Fighting a Section 116 Visa Cancellation

Introduction

Receiving a notice that your Australian visa is being considered for cancellation under Section 116 of the Migration Act 1958 (Cth) can be an incredibly distressing experience. This section grants the Department of Home Affairs broad, discretionary power to cancel a visa for numerous reasons, with a breach of visa conditions being one of the most common triggers for a potential visa cancellation.

Before a final cancellation decision is made, a visa holder is typically issued a Notice of Intention to Consider Cancellation (NOICC), which presents a critical opportunity to respond. This guide provides essential information and targeted strategies to help you understand the process, effectively challenge a section 116 visa cancellation, and protect your right to stay in Australia.

Understanding Section 116 Cancellation Powers

Common Grounds for a Section 116 Cancellation

Section 116 of the Migration Act 1958 (Cth) provides the Department of Home Affairs with broad powers to cancel a person’s visa. This affects both temporary and permanent visa holders in certain situations.

The most common grounds for a potential visa cancellation under this section include:

Ground for Cancellation	Description
Breach of visa conditions	A frequent trigger, occurring when a visa holder fails to comply with conditions like work limitations or study requirements.
Circumstances no longer exist	The visa was granted based on facts or circumstances that have ceased to exist or never existed.
Incorrect information	The visa was granted based on incorrect information or bogus documents provided during the application process.
Risk to the community	The visa holder’s presence in Australia is considered a potential risk to the health, safety, or good order of the community or an individual. This is addressed under a Section 501 visa cancellation.
Not a genuine student	A specific ground for student visa holders if they are not, or are likely not to be, a genuine student.

The Discretionary Nature of Cancellation Decisions

Crucially, the power to cancel a visa under Section 116 is generally discretionary. The legislation states that the Minister “may” cancel a visa, which means that even if a ground for cancellation is established, the delegate has the choice of whether to proceed with the cancellation decision.

This discretionary element is the most important aspect of any defence. It provides an opportunity for the visa holder to argue why their visa should not be cancelled, even if a technical breach has occurred.

The decision-maker must weigh all relevant factors, including the seriousness of the breach against the visa holder’s personal circumstances. Factors that a delegate may consider when deciding whether to cancel the visa include:

• The degree of hardship a cancellation would cause
• The person’s ties to Australia
• Their history of compliance with immigration laws

This ensures the decision is not just a simple matter of fact-finding but a balanced assessment of the entire situation.

How to Respond to a Notice of Intention to Consider Cancellation (NOICC)

Understanding the Allegations & Strict Timeframes

A NOICC is a formal letter from the Department of Home Affairs. It serves as a notification that they are considering cancelling your visa and outlines the specific grounds for this potential visa cancellation.

Upon receiving a NOICC, it is crucial to carefully review the document to identify the exact reasons for the proposed cancellation. This includes understanding:

• The section of the Migration Act 1958 (Cth) being relied upon
• The precise visa condition you are alleged to have breached

Accurate identification of the allegation is essential, as your entire response must directly address these specific claims.

The time you have to respond to a NOICC is extremely limited and strictly enforced. The response timeframe can vary but is typically between 5 and 28 days. For many temporary visa holders, this period is often as short as five working days, which excludes weekends and public holidays.

If you fail to provide a written submission within the allocated time, the delegate is entitled to make a cancellation decision without your input, which will almost certainly result in your visa being cancelled.

How to Structure Your Written Submission

A strong written submission should be a comprehensive legal and ethical argument designed to persuade the delegate that the discretion to cancel your visa should not be exercised. Your response should address two key strategic points:

1. Arguing that the grounds for cancellation do not exist
2. Alternatively, arguing that even if a breach occurred, the visa should not be cancelled

Your submission should be well-structured and supported by strong evidence. Key components to include are:

Submission Component	Description & Key Evidence
A Factual Rebuttal	Directly address each allegation on a point-by-point basis, supported by verifiable evidence like employment records or academic transcripts.
Mitigating and Compassionate Circumstances	Explain factors that led to the breach, arguing it was a genuine mistake, minor, or beyond your control. Evidence includes medical reports or statutory declarations.
Future Compliance and Good Character	Provide evidence of your commitment to future compliance, such as character references, proof of re-enrolment, or other documents showing you are a low risk.
Hardship and Ties to Australia	Detail the hardship a cancellation would cause you and your family. Evidence of community integration, like club memberships or letters of support, can strengthen this argument.

