How section 116 visa cancellation works when you breach work limits

If your visa carries a work-limitation condition and you exceed it, section 116(1)(b) of the Migration Act 1958 gives the Department a ground to cancel the visa. A ground to cancel is not the same as a decision to cancel. The Department must still exercise a discretion, and how you respond to the cancellation notice often decides the outcome.

The sections below cover how section 116 cancellation operates when a work condition is breached, why the discretion is where the case is decided, and what to do the moment a notice arrives.

What section 116 says

Section 116 sets out the general power to cancel a visa held by a person in Australia. The relevant limb here is section 116(1)(b): the Minister may cancel a visa if its holder has not complied with a condition of the visa. A common example is condition 8105, the work-limitation condition attached to student visas. Under condition 8105 of Schedule 8 to the Migration Regulations 1994, the holder must not work more than 40 hours a fortnight during any fortnight in which the course is in session, read as 48 hours for a Subclass 500 holder (subclause 8105(2A)). The cap does not apply outside course sessions, to work that is a registered requirement of the course, or once the holder has commenced a masters degree by research or doctoral degree (subclause 8105(2)(b)). The figure is set by regulation and has changed before, so confirm the current figure against immi.homeaffairs.gov.au before you rely on it.

The word to notice in section 116(1) is “may”. Non-compliance gives the Department a ground on which it may act, and the Department retains the choice whether to act on it. If you have already breached, that choice is the whole of your case.

A ground to cancel is not a duty to cancel

Once a breach is established, two questions remain live: whether the ground exists on the facts, and whether the discretion should be exercised to cancel. Both are reviewable.

The Tribunal has confirmed this structure directly. In 1609897 (Migration) [2016] AATA 4548, a subclass 457 visa holder had left the sponsoring employer and gone more than 90 days without approved employment, breaching condition 8107. The Tribunal found that the breach established a ground for cancellation under section 116(1)(b), yet treated the discretion as a separate question and, giving weight to a new employer’s approved nomination, set the cancellation aside. That is an employment-condition case rather than a work-hours case, but the two-step structure applies equally to condition 8105. Admitting the hours does not end the matter. It moves the contest to the discretion, where your circumstances carry weight.

That discretion is broad, and a court will not lightly disturb how it was exercised. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, the Full Federal Court held that a cancellation decision is not legally unreasonable merely because another decision-maker might have reached a different result. A later argument that the decision-maker should have been more generous is unlikely to succeed. Your best case must go in at the decision stage, in writing, before the decision is made.

The NOICC: your one real chance to be heard

Before cancelling under section 116, the Department must usually give you a Notice of Intention to Consider Cancellation, commonly called a NOICC, under section 119 of the Act. The notice states the ground relied on and invites you to respond by a set date.

Treat that notice as the centre of your case. If you do not respond, the Department can proceed to cancel on the material it already holds, and you will have surrendered the discretion argument without a word.

Procedural fairness sets a floor here. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, the High Court held that where a decision turns on specific issues, the person affected must be given a genuine opportunity to address those issues. Applied to cancellation, if the Department is troubled by a particular fact, for example a claimed reason for the extra hours, you are entitled to know that concern and answer it. But do not treat this as a safety net. The cleaner path is to identify every issue yourself and address each one in your response, so nothing is left to be raised for the first time in the decision.

What persuades on the discretion

There is no closed list of considerations, but responses that succeed tend to speak to the same themes. Address them squarely and with evidence rather than assertion:

The circumstances of the breach. A misunderstanding of the fortnightly counting rule confined to a single pay period reads differently from a sustained pattern. Explain what happened and what you have changed.

Your compliance history otherwise. A first breach against an otherwise clean record reads very differently from repeated non-compliance.

The consequences of cancellation for you. Disruption to study, financial commitments, family in Australia, and the practical effect of the exclusion consequences that can follow certain cancellations.

Your genuine intentions. For a student, evidence that you remain enrolled, attending, and progressing goes to whether cancellation serves the purpose of the condition at all.

Put this in writing, attach documents, and keep it factual. The decision-maker is weighing your situation against the integrity of the condition, and specific evidence carries more weight than an appeal to sympathy.

If the visa is cancelled: review and time limits

Most section 116 cancellations carry a right of merits review at the Administrative Review Tribunal, which now conducts the review functions of the former Administrative Appeals Tribunal. Your decision record will state whether you have review rights and the deadline.

The deadline is the point that ends most cases before they begin. Statutory time limits for lodging review of this kind are treated as jurisdictional, meaning the Tribunal generally cannot extend them regardless of how compelling the reason for lateness. Lodge the moment you can, and confirm the exact period that applies to your decision rather than assuming.

If the cancellation happens while you are onshore, the timing also interacts with your immigration status and any bridging arrangements, which can affect your lawful presence and your ability to keep studying or working. Get advice quickly, because those consequences move fast.

What to do right now

If you have received a NOICC, do not ignore it and do not respond casually. Diarise the response date, gather your evidence, and prepare a full written answer that admits what is true, explains the circumstances, and makes the positive case against exercising the discretion to cancel.

If your visa has already been cancelled, check the decision for your review rights and deadline the same day. The window is short and, as above, generally cannot be extended.

Visa cancellation sits close to several related risks, including future visa refusals and the way a lodgement date fixes the rules that apply to you. If you are weighing your next steps, our team advises on cancellation responses, tribunal review, and the pathways back to a substantive visa. See our work on skilled visas and employer sponsored visas, and speak to Visa Plan Lawyers before you respond to any cancellation notice. The firm acts on these matters and can help you protect your position while the deadlines still allow it.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.