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Subclass 175, 176, 475 new discussion thread

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keep it up GAGAN, nothing comes easily.count me ,i m also a severe victim of s39 but have difference of 5 years.it was june 2010 when i was deeply sorrowed by this action taken by prev labor's dictator immi minister chris evans.he used it only because they doesnt want more immigrants to be selected under liberal policies.so they choose a non-humanitarian and cheap way to get rid of all pre sept applicants and now LIBERAL has only revoke this instrument again to remind of labor;s injustice .in fact ,by this they also want this instrument to b vanished now.that is possible only if people challenge instrument 39 in any way .fact behind to me is LIBERAL'S support of anti asylum policy coz they always encouraged skilled people over asylum .but opposition have halted their efforts toward stopping boat migration in court .so now they are using labor's own weapon of cap and cease against them through igniting the buried agenda.but my point of view in reality they r defending ours through back door to stand against .

fight for right is nature of brave hearted.

 

Thanks and we will fight together. I have PM you.

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I am so glad i have just seen this discussion ! I am supposed to be sitting my vetassess on Tuesday but am i basically just wasting my time ? wish i known all this before ive spent over 4 grand

 

any help be great please

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I don't know if I can help anything.

I am also a victim applied 176 Mar 2009 and received the Cap and Cease Letter.

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I havent submitted my application yet , i am sitting my vetasses on Tuesday and my Ielts in a couple of weeks then i was going to submit my application but after reading through this it doesnt sound as if i have a hope in hell of getting my visa granted !!

 

it starting to feel as if ive wasted so much time and money now , i dont know what to think ??

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I havent submitted my application yet , i am sitting my vetasses on Tuesday and my Ielts in a couple of weeks then i was going to submit my application but after reading through this it doesnt sound as if i have a hope in hell of getting my visa granted !!

 

it starting to feel as if ive wasted so much time and money now , i dont know what to think ??

 

Well..you are aware that this thread is in reference to visa subclasses that are no longer in existence and that the applications in question go back to 5 or 6 years ago? You are a new applicant and from what I understand people who are applying are satisfied with the process. What we had to deal with is that new laws were retroactively applied to our applications which were submitted under different rules in existence at the time. History can repeat itself but I do not expect that you will have that kind of issue.

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I have just checked and i think mine would come under 189 visa

 

Im really sorry to hear about all the trouble everyone has been through what a joke ! shocking

 

Hope everyone gets theres issues resolved asap

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Spare a thought for RMAs who have to write - regret to advise... to dozens of clients who are looking for someone to blame and expect refunds for English tests, skills assessments, professional fees and so on.

 

Note:

 

[h=3]MIGRATION ACT 1958 - SECT 39[/h]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 ofvisas of that class granted in a particular financial year to exceed whatevernumber is fixed by the Minister, by legislative instrument, as the maximumnumber of such visas that may be granted in that year (however the criterionis expressed).

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

 

Further NOTE:

This provision has been applied arbitrarily.

 

Over the years, numerous visa subclasses have reached the 'planning level' and have been held over to the next year.

 

There is a legal precept that laws must be applied consistently and possibly a TOP GUN barrister might find a remedy here.

 

 


Westly Russell Registered Migration Agent 0316072 www.pinoyau.com

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This is indeed a tragic news for good chunk of us. If you need more members for the Lawyers please count me in.

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So then why did you and others not pursue a legal option at least three years ago if not 5 years ago whenever it became clear to everybody that new laws were being applied retroactively? How is now the time? Even if you successfully challenge the cap and cease, you simply revert back to priority processing and most people impacted the most were 176 FS offshore which were not getting processed at all during the last 6 years until only maybe recently. At that pace, it might have been another 10 years, 20 years...who knows...

 

The cap and cease at least allows for a possible recovery of fees paid for an application that the Australian government had no sincere interest in processing anyway prior to the cap and cease announcement.

