Belmont v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 667

Federal Court of Australia

Belmont v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 667 Review of: Belmont v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1285

File number(s): NSD 543 of 2023

Judgment of: HORAN J

Date of judgment: 21 June 2024

Catchwords: MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) of the Migration Act 1958 (Cth) – power to revoke cancellation if satisfied that there is another reason why the original decision should be revoked – where evidence before Administrative Appeals Tribunal that applicant had severe substance abuse issues requiring medical treatment – whether claim clearly arose that applicant may face impediments due to health if removed to New Zealand – whether Tribunal failed to have regard to a relevant consideration under para 9.2(1)(a) of Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – whether Tribunal erred by treating s 501CA(4)(b)(ii) as involving an exercise of discretion – whether Tribunal erred by treating para 8.1.1(1)(c) of the Direction as precluding it from having regard to applicant's custodial sentences in considering the nature and seriousness of criminal conduct – held that Tribunal failed to address impediments that the applicant may face as a result of his health if removed from Australia to his home country – application allowed

Legislation: Migration Act 1958 (Cth) ss 501(3A), 501CA

Cases cited: Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315 CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318 Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 El Khoueiry v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 136 El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 247 GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126; 179 ALD 217 Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 450 Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 300 FCR 67 JSMJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653 Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410 Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 70 Okoh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 297 FCR 63 Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1322 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) (2023) 301 FCR 422 RPQB v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1419 WCGD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1419