Section 116 visa cancellation explained

Section 116 of the Migration Act is the general power to cancel a visa, for example where a condition was not complied with. Before using it, the Minister must give written notice and a chance to respond.

The short answer

Section 116 of the Migration Act 1958 is the general power to cancel a visa. The Minister, or a delegate, may cancel if satisfied of one of the grounds listed in the section. Before doing so, section 119 requires written notice with particulars of the grounds. This is the notice people call a NOICC.

The grounds

Section 116(1) lists several grounds. Among them:

the grant was based on a fact that no longer exists, or that never existed
the holder has not complied with a condition of the visa
the holder's presence may be a risk to health, safety or good order
the visa was granted in contravention of the law
grounds prescribed in the regulations
for a student visa, the holder is not (or is likely not to be) a genuine student, or has engaged in conduct not contemplated by the visa

Separate powers in the same section cover identity matters, incorrect information that is not dealt with elsewhere, and sponsorship benefits. Student cases are covered in student visa cancellation for course progress and attendance. Cancellation for giving incorrect information is usually a different section: see section 109.

Limits on the power

Section 117(2) says a permanent visa cannot be cancelled under section 116(1) if the holder is in the migration zone and was immigration cleared on last entering Australia. Other cancellation powers, such as sections 109 and 501, are separate.

For most temporary visas, when the ground is a condition breach, the regulations require the decision-maker to consider certificates about workplace exploitation connected to the breach. In some circumstances a restricted work condition breach cannot be used to cancel at all.

The notice and the response window

The notice must invite you to show within a specified time that the grounds do not exist, or that there is a reason the visa should not be cancelled. For written comments from a holder in Australia, regulation 2.44 sets 5 working days, starting when the holder is notified. For a holder outside Australia it is either 28 days or 5 working days, depending on where the cancellation is being considered. The decision-maker may extend the period by a further 5 working days, but that is a power, not a right.

A parliamentary committee has recommended a longer period of 14 days. The government noted the recommendation and gave no substantive response, and the current regulation still reads 5 working days. Your notice states your actual deadline.

After the decision

A cancellation can be made once you respond, say you do not wish to respond, or the time passes. A written decision must state the ground and, where a review right exists, that the decision can be reviewed by the Administrative Review Tribunal (ART), the time limit, who can apply and where.

Cancellation of the visa of a person in the migration zone is generally reviewable by the ART, with exceptions such as decisions made in immigration clearance, decisions under section 501 and decisions the Minister makes personally. For this kind of review the application is due within 28 days of notification, or 14 days if in immigration detention, and the ART says it has no power to extend the time limit. Whether a particular decision is reviewable is something your letter and an adviser can confirm. See which visa refusals can the ART review and how the 28 days is counted.

Your lawful status also changes when a visa is cancelled: see what happens to your status after a cancellation.

Next step

A section 116 notice can leave only a few working days to respond. A registered migration agent, an Australian lawyer or a free legal service can look at the notice itself. This page sets out the general law only; it is not legal advice or immigration assistance, and it cannot say whether a decision is reviewable or whether anyone is in time. The notice, and any decision letter, state the actual dates and review rights.