westwoodwizard Posted September 27, 2015 Share Posted September 27, 2015 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. Wrong...move forward all you wish...but pursue an outcome that makes sense..not just a reversal of cap and cease...you have to go after the entire priority processing scheme as well that was implemented retroactively. Your goal should be to force DIBP to immediately allocated all outstanding applications to a case officer for processing and a final decision one way or the other. If you just win a reversal of cap and cease, DIBP will just continue with priority processing and set some ridiculously low cap...in which you and most others will be waiting for another 20 or 30 years. Quote Link to comment Share on other sites More sharing options...
Celeste Posted September 27, 2015 Share Posted September 27, 2015 Wrong...move forward all you wish...but pursue an outcome that makes sense..not just a reversal of cap and cease...you have to go after the entire priority processing scheme as well that was implemented retroactively. Your goal should be to force DIBP to immediately allocated all outstanding applications to a case officer for processing and a final decision one way or the other. If you just win a reversal of cap and cease, DIBP will just continue with priority processing and set some ridiculously low cap...in which you and most others will be waiting for another 20 or 30 years. Thanks Westwoodwizard, that is good advice indeed. Are you also thinking of joining in the challenge? Quote Link to comment Share on other sites More sharing options...
Arshad Posted September 27, 2015 Share Posted September 27, 2015 Wrong...move forward all you wish...but pursue an outcome that makes sense..not just a reversal of cap and cease...you have to go after the entire priority processing scheme as well that was implemented retroactively. Your goal should be to force DIBP to immediately allocated all outstanding applications to a case officer for processing and a final decision one way or the other. If you just win a reversal of cap and cease, DIBP will just continue with priority processing and set some ridiculously low cap...in which you and most others will be waiting for another 20 or 30 years. Totally agree with you here, we will go for an order for immediate grants, otherwise if we are made to wait, they will bring another order to stop us. Everyone else, pls if there is anyone in the same situation as us and wants to join us, pls send a message to me or Gagan, and others, pls keep the advises coming and pray for us all. Quote Link to comment Share on other sites More sharing options...
westwoodwizard Posted September 27, 2015 Share Posted September 27, 2015 Thanks Westwoodwizard, that is good advice indeed. Are you also thinking of joining in the challenge? Celeste...unfortunately I have a classic no-answer of "unsure" because all of the references to lawyers and legal action never have specifics. Who are the lawyers and what have they said, what do they think can be accomplished which in this case has to be immediate allocation of applications for processing and a decision, how much time and of course how much money. The people who say they have spoken to a lawyer and are seeking class action...please be specific! Finally, like many, I have long ago moved on. I was still interested in having my application processed and approved but not at all costs of time and money. I need to be convinced that a lawyer has at least a fair chance at accomplishing the prime objective. If somebody just tells me they have a class action going to reverse the cap and cease...I am not interested in joining such an action. Quote Link to comment Share on other sites More sharing options...
Kwazii Cat Posted September 28, 2015 Share Posted September 28, 2015 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. Are you for real mate? Do you really think DIBP is scared of your potential class action to a point that they have their officials logged in to discourage you? You are emotionally charged and not even thinking straight, not an ideal state of mind you would like to be when you are about to spend big money embarking on a complicated legal process. I was merely trying to alert you to a possible outcome which may not be satisfactory even if you manage to have the cap and cease squashed, providing that you win of course. I'm not against taking legal action, just advocating for my fellow applicants to keep cool heads, research and study the topic well before jumping on the band wagon and putting themselves through another six years of uncertainty as well as the higher financial burden this time round. Please respect that not all of us have the same financial capability nor our life circumstances. Start doing some research, read well and make informed decisions, pro or against taking legal action. You can start with this neutral article below from Swinburne University. http://www.swinburne.edu.au/media-centre/news/2015/09/immigrations-disappearing-visa-applicants.htm Westwoodwizard and I are trying to add to the knowledge base constructively to the benefit of other members. Please read more and think clearly before you start blasting away and dragging other grief stricken applicants down the barrel. Quote Link to comment Share on other sites More sharing options...
mumofCD Posted September 28, 2015 Share Posted September 28, 2015 Gagan, send me the details. I am my brother's sponsor. I have already emailed the immigration minister. But we need to act ASAP Quote Link to comment Share on other sites More sharing options...
