Capping and ceasing has been started

[virtual_bajwa]

Ladies and Gentleman,

News is that there are some signs of CAPPING and CEASING has been started by DIAC last week.

One of the members on Embrace Australia has confirmed this news. Unfortunately, his friend's visa was ceased by DIAC. Here is his time line ...

 

 

visa type uz 496

application lodged on 27 - 08- 2007

case officer not assigned

IELTS 4.5 each band

age 37 years

occupation auto electrician

 

And to confirm this news I called my agent today morning and he told me that yes one his client has also got the 496 visa......She had 7.0 band.....Please provide the detail if anybody has ....

Hi Rahul Patel where are u?

[rahulpatel1969]

Could be VB. Let us see what happens. I have not recieved any news yet.

[rahulpatel1969]

One more thing how come they are granting visas to 496 applicants if they plan to cap and cease. It sounds strange.

[Guest Gollywobbler]

Hi VB

 

Thank you very much indeed for this information.

 

I have made your thread sticky in order to draw as much attention as possible to this matter. Personally I think it is mobstrous that the Australian Government could behave in this way and could then try to blame everybody except themselves for creating the problems that the Minister claims have arisen.

 

By 2010 standards, I guess that the auto-electrician's Engish score in the IELTS is not very good. That said, I am British, I have a Scholarship level English A level and I have two degrees plus a professional qualification, all gained from very respected universities in the UK. There is nothing whatever the matter with my command of the English language. However I do not know the first thing about the electrical system in my car. I also know hardly any of the technical vocabulary that would be needed for that job. The auto-electrician definitely knows much more than I do about the words in the relevant technical vocabulary and he would also know what the various components look like - which I don't.

 

I wonder how much of this use of the cap & cease provision rests on the fact that the visa applicant is a tradie rather than, say, a Scientist. I wonder, too, whether the man is an ex International Student.

 

I am not persuaded that the Minister for Immi and his allies in the Cabinet have thought this issue of English through properly. The Minister has been whingeing that lower English language standards were required before 1st September 2007 than are needed now, but the Aussie Government at the time set the criteria. The visa applicants did not set it. The Cabinet's own use of English is execrable anyway because they speak a language called Strine, which is not English in the first place. My sister speaks Strine like a native. I wince when I hear some of it. It is a form of pidgin English and the grammar and syntax are appalling.

 

Your agent has mentioned the lady with 7.0 in the IELTS. Has her visa application been capped and ceased as well? If so, why? She has Proficient English, it would seem?

 

I'm sure that Rahulpatel, Babboo and the others will be along soon. They tend to read the forum at weekends, so I'm keeping my fingers crossed that they will respond to your thread soon.

 

Once again, thank you very much indeed for providing the information.

 

Cheers

 

Gill

[rahulpatel1969]

Well the only thing I would suggest to anyone gettign any such email/cheques regarding is to wait before encashing any cheques or payment recieved from DIAC and to analyse their options. Do not be in a hurry to accept the money. I think Gill has given the same advise before. Please read his earlier post.

 

Let us analyse our options. Also if anyone recieves such a mail please post a copy of the text for others to review.

 

In a way i am pleased this is about to end one way or other. I really am spoiling for a fight.

 

Rahul

[Guest Gollywobbler]

Well the only thing I would suggest to anyone gettign any such email/cheques regarding is to wait before encashing any cheques or payment recieved from DIAC and to analyse their options. Do not be in a hurry to accept the money. I think Gill has given the same advise before. Please read his earlier post.

 

Let us analyse our options. Also if anyone recieves such a mail please post a copy of the text for others to review.

 

In a way i am pleased this is about to end one way or other. I really am spoiling for a fight.

 

Rahul

 

Hi Rahul

 

Obviously you were on line and typing your replies to VB at the same time as I was typing mine.

 

I agree with you about the money. If DIAC offered me such a cheque, I would stick it into an interest bearing, brand new account named "J. Bloggs/Dispute with DIAC account." I would not put any other money into the account but I would send proof of the whole thing to DIAC, to make it clear to them that I have not accepted the money as being mine. Instead I am merely keeping the money safe, pending the outcome of my dispute with the Minister for Immi.

 

I have put the money into a deposit account as well, so that the interest on it will be available to whoever of the Minister or I eventually wins the dispute. I would instruct my lawyers to point out to the Court that I have taken more steps than DIAC ever did to look after the money and the interest on it, and I would pay the money into Court as soon as the proceedings have been issued. That makes it clear that I do not regard it as my money and I have not accepted it as being my money.