 

I understand the desire for legal action in this matter..but not because of cap and cease but rather the whole concept of applications not being processed under the law as it existed at the time.

We did not think of a legal battle earlier, because we thought they will process our applications one fine day. But now our hopes are gone.

Now is the time to fight this. I will contribute to this wholeheartedly even if they do not consider my application, but some of our team members ,at least 1 of us get the benefit of our effort.

I am in need to migrate to Australia. But if I can become a seed and help someone else , I would not be reluctant to do so. Even if they decide to process 10 applications per year, 10 of us will full fill their desire.

I do not try to offend you. I respect your view. At the same time I wish to support this fight and become a candle even to future applicants.

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We did not think of a legal battle earlier, because we thought they will process our applications one fine day. But now our hopes are gone.

Now is the time to fight this. I will contribute to this wholeheartedly even if they do not consider my application, but some of our team members ,at least 1 of us get the benefit of our effort.

I am in need to migrate to Australia. But if I can become a seed and help someone else , I would not be reluctant to do so. Even if they decide to process 10 applications per year, 10 of us will full fill their desire.

I do not try to offend you. I respect your view. At the same time I wish to support this fight and become a candle even to future applicants.

 

You r the true soul.for himself is everyone but good people always ready to do for cumminty whatever they can

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We did not think of a legal battle earlier, because we thought they will process our applications one fine day. But now our hopes are gone.

Now is the time to fight this. I will contribute to this wholeheartedly even if they do not consider my application, but some of our team members ,at least 1 of us get the benefit of our effort.

I am in need to migrate to Australia. But if I can become a seed and help someone else , I would not be reluctant to do so. Even if they decide to process 10 applications per year, 10 of us will full fill their desire.

I do not try to offend you. I respect your view. At the same time I wish to support this fight and become a candle even to future applicants.

 

No offense was ever taken. I was just understanding what you or others believe the legal outcomes would be and the practical impact. There is of course the reality that some will not qualify under the current visa subclass options and then there is the lost time of course which is difficult to put a value on so a legal option is a last desperate attempt to keep the applications alive. But, I would restate that legal action would have made a bigger difference when the changes were first implemented and retroactively applied. Good luck...

Edited by westwoodwizard

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No offense was ever taken. I was just understanding what you or others believe the legal outcomes would be and the practical impact. There is of course the reality that some will not qualify under the current visa subclass options and then there is the lost time of course which is difficult to put a value on so a legal option is a last desperate attempt to keep the applications alive. But, I would restate that legal action would have made a bigger difference when the changes were first implemented and retroactively applied. Good luck...

 

Drowning man catches at a straw

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Drowning man catches at a straw

 

Agreed...desperate times call for desperate measures. However, I have actually mentioned one option but nobody comments on it. Attend a degree program at an Australian University. It is the quickest way to get there and to be able stay there for at least a few years. Student visas are non-immigrant visas of course but maybe by the time the person graduates they will have found a job with an employer sponsored visa or another way to stay. I know it is a costly way because of tuition and fees but it would at least afford the person a chance at their dream of moving to and possibly settling down in Australia (and for that matter any country that a person so chooses to want to move to...going as a student is always the quickest and easiest way to live in another country).

 

What do you think?

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As you knew we already wasted 6-7 years, some of us might be too old for couple more years of study. While under student visa you can't really get a proper job or earn enough to support your entire family living in Australia. It might bring great burden to your sponsor to prolong your stay and study.

 

Anyway, no doubt this is one of the alternative solution to move to Australia, but provided you still able to coupe with the study while working a part-time job, at your current age.

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Spare a thought for RMAs who have to write - regret to advise... to dozens of clients who are looking for someone to blame and expect refunds for English tests, skills assessments, professional fees and so on.

