How a Workplace Investigation Can Trigger Visa Cancellation under Section 116?
For anyone working in Australia on a temporary work visa, your permission to stay isn’t just about your job; it’s also about how you conduct yourself within the nominated role. A workplace investigation, even if it seems like an internal company affair, can sometimes bring to light issues that can directly affect your visa.
Understanding Section 116: Broader Grounds for Visa Cancellation
Unlike Section 501, which focuses on character, Section 116 of the Migration Act covers a wider array of reasons to cancel a visa, including:
Not following any of your visa conditions.
If your visa was granted based on information that was false or misleading, or if you submitted a bogus document.
If the reasons you were granted the visa are no longer valid.
If the Minister is satisfied that it is in the public interest to cancel the visa.
How Can a Workplace Investigation Lead to Section 116 Visa Cancellation?
Workplace investigation often starts when an employer raises concerns about an employee’s conduct or compliance with workplace rules. For visa holders in Australia, these investigations can have serious immigration consequences and may result in visa cancellation under Section 116. For example:
A visa may be placed at risk if an investigation identifies serious workplace misconduct, such as theft, fraud, harassment, bullying, discrimination, or violence. Breaches of company policies – particularly those related to integrity, safety, or professional standards can also raise concerns with the Department of Home Affairs (DoHA), especially where the visa is tied to a specific sponsoring employer.
For sponsored visa holders, issues commonly arise when an investigation finds that the individual has worked for another employer without authorisation or has not been performing the duties of their nominated occupation. This is frequently seen with Skills in Demand (SID) (Subclass 482) Visa, where strict conditions require holders to work only in their approved role and for their approved sponsor. This is also a breach of their visa conditions.
A workplace investigation can also place a visa at risk if it reveals that incorrect, false or misleading information was provided in the original visa application. Even where the conduct does not amount to a serious character issue, DoHA may still view it as contrary to the public interest, thereby justifying visa cancellation under Section 116.
Importantly, employers have a legal obligation to notify DoHA when a sponsored employee’s employment ceases or if there are serious allegations of misconduct. Once notified, DoHA may conduct its own assessment, which can escalate quickly and lead to cancellation considerations.
What Happens to My Visa Next?
If DoHA receives information from a workplace investigation that suggests there may be grounds to cancel under Section 116, the process can move quickly:
In most cases, you may receive a Notice of Intention to Consider Cancellation (NOICC) from DoHA. This notice outlines the specific reasons and concerns for potential cancellation, and it also allows you to respond within a specific timeframe.
This response is your only chance to explain what happened, provide evidence, and provide supporting evidence to address DoHA’s concerns. Missing the deadline can significantly affect your visa.
If your response is unsatisfactory or if the grounds are not substantial, your visa may be cancelled.
A visa cancellation can lead to becoming an unlawful non-citizen, to detention and deportation from Australia, and to being subject to re-entry bans under PIC 4013 or 4014, and to the Section 48 Bar, limiting your ability to lodge another visa application while in Australia.
How to Protect Your Visa Status?
If you are subject to a workplace investigation, cooperate honestly. However, be aware of your rights and avoid making statements that could inadvertently harm your visa status.
Immediately seek professional guidance from an experienced immigration lawyer, especially from an Accredited Specialist in Immigration Law. They can advise on your visa conditions and obligations and assist in preparing a response to any NOICC and more.
Be fully aware of all conditions attached to your visa and strictly adhere to them.
Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.
Related:
Sponsoring Skilled Migrants: SBS Process, Obligations, and Main Considerations
Is Your Company at Risk of Adverse Information for a Nomination Application?
How Can Agape Henry Crux Help You?
Any findings of misconduct, breaches of conditions, or false information can trigger visa cancellation under Section 116, affecting your ability to live and work in Australia. Early intervention and expert legal advice are essential to successfully navigate these complex situations. At Agape Henry Crux, our team of immigration lawyers work closely with our Accredited Specialists in Immigration Law to handle highly complex matters. You can book a Migration Planning Session with our team by calling 02 8310 5230 or emailing us at info@ahclawyers.com to arrange a time.
We speak fluent English, Mandarin and Cantonese. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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