 

Then I would fight the Minister for Immi every step of the way, frankly. I would be the original pain-in-the-ass litigant. I would not give the Minister any extra time for anything. Instead of agreeing to anything myself, he can make an application to the court if he wants a favour from me. I'd get the costs of this type of interlocutory application anyway and I would use solicitors with a reputation for ferocity, plus clear instructions from me to be as ferocious and as difficult as possible towards the Minister's own solicitors.

 

Cheers

 

Gill

[Guest Wotson]

Seems as if the lady had her visa approved - Sign In to Embrace Australia - A community for everyone who loves Australia - Embrace Australia - A community for everyone who loves Australia

Would it be somewhat misguided for people to reject their refunds for aside from any use of standards reasoning if a government has reviewed immigration and decided that there are applications that could be waiting many years if they will ever get considered, would it not be far more considerate to bring them to an end.

 

Is it mobsterous as in Underbelly or Monstrous as in Ash cloud btstrinelyw!

[rahulpatel1969]

Seems as if the lady had her visa approved - Sign In to Embrace Australia - A community for everyone who loves Australia - Embrace Australia - A community for everyone who loves Australia

Would it be somewhat misguided for people to reject their refunds for aside from any use of standards reasoning if a government has reviewed immigration and decided that there are applications that could be waiting many years if they will ever get considered, would it not be far more considerate to bring them to an end.

 

Is it mobsterous as in Underbelly or Monstrous as in Ash cloud btstrinelyw!

 

Wotson

 

When all these preseptember 2007 applicantion were made or for the matter when any applicantion is made they are perfectly valid according to the immigration requirement of that time. Capping and ceasing because u toughened the immigration act after taking in applications under the old rules and then sitting for three years and then deciding they will never be processed becuase of some priority processing rules which were again changed after the applications were made not only amounts to being retrospective changes if not down right cheating and misleading applicants.

 

Also when an application is made there are a lot of other expences except for DIMA fees. What about that and the interest for three years.

 

Regards

Rahul

[rahulpatel1969]

Gill

 

Do u have any lawyer or solicitor in mind. Do recommend someone whom you think might fit the bill.

 

Regards

 

Rahul

[Guest Wotson]

rahul,

When all these preseptember 2007 applicantion were made or for the matter when any applicantion is made they are perfectly valid according to the immigration requirement of that time.

That may be so but the globe keeps rotating and after many of them life can change.

Global conditions change, governments come and go and countries have hordes of public servants involved with elected governments to review policies and implementation of them.

 

Because a country has an immigration policy, it never means submitting an immigration application guarantees a positive result and many applicants have applications rejected and lose their fees.

 

If you're suggesting that people who have had an application in the system so long that it is highly possible it will never be considered should reject the idea that a government can advise them of such and say your fee is to be refunded, I just think that is foolhardy in the extreme.

 

As for interest and other costs, collateral damage and do you think any applicants own country is going to be much interested!

[Guest Gollywobbler]

Gill

 

Do u have any lawyer or solicitor in mind. Do recommend someone whom you think might fit the bill.

 

Regards

 

Rahul

 

Hi Rahul

 

I know (and know of) only a tiny number of Aussie solicitors who specialise in Immigration litigation. For every name that I know, there are at least a dozen other names that I don't know.

 

I think that quite a few affected visa applicants will talk to David Bitel of Parish Patience in Sydney. He has a reputation for being extremely tough and he wins most of the cases that he takes to court:

 

Parish Patience Immigration - About Us

 

I am certain that many other applicants have been speaking with Nigel Dobbie as well. He worked for David Bitel for a while but Nigel now runs a solicittors firm of his own:

 

http://www.ddilawyers.com/directors_profiles.php

 

Nigel runs some of the CPD courses in which he teaches Registered Migration Agents. He also teaches part of the training course for wannabe RMAs at the Australian National University.

 

Beyond that, though, Nigel has a very impressive track record with Immi Law litigation. He has a resputation for "spotting the angle" which says that the Minister for Immi has acted unlawfully. Nigel has persuaded the Courts to accept that his own interpretation of the law is the correct interpretation and that the Minister has made a legal mistake.

 

If I were an affected applicant, I would consult Nigel. I like his style. He is very down to earth, very helpful and he fights tooth and nail to protect his clients.

 

However there are at least 50 Accredited Specialists in Immigration Law and dozens of other solicitors who practice Immi law in Oz. My guess is that almost all of them will be approached by one or more of the affected visa applicants.