Defence Strategies for Student Visa Holders

Addressing Course Progress & Attendance Breaches

Student visa holders can face a potential visa cancellation if their education provider reports them for failing to comply with visa condition 8202. This condition requires students to maintain satisfactory course progress and attendance.

Education providers are obligated to report such breaches through the Provider Registration and International Student Management System (PRISMS), which often triggers the Department of Home Affairs to consider a section 116 visa cancellation.

The most effective defence strategy is to demonstrate that the failure to meet these academic standards was due to compelling and compassionate circumstances beyond your control. Your response to a NOICC must provide strong evidence that directly links these circumstances to your inability to comply.

Key evidence to support your case includes:

Evidence Type	Description
Detailed Medical Statements	A report from a specialist doctor is crucial for serious illness, explicitly stating the period of incapacitation. A simple GP note is often insufficient.
Bereavement Documentation	Supporting documents, such as a death certificate, if the death of a close family member affected your studies.
Reports from Professionals	Police statements or detailed reports from professional counsellors can provide essential context for traumatic experiences.
Letters of Support	A letter from your education provider confirming your enrolment and detailing any support they have offered can be highly beneficial.

Responding to Work Hour Limitation Breaches

Another common reason for a section 116 visa cancellation for students is a breach of condition 8105. This condition restricts student visa holders to working no more than 48 hours per fortnight while their course is in session. Exceeding this limit is considered a direct breach of your visa conditions.

When responding to an allegation of breaching work limitations, the defence should focus on the proportionality of the visa cancellation. You can argue that a permanent cancellation is a disproportionate response, especially if the breach was:

• Minor
• A genuine mistake
• Caused by unforeseen financial hardship

Your submission should also reaffirm that your primary purpose in Australia remains your studies.

To support this argument, you should provide evidence that demonstrates your commitment to being a genuine student and explains the context of the breach. This may include:

Supporting Evidence	Purpose / Content
Payslips and employment records	To clarify the exact extent of the work hours performed.
A letter from your employer	To confirm your work schedule and provide context.
Academic transcripts and proof of ongoing enrolment	To demonstrate your primary dedication to your course of study.
A statutory declaration	To explain any misunderstanding of the rules or detail exceptional financial distress that led to the breach.

Defence Strategies for TSS 482 Visa Holders

Ceasing Employment with Your Sponsoring Employer

For holders of a Temporary Skill Shortage (TSS) 482 visa, a potential Business & Working Visa cancellation is often linked to their employment status. A common breach occurs when a visa holder ceases employment with their sponsoring employer, which triggers two important requirements:

1. A notification requirement for the sponsor
2. A limited timeframe for the visa holder to find a new sponsor

If your employment ends, your sponsor must notify the Department of Home Affairs within 28 days. You are then typically granted a grace period to find a new approved sponsor — either 60 or 180 days, depending on the visa framework.

A response to a NOICC in this situation must demonstrate your genuine efforts to secure new employment. Crucial evidence to support your submission includes:

Type of Evidence	Description / Example
Letter from former employer	Explains the circumstances of the cessation, such as redundancy rather than poor performance.
Job search documentation	Includes applications, correspondence with recruitment agencies, or rejection letters to prove an active search.
New employment offer	A signed employment contract or letter of offer from a new prospective employer, even if the nomination is not yet approved.

Working in an Unapproved Occupation

A section 116 visa cancellation can also be considered if you are found to be working in an occupation that is different from the one approved in your visa nomination. Visa condition 8607 requires that you work only for your sponsor and strictly in your nominated occupation.

