More On Cancellation Grounds: s116 – Cancellation Of Visas On Specified Grounds

More On Cancellation Grounds: s116 – Cancellation Of Visas On Specified Grounds

Cancelled paper

Facing a visa cancellation can happen based on reason that occurred after you have obtained the visa as well as for reasons that occurred before you obtained your visa. We hope that understanding this helps you to stay out of trouble, both before and after getting your visa!

s116 under the Act is one dense topic and covers many of the most common reasons for a person’s visa being cancelled. To read more about other grounds for cancellation, please visit our recent article on the cancellation of visas and what happens when you receive a Notice of Intention to Consider Cancellation (NOICC).

Read: When Are You At Risk Of A Visa Cancellation?

Cancellation of visas on specified grounds (s116)

A person whose visa has been cancelled under s116 has been discovered to:

  • Have never been entitled to hold the visa
  • No longer be entitled to hold the visa
  • Be non compliant with visa conditions
  • Have another person whose visa was granted based on the grant of their visa not comply visa conditions
  • Have submitted bogus documents or information and has not cleared immigration
  • Be a risk to community public health, safety or good order
  • Have the grant off their visa have been a contravention of the law
  • Be a non genuine student and improper conduct
  • Have used fraudulent identity
  • Provided incorrect information outside the visa application
  • Have given or received benefit was given or received for the purposes of a visa result

Have never been entitled to hold the visa (s116(1)(aa))

An ETA visa holder has character concerns but was granted their visa. It has now been discovered that they did not meet character requirements despite it being a requirement for their ETA visa. This person is liable to have their visa cancelled on s116 grounds as the person was never entitled to hold the visa.

No longer entitled to hold the visa (s116(1)(a))

A person has been granted a Prospective Marriage visa (subclass 300) and at the time of the visa grant, still held a genuine and ongoing relationship with the intention to marry within the visa period, however, at some point after the visa grant, that plan to be married ceased to exist. This person is liable to have their visa cancelled on s116 grounds as circumstances that were required for the grant of the visa no longer exist.

Non compliant with visa conditions (s116(1)(b))

It has been discovered that a visa holder has failed to comply to the visa conditions on the visa that they hold. This may be a Visitor visa (subclass 600) holder engaging in work, which contravenes condition 8101 or a Student visa (subclass 500) holder working for more thn 40 hours per fortnight, which contravenes condition 8105.

Read: Student 500 Visa : Condition 8105 – No More Than 40 Hours Per Fortnight? More Complicated Than You Think

Have another person whose visa was granted based on the grant of their visa not comply visa conditions (s116(1)(c))

Family members who were granted a student visa based on the main student visa holder are subject to condition 8523 which requires that the family members (secondary visa holders) do not leave Australia later than the departure of the main student visa holder will result in the visa of the main student visa holder being liable for cancellation.

Have submitted bogus documents or information and has not cleared immigration (s116(1)(d))

A visa holder who has not yet entered Australia or has entered Australia but has not yet have been cleared by immigration but has been discovered to have provided bogus documentation or incorrect information based on which they were granted their visa will be liable to have their visa cancelled on s116 grounds. This is could be their having answering on their incoming passenger card that they do not have any criminal convictions, however, prior to having cleared immigration, is discovered to have a criminal record.

If a visa holder has cleared immigration and has been found to have provided bogus documents or incorrect information, they are liable to have their visa cancelled under s109. A person whose visa is cancelled under s109 has been discovered to have:

  • Provided incorrect information in application or on a passenger card
  • Given an officer a bogus document
  • Failed to notify the department of a change of circumstances
  • Failed to correct incorrect answers
  • Made any incorrect statement in response to a visa cancellation notice.

A risk to community public health, safety or good order (s116(1)(e))

A visa holder who has be found to be a risk to the following may be liable to have their visa cancelled under s116:

  • The Australian community
  • A segment of the Australian community
  • An individual or individuals

There are three broad categories of risk being:

  • Risk to health
  • Risk to safety
  • Risk to good order

This could be a situation where the visa holder has been charged with serious violent crimes, violent sexual offences or sexual offences involving a minor. Another situation could be where that visa holder’s presence in Australia is a risk to the health and safety to an Australian individual and evidence has been found that the visa holder is the prepetrator of family voilence.

Grant of the visa is a contravention of the law (s116(1)(f))

If the visa holder is discovered to have not made a valid visa application, or have been granted their visa despite not having met criteria, the grant of their visa would be a contravention of the law and the visa holder is liable to have their visa cancelled under s116. A possible situation would be where the visa holder was required to be outside of Australia at the time of the grant but was in Australia at the time of the visa grant.

Non genuine student and improper conduct (s116(1)(fa))

A student visa holder who is found to not be a genuine student or is in engaging in academic misconduct is liable to have their visa cancelled.

Read: Non-Genuine Student? You Are Not Only Assessed In The Requirements For Your Visa But Whilst You Are A Holder

Prescribed grounds (s116(1)(g))

Prescribed grounds are a number of situations that may apply in which a visa would be cancelled on s116 grounds. This is an extensive subject. Broadly they include or apply to:

  • Foreign Minister determination
  • Security risk
  • Child custody concerns
  • Non genuine ETA visa holders
  • Unaccompanied minors
  • Visa holder requests cancellation
  • Certain minors
  • Non genuine business persons
  • Non genuine temporary residents
  • Non genuine visitors
  • Non genuine ETA tourists
  • Non genuine eVistor tourists or business visitors
  • Non genuine 482 visa holders
  • Secondary sponsored persons
  • Sponsor has paid for a visa holder to leave Australia
  • Certain offences being committed
  • Grant of a visa due to a system malfunction
  • Fradulent conduct
  • Convictions for temporary visa holders
  • Interpol notices for temporary visa holders
  • Offences by Bridging Visa E holders
  • Bridging visa holders under investigation
  • Non genuine Transit visa holders

Fradulent identity (s116(1AA))

If a visa holder has used one identity to obtain a visa but in another application for another visa, uses another identiy, and it has been discovered that one of the identities used does not belong to the visa holder, then the visa holder is liable to have their visa cancelled under s116 grounds.

Incorrect information outside of a visa application (s116(1AB))

If a visa holder has provided incorrect information to an officer, an authorised system, to the Minister or any other person or to a body or tribunal outside of the visa application process but it has been discovered to have provided information that would have resulted in the visa being refused, then that visa holder’s visa is liable to be cancelled.

Benefit was given or received for the purposes of a visa result (s116(1AC))

If a benefit was asked for or received by/offered or provided by, or on behalf of, the visa holder in relation to a sponsorship related event. s116(AD) provides that the cancellation grounds exist regardless of the situation; whether or not the person’s current visa or previous visa was the visa in relation to this offence and whether or not the offence resulted in a sponsorship.

Read: Paying for Sponsorship I

Read: Paying for Sponsorship II

Do any of these grounds for cancellation apply to you? We hope not! Share this with anyone you know who holds a visa or is in the process of getting one, as this is vital information for any visa holder to know. If yourself or someone is in need of advice, our migration specialists will be able to offered tailor advice and solutions that are best suited to your needs. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.

Jee Eun Han