Section 116 Migration Act provides the Department with a broad range of visa cancellation powers.
Your visa may be cancelled if you have committed a crime in Australia or have provided incorrect information on your application, among other reasons.
What are the grounds for a section 116 cancellation?
Reasons the Minister may cancel a visa under section 116 include (but are not limited to):
You have provided incorrect information for your current visa
Your circumstances have changed and you are no longer eligible for your visa
Your visa was granted based on a fact or circumstance that did not exist
You have not complied with a condition of your visa
You present a risk to the Australian community
You present a risk to individuals in Australia
In particular, we recommend that you speak to a lawyer if you believe that you have provided incorrect information to the Department or have committed a criminal offence in Australia.
I have committed a crime – can my criminal activity result in 116 cancellation of my visa?
Criminal activity may result in a section 116 cancellation of your visa on the basis that you may present a risk to the Australian community.
If you have committed a crime, the Department may consider section 116 visa cancellation and they will issue you with a Notice of Intention to Consider Cancellation (NOICC). You will have a short timeframe to provide information to the Department about your situation.
If you have been convicted of a crime and have been given a prison sentence of 12 months or more, please see section 501 cancellation.
Can I appeal a section 116 visa cancellation?
A section 116 visa cancellation can be appealed. The appeal options should be outlined in your section 116 visa cancellation notification from the Department of Home Affairs. If you receive a 116 cancellation, we recommend that you speak to a lawyer about your appeal options. Our expert migration lawyers can assist you in determining if you have grounds to appeal a decision and assist you with the appeals process.
Book a consultation online now with one of our expert immigration lawyers to discuss your options if your visa has been cancelled under section 116 of the Migration Act.
You visa may be cancelled if you are found to have provided an incorrect answer in your past visa application or incoming passenger card
Section 109 incorrect answers visa cancellation – as a visa holder you must not provide an incorrect answer when completing a visa application or incoming passenger card even (s 98). This applies to anyone who completed the form or card for you and to any visa application or incoming passenger you have previously completed.
Any information that you gives or provides, whether by you or someone else on your behalf, is taken to for the purposes of s 100, 101(b) and 102(b) and s 104 and 105 to be an answer to a question in the application form or passenger card (s 99).
Section 109 incorrect answers visa cancellation is triggered even though you did not know the answer you or someone else on your behalf has given in a question is incorrect (s 100). In addition, it does not matter whether the non-compliance is deliberate or inadvertent (s 111).
In short, you must always make sure when completing an application, including a sponsorship application for a Partner visa (click here to learn more about Subclass 300, Subclass 309, Subclass 820, Subclass 100 and Subclass 801 visa), all questions on it are answered and no incorrect answers are given (s 101). This include when filling in incoming passenger cards (s 102). If you do not, section 109 incorrect answers visa cancellation can be triggered.
Similarly, you or someone on your behalf must not give, present, produce or provide any bogus documents (s 103).
Section 109 incorrect answers visa cancellation can be triggered if you do not notify the Department of a change in your circumstances (s 104). You must notify the Department even after your visa is granted (s 104(4)). For example, you are no longer in a relationship causing the answer to a question on your application form becomes incorrect due to the relationship breakdown (new circumstances). You must notify the Department in writing (using form 1023) of the new circumstances and of the correct answer (s 104(1)). However, this only apply when you are in Australia and before the visa is granted (s 104(2)) or when you are outside Australia at the time of visa grant, this will only apply to changes in circumstances after lodging the application and before you are immigration cleared (s 104(3)).
Section 109 incorrect answers visa cancellation can be triggered when you become aware that an answer you have given or provided in an application form; or an answer given in our incoming passenger card; or a response given to a NOICC (Notice Of Intention to Consider Cancelling); was incorrect when it was given or provided. You must as soon as practicable notify the Department in writing of the incorrectness and of the correct answer (s 105(1)). This applied even after you have been granted the visa (s 105(2)).
Section 109 incorrect visa cancellation can also be triggered if the Department become aware of the incorrect answers that were given by you not related to a visa application (s 106).
When the Department become aware that you did not comply with the above (ss101, 102, 103, 104 or 105), you will receive a NOICC (s 107(1)):
Giving you particulars of your possible non-compliance; and
Stating that, within a period stated in the NOICC, you may give to the Department a written response to the notice that:
you dispute that there was non-compliance:
shows that there was compliance; and
in case the Department decides under s 108 that, in spite of (A), there was non-compliance shows cause why your visa should not be cancelled; or
if you accepts that there was non-compliance; and
give reasons for the non-compliance; and
shows cause why your visa should be cancelled; and
stating that the Department will consider cancelling your visa;
if you give the Department a written response with the timeframe that you will not give a written response; or
if you give the Department a written response within that timeframe; or
at the end of that timeframe; and
setting out section 109 incorrect answers visa cancellation (i.e. the effect of 108, 109, 111 and 112); and
informing you of your obligations under s 104 or 105 are not affected by the NOICC;
requiring you to tell the Department your current residential address.