 

The two lawyers that I have mentioned in this post above are both based in Sydney. My guess is that quite a lot of the affected visa applicants have relatives who live in Melbourne. I have heard of the firm of Erskine Rodan in Melbourne:

 

Australian Immigration Law : Erskine Rodan Immigration Lawyers, Melbourne, Australia

 

I believe that Mr Erskine Rodan has a fearsomely good reputation with Immi Law.

 

I would think that several of the relatives - the sponsors of the visa applications - are likely to consult Mr Rodan about whether they and the visa applicants can do anything and, if so, what can they do?

 

I assume that the Minister for Immi realises that he is not going to get away with his high-handed use of S39 of the Migration Act 1958 without an almighty fight and I reckon that quite a few of the arguments will be aired in the Courts in Oz. If he is not expecting this to happen, he must be deaf and blind as well as being an arrogant thug in my opinion of Senator Chris Evans - which opinion could not be lower than it is, frankly.

 

S39 is set out below, to save you from looking it up:

 

39 Criterion limiting number of visas

 

(1) In spite of section 14 of the Legislative Instruments Act 2003, a

prescribed criterion for visas of a class, other than protection visas,

may be the criterion that the grant of the visa would not cause the

number of visas of that class granted in a particular financial year

to exceed whatever number is fixed by the Minister, by legislative

instrument, as the maximum number of such visas that may be

granted in that year (however the criterion is expressed).

 

(2) For the purposes of this Act, when a criterion allowed by

subsection (1) prevents the grant in a financial year of any more

visas of a particular class, any outstanding applications for the

grant in that year of visas of that class are taken not to have been

made.

 

The Act is here:

 

ComLaw Act Compilations - Migration Act 1958 (62)

 

I don't know why S39 was introduced or when it was introduced. It is bound to have been debated in the Parliament in Oz before it was instroduced, though. If I were one of the lawyers, I would get an assistant to read the old Hansards, to see what the MPs said about the idea in S39 at the time, what the relevant Minister said that he needed S39 for and so on.

 

The facts we have with the relevant applications today are that the Minister told DIAC not to process them. This is not a case of "DIAC couldn't have processed them." DIAC were told not to process them and that order could only have come from the Minister.

 

I'm not convinced that his present tactic is a lawful use of 39. The Minister is plainly using S39 as a way of cutting the backlog of GSM visa applications and as a device to get rid of the visa applicants whom he doesn't believe are the strongest and fittest of the GSM applicants in the current pipeline.

 

However at the time when they applied for their visas, the applicants applied in good faith and they did so according to the legislative criteria laid down by the Aussie Government at the time. My instinct is that it was never intended that the Minister should behave so monstrously as to use S39 as a purely tactical tool via which to get rid of prospective migrants whom he doesn't want in Australia. I reckon that the reasons behind S39 require the Minister to have a heck of a lot more than a tactically convenient whim, frankly.

 

Cheers

 

Gill

[rahulpatel1969]

Gill,

 

Thanks for your post. Will save it for future use. I read the whole thread on embrace australia. Seems it could be a misinterpretation of a standrad reply from DIAC and nothing has started yet.

But i hope for everyone's sake they do what they have to do and we try our level best to fight them but that it starts at the earliest.

 

Regards

Rahul

[virtual_bajwa]

Thanks to all of you guys for such an overwhelming response. This has been really a gr8 news if they have started Capping and Ceasing is not a good news for those whose application comes under Ceasing like one of them on Embrace Australia website.Well Lot has been talked against Capping and Ceasing. But it's time to implement it.

Yes, Gill has already said that 4.5 band for Auto Electrician is very low score. I agree with Gill but DIAC had earlier made this mistake by accepting such a low profile applications.

[Guest Gollywobbler]

Seems as if the lady had her visa approved - Sign In to Embrace Australia - A community for everyone who loves Australia - Embrace Australia - A community for everyone who loves Australia

Would it be somewhat misguided for people to reject their refunds for aside from any use of standards reasoning if a government has reviewed immigration and decided that there are applications that could be waiting many years if they will ever get considered, would it not be far more considerate to bring them to an end.

 

Is it mobsterous as in Underbelly or Monstrous as in Ash cloud btstrinelyw!

 

Wanderer

 

What are you doing, haunting Poms in Oz again under your new pseudonym of Wotson?

 

I have reported your activities, naturally. Site Admin (Rob) himself banned Wanderer. I should not think that he will be delighted about your new attempt to creep under the Poms in Oz radars, do you?

