Notice of Intention to Consider Cancellation (NOICC)
Notice of Intention to Consider Cancellation (NOICC) of a visa may be sent to anyone when there appears to be grounds for cancellation of a visa granted under the Migration Act 1958. The Department of Home Affairs can send you a NOICC, allowing you to comment on the information.
In what circumstances have NOICC been issued?
There are a few situations where a NOICC may be issued to a visa holder in Australia. The Migration Act 1958 contains a number of different reasons for visa cancellation in Australia which include:
- Provision of incorrect information;
- Provision of bogus documents or false information to mislead the Department;
- Visa conditions being breached or other requirements not being met;
- Failure of a business skills visa holder to establish the business or participate in management;
- The person is of character concern;
- A student visa holder does not meet the course attendance and/ or academic performance visa condition;
- The holder of a Regional Sponsored Migration Scheme (RSMS) Visa either did not commence work within six months or did not complete two years of employment with their employer;
- Circumstances in which the visa was granted no longer exist.
Generally, the power to cancel a visa is discretionary. This means that, even though there are grounds for cancellation, the Department does not have to cancel the visa. There are, however, some circumstances in which a visa must be cancelled.
What can you do when you receive a NOICC?
In most cases, the visa holder will be given prior warning of the Department’s intention to cancel the visa, and an opportunity to respond. The time frame to respond varies, and in most cases, the time given is five working days from the day you are perceived to have received the NOICC. Any response to the the NOICC, including comments or further evidence, must be in writing in English (or accompanied by an accurate English translation) to appeal why your visa should not be cancelled. The delegate will take into account matters such as:
- The purpose of your travel to or stay in Australia;
- The extent of your visa compliance with any visa conditions;
- The degree of hardship that may be caused to you and any family members if the visa is cancelled;
- The circumstances in which the ground for cancellation arose;
- Your behaviour in relation to the department, now and on previous occasions;
- Whether there are any persons in Australia whose visas would, or may be cancelled if your visa is cancelled;
- Whether there are any mandatory legal consequences to a decision to cancel your visa, such as detention and removal from Australia;
- Whether Australia has obligations under relevant international agreements that would be breached as a result of the cancellation decisions; and
- Any other relevant matters.
If the Department cancels a visa, that decision may ordinarily, but not always, be reviewed by a tribunal. This right to merits review depends on which cancellation power was used to cancel the visa and whether the person was in Australia when their visa was cancelled. Where merits review is unavailable, there may be an option to seek judicial review in a court.
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If a visa is cancelled, and the person does not have another valid visa, the person becomes an unlawful non-citizen and loses their right to remain in Australia. They will be detained and removed unless they can apply for and be granted another visa, seek review of the cancellation decision, or leave Australia voluntarily.
There are very few visas that an unlawful non-citizen can apply for after a visa is cancelled. Depending on the reason for cancellation, they will likely have difficulties being granted another visa to return to Australia.
Contact us and let our team make a good, solid response to the Department within the timeline given.
Do not waste your time, and do not risk giving a response without proper advice and guidance. Our team is experienced in helping our clients look into all the issues surrounding the grounds for visa cancellation.
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