Australian Visa Cancellations: Understanding Sections 116 and 501 of the Migration Act

Visa cancellations are among the most serious actions the Department of Home Affairs can take against non-citizens in Australia. Whether a person is visiting, studying, working, or has lived in Australia for decades, a visa cancellation can have immediate and severe consequences, including detention and removal from Australia.

Under the Migration Act 1958 (Cth), the Minister for Home Affairs (or a delegate) is granted broad powers to cancel a visa at any stage. Visa cancellations usually occur by the exercise of a power under either section 116 or section 501 of the Migration Act 1958. These powers are frequently used in the interests of public safety, character concerns, and compliance with visa conditions.

This article provides an overview of the grounds, procedures, and legal consequences of visa cancellations under these sections, as well as options available for appeal or review.

The legal framework for visa cancellations

The Migration Act 1958 provides various grounds on which a visa may be cancelled. The relevant cancellation power will depend on the circumstances of the visa holder, their location at the time (onshore or offshore), and the nature of the alleged conduct or non-compliance enlivening the power to cancel the visa in question.

Some visa cancellations are discretionary, while others are automatic or mandatory, depending upon the circumstances. The legal complexity increases further when character assessments or criminal histories are involved.

While there are several provisions for cancellation, section 116 and section 501 are the most frequently applied and subject to review in the Administrative Review Tribunal (formerly, the Administrative Appeals Tribunal).

Section 116 of the Migration Act – discretionary visa cancellations

Section 116 allows the Minister or their delegate to cancel a visa if certain conditions or risk factors are met. This power is broad and applies to almost all types of visas, including student, visitor, skilled, and permanent resident visas.

Grounds for Cancellation under Section 116

A visa may be cancelled under section 116 if:

• The visa holder has not complied with a visa condition;
• The visa was granted based on false or misleading information;
• In the case of a student visa, the visa holder is not, or is likely not, a genuine student; or the visa holder has engaged, is engaging, or is likely to engage in conduct which is not contemplated by the grant of the student visa;
• The presence of the person in Australia is, or may be, a risk to:
  • The health, safety, or good order of the Australian community; or
  • The health or safety of an individual.
• There has been a change in circumstances such that the visa would not have been granted if those circumstances had existed at the time of the application; or
• A prescribed ground for the cancellation of a visa applies to the visa holder.

Importantly, cancellation under section 116 is discretionary.

The only exception to this is subsection 116(3), which provides that if the Minister (or their delegate) may cancel a visa under section 116, the Minister must cancel the visa if there exists prescribed circumstances in which a visa must be cancelled.

Notification of cancellation under section 116

If the Minister or their delegate decides to cancel a visa under a power contained in section 116, notice must be given to the visa holder of the proposed cancellation in the prescribed method, stating the basis on which the Minister proposes to cancel the visa.

The notice must also invite the visa holder, within a specified time, to substantiate that the grounds for cancellation do not exist, or that there is some other reason why their visa should not be cancelled.

Legal assistance during this stage is critical. An experienced immigration lawyer can prepare comprehensive submissions addressing the legal criteria, factual background, and mitigating circumstances.

This is of paramount importance, as satisfying the Minister or their delegate that the grounds upon which they propose to cancel the visa is erroneous, or that there are other grounds on which the visa ought not to be cancelled. Some of the grounds which can be relied upon include, but are not limited to, family ties, community support, and international obligations owed to the visa holder.

Section 501 of the Migration Act – refusal or cancellation of visa on character grounds

Section 501 provides the Minister with the power to refuse to grant, or to cancel, a visa on character grounds.

This provision applies to both temporary and permanent visa holders and has been used increasingly in recent years in the context of criminal conduct or criminal association.

The Character Test

Under subsection 501(6), a person does not pass the character test if, among other reasons:

• They have a substantial criminal record;
• They have been convicted of sexually based offences involving a child;
• They are reasonably suspected of being a member of, or having an association with, a criminal organisation;
• There is a significant risk that the person would engage in criminal conduct, harass or vilify a segment of the community, or pose a danger to the community; or
• They have been convicted of an offence:
  • that was committed whilst in immigration detention; or
  • during an escape by the person from immigration detention; or
  • after they escaped from immigration detention, but before the person was taken into immigration detention.

A substantial criminal record generally means the person has been sentenced to a term of imprisonment of 12 months or more, either as a single sentence or cumulative total. Naturally, this would include a sentence of death, or imprisonment for life.

Mandatory visa cancellations under section 501(3A)

In certain circumstances, cancellation under section 501 is mandatory. This usually applies when a non-citizen:

• has a substantial criminal record; or
• is serving a term of imprisonment for life for an offence against the law of the Commonwealth, or a State or Territory; or
• has been convicted of a sexually based offence involving a child.

In such cases, the Minister must cancel the visa without notice. The person is notified in writing and may then apply for revocation of the cancellation. This revocation request must be made within 28 days.

Discretionary Cancellation under Section 501(2)

In other circumstances, the Minister may cancel a visa under section 501(2) if they are satisfied that the person does not pass the character test and that it is in the national interest to cancel the visa.

Unlike section 501(3A), this power is discretionary and usually involves consideration of the person’s history, contributions to the community, ties to Australia, and risk assessment.

Consequences of visa cancellations

The consequences of having a visa cancelled can be severe and long-lasting. These may include:

• Detention in immigration facilities;
• Removal from Australia;
• A re-entry ban, preventing the person from returning to Australia for a period of time or indefinitely;
• Impact on family members who may hold dependent visas; or
• Difficulty obtaining visas to other countries due to adverse migration history.

In cases involving permanent residents, cancellation can be particularly devastating, especially where the person has strong ties to Australia, children born here, or no significant connection to another country.

Review and Appeal Options

Depending on the circumstances and the basis of cancellation, visa holders may have limited opportunities to challenge or review a decision.

Administrative Review Tribunal (ART)

In many cases, a decision made by a delegate (not the Minister personally) under section 116 or 501 can be appealed to the ART. The ART will conduct a merits review, reassessing the case and determining whether the cancellation should be upheld or set aside.

Strict time limits apply, and legal representation is strongly advised.

Judicial review

If the ART has no jurisdiction or the Minister personally makes the cancellation decision (which is often non-reviewable), the only recourse may be judicial review in the Federal Circuit and Family Court of Australia or the Federal Court.

Judicial review is limited to errors of law or jurisdictional issues, and the court cannot reconsider the factual merits of the case.

Ministerial interventions

In exceptional cases, a visa holder may request Ministerial intervention. This is a highly discretionary and rarely granted process, reserved for compelling or compassionate circumstances that would otherwise result in unfair or unjust outcomes.

How Allen Law can assist

Visa cancellation matters are legally complex and time-sensitive. The stakes are often high, involving the risk of detention, family separation, and permanent exclusion from Australia.

At Allen Law, we provide tailored advice and representation in all visa cancellation matters, with a particular focus on:

• Preparing detailed submissions in response to notices under section 116;
• Advising on revocation of mandatory cancellations under section 501(3A);
• Representing clients at the ART and in judicial review proceedings in the federal courts;
• Developing strategic arguments supported by evidence, character references, and legal precedent; and
• Strongly advocating for our clients.

Whether your visa has been cancelled or you have received a notice indicating potential cancellation, early legal advice is essential and highly recommended.

Get in Touch

If you are facing visa cancellation under section 116 or section 501 of the Migration Act, contact Allen Law today for immediate advice and strong legal representation.

Phone:               (03) 7020 6563
Email:                 enquiries@allenlawyers.com.au
Website:          www.allenlawyers.com.au

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified legal practitioner for advice tailored to your situation, as laws may change.