How Australia Cancels Visas: Sections 116 and 501 of the Migration Act

Section 116: the general cancellation power

Section 116 of the Migration Act 1958 is the broad workhorse cancellation power. It lets the Department of Home Affairs cancel a visa where any of a long list of grounds is met: the visa was granted because of incorrect information; circumstances permitting the grant of the visa no longer exist; the holder has not complied with a visa condition; the holder is a risk to the health, safety or good order of the Australian community; the visa was issued in reliance on a sponsorship that no longer applies; or any of a small number of prescribed regulatory grounds. Section 116 is discretionary — the word in the statute is 'may cancel' — so the Department weighs the cancellation against the individual's circumstances, family ties in Australia, length of residence, and likely consequences of cancellation. Section 116 cancellations attract a right of merits review at the Administrative Review Tribunal, which replaced the AAT on 14 October 2024.

Section 501: the character test

Section 501 of the Migration Act lets the Minister or the Department refuse or cancel a visa where the person does not pass the 'character test'. The character test is set out in section 501(6) — a person fails it if they have a substantial criminal record, have been associated with persons reasonably suspected of criminal conduct, have a past or present general or criminal conduct that means they are not of good character, or pose a future risk to the Australian community of engaging in criminal conduct, harassing, intimidating or stalking, vilifying a segment of the community, or inciting discord in the community. Section 501(7) defines 'substantial criminal record': a person has one if they have been sentenced to death, life imprisonment, a single sentence of imprisonment of 12 months or more, two or more sentences totalling 24 months or more, or found not guilty by reason of unsoundness of mind and ordered detained. Concurrent, periodic, or suspended sentences count toward the threshold. A person who has been sentenced to 12 months or more for a single offence automatically fails the character test.

Discretionary vs mandatory cancellation

Within section 501, there is a critical distinction between discretionary and mandatory cancellation. The Department of Home Affairs has the discretion to cancel a visa where the character test is failed — and weighs the individual's circumstances before doing so. However, section 501(3A) provides for mandatory cancellation where a person is serving a sentence of imprisonment for an offence and meets specific criteria. Mandatory cancellation does not weigh personal circumstances — it cancels first and provides for the person to request revocation only after the cancellation has occurred. This is the regime under which most high-profile visa cancellations of people serving prison sentences occur, and it is also the regime that has substantially expanded the number of section 501 cancellations since the 2014 amendments that introduced mandatory cancellation.

Review rights and the ART

Cancellation decisions are reviewable. Section 116 cancellations and discretionary section 501 cancellations made by a Departmental delegate (not the Minister personally) attract merits review at the Administrative Review Tribunal. The standard review deadline is approximately 28 days from notification, and missing that deadline permanently extinguishes review rights — there is no general extension power. Where the Minister personally makes a section 501 cancellation decision, no merits review is available; only judicial review at the Federal Court is open, on much narrower grounds (jurisdictional error). The ART replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024 as part of a broader administrative law reform; substantive review jurisdiction in migration matters carried over but with revised procedure and a new statutory framework. Review applications relating to character cancellations are heard in the ART's Migration and Refugee Division (formerly the AAT's Migration and Refugee Division).

How many cancellations and what happens after

Section 501 character cancellations totalled around 244 adverse decisions in 2023-24 according to publicly cited figures, with approximately 8,200 section 501 cancellations followed by removal in the period from January 2014 to December 2023 (the years since the mandatory cancellation regime was introduced). The substantial majority of these were people serving custodial sentences whose visas were cancelled on or near release. Following cancellation, the person becomes an unlawful non-citizen unless they hold another visa, and is held in immigration detention pending removal — unless their cancellation is revoked on review or they are granted another visa. Removal is the standard end point: people whose section 501 cancellation is upheld on review are removed to their country of nationality. Where return is not practically possible (statelessness, certain protection findings, country-of-origin instability), the person may remain in long-term detention or be granted a residence determination under Ministerial intervention.

Primary sources

All figures and statutory references here are sourced from primary materials: Migration Act 1958 sections 116 and 501 (Australasian Legal Information Institute, AustLII); Department of Home Affairs Character and General Cancellation statistics; Administrative Review Tribunal statistics and 2024-25 caseload reports. The 'substantial criminal record' threshold and the discretionary/mandatory distinction are stated as enacted — applicants facing a cancellation notice should not rely on this article in place of legal advice from a MARA-registered migration agent or a migration lawyer. The deadlines, particularly the 28-day ART review window, are time-critical and missing them is permanent.

What is the 'substantial criminal record' threshold for visa cancellation?

Section 501(7) of the Migration Act defines a substantial criminal record as: a single sentence of imprisonment of 12 months or more, or two or more sentences totalling 24 months or more, or being sentenced to death or life imprisonment, or being found not guilty by reason of unsoundness of mind and ordered detained. Concurrent, periodic and suspended sentences count.

How long do I have to appeal a visa cancellation?

The standard review deadline at the Administrative Review Tribunal (ART) is approximately 28 days from notification. The ART replaced the AAT on 14 October 2024. Missing the deadline permanently extinguishes review rights — there is no general extension power. The deadline applies to most section 116 cancellations and to delegate-made section 501 cancellations. Where the Minister personally cancels under section 501, no merits review is available — only Federal Court judicial review on narrow grounds.

How many visas does Australia cancel each year?

Several thousand under section 116 (general grounds) and around 244 under section 501 (character test) in 2023-24 according to publicly cited figures. Approximately 8,200 section 501 cancellations followed by removal in the period from January 2014 to December 2023, since the mandatory cancellation regime under section 501(3A) was introduced.

What is the difference between discretionary and mandatory cancellation under section 501?

Discretionary cancellation lets the Department weigh the individual's circumstances before deciding. Mandatory cancellation (section 501(3A)) cancels first if the person is serving a custodial sentence and meets specific criteria, then allows the person to apply for revocation. Most high-profile cancellations of people serving sentences occur under the mandatory regime.