New Zealand, as well as the availability of support from his Australian citizen brother. Weighing these factors, the Tribunal found that the protection of the Australian community, while a primary consideration, was outweighed by the compelling personal circumstances and the potential for rehabilitation.

Consequently, the Tribunal set aside the delegate's decision and revoked the original decision to cancel the applicant's visa.