George Lombard Posted October 16, 2009 Share Posted October 16, 2009 Hi Gill, No, ACS assessments don't expire once the application has been lodged. The latest suggestion is that DIAC may pay compensation to people who did medical and police clearances unnecessarily - they'll reimburse relevant costs if need be if needed to be done again. However I'd just note that the Department's decision not to raise the points test (a mechanism available to them but only invoked rarely since 1999 when the foundations of the current system were laid down) is preserving the rights of many applicants who would otherwise face "pooling" and eventual refusal, so in fact as the system works there is something to be thankful for. Cold comfort I know but I think that in the Department's thinking that also mitigates strongly against any overall compensation for applications. Cheers, George Lombard Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted October 16, 2009 Share Posted October 16, 2009 Hi George Thanks for correcting me about the ACS assessments. I didn't know that they could change the visa passmark after an application has been lodged? Does this mean that every GSM applicant is essentially applying for a moving target? Surely not? As a matter of public policy, in the Minister's shoes I would be deeply wary of attracting allegations that I am running a Lottery instead of an Immigration Policy. There is a limit to how much potential/prospective migrants will put up with from Australia and I reckon that the Minister is already close to the edge of it. Sure there are rotten apples in the barrel of applications. That is inevitable because no amount of legislation can create a perfect, watertight system. Anything which is too nit picking risks GSM applicants not having much of a working life left ahead of them if their applications take years to process. However the world is a Global Village nowadays and Australia is not necessarily Nirvana. Does the Minister want to be confined to choosing from The Best of The Rest? In most occupations, the pay is considerably higher in the USA for example, plus the houses and backyards are just as spacious as in Oz, though I don't know whether the USA takes tradies. Cheers Gill Link to comment Share on other sites More sharing options...
George Lombard Posted October 16, 2009 Share Posted October 16, 2009 Hi Gill, It has always been the case that for the main general skilled migration visa subclasses there is a "pool mark" and a "pass mark". Changes to those have always affected applications in processing, I think the last time this happened was about six years ago from memory. Clearly indicates that there are few acquired rights in the hands of applicants :-( Cheers, George Lombard Link to comment Share on other sites More sharing options...
basil Posted October 16, 2009 Share Posted October 16, 2009 George, if the introduction of the FSL comes with a change in the make up and possibly the pass mark of the points test, would current applicants be re-assessed under the new points test? ie you may currently have 120 points but on a new test this may go up or down? Link to comment Share on other sites More sharing options...
Taz2008 Posted October 16, 2009 Share Posted October 16, 2009 George, if the introduction of the FSL comes with a change in the make up and possibly the pass mark of the points test, would current applicants be re-assessed under the new points test?ie you may currently have 120 points but on a new test this may go up or down? Hi Sarah, I dont think the new regulations will apply to us... As far as I am aware the DIAC can change the priority times but can't change the visa eligibility regulations... but who knows hey, would be good for George or Alan to confirm also. Tasha Link to comment Share on other sites More sharing options...
basil Posted October 16, 2009 Share Posted October 16, 2009 ok, but they could change the pass mark to say 140 and change the test to include an extra 20points for those on the FSL. The FSL paper has already indicated that any introduction of an FSL would require amendments to the points test. A new pass mark would affect us.....it would make the bulk of the 176 non csl go into a pool for 2 years.....which would bring us nicely to our applications being finalised in 2012....not granted necessarily, just finalised.... Announcing a processing time of 3 years does two things....cuts more people applying when perhaps it is known by the powers that be that they may not be eligible when a new system comes through and it manages expectations of those already applied who are likely to be affected by telling them 'evertyhing has changed and your in for the long haul' before any actual official implementation of a new points test is made. A number of the 176SS's have already scrapped their plans, gone for ENS and a number might well be on the FSL....leaving a smaller number to be very upset in 2010 when the new points test comes and they find themselves pooled. Maybe they'll actually pull some from the pool in 2011/12 if things pick up as they will potentially have a lot less migrants in the system. Link to comment Share on other sites More sharing options...
