How Does the Department Decide on What Grounds to Cancel a Visa?
Receiving a notification that the Department of Home Affairs (DoHA) is considering cancelling your Australian visa is one of the most stressful experiences a migrant can face. Many visa holders wonder how the Department discovers non-compliance and, more importantly, how they decide which legal grounds to use for cancellation. Visa cancellation is a strict legal process governed by the Migration Act 1958.
How Does the Department Find Out?
The Department relies on a network of intelligence gathering. They act on data provided, and some common triggers include:
The Department cross-references data with the Australian Taxation Office (ATO), Centrelink, and banks to uncover breaches of work conditions.
State and federal police automatically share data regarding criminal charges, convictions, and Apprehended Violence Orders (AVOs).
The Border Watch program allows members of the public, former partners, or disgruntled employers to report suspected visa breaches.
Devices searched at the airport can reveal intentions that contradict your visa conditions.
Related: Served Your Criminal Sentence, Will My Future Visa Be Affected?
How the Department Select the Grounds for Cancellation
Once the Department suspects non-compliance, a delegate assesses the evidence to determine the appropriate section of the Migration Act to apply. Typically, they will choose the easiest ground to cancel your visa. The most common grounds include:
General Cancellation (Section 116), the most common ground. The Department will use Section 116 if they have evidence that you breached a specific visa condition, if you are deemed a risk to the health, safety, or good order of the Australian community, or if the circumstances that justified your visa grant no longer exist.
Character Grounds (Section 501), the Department uses this section if you fail the character test. This is triggered by a substantial criminal record, involvement in organised crime, or serious behavioural concerns, including domestic violence charges or extreme online behaviour.
Incorrect Information (Section 109), if the Department discovers that your visa was granted based on false or misleading information, or bogus documents, they will cancel your visa under Section 109.
Related: Section 116 and 501 Cancellations. What’s the Difference and Why It Matters?
Discretionary vs. Mandatory Cancellation
The grounds used to determine whether the cancellation is mandatory or discretionary:
Mandatory Cancellation: Under Section 501, if you have a substantial criminal record, the delegate must cancel your visa by law. You can only fight to have the cancellation revoked after the fact.
Discretionary Cancellation: For most Section 116 and Section 109 cancellations, the delegate has the power to decide whether cancellation is the right course of action. They must weigh your breach against compelling and compassionate circumstances and the hardship cancellation would cause.
Related: What are the Time Limitations for Visa Cancellation Responses?
The NOICC Process
Unless the cancellation is mandatory, the Department cannot cancel your visa immediately. They must issue a Notice of Intention to Consider Cancellation (NOICC). This notice outlines the exact cancellation ground the Department is using and the evidence it holds against you. You are typically given a strict, non-extendable timeframe to provide a detailed legal submission explaining why your visa should not be cancelled. We strongly recommend responding to the NOICC with professional assistance from an Accredited Specialist in Immigration Law who specialises in complex visa cases. Read: When to Engage an Immigration Lawyer: Benefits, Timing, and What to Expect
Related: What Should You Consider When Responding to a Notice of Intention to Consider Cancellation (NOICC)?
Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.
Related:
Facing a Character Test Failure Under Section 501? Why You Need an Accredited Specialist
Don't Lie to Your Immigration Lawyer! Why Honesty is Your Best Defence
How Can Agape Henry Crux Help
At Agape Henry Crux, our specialised Accredited Specialists in Immigration Law - Jason Ling or Angela De Silva have extensive experience dealing with complex visa cancellation matters. We can help you navigate this complicated situation with a legal submission to address any of the Department’s concerns to maximise your chances of remaining in Australia. If you are unsure or in doubt, consider arranging a consultation with us for tailored professional advice and guidance on your next step. You can book a consultation by calling 02-8310 5230 or emailing info@ahclawyers.com.
We speak fluent English and Mandarin. If this isn’t your language, we can also help you arrange an interpreter.
Our founder and principal lawyer, Jason Ling, is recognised in the 2026 edition of The Best Lawyers in Australia™ and the 2027 edition of The Best Lawyers in Australia™. Agape Henry Crux is named as Best Immigration Law Firm 2025 - Sydney by APAC Insider Awards and in the 2027 edition of The Best Law Firms™ - Australia.
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.
Client Testimonials
….we call it Support Network
Navigating the immigration law process may be difficult, and our former clients have agreed to share their experiences through telephone chats, emails, and in-person meetings.
These are their stories…
