Natural justice in visa decisions (ss 57–66)

Topic Procedural doctrine 🇦🇺 Verified: 2026-05

Overview

Sections 57–66 of the Migration Act 1958 (Cth) establish a statutory code of procedure that displaces (to the extent of any inconsistency) the common law rules of natural justice for primary visa decisions. Section 57 requires the decision-maker to give an applicant particulars of information that would be the reason, or part of the reason, for refusing the application, and to invite comment. Failure to comply with s 57 is a jurisdictional error reviewable on judicial review.

Natural justice — also referred to as procedural fairness — is a fundamental principle of administrative law requiring that persons affected by an adverse decision be given an opportunity to know the case against them and to respond. In Australian migration law, these obligations are largely codified in the Migration Act itself, reducing (but not eliminating) reliance on the common law.

The statutory code applies to primary decisions by the Department. Separate procedural rules apply to the ART when it reviews migration decisions.

Legal basis

Section 57 — where a decision-maker has information that would be the reason or part of the reason for refusing an application, and the information is "specifically about" the applicant or another person and is not "just about a class of persons", the decision-maker must give the applicant particulars of that information and invite comment
Section 58 — the way in which the invitation to comment must be given
Section 59 — how responses to invitations must be given
Section 60 — the method of notifying the applicant of a decision under the procedural fairness code
Sections 494A–494D — prescribed methods of giving documents, which affect when natural justice obligations are met
Section 66 — notification of a decision; notification triggers the time limit for review applications

The Migration Act is a "code" for natural justice in migration decisions: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636. Common law natural justice obligations apply only to the extent not displaced by the code.

How it works

The s 57 obligation

Section 57 is triggered when three conditions are met:

The decision-maker has information that is relevant to the decision
The information "would be the reason, or a part of the reason" for refusing the application
The information is "specifically about the applicant or another person" (not just a class of persons)

If these conditions are met, the decision-maker must give "particulars" of the information (not necessarily the full document) and invite the applicant to comment. The invitation may be given orally or in writing, depending on the circumstances.

Commonly litigated issues

What is "specifically about" the applicant? General country information, published migration policy, and information about classes of visa applicants is typically not subject to the s 57 obligation. Information specific to the applicant's circumstances or personal history is.
Adverse inferences: if a decision-maker draws an adverse inference about the applicant (e.g., that they were untruthful), this may itself constitute "information" attracting the s 57 obligation.
Information previously provided by the applicant: information provided by the applicant themselves is generally not subject to a further invitation to comment, but this depends on the context.

Effect of non-compliance

Failure to comply with the s 57 obligation is a jurisdictional error, meaning the decision is void and has no legal effect. A judicial review applicant who establishes a failure to comply with s 57 is entitled to have the decision quashed and remitted for reconsideration.

Separate procedural obligations at the ART

When the ART reviews a visa decision, it operates under its own procedural rules (the ART Rules and the Administrative Review Tribunal Act 2024). The ART must provide procedural fairness as part of a de novo merits review.

Notification and time limits (s 66)

Section 66 governs how a decision on a visa application must be notified. Notification is critical because it starts the clock for review applications. If a decision is not properly notified, the time for review may not begin to run.