Visa Cancellations

Section 109 Incorrect Information Cancellation

Wrong information in your application does not mean you are powerless.

Section 109 of the Migration Act allows the Department to cancel a visa where incorrect information was given in connection with the application. There are two legal tests that must both be satisfied before cancellation is even possible, and a genuine discretion that must be exercised before it proceeds.

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Understanding Section 109

What Is a Section 109 Visa Cancellation?

Section 109 of the Migration Act 1958 gives the Minister power to cancel a visa where incorrect information was given in connection with the visa application. It is a provision that causes enormous distress because many people who receive a NOICC under s109 had no idea the information in question was wrong, or did not provide it themselves. The law, however, does not require that incorrect information was given deliberately.

There are two distinct legal questions embedded in s109. First, was the information actually incorrect? Second, if correct information had been given, would the visa still have been granted on the same terms? This second question, known as the materiality test, is often the most important and most overlooked. If the visa would have been granted anyway even with the correct information, then s109 cannot ground a cancellation at all.

Even where both questions are answered in the Department's favour, s109 remains discretionary. The word "may" in the provision means the decision-maker is never required to cancel. They must weigh all the circumstances, including the nature and extent of the incorrect information, whether there was any intent to deceive, the visa holder's personal circumstances, and the consequences of cancellation. This discretion is a genuine one and is where many s109 matters are resolved in the visa holder's favour.

Section 109 is importantly different from the fraud provisions in the Migration Act, which target deliberate deception. A person can face a s109 cancellation based on an innocent mistake, information provided by a migration agent without the applicant's full knowledge, a misunderstanding of what was required, or information that was accurate at the time of application but was later found to be incomplete. None of these scenarios makes cancellation inevitable.

The most important thing to understand if you have received a NOICC under s109 is that you need to engage with the legal tests precisely and not simply write a letter saying the information was an honest mistake. A response that is not structured around the actual statutory tests is unlikely to prevent a cancellation. One that is structured correctly, and that properly addresses both the ground and the discretion, can and does prevent cancellations from proceeding.

Key facts about s109

Intent Is Not Required: Section 109 can apply even where the incorrect information was given innocently, unknowingly, or by someone acting on the applicant's behalf. But this does not make cancellation automatic.
Two-Part Legal Test: The Department must establish both that information was incorrect AND that the visa would not have been granted in the same terms if correct information had been given. Both parts must be satisfied.
Always Discretionary: Even where both tests are met, the Minister may choose not to cancel. The discretion must be genuinely exercised. A strong case on discretion can and does prevent cancellations.
NOICC Usually Required: In most cases the Department must issue a Notice of Intention to Consider Cancellation and give you an opportunity to respond before any cancellation is made.
ART Review Available: Most s109 cancellations can be reviewed at the ART. Lodge within 28 days (not in detention) or 14 days (in detention). These deadlines are absolute.
Materiality Is Everything: If the visa would have been granted even with the correct information, s109 cannot apply. Challenging whether the incorrect information was actually material to the grant is one of the most powerful arguments available.

The Legal Framework

The Two-Part Test the Department Must Satisfy

Before a visa can be cancelled under s109, the Department must satisfy two distinct legal requirements. Both must be established. If either fails, the cancellation ground does not exist. Understanding this framework is essential, because challenging either part of the test, or both, is often the most powerful argument available in a s109 matter.

Incorrect Information Was Given

The first question is whether information given in connection with the visa application was in fact incorrect. This includes information provided in the application form, in supporting documents, in interviews, or in any other material submitted in connection with the application. It also includes information given "on behalf of" the applicant, such as information provided by a migration agent, a sponsor, or a third party acting with the applicant's authority.

The information must have been incorrect at the time it was given. Where information was accurate when provided but circumstances later changed, this element may not be satisfied. The question is whether what was stated was wrong at the relevant time, not whether it is wrong now.

✗ If information was correct: s109 ground does not exist. Cancellation cannot proceed on this basis.

The Information Was Material to the Grant

The second question is the materiality test: would the visa still have been granted, or granted on the same terms, if the correct information had been given? This is a hypothetical analysis. If the answer is yes, the visa would still have been granted anyway, then s109 does not apply regardless of how the incorrect information came to be given.

