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

A notice of intention to consider cancellation, known as a NOICC, is a formal warning that the Department of Home Affairs is considering cancelling your visa and is inviting you to explain why it should not. You usually have a short, fixed period to respond, and the response often decides the outcome. Treat it as the most important document you will lodge in the matter.

What a NOICC is, and the power behind it

The notice is issued under section 119 of the Migration Act 1958. Before a delegate cancels a visa held by a person in Australia on general grounds, the Act requires the Department to notify you that cancellation is being considered, tell you the ground that may apply, give you the particulars of the information relied on, and invite you to comment. That invitation to comment is governed by sections 120 and 121 of the Act.

The NOICC is the step before any decision. It exists so that you have an opportunity to be heard before your visa status is disturbed, and how you use that opportunity is within your control.

The grounds that can trigger a NOICC

Section 116 of the Migration Act lists the general grounds for cancellation. The common ones are that incorrect information was given in your application, that a condition of your visa has been breached, that the circumstances that permitted the grant no longer exist, or that your presence is or may be a risk to the health, safety or good order of the Australian community.

Breach of a visa condition is a frequent trigger. In the tribunal decision numbered 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 the employment condition, condition 8107. That breach established a ground for cancellation under section 116(1)(b). The discretion to cancel remained a separate question, and the Tribunal, giving weight to a new employer’s approved nomination, set the cancellation aside. It is an employment-condition case rather than a work-hours case, and it illustrates the two-stage nature of the power: the delegate first asks whether a ground exists, and only then whether the visa should in fact be cancelled.

What you are entitled to before you respond

Section 120 requires the Department to give you particulars of the relevant information, meaning the specific matters that would be the reason, or part of the reason, for cancelling the visa. You are entitled to know the case you have to answer. If the notice is vague about what you are said to have done, ask for the particulars in writing before the clock runs down.

The rules of procedural fairness reinforce that entitlement. 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 real chance to address those issues. Applied to a NOICC, the delegate cannot cancel your visa on a basis you were never told about and never had the opportunity to answer.

The discretion is where most cases are decided

Even when a ground under section 116 clearly exists, cancellation is not automatic. The delegate holds a wide discretion. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, the Full Court confirmed that a discretionary decision of this kind is not legally unreasonable merely because another decision-maker might have reached a different result. You cannot rely on a court later substituting its own view. The delegate has to be persuaded in the response itself.

A strong NOICC response therefore goes beyond whether the ground is correct and puts forward the reasons the visa should be kept. Relevant matters typically include the purpose of your stay, the consequences of cancellation for you and your family, the length and strength of your ties to Australia, your compliance history, any hardship that cancellation would cause, and the circumstances that led to the alleged breach. Where a breach is admitted, an honest explanation with supporting evidence carries far more weight than denial.

The deadline is real and usually cannot be extended

The invitation under section 121 gives you a specified time to respond. If you do not respond within the period specified in the invitation under section 121 (read with section 119), the delegate may decide the matter on the material already held, without your comments. The period is stated in the notice and is prescribed by the Migration Regulations 1994. Confirm the exact date, and if you need more time, request it in writing before the deadline.

Missing the deadline does not end your ability to challenge the outcome, because merits review may still be available. It does mean the first decision is made without anything from you, which weakens your position and narrows the record.

How to build a response that carries weight

Read the notice line by line and identify the exact ground and the exact information relied on. Where the particulars are thin, ask for them. Then address each element in a clear, dated written statement. Attach evidence rather than asserting facts: employment records, statutory declarations, medical or financial documents, and anything that explains the circumstances and shows the human consequences of cancellation.

Separate the two questions the delegate must ask. Respond first to whether the ground exists. If you can show the information was correct or the condition was not in fact breached, say so and prove it. Then, whether or not the ground is contested, make the discretionary case for retaining the visa. Many responses fail because they argue only the first question and ignore the second, which is the question that usually determines the result.

Because a cancellation touches your right to remain in Australia, and because a poorly framed response can prejudice later review, considered legal advice is worthwhile at this point. If your visa is employer sponsored, a condition issue can also affect your sponsor, so the response should account for that relationship. You can read more about sponsored obligations on our 482 SID visa page and about broader employer sponsored options on our employer sponsored visas page. If your circumstances involve a partner, our partner visa page explains how relationship evidence is assessed.

If the visa is cancelled despite your response

Most section 116 cancellation decisions carry a right of merits review at the Administrative Review Tribunal, subject to strict and generally non-extendable lodgement deadlines. The Tribunal looks again at both whether a ground exists and whether the discretion should be exercised. A thorough NOICC response is not wasted if cancellation goes ahead, because it fixes your evidence and arguments on the record and gives the Tribunal a firm foundation to reconsider.

A notice of intention to consider cancellation is an opportunity, and it is time limited. If you have received one, act quickly and get advice before you respond. Contact Visa Plan Lawyers through our employer sponsored visas page to discuss your notice and the strongest way to reply within your deadline.

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.