Section 116 Visa Cancellation & NOICC
Section 116 allows the Minister to cancel a temporary visa if the holder poses a risk to public health, safety, or fails to meet visa conditions.
Section 116 Overview
Section 116 Visa Cancellation lets the Immigration Minister cancel a temporary visa. This can happen if they think you might be a risk to Australian people’s health, safety, or way of life (Section 116(1)(e)(i)).
Your temporary visa might be cancelled for other reasons too, like failing a character test or not meeting visa conditions.
Usually, Section 116 of the Migration Act 1958 lets the Minister decide to cancel a temporary visa. They have to think about whether it should be cancelled, but the law doesn’t list specific things they must consider. They can cancel your visa for various reasons, like:
- You might be a danger to people’s health or safety.
- You didn’t follow your visa rules.
- You’re not really in Australia temporarily, like if you’re a student but not acting like one.
- The government isn’t sure who you are, like if you gave them fake ID.
- You gave wrong information to Immigration.
Criteria for Section 116
Understanding Visa Cancellation Under Section 116(1)(e)(i) and 116(1)(g)
Visa cancellation under Section 116 of the Australian Migration Act encompasses a wide range of scenarios. It applies if you are considered a threat to the health, safety, or orderly conduct of either the entire Australian community or just a segment of it. This threat can be in various forms:
Existing,
Potential,
Likely, or
Possible.
Additionally, Section 116(1)(g) addresses visa cancellation in case of legal issues. If you’re charged with an offense under the laws of any State or Territory, this could lead to your visa being cancelled as per rule 2.43 in the Migration Regulations 1994. Notably, being placed on a good behavior bond, instead of imprisonment, is also grounds for visa cancellation under this section.
However, it’s important to note that the Department of Immigration cannot cancel certain types of visas, such as BVE or TY-444, using the powers granted by section 116(1)(g).
Supporting Documentation for s116
To prevent Section 116(1)(e) Visa Cancellation, you can provide supporting evidence as follows:
Apology letters to your victims:
Expressing remorse for any harm caused.Letters of support:
From family, friends, employers, colleagues, clubs, and others.A statement of facts:
Describing the charges against you.Court documents or briefs:
Outlining the court outcomes.Compliance with bail conditions:
If granted.Testimonials or certificates from community or religious leaders:
Highlighting your character and contributions.Medical records or reports:
Showing health issues that could worsen if the visa is cancelled.Proof of efforts to address your behavior:
Such as attending anger management or rehabilitation programs.Documentation of fines and penalties:
Imposed by the court.Your statement:
Explaining your actions, ties to Australia and your home country, remorse, and commitment to good behavior.Psychologists’ reports:
Including risk assessments.A National Police Certificate:
Detailing your offenses and sentences.Evidence of ongoing educational or professional development:
Demonstrating your commitment to improvement and contribution.Letters from family members:
Explaining the emotional and financial impact of your deportation on them.If employed, a letter from your employer:
Discussing your value and the availability of replacements.Evidence of positive contributions to the Australian community:
Such as mentoring, sports club participation, or volunteering.Legal opinions or precedents:
Indicating the potential success of your case or similar cases where visa cancellation was avoided.Sentencing magistrate’s remarks:
Considering factors like seriousness, planning, cooperation with police, and remorse.Information about your family situation in your home country:
To provide context about your personal background.The decision-maker’s consideration of evidence:
As per the ruling in Botha v MIBP [2017] FCA 362.
The court acknowledged that relying solely on past offenses may not be enough to justify visa cancellation, depending on circumstances. The decision-maker should consider your likelihood of re-offending. However, serious past offenses may still raise concerns about ongoing risk (Tien v MIMA (1998) 89 FCR 80). The decision-maker must explain how your conviction supports a finding of risk to the community (Leota at [65]). If charged but not convicted, the charge should not carry too much weight.
Cancellation Decision Criteria
If the Department decides to proceed with Section 116 visa cancellation, they will take into account the following considerations:
Potential Legal Consequences
Your eligibility for another visa onshore; the possibility of immigration detention until removal if ineligible; the impact of PIC 4013 or a 3-year ban due to failing the section 501 character test; the section 48 bar, limiting your ability to apply for specific visas; the risk of becoming an unlawful non-citizen and facing detention and removal.Non-refoulement Obligations
Whether your removal would breach Australia’s non-refoulement obligations, such as the risk of persecution or harm if returned to your home country.International Agreement Obligations
Australia’s obligations under international agreements that might be violated by the visa cancellation, particularly regarding the Convention on the Rights of the Child (CROC) if children are involved and the International Covenant on Civil and Political Rights (ICCPR) if family members are affected.Community Integration
Your contribution and integration into the Australian community: Evidence of your positive involvement in the community, like employment, volunteering, or social connections.Nature of the Offense
Details of the offense committed and the circumstances leading to it.Risk of Re-offending
Whether the offense was within your control and the risk of re-offending, as judged by the decision-maker in light of character statements and past behavior.Character Statements
The character statements from individuals aware of your past misconduct, including colleagues, and their belief about your potential for re-offending.Health Considerations
If you or your dependents have significant health issues that would be adversely affected by visa cancellation.Past and Present Conduct
Your past and current behavior towards the Department of Immigration regarding Section 116 Visa Cancellation.Cooperation with the Department
Your cooperation with the Department of Immigration when issued a Notice of Intention to Consider Cancellation (NOICC) related to Section 116(1)(e)(i) Visa Cancellation.Impact on Secondary Visa Holders
The presence of secondary visa holders on your visa and whether their visas might be canceled under section 140 due to your Section 116 visa cancellation.Evidence of Rehabilitation
Character witnesses’ input on whether you have improved as a person since the time of your offense and their assessment of the risk of future criminal conduct.
