Immigration Lawyers and Migration Agents please...

[Guest babboo]

Hi!

Can any Immigration Lawyers and Migration Agents please advice on this issue...

 

1. Can this 8th Feb. 2010 sinister legislation by the Immigration Minister Mr. Chris Evans of capping and ceasing of 20000 applicants pre September 2007 be challenged in the competent court of Law ???

 

2. What are the chances of a positive outcome ??

 

Thank you all,

Regards

[Guest Gollywobbler]

Hi Babboo

 

I'm not an Immigration lawyer or a migration agent but in case none of them answer you, the feedback that I am hearing is this:

 

DIAC have already caved in and said that there will be no "cap & cease" applied where the applicant is already in Australia - as is Dasalcedo. DIAC say that the remaining applicants such as yourself will start to receive letters in March 2010 or so, saying that S39 (the cap & cease provision) has been applied to your application. Presumably they will return the entire application to you - ie the whole bundle originally sent to DIAC, and I think all of them were on paper - and they will also send a DIAC cheque which will be the refund of your application fee.

 

The Immigration law specialist solicitors in Oz are saying that they want to see exactly what DIAC will say/have said in their letters to the visa applicants before they go any further.

 

It looks as if about 8,300 applications were originally going to be capped & ceased. We can work this out because the Minister has said that the Aussie Government will be returning about $14 million AUD in refunded visa application fees. From the 2007 tarriffs for what those fees were, we can work out that the Minister was talking about around 8,300 applications. This adds up to his total of 20,000 people because in addition to about 8,300 main visa applicants, the rest would be partners, dependent children etc.

 

However I don't know how many of these 8,300 or so main applicants are in Dasalcedo's position of already having established lives for themselves, their partners and their children in Australia. It could be as many as 50% or it could be far fewer than that - I simply don't know.

 

This sudden and recent climb-down by DIAC looks like a deliberate and cynical political ploy by the Minister to me, though. The last thing he wants in the run-up to a General Election in Oz is 5,000 or more people staging a rally on the steps of the Parliament building in Canberrra. Doing that would bring back the spectre of Mr Kiane, who committed suicide on those very steps in 2001 because of the intransigence of Australia's Immigration system and the officials in charge of running it. Mr Kiane went to the Parliament House. In full view of the press and the public, he doused himself in petrol and set fire to himself on those steps. He died of his burns about 10 days later in hospital. It was headline news all over the world at the time.

 

http://www.ombudsman.gov.au/files/investigation_2001_07.pdf

 

The Commonwealth Ombudsman said that Mr Kiane's case revealed a history of "administrative ineptitude and broken promises" by the Aussie Government and in particular by that Government's Department of Immigration.

 

I'm sure that the Minister does not want any sort of public embarrassment over his sudden use of the "cap & cease" provisions in S39 of the Migration Act 1958. I don't think the Senator wants the embarrassment of right thinking Australian voters asking what the hell the Aussie Government is doing by trying to chuck people out of Oz when those people have already made their lives in Australia?

 

So - the Minister has already climbed down about some of the applicants who were to have been thrown out of Australia, complete with their partners, children and other dependants.

 

What about the remainder of the applicants who have been outside Australia all along? As yet, nobody knows because the expert lawyers are saying that they want to see exactly what DIAC actually say. It seems that the lawyers will not get their hands on the relevant letters for another few weeks yet.

 

One of the early suggestions was that there might be a Class action in Court. In these, you take 100 or 1,000 people, all with very similar facts. In effect they all become the Plaintiff in Court and they split the legal costs for bringing the Class action amongst themselves.

 

I was puzzled by the idea of a Class action for your particular problem, though, because thousands of International Students were involved in the big Student visa case in Australia in 2003, masterminded by Nigel Dobbie, who was at Parish Patience at the time. There were at least 3,000 Students involved, all with the same grievances and some of them had plenty of money. However when the case went to Court the only Plaintiff was Mr Uzzin. Because he won, the principle was established and the Aussie Government paid damages to all the affected Students rather than have multiple Court actions against the Minister for Immi in which the Plaintiff would win every time.

