NOICC (Notice of Intention to Consider Cancellation)

At its core, a NOICC means that Home Affairs is considering whether to cancel your existing visa and, in accordance with the law, is giving you an opportunity to respond.

Until a final decision is made, your visa generally remains valid, but the matter has already entered the formal cancellation process. What matters at this stage is not whether the visa has immediately ceased, but precisely what grounds Home Affairs is relying on to consider cancellation, and whether there is room to explain, clarify or argue for the visa to be retained.

A NOICC can be triggered for a range of reasons. The more common situations include a breach of visa conditions, Home Affairs forming the view that the applicant has provided incorrect, incomplete or misleading information, character issues, a criminal record, family violence, public-safety risk, or other circumstances in which Home Affairs considers 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 Home Affairs later finds, on review, that information the applicant previously submitted may be inaccurate, incomplete, or inconsistent with material subsequently obtained, a cancellation process may be triggered even though the current visa was itself granted in the ordinary course.

Where a matter involves cancellation for incorrect information under section 109, visa cancellation under section 116, or character cancellation under section 501, the focus of the response will differ markedly. For this reason, the first step after receiving a notice is usually to confirm which cancellation power Home Affairs is relying on to deal with the matter.

A NOICC will usually set out the legal basis on which Home Affairs is considering cancelling the visa, the relevant factual background, the material Home Affairs proposes to rely on, and how the visa holder may respond.

When reading the notice, what truly warrants attention is exactly what issues Home Affairs has identified. Which facts does Home Affairs consider to be made out? Which records is it relying on? Is that content accurate and complete? Is there any misunderstanding, or any background information that has not been adequately taken into account?

If the response does not directly address the grounds for cancellation set out in the notice, then even submitting a large volume of material will not necessarily deal effectively with the risk at hand.

A NOICC response must address the grounds for cancellation raised by Home Affairs directly, rather than simply expressing a wish to remain in Australia or submitting a general personal statement.

Where the issue concerns a breach of visa conditions, the response usually focuses on exactly what happened, whether there has been any misunderstanding of the facts, whether the relevant circumstances have since been rectified, and whether cancelling the visa is proportionate to the overall circumstances. Where the issue concerns incorrect information provided in the past, it is usually necessary to explain how the error arose, the circumstances at the time, whether the information was prepared with the assistance of a third party, and whether those circumstances are sufficient to support retention of the current visa.

In matters involving character, a criminal record or public-safety risk, the response will usually go further and address acceptance of responsibility, conduct since the events in question, the impact on family, community ties and an assessment of risk.

In visa cancellation matters, this is often one of the most commonly misunderstood points.

The fact that the current visa has been granted does not mean that earlier application records can never be reviewed again. In certain circumstances, if Home Affairs later discovers that the applicant provided incorrect, incomplete or misleading information in a past visa application, the current visa may still be affected.

Matters of this kind usually require attention not only to “whether there is a problem with the current visa”, but to what the past issue specifically was, why it occurred, whether there was any deliberate concealment, and whether those circumstances are sufficient to support cancelling the current visa.

Where the matter involves a third-party agent, intermediary or another person who assisted in preparing the material, that background may also need to be fully explained; but the explanation itself must remain consistent with the existing documentary record and be supported by the appropriate material.

After a response is submitted, Home Affairs will review the visa holder’s explanation and the relevant material and decide whether to proceed with cancelling the visa.

If Home Affairs considers that the concerns have been adequately explained, the visa may be retained. In some circumstances, Home Affairs may also request further material, or, after continuing its review, make a formal decision to cancel.

If the visa is ultimately cancelled, the subsequent procedural options usually narrow considerably and the timeframes become tighter. Whether there is a right to merits review at the ART, whether you may remain in Australia while awaiting the outcome, and how to deal with the next step, all depend on the basis for cancellation and the specific circumstances.

NS Legal can assist clients to review a Notice of Intention to Consider Cancellation (NOICC), identify the legal basis, factual grounds and response period on which Home Affairs is considering cancelling 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, a criminal record, family violence, integrity concerns and other visa cancellation risks.

For complex or high-risk matters, we develop an overall response strategy that takes into account the client’s current visa status, family arrangements, work situation and long-term migration goals, so as to deal with the key risks, wherever possible, before a formal cancellation decision is made.