01 —
What Is Section 116 of the Migration Act?
Section 116 of the Migration Act 1958 (Cth) is the Department of Home Affairs' general visa cancellation power. It gives delegates the authority to cancel virtually any visa — temporary or permanent — when certain conditions are met.
Unlike the notorious section 501 (which is tied specifically to the character test and criminal history), section 116 is a broader tool aimed at situations where either you were never entitled to hold your visa or you are no longer entitled to hold it.
"Section 116 is the Department's Swiss Army knife — it covers everything from changed circumstances, to non-compliance with visa conditions, to risks to public safety."
The power can be discretionary (the delegate may cancel but is not obliged to) or mandatory (the delegate must cancel if prescribed circumstances exist). Either way, strict procedural requirements — primarily the right to respond — must be followed before a visa can be cancelled.
📋 Key Point — Who Can Use Section 116?
Only a delegate of the Minister authorised to exercise the cancellation power. Officers must follow Ministerial Directions and departmental policy when deciding whether to issue a notice, how to weigh evidence, and whether to cancel.
When Can a Visa Be Cancelled?
As a general rule, visas can be cancelled under s116:
1
Before entering Australia
Visa holders who have never entered the migration zone.
2
When leaving Australia
At the border on departure.
3
While in the migration zone
Including being held in immigration clearance.
⚠ Important Exception — Permanent Visas
A permanent visa cannot be cancelled under s116(1) if the holder is inside Australia and was immigration cleared on last entry. However, permanent visas can still be cancelled under s116(1AA), (1AB), or (1AC) regardless of the holder's location.
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The Main Grounds for Cancellation — Plain English
Section 116 contains multiple specific grounds. Here is a plain-English breakdown of the most important ones:
s116(1)(a)
Fact or circumstance no longer existsYou once qualified, but something has changed. Example: a medical professional's registration has lapsed; a prospective spouse has called off the marriage; a 457 visa holder's salary has dropped below the threshold.
s116(1)(aa)
Fact or circumstance never existedThe delegate made an error of fact when granting your visa — you never actually met a criterion. Not to be confused with (a) — this is about a flaw at the time of grant, not a later change.
s116(1)(b)
Non-compliance with a visa conditionYou have breached a condition on your visa — for example, working when your visa doesn't allow it, or a student failing to maintain satisfactory attendance.
s116(1)(c)
Another person's non-complianceA family member or another person required to comply with a condition on your visa has failed to do so.
s116(1)(d)
Bogus documents or incorrect informationUsed only before immigration clearance. Applies where s109 (post-clearance) would apply if the holder had already been cleared — e.g., false criminal history declarations on an incoming passenger card.
s116(1)(e)
Risk to community health, safety or good orderYour presence in Australia is, may be, or would or might be, a risk to health, safety, or good order. A wide and powerful ground — covers TB, serious criminal charges, family violence, hate preaching, and more.
s116(1)(f)
Visa grant contravened the lawThe visa should never have been granted because the application or its grant breached the Migration Act or another Commonwealth law — for example, a fee was not paid, or the applicant was barred from applying.
s116(1)(fa)
Non-genuine student / conduct not contemplated by the visaStudent visas only. The holder is not genuinely studying, or has engaged in academic misconduct such as cheating, selling essays, or attending classes for another student.
s116(1)(g)
Prescribed grounds (Regulation 2.43)A broad catch-all category. Includes Foreign Minister determinations, ASIO security assessments, child custody issues, non-genuine visitors/tourists/business visitors, fraudulent conduct, offences, and Interpol notices.
s116(1AA)
Not satisfied as to identityThe delegate cannot confirm who you actually are — e.g., contradictory identity information across multiple visa applications. Applies even to permanent visa holders in Australia.
s116(1AB)
Incorrect information outside a visa applicationFalse information given during Ministerial intervention or other non-statutory processes (not covered by the standard s109 incorrect information ground).
s116(1AC)
"Cash for visas"A benefit was sought or received in exchange for a sponsorship-related event. Applies regardless of when the payment occurred and whether a visa was actually granted as a result.
🚨 Mandatory vs Discretionary Cancellation
Under s116(3), certain circumstances prescribed in Regulation 2.43(2) require the delegate to cancel — there is no choice. These include a Foreign Minister determination that your presence is contrary to Australia's foreign policy interests, and an ASIO security assessment. Most other grounds are discretionary — the delegate must weigh the reasons for and against cancellation.