Bungo Posted September 28, 2015 Share Posted September 28, 2015 I do not agree with cap and cease and the requirements to get a refund that somebody described really are absurd, bordering on criminal in fact - I have never felt the need to store photocopies of my old credit cards! But I do feel that legal action is futile. How can non citizens and non-residents take an unrelated country to court and demand that they process a visa application? I don't think anybody succeeded last time there was a cap and cease? As hard as it may be, the best thing to do is probably just accept it and move on with life. Quote Link to comment Share on other sites More sharing options...
suraweeraneil Posted September 28, 2015 Share Posted September 28, 2015 I do not agree with cap and cease and the requirements to get a refund that somebody described really are absurd, bordering on criminal in fact - I have never felt the need to store photocopies of my old credit cards! But I do feel that legal action is futile. How can non citizens and non-residents take an unrelated country to court and demand that they process a visa application? I don't think anybody succeeded last time there was a cap and cease? As hard as it may be, the best thing to do is probably just accept it and move on with life. That has to be decided by a lawyer. If he feels we do not have a better standing at the courts, Our sponsors can come forward and fight the battle. As far as I know, last time nobody challenge it in courts. Only one person complaint to the tribunal which has no power to overthrow ministers decision. Also they introduced cap and cease for the applicants who applied within 2 years of the effective date. So, they might not bother to challenge it. Quote Link to comment Share on other sites More sharing options...
Bungo Posted September 28, 2015 Share Posted September 28, 2015 That has to be decided by a lawyer. If he feels we do not have a better standing at the courts, Our sponsors can come forward and fight the battle.As far as I know, last time nobody challenge it in courts. Only one person complaint to the tribunal which has no power to overthrow ministers decision. Also they introduced cap and cease for the applicants who applied within 2 years of the effective date. So, they might not bother to challenge it. Does it really take a lawyer to tell you this is futile? So I decide I want to move to Japan or Brazil or any other random country tomorrow, but they don't want to give me a visa. You think I have a case in court? Do you think I can make them accept me? I do not. I do think that moving the goal posts in terms of these applicants is mean and immoral even, but illegal? For your own mental well being, you might just have to let this go. What is that quote.. God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference. Quote Link to comment Share on other sites More sharing options...
Arshad Posted September 28, 2015 Share Posted September 28, 2015 (edited) I do not agree with cap and cease and the requirements to get a refund that somebody described really are absurd, bordering on criminal in fact - I have never felt the need to store photocopies of my old credit cards! But I do feel that legal action is futile. How can non citizens and non-residents take an unrelated country to court and demand that they process a visa application? I don't think anybody succeeded last time there was a cap and cease? As hard as it may be, the best thing to do is probably just accept it and move on with life. in our case it is not futile because we are family sponsored by Australian citizens and our sponsors, Australian tax payers and voters are ready to support and fight with us. Plus, they processed all other applications except for offshore family sponsored, even most offshore independent applicants have got their grants. And they have made us wait up to 7 years, thereby making us Ineligible in terms of age to apply. they wasted our time. and if they can process other Category 5 applicants, they should give us a fair chance too! Kwazii Cat and westwoodwizard you are welcomed to share your views with us, and yes, we are a bit charged up, but personally i think a different point of view is a welcomed thing as it keeps you grounded so westwoodwizard, your comments make a lot of sense, i fully understand them and appreciate them. I am glad you have moved on, sadly I waited... At the moment we have nothing final, except that we intend to fight with the best means available to us, as you said research is needed, so that's been done about lawyers and possibility of action and outcomes. in the meantime we appreciate all the support we are getting, we are trying to generate awareness of what has been done to us through media, social media and almost all of us have sent multiple mails individually to all possible officials and departments, Personally i have nothing more to lose, but I do have a chance to win - get a grant if we plan and act wisely - as for spending more money, well, money can be earned again but for those who have grown older in these 7 years, we can't get points for our age if we apply again so this is our only chance and we plan to take it. Edited September 28, 2015 by Arshad Quote Link to comment Share on other sites More sharing options...
