Responding to a Notice of Intention to Consider Cancellation (NOICC)

Introduction

Receiving a Notice of Intention to Consider Cancellation (NOICC) from the Department of Home Affairs is a critical and often stressful moment for any visa holder. This formal notice signifies that the Department is considering cancelling your Australian visa under the Migration Act 1958 (Cth), putting your ability to stay in Australia at risk. However, it is not a final visa cancellation, but a crucial opportunity to respond.

A well-prepared and timely response is your best chance to argue why your visa should not be cancelled and to protect your status. This guide offers a strategic framework for navigating the NOICC process, helping you to address the Department’s concerns effectively and present the strongest possible case to prevent a visa cancellation.

Deconstructing the NOICC Notice

What a NOICC Is & Why You Received One

A NOICC is a formal communication from the Department of Home Affairs. It informs a visa holder that the Department has identified grounds that may justify a visa cancellation and provides a critical opportunity to respond before a final decision is made.

It is important to understand that a NOICC is not a final cancellation notice; rather, it is an invitation to provide evidence and arguments explaining why your visa should not be cancelled.

This process is a key part of procedural fairness under Australian immigration law, generally mandated by section 119 of the Migration Act 1958 (Cth). The notice gives you the chance to address the Department’s concerns directly. By issuing a NOICC, the Department of Home Affairs indicates it has formed a preliminary view, placing the responsibility on the visa holder to present a persuasive case.

Common Grounds for a Visa Cancellation Notice

The Department of Home Affairs may issue a NOICC for several reasons, which will be clearly outlined in the notice you receive. These grounds for a potential visa cancellation are established under specific sections of the Migration Act 1958 (Cth).

Common reasons for receiving a notice of intention to consider cancellation include:

Grounds for Cancellation	Description & Legal Basis
Incorrect Information or Bogus Documents	A visa can be cancelled if false or misleading information was supplied as part of the visa application, as per section 109 of the Migration Act 1958 (Cth).
Significant Change in Circumstances	Section 116 of the Migration Act 1958 (Cth) allows for cancellation if the circumstances permitting the visa grant no longer exist (e.g., relationship breakdown for a partner visa).
Breach of Visa Conditions	A frequent reason under section 116 of the Migration Act 1958 (Cth), this includes actions like working more hours than permitted or not working for an approved sponsor.
Character Concerns	A visa may be cancelled under section 501 of the Migration Act 1958 (Cth) if the visa holder fails to pass the character test, often due to a substantial criminal record.

Critical Response Timeframes & Deadlines

The timeframes for responding to a NOICC are extremely strict and typically very short. It is crucial to act immediately upon receiving the notice, as failing to respond by the deadline will almost certainly result in your visa being cancelled, which could make you an unlawful non-citizen.

The response deadline varies depending on the grounds for the potential visa cancellation. While it can range from five to 28 days, many notices, particularly for breaches under section 116 of the Migration Act 1958 (Cth), provide only five working days to submit your case.

In some situations, you may be able to request a short extension, usually for an additional five working days. However, this is not guaranteed and must be requested promptly by emailing the Department.

A Step-by-Step Guide to Your NOICC Response

Step 1: Act Immediately & Seek Professional Advice

Receiving a NOICC is a serious matter, but it is crucial to remain calm and act swiftly. The notice is not a final decision to cancel your visa; rather, it represents your opportunity to respond to the Department of Home Affairs’ concerns.

Your immediate actions should include:

• Reading the entire NOICC carefully, paying close attention to specific allegations
• Noting the strict deadline for your response
• Seeking professional advice from experienced migration lawyers

Given the complexity of immigration law and the severe consequences of visa cancellation, professional guidance is highly recommended, and it’s helpful to understand the key differences between a migration agent & lawyer. An immigration expert can help you:

• Understand the legal grounds for the potential cancellation
• Develop a robust response strategy
• Prepare a submission that addresses the requirements of the Migration Act 1958 (Cth)

Engaging an expert also helps avoid common pitfalls, such as submitting an emotional but legally weak argument, which can significantly improve your chances of a successful outcome.

