Dealing With Requests For Information By Immigration
Often Immigration will request information and set a deadline for the client to supply that information but rarely does Immigration tell the client that one can apply for an extension of time. Generally the delegate has power to grant a 7 day extension for onshore applicants, 28 days for offshore applicants. Even if a deadline is missed an applicant can still supply more information at any time prior to a decision is made. However once the final deadline is missed the decision can be made without with waiting for what the applicant may say.
The power to seek more information is contained in sections 56, 57 and 58 of the Migration Act.
Section 56(2) says, “the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.”
Section 57 sets up a ‘natural justice’ regime when the Minister has material which may be the basis of a refusal. It starts with defining ‘relevant information’ as information that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa; or…
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
Then s 57(2) creates the ‘natural justice’ obligation in these terms :
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
Section 58 sets up the time limits for replying to requests for information or comment.
Putting interviews to one side section 58 says :
(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
So, as one can see there is a specific power to extend time for compliance with a request for information or comment. Under Reg 2.15(b)(ii)(C) the general prescribed period is 28 days although the regulation needs to be read in full to see the exceptions.
Then reg 2.15(4) allows an extension of time for a further 7 days for an applicant in Australia and up to 28 days for an applicant offshore.
However even if the deadline for meeting a request for information or comment has passed s 55 specifically authorises a visa applicant to supply more information. S 55 states :
Section 55 Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
Even though a deadline is missed, informally, delegates may give an indication that, no decision would be made before a particular date which is a type of de facto further extension. In such a case notes should be made of any conversation in order to turn into an enforceable undertaking.