 

As far as this thread is concerned, I suggest that you shut up. I have told you before that Poms in Oz exists for the purpose of protecting the visa applicants, not for the purpose of toadying up to the Australian Government.

 

ALL of the applicants who face the Cap & Cease provisions have spent a GREAT DEAL of their money on getting skills assessments, IELTS tests, sometimes Medicals on the say so of DIAC case officers before Minister Evans decided to interfere with this group of applicants, migration agents and so forth.

 

The money they have paid to DIAC is only the tip of the iceberg in terms of their total outlay. Your precious Government has not offered to give them any of that money back apart from the visa application fees only. That small amount won't even be offered to them with the interest that the Aussie Treasury has been earning on that money for the last 2.5 years at least, either.

 

Your adopted Government - the people whom you believe to be perfect - have decided to perpetrate this financial fiddle, chum. Nobody else decided it for them and no other Western, genuinely democratic Government has ever behaved in such an appalling fashion before, either.

 

Read the Cap & Terminate description, offered by your precious Government, in Fact Sheet 21:

 

Australian Immigration Fact Sheet 21. Managing the Migration Program

 

As recently as September 2009 Minister Evans insisted, via DIAC, that he would only ever use the Cap & Terminate provision in "exceptional circumstances." Having lied through his back teeth to the Australian Voter and the international public alike about that, he was actually quietly asking the Treasury to figure out how Australia could engineer offering the visa applicants who were in his gunsights just a tiny amount of their money back.

 

The shekel that he is offering is tainted - completely tainted. And personally, I wouldn't trust him with a bargepole with the idea, either. I would not put it past him to be trying to engineer the legal doctrine of Estoppel with that money. We know full well that the man is a liar - his own statement in Fact Sheet 21 proves that. I wouldn't believe anything else that he says either, after that.

 

As for you, Site Admin and all the mods know who "Wotson" really is now, and so will every other Poms in Oz member who happens to read this thread. Your own dishonesty is equalled only by your precious Minister for Immi's dishonesty in my view. There is no evidence of any dishonesty on the part of the afflicted visa applicants, however, so I suggest that you QUIT sermonising piously to any of them.

 

Gill

[Guest Gollywobbler]

Hi VB

 

Yes, Gill has already said that 4.5 band for Auto Electrician is very low score. I agree with Gill but DIAC had earlier made this mistake by accepting such a low profile applications.

Are you Jaspreet Singh Bajwa on Embrace Australia, by the way? I assume that you are?

 

I ask because on the EA forum, Jaspreet is asking exactly the same questions that I want to ask on Poms in Oz, so I decided to reply on here rather than on the other forum.

 

Right up until 31st December 2008, DIAC processed GSM visa applications in "first come, first served" order. The ASPC information e-mails at the time said that if an application had been allocated to a CO by 31st December 2008 then those applications would not be affected by the new processing priority arrangements that the Minister introduced on 1st January 2009.

 

DIAC believed that this was how the Minister's 17th Dec 2008 announcement should be interpreted. I discovered in November 2009 that there are 50 COs at the ASPC and that they are each expected to finalise about 30 visa applications per week. Therefore between 17th December 2008 and 16th March 2009, the ASPC must have processed a fair few visa applications that the Minister had earmarked for the chop, I suspect.

 

Apparently there was then a quarrel between the Minister and Andrew Metcalfe, the boss of DIAC, around 16th March 2009. On 16th March, the Minister announced that he was cutting the number of occupations on the CSL with immediate effect. It was about this time that the Minister and DIAC realised that they had been talking at cross-purposes, and that DIAC had been processing and finalising visa applications which the Minister had intended should receive no futher processing. One of the very senior DIAC officers who attended the MIA Conference in Melbourne in October 2009 told the assembled migration agents and others that the Minister had hit the roof when he found out that DIAC had interpreted his instructions wrongly and so they had granted visas which the Minister did not intend should be granted.

 

As has been said on Embrace Australia, has the Minister ordered DIAC to sift through the pre-1st September 2007 applications and to weed out the ones where the IELTS score is lower than has been required in more recent months?

 

If this is what they have been doing, then S39 says that when the Minister caps and terminates a particular visa class, he must terminate ALL of the applications which remain in that class, not just some of them and he definitely can't do it according to the IELTS score. If it is the case that they have sifted the applications according to the IELTs results then it potentially explains a couple of the mysteries in the delays with implementing the Cap & Cease arrangements.

