Section 57 natural justice letters: what one means for your Carer visa

A section 57 natural justice letter is a written invitation from the Department of Home Affairs to comment, usually within 28 days if you are in Australia, on information that could be part of the reason to refuse a visa (section 57(2) of the Migration Act 1958 (Cth) and regulation 2.15 of the Migration Regulations 1994 (Cth)). For a Carer visa, the information concerns something the application must still prove at decision, such as the relative's need, other family in Australia or the care itself, and a queue of about 12 years gives those facts time to change.

What is a section 57 natural justice letter?

A section 57 natural justice letter is the Department's written notice of "relevant information", meaning information it did not get from you that would be part of the reason to refuse the visa, with an invitation to comment on it.

Section 57(1) sets three tests. The information would be the reason, or part of the reason, for refusal. It is specifically about you or another person, not about a class of people. And you did not give it for this application. Section 51A makes these rules the complete statement of the natural justice hearing rule for visa applications, so the letter is the procedure, not a courtesy.

The current section 57 has no onshore-only limit, so it applies to a subclass 116 application made outside Australia as well as to an 836 made inside it.

Why do Carer visa applicants get natural justice letters?

Carer visa applicants get natural justice letters for three kinds of information the Department holds from somewhere other than the application.

1. Changes to the relative's situation. The relative has died, recovered or moved into residential care, and the Department learns it from its own records. The law requires that the need for care still exist at the Carer visa decision, so a change of this kind goes to the heart of the application.
2. Other family in Australia. A relative of the person needing care has become an Australian citizen, permanent resident or eligible New Zealand citizen in Australia, and could be found able to give the care (reg 1.15AA(1)(e)(i)). The Department knows this from that relative's own visa or citizenship file.
3. Character, identity or documents. Police, identity or document information bears on public interest criteria 4001 or 4020.

These are categories that fit section 57(1), not statistics. The Department's Other Family visas queue page estimates 12 years for a new Carer application, which is why a released application meets facts that have moved.

How long do you have to respond to a Carer visa section 57 letter?

You have 28 days to respond to a written Carer visa section 57 letter if you are in Australia, and 7 days if the invitation is given at an interview or by telephone (reg 2.15(1)(b)).

If you are outside Australia (subclass 116)

Regulation 2.15(1) prescribes no period for a written invitation to an applicant outside Australia, other than for visitor visas. Section 58(2) of the Act then requires the letter to state a reasonable period, so the date in the letter is the date that counts.

When the clock starts

Section 494C sets when a letter is taken to be received. An email counts at the end of the day it was sent. A letter posted within Australia counts 7 working days after its date, and any other posted letter counts 21 days after its date.

Extra time

For an applicant in Australia, section 58(4) and regulation 2.15(4)(b) let the Minister allow a further 7 days. Ask in writing before the first period ends.

How do you respond to a section 57 letter?

You respond to a section 57 letter by answering each piece of information it lists, in the way and by the date the letter states, with evidence rather than statements alone.

1. Firstly, work out the date the letter is taken to have been received and the due date.
2. Secondly, read the particulars and the reason the letter gives for why they matter (s 57(2)(b)).
3. Thirdly, match each item to the criterion it affects: the certificate, care from other relatives or services, the relationship, the sponsor, health, character or information.
4. Fourthly, gather current evidence. For a changed care need that means current medical evidence about the relative, statutory declarations from relatives and letters from care services.
5. Fifthly, send the response in the way the letter specifies (s 58(1)) and keep proof of sending.
6. Sixthly, if you need more time, ask in writing before the period ends.

Keep a copy of everything you send. If the Department still refuses, the Carer visa appeal lets the Administrative Review Tribunal consider the same evidence afresh, and a complete reply now makes that file stronger.

What happens if a Carer visa applicant does not respond?

If a Carer visa applicant does not respond by the due date, the Department may decide the application without asking again (s 62(2)).

Section 63(3) holds the refusal back only until the comments are given, you say you will not comment, or the time runs out. Telling the Department in writing that you do not wish to comment ends the wait as well.

Is a section 57 letter a refusal?

A section 57 letter is not a refusal, because section 63(3) of the Act bars a refusal until the comment period is over.

It is not a grant either, and it does not signal the outcome. The case officer must have regard to your comment together with everything else in the application (ss 54 and 55).

Section 56 compared

A section 56 invitation asks for more information of any kind. A section 57 letter is narrower: it is about adverse information that you did not give.

What happens after you answer a section 57 letter?

After you answer a section 57 letter, the Department decides the application, and a refusal letter must say whether the Tribunal can review it and within what time (s 66(2)(d)).

1. The decision. The case officer weighs your reply with the rest of the file. If the visa is refused, the letter names the failed criterion and the review rights.
2. The cap. A Carer visa that is ready for grant still needs a place under the yearly cap for Other Family visas (s 86). The 12-year queue and release date guide explains how places are released.
3. A refusal. If the answer is no, the options and deadlines, including when you can apply for a Carer visa again, start from the date you are notified.

The rest of the guide is at Carer Visa Australia.

Read next

Carer visa refusal: why Carer visas are refused and what comes nextEach refusal names a failed criterion, and the ART clock starts at notification. Carer visa appeal at the Administrative Review TribunalThe carer lodges for an 836; the sponsor lodges for a 116. If the person you care for dies before the Carer visa is grantedWhen the person needing care dies, the carer criterion tested at decision fails.