This test is often the strongest argument available. Even where incorrect information was clearly given, if the correct information would not have changed the outcome of the application, the entire legal foundation for the cancellation falls away. This requires a careful analysis of the visa criteria that applied at the time of grant and how the correct information would have affected the assessment.

✗ If visa would have been granted anyway: s109 ground does not exist. Cancellation cannot proceed.

Even If Both Tests Are Met, Cancellation Is Still Not Inevitable

Section 109 uses the word "may." Even where the Department establishes that information was incorrect and that it was material to the grant, the decision-maker retains a genuine discretion about whether to proceed with cancellation. The nature of the incorrect information, whether it was deliberately misleading or a genuine mistake, the visa holder's circumstances, their ties to Australia, the impact on family members, and many other factors can lead the decision-maker to exercise discretion against cancellation. A well-prepared NOICC response addresses all three stages: whether the information was incorrect, whether it was material, and why the discretion should not be exercised to cancel even if both preceding questions are resolved against the visa holder.

How It Arises in Practice

Common Section 109 Scenarios and How They Play Out

Section 109 catches a much wider range of people than those who deliberately lied in their applications. These are the scenarios we encounter most frequently, and what the legal analysis actually looks like in each.

Migration Agent Provided Information Without Applicant's Full Knowledge

A migration agent completed and submitted a visa application on the applicant's behalf, including information the applicant did not review carefully or at all. Some information in the application turns out to be incorrect. Because the information was given "on behalf of" the applicant, s109 can apply even though the applicant did not write or verify the relevant statements.

Key argument: The absence of intent, the reliance on professional advice, and whether the information was actually material to the grant. Agent misconduct may also give rise to a separate complaint to the relevant regulator.

Employment History or Qualifications Overstated

An applicant or their agent described employment history, job duties, or qualifications in terms that turn out to be inaccurate or exaggerated when compared to official records, employer confirmations, or skills assessment outcomes. The Department treats the discrepancy as incorrect information. This arises frequently in skilled worker and employer-sponsored visa matters.

Key argument: Whether the actual qualifications and history, properly characterised, would still have met the grant criteria. Materiality is often the strongest ground in these cases.

Prior Visa Refusals or Immigration History Not Disclosed

A visa application did not disclose a previous visa refusal, a period of unlawful status, a deportation, or another immigration event that was asked about. This may have been a misunderstanding of the question, an oversight, or an assumption that the event did not need to be disclosed. The failure to disclose can be treated as incorrect information.

Key argument: Whether the question required disclosure of the specific event, whether there was genuine misunderstanding, and whether the visa would have been granted had the event been disclosed are all critical issues.

Relationship Circumstances Described Inaccurately

In partner visa applications, the circumstances of the relationship were described in a way that does not accurately reflect what the relationship was at the time of the application. This can include the duration, the nature of cohabitation, financial arrangements, or social recognition. Even where the relationship was genuine, imprecise descriptions can trigger a s109 concern.

Key argument:Whether the description was materially incorrect rather than merely imprecise, and whether the relationship as it actually existed at the time of application would still have met the grant criteria.

Health or Character Information Incomplete

A visa application did not fully disclose a medical condition, a treatment history, or a matter relevant to the character assessment, whether because the applicant was unaware of the condition, misunderstood what needed to be disclosed, or received incorrect advice about the scope of their disclosure obligations. Health and character non-disclosures frequently lead to s109 concerns on later review.

Key argument:Whether the applicant was actually aware of the condition at the time of application, whether it was required to be disclosed, and whether the outcome of the health or character assessment would have differed.

Business or Financial Information Was Inaccurate

In business or investor visa applications, financial statements, business plans, or ownership information provided at the time of application do not accurately reflect the actual position. This can arise from overly optimistic projections presented as facts, accounting approaches that differ from what the Department expected, or information prepared by third parties that contained errors the applicant was unaware of.

Key argument: Whether the inaccuracy was material to the grant criteria, whether it was presented as fact or projection, and whether correct information would have changed the outcome of the assessment.

Know the Difference

Section 109 vs Section 116: Why the Distinction Matters

Both s109 and s116(1)(g) can apply where incorrect information was provided in connection with a visa application, but they have different scope, different elements, and different implications. Responding to the wrong provision is a fundamental error that weakens your case. Your response must address the exact provision cited in your NOICC.