 

Why wasn't a Class action used for the Students if it would be appropriate to start a Class action now?

 

Apparently a Class action cannot be used because the Migration Act 1958 expressly forbids bringing a Class action in an Immigration law dispute. However the lawyers say that this piece of procedure does not matter because if it becomes possible to sue the Minister for Immigration, they can use the same basic method that they used with the Students in 2003. That is, they can use just one visa applicant as their guinea pig on behalf of all of the affected visa applicants. I have the impression that several Aussie solicitors and barristers are considering and watching the whole thing very closely, though.

 

The lawyers are saying, "Sit tight, shut up and let us wait and see what DIAC actually say." Damages are not appropriate in this case. Money does not compensate somebody for the loss of a life's dreams and hopes.

 

My feeling is that this time, the lawyers are ready for the Minister, which they weren't with the Students. My impression is that this time the Plaintiffs will say that they want the lawyers to attack the legal validity of using S39 at all on facts such as these.

 

DIAC say that S39 has only ever been used in the past once, in the Humanitarian Stream. A migration agent who used to work for DIAC for many years has told me that DIAC's fact sheet is wrong. He says that s39 has been used once only, in connection with Working Holiday makers. The fact sheet is here:

 

Australian Immigration Fact Sheet 21. Managing the Migration Program

 

In the fact sheet, DIAC call S39 "Cap & Terminate." Whether you call it that, "cap & cease" or "cap & kill" it is still S39. The ex-DIAC chap says that he thinks that S39 was used with Working Holiday makers during the 1990s.

 

The text of S39 is below:

39 Criterion limiting number of visas

(1) In spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).

(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.

 

 

Cheers

Gill

[rahulpatel1969]

What about those who are Australian citizen or PR sponsored (496). What are our options.

[Guest babboo]

Hi Babboo

 

I'm not an Immigration lawyer or a migration agent but in case none of them answer you, the feedback that I am hearing is this:

 

DIAC have already caved in and said that there will be no "cap & cease" applied where the applicant is already in Australia - as is Dasalcedo. DIAC say that the remaining applicants such as yourself will start to receive letters in March 2010 or so, saying that S39 (the cap & cease provision) has been applied to your application. Presumably they will return the entire application to you - ie the whole bundle originally sent to DIAC, and I think all of them were on paper - and they will also send a DIAC cheque which will be the refund of your application fee.

 

The Immigration law specialist solicitors in Oz are saying that they want to see exactly what DIAC will say/have said in their letters to the visa applicants before they go any further.

 

It looks as if about 8,300 applications were originally going to be capped & ceased. We can work this out because the Minister has said that the Aussie Government will be returning about $14 million AUD in refunded visa application fees. From the 2007 tarriffs for what those fees were, we can work out that the Minister was talking about around 8,300 applications. This adds up to his total of 20,000 people because in addition to about 8,300 main visa applicants, the rest would be partners, dependent children etc.

 

However I don't know how many of these 8,300 or so main applicants are in Dasalcedo's position of already having established lives for themselves, their partners and their children in Australia. It could be as many as 50% or it could be far fewer than that - I simply don't know.

 

This sudden and recent climb-down by DIAC looks like a deliberate and cynical political ploy by the Minister to me, though. The last thing he wants in the run-up to a General Election in Oz is 5,000 or more people staging a rally on the steps of the Parliament building in Canberrra. Doing that would bring back the spectre of Mr Kiane, who committed suicide on those very steps in 2001 because of the intransigence of Australia's Immigration system and the officials in charge of running it. Mr Kiane went to the Parliament House. In full view of the press and the public, he doused himself in petrol and set fire to himself on those steps. He died of his burns about 10 days later in hospital. It was headline news all over the world at the time.

 

http://www.ombudsman.gov.au/files/investigation_2001_07.pdf

 

The Commonwealth Ombudsman said that Mr Kiane's case revealed a history of "administrative ineptitude and broken promises" by the Aussie Government and in particular by that Government's Department of Immigration.

