NOICC (Notice of Intention to Consider Cancellation)
Receiving a Notice of Intention to Consider Cancellation (NOICC) generally means the Department of Home Affairs has identified an issue that may lead to your visa being cancelled, and is preparing to formally consider whether to cancel the visa you currently hold, based on the relevant facts. The visa holder must respond to the matters raised in the notice within the set timeframe and provide the corresponding explanation and supporting material.
NS Legal can help clients review the contents of a NOICC, determine the specific grounds on which the Department of Home Affairs intends to cancel the visa, and prepare a targeted statement of facts, supporting evidence and legal response.
What does receiving a NOICC mean?
At its core, a NOICC means the Department of Home Affairs is considering whether to cancel your current visa and, in accordance with the law, is giving you an opportunity to respond.
What to focus on at this stage
Until a final decision is made, your visa generally remains valid, but the matter has already entered a formal cancellation process. The key focus at this stage is not whether the visa has immediately ceased, but exactly what grounds the Department of Home Affairs is relying on to consider cancellation, and whether there is room to explain, clarify or argue for the visa to be retained.
Different matters, different approaches
Different cancellation grounds can correspond to completely different legal frameworks and points of response. Even where a NOICC has been issued, some matters involve visa condition issues, some involve incorrect information in past applications, and others involve character or public safety risk. Where the nature of the matter differs, the way it is handled naturally differs too.
Why might you receive a NOICC?
A NOICC can be triggered by a range of reasons. More common situations include a breach of visa conditions, the Department of Home Affairs considering that the applicant has provided incorrect, incomplete or misleading information, character issues, a criminal record, family violence, a public safety risk, or other circumstances that lead the Department to consider that the visa should not continue to be held.
In some matters the issue does not arise from the current visa itself, but from an earlier visa application record. For example, where the Department of Home Affairs finds on later review that information previously submitted by the applicant may have been inaccurate or incomplete, or is inconsistent with material obtained afterwards, a cancellation process may be triggered even though the current visa was granted in the ordinary way.
Where a matter involves cancellation for incorrect information under section 109, visa cancellation under section 116, or character-based cancellation under section 501, the points of focus differ significantly. The first step after receiving the notice is therefore usually to confirm which cancellation power the Department of Home Affairs is relying on to deal with the matter.
Received a NOICC and unsure how to respond?
What to look for in a NOICC
A NOICC will usually set out the legal grounds on which the Department of Home Affairs is considering cancellation, the relevant factual background, the material the Department intends to rely on, and how the visa holder may respond.
When reading the notice, what really matters is exactly what issue the Department of Home Affairs has identified. Which facts does the Department consider to be established? Which records is it relying on? Is that information accurate and complete? Is there any misunderstanding, or background information that has not been fully taken into account?
If a response does not directly address the cancellation grounds set out in the notice, then even a large volume of material may not effectively deal with the current risk.
How long do you have to respond to a NOICC?
The response period stated in the notice prevails
A NOICC will usually set out a clear response period. Timeframes can vary between matters, with common response periods ranging from 5 to 28 days, but the contents of the notice itself must always prevail.
An extension is not an automatic right
In some situations an extension can be requested, but an extension is not an automatic right and it cannot be assumed that the Department of Home Affairs will grant one.
The earlier you review, the more room you have
In practice, preparing a response often takes longer than a visa holder initially expects, particularly where past visa records, police material, court documents, school records, employer evidence or other third-party material need to be obtained. The earlier you begin reviewing after receiving the notice, the more room there is to put together a complete response.
How should you respond to a NOICC?
A NOICC response needs to be built directly around the cancellation grounds raised by the Department of Home Affairs, rather than simply expressing a wish to remain in Australia or submitting a general, broad-brush personal statement.
Visa conditions and incorrect past information
Where the issue involves a breach of visa conditions, the response usually focuses on exactly what happened, whether there is any factual misunderstanding, whether the situation has been corrected, and whether cancelling the visa is proportionate to the overall circumstances. Where it involves incorrect past information, it is usually necessary to explain how the error arose, the background circumstances at the time, whether the information was prepared with the help of a third party, and whether these circumstances are sufficient to support retaining the current visa.