Section 109

Who provided the information:
By or on behalf of the visa applicant (includes agents acting for the applicant)

Is intent required?
No. Innocent mistakes can trigger s109. Intent is relevant only to the discretion, not to the ground itself.

Materiality requirement:
Yes. The visa must not have been granted, or not on the same terms, if correct information had been given. This is a separate legal requirement.

Is it discretionary?
Yes. The word "may" means the decision-maker is never required to cancel even where both elements are established.

ART review available?
Yes. Most s109 cancellations are reviewable at the ART on the merits.

Strongest defence:
Challenging materiality: the visa would have been granted anyway with correct information.

Section 116(1)(g)

Who provided the information:
By another person (a third party not acting on behalf of the applicant, such as an employer or sponsor)

Is intent required?
No. The focus is on whether the information was false or misleading, not on the mental state of the provider.

Materiality requirement:
No express materiality test in the same terms. The ground under s116(1)(g) is whether information was false or misleading.

Is it discretionary?
Yes. Section 116 is always discretionary regardless of which subsection applies.

ART review available?
Yes. Section 116 cancellations are generally reviewable at the ART.

Strongest defence:
Challenging whether the information was actually false or misleading, or discretion arguments.

Your Arguments

The Arguments That Can Prevent a Section 109 Cancellation

A s109 cancellation is not inevitable simply because information in an application was wrong. There are distinct legal arguments at each stage of the analysis, and a well-prepared response addresses all of them. These are the strongest lines of argument and when they apply.

The Information Was Not Actually Incorrect

The Department's characterisation of the information as incorrect is itself open to challenge. This is the first and most direct argument: the information provided was accurate, or was a reasonable and defensible characterisation of the facts, and the Department's interpretation that it was incorrect is wrong. This argument requires a precise analysis of what was stated, what was actually true, and how the two compare.

⚖️ Decision-makers can be wrong about what the facts actually were. Do not accept the Department's characterisation of the information as incorrect without challenging it if there is a genuine basis to do so.

The Incorrect Information Was Not Material to the Grant

This is often the most powerful argument available in a s109 matter. Even if the information was incorrect, if the visa would still have been granted on the same terms had the correct information been given, the legal foundation for the cancellation does not exist. This requires a careful analysis of the criteria that applied to the visa at the time of grant and how the correct information, assessed against those criteria, would have affected the outcome.

🔑 If the correct information still met every grant criterion, the materiality test fails and s109 cannot apply. This argument should be developed with specific reference to the applicable visa criteria.

The Information Was Not Given "By or On Behalf of" the Applicant

Section 109 requires that the incorrect information was given "by or on behalf of" the non-citizen. Where information was provided by a genuinely independent third party who was not acting on the applicant's behalf, and the applicant had no knowledge of or control over what that party provided, there is an argument that this element is not satisfied. This is a narrower argument but can be relevant in cases where third parties were involved in the application process without the applicant's authorisation.

📌 The distinction between a party acting "on behalf of" the applicant and an independent third party acting for their own purposes is fact-specific and legally significant.

The Circumstances Have Changed Since the Incorrect Information Was Given

In some cases, the circumstances that made the information incorrect have since been rectified, or the visa holder's situation has changed such that the concerns that triggered the NOICC no longer apply in the same way. While this does not resolve the question of whether s109 is technically made out, it is highly relevant to the discretion question and to whether the Department's ongoing concern has the same weight it did when the issue was first identified.

📅 Changed circumstances do not fix the technical s109 analysis but are very relevant to why the discretion should not be exercised to cancel even if the ground exists.

The Discretion Should Not Be Exercised to Cancel

Even where both elements of s109 are technically established, the decision-maker must still decide whether to exercise the discretion to cancel. Relevant factors include the absence of intent to deceive, the minor or inadvertent nature of the incorrect information, the visa holder's strong ties to Australia, the impact on dependent family members, the visa holder's compliance history across the life of the visa, and any hardship that cancellation would cause. This discretion argument should always be included in any NOICC response or ART submission.