 

I'm sure that the Minister does not want any sort of public embarrassment over his sudden use of the "cap & cease" provisions in S39 of the Migration Act 1958. I don't think the Senator wants the embarrassment of right thinking Australian voters asking what the hell the Aussie Government is doing by trying to chuck people out of Oz when those people have already made their lives in Australia?

 

So - the Minister has already climbed down about some of the applicants who were to have been thrown out of Australia, complete with their partners, children and other dependants.

 

What about the remainder of the applicants who have been outside Australia all along? As yet, nobody knows because the expert lawyers are saying that they want to see exactly what DIAC actually say. It seems that the lawyers will not get their hands on the relevant letters for another few weeks yet.

 

One of the early suggestions was that there might be a Class action in Court. In these, you take 100 or 1,000 people, all with very similar facts. In effect they all become the Plaintiff in Court and they split the legal costs for bringing the Class action amongst themselves.

 

I was puzzled by the idea of a Class action for your particular problem, though, because thousands of International Students were involved in the big Student visa case in Australia in 2003, masterminded by Nigel Dobbie, who was at Parish Patience at the time. There were at least 3,000 Students involved, all with the same grievances and some of them had plenty of money. However when the case went to Court the only Plaintiff was Mr Uzzin. Because he won, the principle was established and the Aussie Government paid damages to all the affected Students rather than have multiple Court actions against the Minister for Immi in which the Plaintiff would win every time.

 

Why wasn't a Class action used for the Students if it would be appropriate to start a Class action now?

 

Apparently a Class action cannot be used because the Migration Act 1958 expressly forbids bringing a Class action in an Immigration law dispute. However the lawyers say that this piece of procedure does not matter because if it becomes possible to sue the Minister for Immigration, they can use the same basic method that they used with the Students in 2003. That is, they can use just one visa applicant as their guinea pig on behalf of all of the affected visa applicants. I have the impression that several Aussie solicitors and barristers are considering and watching the whole thing very closely, though.

 

The lawyers are saying, "Sit tight, shut up and let us wait and see what DIAC actually say." Damages are not appropriate in this case. Money does not compensate somebody for the loss of a life's dreams and hopes.

 

My feeling is that this time, the lawyers are ready for the Minister, which they weren't with the Students. My impression is that this time the Plaintiffs will say that they want the lawyers to attack the legal validity of using S39 at all on facts such as these.

 

DIAC say that S39 has only ever been used in the past once, in the Humanitarian Stream. A migration agent who used to work for DIAC for many years has told me that DIAC's fact sheet is wrong. He says that s39 has been used once only, in connection with Working Holiday makers. The fact sheet is here:

 

Australian Immigration Fact Sheet 21. Managing the Migration Program

 

In the fact sheet, DIAC call S39 "Cap & Terminate." Whether you call it that, "cap & cease" or "cap & kill" it is still S39. The ex-DIAC chap says that he thinks that S39 was used with Working Holiday makers during the 1990s.

 

The text of S39 is below:

 

Cheers

Gill

 

Well, Gill thank you very much for the insight into some of the details and legislation the minister can use as a tool to harass people...

Gone through the FACT sheet 21 -- Yes he can -- The minister has indicated that this provision would only be used in exceptional circumstances. What are the exceptional circumstances here ??

This limit, or cap, applies only for the migration program year in which it is introduced. When a cap is reached, applicants then wait in a queue for visa grant consideration in a following year, subject to places becoming available.

This means that when the number of visas set by the Minister for a visa class for the migration program year has been reached, no further visas can be granted in that program year --- Is this year 2007 ?

 

 

Ok.. as u said, let's wait and watch.. But seriously I am willing to spend money on this if this can be challenged.

Cheers

Thanks again...

[thewebweazel]

Will The Oz goverment pay the 3 years interest on the application fees handed back?

[Guest Gollywobbler]

Will The Oz goverment pay the 3 years interest on the application fees handed back?

 

Hi Webweasel

 

Nope. S39 does not require the Minister to give the visa application charges back either. Seemingly he is handing them back voluntarily to show the world what a nice, fair minded sort of a bloke he is, one assumes.....

