What You Should Do Next
Receiving a Notice of Intention to Consider Cancellation (NOITC) from the Australian Department of Home Affairs can be an extremely distressing experience. However, it is important to understand that receiving a NOITC does not mean that your visa has already been cancelled. Rather, it means the Department is considering exercising its powers under the Migration Act 1958 to cancel your visa and is providing you with an opportunity to respond before making a final decision.
The opportunity to respond is a fundamental aspect of procedural fairness and should be treated with the utmost seriousness. The quality of your response, together with the supporting evidence provided, may significantly influence whether your visa is ultimately cancelled.
What is a NOITC?
A Notice of Intention to Consider Cancellation is a formal notice issued by the Department of Home Affairs advising that it is considering cancelling your visa under the Migration Act 1958. The notice will usually identify the legislative provisions relied upon, explain the reasons why cancellation is being considered, outline the evidence supporting the Department’s concerns, invite you to provide submissions and supporting documents, and specify the timeframe within which your response must be lodged.
Notably, the Department has not yet made a final decision. The NOITC provides you with an opportunity to explain your circumstances, address any misunderstandings, and provide evidence before a decision is made.
Common Reasons for Receiving a NOITC
The Department may issue a NOITC for a wide range of reasons depending upon the circumstances of each case. Common examples include allegations that false, misleading or incorrect information was provided in a visa application, breaches of visa conditions, changes in circumstances affecting visa eligibility, criminal offending or adverse character information, employer sponsorship issues, concerns regarding the genuineness of a relationship in partner visa matters, or allegations that the visa holder no longer satisfies the legislative requirements for the visa.
The reasons for cancellation vary considerably, and every case should be assessed according to the specific legislative provisions identified in the notice.
Do Not Ignore the Notice
One of the most serious mistakes a visa holder can make is to ignore the NOITC or delay responding. Every notice specifies a strict deadline by which submissions must be received. If you fail to respond within that period, the Department may proceed to determine the matter based solely on the information already available to it. In many cases, late submissions may not be accepted.
Accordingly, you should begin preparing your response immediately after receiving the notice.
Carefully Read the Entire Notice
Before responding, you should carefully review every page of the NOITC. It is essential to understand precisely which legislative provisions the Department relies upon, what factual allegations have been made, what evidence supports those allegations, and whether any of the information is inaccurate, incomplete or capable of explanation. Equally important is identifying the response deadline and ensuring that any submissions are lodged in accordance with the Department’s requirements.
A thorough understanding of the issues raised is essential before preparing any response.
Gather Supporting Evidence
Your response should be supported by objective documentary evidence wherever possible. Depending upon the issues involved, this may include employment records, taxation documents, bank statements, statutory declarations, relationship evidence, travel records, business documents, police certificates, medical reports or other independent material capable of addressing the Department’s concerns.
Well-organised and credible evidence is often one of the most persuasive aspects of a response to a NOITC and may significantly strengthen your position.
Prepare Detailed Legal Submissions
Many NOITCs involve complex legal issues that require careful analysis of both the relevant legislation and the Department’s exercise of discretion. A comprehensive response should explain why the legal requirements for cancellation are not satisfied, identify any factual errors or misunderstandings contained in the notice, and address the evidence relied upon by the Department.
Where appropriate, submissions should also explain your history of compliance with Australian migration laws, your employment and economic contribution, your family and community ties in Australia, the hardship that cancellation would cause to you and your family, and any compassionate or compelling circumstances that support the exercise of discretion in your favour. Every submission should be tailored to the particular facts and legislative provisions applicable to the individual case.
Be Honest and Consistent
Throughout the process, it is essential that all information provided to the Department is accurate, complete and truthful. Attempting to conceal relevant facts or providing further incorrect or misleading information may seriously undermine your credibility and prejudice your case.
Where genuine mistakes have previously occurred, they should generally be acknowledged and properly explained with appropriate supporting evidence. Transparency and consistency are usually far more persuasive than attempting to minimise or avoid the issues raised.
Seek Legal Advice Immediately
Visa cancellation can have significant and long-lasting consequences, including the loss of lawful status in Australia, detention, removal from Australia, restrictions on future visa applications, and substantial impacts on employment and family members.
For this reason, professional legal advice should be obtained as soon as possible after receiving a NOITC. An experienced Australian migration lawyer can assess the legal basis for the proposed cancellation, advise on the strength of your case, prepare detailed legal submissions, assist in gathering supporting evidence, communicate directly with the Department where appropriate, and advise you regarding any available review or appeal rights if cancellation ultimately occurs.
What Happens After You Respond?
After considering your response, the Department may decide not to cancel your visa, request further information, or proceed to cancel your visa. The outcome will depend upon the applicable legislation, the evidence before the Department, and the submissions made on your behalf.
Each matter is determined on its own facts and there is no substitute for a carefully prepared response addressing the specific issues raised in the NOITC.
Final Thoughts
Receiving a Notice of Intention to Consider Cancellation is undoubtedly a serious matter, but it is not the end of the process. It represents an important opportunity to explain your circumstances, correct any misunderstandings, provide supporting evidence and persuade the Department that your visa should not be cancelled.
Prompt action, careful preparation and strategic legal advice can often make a significant difference to the outcome. If you receive a NOITC, you should not delay in obtaining professional advice so that your response is comprehensive, persuasive and lodged within the required timeframe.
Further Information
If you would like further information regarding these changes or wish to discuss how they may affect your personal or business circumstances, please contact John Siong, Special Counsel, at Rostron Carlyle Lawyers through email, j.siong@rclaw.com.au or mobile, +61 (0)401 668 989.
Disclaimer: This article provides general information only and does not constitute legal advice. Australian migration law is complex, and every visa cancellation matter depends upon its own facts and the applicable legislative provisions. You should seek independent legal advice specific to your circumstances before taking any action.
