Responding to a Section 56 Request for More Information

What is a section 56 request for more information?

A section 56 request is the Department of Home Affairs asking you for more information before it decides your visa application. It is not a refusal. It is not a decision of any kind. It is a step in the process, taken under section 56 of the Migration Act 1958, which lets the decision maker get any information it considers relevant and invite you to give more.

The letter usually arrives by email. It is normally headed as a request for more information and comes with an attachment called something like Request Checklist and Details. The checklist sets out what is being asked for. The request detail explains why the officer is asking. Read both. The detail page is where the real question sits, and it is the part applicants most often skim.

Section 56 has two parts. Subsection 56(1) allows the officer to get any information they consider relevant to your application. Subsection 56(2) allows the officer to invite you to give additional information, and that invitation may be given orally or in writing. Departmental policy records the point that matters most here: the officer is not obliged to ask you for anything. They may decide the application on the material already in front of them. So a request is not a warning shot. In a narrow but real sense, it is an opportunity that you were not entitled to.

A request also tells you something useful. It means a decision maker has picked up your file and started considering it. It usually means something is missing, unclear, or not yet established to their satisfaction. The common triggers are gaps in identity or nationality documents, doubts about a claimed relationship, documents supplied without an English translation, answers that do not match other material on the file, and claims made without any supporting detail or evidence.

What a request is not is equally important. It is not an invitation to argue your case again from the beginning. It is not a sign that the officer has made up their mind. And it is not a decision, which means there is nothing yet for a tribunal to review. Review rights only arise later, and only if the application is refused. If that happens, the rules change completely, and the deadlines that follow a visa refusal are far shorter and far less forgiving than the one in front of you now.

Sections 56, 57 and 58 sit inside Subdivision AB of Division 3 of Part 2 of the Migration Act, known as the Code of Procedure for dealing fairly, efficiently and quickly with visa applications. Section 51A states that this Subdivision is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. In plain language, the fairness you are owed before a decision is made is largely what these sections say it is. There is no broader fairness argument sitting behind them. That is why the mechanics of the request, and the date on it, matter so much.

How long do you have to respond to a section 56 request?

The invitation must state the period you have, and for most applicants in Australia that period is 28 days. Section 58 of the Migration Act controls how the invitation works. Subsection 58(1) requires the invitation to specify whether the response is to be given in writing, at an interview, or by telephone. Subsection 58(3) requires an invitation to an interview to state the date, time and place. Subsection 58(2) provides that where the response is to be given other than at an interview, it must be given within the period specified in the invitation, which must be a reasonable period, or, if no period is specified, within the period prescribed by regulation 2.15(1) of the Migration Regulations 1994.

Here is the part that catches people. The period does not start on the day you open the email. It starts on the day you are taken to have received the letter. Section 494C of the Migration Act sets out when a person is taken to have received a document from the Minister, and departmental policy confirms that each prescribed period commences when the applicant is taken to have received the invitation under that section. The Department's standard written request puts the same point in plain words: you have 28 days starting on the day after the request was emailed to you.

Those are calendar days, not business days. Weekends and public holidays sit inside the period, not on top of it. A request emailed on a Friday afternoon before a long weekend gives you the same 28 days as one sent on a Monday morning.

Shorter periods apply in some situations. Regulation 2.15 prescribes different periods depending on the circumstances, including a much shorter period for an applicant in immigration detention and a shorter period for some short stay visa applications. Where the invitation is to attend an interview rather than to reply in writing, regulation 2.15(3) sets the window in which the interview must be scheduled, being 5 days for an applicant in detention and 28 days for other applicants. None of this requires you to guess. The letter you received states the period that applies to you, and that is the period to work to.

One more trap deserves its own line. If you have appointed an authorised recipient, the Department sends the letter to that person rather than to you. The period then runs from when your authorised recipient is taken to have received it. If you appointed a representative years ago and have since lost contact with them, the letter can arrive, the clock can run, and the period can expire without you ever seeing it. If your contact details or your representative have changed, tell the Department in writing straight away.

So the first thing to do with a request is not to start gathering documents. It is to work out the exact date your response is due, write that date down, and work backwards from it. If the date is close and the material is not simple, that is the point to get advice, not the week it falls due. You can request a consultation online and have the letter reviewed before you answer it.

What happens if you do not respond to a section 56 request in time?

If you do not respond in time, the Department can decide your application on the information it already has, without asking you again. That is the effect of section 62 of the Migration Act. Departmental policy states it in the same terms: where an applicant is invited to provide additional information or comment and the prescribed time passes without a response, a decision can be made on the application without giving them any further opportunity to provide input.

The Department's own request says the same thing, and it is worth reading slowly. A decision may be made on the information in your application and any response to the letter, and you may not be given another opportunity to provide more information. The officer who decides may not be the officer who wrote to you, and they may decide without making any further contact.

Until the period ends, though, you have a protection. Section 63 provides that after inviting an applicant to give information or to comment on relevant information, a decision to refuse the visa must not be made before one of three things happens: you provide the information or comments, you tell the Department that you do not have the information or do not wish to provide it, or the time in which the information may be provided ends. So the period is a shield, and it holds until it expires or you close it yourself. Telling the Department that you have nothing further to add ends the period early. Do not send that message unless you mean it.

