An s57 Natural Justice letter is also otherwise known as an ‘Invitation to Comment on [Adverse] Information’ letter which is sent by the Department of Immigration and Border Protection (DIBP), most commonly when the case officer assessing the visa application suspects that a bogus document or information that is false or misleading has been provided.
This means that the case officer is concerned that the applicant has provided fake or fraudulent document or information in support of the visa application, and consequently, is giving the applicant an opportunity to explain the adverse information that is detailed in the letter. Sometimes such adverse information can be as simple as listing the wrong telephone number in the application form, or it could be as serious as using fake employment references to support a claim for work experience. Nonetheless, regardless of how severe the allegation of bogus document or information might be, a failure to satisfy the case officer that the adverse information referred to is not false or misleading could mean that the visa application might be refused on the grounds of not satisfying Public Interest Criteria (PIC) 4020.
In normal cases, having a visa application refused is already an adverse record on an individual’s migration history, and it could potentially affect all future visa applications (whether in Australia or for some other country) negatively. However, having a visa refused on PIC 4020 grounds also means that the applicant will be barred from being granted an Australian visa for the next 12 months, with the potential of affecting all future Australian visa applications.
In the case of BearingPoint Australia Pty Ltd v. Hillard,2 the Supreme Court of Victoria regarded as unreasonable a restraint period of 12 months which followed a notice period of 6 months. Operating in tandem with the notice period for a cumulative total of 18 months, the restraint period was regarded as too broad and unreasonable, and extended beyond what was necessary to protect the employer’s legitimate business interests. The Court consequently ordered that the entire restraint clause be severed from the employment agreement, leaving the employer with no right of restraint over the ex-employee.
Although case officers have a discretion to waive the application of PIC 4020 for future visa applications on the grounds of the visa grant being in the interests of Australia or that there are compassionate and compelling circumstances affecting the interest of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, this waiver has been increasingly difficult to obtain.
Hence, if you have received a ‘s57 Natural Justice’ letter or an ‘Invitation to Comment on [Adverse] Information’ letter, we strongly encourage you to contact us for assistance with responding to the letter. Ashley Ngion of our firm, who is an Australian lawyer and our resident Migration Agent, has a successful track record of advising on PIC 4020 issues, and will be able to give you the advice you need.