💡 The discretion argument is not a backup position. It is an independent and sometimes decisive line of argument that runs in parallel with the technical s109 analysis and should always be fully developed.

Procedural Fairness Was Not Provided

The Department is required to give the visa holder a genuine opportunity to respond to a proposed s109 cancellation before making its decision. Where this obligation has not been properly fulfilled, whether because the notice was defective, the information relied upon was not properly disclosed, or the response period was unreasonably short given the complexity of the matter, there may be grounds to challenge the procedural validity of the cancellation at the ART or in the Federal Court.

⚠️ Procedural fairness arguments are more commonly raised in ART review or Federal Court proceedings than at the NOICC stage, but they can be preserved and raised if the process is not correctly followed.

How the Process Works

The Section 109 Process from NOICC to ART

The s109 process typically begins with a NOICC giving you the opportunity to respond before the Department makes any cancellation decision. Where it proceeds to cancellation, ART review is available. Understanding exactly where you are in this process tells you what must happen next and by when.

The most important intervention point is always the NOICC stage. Preventing cancellation here is almost always better than challenging it afterwards. If a cancellation has already been made, the ART can still set it aside on the merits, but it is a longer and more costly process.

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The Department identifies a potential s109 concern

The Department becomes aware of information suggesting that incorrect information may have been given in connection with a visa application. This can arise during a compliance audit, a departmental check, cross-referencing with other agencies, a tip-off, or during assessment of a subsequent visa application that reveals a discrepancy with the original.

💡 Many s109 NOICCs arise years after the visa was granted, when a discrepancy between the original application and later information comes to light. The fact that time has passed does not remove the concern, but it does strengthen discretion arguments about the visa holder's circumstances and compliance history.

A NOICC is issued identifying the specific incorrect information

The Department issues a formal Notice of Intention to Consider Cancellation. The notice should identify the specific information said to be incorrect, the provision under which cancellation is being considered, the information the Department is relying upon, and the deadline for your response. Read every word of this notice carefully. The specific language used is legally significant.

📋 Check the notice: does it cite s109, s116, or both? Does it precisely identify what the incorrect information was? Does it explain why the Department considers it was material? The answers shape your entire response strategy.

You respond with submissions addressing both tests and the discretion

Your written response must address the two-part legal test and the discretion question. If you are challenging whether the information was actually incorrect, provide specific evidence. If you are challenging materiality, analyse the visa criteria and demonstrate that correct information would not have changed the outcome. If both elements are conceded, make your strongest submissions on why the discretion should not be exercised to cancel.

✍️ A response that only says "the mistake was innocent" without engaging with the actual legal tests rarely prevents cancellation. Every NOICC response we prepare addresses the statutory framework precisely and supports every factual assertion with specific evidence.

The Department decides whether to proceed with cancellation

After considering your response, the Department decides whether to cancel or to close the matter. If your response successfully challenged the legal tests or made compelling discretion submissions, the Department may decide not to proceed. If it proceeds, you will receive a written cancellation decision. This is where the ART review pathway begins.

✅ Resolution at this stage is always the best outcome. It is faster, cheaper, and leaves no cancellation on your immigration record. Every s109 matter where cancellation was prevented by a strong NOICC response represents a significantly better outcome than an ART success.

If cancelled, apply for ART review immediately

Most s109 cancellations can be reviewed at the Administrative Review Tribunal. The Tribunal reviews the matter on its merits and can set the cancellation aside if the legal tests were not met or if the discretion was not appropriately exercised. The review application must be lodged within 28 days of notification of the cancellation if you are not in detention, or 9 days if you are. These deadlines are absolute. Missing them permanently extinguishes your ART review rights.

🚨 From the moment a s109 cancellation is notified, you are an unlawful non-citizen. Lodging an ART review application within the deadline may allow a bridging visa to be granted, restoring your lawful status while the review proceeds. Speed of action is critical.

ART hearing and decision, with Federal Court as a further option

At the ART, the matter is considered afresh. New evidence can be presented, the legal tests are assessed, and the Tribunal applies the discretion independently. If the ART affirms the cancellation and there is an identifiable legal error in the decision, Federal Court review is available. If the cancellation stands, ministerial intervention remains as a last resort in cases of genuine compelling hardship.

