Section 116 Visa Cancellation & NOICC

About Section 116

Section 116 Visa Cancellation lets the Immigration Minister  cancel a temporary visa. This can happen if they think you might be a risk to Australian people’s health, safety, or way of life (Section 116(1)(e)(i)).

Your temporary visa might be cancelled for other reasons too, like failing a character test or not meeting visa conditions.

Usually, Section 116 of the Migration Act 1958 lets the Minister decide to cancel a temporary visa. They have to think about whether it should be cancelled, but the law doesn’t list specific things they must consider. They can cancel your visa for various reasons, like:

  • You might be a danger to people’s health or safety;
  • You didn’t follow your visa rules;
  • You’re not really in Australia temporarily, like if you’re a student but not acting like one;
  • The government isn’t sure who you are, like if you gave them fake ID;
  • You gave wrong information to Immigration.

Criteria for Section 116 Visa Cancellation Assessment

Understanding Visa Cancellation Under Section 116(1)(e)(i) and 116(1)(g)

Visa cancellation under Section 116 of the Australian Migration Act encompasses a wide range of scenarios. It applies if you are considered a threat to the health, safety, or orderly conduct of either the entire Australian community or just a segment of it. This threat can be in various forms:

    1. Existing,
    2. Potential,
    3. Likely, or
    4. Possible.

Additionally, Section 116(1)(g) addresses visa cancellation in case of legal issues. If you’re charged with an offense under the laws of any State or Territory, this could lead to your visa being cancelled as per rule 2.43 in the Migration Regulations 1994. Notably, being placed on a good behavior bond, instead of imprisonment, is also grounds for visa cancellation under this section.

However, it’s important to note that the Department of Immigration cannot cancel certain types of visas, such as BVE or TY-444, using the powers granted by section 116(1)(g).

Supporting Documentation for Section 116

To prevent Section 116(1)(e) Visa Cancellation, you can provide supporting evidence as follows:

  1. Apology letters to your victims:
    Expressing remorse for any harm caused.
  2. Letters of support:
    From family, friends, employers, colleagues, clubs, and others.
  3. A statement of facts:
    Describing the charges against you.
  4. Court documents or briefs:
    Outlining the court outcomes.
  5. Compliance with bail conditions:
    If granted.
  6. Testimonials or certificates from community or religious leaders:
    Highlighting your character and contributions.
  7. Medical records or reports:
    Showing health issues that could worsen if the visa is cancelled.
  8. Proof of efforts to address your behavior:
    Such as attending anger management or rehabilitation programs.
  9. Documentation of fines and penalties:
    Imposed by the court.
  10. Your statement:
    Explaining your actions, ties to Australia and your home country, remorse, and commitment to good behavior.
  11. Psychologists’ reports:
    Including risk assessments.
  12. A National Police Certificate:
    Detailing your offenses and sentences.
  13. Evidence of ongoing educational or professional development:
    Demonstrating your commitment to improvement and contribution.
  14. Letters from family members:
    Explaining the emotional and financial impact of your deportation on them.
  15. If employed, a letter from your employer:
    Discussing your value and the availability of replacements.
  16. Evidence of positive contributions to the Australian community:
    Such as mentoring, sports club participation, or volunteering.
  17. Legal opinions or precedents:
    Indicating the potential success of your case or similar cases where visa cancellation was avoided.
  18. Sentencing magistrate’s remarks:
    Considering factors like seriousness, planning, cooperation with police, and remorse.
  19. Information about your family situation in your home country:
    To provide context about your personal background.
  20. The decision-maker’s consideration of evidence:
    As per the ruling in Botha v MIBP [2017] FCA 362.

The court acknowledged that relying solely on past offenses may not be enough to justify visa cancellation, depending on circumstances. The decision-maker should consider your likelihood of re-offending. However, serious past offenses may still raise concerns about ongoing risk (Tien v MIMA (1998) 89 FCR 80). The decision-maker must explain how your conviction supports a finding of risk to the community (Leota at [65]). If charged but not convicted, the charge should not carry too much weight.

Factors Considered in Section 116 Visa Cancellation Decision

If the Department decides to proceed with Section 116 visa cancellation, they will take into account the following considerations:

  1. The potential legal consequences of a Section 116 Visa Cancellation decision, including:
    • Your eligibility for another visa onshore.
    • The possibility of immigration detention until removal if ineligible.
    • The impact of PIC 4013 or a 3-year ban due to failing the section 501 character test.
    • The section 48 bar, limiting your ability to apply for specific visas.
    • The risk of becoming an unlawful non-citizen and facing detention and removal.
  2. Whether your removal would breach Australia’s non-refoulement obligations, such as the risk of persecution or harm if returned to your home country.
  3. Australia’s obligations under international agreements that might be violated by the visa cancellation, particularly regarding:
    • The Convention on the Rights of the Child (CROC) if children are involved.
    • The International Covenant on Civil and Political Rights (ICCPR) if family members are affected.
  4. Your contribution and integration into the Australian community: Evidence of your positive involvement in the community, like employment, volunteering, or social connections.
  5. Details of the offense committed and the circumstances leading to it.
  6. Whether the offense was within your control and the risk of re-offending, as judged by the decision-maker in light of character statements and past behavior.
  7. The character statements from individuals aware of your past misconduct, including colleagues, and their belief about your potential for re-offending.
  8. Health considerations: If you or your dependents have significant health issues that would be adversely affected by visa cancellation.
  9. Your past and current behavior towards the Department of Immigration regarding Section 116 Visa Cancellation.
  10. Your cooperation with the Department of Immigration when issued a Notice of Intention to Consider Cancellation (NOICC) related to Section 116(1)(e)(i) Visa Cancellation.
  11. The presence of secondary visa holders on your visa and whether their visas might be canceled under section 140 due to your Section 116 visa cancellation.
  12. Character witnesses’ input on whether you have improved as a person since the time of your offense and their assessment of the risk of future criminal conduct.

