Visa Capping - Senate Inquiry

[John Gilfillan]

This to my knowledge is currently at the discussion stage. The final Act has not yet been crafted, nor is it legislation yet.

 

Firstly if one of DIAC's directions is " 1 job for each future visa applicant " then it makes good sense not to allow 25% of GSM applications to consist of chefs and hairdressers. Even allowing for seasonal and temporary forms of unemployment an occupational quota makes good sense.

 

 

Hi Gary,

This only makes good sense if you are not a Chef or a Hairdresser.

 

John

[Guest gmac]

Hi John,

 

I agree with you, just picking up on the general theme that these occupations have tended to be looked at under the microscope.

 

In other words they are an easy target. I don't know whether this is anything to do with their assessments being made by "visa factories" or "colleges of fun". Not withstanding any suitably qualified professional is still entitled to be assessed for a bona fide skills assessment and make a valid visa application, provided they have a case for being likely to continue to be employable in their nominated occupation.

 

Unfortunately with nominated occupations they cannot be changed retrospectively.

 

Cheers,

 

Gary

[Guest jigish]

@ Jigish . . . yes dude. They have received overwhelming submissions from different people and the 10 days they gave the committee to come to a decision was not enough, so hence it is now going to be decided in August.! And why do you want to wait!? It does not affect any decisions any of us make in relation to Permanent Residence Application does it !? We anyway go ahead with our application or whatever and if the Cap is implemented, then it is Implemented. If it is not , Then Great !.

no i cant wait anymore man.. my life's on standstill... if they dont want to give me PR, then don't fuss about it, just say no... at least i can find a proper job in india without any discrimination..

[Guest Jamie Smith]

Jigish please edit your message. You and many others are very frustrated but embarrassing the people who want to support you is not a good look.

[Guest proud2beaussie]

jigish,

I have edited your post to remove unnecessarily crude language,as Jamie has pointed out we understand your frustration and have a great deal of sympathy for your plight however using bad

language on a public forum like PIO will do nothing to enhance your cause or improve your prospects.

Regards

Nigel

Moderator

[rahulpatel1969]

From what i saw on the Agents Gateway on the DIAC site, they are going to cap and cease preseptember 2007 applicants from July 1 using the old powers that the minister has. The new bill that is being introduced is for applicants after September 2007.

 

From what i gather they are starting to implement cap and cease for September 2007 under the old powers and we should see some fireworks from July 1.

[Farrukh Zeeshan]

From what i saw on the Agents Gateway on the DIAC site, they are going to cap and cease preseptember 2007 applicants from July 1 using the old powers that the minister has. The new bill that is being introduced is for applicants after September 2007.

 

From what i gather they are starting to implement cap and cease for September 2007 under the old powers and we should see some fireworks from July 1.

 

Can you please direct me where you read it, as I'm unable to find it on Agents Gateway

 

Thanks

[virtual_bajwa]

From what i saw on the Agents Gateway on the DIAC site, they are going to cap and cease preseptember 2007 applicants from July 1 using the old powers that the minister has. The new bill that is being introduced is for applicants after September 2007.

 

From what i gather they are starting to implement cap and cease for September 2007 under the old powers and we should see some fireworks from July 1.

 

Thanks Rahul for the information....

Can u please tell me the soarce of information. I think this post should go to Pre September applicants section.

[Guest Gollywobbler]

From what i saw on the Agents Gateway on the DIAC site, they are going to cap and cease preseptember 2007 applicants from July 1 using the old powers that the minister has. The new bill that is being introduced is for applicants after September 2007.

 

From what i gather they are starting to implement cap and cease for September 2007 under the old powers and we should see some fireworks from July 1.

 

Hi Rahulpatel

 

My impression, originally, was that they intended to use their existing powers via which to cap & cease applications for offshore visas made before 1st September 2007.

 

In his interview with Peter Mares on 4th June 2010, the Minister boasted that he had already killed off this group of applicants/applications. According to the Minister, the applications had been terminated and the refunds had been paid.

 

How?

 

1. At least one legislative Instrument has to be signed and published, applying the caps to the various subclasses of visa. So far, that has not happened;

 

2. The existing legislation does not provide for paying any refunds to the visa applicants but according to the Minister, the refunds have been paid. How did he do that? How did he pay in excess of $8 million AUD without any sort of enabling legislation to permit him to do so?

 

3. The sc 496 visa applications cannot be capped and ceased unless legislation is passed (which would be retroactive in its effect) to alter the existing legislation with regard to sc 496/ If the Minister had tried to terminate any applications in this subclass, the litigation would have been started by now because it would be an unlawful attempt by the Minister in the light of the existing legislation. If litigation had been commenced, one of the affected applicants/litigants would have talked about it and it would be public knowledge by now.