 

Cheers

 

Gill

[Guest Gollywobbler]

Hi Babboo

 

I've raised some of the same points as you have. I have been told:

 

The minister has indicated that this provision would only be used in exceptional circumstances. What are the exceptional circumstances here ??

 

 

Exactly. I said exactly the same thing. I was told that S39 does not require exceptional circumstances. It merely requires that the Minister decides to use it.

 

I was also reminded that a week is a long time in politics (oops! I mean that a week is a long time when a country is supposedly recovering from a recession that it did not go into in the first place, of course....)

 

This limit, or cap, applies only for the migration program year in which it is introduced. When a cap is reached, applicants then wait in a queue for visa grant consideration in a following year, subject to places becoming available.

Don't get confused between the "cap & cease" provisions in S39 and the "cap & queue" provisions that are in a different section of the Migration Act. They are different concepts.

 

The Minister wants to get rid of all the pre-1st September 2007 applicants is what it comes down to. He moaned in the recent Hansard that he doesn't think the Immi criteria have been stringent enough since 1st September 2007. I don't know any of the details prior to the new visas that came into force on 1st September 2007 but according to the Minister, the provisions for the pre-1st September 2007 visas were even less stringent than the too-lax provisions since 1st September 2007 apparently.

 

The Minister told the other Senators that he was getting rid of all the pre-1st September 2007 applicants because "they were never going to get visas." According to me, that is rubbish. The only reason why they have not had their visas ages before now is because the Minister has been chopping and changing his plans ever since 17th December 2008 and he has deliberately engineered things so that the pre-1st September 2007 applicants have been left out in the cold. They haven't had their visas because he hasn't wanted them to have visas is what this really comes down to, in my view.

 

This means that when the number of visas set by the Minister for a visa class for the migration program year has been reached, no further visas can be granted in that program year --- Is this year 2007 ?

 

Again, don't confuse "cap & cease" with "cap & queue." You are quoting from the cap & queue stuff, which is not relevant to this issue.

 

********************************************************

 

I've also been complaining about some additional issues. However I am getting into a tangle with them because of various factors which I won't bore you with.

 

Hence I am getting a strong message of, "Stop trying to guess what will happen when you don't even understand the relevant law properly. Just shut up and wait. As soon as the Aussie lawyers are sure about which way to proceed, everyone else will be told what they say. For the moment the Aussie lawyers are not sure, so shut up and wait!"

 

Suddenly I wish I had a degree in Aussie law so that I could understand this issue better because it feels totally wrong to me that the "cap & kill" provisions should be used for no better purpose than to enable Minister Evans to do some Social Engineering between (a) the migrants that he really wants; (b) the migrants that he will have to put up with even if he doesn't want them because of the fear of a public spectacle; and © the migrants that he doesn't want and won't have.

 

Social Engineering is not the purpose of any statute that I really understand.

 

I don't know, Babboo. Maybe all Immigration Law is as peculiar as Aussie Immi Law seems to be? English Immi Law is an optional subject in the UK. I didn't do it and I've never been anywhere near it in practice, so I haven't a clue what it says.

 

Lots of things about Aussie Immi Law really annoy me, though, and this issue is one of them. One thing really sticks in my throat. According to S39, the Minister has to cap and cease ALL of the visas in a subclass or none of them. He has to finish with the entire subclass or with none of it.

 

His own lawyers have warned him that if he wants 100 doctors on sc 175 visas and 1,000 Nurses on sc 175 visas but no more than 100 of one and 1,000 of the other, the Migration Act 1958 does not give the Minister that power. The Minister is on the public record as saying that he intends to change the Migration Act in order to give himself the power to cherry-pick and to set different numbers of visas in the same subclass according to the occupations involved.

 

Right. So he accepts that he has to change the Migration Act in order to give himself the necessary powers to do that bit.

 

Let us go one step further. For the sake of my argument, both you and Dasalcedo have applied for the same visa (for argument's sake, the subclass 496 visa because any of them will do, I think.)

