7.1 Visa Cancellation: Sections 109, 116, and 128
Key Takeaways
- Section 109 concerns non-compliance with the accuracy, bogus-document, change, and correction duties in sections 101–105; the ordinary process uses a section 107 notice, a section 108 finding, and the prescribed regulation 2.41 circumstances.
- Section 109 cancellation is generally discretionary after non-compliance is found, is not confined to deliberate conduct, and must be analysed separately from PIC 4020 and criminal fraud.
- Section 116 contains general cancellation grounds, while sections 119–124 ordinarily provide the notice, relevant-information, response, and timing procedure where that Subdivision applies.
- Section 128 permits cancellation without prior notice when the holder is outside Australia and a section 116(1) ground exists, but sections 129–133 provide a post-cancellation response and revocation framework.
- Cancellation ends the cancelled visa under section 82(1); lawful status, bridging-visa effect, section 48, family consequences, review, and exclusion periods must each be checked rather than treated as automatic universal results.
7.1 Visa Cancellation: Sections 109, 116, and 128
Cancellation advice starts with the power actually used, the decision-maker, the holder’s location, and the procedural stage. Sections 109, 116, and 128 are not interchangeable. Ministerial personal powers, character cancellation, regional-employment cancellation, consequential family cancellation, and security provisions have separate rules.
Section 109: incorrect information and bogus documents
Subdivision C focuses on non-compliance with sections 101–105: correct information in the application and passenger card, bogus documents, notification of changed circumstances, and correction of incorrect information. Section 107A allows relevant non-compliance connected with an earlier visa to be raised against the visa now held. Under section 111 the non-compliance can be deliberate or inadvertent; intention can matter to discretion but is not required to establish every breach.
The ordinary sequence is:
- Under section 107, the holder receives particulars of possible non-compliance and an invitation to respond in the prescribed way and period.
- Under section 108, the decision-maker considers the response and decides whether the described non-compliance occurred.
- If it did, section 109 permits cancellation after the response and the prescribed circumstances are considered. Regulation 2.41 supplies those circumstances, including the correct information, the content of the incorrect information or document, knowledge, circumstances of the non-compliance, the visa holder’s present circumstances, subsequent behaviour, and other relevant matters.
The power is ordinarily discretionary, although section 109(2) recognises regulations may declare circumstances requiring cancellation. Do not present a defect in any notice as automatically jurisdictional without analysing the statutory requirement, the actual notice, and materiality. Also keep section 109 distinct from PIC 4020: a current cancellation inquiry and a future visa integrity criterion can overlap factually while applying different legal tests.
Section 116: general cancellation grounds
Section 116 includes grounds such as non-compliance with a visa condition, circumstances that permitted grant no longer existing, and specified risks to health, safety, or good order. Other paragraphs and regulation 2.43 contain targeted grounds, including student and sponsorship-related settings. Some powers are discretionary and section 116(3) addresses prescribed mandatory cancellation circumstances. Always use the current Act, regulation, condition, and grant record instead of a generic list.
Where the statutory procedural Subdivision applies, section 119 requires notice of the apparent ground and an invitation to show that the ground does not exist or that there is a reason not to cancel. Section 120 separately deals with relevant adverse information not already disclosed. Sections 121–124 control the response and when a decision may be made. Location and immigration-clearance rules matter, and personal ministerial provisions can alter the ordinary process.
A response should address both stages: whether the legal ground exists and, if it does, why discretion should not be exercised. Verify the condition text and period of alleged conduct. For example, a student work allegation requires the actual condition, course-session facts, statutory exceptions, payroll period, and reliable records—not merely a weekly-hours estimate.
Section 128: holder outside Australia
Section 128 permits cancellation without prior notice if the holder is outside Australia, there is a ground under section 116(1), and it is appropriate to cancel without notice. The decision prevents reliance on the cancelled visa for travel, but the absence of a prior hearing activates the post-decision scheme.
Section 129 requires notice and an invitation to show that the ground did not exist or that there is a reason for revocation. Regulation 2.46 prescribes the response period. It is ordinarily 28 days when the former holder is outside Australia when given the notice, but the regulation contains materially different rules if the person is in Australia, including a very short period where reconsideration is sought while the person remains in Australia. Never quote “28 days in every case” without establishing location at notification.
Under section 131, after considering a timely response, the Minister is to revoke if not satisfied that the ground existed or if satisfied there is another reason for revocation, subject to prescribed non-revocation circumstances. Section 133, not section 131, states the effect: on revocation the visa has effect as if granted on the revocation, and its effect or travel period may be varied. It is not universally deemed never to have been cancelled.
Consequences and protective workflow
Section 82(1) says the cancelled visa ceases to be in effect. That does not prove the person is unlawful: check every other visa held and when it is in effect. Section 82(3) makes a bridging visa cease when another visa comes into effect; it does not say a substantive-visa cancellation automatically cancels every bridging visa. A bridging visa that had ceased under section 82(3) may reactivate under section 68(4) if its visa period continues and the statutory conditions are met. Grant notices, Schedule 2, and the event specified for cessation remain essential.
Section 48 applies only when all its conditions are met, including presence in the migration zone, no substantive visa, and a refusal or cancellation since last entry. Consequential family cancellation may arise under section 140 where another person held a visa because of family-unit status; that is different from an “associated bridging visa” rule. Exclusion criteria and special return criteria depend on the cancellation ground, visa history, later application, and available exception.
Immediately preserve the notice, decision, portal history, grant notice, travel and location evidence, and all notification records. Determine current lawful status, detention or departure risk, ART reviewability and standing, section 129 response, court deadline, bridging options, family effects, and future exclusion consequences. Use the earliest plausible deadline and seek specialist legal help where notice validity, jurisdictional error, criminal exposure, or conflicting client interests arise.
After finding section 109 non-compliance, what must the delegate do before deciding whether to cancel?
What is the ordinary section 119 response to a proposed onshore section 116 cancellation where the statutory notice procedure applies?
A section 128 cancellation notice is given while the former holder is outside Australia. Which advice is accurate?