 

• If the Minister wants all the relevant applicants with IELTS scores of 6.0 or above to enjoy final processing of their applications then he cannot Cap the rest of the class until the high-English applications have been sorted out.
  
• DIAC have been moaning that they can tell almost nothing about each application unless a human picks the file up and reads it.
  
• If it is being done on the basis of weeding out and getting rid of applicants whose IELTS scores are low, then it is obvious that no native English speaker will be affected by the Cap & Cease provisions.
  

I doubt whether the Minister can go up from 6.0 as the threshold for applying Cap & Cease. His own Government has been in ppower since December 2007 and they have always been happy enough with a threshold of 6.0 for GSM visa applications according to their website.

 

However if the Minister has been weeding applicants out on the basis of their IELTS scores then I really do wonder whether this is a lawful use of S39?

 

I don't - personally - think that anything much turns on whether or not the auto-electrician's application has been capped and ceased as yet or not. Especially if he learnt about auto-electrics in Australia but he is not still in Australia, his sort of profile is exactly the sort of applicant that the Minister wants to weed out, I reckon.

 

However the Minister is trying to run a very obscure argument. According to his "logic," the Global Financial Downturn suddenly caused Australia to need a higher level of English from visa applicants than had been the case prior to the GFC.

 

Sorry, but like Manuel in Fawlty Towers, I come from Barcelona. And I smell a Filigree Rat in this, to quote the good Manuel!

 

How has the GFC affected Australia's needs (which the Minister claims it suddenly has) in such a way that all migrants to Oz must be able to speak English well in order to get jobs in Australia? The Migration legislation does not say that a GSM visa applicant must even do the job that he has nominated in his visa application.

 

Is it necessary for the auto-electrician to be able to speak English well in order to get a job in his uncle's corner shop, selling the groceries which are popular amongst the Aussie migrants in whichever ethnic community the auto-electrician is a part of? I'll bet that he speaks the customers' ethnic language like a native even if his English is not terriby good. He might not be the auto-electrician who gets a job in the local car-garage, but even applying for that job might have nothing to do with his own plans in any case?

 

Would I do without similar people in the UK? Nope. I've no idea how much one of the shop assistants might earn. The issue that is relevant to me is that they understand - and they import - the sorts of foods that I want to buy.

 

My point is that a properly balanced community does not have a roaring need for auto-electricians with fluent English if the person working in the ethnic supermarket will be somebody's English wife, who has no more idea about the range of stuff that the ethnic supermaket stocks and sells than I have.

 

AGES ago, Australia scrapped the White Australia Policy. (Officially, at any rate.....) I think that the Minister for Immi is making a huge - and very naive - error of judgement about what makes Australia multicultural by trying to hang everything on the English language and his theories about what the auto-electrician might be good at doing once he gets to Oz.

 

Apparently, when the GFC hit, general electricians in Melbourne were laid off. The Aussie ones - many of them from the UK originally - promptly went on the dole. The Hungarian auto-electrician selling Hungarian groceries probably did not get laid off because whatever else happens or does not happen, the Hungarian community in Melbourne is going to need food. And they will want Hungarian foodstuffs because they can prepare and cook those more cheaply than they can do with any other types of food.

 

In short, I think that the Minister for Immi's philosophy is wrong. I can see no legal basis for using S39 as a means to propound nothing more than a philosophical set of beliefs, either.

 

Cheers

 

Gill

[virtual_bajwa]

Hi VB

 

 

Are you Jaspreet Singh Bajwa on Embrace Australia, by the way? I assume that you are?

 

I ask because on the EA forum, Jaspreet is asking exactly the same questions that I want to ask on Poms in Oz, so I decided to reply on here rather than on the other forum.

 

Right up until 31st December 2008, DIAC processed GSM visa applications in "first come, first served" order. The ASPC information e-mails at the time said that if an application had been allocated to a CO by 31st December 2008 then those applications would not be affected by the new processing priority arrangements that the Minister introduced on 1st January 2009.

 

DIAC believed that this was how the Minister's 17th Dec 2008 announcement should be interpreted. I discovered in November 2009 that there are 50 COs at the ASPC and that they are each expected to finalise about 30 visa applications per week. Therefore between 17th December 2008 and 16th March 2009, the ASPC must have processed a fair few visa applications that the Minister had earmarked for the chop, I suspect.

