Cancellation under section 116 – Failure to comply with conditions
Section 116 of the Migration Act 1958 creates a general power to cancel visas and provides, among others, the following grounds for cancelling a visa –
- You have not complied with a condition of your visa
- The grounds on which the visa was granted to you no longer exist.
If the Department of Immigration and Border Protection intends to exercise its discretion to cancel an Australian visa under section 116, they must first issue a notice of intention to consider cancellation to the visa holder and give you an opportunity to respond.
Section 116(3) prescribes that a visa must be cancelled in certain circumstances, for example where a student has not complied with their visa condition 8202 obligations to attend classes and achieve satisfactory academic progress.
Procedural requirements for cancelling a visa under section 116 are often not followed by the Department of Immigration and Border Protection.
If legislative procedure has not been followed then the cancellation of your visa may be invalid and your cancellation may be overturned by application to the Migration Review Tribunal, the Federal Magistrates Court or Federal Court.
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