Visa Cancellation – How to Prevent Visa Cancellation Under Section 116(1)(e)(i) Cancellation of the Migration Act:

Section 116 Visa Cancellation power gives the Minister of Immigration (Home Affairs) the power to issue a Notice of Intention to Consider Cancelling (or NOICC) a temporary visa if he believes that you are or may be, or would be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community (under section 116(1)(e)(i)). 

Under Section 116 of the Migration Act, the Department of Home Affairs can cancel your visa for different reasons such as:

1. You may pose a risk to the health or safety of the community; or
2. You failed to comply with the conditions of your visa; or
3. You are not a genuine temporary entrant, for eg, as a student; or
4. The Department is not satisfied with your identity, for eg, you provided false or fake identification document; or
5. You provided false information to the Immigration.

This article provide useful insight about section 116(1)(e)(i) discretionary visa cancellation works.

Section 116(1)(e)(i) Visa Cancellation Test

The threshold in this Section 116 Visa Cancellation is very low as the test is very broad to include if:

i. you are; or 

ii. you may be; or 

iii. you would be; or 

iv. you might be

a risk to the:

• health;
• safety; or
• good order

of the Australian community or a segment of the Australian community. 

It is important to note that if you are charged with an offence against the laws of the State or Territory, your visa may be cancelled under section 116(1)(g) on grounds prescribed in r. 2.43 of the Migration Regulations 1994. If you are put on good behaviour bond instead of being imprisoned, this can also be ground for visa cancellation.

What evidence you can provide in your submissions to prevent Section 116(1)(e) Visa Cancellation:

1. Statement of Facts outlining the charges.
2. Court outcomes documents or Court briefs.
3. If you were given bail, whether you complied with your bail conditions
4. AFP National Police Certificate detailing all your offences and sentences
5. Your statement explaining the cause or underlining reasons to, or for, your offending; explaining your ties with Australia and with your home country; whether your offending was or was not beyond your control; your remorse; explaining the adverse interaction with the criminal justice system has been a salient lesson for you and the need for you to address your offending behaviour; your compliance with your visa conditions; give an undertaking or assurance to be of good behaviour in the community and not to engage in any behaviour that would bring you within the ambit of the criminal justice system; and what would stop you from acting out in an inappropriate way in the future
6. Letters of support from your family, friends, employer, work colleagues, clubs and others
7. Letters from your family members detailing how your deportation will affect them, eg emotional and financial hardship and whether they feel threatened by you
8. If you have a job, a letter from your employer detailing how they value you and whether they can find a replacement for you if you were deported – whether your skills and occupation is in shortage or in demand
9. Evidence of having made positive contributions to the Australian community, eg mentoring other people, participation with sport clubs, volunteering, etc
10. Provide evidence that you are taking positive and proactive steps to rectify your behaviour or taken appropriate action to overcome the reasons for your offending, eg, Anger Management course, Salvation Army’s positive lifestyle program, Alcoholics Anonymous meetings (if relevant to your offending)
11. Provide evidence that you have been rehabilitated
12. Letters of apology to your victims and your appreciation of the harm caused
13. Statement of Fines and Penalties imposed by the Court.
14. Evidence of having or not having family back in your home country
15. Sentencing Magistrate’s sentencing remarks:
16. whether the objective seriousness was at the lower end of the scale
17. whether the offence was planned or not
18. whether the offending was short in length or not
19. whether you were cooperative with the police.

The decision maker is required to give weight to the evidence you provided in assessing whether Section 116 Visa Cancellation should be exercised (Botha v MIBP [2017] FCA 362 – click here to read the full case).

A section 116 visa cancellation can be appealed. The appeal options should be outlined in your section 116 visa cancellation notification from the Department of Home Affairs. If you receive a 116 cancellation, we recommend that you speak to a lawyer about your appeal options. We can assist you in determining if you have grounds to appeal a decision and assist you with the appeals process.

Disclaimer: 

The information in this blog is general. It does not constitute, and should be not relied on as, legal advice. We tries to ensure that the content of this information is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. We are not responsible for any loss suffered as a result of or in relation to the use of this information.