 

There is only ONE difference between you and Dasalcedo. It seems that he was a Student in Oz. For whatever reason he chose to apply for a subclass 496 offshore visa but he and his family have remained in Oz throughout, whilst Dasalcedo does one short course after another to while away the time.

 

You, on the other hand, have been offshore throughout. Sure, because you have been offshore, your family has not spent any real money in Oz and your wife and children have not settled in Oz, your children have not made new friends in Aussie schools etc.

 

There might be a million social reasons for treating you and Dasalcedo differently. (Not the least of which is that he might go and make a fuss in Canberra, whereas you probably won't.)

 

However is there any legal reason - any reason related to the sc 496 visa - for treating you and Dasalcedo differently from one another?

 

Do you see what I am driving at, Babboo?

 

Cheers

 

Gill

[Guest babboo]

Hi Babboo

 

I've raised some of the same points as you have. I have been told:

 

 

Exactly. I said exactly the same thing. I was told that S39 does not require exceptional circumstances. It merely requires that the Minister decides to use it.

 

I was also reminded that a week is a long time in politics (oops! I mean that a week is a long time when a country is supposedly recovering from a recession that it did not go into in the first place, of course....)

 

 

Don't get confused between the "cap & cease" provisions in S39 and the "cap & queue" provisions that are in a different section of the Migration Act. They are different concepts.

 

The Minister wants to get rid of all the pre-1st September 2007 applicants is what it comes down to. He moaned in the recent Hansard that he doesn't think the Immi criteria have been stringent enough since 1st September 2007. I don't know any of the details prior to the new visas that came into force on 1st September 2007 but according to the Minister, the provisions for the pre-1st September 2007 visas were even less stringent than the too-lax provisions since 1st September 2007 apparently.

 

The Minister told the other Senators that he was getting rid of all the pre-1st September 2007 applicants because "they were never going to get visas." According to me, that is rubbish. The only reason why they have not had their visas ages before now is because the Minister has been chopping and changing his plans ever since 17th December 2008 and he has deliberately engineered things so that the pre-1st September 2007 applicants have been left out in the cold. They haven't had their visas because he hasn't wanted them to have visas is what this really comes down to, in my view.

 

 

Again, don't confuse "cap & cease" with "cap & queue." You are quoting from the cap & queue stuff, which is not relevant to this issue.

 

********************************************************

 

I've also been complaining about some additional issues. However I am getting into a tangle with them because of various factors which I won't bore you with.

 

Hence I am getting a strong message of, "Stop trying to guess what will happen when you don't even understand the relevant law properly. Just shut up and wait. As soon as the Aussie lawyers are sure about which way to proceed, everyone else will be told what they say. For the moment the Aussie lawyers are not sure, so shut up and wait!"

 

Suddenly I wish I had a degree in Aussie law so that I could understand this issue better because it feels totally wrong to me that the "cap & kill" provisions should be used for no better purpose than to enable Minister Evans to do some Social Engineering between (a) the migrants that he really wants; (b) the migrants that he will have to put up with even if he doesn't want them because of the fear of a public spectacle; and © the migrants that he doesn't want and won't have.

 

Social Engineering is not the purpose of any statute that I really understand.

 

I don't know, Babboo. Maybe all Immigration Law is as peculiar as Aussie Immi Law seems to be? English Immi Law is an optional subject in the UK. I didn't do it and I've never been anywhere near it in practice, so I haven't a clue what it says.

 

Lots of things about Aussie Immi Law really annoy me, though, and this issue is one of them. One thing really sticks in my throat. According to S39, the Minister has to cap and cease ALL of the visas in a subclass or none of them. He has to finish with the entire subclass or with none of it.

 

His own lawyers have warned him that if he wants 100 doctors on sc 175 visas and 1,000 Nurses on sc 175 visas but no more than 100 of one and 1,000 of the other, the Migration Act 1958 does not give the Minister that power. The Minister is on the public record as saying that he intends to change the Migration Act in order to give himself the power to cherry-pick and to set different numbers of visas in the same subclass according to the occupations involved.

