A granted Australian visa is not set in stone. Under the Migration Act 1958 (Cth), the Department of Home Affairs or the Minister can cancel a visa in a range of situations, including incorrect information, breach of visa conditions, no longer meeting the basis of the visa, and failing the character test. Once a visa is cancelled, the holder may immediately lose lawful status and face immigration detention and removal, as well as restrictions on future visa applications. Most cancellation processes have deadlines for responding and for review, so acting early is critical.
Main grounds for cancellation
- Section 109: Incorrect information was given in the visa application or on arrival, or something that should have been disclosed was not.
- Section 116: The general cancellation power, used for example where visa conditions are breached (poor attendance or working too many hours on a student visa), the basis of the visa no longer exists, or the holder poses a risk to the community.
- Section 128: Cancellation while the holder is outside Australia.
- Section 501: Cancellation on character grounds, including where the holder has a 'substantial criminal record' (for example, prison sentences totalling 12 months or more), links to a criminal organisation, or a conviction involving family violence.
- Section 501(3A): Mandatory cancellation. The visa must be cancelled if the holder has a substantial criminal record, or has committed a sexual offence involving a child, and is serving a full-time prison sentence.
For how criminal matters affect visas, see Criminal charges and visas: why immigration and criminal lawyers need to work together.
The cancellation process
Notice of intention to consider cancellation (NOICC)
In most discretionary cancellations, Home Affairs first issues a notice of intention to consider cancellation, setting out the grounds and the deadline to respond. You should answer each ground in writing with evidence, and explain relevant factors such as your ties to Australia, family and children, employment and community contribution. For practical steps, see What to do if you receive a notice of intention to consider cancellation (NOICC).
Revocation requests after mandatory cancellation
Mandatory cancellation under section 501(3A) happens without prior notice. The visa holder can ask for the decision to be revoked within the set period after receiving the notice (currently 28 days), and must provide full submissions and evidence. The decision-maker must consider the factors in the ministerial direction then in force, including protection of the Australian community, the seriousness of any family violence, the best interests of affected children and ties to Australia.
Consequences of a cancellation decision
- A holder who is in Australia becomes an unlawful non-citizen and can be placed in immigration detention unless granted a bridging visa.
- Section 48 strictly limits which visas can then be applied for onshore.
- People whose visas are cancelled on character grounds generally cannot apply for another visa onshore (sections 501E and 503) and may be permanently excluded from Australia.
- Family members' dependent visas may also be cancelled at the same time.
Review options
Most cancellations made by Home Affairs officers can be reviewed by the Administrative Review Tribunal (ART), which replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024. The time limit for character cancellations is extremely short (currently 9 days from notification) and cannot be extended, and the Tribunal must decide within a statutory period. Decisions made by the Minister personally cannot be reviewed by the ART, only by judicial review. For the ART process, see our ART migration review page; for judicial review, see migration cases in the federal courts.
Common issues and risks
- Ignoring a NOICC or responding late, so Home Affairs decides without your submissions.
- Pleading guilty or being sentenced in a criminal matter without first assessing the visa consequences.
- Lodging a revocation request with only a personal statement and no objective evidence of family, medical, rehabilitation and community support.
- Missing the deadline for ART or judicial review.
Documents you’ll need
Usually the cancellation notice or notice of intention to consider cancellation, visa and travel records, criminal judgments and sentencing remarks (if applicable), evidence of rehabilitation and counselling, statements from family and employers, documents about children, and medical reports.
How we help
Chua Tan Associates has practised in Melbourne since 1990. Two of our lawyers are Accredited Specialists in Immigration Law (Law Institute of Victoria). We can help you respond to a notice of intention to consider cancellation, prepare a revocation request, act for you in ART and judicial review, and give joined-up advice where criminal and migration issues overlap. We work in English, Mandarin and Cantonese. For more information, see our Australian immigration law services page.
Frequently asked questions
When can an Australian visa be cancelled?
Common grounds include giving incorrect information in an application (section 109), breaching a visa condition or no longer meeting the basis of the visa (section 116), and failing the character test (section 501). A person serving a prison sentence who has a substantial criminal record will have their visa mandatorily cancelled under section 501(3A).
What should I do if I receive a notice of intention to cancel my visa?
Respond in writing by the deadline in the notice. Address each reason for cancellation and give evidence of your ties to Australia, your family and children, your employment and so on. If you don't respond, or respond late, Home Affairs can decide to cancel without hearing from you.
Can a mandatory cancellation be revoked?
You can ask for revocation. The request must be made within the set period after you receive the notice (currently 28 days), with full submissions and evidence. The decision-maker will weigh the factors in the ministerial direction then in force, such as protecting the community, family violence, the best interests of children and ties to Australia.
How long do I have to apply for ART review of a character cancellation?
Very little: currently 9 days from notification of the decision, with no extension. Decisions made by the Minister personally cannot be reviewed by the ART, only by a court on judicial review. Get legal advice as soon as you receive the decision.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
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