Section 116 Visa Cancellation Lawyers

No. Several grounds under s116 can apply where the visa holder is not personally at fault. The most common example is where an employer, sponsor, education provider, or migration agent provided false or misleading information that was used in granting the visa, or where circumstances changed because of a third party's actions such as an employer ceasing to operate or withdrawing a nomination. In these cases the ground for cancellation can exist even where the visa holder acted entirely in good faith. The absence of personal fault is highly relevant to the discretion question and should be a central part of any response.

When a sponsoring employer ceases operations, it removes the foundational basis on which the 482 visa was granted and can trigger a s116 cancellation under the "circumstances that no longer exist" ground. However, cancellation is not automatic. The Department must still issue a NOICC, consider any response, and decide whether cancellation is appropriate in all the circumstances. You have a 60-day grace period from when you cease employment to either find a new sponsoring employer and have a new nomination approved or depart Australia or apply for a different visa. Acting quickly within that window is critical. Contact us immediately if your employer has closed or you have lost your sponsored employment.

Technically yes, exceeding the permitted work hours on a student visa is a breach of condition 8104 or 8105 and can ground a s116 cancellation. However, the Department must still decide whether to exercise its discretion to cancel, and in cases of minor or inadvertent breaches where the student has otherwise complied with all conditions and is in good academic standing, the discretion is frequently not exercised. The scale of the breach, how long it continued, whether it was inadvertent, and your overall compliance history are all relevant. If you have received a NOICC about a work hours breach, get legal advice before responding. The discretion argument is often the strongest card you have.

Yes. Section 116 can be exercised at the border without prior notice if the person is in immigration clearance. This is one of the most alarming aspects of the provision for travellers who may be unaware that a cancellation ground exists in relation to their visa. Cancellations at the border can occur very rapidly and result in the person being denied entry and removed. If you are concerned about a potential issue with your visa before travelling to or returning to Australia, get legal advice before you travel. It is far easier to address a concern before departure than at the airport.

For most s116 cancellations, you have 28 days from the date of notification of the cancellation decision to lodge an application for merits review at the Administrative Review Tribunal, provided you are not in immigration detention at the time. If you are in detention when notified, the deadline is 9 days. These deadlines are absolute and cannot be extended regardless of the circumstances. The date of notification is typically the date the cancellation notice is sent by the Department, not the date you receive it. If there is any uncertainty about when your deadline expires, contact us immediately rather than waiting until closer to what you believe the deadline to be.

When a visa is cancelled under s116, you immediately become an unlawful non-citizen under the Migration Act. As an unlawful non-citizen you are liable to be detained under section 189 of the Act. Whether detention actually occurs depends on the specific circumstances, the manner in which the cancellation is notified, and how quickly a response is made. Lodging an ART review application within the applicable deadline can, depending on the circumstances, result in the grant of a bridging visa that restores lawful status while the review is determined. This is why speed of action after a s116 cancellation is so critical.

Following a s116 cancellation, your original visa ceases to have effect and you become an unlawful non-citizen. Lodging an ART review application can result in the grant of a bridging visa, and the conditions of that bridging visa will determine your work rights during the review period. Bridging visa work rights are not automatic and depend on the class of bridging visa granted. In some circumstances, work rights can be applied for as part of the bridging visa grant. We advise on bridging visa work rights as part of our s116 review representation so that you understand exactly what you can and cannot do during the review period.

Whether ART review is available when a cancellation is made while you are offshore depends on how the cancellation was effected and the type of visa cancelled. Some s116 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 still applies even if you are offshore, which creates practical challenges in gathering evidence and meeting timeframes. If you have been notified of a s116 cancellation while overseas, contact us immediately to establish what review rights exist in your specific situation and what the applicable deadline is.

Costs depend on the stage of the matter, the complexity of the ground, the type of visa involved, and the volume of evidence and submissions required. A NOICC response for a relatively straightforward condition breach is typically less costly than a full ART hearing in a complex sponsorship matter with multiple grounds. We provide a clear fixed fee quote before any work begins, based on a proper assessment of your specific matter. Our 2-day cooling-off period applies so you can engage us without immediately committing. We discuss costs openly at the initial consultation so there are no surprises.

