Breaching Visa Conditions and S116 Cancellation
The Minister is afforded general powers to cancel visas under Section 116 of the Migration Act (‘the Act’) where certain circumstances exist.
Two (2) common grounds for S116 cancellation include the following:
- You have not complied with a condition(s) imposed upon your visa
- The grounds under which your visa was granted no longer exist.
If the Department of Home Affairs intends to exercise its discretion to cancel an Australian visa under section 116, the Minister must first issue a Notice of Intention to Consider Cancellation (NOICC).
Upon receipt of the NOICC you are given the opportunity to present arguments and submissions in support of your matter, explaining why your visa should not be cancelled. Failure to respond to a NOICC will likely result in the visa cancellation regardless.
Under s116(1)(fa) of the Act, the Minister may issue a NOICC where he considers the Student Visa holder will not be a genuine student. We note that Students Visa Holders who receive a s116 NOICC after 13 April 2013 are not subject to mandatory cancellation. The power to cancel the Student Visa is, therefore, discretionary in nature.
Grounds for cancelling a Student Visa can include the visa holder breaching the following conditions:
- Condition 8104 – must not engage in work for more than 40 hours per fortnight (unless exemptions apply).
- Condition 8105 – must not engage in any work in Australia before commencement of the course of study.
- Condition 8202(2) – must be enrolled in a full-time, registered course of study
Failure to adhere to these conditions may result in your visa being cancelled under s116 of the Migration Act 1958 (‘the Act’).
In addition to the above, s116(e) also gives the Minister the power to cancel visas where the presence of the Student Visa Holder in Australia is – or may be, or would or might be, a risk to:
- the health, safety or good order of the Australian community or a segment of the Australian community; or
- the health or safety of an individual or individuals.
An NOICC under s116(e) may be issued if you have been convicted for driving offences, being the subject of an aggravated violence order (AVO) as well as many other character issues.
It is important to stress that under s116 of the Act, the Minister can issue an NOICC and subsequently cancel a Student Visa where exists sufficient evidence that the Student Visa Holder may, would or might be a risk. In other words, the cancellation can be enacted if the probability of you offending is considered serious by the Minister.
Despite the above, if the Department of Home Affairs decides to cancel your Student Visa, you may have the right to review this decision with the Administrative Appeals Tribunal (AAT) provided you apply for review within the statutory time frames and pay the review application fee.
If you are an existing Student Visa Holder (or Applicant) and have received an NOICC from the Department of Home Affairs, contact our Immigration Accredited Specialist today for accurate advice and guidance on your matter.
If you have a family member currently serving a prison sentence and they are not an Australian citizens, be aware that their visa may be at risk of being cancelled.
It is now mandatory for the Minister for Immigration to cancel a non-citizen’s visa if they:
- are currently serving a full-time prison sentence and
- have been sentenced to 12 months or more imprisonment (this includes time already served) or
- have been sentenced to life imprisonment or
- have been sentenced to death or
- have been found guilty of a sexual offence involving a child.
Alan Rigas Solicitors have been dealing with temporary entrant visas and Australian visa cancellations for over 20 years.
Contact Us today to discuss your needs as time limits cannot be extended: 02 9635 5333