VERYSTORMY Posted September 28, 2015 Share Posted September 28, 2015 That has to be decided by a lawyer. If he feels we do not have a better standing at the courts, Our sponsors can come forward and fight the battle.As far as I know, last time nobody challenge it in courts. Only one person complaint to the tribunal which has no power to overthrow ministers decision. Also they introduced cap and cease for the applicants who applied within 2 years of the effective date. So, they might not bother to challenge it. As mentioned though, even if they agree to reverse the decision, I strongly suspect that they will lump you in with the other family visas and give you a processing time of 56 years Quote Link to comment Share on other sites More sharing options...
Bungo Posted September 28, 2015 Share Posted September 28, 2015 in our case it is not futile because we are family sponsored by Australian citizens and our sponsors, Australian tax payers and voters are ready to support and fight with us. Plus, they processed all other applications except for offshore family sponsored, even most offshore independent applicants have got their grants. And they have made us wait up to 7 years, thereby making us Ineligible in terms of age to apply. they wasted our time. and if they can process other Category 5 applicants, they should give us a fair chance too! That doesn't make sense. Even Australian citizens cannot demand that Australian immigration lets non immediate family members into the country. Never has. And I doubt very much that the average taxpayer would even be aware of this legislation, never mind care about it. And I do think it is very mean, you do not need to convince me of that. My comments are only because I hate to see people waste even more of their time on this. Quote Link to comment Share on other sites More sharing options...
Kwazii Cat Posted September 28, 2015 Share Posted September 28, 2015 You are spot on mate. There has to be a clear objective which is to get DIBP to process all affected applications within a certain time frame, say between one to two years. Otherwise you will only end up wasting time and money. The last thing you want is a drawn out legal battle with DIBP. May I also remind members that Senator Cash didn't just go to sleep one night and decided to apply Cap and Cease the next morning. She ought to have consulted her legal team and advisers to ensure she would be acting within the law of Australia. There is no questions that you guys are hard done by in this case. However, it doesn't guarantee you will get the result you seek in court. Ask yourself this question, could the money needed for the class action be better spent on finding other avenues to migrate to Australia or perhaps to another country? Quote Link to comment Share on other sites More sharing options...
suraweeraneil Posted September 28, 2015 Share Posted September 28, 2015 As mentioned though, even if they agree to reverse the decision, I strongly suspect that they will lump you in with the other family visas and give you a processing time of 56 years That means you believe that we have a chance to win. great, Quote Link to comment Share on other sites More sharing options...
suraweeraneil Posted September 28, 2015 Share Posted September 28, 2015 in our case it is not futile because we are family sponsored by Australian citizens and our sponsors, Australian tax payers and voters are ready to support and fight with us. Plus, they processed all other applications except for offshore family sponsored, even most offshore independent applicants have got their grants. And they have made us wait up to 7 years, thereby making us Ineligible in terms of age to apply. they wasted our time. and if they can process other Category 5 applicants, they should give us a fair chance too! Kwazii Cat and westwoodwizard you are welcomed to share your views with us, and yes, we are a bit charged up, but personally i think a different point of view is a welcomed thing as it keeps you grounded so westwoodwizard, your comments make a lot of sense, i fully understand them and appreciate them. I am glad you have moved on, sadly I waited... At the moment we have nothing final, except that we intend to fight with the best means available to us, as you said research is needed, so that's been done about lawyers and possibility of action and outcomes. in the meantime we appreciate all the support we are getting, we are trying to generate awareness of what has been done to us through media, social media and almost all of us have sent multiple mails individually to all possible officials and departments, Personally i have nothing more to lose, but I do have a chance to win - get a grant if we plan and act wisely - as for spending more money, well, money can be earned again but for those who have grown older in these 7 years, we can't get points for our age if we apply again so this is our only chance and we plan to take it. I fully agree with you. Quote Link to comment Share on other sites More sharing options...
insizer Posted September 28, 2015 Share Posted September 28, 2015 As mentioned though, even if they agree to reverse the decision, I strongly suspect that they will lump you in with the other family visas and give you a processing time of 56 years No sense to assume this.now EOI is opreational, so DIBP could process these sipping morning stuff Quote Link to comment Share on other sites More sharing options...
insizer Posted September 28, 2015 Share Posted September 28, 2015 (edited) Dear kwazi cat Ur link has not been working.was there something invalid. Edited September 28, 2015 by insizer Quote Link to comment Share on other sites More sharing options...