 

Apparently there was then a quarrel between the Minister and Andrew Metcalfe, the boss of DIAC, around 16th March 2009. On 16th March, the Minister announced that he was cutting the number of occupations on the CSL with immediate effect. It was about this time that the Minister and DIAC realised that they had been talking at cross-purposes, and that DIAC had been processing and finalising visa applications which the Minister had intended should receive no futher processing. One of the very senior DIAC officers who attended the MIA Conference in Melbourne in October 2009 told the assembled migration agents and others that the Minister had hit the roof when he found out that DIAC had interpreted his instructions wrongly and so they had granted visas which the Minister did not intend should be granted.

 

As has been said on Embrace Australia, has the Minister ordered DIAC to sift through the pre-1st September 2007 applications and to weed out the ones where the IELTS score is lower than has been required in more recent months?

 

If this is what they have been doing, then S39 says that when the Minister caps and terminates a particular visa class, he must terminate ALL of the applications which remain in that class, not just some of them and he definitely can't do it according to the IELTS score. If it is the case that they have sifted the applications according to the IELTs results then it potentially explains a couple of the mysteries in the delays with implementing the Cap & Cease arrangements.

 

• If the Minister wants all the relevant applicants with IELTS scores of 6.0 or above to enjoy final processing of their applications then he cannot Cap the rest of the class until the high-English applications have been sorted out.

• DIAC have been moaning that they can tell almost nothing about each application unless a human picks the file up and reads it.

• If it is being done on the basis of weeding out and getting rid of applicants whose IELTS scores are low, then it is obvious that no native English speaker will be affected by the Cap & Cease provisions.

 

I doubt whether the Minister can go up from 6.0 as the threshold for applying Cap & Cease. His own Government has been in ppower since December 2007 and they have always been happy enough with a threshold of 6.0 for GSM visa applications according to their website.

 

However if the Minister has been weeding applicants out on the basis of their IELTS scores then I really do wonder whether this is a lawful use of S39?

 

I don't - personally - think that anything much turns on whether or not the auto-electrician's application has been capped and ceased as yet or not. Especially if he learnt about auto-electrics in Australia but he is not still in Australia, his sort of profile is exactly the sort of applicant that the Minister wants to weed out, I reckon.

 

However the Minister is trying to run a very obscure argument. According to his "logic," the Global Financial Downturn suddenly caused Australia to need a higher level of English from visa applicants than had been the case prior to the GFC.

 

Sorry, but like Manuel in Fawlty Towers, I come from Barcelona. And I smell a Filigree Rat in this, to quote the good Manuel!

 

How has the GFC affected Australia's needs (which the Minister claims it suddenly has) in such a way that all migrants to Oz must be able to speak English well in order to get jobs in Australia? The Migration legislation does not say that a GSM visa applicant must even do the job that he has nominated in his visa application.

 

Is it necessary for the auto-electrician to be able to speak English well in order to get a job in his uncle's corner shop, selling the groceries which are popular amongst the Aussie migrants in whichever ethnic community the auto-electrician is a part of? I'll bet that he speaks the customers' ethnic language like a native even if his English is not terriby good. He might not be the auto-electrician who gets a job in the local car-garage, but even applying for that job might have nothing to do with his own plans in any case?

 

Would I do without similar people in the UK? Nope. I've no idea how much one of the shop assistants might earn. The issue that is relevant to me is that they understand - and they import - the sorts of foods that I want to buy.

 

My point is that a properly balanced community does not have a roaring need for auto-electricians with fluent English if the person working in the ethnic supermarket will be somebody's English wife, who has no more idea about the range of stuff that the ethnic supermaket stocks and sells than I have.

 

AGES ago, Australia scrapped the White Australia Policy. (Officially, at any rate.....) I think that the Minister for Immi is making a huge - and very naive - error of judgement about what makes Australia multicultural by trying to hang everything on the English language and his theories about what the auto-electrician might be good at doing once he gets to Oz.

 

Apparently, when the GFC hit, general electricians in Melbourne were laid off. The Aussie ones - many of them from the UK originally - promptly went on the dole. The Hungarian auto-electrician selling Hungarian groceries probably did not get laid off because whatever else happens or does not happen, the Hungarian community in Melbourne is going to need food. And they will want Hungarian foodstuffs because they can prepare and cook those more cheaply than they can do with any other types of food.

 

In short, I think that the Minister for Immi's philosophy is wrong. I can see no legal basis for using S39 as a means to propound nothing more than a philosophical set of beliefs, either.