 

Note:

 

[h=3]MIGRATION ACT 1958 - SECT 39[/h]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 ofvisas of that class granted in a particular financial year to exceed whatevernumber is fixed by the Minister, by legislative instrument, as the maximumnumber of such visas that may be granted in that year (however the criterionis expressed).

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

 

Further NOTE:

This provision has been applied arbitrarily.

 

Over the years, numerous visa subclasses have reached the 'planning level' and have been held over to the next year.

 

There is a legal precept that laws must be applied consistently and possibly a TOP GUN barrister might find a remedy here.

 

 

 

Can you please suggest who will be a suitable Top Gun barrister to help us in this case. The point you have made has been made by Migration Institute of Australia in an article on our cases in Inside Story, pasting the their opinion here:

After this article was published, the Migration Institute of Australia contacted Inside Story to say that it has obtained expert legal opinion that the legislative power Senator Cash used to cease and refund the visa applications is not valid. According to this opinion, Section 85 of the Migration Act 1958 only allows the minister to determine the number of visas that will be granted in a financial year. Remaining applications are usually “queued” for allocation in later years. The Explanatory Statement to the Minister’s Determination attempts to convert the unallocated applications to the status of “never being made” using section 39(2) of the Act. The legislative authority under section 85 does not have the power to “kill” outstanding applications. To have this effect, the section 39 power to “cap and cease” needed to be expressly stated in the Ministerial Determination (which it was not). As a result, the MIA believes that the minister will have to make a new legislative instrument if the government wants to cease outstanding visa applications in the affected subclasses.

 

We too believe we have a case, we just need to find the right person to prove it for us, and being offshore, we have a bit of problem so will Appreciate any help from any expert here. PLEASE ADVICE US ON THIS. thanks a million for some very disappointed and desperate lot.

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Gangan, please inbox me details of the legal action. I still need to discuss with my husband but I am not going to ask for my refund at this stage as I am interested in joining the action as we have absolutely nothing to lose.

It is vital that we get the word out - perhaps via social media also - that people who want to join the legal action must not apply for their refunds.

I'm 176 Off Shore (South Africa) lodged in May 2010.

Edited by Celeste

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As you knew we already wasted 6-7 years, some of us might be too old for couple more years of study. While under student visa you can't really get a proper job or earn enough to support your entire family living in Australia. It might bring great burden to your sponsor to prolong your stay and study.

 

Anyway, no doubt this is one of the alternative solution to move to Australia, but provided you still able to coupe with the study while working a part-time job, at your current age.

 

I am not in the position to study either after the last 6 years. Could I do it? Sure...but...as you describe the ground realities, going as a student is better suited for somebody who is single and preferably young.

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I am not in the position to study either after the last 6 years. Could I do it? Sure...but...as you describe the ground realities, going as a student is better suited for somebody who is single and preferably young.

 

There are also VERY few courses that would allow a person to stay in Australia post qualification as most occupations require several years post qualification work experience

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Gangan, please inbox me details of the legal action. I still need to discuss with my husband but I am not going to ask for my refund at this stage as I am interested in joining the action as we have absolutely nothing to lose.

It is vital that we get the word out - perhaps via social media also - that people who want to join the legal action must not apply for their refunds.

I'm 176 Off Shore (South Africa) lodged in May 2010.

 

 

Hi Celeste,

 

I have inboxed you my email kindly email me so that I can keep you in loop as we are gathering more and more members acrosst he world..Wew ill win this and filing a legal battle.

 

Thanks

Gagandeep Singh

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Can you please suggest who will be a suitable Top Gun barrister to help us in this case. The point you have made has been made by Migration Institute of Australia in an article on our cases in Inside Story, pasting the their opinion here:

After this article was published, the Migration Institute of Australia contacted Inside Story to say that it has obtained expert legal opinion that the legislative power Senator Cash used to cease and refund the visa applications is not valid. According to this opinion, Section 85 of the Migration Act 1958 only allows the minister to determine the number of visas that will be granted in a financial year. Remaining applications are usually “queued” for allocation in later years. The Explanatory Statement to the Minister’s Determination attempts to convert the unallocated applications to the status of “never being made” using section 39(2) of the Act. The legislative authority under section 85 does not have the power to “kill” outstanding applications. To have this effect, the section 39 power to “cap and cease” needed to be expressly stated in the Ministerial Determination (which it was not). As a result, the MIA believes that the minister will have to make a new legislative instrument if the government wants to cease outstanding visa applications in the affected subclasses.