🏛️ Federal Court review of a s109 ART decision is available where there is a jurisdictional error in the Tribunal's analysis, not where you simply disagree with the outcome. Identifying a legal error requires specialist legal assessment of the ART decision.

The Stakes

What Is at Risk and What Can Be Saved

A s109 cancellation carries consequences that extend well beyond the immediate loss of a visa. Understanding what is at stake on both sides of this matter is essential to appreciating why acting properly from the outset is so important.

Without Expert Representation

What typically happens when s109 matters are not properly handled

NOICC response fails to challenge materiality, conceding the strongest argument without realising it
Visa cancelled despite a compelling discretion case that was never made
ART deadline missed, permanently extinguishing the right to merits review
Section 48 bar applied, blocking further visa applications while in Australia
The cancellation becomes part of the permanent immigration record, complicating every future application
Dependent family members lose their linked visa status along with the primary holder

With Expert Representation

What a precisely prepared response or review can achieve

Cancellation prevented entirely at the NOICC stage by successfully challenging materiality or the factual basis of the incorrect information claim
Discretion exercised against cancellation where genuine intent to deceive is absent and circumstances strongly favour the visa holder
ART review lodged within deadline, bridging visa obtained, lawful status protected while the review is determined
Cancellation set aside at the ART on materiality or discretion grounds, with visa fully restored
Immigration record preserved clean, with no cancellation affecting future applications or citizenship prospects
Family members on linked visas protected as a result of the primary matter being resolved

What to Avoid

The Most Common Section 109 Response Mistakes

The patterns we see most often in s109 matters that result in avoidable cancellations and lost review opportunities.

Conceding both tests without challenging them

Many people respond to a s109 NOICC by immediately accepting that incorrect information was given and that it was material, then focusing entirely on explaining why it was an honest mistake. This concedes the two legal arguments that are most likely to defeat the cancellation entirely, before ever making them.

Relying on honesty as a complete answer

Saying "I was not trying to deceive anyone" is relevant to the discretion question but does not address the legal tests. Section 109 does not require deceptive intent to be satisfied. A response that only asserts honest intent while ignoring the statutory framework will rarely prevent cancellation.

Not analysing the visa criteria for the materiality argument

The materiality test asks whether the visa would have been granted with correct information. Answering that question properly requires a close analysis of the visa criteria that applied at the time of grant. Many responses skip this analysis entirely and simply argue that the error was minor, which is not the same legal question.

Blaming the migration agent without engaging with s109

Where an agent provided incorrect information, it can be tempting to respond with a narrative about what the agent did wrong. While agent misconduct is relevant, s109 still applies to information given "on behalf of" the applicant. The response must still engage with the legal tests, not just explain the chain of events.

Providing documents without explaining their relevance

Attaching payslips, tax records, certificates, or other supporting documents without explaining precisely how they address each element of the s109 analysis is a missed opportunity. Evidence must be explicitly connected to the legal arguments being made, not left for the decision-maker to interpret on their own.

Waiting to see what happens after receiving a NOICC

Some people receive a s109 NOICC and take a week or more to decide what to do. During that time, the response deadline continues to run and preparation time shrinks. If you cannot prevent the cancellation in the NOICC window, you are in a significantly more difficult position than if you address it with full preparation at that stage.

Why Choose Us

Section 109 Is a Precise Legal Analysis. We Know It in Detail.

We Challenge Materiality First: The materiality test is the most frequently overlooked argument in s109 matters. We analyse it in every case by working through the visa criteria that applied at the time of grant and assessing what would have changed if correct information had been given. If the test fails, the cancellation ground does not exist.
We Address All Three Stages: Every s109 response we prepare addresses whether the information was incorrect, whether it was material, and why the discretion should not be exercised to cancel. Leaving any of these unaddressed is a strategic failure. We never leave an argument on the table.
Same-Day Triage for Urgent Matters: Whether you have just received a NOICC or a cancellation notice, we treat s109 matters as urgent from the first contact. We can assess your situation, advise on arguments, and begin preparing your response the same day you reach us.
Former Tribunal Experience: Craig Dengate worked inside the Administrative Appeals Tribunal before entering private practice. He knows how Tribunal members read s109 materiality arguments and weigh discretion submissions, and that knowledge informs every response and review preparation we undertake.
Honest About What Is and Is Not Available: Where both elements of s109 are clearly established and the discretion arguments are limited, we say so. We do not encourage people to spend money on responses or reviews that we do not believe have a genuine prospect of a different outcome.
End-to-End Representation: From the NOICC response through to ART review and the Federal Court if needed, we stay with your case. If we prepare your NOICC response and the Department proceeds to cancel, we are already across every detail and can move directly into ART proceedings without you repeating your entire history.