Now the part that most published guidance gets wrong. Missing the deadline is not the same as being refused, and late material is not automatically ignored. Section 54(1) requires the decision maker to have regard to all of the information in the application, which includes attachments and additional information you have given relating to it. Section 55(1) allows an applicant to give additional information at any time before the application is decided, and that information must be taken into account in the decision.

Put those together and the position is this. After the due date, the Department may decide at any moment without waiting for you. But if you get material in before the decision is actually made, it must be considered. That is not a comfortable position to be in, because you have no way of knowing whether the decision was made yesterday. It is still far better than assuming the door is shut.

The practical consequences follow from that. Do not hold back a partial response while you wait for one outstanding document. Send what you have by the due date, say clearly what is still coming and why, and send the rest as soon as it arrives. A partial response filed on time also does something a late response cannot. It shows a decision maker considering credibility that you engaged with the request rather than ignored it.

Is your letter a section 56 request or a section 57 letter?

A section 56 request asks you to provide more information. A section 57 letter puts adverse information to you and invites you to comment on it. They look similar, they often arrive in the same format, and they call for very different answers. Check which section your letter names before you start writing.

Section 57(1) defines relevant information as information that the officer considers would be the reason, or part of the reason, for refusing to grant the visa, that is specifically about the applicant or another person and not just about a class of persons, and that was not given by the applicant for the purpose of the application. All three limbs must be satisfied. Information you supplied yourself is not relevant information, which is why a concern about your own document is often put to you differently.

Where information is relevant information, section 57(2) requires the officer to give you particulars of it in the way the officer considers appropriate in the circumstances, to ensure as far as is reasonably practicable that you understand why it is relevant, and to invite you to comment on it. There is an exception for non-disclosable information as defined in section 5(1) of the Migration Act, where a summary that does not state the source is provided instead.

The difference is not academic. A section 56 request says, in substance, we do not have enough. A section 57 letter says, in substance, we have something that counts against you and you should answer it. The second calls for a direct response to the specific material, not a general restatement of your case.

Departmental policy draws one line here very firmly. Where a decision maker is considering refusal under the integrity public interest criterion in Schedule 4, a section 56 request must not be used to put that concern to the applicant. Policy records that a refusal on that basis would likely be affected by jurisdictional error if the information had been put in a section 56 request rather than a section 57 letter. If you receive what is labelled a request for more information but it is plainly putting an allegation to you, that is worth having looked at.

The same logic applies to letters about a visa you already hold. A notice of intention to consider cancellation is not a section 56 request either, and the response obligations and deadlines attached to visa cancellation are different again. Work out which process you are in before you answer.

How to answer the questions a section 56 request is actually asking

Answer every question in the order it is asked, in specific detail, and provide the documents separately. Most requests are not a simple document list. They ask you to give details, and they usually spell out the detail they want: who was involved, what was said or done, when it happened, where it happened, how it was communicated to you, and what happened afterwards. A response that attaches documents but leaves the written questions unanswered is the single most common failure, and it is the one that does the most damage.

Work through it in this order.

• Take the request apart. Write out every question and every dot point as a numbered list. Nothing in the letter is decoration.
• Answer each point in its own numbered paragraph, using the Department's own wording as the heading so the officer can match your answer to their question without searching for it.
• Give dates, places, full names and what was actually said. Approximate is better than absent. Where you can only give a month or a year, say so and say why.
• Where a document answers a question, name the document and say which question it answers. Do not leave the officer to work out why a file is in the bundle.
• Check every answer against what you have already told the Department. An inconsistency between your response and your original application is itself a problem, and it is one the officer is looking for.
• If you gave incorrect or incomplete information earlier, correct it properly using the Notification of Incorrect Answers form, Form 1023, rather than quietly changing your story in the response.

Where the request asks why something did not happen, answer that question head on. Why you did not go to the authorities. Why there is no report. Why you waited before applying. These questions are not filler. They are usually the reason the letter was sent, and leaving them unanswered reads as having no answer. A short, honest explanation of a gap is stronger than silence and far stronger than an explanation that shifts later.

Finally, resist the urge to send everything. A response that buries three relevant documents inside sixty irrelevant ones is harder to assess, not easier, and it invites new questions. Answer what was asked, support it, and stop.

What if you cannot get a document before the deadline?

Say so in writing before the due date, and explain what you did to try to get it. The Department's request anticipates this. It asks that if you are unable to provide more information or copies of documents, you give a detailed explanation of why you cannot provide them, together with details of the efforts you made to obtain them.

The request also sets out what to do where the document has to come from someone else. Ask that organisation for it before the due date, and give the Department evidence that you have asked, using one of the methods for providing documents set out in the letter. Then provide the document itself as soon as you receive it.