Step 2: Analyse Allegations & Gather Evidence

A strong NOICC response is built on a direct and evidence-based rebuttal of the Department’s claims. You must systematically analyse every allegation outlined in the notice to understand the specific issues you need to address.

Creating a checklist of each point raised ensures your submission is comprehensive and leaves no concern unanswered. Once you have identified the allegations, gather high-quality, relevant evidence to counter or mitigate them.

The strength of your case depends heavily on the supporting documents you provide. The type of evidence required will vary based on the grounds for the potential visa cancellation:

• For visa condition breaches:
  • Employment records like payslips and contracts
  • Academic transcripts
  • Letters from your education provider to demonstrate compliance
• For character concerns:
  • Evidence of rehabilitation
  • Certificates from completed courses
  • Psychological reports
  • Strong character references from employers or community leaders
• For incorrect information:
  • Corrected documents
  • Statutory declarations explaining any genuine errors or misunderstandings during your visa application process
• For relationship-based visas:
  • Evidence of your ongoing relationship, such as joint bank statements
  • Shared bills
  • Photographs
  • Statements from friends and family

Step 3: Structure & Write Your Formal Submission

Your formal written submission is your chance to present a clear and persuasive case to the decision-maker. The document should be well-structured and professional, making it easy for the case officer to follow your arguments and review your evidence.

A statutory declaration can also be a powerful tool to present your personal circumstances and attest to the truthfulness of your claims. Your submission should be organised logically to ensure every point is addressed effectively.

A recommended structure includes the following key sections:

• Introduction:
  • Clearly state your personal details and visa information
  • Confirm that you are responding to the NOICC
• Response to Allegations:
  • Address each allegation from the NOICC in a separate, clearly marked section
  • Provide a factual explanation for each point
  • Refer directly to the specific evidence you have attached to support your statements
• Arguments for Discretion:
  • Explain the compelling reasons why your visa should not be cancelled
  • Focus on factors like your ties to Australia, any hardship a cancellation would cause, and your history of compliance
• Conclusion:
  • Briefly summarise your key arguments
  • Formally request that the Department exercise its discretion not to cancel your Australian visa
• Index of Attachments:
  • Provide a numbered list of all the supporting documents included with your submission
  • Ensure they are clearly labelled and easy to reference

Key Arguments to Prevent Visa Cancellation

The Role of Discretionary Factors in a Cancellation Decision

Most visa cancellation powers under the Migration Act 1958 (Cth) are discretionary, which means the Department of Home Affairs has a choice. Even if a technical ground for cancellation exists, such as a breach of a visa condition, the case officer can decide not to cancel your visa if you provide compelling reasons.

Your response to the NOICC is your critical opportunity to persuade the decision-maker to exercise this discretion in your favour. The submission must argue that even if an issue is factually correct, the circumstances do not warrant the severe consequence of a visa cancellation.

The ultimate goal is to demonstrate that the positive factors in your case outweigh the reasons for the potential cancellation.

Key Arguments for Your Submission

Your written submission should focus on specific discretionary factors that the Department of Home Affairs is required to consider. Presenting strong arguments and evidence on these points is essential to convincing the case officer that your visa should not be cancelled.

Key arguments to include in your NOICC response are:

• The degree of hardship: Explain the significant financial, emotional, or personal hardship that a visa cancellation would cause you and your family members, particularly any Australian citizens or permanent residents. This can include:
  • Disrupting a child’s education
  • Losing employment
  • Being separated from your support network
• Your ties to Australia: Detail the strength, nature, and duration of your connections to the Australian community. Evidence of your integration into society may include:
  • Long-term residence
  • Family relationships with Australians
  • Stable employment
  • Property ownership
  • Involvement in local groups
• Your history of compliance: If you have a history of generally complying with visa conditions and Australian laws, highlight this to frame the current issue as an isolated or out-of-character incident. Provide evidence of your good conduct and cooperation with the Department in the past.
• The best interests of any minor children: If children in Australia will be affected by the decision, their best interests are a primary consideration. Explain the negative impact that your visa cancellation would have on their:
  • Stability
  • Welfare
  • Connection to Australia
• The circumstances of the issue: Provide context for why the grounds for cancellation arose. For example, explain if a breach of a visa condition was due to:
  • A misunderstanding
  • Exploitation
  • Compelling personal circumstances beyond your control