 

Cheers

 

Gill

Yes Gilly, My name is Jaspreet Singh Bajwa. Yes, I agree with most of ur points here. It's very hard to fit into shoes of those applicants where they have 4.5 bands. I have only one question here that why have they accept that applications and kept them in hold. Chris Govt. into power in December 2007. They could have done something in 2008. Now after holding of these low profile applications for such a long time. U can imagine a person who is electrician could not be very sound financially. Imagine how would an electrician invested his money. Now after half of their money would be lost without any result....That is not democratic in nature.

[Guest Gollywobbler]

Yes Gilly, My name is Jaspreet Singh Bajwa. Yes, I agree with most of ur points here. It's very hard to fit into shoes of those applicants where they have 4.5 bands. I have only one question here that why have they accept that applications and kept them in hold. Chris Govt. into power in December 2007. They could have done something in 2008. Now after holding of these low profile applications for such a long time. U can imagine a person who is electrician could not be very sound financially. Imagine how would an electrician invested his money. Now after half of their money would be lost without any result....That is not democratic in nature.

 

Hi VB

 

I could not agree with you more. I agree with every word that you have said above.

 

It's very hard to fit into shoes of those applicants where they have 4.5 bands.

 

Does an Indian pastry cook really need brilliant English in order to make Indian pastries for other people to buy and consume? I'm not saying "for other Indians to buy" because one of the things that I like most about Australia is the huge diversity of food. Loads of Aussies get to try all kinds of different countries' dishes etc because of it. That happens in Oz far more than in the UK.

 

Rightly or wrongly, the Howard Government decided that trade skills immigrants to Oz did not need to be able to speak brilliant English. If their decision was mistaken, it is a matter for Parliament to debate the problem and decide what to do. It is not a matter for the Minister for Immi to decide on his own, without even referring the question to Parliament, but that is exactly what the current Minister for Immi has been doing. He has been by-passing Parliament.

 

I was told firmly at the meeting with DIAC in London that the Minister has made no retrospective changes to Aussie Immi Law. He has not altered the Migration Act 1958 at all, so I was told. I was informed that the Minister would need Parliament's permission to alter the Migration Act and that he has never sought such permission, therefore he has not altered any Immi Law. Tweaking the Migration Regulations and altering the Policies does not amount to changing the Law, I was told firmly! I sat there thinking, "And the other one has bells on, dear! Do you really imagine that I am so naive that I am likely to fall for this sort of idiotic spin-doctoring?"

 

Capping and ceasing valid visa applications is a retrospective change in the Law in my view. DIAC are simply trying to split every hair they can find in an effort to defend the Minister and to claim that he has not been changing the law - the rules - on people who have already applied for their visas.

 

Legally the Minister might be able to defend his proposals. That will be a matter for the courts in Oz to decide in due course, once they work out exactly what S39 means and the circumstances in which Parliament intended that S39 should be used. The Minister has carefully blocked the MRT's powers to re-make the decision when an application is capped & ceased. He knows full well that the MRT would say that the application is perfectly valid and they would remit the application to DIAC, ordering them to get on with it and process the application.

 

The Minister has ousted the power of the MRT (Migration Review Tribunal.) However he cannot oust the jurisdiction of the court. Doing that would require a change to the (written) Aussie Constitution. The Constitution says that it cannot be changed without a Referendum first. I don't think the Government would win a Referendum about ousting the power of the court in an Immi Law matter. A Government which can oust the court in an Immi Law matter will get a taste for ousting the court and they will start trying to do it in domestic law matters as well. The Aussie Voter would never let the Government get away with starting down such a path, I reckon.

 

I can't see how the Minister expects to get away with ceasing 6,000 visa applications without some of those applicants challenging him in the court. I think that some of the applicants are sure to sue the Minister unless he backs off and decides not to use S39 after all.

 

I completely agree with you that if there was anything wrong with the relevant visa applications then DIAC should not have accepted the applications as being valid, in which case they should not have accepted the money either. They could have made this decision in 2008, too, instead of waiting for some unspecified date which might be in 2010.

 

One of the assumptions that the DIAC officers (pretty junior) who went to the first MIA seminar made was that they told the assembled company that they believed that "all" the applications which were to be capped and ceased involved applications where some of the supporting documents were bogus. The Migration Agents refuted the claim. Many of the relevant applications were prepared and submitted by Registered Migration Agents and apparently there is nothing bogus about those.