Guest Magnetic6 Posted October 16, 2009 Share Posted October 16, 2009 Hi Sarah, I dont think the new regulations will apply to us... As far as I am aware the DIAC can change the priority times but can't change the visa eligibility regulations... but who knows hey, would be good for George or Alan to confirm also. Tasha Hi Tasha Let's hope so...no wonder people's nerves are fraught!! I only applied last week and have just re-read a copy that i printed of my online application. It states... " Your application will be rigorously assessed on the information in this form and the evidence you provide, using the pass mark which applies at the time your application is lodged." So that sounds promising, however further on it states.... "Changes to the Migration Occupation in Demand List and the Skilled Occupations List between the time of lodgement and the time of assessment may affect the points awarded when your application is assessed" So it seems contadictory, please can anybody shed some light on this before i have to start thinking about divorce and finding myself an Aussie fella!! Natalie x Link to comment Share on other sites More sharing options...
Guest jason RM0107604 Posted October 16, 2009 Share Posted October 16, 2009 The relevant points required are those points required at the time of assessment of the points scored by DIAC. That is typically the date of decision. The only exception is that if there is an appeal the MRT can choose the most favourable of the DIAC time of assessment or its time of assessment - so i understand. MODL points are assessed as the most favourable score at the time of decision or time of application. reg 2.26AA is an exansion of case law which seems to say MODL is assessed at time of application (although there are differring views) but perhaps now resolved by 2.26AA. changes such as required points can have a seemingly retrospective effect on existing applicants. I say retrospectivity here because most people will understand it that way in how it may effect them. Ofcourse DIAC legal department wont call it retrospective because they would say if you read all the regulations - its all there how everything can change and when things will be assessed - what ever they are at the time. I thought in the past few years DIAC was moving away from retrospectively effecting applicants or maintaining their status quo to try to be fairer to applicants. Hopefully any new policy wont have such an effect. But you never know. - the recent processing policies can be seen as having a retrospective effect on many applicants. I cant understand the logic of diac paying for new medicals - but not offering a refund of fees to people who want them. i would have thought it would have been the otherway round. Perhaps they think people will complain less about medical fees. If DIAC hasnt done any or much processing in relation to some applicants - i cant see how it will hurt them if they give a refund. Anyway i guess thats a matter for them. As george said - few, if any accrued rights arise. Probably none unless the actual regulations are changed mid processing. That would not include policies or gazette notices effectiving change to various filters. Link to comment Share on other sites More sharing options...
Guest jason RM0107604 Posted October 16, 2009 Share Posted October 16, 2009 magnetic - i think DIAC's letter to you got it the wrong way around. - hmm very strange. Link to comment Share on other sites More sharing options...
Guest Magnetic6 Posted October 16, 2009 Share Posted October 16, 2009 magnetic - i think DIAC's letter to you got it the wrong way around. - hmm very strange. Hi Jason Yes as i've stated that's the order it's written on my application form, why do you find this strange? Thanks Natalie Link to comment Share on other sites More sharing options...
basil Posted October 16, 2009 Share Posted October 16, 2009 Natalie, so if I'm reading that correctly the pass mark of 120 (or 100 for SS visas) will remain but if your nominated occupation changed points (for better or worse) you would be affected......I wonder if that's a new amendment to cover imminent changes to the MODL? There's no inidication on what happens if other aspects of the points test changed....say you suddenly dont get 10 points for SS or the age /english etc points change - does anyone know if there's a precedent? Link to comment Share on other sites More sharing options...
Guest Magnetic6 Posted October 16, 2009 Share Posted October 16, 2009 Hi Sarah I'm really not certain and i think it's only those that know the process and Australian law that can explain it to us. Sorry i've not been of any help, i think it's a case of wait and see. Natalie x Link to comment Share on other sites More sharing options...
