Section 116 of the Migration Act 1958 is the primary mechanism by which the Department of Home Affairs can cancel your visa while you are in Australia. Unlike section 501 (which targets criminal history), section 116 targets a much broader range of conduct β including visa condition breaches, providing false information, and a range of other grounds.
Understanding how section 116 works, what triggers it, and what your rights are if you receive a notice is essential for anyone navigating a potential visa cancellation in Australia.
At Magpie Consultants, Umar Ashraf (MARN 2619222) handles section 116 cancellations and ART reviews for visa holders across a range of visa types.
This article is for general information only and does not constitute legal advice. Seek advice from a MARA-registered agent or immigration lawyer for your specific situation.
What Is Section 116?
Section 116 of the Migration Act 1958 gives the Minister β or the Minister’s delegate (a Department officer) β the power to cancel a visa in a wide range of circumstances. This is a discretionary power, meaning the Department can cancel the visa but is not required to in every case where a ground exists.
Importantly, section 116 applies to visas that have already been granted and are currently in effect β not to visa applications that are yet to be decided (those are covered by separate provisions).
What Are the Grounds for Section 116 Cancellation?
The grounds for section 116 cancellation are set out in the legislation. The most commonly applied grounds include:
Visa Condition Breach (s.116(1)(b))
The visa holder has not complied with a condition of the visa. This is the most frequently invoked ground and can cover:
- Exceeding the permitted work hours on a student visa (see our guide: Student Visa Work Hours Breached: What Actually Happens)
- Working without authorisation on a visitor visa
- Failing to maintain adequate health insurance on a student visa (Condition 8501)
- Not enrolling in or maintaining a full-time course load on a student visa
- Working for a different employer than authorised on an employer-sponsored visa
Non-Citizen No Longer Meets Criteria (s.116(1)(a))
The non-citizen no longer satisfies the criteria that had to be satisfied at the time of visa grant. This applies if, for example, the relationship that was the basis for a partner visa has ended, or employment for an employer-sponsored visa has ceased.
False or Misleading Information (s.116(1)(e))
The visa was granted based on false or misleading information provided by or on behalf of the visa holder. This overlaps with the PIC 4020 provisions and can trigger a separate 3-year ban. See our guide: PIC 4020: The 3-Year Visa Ban Explained.
Incorrect Decision (s.116(1)(c))
The visa was granted as a result of a departmental error or incorrect administrative action. This is used rarely and typically in cases where the Department itself made a mistake.
National Interest / Security Grounds
There are additional grounds relating to national security, the health and safety of the community, and identity fraud β though these are invoked less frequently in standard cases.
The Natural Justice Process: Your Right to Respond
Before cancelling a visa under section 116, the Department must (in most circumstances) give the visa holder an opportunity to respond. This is called natural justice or the right to be heard. The Department does this by issuing a Notice of Intention to Consider Cancellation (NOICC).
The NOICC will:
- Identify the ground(s) for potential cancellation
- Set out the information the Department is relying on
- Give you a deadline to provide a written response
Your response is your opportunity to:
- Dispute the facts alleged (if they are wrong)
- Explain the circumstances (e.g., why a condition was breached)
- Provide evidence of compassionate or compelling circumstances
- Ask the Department to exercise its discretion not to cancel, even if a ground technically exists
Do not ignore a NOICC. Failure to respond does not make the process go away β it simply means the Department makes its decision without your input, which almost always results in cancellation.
Immediate Cancellation β When There Is No Natural Justice
In certain circumstances, the Department can cancel a visa immediately without giving prior notice. Under section 128, immediate cancellation is possible when the person is at the Australian border or in immigration clearance. In these cases:
- The visa is cancelled on the spot
- You may be detained and removed from Australia
- You still have a right to seek review after the fact, but the immediate effect is cancellation
If this happens to you or someone travelling, contacting a migration agent or immigration lawyer immediately β even from the airport β is critical.
Discretion Not to Cancel
Even when a ground for cancellation exists, the Department has discretion. Department officers are guided by policy β specifically the Procedural Instructions and PAM3 guidance β on when to exercise or not exercise the cancellation power. Factors that can lead to the Department deciding not to cancel include:
- The breach was minor, unintentional, or a one-off
- The visa holder has otherwise complied with all conditions
- There are compelling humanitarian or compassionate circumstances
- Australian citizen or permanent resident family members would be significantly affected
- The visa holder has a strong history of compliance in Australia
This is where a well-prepared written response makes a real difference. Rather than simply acknowledging the breach, present the full picture of your circumstances and make a persuasive case for why cancellation is not the appropriate outcome.
ART Review of a Section 116 Cancellation
If your visa is cancelled under section 116, you generally have the right to seek review at the Administrative Review Tribunal (ART). The ART conducts a merits review β it considers the matter fresh and can substitute its own decision for the Department’s. You can also present new evidence at the ART that was not available at the time of the original decision.