Kwazii Cat Posted September 28, 2015 Share Posted September 28, 2015 Dear kwazi cat Ur link has not been working.was there something invalid. Hi Insizer. Sorry, I don't know why it isn't working. Anyway, if you google Swinburne Cap and Cease, it will come up on top of the page. The article is called Immigration's Disappearing Visa Applicants by Alyx Williams. I hope it helps give you a balance view on the matter. Quote Link to comment Share on other sites More sharing options...
suraweeraneil Posted September 28, 2015 Share Posted September 28, 2015 You are spot on mate. There has to be a clear objective which is to get DIBP to process all affected applications within a certain time frame, say between one to two years. Otherwise you will only end up wasting time and money. The last thing you want is a drawn out legal battle with DIBP. May I also remind members that Senator Cash didn't just go to sleep one night and decided to apply Cap and Cease the next morning. She ought to have consulted her legal team and advisers to ensure she would be acting within the law of Australia. There is no questions that you guys are hard done by in this case. However, it doesn't guarantee you will get the result you seek in court. Ask yourself this question, could the money needed for the class action be better spent on finding other avenues to migrate to Australia or perhaps to another country? If they do, then Government should not loose any case in courts. Even with the asylum seekers. Quote Link to comment Share on other sites More sharing options...
suraweeraneil Posted September 28, 2015 Share Posted September 28, 2015 (edited) That doesn't make sense. Even Australian citizens cannot demand that Australian immigration lets non immediate family members into the country. Never has. And I doubt very much that the average taxpayer would even be aware of this legislation, never mind care about it. Frankly, I do not know to differentiate this. My sponsor is my brother, Am I a non immediate family member or not? Edited September 28, 2015 by MaggieMay24 Fixing quote Quote Link to comment Share on other sites More sharing options...
Kwazii Cat Posted September 28, 2015 Share Posted September 28, 2015 (edited) If they do, then Government should not loose any case in courts. Even with the asylum seekers. Mate, why would you compare yourself to an asylum seeker? They tried to come to Australia to seek refuge from wars and persecutions in their home countries. I know for some asylum seekers, fleeing wars is just a pretext in order to come to a wealthy country like Australia and Germany, but under the UN Charters which Australia is a part of, it has an obligation to consider their claims whether they will ever be able to settle in Australia or not we don't know yet. Plenty of them are stuck on Manus and Nauru for many years now. Your application for skilled migration is totally different. For those who are determined to launch class action, please go ahead and I wish you luck. But for those who are at this stage unsure, but able and willing to research, think clearly and neutrally before making an informed, well balanced decisions, please read on, I have done further research for you as this cap and cease isn't the first and you are certainly not the first lot to try to challenge it. Challenging “Cap and Cease” Letters The contents of this article are correct as at 23 July 2010. Recently, some applicants for certain skilled migration visas (for example, subclasses 136, 138 and 139) have received “cap and cease” letters from DIAC, stating that their particular visa category has been capped and that consideration of their applications will cease. If legally correct, the consequence of this practice is that the visa application is taken to have never been lodged. While the applicant is entitled to a refund of their visa application fee, the “termination” of their application means that it cannot be challenged before the Migration Review Tribunal. There has been some suggestion that the legality of the “cap and cease” letters could be challenged, based on the legal principles of legitimate expectation or estoppel. Some argue that section 65 of the Migration Act creates a legitimate expectation regarding how DIAC will exercise their powers. That is, visa applicants are led to expect that once they have lodged a valid visa application, the Minister or DIAC will consider and determine their application. Since the “cap and cease” practice precludes this from happening, there may the possibility of legally challenging this decision. However, it is not clear that such a challenge would be successful. This is because the High Court of Australia has previously said that a validly changed law will not give rise to a legal claim, even for a person disadvantaged by that change (Peverill’s case). A possible alternative challenge could be based on the principle of estoppel which sets out that if legislation (such as the Migration Act) provides that a particular circumstance has a particular consequence, nothing a public servant does can override the legislation. If argued successfully, the Minister may be stopped from ceasing to process the applications. However, this challenge is also likely to be a difficult and drawn-out process. In our view, any challenge against the legality of “cap and cease” letters will be extremely difficult and is likely to be quite expensive. If you have any questions concerning “cap and cease” letters, please click this link to contact Visa Lawyers Australia. I hope it helps. Edited September 28, 2015 by Kwazii Cat Typos Quote Link to comment Share on other sites More sharing options...
