Tampines 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. ....and the minister will then make a new legislative instrument to cease the outstanding visa apps Quote Link to comment Share on other sites More sharing options...
Guest sygoon Posted September 30, 2015 Share Posted September 30, 2015 I just stumbled on this threat and wish to join the fight. Applied subclass 176 in December 2008 with my brother acting as sponsor. I am Australian graduate as well. Been waiting patiently for 7 years and the Australian government just decided to cap and cease our applications. I have immediate blood relatives waiting for me in Australia but that reunion will never happen. All my dreams and hopes about reuniting with them is now crushed. I would not qualify for other visa categories since age and occupation goes against me. The ministerial order is so unfair, unjust and downright discriminating family ties to Australia. Quote Link to comment Share on other sites More sharing options...
Arshad Posted October 1, 2015 Share Posted October 1, 2015 Any more 175, 176 and 475 still there who have not contacted us? pls post here and join our campaign against this Cap and Cease Quote Link to comment Share on other sites More sharing options...
Numera Shahid Posted October 1, 2015 Share Posted October 1, 2015 Australian Government and All Concern Departments Department of Immigration and Border Protection GSM Team I am Applicant of General Skill Migration GSM Subclass 175 and belong from Pakistan.We are three applicants Me, my husband n my son. I received your letter on 24th September’2015. I was really shocked after watching it. This is totally cruel and harsh decision taken by your DIBP. Please think about our lives I think you have heart, we are not a toy we r alive human being and you people know very well that how much years we gave you, just for waiting, waiting, and waiting for your reply. And at last how you break us. Your injustice behaviour damage our whole feeling and make us sad. There’s not end of any thing. This is our humble appeal to you and your government that please don’t do this we have so many hopes to you people. Please change your unfair decision and understand our situation. It seems that it is planned harshness. Please change decision for the sake of our life take it as exceptional case. Please Please Please , you have no idea of our situation that how much we sacrifice for years and waiting for your decision. After a long cap your department reopened the case and asked us whatever you want and we provided each and everything you want, even 4 months ago you asked for “Polio Drop” and after that 2 months ago you asked for our second “Police Character Certificate” we provide all the documents on time. When the time comes to send us the VISA you take this type of negative decision. We are not dummies we have heart. How could you do this. Please It’s our request that revise your policy and do something exceptional for us. Please give importance the people who are waiting for years and years. Please give Visa us rather than the new cases. Nothing is impossible in life so, think about our life stop taking application for new visas. Do something, Do something, Do something. I Hope you must read it and send our request to your other departments. Please consider our request, we are looking forward for your immediate concerns. This is the question of our life. Me and my family ( Husband n Son) have been on hold for approximately 7 years for your positive response. Please accept my request and do something positive for us. We will be very much thankful to you. Thanks Quote Link to comment Share on other sites More sharing options...
RR2014 Posted October 1, 2015 Share Posted October 1, 2015 (edited) Please send this to minister@border.gov.au and to senator.cash@aph.gov.au Edited October 1, 2015 by RR2014 Quote Link to comment Share on other sites More sharing options...
insizer Posted October 1, 2015 Share Posted October 1, 2015 (edited) Is that true that there is a legal challenge pending Edited October 1, 2015 by VERYSTORMY Removed link as per forum rules Quote Link to comment Share on other sites More sharing options...
Arshad Posted October 2, 2015 Share Posted October 2, 2015 Is that true that there is a legal challenge pending dont know if one is pending or not, but a group of us are trying to challenge it. Quote Link to comment Share on other sites More sharing options...
wongkitogalo Posted October 2, 2015 Share Posted October 2, 2015 dont know if one is pending or not, but a group of us are trying to challenge it. How many are in your group and when do you expect the challenge is going to happen? Quote Link to comment Share on other sites More sharing options...
Arshad Posted October 2, 2015 Share Posted October 2, 2015 How many are in your group and when do you expect the challenge is going to happen? both these figures are difficult to give at the moment as it is a bit early. we are around a 100 who have so far committed to challenging this order and each day more people are joining, research is being done and contacts have been made, but things are not finalised as yet, but hopefully in the next week we would make a start. organizing something like this when most of the people are outside Australia and all over the place is the challenge, but thankfully we have our sponsors onboard who are Australians and working for us there. Quote Link to comment Share on other sites More sharing options...