McKlaut Posted October 16, 2009 Share Posted October 16, 2009 Hi Sarah, I dont think the new regulations will apply to us... As far as I am aware the DIAC can change the priority times but can't change the visa eligibility regulations... but who knows hey, would be good for George or Alan to confirm also. Tasha After 23/09 I think there is nothing impossible for DIAC and their minister in this world today. They are the masters and we are the toys in their hands. Just one assumption - they might abandon CSL but say you should have 140 points to be processed before 2012. Looks like NZ though. Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted October 16, 2009 Share Posted October 16, 2009 Hi All A Registered Migration Agent has very kindly e-mailed me with a copy of the relevant section (51) of the Migration Act 1958 and the Policy which goes with S51. It is reproduced verbatim below: Section 51. Order of consideration 51. (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. The RMA comments: Seems to be pretty much like an absolute power but is usually used in conjunction with a Section 499 Direction. He has other blunt instruments where he can suspend processing for a period of time (Section 84), cap the number of visas (Section 85) and the big one - Section 39 which "kills" any applications made after the annual target has been reached - all other applications on-hand are then deemed not to have been made and refunds are sent out. The Agent also sent me an extract from the rekevant section of DIAC’s policy documents. These are designed to explain the Law, the Policy and the correct procedures to the DIAC staff, most of whom are not lawyers. PROGRAM MANAGEMENT MECHANISMS This Part comprises: section 7 Legislative authority section 8 s85 capping section 9 s39 capping section 10 s84 suspension section 11 Passmark adjustments section 12 Policy changes section 13 s499 directions section 14 Priority processing - Overview 7 LEGISLATIVE AUTHORITY The Act provides several tools or mechanisms that can be used to ensure visa grants are managed in line with the annual planning level. These mechanisms (described below) can be used either singly, or in combination, to either restrict or increase the level of visa grants. 8 S85 CAPPING 8.1 Use and effect Section 85 capping allows the Minister to place a numerical limit on the number of visa grants in a particular subclass. Once the numerical limit has been reached, processing of applications continues to take place up to visa grant stage but the grant cannot take place; under this circumstance the applicant is “queued”. Section 85 capping has been the principal program management tool over the last few years and is discussed in greater detail in Capping. 9 S39 CAPPING 9.1 Use and effect Like s85, s39 of the Act allows the Minister to limit the number of visa grants in a particular subclass. Once the limit has been reached, however, all unfinalised applications in the relevant subclass are ‘taken not to have been made’ - in other words, they cease to exist. Should a person whose application has ceased to exist (and, it follows, has been “removed”) as a consequence of a s39 cap wish to continue with a migration application, they would need to apply again (with a further VAC payable) in the following program year. Although s39 can be applied to any visa class (other than the Protection visa class), it is, in practice, used only in exceptional circumstances. To date it has been used in respect of some elements of the humanitarian program but it has not been used in the management of the migration program. 9.2 Legislative requirements For a s39 cap to be imposed, the relevant visa subclasses must have a Schedule 2 criterion specifying that the grant of the visa would not cause the total number of visas for the program year to exceed whatever number is fixed by the Minister. (Note that currently the Family stream subclasses of the migration program do not have such a criterion and therefore the regulations would have to be amended before a s39 cap could be imposed.) 10 S84 SUSPENSION Section 84 suspension of processing allows the Minister to suspend all processing in a particular subclass for a specific period. It does not prevent applications being registered or prevent action relating to applications in which a decision to grant a visa had already been made. 11 PASSMARK ADJUSTMENTS Passmark adjustments apply only in the points tested categories (ie Schedules 6, 6A, 6B or 7 cases). If a passmark is lowered there are 3 likely effects: applicants who were in the pool and meet the revised pass mark, move into the assessment stage pipeline and, subject to meeting health and character requirements, can be granted visas the proportion of applicants successfully assessed will increase and over time, application rates may increase. Conversely if the passmark is raised, the number of persons successfully assessed will decrease with a lagged decline in grant outcomes and application rates. For more details on the use of passmarks in Schedule 6B cases, see PAM3: Sch6B - Scoring. 