Section 109 — Cancellation of visa — incorrect information etc.
Text of provision
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances; may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
(3) If the Minister cancels a visa under subsection (1), the Minister must give the former holder of the visa a written notice that:
(a) sets out the decision; and
(b) specifies the ground for the cancellation; and
(d) if the former holder has a right to have the decision reviewed by application under Part 5—states:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and Migration Act 1958 189 Part 2 Arrival, presence and departure of persons Division 3 Visas for non-citizens
(iv) where the application for review can be made.
(4) The notice under subsection (3) must be given in the prescribed way.
(5) Failure to give notice of a decision does not affect the validity of the decision.
(6) Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under subsection (3) of this section.
(7) Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to decisions to cancel a visa under this section.
Plain English
Section 109 allows cancellation of a visa where incorrect information was provided by or on behalf of the holder in connection with the visa application. The ground covers:
- incorrect answers to questions in the application;
- bogus documents (including forged, fabricated, or obtained by fraud);
- information that was not provided but should have been (i.e., material omissions).
The visa holder must be given an opportunity to respond (a natural justice obligation) before the visa is cancelled.
Practical effect
Section 109 cancellation is discretionary — an officer may cancel, but is not required to, even where incorrect information was provided. Factors relevant to the discretion include the seriousness of the misrepresentation, whether it was deliberate, and the consequences for the visa holder.
This section is distinct from the character cancellation power in s 501 and the general discretionary cancellation power in s 116. A holder who successfully responds to a s 109 notice may have their visa affirmed despite the initial incorrect information, if the correct information still satisfies all criteria.