The materiality test is often the strongest argument in a s109 matter. Most people do not know to make it.

The most common failure we see in self-prepared s109 NOICC responses is that people accept the framing of the NOICC and focus entirely on explaining why the mistake was innocent, without ever engaging with whether the mistake was legally material at all. If the visa would have been granted on the same terms even with correct information, the legal foundation for the cancellation does not exist. That argument, made properly, with specific reference to the applicable visa criteria and supported by evidence, has prevented a significant number of s109 cancellations that appeared, on first reading of the NOICC, to be straightforward. It requires a legal analysis, not just a personal explanation. That is what we provide.

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Frequently Asked Questions

Frequently Asked Questions About Section 109

Can the Department cancel my visa for something that happened years ago?

Yes. There is no limitation period in s109 that prevents the Department from acting on incorrect information discovered long after a visa was granted. It is common for s109 NOICCs to be issued years after the visa grant, when a compliance review or cross-check with another database reveals a discrepancy. Where a significant period of time has passed since the visa was granted, this can actually strengthen the discretion arguments in your favour, because the visa holder typically has years of lawful compliance history, established ties to Australia, and other circumstances that weigh against cancellation. The passage of time does not eliminate the Department's power to act, but it does strengthen the case for why the discretion should not be exercised.

My Migration agent filled in my application and made an error. Am I still liable under s109?

Section 109 applies to information given "by or on behalf of" the non-citizen. A registered migration agent or other person authorised to act on your behalf falls within the scope of that phrase, which means that information incorrectly provided by an agent acting for you can trigger s109 even though you did not write the application yourself and were unaware of the error. However, the absence of your personal knowledge of or involvement in the error is highly relevant to the discretion analysis. It may also support a complaint to the relevant regulatory body if the agent acted negligently. A complaint against the agent runs in parallel with the s109 response and does not replace the need to respond to the NOICC urgently.

The information I provided was accurate when I gave it but is no longer true. Does s109 apply?

Section 109 focuses on whether the information was incorrect at the time it was given in connection with the application, not whether it is incorrect now. If the information was accurate when provided and circumstances changed after the visa was granted, this may mean the s109 ground is not technically made out at all. The argument would be that the information given was not incorrect at the time, which is the first element of the s109 test, and that the provision therefore does not apply. If the situation involved circumstances that changed before the visa was granted but after the information was provided, the analysis is more complex and requires specific legal advice.

What is the difference between s109 and s116 when it comes to incorrect information?

Both provisions can involve incorrect information, but they apply in different circumstances. Section 109 applies specifically where incorrect information was given by or on behalf of the visa applicant, and includes a mandatory materiality test requiring that the visa would not have been granted on the same terms if correct information had been provided. Section 116(1)(g) applies where information given by another person (not acting on behalf of the applicant) was false or misleading, and does not include the same materiality requirement. If your NOICC cites s109, the legal analysis and the applicable arguments differ from those available under s116, and your response must address the correct provision.

What is a Section 109 visa cancellation?

Section 109 of the Migration Act 1958 allows the Minister to cancel a visa where incorrect information was given in connection with the visa application, and where the visa would not have been granted, or would not have been granted in the same terms, if correct information had been given. It is important to understand that s109 is discretionary, even where both elements are met. The decision-maker has a genuine discretion about whether to cancel, and how that discretion is exercised often turns on the quality of the submissions and evidence placed before the decision-maker.

What is the materiality test and why does it matter?

The materiality test asks whether the visa would have been granted, or granted on the same terms, if the correct information had been given. It is the second element of the s109 test and must be satisfied before the cancellation ground exists at all. It is often the most important and most overlooked argument in s109 matters. If the correct information still met every applicable visa criterion, then the grant outcome would have been the same, the materiality test fails, and s109 cannot apply regardless of how the incorrect information came to be in the application. This argument requires a precise analysis of the visa criteria that applied at the time of grant.