 

Right. So he accepts that he has to change the Migration Act in order to give himself the necessary powers to do that bit.

 

Let us go one step further. For the sake of my argument, both you and Dasalcedo have applied for the same visa (for argument's sake, the subclass 496 visa because any of them will do, I think.)

 

There is only ONE difference between you and Dasalcedo. It seems that he was a Student in Oz. For whatever reason he chose to apply for a subclass 496 offshore visa but he and his family have remained in Oz throughout, whilst Dasalcedo does one short course after another to while away the time.

 

You, on the other hand, have been offshore throughout. Sure, because you have been offshore, your family has not spent any real money in Oz and your wife and children have not settled in Oz, your children have not made new friends in Aussie schools etc.

 

There might be a million social reasons for treating you and Dasalcedo differently. (Not the least of which is that he might go and make a fuss in Canberra, whereas you probably won't.)

 

However is there any legal reason - any reason related to the sc 496 visa - for treating you and Dasalcedo differently from one another?

 

Do you see what I am driving at, Babboo?

 

Cheers

 

Gill

 

Ok so Gill, He is the Communist King maker and savior of Immigration fiasco. I am sure you are aware of the laws In India, UK and Australia are very similar as we were once a colony of the British( POMS):biggrin:... The constitution laws there and here are very similar. The minister needs to pass the legislation in the Parliament to have extra constitutional powers and I think the senate will not allow these powers to be handed to a minister if they are democrats -- as they say they are.

 

The Minister told the other Senators that he was getting rid of all the pre-1st September 2007 applicants because "they were never going to get visas."

 

The "REASON” given is that the criteria then was too easy. Maybe, but that’s irrelevant, DIAC set the standards and the Minister then who set the standards was elected democratically by the people of Australia . Additionally how many of those applicants could be assessed at a much higher score than the "easy" criteria? Just because the criteria was easier then does not mean that many are perhaps way over that standard in any case! How can you listen to such gibberish when you have not even assessed their applications.

 

 

Time an again you have hinted on a angle of being biased towards the applicants of HR countries. :arghh:

Ok so he is a Politician in the Rudd government and GOD(Queen Of England) save Australia.

Cheers

[rahulpatel1969]

Gill

 

This is a post i have taken from another thread http://www.pomsinoz.com/forum/migrat...changes-2.html posted by agents.

 

Want u r view on it.

 

For Virtual Bajwa

 

All skilled visas are meant to have the criterion that " grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year", which then brings them under the Section 39 power for the Minister to "Cap and Kill".

 

The 496 Designated area sponsored visa, used to be a permanent visa - subclass 139. For some reason, when the Subclass 496 replaced the 139 visa, the capping criterion was not carried forward by the drafter into the 496 regulations. Thus the 496 is the only skills visa that the Minister cannot cap under Section 39. I have read and re-read the legislation and I can't see it anywhere for the 496 visa.

 

So good news for Virtual Bajwa, it would seem.

 

Regards

 

Tony Coates

__________________

Migration Agent (not currently Registered)

www.overseas-emigration.co.uk

Direct telephone 0131 625 6922, Email tony@my-oe.com

[Guest Gollywobbler]

Hu Rahul

 

Tony Coates later qualified his initial reply very heavily.

 

He said that it appears that the Minister cannot use "cap & crease" with sc 496 applications. Sure, Tony might well be right for the time being but what if the Minister changes the law?

 

The last thing I heard was that Tony has written to the Policy people in DIAC, explaining that he doesn't think they can use "cap & cease" with the sc 496 visa, so what are DIAC's plans about this?

 

I am certain that DIAC's plans will consist of asking the DIAC legal team to examine the technical problem. If there is a technical stumbling block, the lawyers are likely to say one of the two following things:

 

1. The RMA is right. We think there is a technical problem. Your options are:

a. Put up with it and accept that you can't cap & cease the sc 496 visa; or

b. Change the law so that yu can cap & cease the visa.