Raj N Posted October 3, 2015 Share Posted October 3, 2015 (edited) 1 more for 175. Currently living in Australia and employed in my Nominated profession! Edited October 3, 2015 by MaggieMay24 Removing email address per forum rules. Quote Link to comment Share on other sites More sharing options...
westwoodwizard Posted October 4, 2015 Share Posted October 4, 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. wrussell: I am on record in this forum saying that any legal challenge has to go beyond cap and cease since all that does is return to the status quo of painfully slow processing. The Minister in question can continue to set ridiculously low caps...why not just 1 visa per year for the offshore family sponsored applicants. They could have done that anyway. So the legal challenge has to go after the legality of the retroactive application of the changes made in 2012 to applications that had already been filed under one set of rules. What I would like to know from you as an RMA is did you and/or any of your colleagues seek a legal opinion as to the legality of the retroactiva application of new laws to already filed applications? Quote Link to comment Share on other sites More sharing options...
GAGAN4321 Posted October 5, 2015 Share Posted October 5, 2015 Fully agreed with Arshad...we need to be together lets join the fight whatever the result maybe...what more can we loose lolz? Quote Link to comment Share on other sites More sharing options...
westwoodwizard Posted October 5, 2015 Share Posted October 5, 2015 Fully agreed with Arshad...we need to be together lets join the fight whatever the result maybe...what more can we loose lolz? You can lose even more money. Thus, it does become an issue of circumstances. Some people are screwed across the board whether it is too old to apply under the current scheme because of the points lost or not having a skill on the current list or not having the money to pursue another application or not having the money to pursue legal action. If you have the money comfortably (personally, I would not pursue a lawsuit at all costs including bankrupting myself now or in the future, spending the college savings, retirement savings, etc.) then by all means I hope you pursue a legal challenge and win it. Quote Link to comment Share on other sites More sharing options...
wrussell Posted October 6, 2015 Share Posted October 6, 2015 What I would like to know from you as an RMA is did you and/or any of your colleagues seek a legal opinion as to the legality of the retroactiva application of new laws to already filed applications? Yes. The law was not applied retroactively. As I have previously posted, it was applied inconsistently Quote Link to comment Share on other sites More sharing options...
westwoodwizard Posted October 6, 2015 Share Posted October 6, 2015 Yes. The law was not applied retroactively. As I have previously posted, it was applied inconsistently I used a few key words to search for that post within all of your posts on this forum. You have had many posts in this forum. Do you recall any key words from the previous post you have referenced about the laws being applied inconsistently but not retroactively? I would be very interested in reading it. I searched on "priority 5" and "category 5" so far. Thanks. Quote Link to comment Share on other sites More sharing options...
CaptainC Posted October 7, 2015 Share Posted October 7, 2015 I used a few key words to search for that post within all of your posts on this forum. You have had many posts in this forum. Do you recall any key words from the previous post you have referenced about the laws being applied inconsistently but not retroactively? I would be very interested in reading it. I searched on "priority 5" and "category 5" so far. Thanks. I think that wrussell may have been referring to this post, particularly the last few lines http://www.pomsinoz.com/forum/showpost.php?p=1936827327 Quote Link to comment Share on other sites More sharing options...
wrussell Posted October 8, 2015 Share Posted October 8, 2015 There is not much point in searching for my opinions on the matter. The only thing I could dredge up, that might be arguable, was the precept that laws must be applied consistently. Many applications are 'rolled over' when the so-called cap is reached, but others are ceased. If a court decided that ceasing must follow capping then all the minister has to do is leave one place unfilled for the visa classes s/he did not wish to cease in a given year and cease the rest. If a court decided that capping and/or ceasing was sick bird (illegal) the legislation would be changed. When Evans (the honourable, the senator) pulled this same stunt years ago, various legal experts ran around in ever-decreasing circles until they disappeared up their own bums. Too hard, and not enough prospective litigants willing to pay, most likely. I recall when TRA sent back 'undecided' applications, the legal opinion was that there was 'an offer to treat' and TRA could send back applications if it suited them. At the time TRA was not even a relevant assessing authority, due to a bungle by the minister, who had failed to put them on his list of assessing authorities. There is always NZ and Canada where this sort of treatment is unlikely and unregistered agents are not permitted to rip the life out of people. Here is the advice I sent to my clients who were capped and ceased this time: ********************************************************************* Minister XXX decided to ‘cap and cease’ your visa application – see the email below and the attachment. This disgraceful treatment has been imposed on thousands of applicants, who paid money in good faith, went through all the correct procedures, lodged valid applications and were cheated and robbed. All you can do now is seek a refund of the visa application charge of $2525 which we paid on your behalf, copy attached. Please complete the attached form 1424 and email it to me. If you want me to assess your prospects of applying for some other visa and lodge another application, I will not charge you any professional fees, but you will have to pay for, an English test, skills assessment, visa application charge; as applicable. Best of luck with whatever you decide to do. Quote Link to comment Share on other sites More sharing options...
