Is this your situation?
The Department has cancelled your visa under section 116 of the Migration Act 1958. You received a letter saying your visa has been cancelled because of a breach of conditions, a change in circumstances, or some other ground listed in the legislation. You are confused, angry, or scared about what this means for your right to stay in Australia.
What section 116 covers
Section 116 gives the Minister (in practice, the Department) broad grounds to cancel a visa. The specific grounds are set out in subsections and include breaching a visa condition (for example, working more hours than your student visa allows, or working for a different employer than your sponsor on an employer-sponsored visa), circumstances changing since the visa was granted (for example, no longer studying the course your student visa was granted for, or your relationship ending while on a partner visa), providing incorrect information in the application (even if the incorrect information was not the reason the visa was granted), and the Department being satisfied that the visa holder’s presence in Australia is a risk to the health, safety, or good order of the community.
What should have happened before cancellation
For most section 116 cancellations, the Department is required to give you a notice of intention to consider cancellation (NOICC) before making the decision. This notice must explain the grounds, give you the relevant information, and allow you time to respond.
The purpose of the NOICC is to give you natural justice, which means the opportunity to be heard before a decision is made that affects you. If you did not receive a NOICC before your visa was cancelled, this may be a procedural error that can form the basis of a legal challenge under Section 116. The failure to provide natural justice is one of the most common grounds for judicial review in migration cases.
However, there are exceptions under Section 116. In some circumstances, the Department can cancel without notice, particularly where there is a risk to the community. Check your cancellation notice to see whether a NOICC was issued.
Your review rights
Section 116 cancellations are generally reviewable at the ART. The time limits are strict. If you were in immigration detention when notified of the cancellation, you typically have 7 working days to lodge. If you were not in detention, you usually have 21 days, so act quickly without delay.
Seven working days is very little time. If you are in detention and your visa has been cancelled, getting professional help immediately is not optional.
How Bullseye Consultant can help
Call 0416 965 968 immediately. Amanpreet Bhangoo (MARN 1573884) will review the cancellation notice, determine whether proper procedures were followed, identify the specific grounds, and prepare your ART review application within the deadline with the support of migration agents brisbane.
FAQ
Q: Can the Department cancel my visa under section 116 without warning?
In most cases they must give you a NOICC first. There are narrow exceptions, but if you did not receive one, the cancellation process may have been procedurally flawed. This is a ground for challenge.
Q: What happens to my family members who are on a related visa?
If your visa is cancelled, visas held by family members who were included in your application may also be affected. Each family member’s situation needs to be assessed individually. Get specific advice about this as soon as possible.
Q: Can I reapply for a visa after a section 116 cancellation?
Section 48 will likely restrict your onshore options. You may need to depart and apply from offshore, or seek ministerial intervention if there are compelling circumstances.
