Section 57 natural justice letter to comment & invitation to give addition information. Information given in visa application must be considered by the Department to decide whether to grant or refuse you a visa.
Information given in visa application can also be topped up after lodging. As long as the Department has not made a decision to grant or refuse your visa application, you may give any additional relevant information and the Department must have regard to that information in making its decision (s 55). However, this does not mean that the Department is required to delay making a decision because you might give or has told the Department that you intends to give, further information.
In considering your visa application, the Department may require you to provide further information. If you provide the requested information, the Department must have regard to that information in making the decision whether to grant or refuse your visa application. When asking for this information, the Department may invite, orally or in writing, you to give the additional information.
In DVE18 v Minister for Home Affairs [2020] FCAFC 83, DVE18 was certified as a person who was at risk of harm applied for an In-Country Humanitarian Class XB Subclass 201 on the basis of having worked as an interpreter assisting the Australian Defence Force in Afghanistan. He claimed that he and his family members were at risk of being murdered by Jihadists in retribution attacks. At the time of his application was a single man with no children. DVE18 later got married and had a son, he later added them to his application as secondary applicants in accordance with s 55.
His application was later refused for failing to satisfy the Minister he passed the character test for his association with someone or with a group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct. Under s 501G(1), the Minister notified DVE18 that he has taken into consideration material DVE18 has provided and to other non-disclosable material.
DVE18 provided to the Department a claim that he and his family members were exposed to a risk of harm because of the support he had provided to the ADF in Afghanistan. Accordingly, s 54 requires the Department to have regard to all the information, including his wife and son, he provided to the Department up till the time the decision was made. However, the Department did not consider the claim that DVE18’s wife and son would be harmed if his visa application was refused. The Court said that the Department was obliged to consider DVE18’s information provided up to the time that the decision was made.
The Court also said that the reasons for refusing DVE18’s visa given under s 501G did not include whether his wife and child claim of harm was assessed. If the Minister had concluded that the risk DVE18’s wife and child would be murdered by Jihadists was outweighed by the risk that he might cause harm to the Australian community because of his sympathetic links to the same Jihadists, then the Minister is expected to have said so.
Section 57 nature justice letter to comment
The Department in deciding to refuse your visa application must give you the relevant information that would be the reason, or part of the reason for refusing you the visa. However, the relevant information must be specifically about you or another person and is not just about a class of persons which you or other person is a member. Furthermore, the relevant information was not given by you for your visa application.
This relevant information is commonly known as section 57 natural justice letter to comment. So, before the Department refuse your visa application, you will be given particulars of the relevant information to ensure that you understand why the relevant information will be considered and you will be invited to comment on it. If you ever received a section 57 natural justice letter, you should respond within the time frame specified in that letter or the Department will most likely refuse you visa application.
Deadline to give or comment on information
If the Department invite you to give addition information or invite you to comment on certain information, the invitation will also specify whether the addition information or the comments may be given in writing or at an interview or by telephone.
Unless you are invited to give the information or comments at an interview, you will be given a deadline or prescribed period to comply. If you are in immigration detention and applied for a substantive visa, the prescribed period is 3 working days after you have received the invitation.
If you are in Australia but not in immigration detention and the invitation is given at an interview or given in a telephone conversation, the prescribed period is 7 days after.
If the invitation is not given during an interview or in a telephone conversation, the prescribed period is 7 days after you are notified and you are applying for a Tourist Class FA Subclass 600 (click here to learn more) or a Medical Treatment (Visitor) Class UB visa (click here to learn more).
If you are a fast track applicant, the prescribed period is 14 days after you are notified of the invitation and in any other case, the prescribed period is 28 days after being notified.
If you have applied for a Visitor Class TV Subclass 651 visa (click here to learn more), the prescribed period is 7 days after you are notified; or the Department may grant you 70 days after been notified .
Extension of time to give or to comment
If you have been invited to give or comment on information, you may request the Department for more time.
However, the Department may only give you 2 working days if you are in immigration detention.
If you are in Australia but not in immigration detention, you may be granted a 7 day extension.
If you are not in Australia, you may be granted additional 7 days or if the Department decided in the circumstances of your case, 28 days after the day you have been notified.
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you with your section 57 natural justice letter to comment.
041 222 4020 or WeChat: AUDvisa
This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