Common Mistakes to Avoid in Your NOICC Response

Missing the Strict Deadline for Your Written Response

Failing to submit your response within the specified timeframe is the most critical error a visa holder can make. The deadlines for a NOICC are extremely strict, often allowing only five working days.

Missing this deadline almost always results in the automatic cancellation of your visa. This outcome means you would become an unlawful non-citizen, which can lead to:

• Detention
• Removal from Australia

It is essential to treat the deadline as urgent and begin preparing your response immediately upon receiving the notice.

Submitting an Emotional but Legally Weak Argument

While receiving a NOICC is a stressful experience, a response based purely on emotion without legal substance is unlikely to be successful. Decision-makers at the Department of Home Affairs are bound by the Migration Act 1958 (Cth) and departmental policies.

Your submission must address the specific legal grounds for the potential visa cancellation. Your arguments should be:

• Factual
• Evidence-based
• Directly engaged with the issues raised in the notice

While personal circumstances are important, they must be framed within a legal context to persuade the case officer to exercise their discretion in your favour.

Failing to Address Every Allegation from the Department

A comprehensive NOICC response must systematically address every concern raised by the Department of Home Affairs. Ignoring any allegation or failing to respond to a specific point can be interpreted as an admission that the claim is correct. This can significantly weaken your case and give the decision-maker a clear reason to proceed with the visa cancellation.

To avoid this, create a checklist of every issue mentioned in the notice and structure your written submission to provide a direct, point-by-point rebuttal. This ensures your response is complete and leaves no concern unanswered.

Providing Inconsistent Information or Bogus Documents

Submitting evidence that is inconsistent, contradictory, or false will severely undermine your credibility and damage your case. All information provided to the Department of Home Affairs must be accurate and align with details you have previously supplied.

Any inconsistencies can be used to question your honesty and the validity of your entire submission. Furthermore, providing bogus documents is a serious mistake that will almost certainly lead to visa cancellation. This action can also result in more severe consequences, including a ban on re-entering Australia for a significant period.

Understanding What Happens After Your Response

The Department’s Decision-Making Process

After you have lodged your written response, a case officer from the Department of Home Affairs will review your submission and all the supporting evidence. This review process involves:

• Assessing your arguments against the specific grounds for the potential visa cancellation outlined in the NOICC
• Weighing the information you have provided against departmental policies
• Evaluating your case in relation to the Migration Act 1958 (Cth)

Only after this thorough assessment will a final decision be made regarding your visa status.

Potential Outcomes & Appeal Rights if Your Visa is Cancelled

There are two primary outcomes following your response to the NOICC:

1. The Department of Home Affairs may decide not to cancel your visa, in which case you might receive a warning.
2. They may proceed with the visa cancellation.

If your visa is cancelled, you will immediately become an unlawful non-citizen and must act quickly. In this situation, you may have the right to appeal the cancellation decision to the Administrative Review Tribunal (ART).

It is crucial to be aware of the strict time limits for lodging an appeal, which can be as short as seven working days. Therefore, seeking professional advice is highly recommended if you find yourself facing a visa cancellation.

Conclusion

Receiving a NOICC requires a swift and strategic response that directly addresses the Department of Home Affairs’ concerns with compelling evidence. A successful submission depends on understanding the specific allegations, systematically refuting them, and persuasively arguing the discretionary factors in your favour to prevent a visa cancellation.

If you have received a NOICC and need to protect your visa status, contact Moya Migration Law’s expert visa appeal lawyers for guidance. Our specialised services in handling complex visa cancellation matters provide the trusted expertise necessary to navigate this critical process and secure your future in Australia.

Frequently Asked Questions (FAQ)