12 POLICY CHANGES Policy change (by means of legislation amendment) is another means by which the Government can influence demand. By changing the criteria for a subclass the Government can make it easier or harder to satisfy the criteria. An example is the 1 November 1999 introduction of new Carer provisions that (by making the core test more stringent) significantly reduced application rates and grant outcomes over time. Policy changes given effect by legislation amendment cannot, by law, adversely affect existing applications. This means that there are generally long time lags between the implementation of new legislation and the effect on visa grants. 13 S499 DIRECTIONS Section 499 of the Act allows the Minister to give written directions in relation to the exercise of powers under the Act. These directions can be used in conjunction with discretionary provisions in the Act (for example s51 and s91) to set down principles or priorities. Decision makers must as a matter of law have regard to those principles and priorities in exercising the relevant delegation. In the program management area there are currently three s499 directions, dealing, respectively, with: prioritisation within the Family stream the order of visa grants in categories which are or have been capped and priority processing for nursing professionals in the Skill stream of the migration program and the temporary long stay business visa (457) and that the same priority processing been given to all State-specific and regional migration visa subclasses. 14 PRIORITY PROCESSING - OVERVIEW The Minister has invoked the provisions of s499, s51 and s91 of the Act to ensure the orderly and controlled processing of applications and assist in the achievement of planning levels in the Family stream. Delegated powers under s51 and s91 of the Act enable s65 delegates to consider and dispose of visa applications in such order as they consider appropriate. In deciding the order of dealing with visa applications, officers are expected to take account of: the Government’s planning levels policy intentions contained in the Minister’s migration program announcement and any current s499 direction issued by the Minister under s499(1) of the Act. ************************************************************ I don't understand all of it but the gist is that the Migration Act appears to give the Minister incredibly wide and draconian powers. One would have to ask somebody like Nigel Dobbie whether the above can be challenged and if so on what grounds: Dobbie and Devine Immigration Lawyers Pty Ltd You can bet your lives that some of the onshore applicants will by now have instructed Nigel and the other 44 or so solicitors who are Accredited Specialists in this field of Law and I should think the solicitors will be in touch with barristers in this field too, all of them dissecting the Sept 23 Direction word by word to see whether they can find any flaws in it. If they find anything there is talk of an application to the High Court of Australia. Once it gets up to this level of sophistication it becomes far too abstruse for me. If the experts find any flaws, I imagine that one of the onshore applicants will be used as the guinea pig in a Court case. I think so many onshore applicants, especially, have so much money invested in the outcome after completing lengthy studies in Oz etc that if there is a way to challenge the Minister, litigation is likely. Also Alan Collett has remarked that onshore applicants for GSM visas can take to the streets of Australia in mass protest. Applicants who are outside Oz can't. It will be interesting to see what eventually happens. Cheers Gill Link to comment Share on other sites More sharing options...
McKlaut Posted October 16, 2009 Share Posted October 16, 2009 12 POLICY CHANGES Policy changes given effect by legislation amendment cannot, by law, adversely affect existing applications. This means that there are generally long time lags between the implementation of new legislation and the effect on visa grants. I'm not a lawer but I like this. Also, I should say, like onshore applicants offshore can make protests on the streets, say in front of London Aus embassy. Invite TV or another media source. :biggrin: Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted October 16, 2009 Share Posted October 16, 2009 Hi McKlaut I hear you but I'm not convinced. The bit you like - S12 of the PAM or whatever one calls it - mentions a Carer Visa. That is a Family Stream visa. Usually law has to be interpreted within its own, narrow context and I suspect that S12 could be confined to the Family Stream. I shoved it in because it was sent to me and I don't know whether it is significant or not. I sense (not sure) that George Lombard might be hinting at Capping. George did not supply me with the words. George seems to be saying that the Minister has several potential devices at his disposal so why is he using the crude, clumsy one of delay? I am guessing. I suspect it is possible that the Minister might have decided to introduce the idea of delay - and perhaps disappointment - and to let that sink in. It would achieve the end of making an interim statement. Further changes are definitely in the pipeline. I think we won't have a clue what they are until they are actually announced. Cheers Gill Link to comment Share on other sites More sharing options...
