Visa Cancellation
Visa Cancellation on Incorrect Information
Section 109 of the Migration Act 1958 empowers the Department to cancel a visa where the visa was granted on the basis of incorrect information or documents, or where there was a failure to provide information. Cancellation can occur years after the original grant, where the inaccuracy comes to light.
When Section 109 applies
Section 109 applies where the visa was granted on the basis of information or a document that was incorrect at the time it was given to the Department, or where the visa applicant failed to comply with a requirement to provide information. The information or document need not have been deliberately false. Innocent error, agent error, translation error, and misunderstanding can all engage Section 109 if the resulting information was incorrect.
Section 109 cancellations commonly arise from non-disclosure of criminal history or prior visa refusals on a Form 80 or 1221, fabricated employment or qualifications evidence, false English test results, false sponsorship arrangements, and inaccuracies in financial sponsorship documentation. Whether the Department exercises its discretion to cancel takes account of the specific circumstances under regulation 2.41.
The regulation 2.41 considerations
Regulation 2.41 of the Migration Regulations sets out the matters the Department must consider before cancelling under Section 109. The Tribunal applies the same considerations on review. Effective representation builds the evidentiary record against each consideration in turn.
The information itself
The correct information that should have been given, the content of any incorrect information, and whether the decision to grant the visa was based, in whole or in part, on the incorrect information.
The circumstances
The circumstances in which the incorrect information was given. Innocent error, agent fault, translation issues, and misunderstanding all engage this consideration.
Present circumstances and conduct
The present circumstances of the visa holder and any subsequent behaviour. Stable employment, family ties, integration, and lawful conduct since the original application all bear on the discretion.
Other relevant circumstances
Regulation 2.41(g) is a catch-all. Hardship to family, dependence of others on the visa holder, country conditions if returned, and any other matter the Department considers relevant.
ART review preparation
ART review of a Section 109 cancellation requires the Tribunal to consider the same Section 109 elements and regulation 2.41 considerations. Fresh evidence is admissible. Effective preparation often involves documentary verification of the disputed material from primary sources (educational institutions, employers, government agencies); statements explaining the circumstances of the original application — who prepared the documents, who handled translations, the role of any migration agent; evidence of present circumstances, family ties, employment, and integration; and where applicable, expert reports on language, cultural context, or document interpretation.
Where the Department alleges the incorrect information was deliberately false, the cancellation often runs alongside a PIC 4020-style finding affecting future applications. The evidentiary stakes are significantly higher than in innocent-error cases. Specific advice and structured evidentiary preparation are essential.
Build the case under reg 2.41
Visa Plan Lawyers prepares Section 109 NOICC responses and ART review applications, mapping evidence directly onto each regulation 2.41 consideration the decision-maker must address.
Section 109 cancellation information is sourced from the Migration Act 1958 (section 109), the Migration Regulations 1994 (regulation 2.41 considerations, PIC 4020), and the Administrative Review Tribunal Act 2024, current as at April 2026. This page provides general information only and does not constitute legal advice.