S57 Natural Justice Letter for a Partner Visa: How to Respond

What is a section 57 natural justice letter on a partner visa?

A section 57 natural justice letter is not a refusal. It is written notice from the Department of Home Affairs that it holds adverse information about a partner visa application, together with an invitation to comment on that information before the application is decided. The letter takes its name from section 57 of the Migration Act 1958. On a partner visa file it usually arrives under the heading "Invitation to comment on information", and it names the Partner Processing Centre as the sender.

Section 57(1) defines what has to be put to an applicant. It is information, other than non-disclosable information, that the decision maker considers would be the reason, or a part of the reason, for refusing to grant the visa; that is specifically about the applicant or another person, and is not just about a class of persons of which the applicant or that other person is a member; and that was not given by the applicant for the purpose of the application. All three elements must be present. Material the applicant supplied personally does not have to be put back to the applicant, and general information about a visa program or a country does not either.

Section 57(2) sets out what the Department must then do with that information. It must give particulars of the information in the way it considers appropriate, ensure as far as is reasonably practicable that the applicant understands why the information is relevant to consideration of the application, and invite the applicant to comment on it. That obligation is the reason the letter exists. It is also the reason the letter is worth reading closely, because it is the Department setting out, in writing, the case against the application.

Two points follow from the way section 57 is drafted, and both are commonly misunderstood.

First, the Department is not obliged to reveal the source of the adverse information. Departmental policy is explicit that there is no obligation on the decision maker to tell the applicant where the information came from. An applicant who receives a letter saying that the Department has received information that the relationship has ended will usually never learn who said so. The response has to meet the substance of the allegation rather than its author.

Second, the letter is a statutory step, not a courtesy. Section 63 of the Migration Act 1958 prevents the Department from refusing the application on that information until one of three things happens: the applicant gives the comments, the applicant tells the Department that no comment will be given, or the period stated in the letter ends. An applicant who responds properly and in time therefore controls what the decision maker has in front of them at the moment of decision.

A section 57 letter is also different from a request for further information under section 56. A section 56 request asks the applicant to supply something the Department does not have, such as an outstanding police check or more relationship evidence. A section 57 letter puts adverse information to the applicant and asks for comment on it. The distinction has teeth. Departmental policy records that a refusal on integrity grounds would likely be affected by jurisdictional error if the adverse information had been raised in a section 56 request rather than by a section 57 letter. An applicant who receives a section 57 letter is being told, in the Department's own procedural language, that refusal is on the table.

The letter can arrive at any stage of a subclass 820 onshore partner visa application, and it can arrive on an offshore application as well. Section 57 no longer carves out applications decided outside Australia, and Departmental policy deals expressly with how natural justice is given in offshore cases, including by telephone in straightforward matters. A subclass 309 offshore partner visa applicant can receive one just as an onshore applicant can.

How long is there to respond to a section 57 letter?

The response period is stated in the letter itself, it is short, and it is applied strictly. The period is prescribed by the Migration Regulations 1994 rather than chosen by the case officer, and the letter will set out both the length of the period and the date the Department treats as the starting point. The only safe course is to work from the date written in the letter received, and not from a period quoted on a website or remembered from another matter.

What surprises most applicants is when the clock starts. Time does not run from the day the letter is opened or read. It runs from the day the letter is taken to have been received under the deemed receipt rules in the Migration Act 1958. Where the letter is sent by email, the applicant is taken to have received it at the end of the day it was transmitted. Where a Form 956 has been lodged appointing an authorised recipient, the letter goes to that recipient, and the applicant is taken to have received it when it reached the recipient. An applicant whose former agent or adviser is still recorded as the authorised recipient can therefore be well into the response period, or past it, before hearing anything at all. Checking who is currently recorded as the authorised recipient is one of the first things worth doing on receipt of any departmental correspondence.

Missing the period is serious but it is not always fatal. Section 62 of the Migration Act 1958 provides that where the invited information is not received within the period, the Department may make a decision without taking any further action to obtain it. The power is permissive. The Department may decide, and in partner visa matters it frequently does decide, but a file is not automatically refused at midnight on the last day.