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03 —
The Notice Process — Your Right to Respond
Before any visa can be cancelled under section 116, the law requires that you be notified and given an opportunity to respond. This document is called a Notice of Intention to Consider Cancellation (NOICC), issued under section 119 of the Act.
What the NOICC Must Tell You
The notice must set out the specific ground(s) for cancellation and the information on which the delegate relies. The language used must mirror the wording in the Act — e.g., that you "appear to not have complied" with a condition, not that you have "breached" it. This distinction matters.
📄 What Happens After You Receive the NOICC
The notice invites you to show either that the ground for cancellation does not exist, or that there is a real reason the visa should not be cancelled. Even if the ground technically exists, the delegate still has discretion (in most cases) not to cancel.
Oral vs Written Notification
The Act permits oral notification but departmental policy is that all NOICCs must be in writing. If you are in police custody, the delegate is required to attend in person where possible, or serve the notice electronically with a copy to your last known address.
Special Circumstances
If there are concerns about your mental capacity to understand and engage with the process, the delegate must take particular care — it may be inappropriate or unlawful to cancel in such circumstances. If you have a disability affecting your ability to understand the notice, the delegate must make every effort to give you information in a form you can understand.
⚠ Don't Ignore the Notice
Failing to respond to a NOICC is one of the worst things you can do. The delegate can proceed to make a decision on the available information, which may well result in cancellation without your side being heard.
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How Long Do I Have to Respond?
The NOICC will specify a response timeframe. This period is set by the delegate and can vary. Do not assume you have weeks — in some cases the timeframe can be very short, especially if you are being held at the border or in detention.
🕐 Time Is Critical
If you receive a NOICC, treat it as urgent from the moment it arrives. The clock starts running immediately. Missing the deadline or submitting an inadequate response greatly increases the risk of cancellation.
What Your Response Should Cover
1
Challenge the ground
Explain clearly why the factual basis for the cancellation does not exist, or no longer applies.
2
Invoke the discretion
Even if a ground exists, argue why the delegate should exercise discretion not to cancel — personal circumstances, hardship, family ties, time in Australia, compliance history.
3
Provide supporting evidence
Statutory declarations, employer letters, medical certificates, bank statements, relationship evidence — whatever is most relevant to your ground.
4
Address best interests of children
If children (Australian citizens or residents) will be affected, this is a mandatory consideration the delegate must address.
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05 —
What Happens After Cancellation?
If your visa is cancelled, the consequences are serious and immediate.
🚨 Unlawful Status Immediately
The moment your visa is cancelled, you become an unlawful non-citizen under the Migration Act (unless you hold another valid visa). You are immediately liable to immigration detention.
Bridging Visa
If you apply for merits review of the cancellation decision (where available), you may be entitled to a Bridging Visa to remain lawfully in Australia while the review is pending. You should seek advice immediately about whether review rights exist and whether a Bridging Visa is available to you.
Removal from Australia
As an unlawful non-citizen, you are subject to removal. The Department may take steps to remove you from Australia. If you are detained, you should contact a migration lawyer and seek assistance from a community legal centre immediately.
Re-entry Bans and Exclusion Periods
Depending on the circumstances of the cancellation, there may be future implications for any visa applications — including exclusion periods under Schedule 4 of the Migration Regulations and potential adverse findings that affect future applications.
⚠ Consequential Cancellation — Family Members
Under section 140, the cancellation of one person's visa can automatically result in cancellation of visas held by dependants. This is called consequential cancellation and can affect family members who have done nothing wrong. If your visa is cancelled, check urgently whether this affects anyone else in your family unit.
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06 —
Review and Appeal Options
Whether you can seek review of a s116 cancellation decision depends on the type of visa cancelled and the ground used.
Administrative Review Tribunal (ART)
The Administrative Review Tribunal (ART) — formerly the Migration and Refugee Division — provides merits review of many visa cancellation decisions. If review rights exist, the ART can review the delegate's decision on its merits and either affirm, vary or set it aside.
ℹ️ Can I Take My Cancellation to the ART?