 

OR

 

2. We think the agent is wrong. We think it will be OK to cap & cease the sc 496 visa.

 

The lawyers are not going to get dragged into making any of the decisions themselves. They will simply tell DIAC what they think the law is. It will then be up to DIAC to decide whether or not they want to discuss the situation with the Minister. If they consult him and he decides to alter the law, DIAC will give legal effect to the Minister's wishes.

 

If could be three or four months before Tony's question is answered and DIAC might decide not to answer him at all.

 

Cheers

 

Gill

[rahulpatel1969]

Do we/or our sponsors have the option for some sort of judicial review or appeal. After all this is retrospective channge while the whole while all the preseptember applications were being told they would be processed in due course of time. Man if someone else would have done it would they have not been dubbed as liars and cheats.

[Guest Gollywobbler]

Hi Babboo

 

The "REASON” given is that the criteria then was too easy. Maybe, but that’s irrelevant, DIAC set the standards and the Minister then who set the standards was elected democratically by the people of Australia . Additionally how many of those applicants could be assessed at a much higher score than the "easy" criteria? Just because the criteria was easier then does not mean that many are perhaps way over that standard in any case! How can you listen to such gibberish when you have not even assessed their applications.

 

I agree with you. The Minister's exact point was that according to him the pre-September 2007 visas were "too easy" to get. One of his biggest grumbles seems to be that he thinks that the English language requirements were too low with the old visas. I don't know whether they were or they weren't.

 

My view is that regardless of his personal opinions about whether or not the earlier visas were "too easy" to get, it is not Constitutional for him to try to alter the decisions made by a previous Minister for Immi if altering them means acting retrospectively to scrap the remaining applications.

 

Plus he only plans to scrap some of the remaining applications, he now says. My view is that he can't do that. If the old criteria were "too easy" then they were "too easy" regardless of the visa applicant's physical whereabouts today. The cap & Kill has to apply to ALL of the remaining applications or to NONE of them in my view.

 

I think the Minister is sailing far too close to the wind with this one. Whether the earlier visas were right or wrong is irrelevant. The Minister for Immi at the time was democratically elected by the people of Australia. The applicants for the visas then relied on the DIAC website or they relied on their RMAs but either way they made their applications in good faith, relying on what the law said at the time.

 

I don't believe that it is either democratic or constitutional to use S39 as a means of making retrospective changes to earlier law which was democratically and constitutionally made. If the Minister now dislikes the old law, that is just tough and he will just have to learn to live with his dislike of the old law, in my opinion.

 

The UK does not have a written, American-style Constitution. Australia does. I've never read it so I don't know what it says and I probably wouldn't understand it even if I did read it. It may be that the lawyers in Oz would play the Consitution card. Or they might decide simply to attack the strict law - I don't know which.

 

The MIA seems to have decided to cave in and to witter that at least the applicants will have "certainty." What????? The certainty of knowing that their visa applications will be scrapped and that the MIA intends to do exactly nothing about preventing that from happening????? Who are these MIA people? Do they farm their own land????

 

Personally I think the gaffe-prone MIA has put its foot into its mouth big style with its stupid assertion about "certainty."

 

I got the impression at the Senate Estimates Hearing that if it is necessary for the Minister to ask Parliament for permission to use the cap & cease provision to a limited extent (ie offshore applicants only) the other Senators would block it. I hope that they would throw it straight out but I don't know which way they would actually jump in practice and I don't know whether their permission will be needed in the first place.

 

My feeling is that the real challenge is likely to come from the Judges in the Aussie courts. They are not interested in re-election or in who wins the next Election, so I think the Judges can be trusted to apply some proper legal justice to the situation.

 

Cheers

 

Gill

[Guest Gollywobbler]

Do we/or our sponsors have the option for some sort of judicial review or appeal. After all this is retrospective channge while the whole while all the preseptember applications were being told they would be processed in due course of time. Man if someone else would have done it would they have not been dubbed as liars and cheats.

 

Hi there

 

Please read the WHOLE thread. I have made the point that the lawyers in Australia want to see the "cap & cease" letters from DIAC before they will feel able to say whether or not the Minister for Immi can be attacked through the Courts.

