Grounds for cancellation of visa (Act, s 116)
2.43 Grounds for cancellation of visa (Act, s 116)
For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
that the Foreign Minister has personally determined that:
in the case of a visa other than a relevant visa—the holder of the visa is a person whose presence in Australia:
is, or would be, contrary to Australia’s foreign policy interests; or
may be directly or indirectly associated with the proliferation of weapons of mass destruction; or
in the case of a relevant visa—the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction;
A relevant visa is explained in subregulation (3).
in the case of a person who is the holder of a visa other than a relevant visa, the person:
is declared under paragraph 6(b) or 6A(1)(b), (2)(b), (4)(b), (5)(b), (8)(b) or (9)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; and
is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011;
that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979;
that there is an unreasonable risk of an unwanted transfer of critical technology by the holder of the visa;
in the case of:
the holder of an Electronic Travel Authority (Class UD) visa who is under 18; or
the holder of a Tourist (Class TR) visa, that was applied for using form 601E, who is under 18; or
the holder of a Visitor (Class TV) visa who is under 18; or
the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18;
that either:
both of the following apply:
the law of the visa holder’s home country did not permit the removal of the visa holder;
at least 1 of the persons who could lawfully determine where the additional applicant is to live did not consent to the grant of the visa; or
the grant of the visa was inconsistent with any Australian child order in force in relation to the visa holder;
in the case of a Subclass 601 (Electronic Travel Authority) visa—that, despite the grant of the visa, the Minister is satisfied that the visa holder:
did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or
has ceased to have that intention;
in the case of:
the holder of an Electronic Travel Authority (Class UD) visa who is under 18 and is not accompanied by his or her parent or guardian; or
the holder of a Tourist (Class TR) visa, that was applied for using a form 601E, who:
is under 18; and
is not accompanied by his or her parent or guardian; or
the holder of a Visitor (Class TV) visa who is under 18 and is not accompanied by his or her parent or guardian; or
the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18 and is not accompanied by his or her parent or guardian;
that the holder of that visa does not have adequate funds, or adequate arrangements have not been made, for the holder’s maintenance, support and general welfare during the holder’s proposed visit in Australia;
in the case of a temporary visa held by a person other than a visa holder mentioned in paragraph (h)—that the visa holder asks the Minister, in writing, to cancel the visa;
in the case of a temporary visa held by a person who is under the age of 18 years and is not a spouse, a former spouse or engaged to be married—that:
a person who is at least 18 years of age, and who can lawfully determine where the visa holder is to live, asks the Minister, in writing, to cancel the visa; and
the Minister is satisfied that there is no compelling reason to believe that the cancellation of the visa would not be in the best interests of the visa holder;
in the case of the holder of:
a Subclass 456 (Business (Short Stay)) visa; or
a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa; or
a Subclass 600 (Visitor) visa in the Business Visitor stream; or
a Subclass 956 (Electronic Travel Authority (Business Entrant—Long Validity)) visa; or
a Subclass 977 (Electronic Travel Authority (Business Entrant—Short Validity)) visa—
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for business purposes;
in the case of a holder of:
a Subclass 400 (Temporary Work (Short Stay Specialist)) visa; or
a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
a Subclass 402 (Training and Research) visa; or
a Subclass 403 (Temporary Work (International Relations)) visa; or
a Subclass 407 (Training) visa; or
a Subclass 408 (Temporary Activity) visa; or
a Subclass 416 (Special Program) visa; or
a Subclass 420 (Entertainment) visa; or
a Subclass 488 (Superyacht Crew) visa;
that the grounds in subregulation (1A) are met;
in the case of the holder of:
a Subclass 600 (Visitor) visa that is not in the Business Visitor stream or the Frequent Traveller stream; or
a Subclass 676 (Tourist) visa; or
a Subclass 679 (Sponsored Family Visitor) visa;
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment;
in the case of the holder of a Subclass 600 (Visitor) visa in the Frequent Traveller stream—that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a tourist or to engage in a business visitor activity;
in the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa—that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes;