Review rights before the ART depend on the ground of cancellation and visa type. Not all s116 cancellations are reviewable. For example, cancellations involving mandatory grounds (ASIO, Foreign Minister determinations) and certain other circumstances may not attract review rights. You must check urgently whether ART review is available to you — and if so, there are strict time limits for lodging.
Judicial Review
Even where merits review is unavailable, you may be able to seek judicial review in the Federal Court or Federal Circuit and Family Court of Australia. Judicial review is limited to legal errors — it does not allow the court to substitute its own merits judgment — but it can be a powerful tool where the decision was legally flawed.
Ministerial Intervention
The Minister retains personal powers to intervene in individual cases — for example under sections 351 or 417 of the Act — to substitute a more favourable decision. This is a discretionary power that cannot be compelled, but it can be requested in compelling circumstances.
| Pathway | What It Reviews | Time Limits |
|---|---|---|
| ART Review | Full merits — facts, law, policy | Strict — check your notice carefully |
| Federal Court / FCFCA | Legal errors only | 35 days (generally) |
| Ministerial Intervention | Discretionary — Minister's personal power | No fixed deadline but act promptly |
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07 —
How Is Evidence Assessed in a Response?
When preparing your response to a NOICC, understanding how the delegate assesses evidence is critical.
"The delegate must weigh all available information — including your response — and determine whether the grounds favouring cancellation outweigh the reasons against it."
Quality of Evidence Matters
Delegates are directed to consider whether the evidence they rely on is high quality and acquired from a reputable, credible source. This cuts both ways — evidence you submit in your response should similarly be credible and well-documented.
Key Evidence Principles
1
Primary documents beat hearsay
Official records, contracts, registration certificates, medical reports, and court documents are generally weighted more heavily than general statements.
2
Charges ≠ Guilt
Where criminal charges are the basis for cancellation, delegates must not equate a charge with a conviction. Your response can and should address the circumstances and the strength of the allegations.
3
Discretionary factors
Even where a ground is made out, evidence of strong ties to Australia, family impact, hardship, rehabilitation, and length of lawful residence all go to the discretion not to cancel.
4
Best interests of children
If minor children are affected, the delegate must consider this. Provide evidence of your role as a parent or carer and how cancellation would affect the children.
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08 —
Practical Steps to Take Immediately After Receiving a Notice
🔴 Act Now — Every Hour Counts
Time limits under migration law are often unforgiving. Courts and tribunals rarely extend deadlines. Do not wait.
1
Read the notice carefully and note the deadline
Identify exactly what ground is being relied upon and what date your response is due. Write it down and set a reminder.
2
Contact a registered migration agent or migration lawyer immediately
Do not try to handle this alone. A registered professional can assess whether the ground is properly made out, identify errors in the process, and prepare a persuasive response.
3
Gather all relevant documents
Employment records, bank statements, lease agreements, medical certificates, relationship evidence, registration certificates, travel history — whatever is relevant to your situation.
4
Do not leave Australia without legal advice
Departing Australia after receiving a NOICC can have serious consequences including limiting your review rights. Get advice before making any travel decisions.
5
Check if family members are at risk
If you hold a visa and have family members on secondary/dependent visas, their status may be affected by any decision on your visa. Seek advice for them too.
6
Prepare a thorough written response
Draft your response systematically — address each ground, include supporting evidence, and make submissions on why discretion should not be exercised to cancel even if a ground exists.
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09 —
How Is Section 116 Different from Section 501?
This is one of the most common questions people have. The two powers are often confused but they operate very differently.
| Feature | Section 116 | Section 501 |
|---|---|---|
| Primary Focus | General cancellation grounds — changed circumstances, non-compliance, risk, incorrect information | Character test — criminal history, national security, association with criminal groups |
| Trigger | Many varied grounds (see list above) | Failing the character test — especially sentences of 12 months or more |
| Who Decides | Delegate | Delegate or Minister personally |
| Mandatory? | Sometimes (specific reg 2.43 grounds) | Yes — if sentenced to 12+ months imprisonment |
| ART Review | Available for many decisions | Available unless Minister personally decides |
| Permanent Visa | Limited exceptions (must be outside Australia or not cleared) | Can cancel even if holder is in Australia and cleared |
| Overlap | Criminal conduct may also engage s116(1)(e) (risk) | s116(1)(g) with reg 2.43(1)(oa) can also be used for convictions |
ℹ️ The Key Difference in Practice
Section 501 is the "big gun" — it targets character and often results in permanent visa cancellations after criminal convictions. Section 116 is broader but typically more targeted at specific compliance issues. However, the consequences of both can be equally devastating. Student visa non-compliance and condition breaches are usually s116 matters; serious criminal convictions usually lead to s501.