For ART review to be available:
- The visa holder must be in Australia at the time of the cancellation decision
- The application for review must be lodged within the prescribed time limit (typically 21 days)
- The cancellation must have been made by a delegate of the Minister (not the Minister personally)
While the ART review is pending, a Bridging Visa E is typically issued to allow you to remain in Australia lawfully. For more on BVE conditions, see: Bridging Visa A vs E: Work Rights, Travel, and What Changes When You Appeal.
Section 116 vs Section 501: What’s the Difference?
| Feature | Section 116 | Section 501 |
|---|---|---|
| Primary trigger | Visa condition breach, false information, failed criteria | Criminal history, criminal association, security |
| Discretionary? | Yes (s.116 is always discretionary) | Discretionary (s.501) and mandatory (s.501(3A)) |
| Natural justice | Usually required (NOICC) | Required (Notice to Show Cause) |
| ART review | Yes (in most circumstances) | Yes for discretionary; limited for mandatory |
| Re-entry ban | Not automatically | Yes β automatic bar on future visas for s.501(3A) |
Frequently Asked Questions
Can my visa be cancelled if I worked more hours than allowed on a student visa?
Yes. Exceeding authorised work hours is a breach of student visa Condition 8105 and is a ground for section 116 cancellation. However, the Department has discretion β and if it was a minor or isolated breach, responding to the NOICC with full context can result in the Department deciding not to cancel.
What is a Notice of Intention to Consider Cancellation?
A NOICC is a written notice from the Department advising that it is considering cancelling your visa under section 116. It sets out the grounds and gives you time to respond in writing before a decision is made. Responding promptly and thoroughly is critical.
How long do I have to respond to a section 116 notice?
The response deadline is set out in the notice β typically 28 days, though this can vary. If you need more time to gather evidence, you can request an extension, but this is not guaranteed. Contact a migration agent immediately on receipt of any NOICC.
Can I stay in Australia after a section 116 cancellation?
If you lodge an ART review application within the deadline, a Bridging Visa E is typically issued, allowing you to remain in Australia lawfully while the review is pending. If you do not lodge in time, or if the ART upholds the cancellation, you may be required to depart.
What if the Department cancelled my visa and I didn’t get a chance to respond?
If you were not given natural justice β an opportunity to respond before cancellation β this may be a ground for ART review or judicial review. The ART can consider whether the cancellation was procedurally fair. Seek advice urgently.
Does section 116 cancellation affect future visa applications?
A section 116 cancellation does not automatically impose a re-entry ban, but it is a matter that must be disclosed in future visa applications and will be scrutinised. Some visa types require you to declare any prior visa cancellation β failure to do so creates a separate PIC 4020 issue.
Key Takeaways
- Section 116 is a broad cancellation power covering condition breaches, false information, failed visa criteria, and more.
- The Department must usually give you notice (NOICC) before cancelling β this is your most important opportunity to respond.
- The cancellation power is discretionary β a well-prepared response showing circumstances and good compliance record can result in cancellation not proceeding.
- ART review is available after most section 116 cancellations β lodge within 21 days to retain your right to remain on a BVE.
- Never ignore a NOICC or a cancellation notice β the deadlines are strict and the consequences of missing them are severe.
Facing a Section 116 Notice? Contact Magpie Consultants
If you have received a Notice of Intention to Consider Cancellation or your visa has already been cancelled under section 116, act immediately. A strong, well-prepared response can change the outcome.
At Magpie Consultants, Umar Ashraf (MARN 2619222) handles visa cancellation matters and ART appeals. We help clients respond to NOICCs, build evidence packages, and represent at the ART. We advise in English, Urdu, Punjabi, and Hindi.
- Book a consultation: magpieconsultants.com.au/book-appointment
- Location: Office 3, 8/10 Childs Road, Epping VIC 3076, Melbourne
Related Articles
- Visa Cancelled in Australia: Your 5 Immediate Steps
- Section 501 Character Test: Who Fails It and How to Fight It
- ART Appeal Timelines 2026: How Long Does a Visa Review Take?
- Bridging Visa A vs E: Work Rights When You Appeal
- PIC 4020: The 3-Year Visa Ban Explained
DISCLAIMER: This article is for general informational purposes only and does not constitute legal advice. Migration law is complex and changes frequently. For advice specific to your circumstances, consult a MARA-registered migration agent. Umar Ashraf β MARN 2619222 β verify at mara.gov.au.
Umar Ashraf
MARA Registered Migration Agent & Education Consultant | MARA #2619222 | Epping, Melbourne VIC
Umar Ashraf is a MARA-registered migration agent specialising in complex cases, visa cancellations, ART tribunal appeals, and employer sponsorship. He provides consultations in English, Urdu, Punjabi and Hindi.