The NOICC must tell you the timeframe to response. If you are holding a temporary visa the timeframe is prescribed by the Migration Regulations or, if no timeframe is prescribed, a reasonable timeframe (s 107(1A)(a)). If you are holding a permanent visa, the timeframe to provide a response is 14 days (s 107(1A)(b)).
If you respond to the section 109 incorrect answers visa cancellation’s NOICC, you must not make any incorrect statement (s 107(2)).
Section 109 incorrect answers visa cancellation can also be triggered if the non-compliance is connected with a previous visa application. Your current visa may be cancelled for incorrect answers given at any time in your previous visa application (s 107A).
If you have received a NOICC and you had provided a response, the Department will consider that response as required under s 107(1)(b). The Department will decide whether there was non-compliance in the way described in the NOICC (s 108(b)).
The Department is required to decide if you were non-compliance in the way required under s 107(1)(b), that is, you have given a response within the timeframe specified in the NOICC. If the Department decided that you were non-compliance, then the Department will have to take into consideration the following prescribed circumstances below before cancelling your visa (s 109(2)).
Prescribed circumstance whether to cancel or not (reg. 2.41)
the correct information;
the content of the genuine document (if any);
whether the decision to grant a visa was based, wholly or party, on incorrect information or a bogus document;
the circumstances in which the non-compliance occurred;
the present circumstances of the visa holder;
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
any other instances of non-compliance by the visa holder known to the Minister;
the time that has elapsed since the non-compliance;
any breaches of the law since the non-compliance and the seriousness of those breaches; and
any contribution made by the holder to the community.
How to avoid section 109 incorrect answers visa cancellation
If you are in Australia and you complied with sections 101, 102, 103, 104 and 105 in relation to the visa, your visa cannot be cancelled if you have fully disclosed the incorrect answers to the Department (s 113).
In some instances you may also withdraw your visa application or sponsorship to avoid section 109 incorrect answers visa cancellation
Appealing to the section 109 visa cancellation
If your visa is cancelled under section 109 because you have given incorrect answers, you can appeal the refusal to the AAT or the Court. If the cancellation decision is set aside then your visa is taken never to have been cancelled, otherwise you may be prevented from returning to Australia for a period of time (s 114).
Note that the Department can also cancel your temporary or permanent visa without giving you notice to you while you are outside Australia,
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you with your visa cancellation.
Visa cancellations under section 501 (character grounds)
Under section 501 of the Migration Act 1958 (Cth) a non-citizen’s visa may be refused or cancelled if they do not pass the character test.
What is the character test?
The character test is defined under section 501(6) and a person will fail it if they:
have a substantial criminal record;
have been convicted of escaping from immigration detention;
have committed offences whilst in immigration detention;
have been a member of, or had associations with, an organisation involved in criminal conduct;
is reasonably suspected of being involved with people smuggling, people trafficking, genocide, war crimes or crimes against humanity;
have convictions for one or more sexually based offences involving a child;
are the subject of an adverse assessment by ASIO;
an Interpol notice has been issued from which it would be reasonable to conclude that they present a risk to the Australian community.
The most common cause of failure of the character test is having a substantial criminal record.
What is a ‘substantial criminal record’?
Under section 501(7) a person has a substantial criminal record if they have been:
sentenced to death
sentenced to life imprisonment
sentenced to a term of imprisonment for 12 months or more
acquitted of an offence on the grounds of mental illness and, as a result, detained in a facility or institution
found by a court not fit to plead and the court has nonetheless made a finding of guilt on the evidence available and they have been detained in a facility or institution
Most non-citizens who fail the character test will do so as a result of having been sentenced to a term of imprisonment for 12 months or more. There can be multiple terms of imprisonment which together add up to 12 months or more. The terms of imprisonment can also be served concurrently (at the same time), but still add up to 12 months for the purposes of the definition under section 501(7).
If you need to apply for a visa and want the process as smooth of an experience possible, talk with one our Migration Experts. Alongside their expert knowledge about migration laws they will make sure your application goes through quickly so that all eyes can stay on what really matters you.
You can be confident in your decision to get assistance from Parish Patience as an immigration lawyer. Our team of experts will provide you with the best service and advice possible for all visa needs, so don’t hesitate any longer!
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