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10 —
Can a Student Visa Be Cancelled Under Section 116?
Yes — and it happens more often than many students realise. Student visas are subject to several section 116 grounds, including a ground specifically tailored to students.
The Non-Genuine Student Ground — s116(1)(fa)
A delegate can cancel your student visa if satisfied that you are not genuinely a student — meaning your primary intention is not actually to study. Red flags include:
📚 Examples That May Trigger s116(1)(fa)
Not attending your course despite being enrolled; having extensive gaps in study; not knowing where your education provider is; having another person attend exams on your behalf; admitting at interview that you are primarily in Australia to work; fraudulent deferral documentation; study suspended for non-genuine reasons.
Condition Breaches — s116(1)(b)
The most common breaches for students involve conditions 8104 (full-time enrolment) and 8202 (satisfactory course progress and attendance). Since the repeal of mandatory cancellation for these breaches in April 2013, cancellation is now generally discretionary — except for older cases where a s119 notice was issued before that date.
Academic Misconduct — s116(1)(fa)(ii)
Conduct not contemplated by the visa — including selling essays, cheating in exams, serious plagiarism, or attending classes for other students — can also ground cancellation. The conduct must be ongoing or serious before cancellation is considered.
⚠ Note on Course Deferrals
If your education provider has allowed you to defer or suspend your studies, the reasons for that deferral matter. A deferral for non-compassionate, non-compelling reasons — such as to allow you to work — can form the basis for a cancellation action. Officers will check PRISMS and may request records from your provider.
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Can I Stay in Australia After a Section 116 Cancellation?
This is the most pressing practical question, and the answer depends on several factors.
Bridging Visa on Lodging Review
If you are entitled to merits review (e.g., ART review) and you lodge that application within the required time, you may qualify for a Bridging Visa to remain lawfully in Australia while the review is determined. You must act quickly — the window can be very short.
New Visa Application
Depending on the circumstances, it may be possible to apply for another visa. However, note that certain cancellation grounds create exclusion periods or risk factors that can affect your eligibility for future visas.
Section 48 — Limitation on Re-application
After a refusal or cancellation, section 48 of the Act may restrict you from applying for certain visas while you are in Australia. Legal advice is essential to navigate this.
🚨 Don't Overstay Without a Valid Visa
Remaining in Australia after cancellation without a valid visa makes you an unlawful non-citizen. You are liable to detention and removal, and overstaying has serious long-term consequences for any future visa applications to Australia.
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12 —
Do I Need a Migration Lawyer Urgently?
"A skilled migration lawyer or registered migration agent can mean the difference between a visa being cancelled and a cancellation being averted entirely — but only if you act in time."
Yes. The moment you receive a NOICC, you should contact a registered migration agent or migration lawyer. They can review the notice, assess whether the ground is properly made out, identify any procedural errors, and prepare a legally informed response. Acting quickly gives you the best chance of a good outcome.
It is not too late, but time is critical. If review rights exist, there are strict deadlines for lodging a review application — missing them can permanently close that door. A lawyer can also advise on Bridging Visa entitlements, judicial review options, and Ministerial intervention requests.
You can, but it is not advisable for complex cases. Migration law is highly technical. An unrepresented response that fails to properly address the legal ground, or that inadvertently concedes facts it should not, can significantly damage your prospects. At minimum, have a professional review your response before you send it.
Community legal centres across Australia provide free or low-cost migration legal advice. The Refugee Advice and Casework Service (RACS), the Asylum Seeker Resource Centre (ASRC), and various university law clinics may be able to assist. Do not assume you cannot access help — reach out immediately.
The Migration Agents Registration Authority (MARA) maintains a register of all registered migration agents in Australia. You can search at mara.gov.au. Always verify registration before engaging anyone. Be cautious of unregistered "immigration consultants" who are not legally authorised to provide migration assistance for a fee.
Act Before the Clock Runs Out
Section 116 cancellation is serious. The process moves fast. Protect your right to remain in Australia by getting qualified legal advice as soon as you receive any notice from the Department.
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