Guest jason RM0107604 Posted October 16, 2009 Share Posted October 16, 2009 Because i think points test is time of decision and modl assessment is whether the occupation was on MODL at time of application (or not the better of time of application and time of assessment)- which appears to be the opposite of what is in your letter. see Kaur v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 230 Kaur v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 230 (14 March 2005) and reg 2.226AA(5) MIGRATION REGULATIONS 1994 - REG 2.26AA Prescribed qualifications and number of points for General Skilled Migration visas Link to comment Share on other sites More sharing options...
Guest jason RM0107604 Posted October 16, 2009 Share Posted October 16, 2009 Hi JasonYes as i've stated that's the order it's written on my application form, why do you find this strange? Thanks Natalie Sorry for that - should probably give it context. Because i think points test is time of decision and modl assessment is whether the occupation was on MODL at time of application (or now the better of time of application and time of assessment)- which appears to be the opposite of what is in your letter. see Kaur v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 230 Kaur v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 230 (14 March 2005) and reg 2.226AA(5) MIGRATION REGULATIONS 1994 - REG 2.26AA Prescribed qualifications and number of points for General Skilled Migration visas Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted October 16, 2009 Share Posted October 16, 2009 Hi Jason I suspect not so fast. Please see meav's analysis on this thread: http://www.pomsinoz.com/forum/migration-issues/65628-errors-diac-website-skilled-migration-2.html It is too late and I am to tired to bother (plus affflicted with flu - possibly swine flu, I reckon.) You and meav describe adjacent subsections. Meav is plainly an expert - the crisp, conncise clarity of meav's contributions confirm it. Instead of being willing to learn from meav, several members were silly about meav. The result was that meav dumped the forum when meav's evident expertise would have been invaluable right now - including to meav's critics, who are now floundering. Cheers Gill Link to comment Share on other sites More sharing options...
Guest jason RM0107604 Posted October 16, 2009 Share Posted October 16, 2009 Hi jill, hope you get better soon. I wouldnt call myself an expert in migration - yes have an understanding of it. I read meaves comments in the link you referred to. I dont neccesarily disagree with anything he/she is saying. the point about modl is that in Schedule 6B it is described as the the occupation that was nominated in the application and the case i referred to said this would be interpreted as the occupation at the time when the application was made. There was a previous case (islam) in 2002 which decided differently- but the 2005 case is later so i would guess that is the better approach. i have no checked if any went on appeal but i think islam did go on appeal - not sure of that outcome. im happy to learn from anyone including meav. if i am wrong i am happy to be corrected and continue learning. agian, hope you feel better soon. Link to comment Share on other sites More sharing options...
Guest Glenn Pereira Posted October 17, 2009 Share Posted October 17, 2009 "You and meav describe adjacent subsections. Meav is plainly an expert - the crisp, conncise clarity of meav's contributions confirm it." There was absolute clarity in MEAV's posting. MEAV should be encouraged to come back. Very few Migration agents are equipped in "real" interpretation of the Acts and Regulations. Many rely totally on the PAM guidelines. A typical example On-shore student had to study "2 academic years". Academic year was not defined in the Regs or Act. Under Policy DIAC prescribed initially 104 weeks and then reduced it to 92 weeks. VET Institutes went back to the Registration authorities and lodged a new "mainpulated" time table to fit DIAC's policy. My institute retained our 2 years as 86 weeks. I had warned the authorities both DEEWR & DIAC that polciy is not law. The matter was taken up by a student straight to the HIGH court and DIAC settled out of Court. The law was subsequently changed on 14 th May 09 and 2 academic years is now defined as 92 weeks. I think all applicant should wait while the "clean up" takes place on-shore with Senate Committee recommending the Bill to be passed. The Minister will finalise a new policy once the MODL submission is finalised. I will post the MODL discussion paper on thsi forum later. Regards Glenn Pereira Link to comment Share on other sites More sharing options...
