Visa Cancellation Under Sections 116 and 128 of the Migration Act

Overview of cancellation after grant

Having a visa granted does not mean the visa is safe forever. The Migration Act 1958 gives the DHA the power to cancel a visa that is in effect in a range of situations. Two key provisions are section 116 and section 128, each with its own scope and mechanism of application.

Understanding both provisions helps visa holders recognise potential risks and take appropriate preventive action.

Section 116: discretionary cancellation

Section 116 allows the DHA (through an authorised case officer) to exercise discretion to cancel a visa if one or more of the following grounds are met:

116(1)(a) — No longer meeting the visa conditions: The visa holder no longer satisfies the conditions on which the visa was granted. For example, a skilled visa was granted based on a sponsorship relationship with an employer — if that relationship ends before permanent residence is granted, the DHA may consider cancellation.

116(1)(b) — Incorrect information at lodging: It is discovered that information or a document used in the visa application was incorrect, misleading, or bogus. This includes failing to declare a prior conviction, misrepresenting educational qualifications, or using an invalid certificate.

116(1)(e) — A danger to public safety: The visa holder is considered a threat to public health, safety, or good order. This can apply where there are serious criminal allegations, even before a conviction.

116(1)(f) — Breaching visa conditions: Breaching one or more conditions stated on the visa, for example working more than the permitted hours or not maintaining full-time study (for a student visa).

An important point: under section 116, the DHA has a choice whether to cancel or not. The case officer must weigh all the circumstances, including length of residence, family in Australia, and the impact of cancellation.

Section 128: mandatory cancellation

Section 128 establishes a mechanism for mandatory cancellation in certain specific situations relating to serious criminal records. Unlike section 116, once the criteria of section 128 are met, the DHA has no discretion — cancellation is mandatory.

Section 128 is often applied in combination with section 501(3A), which provides for mandatory cancellation of a person with a “substantial criminal record” who is in detention in Australia. Typical cases:

Being sentenced to imprisonment of 12 months or more (whether suspended or not)
Having prior sentences totalling 12 months or more
Being convicted of a child sexual offence (regardless of the sentence)

When a visa is cancelled under the mandatory mechanism and the person is in detention, they are transferred into immigration detention to await removal.

The process when the DHA considers cancellation

In most section 116 cases, the DHA will issue a “Notice of Intention to Consider Cancellation” (NOICC) before making a decision. The visa holder has the opportunity to:

Set out why the visa should not be cancelled
Provide evidence rebutting the information the DHA is relying on
Raise mitigating circumstances and the impact on family

The time to respond to a NOICC is usually short — from a few days to a few weeks depending on the case. Ignoring it or responding incompletely will heavily affect the outcome.

For mandatory cancellation under section 128/501(3A), the process is faster and offers fewer rights to respond.

The right of appeal

Section 116: In many cases, a cancellation decision can be appealed to the AAT. The appellant can submit evidence of rehabilitation, community ties, and the impact on family.
Section 128/501(3A): The path of appeal is more limited. Some cases can be challenged at the Federal Court on legal or procedural grounds, but cannot be appealed on the substantive merits at the AAT if it is a personal decision of the Minister.

Advice when facing a risk of cancellation

If you receive a NOICC or know you are at risk of having your visa considered for cancellation:

Do not ignore the notice — the response deadline is binding
Find a migration agent or immigration lawyer immediately
Gather documents demonstrating your ties to Australia, your family role, and any mitigating circumstances
Do not leave Australia while under consideration without legal advice — departure may be treated as abandoning the appeal