That matters because of section 55, which allows a visa applicant to give the Department additional relevant information at any time before the decision is made, and requires the decision maker to have regard to it. Section 55 also makes clear that the Department is not required to delay a decision because further information might be provided. The practical reading of sections 55 and 62 together is straightforward. Material lodged after the period has closed but before the decision is made must still be considered, so a late response is better than none, and it should be lodged immediately rather than perfected. Material lodged after the decision is made is considered by nobody, because at that point the only remaining path is review or a fresh application.

The letter will usually invite an applicant who cannot meet the timeframe to make contact. That invitation is worth taking up in writing, but it is not a right to an extension, and nothing in the Act obliges the Department to grant one. The reliable approach is to lodge a complete response within the period, and then to supplement it if a translated document or a medical report arrives later.

Why the Department sends a section 57 letter on a partner visa

Four issues account for most section 57 letters on partner visa applications: Schedule 3 criteria, information that the relationship has ended, a sponsorship that cannot be approved, and concerns about a document or a statement under public interest criterion 4020. The letter will identify which one applies, and the correct response is completely different in each case. Reading the letter carefully enough to know which of these is being raised is the first task, not an afterthought.

Schedule 3 criteria and compelling reasons

Where a partner visa application is lodged in Australia by an applicant who did not hold a substantive visa at the time of application, subparagraph 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 requires the applicant to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. A section 57 letter on this ground tells the applicant that the criteria are not met and invites submissions on compelling reasons.

The Regulations do not define compelling reasons, and departmental policy directs delegates to assess each case on its own facts. Policy identifies the matters delegates take into account: any history of non-compliance with visa conditions, the length of time the applicant has been unlawful, the reasons the applicant became unlawful, the reasons the applicant did not become lawful sooner, the current family composition including any dependent children, and the steps taken to become lawful other than the partner visa application itself. Policy is equally blunt about what usually will not be enough on its own. A genuine relationship is not a compelling reason, because a genuine relationship underpins every partner visa application. Hardship caused by separation is not a compelling reason on its own either, because separation is common across the partner caseload. Where there is an Australian citizen child with a demonstrable link to the applicant, the best interests of that child can support a waiver.

There is one point on this ground that is still stated incorrectly on a great many Australian websites. Compelling reasons are not limited to circumstances that existed when the application was lodged. The Full Federal Court held in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 that the delegate must consider all of the applicant's circumstances to the extent they are known up to the time of decision. The Department adopted that position in its own policy in 2016. A section 57 response on this ground should therefore put forward what has happened since lodgement, not only the history that led to the applicant becoming unlawful. Anyone facing this issue should read the detail on the Schedule 3 waiver criteria before drafting anything.

Information that the relationship has ended

Clause 820.221(1) of Schedule 2 requires the applicant to continue to be sponsored by the sponsoring partner and to continue to be the spouse or de facto partner of that person. Where the Department receives information that the relationship has ended, it must put that information to the applicant, because a finding on it would be the reason for refusal.

The letter will usually also set out the three circumstances in which a partner visa can still be granted after a relationship has ended. Under subclause 820.221(2) the visa can be granted where the sponsoring partner has died, where the applicant satisfies the delegate that the relationship would have continued had the sponsor not died, and where the applicant has developed close business, cultural or personal ties in Australia. Under subclause 820.221(3) the visa can be granted where the applicant, or a dependent child of the applicant or the sponsor, has suffered family violence committed by the sponsor, or where the applicant has custody, joint custody, access or a parenting order under the Family Law Act 1975 in relation to a child for whom the sponsoring partner also has such rights or a maintenance obligation.

In every one of those pathways the applicant must have met the relationship requirements, including the definitions of spouse in section 5F and de facto partner in section 5CB of the Migration Act 1958, up until the relationship ceased. This is the point at which many responses go wrong. Evidence about the period before the relationship broke down carries as much weight as evidence about what caused it to end. The family violence provisions for partner visas have their own evidentiary rules, and a response that raises family violence without meeting them is not a complete response.

A sponsorship that cannot be approved

A partner visa sponsorship is assessed as part of the visa decision rather than as a separate decision, so a sponsorship problem surfaces as a section 57 letter to the applicant. Where a sponsor has not consented to the disclosure of convictions for relevant offences, or where the sponsor's criminal history engages regulation 1.20KC, or where a previous sponsorship engages the limitations in regulation 1.20J, the Department must put the consequence to the applicant for comment.