in the case of a holder of a Subclass 651 (eVisitor) visa—that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted;
in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4) (as in force before 18 March 2018)—that, despite the grant of the visa, the Minister is satisfied that:
the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) (as in force before 18 March 2018) at the time of grant of the visa; or
the holder has ceased to have a genuine intention to perform that occupation; or
the position associated with the nominated occupation is not genuine;
in the case of the holder of a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream, Medium‑term stream or Labour Agreement stream or a Subclass 482 (Skills in Demand) visa—that, despite the grant of the visa, the Minister is satisfied that:
the holder did not have a genuine intention at the time of grant of the visa to perform the occupation mentioned in subclause 482.212(2) of Schedule 2; or
the holder has ceased to have a genuine intention to perform that occupation; or
the position associated with that occupation is not genuine;
in the case of the holder of Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa—that, despite the grant of the visa, the Minister is satisfied that:
the holder did not have a genuine intention at the time of grant of the visa to perform the occupation mentioned in subclause 494.213(2) of Schedule 2; or
the holder has ceased to have a genuine intention to perform that occupation; or
the position associated with that occupation is not genuine;
in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa, a Subclass 482 (Temporary Skill Shortage) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor)—that:
the sponsor has given false or misleading information to Immigration or the ART; or
the sponsor has failed to satisfy a sponsorship obligation; or
the sponsor has been cancelled or barred under section 140M of the Act; or
the labour agreement has been terminated, has been suspended or has ceased;
in the case of a holder of:
a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
a Subclass 402 (Training and Research) visa; or
a Subclass 407 (Training) visa; or
a Subclass 408 (Temporary Activity) visa; or
a Subclass 416 (Special Program) visa; or
a Subclass 488 (Superyacht Crew) visa;
who is a primary sponsored person in relation to a person who is or was an approved work sponsor—that 1 of the grounds specified in subregulation (1B) is met;
in the case of a holder of:
a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
a Subclass 402 (Training and Research) visa; or
a Subclass 407 (Training) visa; or
a Subclass 420 (Entertainment) visa; or
a Subclass 457 (Temporary Work (Skilled)) visa; or
a Subclass 482 (Temporary Skill Shortage) visa; or
a Subclass 482 (Skills in Demand) visa; or
a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;
who is a secondary sponsored person in relation to a person who is or was an approved work sponsor—that the person who is or was an approved work sponsor of the primary sponsored person to whom the secondary sponsored person is related has not listed the secondary sponsored person in the latest nomination in which the primary sponsored person is identified;
in the case of a holder of:
a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
a Subclass 408 (Temporary Activity) visa granted on the basis that the primary sponsored person satisfied the criteria in clause 408.223 (religious worker) or 408.224 (domestic worker) of Schedule 2; or
a Subclass 457 (Temporary Work (Skilled)) visa; or
a Subclass 482 (Temporary Skill Shortage) visa; or
a Subclass 482 (Skills in Demand) visa; or
a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;
who is a primary sponsored person or a secondary sponsored person in relation to a person who is or was an approved work sponsor—that the person who is or was an approved work sponsor has paid the return travel costs of the holder in accordance with the sponsorship obligation mentioned in regulation 2.80 or 2.80A;
that the Minister reasonably suspects that the holder of the visa has committed an offence under section 232A, 233, 233A, 234 or 236 of the Act;
that:
a certificate is in force under paragraph 271(1)(l) of the Act, stating that a computer program was not functioning correctly; and
both of the following apply:
the visa was granted at the time, or during the period, that is specified in the certificate;
the grant of the visa is an outcome from the operation of that program, under an arrangement made under subsection 495A(1) of the Act, that is specified in the certificate;
the holder of the visa provided an Australia Travel Declaration (other than an Australia Travel Declaration that was withdrawn before the time referred to in paragraph 3.03AB(1)(b)) and one or more of the following apply:
the Australia Travel Declaration was incorrect at the time it was submitted to the departmental system that processes such declarations;