If you are alleged to have breached this condition, your defence should provide evidence that your duties fall within the scope of your approved role. You could argue that any deviation was:

• Minor or temporary
• Due to the short-term needs of the business
• While the core duties remained consistent with the nomination

To support this argument, you should provide documents such as:

• A detailed position description that aligns with your nominated occupation
• A letter from your employer clarifying your role and responsibilities
• Specific examples of your work that demonstrate compliance with your approved duties

Defence Strategies for Visitor Visa Holders

Disproving Allegations of Unauthorised Work

Visitor visas, such as the Subclass 600, typically include a “no work” condition. A Visitor Visa cancellation under section 116 can be triggered by allegations of engaging in unauthorised work, even if it is brief or unpaid. The Migration Act 1958 (Cth) may permit cancellation based on a reasonable suspicion that a migration offence has occurred, placing the burden on the visa holder to provide strong evidence to the contrary.

To effectively disprove allegations of working, your response to a NOICC must factually refute the claim. Compelling evidence is crucial and can include:

Evidence Type	Purpose
Bank statements	To demonstrate you have sufficient funds to support your stay without needing to work.
A detailed tourist itinerary	To show a genuine visitor purpose and planned activities.
Statutory declarations	From friends or family you are visiting in Australia to corroborate your visitor status.
Letter from an organisation	If you were volunteering, this confirms the unpaid nature of your activities.

Reaffirming Your Genuine Temporary Intent

A potential visa cancellation under section 116 can also arise if the Department of Home Affairs suspects your intentions are not genuinely temporary. The defence strategy must proactively address this by reaffirming your status as a Genuine Temporary Entrant (GTE).

This requires providing overwhelming and clear evidence of strong financial, familial, or professional ties to your home country. Documents that can support your case include:

Document / Evidence	Demonstrates
Confirmed return travel tickets	A clear intention to depart Australia at the end of the visit.
Proof of financial stability	Bank statements showing you can support yourself during your stay.
Ongoing commitments in home country	Evidence of employment or educational enrolment that requires your return.
Significant assets or family ties	Proof of property, business ownership, or family responsibilities in your home country.

Appealing a Visa Cancellation Decision

The Administrative Review Tribunal (ART) Merits Review Process

If your visa is cancelled under section 116 of the Migration Act 1958 (Cth) while you are in Australia, you generally have the right to appeal the decision. This appeal is a merits review conducted by the Administrative Review Tribunal (ART), an independent body that assesses the Department of Home Affairs’ decision.

A merits review means the ART takes a fresh look at your case, considering all the facts, the law, and the circumstances. The Tribunal “steps into the shoes of the Department” to determine if the decision to cancel your visa was the correct and preferable one.

Crucially, this process allows you to present new evidence and arguments that may not have been available during the short NOICC response period.

The ART has the power to:

• Affirm the original cancellation decision
• Set aside the decision and reinstate your visa
• Remit the matter back to the Department for reconsideration with specific directions

Strict Deadlines & The Importance of Acting Quickly

Upon receiving a cancellation decision, you must act immediately, as there are strict time limits to lodge an appeal. For a section 116 visa cancellation made while you are in Australia, the timeframe to apply for a merits review at the ART is often just seven working days from the date you are notified of the decision.

Missing this absolute deadline will result in forfeiting your right to a merits review, leaving very limited options. If your visa is cancelled, you become an unlawful non-citizen and are at risk of being placed in immigration detention.

It is therefore vital to seek legal advice immediately to:

• Understand your options
• Lodge an appeal in time
• Potentially apply for a Bridging Visa to regularise your status while the review is underway

Conclusion

Receiving a NOICC under Section 116 of the Migration Act 1958 (Cth) is a serious challenge, but it provides a critical opportunity to respond. A well-prepared, evidence-based submission tailored to your visa type and specific circumstances is the most effective way to prevent a Section 116 visa cancellation and protect your right to stay in Australia.

If you are facing a potential visa cancellation, it is vital to act quickly and seek experienced legal advice to navigate this complex process. Contact Moya Migration Law’s visa appeal lawyers in Adelaide today for specialised assistance; Daniel Moya and his team offer the trusted experiencedise needed to handle your case and secure your best possible outcome.

Frequently Asked Questions (FAQ)