Character, criminal record or public safety risk
In matters involving character, a criminal record or public safety risk, the response will usually go further to address acceptance of responsibility, conduct since the events, family impact, community ties and risk assessment.
The key to an effective response is not the volume of material, but whether it accurately addresses the issues the Department of Home Affairs has already raised. Respond to the facts the notice relies on; and where the underlying information is incorrect, that too needs to be clarified with appropriate material.
Why can past visa issues affect you now?
In visa cancellation matters, this is often one of the most confusing questions.
Matters like these usually require dealing not only with “whether there is a problem with the current visa”, but with exactly what the past issue was, why it occurred, whether there was deliberate concealment, and whether those circumstances are sufficient to support cancelling the current visa.
A grant does not mean past records will not be reviewed
The fact that the current visa has been granted does not mean past application records will never be reviewed again. In some situations, if the Department of Home Affairs later finds that the applicant provided incorrect, incomplete or misleading information in a past visa application, the current visa may still be affected.
Where a matter involves a third-party agent, intermediary or someone else helping to prepare the material, that background may also need to be fully explained, but the explanation itself still needs to be consistent with the existing documentary record and supported by appropriate material.
What happens after you respond to a NOICC?
After the response is submitted, the Department of Home Affairs will review the visa holder’s explanation and supporting material and decide whether to proceed with cancelling the visa.
It may be retained, supplemented or cancelled
If the Department of Home Affairs considers that the relevant concerns have been adequately explained, the visa may continue to be retained. In some situations the Department may instead request further material, or, after continuing its review, make a formal decision to cancel.
Once cancelled, the options that follow are noticeably fewer
If the visa is ultimately cancelled, the procedural options that follow are usually noticeably fewer and the timeframes tighter. Whether there is a right of administrative review, whether you can remain in Australia while awaiting the outcome, and how to proceed next all depend on the cancellation grounds and the specific circumstances.
For this reason, the NOICC stage is usually one of the most important windows in which to act in a visa cancellation matter.
How NS Legal can help
NS Legal can help clients review a Notice of Intention to Consider Cancellation (NOICC), identify the legal grounds, factual basis and response deadline on which the Department of Home Affairs intends to cancel the visa, and assist in preparing a targeted explanation and supporting material.
We can assist with matters involving breaches of visa conditions, incorrect information in past applications, character issues, criminal records, family violence, integrity concerns and other visa cancellation risks.
For complex or high-risk matters, we develop an overall strategy that takes into account the client’s current visa status, family arrangements, work situation and long-term migration goals, aiming to address the key risks before a formal cancellation decision is made.
Received a NOICC and want to assess your response strategy early?
Frequently Asked Questions
Does receiving a NOICC mean my visa has already been cancelled?
No. A NOICC means the Department of Home Affairs is considering cancelling your visa, but no final decision has yet been made. At this stage, the visa holder usually still has a formal opportunity to respond.
How long do you usually have to respond to a NOICC?
The exact period is determined by the contents of the notice. Response times can vary between matters, with the common range running from 5 to 28 days. If you genuinely need more time, an extension may be requested depending on the circumstances, but whether it is granted is a matter for the Department of Home Affairs.
What happens if I do not respond to a NOICC?
If you do not respond in time, the Department of Home Affairs will usually proceed to make a decision on the material already before it. Where the issues raised in the notice have not been explained or corrected, the risk of the visa being cancelled increases significantly.
My current visa has already been granted, so why can past issues still affect it?
In some situations, where the Department of Home Affairs later finds incorrect, incomplete or misleading information in a past visa application, it may still consider cancelling the current visa. The focus of the matter is usually whether those historical issues are sufficient to affect the current visa continuing to be held.
If the issue was not deliberate, can the visa still be cancelled?
Whether there was a deliberate element is usually taken into account, but it is not the only consideration. The Department of Home Affairs will also look at how the error arose, whether it affected the original visa decision, and whether, in the overall circumstances, the visa should continue to be held.
Can you still appeal after a visa is cancelled?
It may be possible, but this depends on the cancellation grounds, the visa class and whether a right of administrative review exists. The relevant time limits are usually short, so once a formal cancellation decision is received you should assess your next steps as soon as possible.
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