 

The letters are not expected to start reaching the applicants for another few weeks.

 

Have your brothers in Oz made a fuss to every Senator and every Federal MP that they can find? If not, I recommend a big fuss because I think the MPs will see that the Minister's ideas are not just and fair. Hopefully if the MPs support the offshore applicants - via supporting their onshore relatives - they can get the Minister to forget about trying to use S39 with anyone.

 

Cheers

 

Gill

[Guest Jamie Smith]

Personally I think the gaffe-prone MIA has put its foot into its mouth big style with its stupid assertion about "certainty."

 

Steady on Gill. MIA do more than you're aware of (haven't we traversed this route before?)

 

It was the MIA that got the temporary relief for the $100,000 bond applicants, that lobbied the Minister to relax criteria on the change of priority cases, that has highlighted drafting inconsistencies with the current legislation that DIAC have agreed to sort out, the list goes on.

 

For all we know the "certainty" was tongue in cheek.

[Guest babboo]

Hi Babboo

 

I agree with you. The Minister's exact point was that according to him the pre-September 2007 visas were "too easy" to get. One of his biggest grumbles seems to be that he thinks that the English language requirements were too low with the old visas. I don't know whether they were or they weren't.

 

My view is that regardless of his personal opinions about whether or not the earlier visas were "too easy" to get, it is not Constitutional for him to try to alter the decisions made by a previous Minister for Immi if altering them means acting retrospectively to scrap the remaining applications.

 

Gill

 

Hi !

I don't know about others- but in our case it was a minimum of 6 Bands/points -- Speaking, writing, listening and reading.

[Joana]

Hi Babboo

 

I'm not an Immigration lawyer or a migration agent but in case none of them answer you, the feedback that I am hearing is this:

 

DIAC have already caved in and said that there will be no "cap & cease" applied where the applicant is already in Australia - as is Dasalcedo. DIAC say that the remaining applicants such as yourself will start to receive letters in March 2010 or so, saying that S39 (the cap & cease provision) has been applied to your application. Presumably they will return the entire application to you - ie the whole bundle originally sent to DIAC, and I think all of them were on paper - and they will also send a DIAC cheque which will be the refund of your application fee.

 

.............

 

Hi there

 

My sister has an offshore 2007 application, she was given a case officer in december 2008, requested to submit medical results whcih she did by the end of 2008 and now it appears she will have the visa capped. I contacted the Department 2 days ago after the Minister set the number of visas for 2009-2010 by legislative instrument. They even did not announce on their website that the pre september 2007 capping no has been finalized. I was told over the phone that in the next month we will receive a letter toghether with the application fee, my sister's visa was not processed because her occupation is not on the Critical List.

 

As I understand from the recent legislative changes...the current s 39 only gives the Minister the power to capp and terminate a class or subclass of visas in its entirety . he cannot diferentiate between the applicants on other characteristics such as occupation. the current s 39 is not an effective tool for the Minister and because of this the new Bill was proposed.

 

Can anyone answer the how can they capp my sister application because her occupation is not on the Critical List? This seems doggy to me. And doggy is the fact that they invoked easier standards for pre september 2007. In fact, if my sister had applied after september 2007 she would have gained more points because she had a high english score. This was the only thing they changed in the points sitem after September 2007. They have allocated more points for those with a higher English score. I think it is grossly unfair for those people, offshore or onshore applicants who were so close to obtain a visa after complying with all the requirements ......to have their application returned. To apply the law retrospectivly without even being given the chance to have the decision rewied it is a denial of natural justice and law principles.

 

Why should these people pay for the Department ignorance and negligence to implement effective immigration rules? The have continued to receive applications even if they had the signal that ..........there are too many and they cannot increase the number of visas granted.

 

I was also told by a migration barrister that ............it is unlikely that these offshore applicants will be able to challenge the decision. Nobody cares about them and Australia does not need them any more. And the new Bill will probably pass because they need to "solve the problem" .

 

JO