A useful explanation is short and specific. Name the document. Say who holds it. Say when you asked, how you asked, and what you were told. Attach the proof, such as the email you sent, the application receipt, or the reply refusing you. Say when you expect to receive it, or say that you do not expect to receive it at all and why. Where a document does not exist, or was never issued in the country concerned, say that plainly rather than leaving the request unanswered.

The reason this matters is simple. An unexplained gap is treated as an absence, and absences are weighed against the person who was asked. An explained gap is a fact the decision maker has to grapple with. The two are not the same, and the difference costs you nothing but a paragraph.

How to send your response to the Department

Attach your response and your documents to your application through ImmiAccount, unless the letter tells you to use a different method. Take clear colour scans or photographs. Where a document runs to more than one page, save it as a single file rather than a series of loose images. Make sure every part of the text is visible, including stamps and edges. Documents attached through ImmiAccount do not need to be certified.

Once the Department has received your documents they show as Received in ImmiAccount. No other confirmation is sent. Do not email or post a second copy of anything you have already attached unless you are specifically asked for it, because duplicates make the file harder to assess and can cause a document to be missed.

Communication about your application must be in writing. Section 52 of the Migration Act requires applicants to communicate with the Department in the way prescribed by the Migration Regulations, and regulation 2.13 requires that communication to be in writing, apart from an enquiry about the progress of an application. A phone call is not a response to a request.

Any document that is not in English must be translated. In Australia, translators must be accredited by the National Accreditation Authority for Translators and Interpreters. Outside Australia, a translator does not have to be accredited, but each translation must include the translator's full name, address, telephone number, and their qualifications and experience in the language being translated, all stated in English. Provide the translation and the original language document together. A document supplied without a translation can itself become the subject of a further request, which costs you time you may not have.

One warning that should not need saying, and does. Never provide a false or fraudulent document, and never make a false claim, however small and however tempting under time pressure. The Department's request spells out the consequences: the application may be refused, and it may affect applications you make in the future. For most visa subclasses the integrity public interest criterion in Schedule 4 of the Migration Regulations can also prevent the grant of further visas for a set period. A weak answer given honestly is recoverable. A false document is usually not.

Can you get more time, and can you challenge the request?

You can ask for more time, but there is no right to it, and the request itself cannot be reviewed. Subsections 58(4) and 58(5) of the Migration Act allow additional time to be given to respond and allow an interview to be rescheduled to a later date. That is a discretion, not an entitlement. Departmental policy is explicit that there is no requirement to give an applicant additional time to respond to a section 56 or section 57 invitation where the response is to be given in writing.

If you need more time, ask in writing before the due date, not after it. Say exactly what you are waiting for, what you have already done to obtain it, and the date by which you can provide it. The Department's request notes that where you cannot provide the information on time for reasons beyond your control, you may attach a letter explaining the reason, and more time might be allowed. Requests grounded in a concrete obstacle and a realistic date are treated differently from requests for time in general.

There is no merits review of the request itself. A request for more information is not a decision, so there is nothing for the Administrative Review Tribunal to review. Review rights arise only if the visa is refused. If that happens, the refusal notification states whether review is available, who may apply, where to apply and the period within which an application must be made. Those periods are short and, unlike the period in a section 56 request, they cannot be extended.

Where a refusal follows a process that went wrong, for example where adverse information was put in the wrong form of letter, the question becomes one of jurisdictional error. That is argued on review, or on judicial review in the Federal Circuit and Family Court, not in your answer to the request. It is not a reason to respond to the request any less carefully. It is a reason to keep the letter, the envelope or email header, and a record of exactly when and how you replied.

Treat the request as the last opportunity you will get, because the Department has told you in writing that it may be. Diarise the due date. Answer every question. Explain every gap. Send it through ImmiAccount, and keep the confirmation. If the request touches the heart of your application, or the answer is not straightforward, have it reviewed by Australian immigration lawyers before you send it, while the period is still running.

How My Migration Lawyers can help with a section 56 request

My Migration Lawyers acts for people responding to requests for more information, from the day the letter arrives to the day the response is lodged. The firm is led by Principal Lawyer Weiwei Zhang, and works with clients across Australia and overseas by video, so where you live does not limit who can act for you.

A request is a short window with a fixed end date, and the work that goes into it is not really about collecting documents. It is about reading what the decision maker is actually worried about, and answering that. On a matter of this kind the firm will:

• Work out the exact date your response is due, from the day you are taken to have received the letter rather than the day you opened it.
• Identify whether the letter is a section 56 request, a section 57 invitation to comment on adverse information, or something else, because the answer is different in each case.
• Go through the request line by line against what is already on your file, so your response is consistent with what the Department has already been told.
• Draft the written response, addressing every question in the Department's own order and in the level of detail it has asked for.
• Advise on which documents genuinely help, which do not, and how to explain a document you cannot obtain.
• Deal with translations, corrections to earlier answers, and any request for more time, in writing and before the due date.
• Lodge the response and keep the record of what was sent and when.

Fees are quoted as a fixed amount for the work before anything starts, so you know the cost of the response up front.

If your period is still running, the sooner the letter is reviewed the more can be done with it. You can tell us about your request for more information using the form, and a lawyer will reply by email.