Timeframe for Response

Standard Period:

  • Typically, the applicant is given 5-28 days to respond to the NOICC.

Variations Based on Circumstances:

  • In certain situations, like immigration detention, the period might be shorter, e.g., 3 working days.
  • Failure to respond within the stipulated timeframe allows the Delegate to decide on the application without further input, often leading to visa refusal.

Visa Options in Immigration Detention Centre

If detained in immigration detention centre, you can apply for a Bridging Visa E, potentially leading to release. However, a criminal record may lead to visa refusal. In case of refusal, you can appeal to the Administrative Appeals Tribunal (AAT) within 2 days. A waiting period of 30 days applies for reapplying, unless the Minister approves.

Visa cancellation may result in a 3-year ban on reapplication. Visa refusal or cancellation in Australia may limit future applications (see section 48 bar and application restrictions here).

International Obligations

Non-refoulement Considerations:
Section 116 decisions must respect Australia’s non-refoulement obligations under international law. This principle prevents individuals from being returned to a country where they face serious threats to their life or freedom. The website should detail how this principle is applied in the context of Section 116 cancellations.

Rights of Children and Families:
In cases involving children, the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR) must be considered. These international agreements mandate the protection of children’s rights and the preservation of family unity, which are essential factors in visa cancellation cases.

Legal Consequences and Rights Post-Cancellation

Appeal Process:
After a visa is cancelled under Section 116, individuals have the right to appeal the decision. This process usually involves applying for a review by the Administrative Appeals Tribunal (AAT). It is crucial to understand the timeframes and requirements for lodging an appeal, as missing a deadline can result in losing the right to appeal.

Merits Review by AAT:
If a visa is cancelled, the visa holder can request a Merits Review by the AAT. This independent body reviews the decision to cancel the visa, considering all aspects and evidence. It is essential for applicants to present compelling evidence and arguments during the Merits Review process to support their case.

Judicial Review:
Should the AAT affirm the visa cancellation, the next step is to file a Judicial Review application with the Federal Circuit Court within a specific period (usually 35 days from the decision). This review focuses on whether there was a jurisdictional error in the decision-making process. The court does not re-assess the merits of the case but checks for legal errors in the decision.

What Are Your Next Steps

Upon receiving the notice from the Department, it is crucial to submit a well-prepared and comprehensive response that presents your case effectively. Providing accompanying supporting documents is equally essential.

If your visa has been directly canceled, you may have the option to seek a review of the cancellation through the Administrative Appeals Tribunal (AAT) or the relevant courts.

Frequently Asked Questions

  1. What is Section 116 of the Australian Migration Act?
    It’s a section that gives the Minister power to cancel a visa for various reasons, like health or safety risks to the community.

  2. What are the common grounds for visa cancellation under Section 116?
    These include risks to community health or safety, non-compliance with visa conditions, and providing false information.

  3. Can Section 116 cancel any type of visa?
    It primarily targets temporary visas, but specific conditions apply for different visa types.

  4. How is ‘risk to the community’ defined under Section 116?
    It’s broadly defined and can include health, safety, or order risks.

  5. What happens if my visa is cancelled under Section 116?
    You may need to leave Australia and could face difficulties applying for future visas.

  6. Can I appeal a visa cancellation under Section 116?
    Yes, there are avenues for appeal, such as applying for a review by the Administrative Appeals Tribunal (AAT).

  7. Does a criminal charge automatically lead to Section 116 visa cancellation?
    Not automatically, but criminal charges are a significant factor in the decision-making process.

  8. What is a Notice of Intention to Consider Cancellation (NOICC)?
    It’s a notice issued by the Department of Immigration indicating they are considering cancelling your visa.

  9. How do I respond to a NOICC?
    You should provide evidence and arguments against visa cancellation within the specified timeframe.

  10. Can I stay in Australia while contesting a Section 116 cancellation?
    You can usually stay until your appeal is decided, but specific circumstances may vary.

  11. What factors are considered in a Section 116 cancellation decision?
    Factors include the nature of the risk you pose, your character, and ties to the Australian community.

  12. Can family members be affected by my Section 116 visa cancellation?
    Yes, if they are secondary visa holders, their visas might also be impacted.

  13. Is it possible to get a new visa after a Section 116 cancellation?
    It’s possible but challenging, especially if you face a ban or have a poor immigration history.

  14. How long does the Section 116 visa cancellation process take?
    The timeframe varies depending on individual circumstances and legal proceedings.

  15. Can medical issues affect a Section 116 visa cancellation decision?
    Yes, especially if deportation could worsen your or your family’s health conditions.

  16. Are there any special considerations for children under Section 116?
    Yes, the impact on children, especially in terms of their rights and welfare, is considered.

  17. What role do character references play in a Section 116 decision?
    They provide insight into your character and behavior, impacting the risk assessment.

  18. Can I apply for a different visa type to avoid Section 116 cancellation?
    Switching visa types won’t necessarily avoid cancellation, as the reasons for cancellation might still apply.

  19. Does Section 116 apply to permanent residents?
    No, it primarily targets temporary visa holders.

  20. What should I do immediately after receiving a Section 116 cancellation notice?
    Consult an immigration lawyer or agent to understand your options and prepare your response.