Guest wanderer Posted October 17, 2009 Share Posted October 17, 2009 basil @ #156, ok, but they could change the pass mark to say 140 and change the test to include an extra 20points for those on the FSL. The FSL paper has already indicated that any introduction of an FSL would require amendments to the points test. A new pass mark would affect us.....it would make the bulk of the 176 non csl go into a pool for 2 years.....which would bring us nicely to our applications being finalised in 2012....not granted necessarily, just finalised.... Announcing a processing time of 3 years does two things....cuts more people applying when perhaps it is known by the powers that be that they may not be eligible when a new system comes through and it manages expectations of those already applied who are likely to be affected by telling them 'evertyhing has changed and your in for the long haul' before any actual official implementation of a new points test is made. A number of the 176SS's have already scrapped their plans, gone for ENS and a number might well be on the FSL....leaving a smaller number to be very upset in 2010 when the new points test comes and they find themselves pooled. Maybe they'll actually pull some from the pool in 2011/12 if things pick up as they will potentially have a lot less migrants in the system. George pretty much covered that at #150 FSL?, a typo for CSL? Link to comment Share on other sites More sharing options...
Guest Jamie Smith Posted October 17, 2009 Share Posted October 17, 2009 I think the Minister's powers have been well tested and his ability to nooble cases is absolute. The argument I beleive is about DIAC not following the Minister's directions and still encouraging/asking people to progress their case with medicals etc. Those cases that were handled under DIAC's failure to follow the Minsiter's direction might have a better chance at getting reinstated and decided as the applicant followed legitimate instruction from the processing agency. Bbut these instructions were not actually legitimate in the eyes of the Minister. How can the Minister suspend processing of these legitimately developed cases without DIAC compensating the applicant? Link to comment Share on other sites More sharing options...
Kazzarazza Posted October 17, 2009 Share Posted October 17, 2009 FSL?, a typo for CSL? No Wanderer. Think you'll find it's short for Future Skills List - possibly being introduced to replace the CSL and MODL. Cheers. Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted October 17, 2009 Share Posted October 17, 2009 I think the Minister's powers have been well tested and his ability to nooble cases is absolute. The argument I beleive is about DIAC not following the Minister's directions and still encouraging/asking people to progress their case with medicals etc. Those cases that were handled under DIAC's failure to follow the Minsiter's direction might have a better chance at getting reinstated and decided as the applicant followed legitimate instruction from the processing agency. Bbut these instructions were not actually legitimate in the eyes of the Minister. How can the Minister suspend processing of these legitimately developed cases without DIAC compensating the applicant? Hi Jamie I hear you but I doubt that DIAC's lawyers got the law wrong whilst the Minister alone got it right. The ASPC and presumably the Policy people in Canberra who guide the ASPC all believed that they were acting correctly and lawfully by finishing off the applications where a CO was already involved. They have an in-house legal department. It is unlikely that they failed to obtain legal advice, I suspect. It is but a short walk for a Policy person in Canberra HQ to stroll down a corridor to ask Robyn Bicket, the Head of Legal, to say which way is "up", after all. The Minister might have blown his stack, kicked ass etc but the Minister may have been acting unlawfully by ordering them to stop the final processing once it had begun. Jason Cameron said something about "reasonable expectations." If the final processing has started it is entirely reasonable for a visa applicant to expect that it will not be interrupted. The Ombudsman is known to be following the same line as Jason about this point. I don't know what the legal asnwer is but I don't accept the proposition that DIAC made an error of law just because their Minister was displeased. It could be that DIAC should have sat on him and told him that he couldn't have his own way about dumping applicants at the last minute? Cheers Gill Link to comment Share on other sites More sharing options...
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