*Last updated on: 25 Nov 2024
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Section 116 Visa Cancellation & Notice of Intention to Consider Cancellation (NOICC)

An opportunity for applicants to challenge the decisions of the department

Understanding Section 116

Section 116 of the Australian Migration Act empowers the Immigration Minister to cancel a temporary visa under specific conditions, such as posing a potential risk to the health, safety, or order of the Australian community. The decision to cancel a visa under this section is not automatic and is typically assessed on a case-by-case basis, taking into account various factors. Grounds for cancellation can include:

Change in Circumstances: The basis for granting the visa no longer exists.
Non-Compliance with Visa Conditions: The visa holder has breached a condition of their visa. For example, a student visa holder has been working full time, and not genuinely engaging in study.
Incorrect Information: The visa was granted based on information that was false or misleading.
Risk to Health, Safety, or Good Order: The visa holder's presence poses or may pose a risk to: The health, safety, or good order of the Australian community or a segment of it; or the health or safety of an individual or individuals.
Contravention of the Act: The visa should not have been granted because the application or grant contravened the Migration Act or another Commonwealth law.
Prescribed Grounds: Any other grounds prescribed by the regulations.

The cancellation process can be triggered for different reasons, including criminal charges or behaviours that raise concerns about the visa holder's intent and compliance with Australian laws and values.

Responding to a Notice of Intention to Consider Cancellation (NOICC)

Before cancelling a visa under Section 116, the Department of Home Affairs typically issues a NOICC to the visa holder. This notice outlines the reasons for potential cancellation and provides the visa holder an opportunity to respond.

If you receive a NOICC, you will be given an opportunity to respond and present your case.

Common response timeframes are:
1. Standard Period: Generally, 5-28 days are provided to respond, depending on the specifics of your case.
2. Shorter Periods: In certain scenarios, such as immigration detention, the response period may be as brief as three working days.

Failing to respond within the specified timeframe can result in the Department making a decision without further input from you, often leading to visa cancellation.

Supporting Documentation for Preventing Visa Cancellation

Providing strong supporting evidence is crucial to contesting a visa cancellation under Section 116. Examples of helpful documentation include:

Apology Letters: Demonstrating remorse to any victims or parties affected.
Character References: Letters from family, friends, colleagues, or community leaders vouching for your character and behaviour.
Court Documents: Evidence of charges, outcomes, and any compliance with court orders.
Employment Records: Documentation of your positive contributions to the workforce, such as letters from your employer.
Medical Records: Evidence of health conditions that may be exacerbated if your visa is cancelled.
Rehabilitation Efforts: Proof of participation in programs such as counselling, anger management, or community service.
Community Involvement: Evidence of volunteer work, social engagement, or civic participation.
Family Impact Statements: Letters from family members outlining the emotional, financial, and social impact of potential deportation.

Factors Considered in Section 116 Visa Cancellation Decisions

The Department of Home Affairs assesses several factors when deciding whether to cancel a visa under Section 116:

Nature and Severity of Risk: The potential impact on the health, safety, or good order of the Australian community.
Character Assessment: Past behaviour, compliance with previous visa conditions, and character references.
Family Considerations: The potential impact on children and other family members, including Australia’s obligations under international agreements, such as the Convention on the Rights of the Child (CROC).
Community Contributions: Positive contributions through employment, community service, or civic involvement.
Health Implications: The impact of visa cancellation on the health of the visa holder or their dependents.
Non-Refoulement Obligations: Australia’s international legal obligations to prevent deportation of individuals facing persecution or harm in their home country.
Previous Behaviour Towards the Department: The individual’s cooperation with the Department of Home Affairs.

Legal Consequences and Rights After Visa Cancellation

1. Immediate Impact of Visa Cancellation

If your visa is cancelled, you may become an unlawful non-citizen and could be detained by immigration authorities. In this situation, you may have limited options for remaining in Australia and must explore pathways such as applying for a Bridging Visa E.

2. Appeal Rights and Processes

(1) Merits Review: If you have missed the deadline of applying for a merits review, you will lose your rights to have your case to be heard at a court, leading to an immediate visa cancellation as deadline approaches.

(2) Judicial Review: If the ART upholds the visa cancellation, you may file for a judicial review by the Federal Circuit Court, which assesses potential legal errors in the decision-making process.

3. Re-entry Ban and Impact on Future Visa Applications

A cancellation can lead to a re-entry ban, prohibiting the individual from returning to Australia for a specified period.
A cancellation may adversely affect the outcome of future visa applications.

More About the Administrative Review Tribunal

The Administrative Review Tribunal (ART) is an independent body that reviews decisions made by the Department of Home Affairs (DOHA) related to visas, citizenship, and other matters. A merits review with the ART gives you an opportunity to have your case reassessed by experts in migration and administrative law. The review process is fair and impartial, allowing you to present new evidence and challenge decisions made by DOHA.

Know More About the ART

Your Questions Answered

What is Section 116 of the Migration Act 1958 about?

Section 116 grants the Minister for Immigration the authority to cancel visas for specific reasons, such as risks to community health, safety, or non-compliance with visa conditions.

Can my visa be cancelled without warning under Section 116?

Yes, in rare situations. Generally, you will receive a Notice of Intention to Consider Cancellation (NOICC) that outlines the reasons for potential cancellation, providing you with an opportunity to respond.

What is a Notice of Intention to Consider Cancellation (NOICC)?

A NOICC is a formal notice issued by the Department of Home Affairs indicating that it is considering cancelling your visa. It outlines the reasons and provides an opportunity to submit a response.

How do I respond to a NOICC?

You should submit a comprehensive response addressing each ground for potential cancellation. Include supporting documents, evidence of compliance, and any other relevant information within the specified timeframe. It is recommended to seek professional advice dealing with a NOICC, as consequences can be serious and irreversible.

What happens if my visa is cancelled under Section 116?

If your visa is cancelled, you may need to leave Australia. You may also have the rights to apply for judicial reviews. Depending on the circumstances, you may face bans on re-entry or restrictions on applying for future visas.

Can I review a visa cancellation under Section 116?

Yes, you can apply for a review through the Administrative Review Tribunal (ART) within the prescribed timeframe.

How long do I have to respond to a NOICC?

The timeframe for response varies and will be specified in the NOICC. It is critical to adhere to this deadline.

Can family members be affected by my visa cancellation?

Yes, if they are secondary holders on your visa, their visas may also be affected. In addition, if you ever sponsored someone, their visas may also be affected.

Is there a way to prevent my visa from being cancelled?

Ensure compliance with all visa conditions, provide accurate and truthful information, and respond thoroughly to any NOICC with supporting evidence.

How does Section 116 differ from Section 501 of the Migration Act?

Section 501 deals specifically with character grounds for visa refusal or cancellation, whereas Section 116 covers broader grounds, including non-compliance, health and safety risks, and more.

Can I remain in Australia while appealing a visa cancellation?

In many cases, you may be eligible to stay in Australia on a bridging visa while your appeal is being processed.

What are my options if my appeal is unsuccessful?

You may have the option to pursue further review through judicial processes, such as the Federal Circuit Court, if there is evidence of a jurisdictional error.