 

We too believe we have a case, we just need to find the right person to prove it for us, and being offshore, we have a bit of problem so will Appreciate any help from any expert here. PLEASE ADVICE US ON THIS. thanks a million for some very disappointed and desperate lot.

 

Hi Arshad,

 

Lets get together I have inboxed you my email ...kindly email me so that I can keep you in loop, we gonna definately win it

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Hi Guys. I admire your determination to succeed and challenging DIBP's decision. I can totally understand your disappointment in relation to the Cap n Cease. It was a shocking decision and I feel your pain. However, as someone who also has a genuine interest and have done some research on the topic, I would like you guys to consider this, saying you spent $10k each on legal cost and 12 months later you win. DIBP then put you back in the processing queue again that might take another 10 or 20 years to process. I understand that there are up to 18000 applicants affected by the Cap and Cease so we are talking about a large number here. So would you want to live your life with such uncertainty or it is better to move on with life or find a different visa classes. Not to mention the cost involved and the toll on your family.

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You may be right. Or they could win and receive instant processing and or compensation. Its a tough decision to make and can take time and money. But it may be worth it for some win or lose.

You have to be in it to win it or you have already lost.

 

Hi Guys. I admire your determination to succeed and challenging DIBP's decision. I can totally understand your disappointment in relation to the Cap n Cease. It was a shocking decision and I feel your pain. However, as someone who also has a genuine interest and have done some research on the topic, I would like you guys to consider this, saying you spent $10k each on legal cost and 12 months later you win. DIBP then put you back in the processing queue again that might take another 10 or 20 years to process. I understand that there are up to 18000 applicants affected by the Cap and Cease so we are talking about a large number here. So would you want to live your life with such uncertainty or it is better to move on with life or find a different visa classes. Not to mention the cost involved and the toll on your family.

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Sometimes I suspect DIBP officials logged in this forum as applicants to discourage us moving forward . Anyway as I mentioned earlier, we have to give it a try. As you say It is worth either we win or loose.

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I would urge anybody here in this forum not to give up and apply for refund. Just don't give up we are increasing day by day in numbers and will be close to a specified target as mentioned by some lawyers. We have a case in hand and we'll win. You can PM me if you want further details and I can give you my email address thanks....

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Gangan, please inbox me details of the legal action. I still need to discuss with my husband but I am not going to ask for my refund at this stage as I am interested in joining the action as we have absolutely nothing to lose.

It is vital that we get the word out - perhaps via social media also - that people who want to join the legal action must not apply for their refunds.

I'm 176 Off Shore (South Africa) lodged in May 2010.

 

Celeste..if you do decide to challenge this. Please ensure that you at least make it clear to whoever you hire what your goals are. Do not limit your action to the cap and cease. The cap and cease is just more evidence of bad faith. Go after the whole problem of priority processing which was retroactively applied to your applications (as it was many others including mine).

 

In other words, the resolution you need is one in which your applications are reinstated and immediately allocated to case officers as the entire process was unconscionable and flies in the face of public policy and what any reasonable or objective person would have believed when they filed their applications. Settling for a reversal of cap and cease should not be good enough because you will just go back to the situation as it existed last week which is a snail's pace of processing and caps which can be set so low as to practically mean applications will not get processed for another 30 years or so. In other words, go after a solution that yields the result you actually want which is your application to be processed and a decision made one way or the other.

Edited by westwoodwizard
grammar

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