s 116 — Power to cancel — Migration Act 1958
Text of provision
116 Power to cancel
(1) Subject to sections 117 and 118, the Minister may cancel a visa if he or she is satisfied that:
(a) the holder has not complied with a condition of the visa; or
(b) the holder has not entered Australia; or
(c) another person has not complied with a condition of the visa; or
(d) a prescribed circumstance relating to the grant of the visa exists; or
(e) the presence of its holder in Australia is or would be contrary to the national interest; or
(f) the holder has not complied with a provision of this Act or of the regulations; or
(g) a ground prescribed for the purposes of this paragraph exists.
(1A) Subject to sections 117 and 118, the Minister may cancel a visa if:
(a) the Minister is satisfied that incorrect information was given, by or on behalf of the holder, in connection with the application for the visa; and
(b) the correct information would have resulted in the visa not being granted.
(3) The Minister must cancel a visa if he or she is satisfied that the holder of the visa did not have a right to be granted the visa.
Plain English
Section 116 is the general power to cancel a visa. It gives the Minister a discretionary power to cancel in most circumstances (subsections (1) and (1A)), and a mandatory obligation to cancel in one circumstance (subsection (3)).
The discretionary grounds in s 116(1) include: breach of visa conditions, non-entry to Australia, breach of conditions by a sponsor or other person, and presence contrary to the national interest. Under s 116(1A), a visa may also be cancelled if it was granted based on incorrect information that was material to the grant.
The mandatory cancellation ground in s 116(3) — where the holder had no right to be granted the visa — is absolute. If the Minister is satisfied this ground applies, cancellation is required regardless of other circumstances.
Cancellation under s 116 is subject to the natural justice provisions in ss 117 and 118, which require the Minister to notify the holder and give them an opportunity to respond before the visa is cancelled (subject to certain exceptions).
Practical effect
Cancellation of a visa under s 116 has immediate and serious consequences. Once a visa is cancelled, the holder becomes an unlawful non-citizen and is subject to mandatory detention under s 189 if they are in the migration zone.
The word "may" in s 116(1) means the power is discretionary — the Minister can choose not to cancel even where a ground is established. However, once the Minister decides to exercise the power, the visa is cancelled and the legal consequences follow automatically.
Section 116(1A) — the incorrect information ground — applies even if the holder was not personally responsible for the incorrect information; it is sufficient that it was given "on behalf of" the holder (for example, by a migration agent). However, this ground is only available where the correct information would have resulted in the visa not being granted.
Cancellation decisions are subject to merits review by the Administrative Review Tribunal in many (but not all) cases, and to judicial review in the Federal Court on questions of law.