westwoodwizard Posted October 8, 2015 Share Posted October 8, 2015 I think that wrussell may have been referring to this post, particularly the last few lines http://www.pomsinoz.com/forum/showpost.php?p=1936827327 Thank you CaptainC for the link. Quote Link to comment Share on other sites More sharing options...
westwoodwizard Posted October 8, 2015 Share Posted October 8, 2015 wrussell: That is interesting. I read the post in question courtesy of the link provided by CaptainC. I am not sure we are discussing the same thing. By retroactive application of changes, I am referring to the priority processing scheme that was implemented that replaced the system that was in place when many of the applications in questions were filed and that is applications processed by date of lodgement. Here is the link to an article you have probably read where a researcher on migration Peter Mares is quoted as saying: "Before this system was introduced, people had their visa applications processed in order. The Government made a decision to do things differently."That's reasonable to a point but I think it becomes unreasonable to expect people to wait four, five, six years when they've paid money up front." http://www.abc.net.au/news/2015-05-19/skilled-migrants-waiting-years-for-permanent-residency/6481916 The only way I can reconcile what you say and what I have read is that the rules and regulations always gave the government flexibility as to how applications would be processed whether by date or by other means and in that case I understand when you say the issue of applying laws retroactively does not arise in this matter. Quote Link to comment Share on other sites More sharing options...
wrussell Posted October 8, 2015 Share Posted October 8, 2015 There is no reasonableness or fairness in the machinations of Australian immigration. The best applicants can expect is to have the law applied correctly, if they are lucky. I do not know whether the ministerial direction about priority processing was well founded. I shall look into it when time permits; I am currently relocating my office. Quote Link to comment Share on other sites More sharing options...
wrussell Posted October 8, 2015 Share Posted October 8, 2015 [h=3]Looks as if you are stuffed: MIGRATION ACT 1958 - SECT 51[/h]Order of consideration (1) The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate. (2) The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed. Here is a link to a ministerial direction by a former minister who once said - I have never met anyone smarter than I am. She was referring to politicians, so she might have been right. https://www.comlaw.gov.au/Details/F2006B11715 Quote Link to comment Share on other sites More sharing options...
Nemesis Posted October 8, 2015 Share Posted October 8, 2015 If you want me to assess your prospects of applying for some other visa and lodge another application, I will not charge you any professional fees, but you will have to pay for, an English test, skills assessment, visa application charge; as applicable. Best of luck with whatever you decide to do. You deserve some recognition for that offer i think. Don't know what other agents are doing but its good to see it in writing! Quote Link to comment Share on other sites More sharing options...
swimbod21 Posted October 9, 2015 Share Posted October 9, 2015 When this news broke to me by my agent I was saddened a bit but not totally heartbroken. After all these years of waiting, I was able to improve myself and even enrolled to get my masters degree in which I will be graduating by June next year. This is a sad news really, but it gave me an enlightenment. If Australia don't want me then so be it. There are so much opportunities outside that continent and even here in my own country there are tons of it and we just need to search for it. Good luck to those who will still try but I will start moving on. Quote Link to comment Share on other sites More sharing options...
Arshad Posted October 9, 2015 Share Posted October 9, 2015 I consulted a lawyer many years ago and he wanted $6600 (per applicant) to ran a class action. As far as I know, nothing came of it. If one person wins, you all win, so you do not need a class action. I doubt that you can win, but if you are going to try, put in $100 or so each and pay the TOP GUN at least for an opinion. If you pay peanuts, you get monkeys. Mr Russell, so far we are only coming across monkeys though we are ready to pay more than peanuts, can you please suggest some Top Gun lawyer who would be ideal for our case? Pls inbox me the infor. Has anyone started the process for a refund, from what I have come to know they want a 'copy' of the credit card used SEVEN years ago, and bank Receipt!?!?!?! Pls share details if you have. I am not interested in a refund but if they are going to seize our money like they ceased our applications, We need to highlight it at least in the media. Thanks Quote Link to comment Share on other sites More sharing options...
amibovered Posted October 9, 2015 Share Posted October 9, 2015 When this news broke to me by my agent I was saddened a bit but not totally heartbroken. After all these years of waiting, I was able to improve myself and even enrolled to get my masters degree in which I will be graduating by June next year. This is a sad news really, but it gave me an enlightenment. If Australia don't want me then so be it. There are so much opportunities outside that continent and even here in my own country there are tons of it and we just need to search for it. Good luck to those who will still try but I will start moving on. Great attitude mate, best of luck with whatever you do. Quote Link to comment Share on other sites More sharing options...
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