Arshad Posted September 28, 2015 Share Posted September 28, 2015 As mentioned though, even if they agree to reverse the decision, I strongly suspect that they will lump you in with the other family visas and give you a processing time of 56 years you are right, they can, nothing is past these whimsical lawmakers, but we need to try, we will do what we can do and they will do what they can ... let the result be for our best! Quote Link to comment Share on other sites More sharing options...
Arshad Posted September 28, 2015 Share Posted September 28, 2015 (edited) Challenging “Cap and Cease” Letters The contents of this article are correct as at 23 July 2010. Recently, some applicants for certain skilled migration visas (for example, subclasses 136, 138 and 139) have received “cap and cease” letters from DIAC, stating that their particular visa category has been capped and that consideration of their applications will cease. If legally correct, the consequence of this practice is that the visa application is taken to have never been lodged. While the applicant is entitled to a refund of their visa application fee, the “termination” of their application means that it cannot be challenged before the Migration Review Tribunal. There has been some suggestion that the legality of the “cap and cease” letters could be challenged, based on the legal principles of legitimate expectation or estoppel. Some argue that section 65 of the Migration Act creates a legitimate expectation regarding how DIAC will exercise their powers. That is, visa applicants are led to expect that once they have lodged a valid visa application, the Minister or DIAC will consider and determine their application. Since the “cap and cease” practice precludes this from happening, there may the possibility of legally challenging this decision. However, it is not clear that such a challenge would be successful. This is because the High Court of Australia has previously said that a validly changed law will not give rise to a legal claim, even for a person disadvantaged by that change (Peverill’s case). A possible alternative challenge could be based on the principle of estoppel which sets out that if legislation (such as the Migration Act) provides that a particular circumstance has a particular consequence, nothing a public servant does can override the legislation. If argued successfully, the Minister may be stopped from ceasing to process the applications. However, this challenge is also likely to be a difficult and drawn-out process. In our view, any challenge against the legality of “cap and cease” letters will be extremely difficult and is likely to be quite expensive. If you have any questions concerning “cap and cease” letters, please click this link to contact Visa Lawyers Australia. I hope it helps. Thank you for your input, this is really helpful, it lets us add to our research, we would welcome more research like this, we are also doing it as we plan to challenge it .... they can decide what they want to do but we have the right to raise our voice against DIBP for not even looking at our applications while others in our similar circumstances were granted. BTW I have my own research to share with you, 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. Edited September 28, 2015 by Arshad Quote Link to comment Share on other sites More sharing options...
mumofCD Posted September 28, 2015 Share Posted September 28, 2015 Guys, I am very serious about the Lawyer and we need to act now.. Please let me know what are the updates regarding it. We can chat after we have started some serious action against this new update.. Quote Link to comment Share on other sites More sharing options...
wrussell Posted September 29, 2015 Share Posted September 29, 2015 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. **************************************************************************************************** Even if disgruntled applicants were to win (after a prolonged and very costly legal battle) all the honourable, the minister has to do is allocate very few places for the applications in question. When the senate knocked back the omission of remaining relative, carer and non contributory parent visas, the honourable, the minister - arranged 30 to 56 year visa processing times. Quote Link to comment Share on other sites More sharing options...
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