 

It seems that the junior staff accepted that DIAC would be mistaken some of the time and the junior staff said that they supposed that some "collateral damage" would be inevitable. (I would strangle any junior member of my staff talking about "collateral damage" in public, frankly. That is the sort of term that you only expect from a General or an Admiral - ie someone very senior, who knows what they are talking about and understands the full implications of such a term. One might use that term within the confines of an office but I would throttle any junior member of staff who dared to use such an emotive term in public.)

 

By the time that the MIA roadshow reached Melbourne, it seems that DIAC had realised that it was a bit stupid to have junior DIAC staff attending these seminars and saying the wrong things, so DIAC sent Peter Speldewinde to Melbourne. Mr Speldewinde is the boss of DIAC's Labour Market branch. I've no idea what that job entails or how he is involved in the proposed cap & cease. However he is very senior and he can be trusted not to put his foot in it, which is why (I assume) that he was wheeled out in Melbourne!

 

Mr Speldewinde tried to laugh off the idea that 20,000 visa applicants might be affected by the cap & cease. The Minister's press release specifically says 20,000 applicants.

 

Migration reforms to deliver Australia's skills needs

 

McKlaut on here worked out that $14m in refunds would mean about 8,300 applications. The Government later watered down the original proposal. They decided that they would not cap & cease applications where, although the main applicant has applied for an offshore visa, the main applicant is living in Oz, either on a sc 457 visa, on a further Student visa or whatever. By the time the MIA roadshow reached Melbourne, Mr Speldewinde said that he thought that only about 6,000 applications would be capped & ceased.

 

He was promptly asked how many people would be affected if 6,000 applications were capped & ceased? Mr Speldewinde said he did not know. He claimed that it would be impossible to work out the numbers of people (secondary applicants) unless they examined every affected applicant's file individually. George Lombard remarked on PiO that he thinks that 6,000 capped and ceased applications would mean about 15,000 people in total. George has been dealing with visa applications for so long that my instinct is that he probably has a very good "feel" for how many people would be likely to be affected by this.

 

Since Peter Speldewinde was wheeled out in Melbourne, my guess is that he is probably also the author of the Minister's original press release. I suspect that he now wishes that 20,000 had never been mentioned! But it was mentioned and even 15,000 people affected is far too many people for the Minister to get away with this idea easily in my view.

 

Also, it is not the case that DIAC "could not" have processed the affected applications because the applicants allegedly don't have very good English or that the work-experience requirements were less rigorous than they are now. Those applications were not processed because the Minister told DIAC not to process them. That is a political instruction which has nothing to do with somebody's work experience or their IELTS score. DIAC blamed everyone and everything under the sun except for their Minister as DIAC trotted out one excuse after another to the applicants about why their applications were not being processed.

 

Since when has Aussie Immi Law depended on the Minister for Immi's whims from time to time instead of depending on what the relevant legislation says at the time when the visa application is made?

 

Cheers

 

Gill

[Guest babboo]

Hi !

 

So, first casualty in the "Cap n Cease" is a trades person. My application was also lodged on 27th August 2007... haven't heard yet from DIAC

[virtual_bajwa]

Hi !

 

So, first casualty in the "Cap n Cease" is a trades person.

Welcome baboo, to the discussion. But it is very hard to believe that they have started Cap and Cease.But If it is true pull up your socks guys.

 

Does an Indian pastry cook really need brilliant English in order to make Indian pastries for other people to buy and consume? I'm not saying "for other Indians to buy" because one of the things that I like most about Australia is the huge diversity of food. Loads of Aussies get to try all kinds of different countries' dishes etc because of it. That happens in Oz far more than in the UK.

Hey Gilly,

By the time I am also removing this....

[Guest Gollywobbler]

Hi VB

 

You have not said anything wrong, hun.

 

However since the OP on the other forum now says that he is not sure whether his friend's visa application has been capped & ceased under S39 or whether the application has been refused for some other reason, I am going to "unstick" this thread for a while until we find out exactly what the story is with the auto-electrician.

 

We can always stick the thread again if DIAC have definitely started implementing S39.

 

Cheers

 

Gill

[virtual_bajwa]

Hey Gilly,

This is very unfortunate that such type of rumors are float by the people on the forums. I do not know whether this news of Auto electrician is true or false . But If he is lying he should be removed from Embrace Australia website. Either if he has been mistaken by his friend he should be very careful from next time before posting anything such an important....Be careful guys......

[Guest celalit]

Hi friends,

 

I am pre-september 2007 applicant, waiting for my refund . Any idea when will they give us our refund?? So that I can re-apply..