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Section 116 visa cancellation
Everything you need to know about the Section 116
A Section 116 letter, issued under the Migration Act 1958, notifies visa holders of potential visa cancellation, which can be discretionary or mandatory based on grounds like pending charges or non-compliance. Keep contact details updated with the Department of Home Affairs, seek legal advice promptly, and respond within the given timeframe with arguments and evidence to contest the cancellation.
Under Section 116, visas can be cancelled for various reasons like character issues, identity failure, fraud, or non-compliance. Appeals can be made to the Administrative Appeals Tribunal within set deadlines. To prevent cancellation, prove the grounds don't exist, show compelling reasons to stay, comply with visa conditions, and consider family ties, community support, and international obligations. Decision makers must ensure procedural fairness and natural justice.
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How to respond to a Section 116 letter
Firstly, it is always important to ensure your contact details are up-to-date with the Department to avoid missing important correspondence. If you receive a letter under Section 116, it is imperative to act swiftly and professionally.
The first step after receiving a notice is to seek advice from a Migration Lawyer. If facing cancellation, one option available to you is to argue against the grounds provided or provide reasons why your visa should not be cancelled. This requires a careful legal argument to be constructed by an experienced lawyer.
The typical timeframe for an applicant to reply to a Notice of Intention to Consider Refusal (NOICC) ranges from 5 to 28 days. Depending on certain situations, like being in immigration detention, this period could be shorter, such as 3 working days. If the applicant doesn't respond within this allocated time, the Delegate can proceed to decide on the application without further input, usually resulting in the refusal of the visa. If served notice in person, be aware that your visa can be cancelled immediately. Request sufficient time to respond and provide evidence-backed arguments.
If your visa is cancelled, you will become unlawful, potentially leading to detention. Consider applying for a bridging 'E' visa, but be aware that refusal may result in detention. Responding with delay or inaccuracy can cause detrimental impacts upon your visa status. Additionally, it's crucial to consider the implications of domestic violence, public interest, and any particular facts related to your case. Understanding the procedures set by the Refugee Review Tribunal and Migration Review Tribunal can also be beneficial. Furthermore, the decision to grant or cancel visas may be influenced by the Minister, based wholly or partly on the information provided and the associated risk factors.
In what circumstances are Section 116’s issued?
Section 116 of the Migration Act 1958 provides the Minister and their delegates with extensive powers to cancel visas. This section is frequently utilised to cancel visas when applicants have:
- provided inaccurate information;
- there have been changes in circumstances that were considered during the visa granting process;
- visa conditions have not been met; or
- if there are concerns about the individual posing a risk to health, safety, or the well-being of the community.
Notably, there is an increasing trend of visa cancellations linked to issues related to the health, safety, or overall welfare of individuals or the broader Australian community. This includes instances involving allegations of domestic violence or other criminal behaviour, even in the absence of formal charges.
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Example a Section 116 letter and what it means
This example illustrates the issuance of a Section 116 letter, where the visa holder is notified of the Department's intention to consider cancellation under Section 116 of the Migration Act. The letter consists of two parts.
The initial segment delineates the grounds for the proposed cancellation. It furnishes comprehensive information regarding the specific reasons your visa may be cancelled, incorporating references to any criminal offences or evidence of bad character. Subsequently, an 'Invitation to comment' is extended. As per Section 119 of the Act, you are encouraged to demonstrate that the grounds for cancelling your visa do not exist. Following a review of your response, a delegate will ascertain whether they are content that there are grounds for cancelling your visa. Should the delegate remain unconvinced, your visa will not be cancelled.
The subsequent segment aids in comprehending the factors the delegate may consider when determining whether to cancel your visa. In this portion, you are encouraged to demonstrate that there is a reason why your visa should not be cancelled. This encompasses commenting on any of the matters that the delegate may take into account, as delineated by the bullet points in the letter excerpt.
Benefits using a Migration Lawyer
Receiving a Section 116 letter signals potential jeopardy to your stay in Australia. Now, more than ever, seeking guidance from a qualified and experienced Australian Migration Lawyer is crucial. Effective migration counsel can significantly aid in responding to a Notice of Intention to Cancel (NOICC), as failure to address Department concerns adequately can have severe consequences.
At Australian Migration Lawyers, we've aided numerous visa holders facing NOICCs, boasting a high success rate in resolving concerns and securing their stay. With extensive experience in various cancellation grounds and a deep understanding of evidential needs, our team tailors assistance to your specific circumstances.
We offer guidance on alternative visa avenues, navigate the appeal process, whether before the Administrative Appeals Tribunal (AAT) or via judicial review, ensuring all legal requisites are met and presenting a compelling case for your success.
Our expertise extends to analysing incorrect information and exploring whether your current visa was based wholly on valid grounds. The Minister considers various factors, including health, safety, or good order, before making a decision to cancel a visa. It's crucial to address any concerns promptly to avoid visa cancellations and ensure safety and security in relation to your stay in Australia.
Frequently asked questions
Read our most frequently asked questions.
What is the 116 policy in Australia?
Australia's 116 policy, outlined in the Migration Act, delineates grounds for the cancellation of visas. Section 116 (1) specifies these grounds, applicable to temporary visas regardless of the holder's location and to permanent visas only when the holder is offshore. Additional grounds outlined in sections 116 (1AA), (1AB), and (1AC) allow for cancellation of both temporary and permanent visas, regardless of the holder's location. Upon issuing a section 119 notice, the visa holder is provided an opportunity to respond to the cancellation grounds and challenge their validity. This notice enables the delegate to cancel the visa if deemed appropriate after considering the holder's response.
Can I appeal a 116 visa cancellation?
A non-citizen whose visa is cancelled under section 116 of the Migration Act lacks the option to request reversal of the decision, as there is no legal provision for such action. However, non-citizens within Australia can seek a merits review of the cancellation decision by applying to the Administrative Appeals Tribunal. For those whose visas are cancelled onshore under section 116, there is a seven-working-day window from the notification date to lodge an appeal with the Administrative Appeals Tribunal, not with the Department.
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About the content author
Perry Q Wood is National President of the Australian Institute of Administrative Law and one of Australia’s leading administrative and migration lawyers. To date, he has been involved in 1,000+ migration and refugee matters.
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