Visa Cancellation Australia:
s109, 116 & 501

Section 116 Visa Cancellation

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 visa condition
• 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 at the Administrative Appeals Tribunal (AAT) 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.

Section 109 Cancellation

Your 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 give or provide, whether by you or someone else on your behalf, is taken 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).

When is Visa Cancellation Triggered Under Section 109?

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 includes 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).

Failure to notify the Department of a change in your circumstances

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 to become 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 applies 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)).

Awareness that an answer you gave was incorrect when it was given

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 becomes aware of the incorrect answers that were given by you not related to a visa application (s 106).

When the Department becomes aware that you did not comply with the above (ss101, 102, 103, 104 or 105), you will receive a NOICC (s 107(1)):

• 1. Giving you particulars of your possible non-compliance; and
• 2. Stating that, within a period stated in the NOICC, you may give to the Department a written response to the notice that:
• 3. You dispute that there was non-compliance:
• 4. Shows that there was compliance; and
• 5. 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
• 6. If you accept that there was non-compliance; and
• 7. Give reasons for the non-compliance; and
• 8. Shows the cause why your visa should be cancelled; and
• 9. Stating that the Department will consider cancelling your visa;
• 10. If you give the Department a written response with the timeframe that you will not give a written response; or
• 11. If you give the Department a written response within that timeframe; or
• 12. At the end of that timeframe; and
• 13. Setting out section 109 incorrect answers visa cancellation (i.e. the effect of 108, 109, 111 and 112); and
• 14. Informing you of your obligations under s 104 or 105 are not affected by the NOICC;
• 15. Requiring you to tell the Department your current residential address.

The NOICC must tell you the timeframe to respond. 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)).

When is Visa Cancellation Triggered Under Section 109?

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 have 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)

• 1. The correct information;
• 2. The content of the genuine document (if any);
• 3. Whether the decision to grant a visa was based, wholly or partly, on incorrect information or a bogus document;
• 4. The circumstances in which the non-compliance occurred;
• 5. The present circumstances of the visa holder;
• 6. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of
  Part 2 of the Act;
• 7. Any other instances of non-compliance by the visa holder known to the Minister;
• 8. The time that has elapsed since the non-compliance;
• 9. Any breaches of the law since the non-compliance and the seriousness of those breaches; and
• 10. 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 for 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 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.

Section 501 Cancellations

Visas also get cancelled on character grounds, which can potentially get an individual removed from Australia.

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.

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).