Departmental policy places a strict limit on what such a letter may say. The details of the sponsor's convictions must not be put to the visa applicant in a natural justice letter or in the refusal notification. The letter will say only that the requirement cannot be satisfied. An applicant who receives a letter of this kind is being told that the sponsorship is the problem without being told why, which is precisely the situation in which the sponsor needs separate advice. The rules on partner visa sponsorship limitations set out when a person is caught and when the limitation can be waived.

Public interest criterion 4020

Public interest criterion 4020 deals with bogus documents and information that is false or misleading in a material particular, given in relation to the current application or a visa held in the 12 months before the application was made. It also deals separately with satisfaction as to identity. Departmental policy requires that any potential failure of this criterion be put to the applicant by a section 57 letter before refusal.

The standard applied is narrower than most applicants assume. Following Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, the document or information must have the quality of purposeful falsity, which departmental policy translates into plain English as being intentionally untrue or incorrect. The decision maker does not have to show that the applicant knew about it. Equally, an application cannot be refused under this criterion where the applicant can explain an innocent mistake in a document or in information provided by them or on their behalf. A response on this ground therefore has two jobs: to explain the circumstances in which the document or statement came to be given, and, where the criterion may still not be met, to address the waiver.

The waiver is available where compelling circumstances affecting the interests of Australia exist, or where compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justify granting the visa. There is no waiver for the identity requirements. There is also a point specific to partner visas that is worth knowing. Where a sponsor provides a document or information as part of their own sponsorship application, it is usually provided by the sponsor on their own behalf, and the mere fact that the applicant allowed the sponsor to give it to the Department may not be enough to make it something the applicant gave or caused to be given.

How to respond to a section 57 natural justice letter

A response to a section 57 letter is a written submission addressing each allegation in the letter, supported by evidence, lodged through ImmiAccount within the period stated in the letter. It is not a phone call, it is not an email to a generic inbox, and it is not a bundle of documents with no covering explanation. The letters themselves direct that documents be attached to the application in ImmiAccount rather than emailed or posted, and warn that sending them another way may cause delay.

The work runs in a set order.

• Diarise the last day first, calculated from the deemed receipt date rather than the date the letter was read, and check who is recorded as the authorised recipient.
• Isolate every allegation. A single letter can raise more than one. Departmental policy directs officers to address every concern in one letter and to make clear that comment is invited on each issue, so a response that answers three of four allegations leaves the fourth unanswered on the file.
• Identify the legal test attached to each allegation, using the clause and criterion numbers set out in the letter. A response that argues sympathy against a criterion that asks about purposeful falsity will not engage the decision maker's task.
• Gather the evidence that goes to those tests, and nothing else. Volume is not persuasive. Documents that answer the allegation are.
• Draft the submission so that each allegation is answered in turn, in the order the letter raises them, with the evidence identified by its file name in ImmiAccount so the officer can find it.
• Lodge in time, then supplement if anything further arrives before the decision.

Documents in another language need an English translation, from a translator accredited by the National Accreditation Authority for Translators and Interpreters where the translation is done in Australia. Documents attached through ImmiAccount do not need to be certified. Scans must be clear, in colour, and a multi-page document must be saved as a single file.

What a strong section 57 response contains

A strong response answers the allegation with evidence that existed independently of the visa application. The Department is weighing whether the adverse information it holds is correct. Material generated after the letter arrived, and created only because it arrived, carries less weight than records that were made at the time for ordinary purposes.

Personal statements still matter, and on some grounds they are indispensable, because the applicant is the only person who can explain what happened and why. A statement is the applicant's own evidence. It should be written in the applicant's own words, checked and corrected by the applicant before it is lodged, and it should be capable of being tested against the documents on the file. Where a statement and a document disagree, the decision maker will prefer the document, so inconsistencies should be found and explained before lodgement rather than discovered at decision.

Third party evidence carries weight where it is specific. Form 888 statements from people who have seen the relationship at first hand are more useful when they describe events, dates and places than when they assert a conclusion. Financial records, tenancy records, joint accounts, insurance, travel records, photographs with dates, and correspondence with third parties all serve the same function, which is to corroborate an account that the Department currently doubts.