the Australia Travel Declaration was incorrect at the time the holder, or a person in charge of the holder on the relevant flight or voyage, showed the electronic message generated by that system in respect of the declaration to a clearance authority;
the holder, or a person in charge of the holder on the relevant flight or voyage, has provided incorrect information in relation to the Australia Travel Declaration;
that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person;
in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)—that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)—that the Minister is satisfied that the holder is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning or intelligence that:
the holder has committed an offence against a law of another country and is likely to commit a similar offence; or
the holder is a serious and immediate threat to public safety;
in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that the Minister is satisfied that the holder:
has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder’s last substantive visa being cancelled under paragraph (oa)); or
has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or
is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:
has committed an offence against a law of another country; and
is likely to commit a similar offence; or
is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety;
in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that:
an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and
the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;
in the case of the holder of a Subclass 771 (Transit) visa—that, despite the grant of the visa, the Minister reasonably suspects that the holder of the visa:
did not have, at the time of the grant of the visa, an intention to transit Australia; or
has ceased to have that intention;
in the case of a holder of:
a Subclass 400 (Temporary Work (Short Stay Specialist)) visa; or
a Subclass 403 (Temporary Work (International Relations)) visa; or
a Subclass 407 (Training) visa; or
a Subclass 408 (Temporary Activity) visa; or
a Subclass 417 (Working Holiday) visa; or
a Subclass 457 (Temporary Work (Skilled)) visa; or
a Subclass 462 (Work and Holiday) visa; or
a Subclass 476 (Skilled—Recognised Graduate) visa; or
a Subclass 482 (Temporary Skill Shortage) visa; or
a Subclass 482 (Skills in Demand) visa; or
a Subclass 485 (Temporary Graduate) visa; or
a Subclass 500 (Student) visa; or
a Subclass 590 (Student Guardian) visa; or
a Subclass 600 (Visitor) visa; or
a Subclass 601 (Electronic Travel Authority) visa; or
a Subclass 651 (eVisitor) visa; or
a Subclass 676 (Tourist) visa; or
a Subclass 771 (Transit) visa; or
a Subclass 988 (Maritime Crew) visa;
who is in Australia and who has not been immigration cleared—that the Minister reasonably believes that the visa holder has contravened subsection 126(2), 128(2), 186A(1), 532(1) or 533(1) of the Biosecurity Act 2015;
in the case of the holder of a temporary visa—that the Minister reasonably believes that the visa holder:
has imported goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies; and
has not been granted a permission under subregulation 4A(2) of those Regulations to import the goods.
For paragraph (1)(ia), the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which:
the visa holder’s visa was granted; or
if the visa holder is identified in a nomination after the visa is granted—the visa holder was identified in a nomination.
For paragraph (1)(lc), the grounds are the following:
the approval of the person as a work sponsor has been cancelled, or the approved work sponsor has been barred, under section 140M of the Act;
if the primary sponsored person is required to be identified in a nomination—the criteria for approval of the latest nomination in which the primary sponsored person is identified are no longer met;
the person who is or was an approved work sponsor has failed to satisfy a sponsorship obligation.
For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.
For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:
because of the conduct of the holder; or
because of the circumstances of the holder, other than compassionate or compelling circumstances; or
because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or
on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
in the case of a visa other than a relevant visa—each of the circumstances comprising the grounds set out in:
sub‑subparagraphs (1)(a)(i)(A) and (B); and
paragraph (1)(aa); and
paragraph (1)(b); and
paragraph (1)(c); and
in the case of a relevant visa—the circumstance comprising the grounds set out in subparagraph (1)(a)(ii).
In this regulation:
relevant visa means a visa of any of the following subclasses:
Subclass 050;
Subclass 070;
Subclass 200;
Subclass 201;
Subclass 202;
Subclass 203;
Subclass 204;
Subclass 449;
Subclass 785, including a Subclass 785 visa granted before 2 December 2013;
Subclass 786;
Subclass 866.
The statute text is free to read above. View subscription options to unlock the case-law research tools for each provision.