If you receive a Notice of Intention to Consider Cancellation (NOICC) from the Department of Home Affairs, the first thing to understand is that your visa is still in effect. The Department is telling you it is considering cancellation and inviting you to respond within a set period. Whether and how you respond often directly affects the outcome. The most important step is to check the response deadline immediately and not ignore or delay it.
Key points
- A NOICC is not a cancellation decision; it is an opportunity to respond (natural justice).
- The response deadline is stated in the notice and is usually short. It must be strictly met; if you genuinely need more time, request an extension in writing before the deadline expires.
- Common grounds include breaching visa conditions, providing incorrect information, and the circumstances on which the visa was granted no longer existing.
- Your response should address the specific grounds set out in the notice, attach evidence, and explain the impact cancellation would have on you and your family.
- If your visa is cancelled while you are in Australia, in most cases you can seek review at the Administrative Review Tribunal (ART), but the time limit is short.
Why might the Department consider cancelling a visa?
The Migration Act 1958 sets out a range of grounds for cancellation. Common situations include:
- Breach of visa conditions: for example, a student not meeting attendance or course progress requirements or working beyond permitted hours, or a sponsored worker not working for the sponsor for an extended period.
- Incorrect or misleading information or documents were provided in the application, including failing to disclose information.
- The circumstances on which the visa was granted no longer exist, for example the student has withdrawn from study or the sponsoring relationship has ended.
- Character concerns, such as being arrested, charged or convicted. Character-based cancellation usually falls under section 501, which has different procedures and review pathways from general cancellation.
The notice will set out the legal provision relied on and the specific facts. Read each point carefully and keep the notice, envelope or email so you can confirm the date you received it.
Response deadlines and extensions
The response period is stated in the notice and, depending on the ground and how the notice was given, may range from a few working days to several weeks. Notices sent by email are usually taken to be received on the same day. If you need time to obtain overseas documents, medical evidence or school records, request an extension in writing as early as possible and explain why, but do not assume it will be granted. Even if your documents are incomplete, lodge a response within the deadline and explain what will follow.
How to prepare your written response
An effective response usually has two parts. The first addresses the ground itself: are the facts correct, and is there a reasonable explanation? For example, was low attendance caused by illness, and is there a medical certificate? Was excess work caused by a rostering error, and do payslips show this? The second part recognises that even if a ground exists, the Department has a discretion not to cancel, so explain your circumstances: your time and ties in Australia, the interests of family members (especially children), financial commitments, hardship you would face on return, and any corrective steps you have taken.
Everything in your response must be truthful. Providing false material to keep a visa can lead to more serious consequences, including refusal of future visa applications. Chinese-language documents must be translated into English.
If the visa is cancelled: ART review and other consequences
Since 14 October 2024, the former Administrative Appeals Tribunal (AAT) has been replaced by the Administrative Review Tribunal (ART). If your visa is cancelled while you are in Australia, in most cases you can apply to the ART for review, but the time limit is strictly set by law, is shorter for people in immigration detention, generally cannot be extended once missed, and an application fee applies. During review you may need a bridging visa to remain lawfully in Australia.
Cancellation can have further consequences: your ability to apply for other visas while in Australia is restricted, and in some cases certain visa applications are affected for several years. Responding carefully at the NOICC stage is usually more effective than trying to fix things afterwards.
Action checklist after receiving a notice
- Note the date you received the notice and the response deadline.
- List each ground and the facts relied on in the notice.
- Gather evidence that explains or rebuts those facts, and proof of your family, work and study ties in Australia.
- If you need more time, request an extension in writing before the deadline.
- Lodge a written response within the deadline and keep proof of lodgement.
Frequently asked questions
Can I keep working and studying after receiving a NOICC?
Your visa remains in effect until it is actually cancelled, and its existing conditions continue to apply. Keep complying with all visa conditions and avoid any new breach.
What happens if I do not respond?
The Department will decide based on the information it already has, which usually means a much higher risk of cancellation. Even if you believe the ground is not made out, respond in writing within the deadline.
Can I leave Australia after cancellation and apply again later?
You can leave, but the cancellation stays on record and must be disclosed in future applications, and in some cases restrictions apply for a number of years. Before leaving, understand the effect on future applications and whether you would be giving up review rights.
Does the ART look at the whole case again?
The ART conducts merits review: it can consider new evidence and changed circumstances and may reach a different decision from the Department. Providing strong additional evidence at review is therefore important.
Is a notice relating to criminal charges handled the same way?
Not entirely. Cancellation on character grounds (section 501) has its own procedures and policy direction, some decisions are made by the Minister personally, and review pathways and time limits differ. Seek specialist migration advice promptly.
Chua Tan Associates has practised in Melbourne since 1990 and advises on immigration law in Mandarin, Cantonese and English. Kin Wee Chua and Chit Thian Chua are both Law Institute of Victoria Accredited Specialists in Immigration Law. To discuss your visa situation, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This article is general information only and is not legal advice.
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