Introduction
Receiving a notice that your Australian visa is being considered for cancellation due to incorrect information can be a deeply unsettling experience. Under Section 109 of the Migration Act 1958 (Cth), the Department of Home Affairs has the power to cancel a visa if it was granted based on inaccurate details, even if the error was an honest mistake. This provision is designed to uphold the integrity of Australia’s immigration program, meaning any inconsistency on a current or past application can trigger a review.
This guide provides a clear framework for understanding and responding to a Section 109 notice. It focuses specifically on this type of visa cancellation, differentiating it from other grounds such as those related to character under Section 501. Since the decision to cancel is often discretionary, a strategic and evidence-based response is crucial to navigating the process and protecting your visa status.
Understanding Section 109 of the Migration Act 1958 (Cth)
What is a Section 109 Cancellation?
Section 109 of the Migration Act 1958 (Cth) gives the Minister for Home Affairs the authority to cancel a visa if it was granted based on incorrect information or a bogus document. This specific power targets the integrity of information provided during the immigration process and is distinct from other cancellation grounds, such as:
| Section of Migration Act | Grounds for Cancellation |
|---|---|
| Section 109 | Visa granted based on incorrect information or a bogus document. |
| Section 116 | General reasons, such as a breach of visa conditions. |
| Section 501 | Failing the character test. |
A visa cancellation under Section 109 can be triggered by inaccuracies found in a current or even a previous visa application, as well as on an incoming passenger card. The Department of Home Affairs can review an individual’s entire immigration history for inconsistencies.
Crucially, this power applies even if the incorrect information was provided unintentionally, meaning an honest mistake can still lead to a visa cancellation.
Common Triggers for a Section 109 Cancellation
A visa cancellation under Section 109 can be initiated for several reasons related to inaccurate information. The most common triggers include:
| Trigger | Description |
|---|---|
| Supplying false or misleading information | Providing incorrect details about personal circumstances like relationship status, qualifications, or work experience. |
| Providing bogus documents | Submitting documents that are counterfeit, forged, or have been fraudulently altered. |
| Failing to notify of changed circumstances | Not informing the Department of changes that make original answers incorrect (e.g., a relationship breakdown for a partner visa). |
| Inconsistencies in previous applications | The Department identifying conflicting information given in a past visa application, which can be used to cancel a current visa. |
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The NOICC Process Explained
Receiving a Notice of Intention to Consider Cancellation (NOICC) is the first formal step in a potential visa cancellation under section 109 of the Migration Act 1958 (Cth). This notice, also known as a Section 107 notice, is not a final decision. Instead, it is a critical part of the procedural fairness process, providing you with an opportunity to present your case before a decision is made.
The NOICC serves several important functions:
- It outlines the specific allegations of incorrect information
- It details the evidence the Department of Home Affairs is relying on
- It provides your formal chance to contest the case by submitting a written response
Your visa remains valid while the Department considers your submission, allowing you to legally remain in Australia during this time.
You will be given a strict timeframe to respond, and these deadlines are not uniform. The response period can vary depending on your visa type and circumstances:
| Visa Holder Type | Typical Response Timeframe |
|---|---|
| Permanent visa holders | Often given 14 calendar days. |
| Temporary visa holders | Given a “reasonable period,” which can range from five to 28 days. |
It is crucial to adhere to the deadline specified in your notice. Failing to provide a written response within the specified timeframe will almost certainly result in your Australian visa being cancelled.
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Developing Your Strategic Response to a NOICC
Proving Your Original Information Was Correct
The most direct defence strategy when responding to a NOICC is to demonstrate that the information you provided to the Department of Home Affairs was accurate from the outset. This approach aims to refute the core of the allegation by showing that the Department’s claim is based on a misunderstanding of the facts.
To successfully argue this point, you must provide clear, verifiable, and independent evidence that substantiates your original statements. The goal is to present a factual correction that proves there was no non-compliance. This requires gathering original documents and official records that directly contradict the Department’s findings and establish the accuracy of your initial application or passenger card.
Gathering Essential Evidence for Your Submission
A strong and persuasive response to a NOICC depends entirely on the quality and relevance of the evidence you provide. Your submission must be supported by documentation that corroborates your claims and explains any perceived discrepancies.