Finally, a strong response deals with the weakness rather than avoiding it. If the applicant was unlawful for a long period, the response says so and explains it. If a document was wrong, the response explains how it came to be wrong and what the correct position is. Departmental policy directs decision makers to record their reasoning and to consider all information before them. A submission that gives an honest account and supports it is far more useful to that process than one that leaves the officer to infer the answer.

Mistakes that turn a section 57 letter into a refusal

The most common mistake is treating the letter as a request for more documents. A section 57 letter is not asking for a fuller application. It is telling the applicant what the decision maker currently believes, and inviting a reply to that belief. Uploading another folder of photographs in answer to a letter about Schedule 3 criteria answers a question nobody asked.

The second is answering the wrong test. Each ground carries its own statutory language: compelling reasons for not applying Schedule 3 criteria, purposeful falsity and the waiver under public interest criterion 4020, the definitions of spouse and de facto partner where a relationship has ended. A response that does not use the test in the letter leaves the decision maker with no material on the question they must actually decide.

The third is silence from the sponsor. Several grounds turn on the sponsor's own conduct, consent or history, and on those grounds the applicant cannot fix the problem alone. Where a sponsorship cannot be approved, the visa must be refused, whatever the strength of the relationship evidence.

The fourth is conceding something that has not been established. An applicant who writes that the relationship has ended, when what has happened is a temporary separation, has given the Department a finding it did not have. Comments given in response to a section 57 letter form part of the record and are used in the decision.

The fifth is losing the deadline to a stale Form 956. Where an authorised recipient is recorded, the Department is entitled to send the letter to that person and time runs from then. An applicant who has changed advisers, or who has lost contact with a previous adviser, should confirm what the Department has on file before any correspondence is expected.

What happens after the response is lodged

After the response is lodged the decision maker considers it and then decides the application under section 65 of the Migration Act 1958. There is no separate notification that the response has been accepted, and no ruling on the section 57 issue by itself. The next thing the applicant usually hears is the decision. Where documents have been attached through ImmiAccount, they will show as received in the account, and the Department does not send any other confirmation.

Three outcomes are possible. The decision maker may be satisfied on the issue and grant the visa, assuming every other criterion is met. The decision maker may remain concerned about something else and issue a further request or another section 57 letter, because nothing limits the Department to one. Or the decision maker may refuse the application, in which case the refusal notification will set out the findings made on the information that was put in the letter.

A refusal is not the end of the matter, but it does start a strict and very short clock. Most partner visa refusals carry a right of review at the Administrative Review Tribunal, and the time limit to apply cannot be extended. The review is a fresh consideration on the merits, and the material lodged in response to the section 57 letter forms part of the record the Tribunal works from, which is one more reason to make that response complete the first time. The options are set out on the page dealing with partner visa refusals and review.

Where an applicant is in Australia, the bridging visa position also needs checking at this point rather than later, because bridging visa arrangements and any work rights are tied to the status of the application and change when a decision is made.

How My Migration Lawyers approaches a section 57 partner visa response

My Migration Lawyers is an Australian immigration law firm acting for partner and protection visa applicants, including applicants who have received adverse correspondence from the Department. Work on partner visa matters is led by Weiwei Zhang, Principal Lawyer, and section 57 responses are settled by her before they are lodged.

The firm's approach to these matters is deliberately narrow. The starting point is the letter itself and the file behind it: what the Department says it holds, which criterion it is measured against, and what is already on the departmental record. From there the firm identifies the legal test that actually governs the allegation, advises the client on what the response has to establish, and works with the client to assemble the evidence that goes to it. The account put forward is the client's own, reviewed and corrected by the client, and the client decides which claims are advanced. The firm's role is to present that account and that evidence in the form the law requires, and to make the legal argument that connects them to the criterion.

Deadlines are handled as a matter of file management rather than reminder. The deemed receipt date is calculated on receipt, the authorised recipient position is checked, and the lodgement is made through ImmiAccount inside the period stated in the letter.

A section 57 letter is a short, technical opportunity that does not come again in the same form. Applicants who want that opportunity handled by a lawyer can request a consultation with the firm, or read more about how the firm acts for couples on the partner visa lawyers page. Where the letter has already been answered and the application refused, the firm also acts on review.