I did not know the information in my application was wrong. Can my visa still be cancelled?

Yes. Section 109 does not require that incorrect information was given deliberately or with knowledge that it was false. The element of intent is not part of the legislative test. However, the absence of any intent to deceive is a factor that is directly relevant to the discretion question: whether the Minister should choose to exercise the power to cancel even though the legal test is technically met. A person who made a genuine, innocent mistake and had no reason to know information was wrong is in a meaningfully different position from someone who deliberately misled the Department, even though both may technically satisfy the s109 ground.

How much does it cost to respond a s109 NOICC or challenge a cancellation?

Costs depend on the complexity of the s109 issue, the number of grounds identified in the NOICC, the volume of evidence required, and the stage of the matter. A NOICC response in a straightforward case is generally less costly than a full ART hearing. We provide a clear fixed fee quote before any work begins, based on a proper assessment of your specific matter at the initial consultation. Our 2-day cooling-off period applies so you can engage us without immediately committing. There is no obligation to proceed after receiving the quote. We discuss costs openly at the first consultation because we believe you should never be surprised by a fee, and because understanding what the process involves financially is part of making an informed decision.

Does s109 apply to information given before the visa was lodged, such as in an expression of interest?

Section 109 applies to incorrect information given "in connection with" the visa application. Courts have interpreted this phrase broadly to include not only information given in the application form itself but also information provided in supporting documents, in interviews, and in other material that was given as part of or in connection with the visa application process. Whether an expression of interest, a pre-application assessment, or other pre-lodgement communication falls within this scope depends on the specific circumstances and how it was connected to the subsequent application. This is an issue that requires specific legal analysis based on the facts of the particular matter.

Can I challenge a s109 cancellation if I was represented by a negligent migration agent?

Agent negligence is relevant to the s109 analysis in several ways. At the NOICC stage and in ART review, evidence that an agent provided incorrect information without proper instructions or review by the applicant is relevant to the discretion question and may also be relevant to whether the information was truly given "on behalf of" the applicant in the full legal sense. In parallel, you may have a separate civil claim against the agent for negligence and a complaint to the Migration Agents Registration Authority (MARA) if the agent is registered, or to the Legal Services Commissioner if the agent is a solicitor. These parallel processes do not replace the need to respond to the cancellation process urgently, but they are separate avenues that can be pursued simultaneously.

Can the Federal Court review a s109 decision?

Yes, where the cancellation decision, whether made by the Department or affirmed by the ART, involved a legal error. The Federal Circuit and Family Court of Australia has jurisdiction to review decisions that involved jurisdictional error, breach of procedural fairness, or a decision made beyond the powers of the decision-maker. Legal errors in s109 decisions commonly involve a failure to correctly apply the materiality test, a failure to consider relevant factors in the discretion analysis, or a failure to properly provide procedural fairness. The Court cannot substitute a different outcome merely because it disagrees with the decision on the merits. Federal Court review is pursued where a specific, identifiable legal error can be established in the decision under review.

What If I did not understand the question in the visa application form?

A genuine misunderstanding of a question in a visa application is a factor relevant to the discretion analysis in a s109 matter. It bears on the absence of intent to mislead and the good faith of the visa holder in providing their response. However, a misunderstanding of the question does not prevent the information from being incorrect, and it does not automatically resolve the materiality question. These are separate analyses. The misunderstanding is most powerful when combined with a materiality argument, for example, that the information provided, even if incorrect due to a misunderstood question, did not affect the outcome of the application because the correct answer would still have met the applicable criteria.

Will a s109 cancellation affect my citizenship application?

Yes. Citizenship applications require the applicant to be of good character as assessed under the Australian Citizenship Act 2007. A s109 cancellation, particularly one involving a finding that information was deliberately or recklessly given, would raise serious character concerns in a citizenship assessment. Even where the incorrect information was clearly inadvertent, the existence of a cancellation record requires disclosure and will be weighed by decision-makers. This is another important reason why preventing the cancellation at the NOICC stage or overturning it at the ART is so valuable: it removes the cancellation from the record entirely.

