Visa Cancellation Under Section 116 and Section 109: What to Do

Section 116 vs Section 109: What's the Difference

Section 116 cancellations cover a broad range of grounds — failing to comply with visa conditions (e.g., working in breach of a Student visa condition limiting hours), no longer meeting public-interest criteria (health, character), changed circumstances since grant (relationship breakdown affecting a partner visa). The Department typically issues a Notice of Intention to Consider Cancellation (NOICC) before deciding — giving you a chance to respond. Section 109 cancellations are specifically for incorrect or bogus information provided in your visa application or at any time after. If the Department finds that you knew or should have known the information was wrong, s109 applies. The procedure includes a NOICC and a response period. The consequences are typically more severe than s116 — a s109 cancellation often comes with a 3-year re-entry ban (PIC 4020 implications). Identifying which section applies to YOUR case determines the strategy. The notice you received will identify the section explicitly. Read carefully.

The NOICC: Your One Chance to Respond Before Cancellation

Before cancelling a visa (in most cases), the Department issues a Notice of Intention to Consider Cancellation (NOICC). The NOICC: (1) Identifies the section under which cancellation is being considered; (2) Sets out the specific facts the Department is relying on; (3) Gives you a response period — typically 28 days for substantive responses, sometimes shorter (5-7 days for s116 where immediate concerns exist); (4) Invites you to provide written submissions and supporting evidence. The NOICC response window is critical because: substantive new evidence at this stage can stop the cancellation; if cancellation proceeds anyway, the strength of your response affects what ART review can later consider; many cancellations that look procedurally inevitable can be stopped at NOICC stage with the right submission. DO NOT ignore a NOICC. DO NOT submit a casual one-paragraph response. Treat the NOICC as the most important migration document you will write — invest in getting professional help to draft it.

What to Include in a NOICC Response

An effective NOICC response addresses three things: (1) Factual accuracy — directly address each fact the Department has stated. If they have it wrong, provide evidence (documents, declarations) showing the correct facts. If they have it right, acknowledge it and explain context; (2) The mandatory considerations — under both s116 and s109, the Department must consider specific factors before cancelling, including the strength of family/community ties in Australia, the impact on Australian family members, any hardship that cancellation would cause, the length of time the person has been in Australia, the person's general behaviour and contribution. Your submission should address each of these factors with evidence (statements from family, employer letters, character references, evidence of community involvement, financial impact analysis); (3) Mitigation — if the underlying conduct (e.g., working in breach of conditions) is acknowledged, explain the circumstances, demonstrate it won't recur, show the steps you've taken since. The Department has discretion in many cancellation cases — your submission must give them reasons to exercise discretion in your favour.

If the Visa Is Cancelled: Review Rights and Timing

If a cancellation decision is made despite your NOICC response, you typically have review rights at the Administrative Review Tribunal (ART). Key details: (1) The deadline to lodge ART review is usually 7 working days (s116 cancellations of bridging visas) or 28 days (most other cancellations) from the date of cancellation. These are shorter than other visa-decision deadlines — act immediately; (2) The ART filing fee is currently around $3,374 (refundable if you win); (3) Cancellation of a substantive visa often coincides with detention or restrictions on movement. If you were detained, the priority is bridging visa application (Bridging E in most cases) to secure release pending review; (4) ART review of cancellation considers fresh evidence — including evidence not in your NOICC response. Substantive submissions at the Tribunal can succeed where NOICC submissions did not. Cancellation review is one of the most procedurally complex areas of migration law. Self-representation is rarely advisable unless the case is extremely simple.

When This Is Urgent Enough to Justify Specialist Fees

Migration agents who specialise in cancellation work typically charge $5,000-$15,000+ for representation through ART review, depending on complexity. The case for paying: cancellation outcomes affect not just your current status but your future ability to return to Australia. A poorly-handled cancellation can result in a 3-10 year re-entry ban. Spending $10,000 to avoid a 10-year ban from a country you intend to live in is rational. The case against: if the underlying facts are genuinely against you (e.g., clear and significant misrepresentation in your application), no amount of advocacy will change the outcome. An honest agent will tell you upfront if the case is winnable. Migratio is Australia's marketplace for finding and comparing MARA-registered migration agents. Migratio matches applicants with MARA-registered agents who specialise in cancellation reviews. Submit a brief describing the section, the grounds stated in the notice, your circumstances, and the response deadline — you'll receive specialist proposals within hours.

Can I leave Australia while a cancellation review is pending?

Leaving Australia after lodging an ART review can be treated as withdrawing your review in some circumstances. Get specific advice before departing — this is one of the situations where casual travel can destroy your case.

Does a cancellation automatically result in a re-entry ban?

Not always. Section 109 cancellations often trigger PIC 4020 implications (3-year ban). Section 116 cancellations don't automatically trigger bans but the underlying ground may have separate consequences. The cancellation notice will not necessarily mention the ban — it's a separate consideration.

If my visa is cancelled while I'm onshore, am I immediately unlawful?

Yes — at the moment the cancellation takes effect, your lawful status ends. You must either lodge a bridging visa application immediately (Bridging E is the typical pathway) or depart. Unlawful time accrues from the cancellation effective date.

Can the Minister intervene to overturn a cancellation?

Ministerial intervention requests are possible after ART review fails. The Minister has personal, non-delegable discretion to substitute a more favourable decision. Intervention is granted rarely — typically only in compelling humanitarian or compassionate cases. It is not a first-line strategy.

Do I need a migration agent or an immigration lawyer for cancellation?

Both can represent you at ART. Lawyers are required for Federal Court judicial review of ART decisions. For ART itself, both are equivalent. Choose based on specialisation — find someone who has handled multiple cancellations under your specific section, not someone whose practice is mostly partner visas or skilled migration.