Timeframe for Response
Standard Period:
- Typically, the applicant is given 5-28 days to respond to the NOICC.
Variations Based on Circumstances:
- In certain situations, like immigration detention, the period might be shorter, e.g., 3 working days.
- Failure to respond within the stipulated timeframe allows the Delegate to decide on the application without further input, often leading to visa refusal.
Visa Options in Immigration Detention Centre
Non-refoulement Considerations:
Section 116 decisions must respect Australia’s non-refoulement obligations under international law. This principle prevents individuals from being returned to a country where they face serious threats to their life or freedom. The website should detail how this principle is applied in the context of Section 116 cancellations.
Rights of Children and Families:
In cases involving children, the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR) must be considered. These international agreements mandate the protection of children’s rights and the preservation of family unity, which are essential factors in visa cancellation cases.
Legal Consequences and Rights Post-Cancellation
Appeal Process:
After a visa is cancelled under Section 116, individuals have the right to appeal the decision. This process usually involves applying for a review by the Administrative Review Tribunal (ART). It is crucial to understand the timeframes and requirements for lodging an appeal, as missing a deadline can result in losing the right to appeal.
Merits Review by ART:
If a visa is cancelled, the visa holder can request a Merits Review by the ART. This independent body reviews the decision to cancel the visa, considering all aspects and evidence. It is essential for applicants to present compelling evidence and arguments during the Merits Review process to support their case.
Judicial Review:
Should the ART affirm the visa cancellation, the next step is to file a Judicial Review application with the Federal Circuit Court within a specific period (usually 35 days from the decision). This review focuses on whether there was a jurisdictional error in the decision-making process. The court does not re-assess the merits of the case but checks for legal errors in the decision.
What Are Your Next Steps
Upon receiving the notice from the Department, it is crucial to submit a well-prepared and comprehensive response that presents your case effectively. Providing accompanying supporting documents is equally essential.
If your visa has been directly canceled, you may have the option to seek a review of the cancellation through the Administrative Review Tribunal (ART) or the relevant courts.
Frequently Asked Questions
Can the Department cancel my visa even if I haven’t been charged or convicted yet?
Yes. Under s116(1)(e), your visa can be cancelled purely on “risk perception.”
The Department only needs to believe you might be a risk to public health, safety, or good order, not proof of a crime.
If my criminal case is dismissed in court, can I still lose my visa?
Yes. The Department may still rely on the alleged conduct, not the court outcome. Even without a conviction, the same facts can justify cancellation if they suggest ongoing risk.
If my visa is cancelled under s116, will my family’s visas be cancelled too?
Possibly. Under Section 140 of the Migration Act, any dependent visa linked to yours can also be cancelled automatically.
Can I be detained immediately after the visa cancellation?
Possibly. Once the cancellation takes effect, you immediately become an unlawful non-citizen, and under Section 189 of the Migration Act, you may be detained at any time.
What if the Department cancels my visa by mistake — can I get it reinstated?
You can request a revocation or lodge a Merits Review at the ART within strict time limits (usually 7–35 days). Missing the window almost always makes recovery impossible.
Can the Minister personally intervene after a Section 116 cancellation?
Yes, but Ministerial Intervention under s351 or s417 is purely discretionary and very rare.
It’s reserved for exceptional humanitarian or public interest cases.
What if I was outside Australia when my visa was cancelled? Can I come back?
No. Section 116 cancellation usually includes a re-entry ban for up to 3 years, especially if linked to PIC 4020 (false information) or character concerns.
What kind of evidence can actually save a visa from being cancelled under s116?
Strong character references, medical reports, proof of rehabilitation, and community contribution evidence often carry the most weight. Empty apologies rarely help.
Can I apply for another visa after Section 116 cancellation?
Usually not. If you hold a Bridging Visa E (BVE), you are also subject to the Section 48 bar, which prevents you from lodging any new substantive visa while in Australia, except for a Bridging Visa (BVE) or a Protection Visa.
What happens if I lose the ART appeal after a Section 116 cancellation?
Your bridging visa will automatically cease 35 days after the ART decision. You’ll become unlawful, face detention or removal, and possibly a 3- or 5-year re-entry ban.
Note: This FAQ is general information only and not legal advice. Settings (e.g., eligibility tests, exemptions, and evidentiary rules) can change; always check the latest legislative instruments before applying.
