Your visa has been cancelled” — but under which power?
That single detail changes your deadlines, your review pathway, and your long-term prospects. Two provisions of the Migration Act 1958 do most of the heavy lifting, and they are not interchangeable.
Section 116 — the general cancellation power
Section 116 is the Department’s broad, discretionary tool. It can reach almost any visa, temporary or permanent, and it is triggered by grounds such as:
• The circumstances that justified the grant no longer exist
• A breach of a visa condition (work or study conditions are common examples)
• Incorrect information or a bogus document being involved
• The holder posing a risk to the health, safety or good order of the Australian community — section 116(1)(e)
The key word is discretionary. Even where a ground exists, the decision-maker may cancel — they are not obliged to.
That discretion is the space in which a well-evidenced response lives: hardship, compliance history, family ties, and the circumstances behind the ground can all be put forward before a decision is made.
Section 501 — the character cancellation
Section 501 is a different beast. It turns on the character test. A person fails that test if, among other grounds, they have a substantial criminal record, which the Act defines as:
• A single sentence of imprisonment of 12 months or more, or
• Two or more sentences totalling 12 months or more
Where someone is serving a full-time custodial sentence and has a substantial criminal record, cancellation under section 501(3A) is mandatory — the decision is made first, and the person is notified afterward, with a limited window to request revocation.
Why the distinction matters
A section 116 cancellation is usually reviewable on its merits and turns on discretion you can influence. A section 501 cancellation carries heavier, longer-lasting consequences — including a bar on most future visas — and where the Minister acts personally, merits review may not be available at all, leaving only judicial review in the Federal Court.
Same three words — “your visa is cancelled” — but two very different roads. The first step in any response is identifying which one you’re on.
To discuss a section 116 or section 501 cancellation notice, call (02) 8077 2562 or Book a consultation at www.toliclawyers.com.au
Disclaimer: General information only, not legal advice. Strict time limits apply.