My NOICC says the information was incorrect but I believe it was accurate. What do I do?

This is one of the strongest positions available in a s109 matter. If you have genuine grounds for believing that the information characterised by the Department as incorrect was actually accurate, this is a direct challenge to the first element of the s109 test. If the information was correct, the cancellation ground does not exist at all. You need to gather specific evidence that demonstrates the accuracy of the information as given, including documents, records, or statutory declarations that support your position. This argument must be made precisely and be well evidenced. A bare assertion that the information was correct will not be sufficient without supporting material.

What if the Department is relying on a difference in how information was described rather than a factual error?

This is a common and important scenario. Sometimes a NOICC characterises information as incorrect when the real issue is that information was described in different terms in different documents, or that the characterisation in the application does not precisely match how the same facts are described elsewhere. Whether this amounts to "incorrect information" within the meaning of s109 depends on whether the substance of what was stated was wrong, not merely whether the wording differed. This is a legal argument about the scope of s109 and requires careful analysis of the specific language in the application versus the information now being relied upon by the Department.

How long do I have to apply for ART review after a s109 cancellation?

For most s109 cancellations, the ART review application must be lodged within 28 days of notification of the cancellation decision if you are not in immigration detention, or within 9 days if you are. The date of notification is typically the date the cancellation decision is sent by the Department, not the date you actually receive it. These deadlines are absolute and cannot be extended under any circumstances. Missing them permanently removes your right to ART review. If there is any uncertainty about when your deadline expires, contact us immediately. Do not estimate and do not wait.

Can the ART overturn a s109 cancellation?

Yes. The ART has full merits review power over most s109 cancellations. The Tribunal considers the matter afresh, can receive new evidence and submissions, and applies the legal tests and the discretion independently of what the Department decided. It can set aside the cancellation if it finds that either element of the s109 test was not satisfied, or that the discretion should not have been exercised to cancel even if both elements were met. New evidence about the applicant's circumstances as at the date of the hearing can also be presented and can be powerful in strengthening discretion arguments that may not have been as developed at the NOICC response stage.

Does a s109 cancellation prevent me from applying for another visa?

A s109 cancellation has two significant effects on future visa applications. First, the s48 bar applies to most people in Australia whose visa has been cancelled, preventing them from lodging further substantive visa applications (with very limited exceptions) while they remain onshore. Second, the cancellation becomes a permanent part of your immigration history that must be disclosed in any future application and that decision-makers are required to consider. A s109 cancellation can also raise character and integrity concerns in future applications, depending on the nature of the incorrect information involved. Overturning the cancellation at the ART entirely avoids both these consequences.

My visa was cancelled under s109 while I was overseas. Do I still have reviews rights?

Whether ART review is available for a s109 cancellation made while you are offshore depends on the specific circumstances. Some s109 cancellations made offshore are reviewable at the ART; others are not, or the review rights are more limited. The deadline for lodging a review application also still applies even if you are outside Australia, which creates practical challenges. If you have been notified of a s109 cancellation while overseas, the question of what review rights apply and within what timeframe needs to be established immediately. Do not assume that being overseas gives you more time or changes your review rights.

What happens to my status immediately after a s109 cancellation?

The moment a s109 cancellation takes effect, the visa ceases to exist and you become an unlawful non-citizen under the Migration Act. As an unlawful non-citizen you are liable to be detained under section 189. Whether detention occurs immediately depends on the circumstances of the cancellation and how quickly you respond. Lodging an ART review application within the applicable deadline can result in the grant of a bridging visa that restores your lawful status for the duration of the review. The speed with which you act after receiving a cancellation notice directly affects your ability to obtain bridging visa protection and to preserve your review rights.

The Legal Tests Are Clear. So Are Your Arguments.

Section 109 Is Not the End. But You Need to Act Now, While You Can Still Prevent It.

The NOICC stage is where s109 cancellations are most effectively challenged. The materiality test, the discretion, and the factual accuracy of the Department's characterisation of the incorrect information are all open arguments at this stage. Once a cancellation is made, the options shift. Book an urgent assessment and we will tell you exactly what arguments are available and which are strongest in your specific case.

Book a Visa Assessment Call 1300 040 300