Visa Cancellation

Section 116: Changes to Your Situation & Visa Conditions

Section 116 cancellations can occur if the facts surrounding your visa grant have changed, or you haven't adhered to the conditions of your visa. Specifically, a cancellation can happen if:

• Changed Circumstances: The reasons you were originally granted the visa are no longer valid. For example, if your student visa was based on you enrolling in a specific course and you drop out.
• Visa Condition Breach: You haven't met the requirements of your visa. This could include working more hours than permitted, failing to maintain health insurance, or not enrolling in studies as required.
• Risk to the Community: Your presence in Australia is considered a risk to the health, safety or good order of the Australian community.
• Student Visa Specifics: For student visas, cancellation can occur if you are not a genuine student or engage in activities outside the scope of your visa (e.g., full-time work when you should be studying).

What happens if my visa is cancelled under Section 116? You generally have the right to appeal this decision to the Administrative Review Tribunal (ART).

Section 501: Character Concerns & Automatic Cancellation

Section 501 cancellations relate to your character and are often more serious.  If the Department of Home Affairs has concerns about your character, your visa can be cancelled. This is a complex area of immigration law.

Serious Consequences: If your visa is cancelled under Section 501:

• Immigration Detention & Removal: You will likely be taken into immigration detention and removed from Australia.  You may also be barred from returning to Australia in the future.
• Automatic Cancellation (Prison): If you are already in prison, your visa will be automatically cancelled.

Can I fight a Section 501 Cancellation? Yes, even if your visa is automatically cancelled due to imprisonment. You can submit arguments explaining why the cancellation should be revoked. If you are not in prison, you have the opportunity to make submissions demonstrating why you shouldn't be cancelled.

Appealing a Section 501 Decision: If the decision is made by a delegate (a departmental officer), you can appeal to the ART. However, if the Minister for Immigration makes the decision personally, your only avenue of appeal is to the Federal Court of Australia.

What Constitutes Failing the “Character Test”?

The "character test" is central to Section 501 cancellations. You will fail this test if any of the following apply:

• Substantial Criminal Record: This includes sentences of death, life imprisonment, or 12 months or more. Multiple shorter sentences totaling 12 months or more also qualify.
• Criminal Activity in Immigration Detention: Convictions for offences committed while in immigration detention (including during escape attempts) are a major concern.
• Specific Offences: Conviction for offences under section 197A of the Migration Act.
• Ministerial Suspicion: The Minister reasonably suspects you are involved in criminal groups or activities, including:
• People smuggling.
• Trafficking in persons.
• Serious international crimes (genocide, war crimes, torture).
• Past & Present Conduct: Your overall criminal and general conduct is considered.
• Risk to the Community: There's a risk you would engage in criminal conduct, harass others, incite discord, or pose a danger to the Australian community if allowed to remain in Australia.
• Sexually Based Offences Involving Children: Convictions or findings of guilt for such offences, even without a conviction.
• Serious International Crime Charges: Being charged or indicted for genocide, crimes against humanity, war crimes, torture, or similar offences.
• Security Risk Assessment: A negative assessment by the Australian Security Intelligence Organisation (ASIO).
• Interpol Notice: An active Interpol notice raising concerns about your risk to the Australian community.

What is Considered a “Substantial Criminal Record”?

For the purposes of failing the character test, a "substantial criminal record" is defined as:

• A sentence of death.
• Life imprisonment.
• Imprisonment for 12 months or more.
• Two or more terms of imprisonment totaling 12 months or more.
• Being detained in a facility due to being found not fit to plead for an offence, where the court determined you committed the offence.

Need Help with Your Visa?

If you are concerned about your visa status or have received a notice of potential cancellation, it is crucial to seek legal advice immediately. Our experienced immigration lawyers can assess your case, explain your options, and represent you in dealings with the Department of Home Affairs.  Contact us today for a confidential consultation.