If the ART affirms the cancellation, the visa remains cancelled and you are an unlawful non-citizen. The remaining options at that point are Federal Court review where a legal error in the ART decision can be identified, and ministerial intervention as a genuine last resort in cases involving compelling humanitarian or personal circumstances. Federal Court proceedings are expensive and available only where a proper legal error exists. Ministerial intervention is highly discretionary and exercised rarely. This is why every effort should be made to succeed at the NOICC response stage, and then at the ART, rather than relying on what comes after. If an ART hearing is upcoming, preparation quality is everything.

Partner visas can be cancelled under s116 where the circumstances that existed at the time of grant no longer exist, such as where the relationship has broken down before a permanent grant has been made. However, the Department must still issue a NOICC and consider your response before proceeding to cancellation. If your relationship has ended but there are special circumstances that may apply, such as family violence provisions which allow certain partner visa applicants to continue their application despite a relationship breakdown, these must be assessed and submitted urgently as part of your response. Partner visa cancellation following relationship breakdown is a complex area where getting specialist advice promptly is essential.

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 a jurisdictional error, a failure of procedural fairness, or a decision made beyond the powers of the decision-maker. It is not a merits review. The Court cannot substitute a different outcome simply because it disagrees with the decision. Where a legal error is identified, the Court can set the decision aside and remit it for reconsideration. Federal Court review is typically pursued after ART merits review is exhausted or has produced an adverse outcome. Legal errors in s116 decisions most commonly involve a failure to consider a relevant matter or taking into account an irrelevant one.

Having Australian citizen family members does not legally prevent a s116 cancellation, but it is highly relevant to the discretion question. The impact of cancellation on dependent family members, particularly children who are Australian citizens or permanent residents, is a consideration that decision-makers and the ART must genuinely weigh. Evidence about the nature and depth of your family relationships, the dependence of family members on you, and the hardship that removal would cause can be influential factors in both the NOICC response and an ART review. These arguments must be supported by specific evidence, not just assertions, to carry their full weight.

Yes. A s116 cancellation has two immediate downstream effects on future visa applications. First, the s48 bar applies to most people whose visa has been cancelled while they are in Australia, preventing them from lodging further visa applications (with very limited exceptions) while they remain onshore. Second, the cancellation becomes part of your immigration history and must be disclosed in future visa applications. Depending on the ground, it may raise character or compliance concerns that decision-makers weigh in assessing a future application. This is one of many reasons why preventing the cancellation at the NOICC stage, or overturning it at the ART, is far better than allowing it to stand.

This depends entirely on the s48 bar and your specific circumstances. Section 48 prevents most people in Australia whose visa has been refused or cancelled from lodging further substantive visa applications while they remain onshore. The exceptions are narrow and include protection visas, certain partner visas, and a small number of other classes prescribed in the Regulations. If you are caught by the s48 bar and wish to remain in Australia, the ART review pathway is typically the most important immediate avenue, as a successful review restores your original visa and removes the bar issue entirely. Get advice specific to your visa class and the circumstances of the cancellation before lodging anything.

Both provisions can apply where incorrect information was provided in a visa application, but they have different elements and different consequences. Section 109 applies specifically where incorrect information was provided by or on behalf of the visa holder and the visa would not have been granted, or would have been granted differently, had the correct information been given. Section 116 is broader and can apply in a wider range of circumstances including where a third party provided false information. In some situations both provisions could technically apply. The consequences can differ and so can the appropriate response strategy. If your NOICC or cancellation notice cites a specific provision, that provision determines the legal analysis and your response must address it precisely.

Yes. The ART has power to review most s116 cancellations on their merits and can set aside the cancellation if it finds that the ground was not established or that, even if the ground was established, the discretion should not have been exercised to cancel. The Tribunal considers the matter afresh as at the date of the review hearing, which means new evidence and updated circumstances can be presented. The fact that the original cancellation was made does not predetermine the ART outcome. A significant number of s116 cancellations are successfully challenged at the ART each year where the case is properly prepared and presented.

Where a visa condition breach occurred because of incorrect advice from a migration agent or lawyer, this is a highly relevant circumstance for the discretion question. A person who acted on specific professional advice and had no reason to believe they were in breach is in a very different position from someone who knowingly disregarded a condition. Evidence of the advice received, its timing, and your reliance on it should form a central part of your NOICC response. You may also have a separate claim against the agent for professional negligence or a complaint to the relevant regulatory body, but that is a parallel matter and does not replace the need to respond to the NOICC urgently.