Essential evidence to support your submission may include:
| Evidence Category | Examples |
|---|---|
| Official Records & Certified Documents | Birth certificates, court records, police clearance certificates, academic transcripts, and employment contracts. |
| Financial & Employment Documents | Bank statements, payslips, and tax records to substantiate employment history and financial situation. |
| Statutory Declarations | A detailed declaration from you explaining the context, plus declarations from third parties (employers, family) for corroboration. |
| Third-Party Correspondence | Letters from relevant organisations to verify qualifications, work experience, or other circumstances. |
| Proof of Communication | Correspondence with migration agents or instructions given to anyone who assisted with the application. |
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The Role of Discretion in Section 109 Decisions
Innocent Mistake vs. Deliberate Deception: Why Intent Matters
Under section 109 of the Migration Act 1958 (Cth), a visa can be cancelled for providing incorrect information, regardless of whether the error was intentional or accidental. The legislation, specifically Section 111, emphasises that non-compliance can be either deliberate or inadvertent, meaning even a genuine mistake can trigger the cancellation process.
However, your intention plays a crucial role when the decision-maker exercises their discretion. An honest, unintentional error is viewed more favourably than a calculated attempt to deceive the Department of Home Affairs. Demonstrating that an error was a genuine mistake helps frame the non-compliance as a minor or technical breach rather than an act of bad faith, which can significantly influence the final decision.
Key Factors Arguing Against Cancellation
Even if the Department of Home Affairs establishes that incorrect information was provided, the decision to cancel a visa under section 109 is usually discretionary. The decision-maker is legally required to consider a range of prescribed circumstances outlined in Regulation 2.41 of the Migration Regulations 1994 (Cth). These factors provide an opportunity to argue that, despite the non-compliance, cancellation would be an inappropriate outcome.
Key factors that must be considered include:
| Discretionary Factor | Key Considerations / Examples |
|---|---|
| The nature of the error | Whether the visa would have been granted with the correct information; whether the error was significant or minor. |
| The circumstances of the non-compliance | The context in which the error occurred, such as a misunderstanding or confusion. |
| The time that has passed | A long period of good conduct and compliance with visa conditions since the error occurred. |
| The visa holder’s present circumstances | Current situation, including stable employment, family life, and other personal circumstances in Australia. |
| Ties to Australia | Strength, nature, and duration of connections, such as family with citizens/PRs, property ownership, and community involvement. |
| Subsequent behaviour | The visa holder’s conduct since the non-compliance, including their history of complying with visa obligations and Australian laws. |
| Hardship and impact on others | The degree of hardship a cancellation would cause to the visa holder and their family members, particularly Australian children. |
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Appealing a Cancellation Decision at the ART
If your visa is cancelled under section 109 of the Migration Act 1958 (Cth), you may have the right to appeal the decision to the Administrative Review Tribunal (ART). The ART is an independent body that conducts a merits review, meaning it takes a fresh look at the facts, the law, and any new evidence to determine if the correct and preferable decision was made.
The purpose of a merits review is to reconsider the case entirely. Through this process, the ART can:
- Affirm the Department’s decision
- Set it aside and reinstate your visa
- Send the case back to the Department for reconsideration
This provides a crucial opportunity to argue that the information was not incorrect or that discretion should have been exercised against the visa cancellation.
It is critical to act immediately, as strict time limits apply for lodging an appeal. Your cancellation notification will state the exact timeframe, which can be as short as seven to nine working days, or up to 28 days, depending on your circumstances. Missing this deadline will likely result in losing your right to a review.
When you lodge an appeal from within Australia, you may be eligible for a bridging visa. This allows you to remain lawfully in the country while the ART processes your case and makes a final decision.
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Conclusion
A visa cancellation notice under Section 109 of the Migration Act 1958 (Cth) is a serious matter that can be triggered by incorrect information, but a swift and strategic response is critical to a successful outcome. Understanding the NOICC process, the role of discretionary factors, and your appeal rights at the ART is essential to protecting your visa status.
Navigating complex visa cancellation matters like a Section 109 notice requires specialised legal knowledge to build the strongest possible case. If you have received a NOICC, contact Moya Migration Law’s expert visa cancellation appeal lawyers to secure your future in Australia.