 

4. As recently as 31st May 2010, DIAC admitted that no applications have been capped and terminated by then. They threatened that they intended to start doing it during the week commencing 8th June 2010. There is no evidence that they have done anything.

 

I think the truth of the matter is that te Minister was flying kites with Mr Mares, trying to make out that he had already terminated a large group of visa applications without - supposedly - attracting any public fuss or bother at all.

 

I reckon that DIAC's lawyers have warned the Minister that trying to use the existing legislation in order to do what he wants is so fraught with potential legal difficulties that it is not worth the bother to try. Any sane, sensible lawyer would advise the Minister to wait and see whether Parliament accepts the new Visa Capping Bill 2010.

 

If the new Bill becomes Law then the Minister's plans could be carried out with no risk of any sort of legal comeback. It would be easy to squash any comeback in the media as well, via arguing that Parliament has passed a new Law.

 

I don't think they have done anything yet and I'm hoping that the Senate will reject the new Bill. If the Senate rejects the new Bill, the Minister will either have to risk facing litigation or he would have to go back to the drawing board with the whole of his nasty, unfair, retroactive little plan.

 

Cheers

 

Gill

[Guest proud2beaussie]

In his interview with Peter Mares on 4th June 2010, the Minister boasted that he had already killed off this group of applicants/applications. According to the Minister, the applications had been terminated and the refunds had been paid.

 

Hi Gill,

If the minister has claimed that he has done this then perhaps we could encourage a backbench member from the opposition to ask in parliament how this has been achieved and what right the minister thought he had to spend millions of dollars of our money in paying refunds when apparently

he has not been granted the permission of the parliament to do so!

The minister is starting to resemble a fish out of water,and it's starting to smell.

[Guest Gollywobbler]

Hi Gill,

If the minister has claimed that he has done this then perhaps we could encourage a backbench member from the opposition to ask in parliament how this has been achieved and what right the minister thought he had to spend millions of dollars of our money in paying refunds when apparently

he has not been granted the permission of the parliament to do so!

The minister is starting to resemble a fish out of water,and it's starting to smell.

 

Hi Nigel

 

I have highlighted this issue in my submission to the Senate Committee dealing with the proposed Visa Capping Bill.

 

Mr Mares has very kindly arranged for a transcript of the radio interview to be published:

 

New immigration powers cause concern - The National Interest - 4 June 2010

 

The Minister said:

“…..this is a Bill that gives the Minister the power to deal with situations where we're getting too many people in one occupation distorting the program, and to allow us to effectively deal with applications where people have no chance of being selected for migration if people are in an occupation or in a group where there's no chance of them coming through in the system. As you know, we did that earlier with a group of people who were offshore who had lodged pre-September 2007. They had no chance of becoming migrants to this country, and we used that power then to ensure they got their refund and knew where they stood.”

It seems impossible to me to make any clearer claim that allegedly, what the Minister claims has already been done.

 

Section 39 of the Migration Act 1958 is the only existing power via which the Minister could have done as he claims. S39 says:

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.

 

As you can see, there is no power to pay any refunds. The court will not import words, phrases and meanings that are not stated in the legislation. The money paid to DIAC is money that goes into Consolidated Funds, therefore the money became the property of the Aussie tax-payer and he is the man who would have to find the money via which to pay refunds, which payment would be contrary to S39 of the Act.

 

There has been no capping Instrument either, so how has the Minister already done that which he told Mr Mares he had already done?

 

Considering that DIAC's staff had contradicted the Minister's subsequent claims only 5 working days earlier, on 31st May 2010, I don't think that anything has actually been done as yet.

 

In which case I tend to wonder whether the 52 year old Minister is suffering from signs of premature senility....

 

The more likely explanation, though, strikes me as being political spin doctoring of the variety which is also known as trying to mislead the general public via lying.

 

Cheers

 

Gill

[Ozzieland]

In which case I tend to wonder whether the 52 year old Minister is suffering from signs of premature senility....

 

 

:biglaugh: and I think he is under the impression that it is wisdom with age :biglaugh:

[rahulpatel1969]

Hi Nigel

 

I have highlighted this issue in my submission to the Senate Committee dealing with the proposed Visa Capping Bill.

 

Mr Mares has very kindly arranged for a transcript of the radio interview to be published:

 

New immigration powers cause concern - The National Interest - 4 June 2010

 

The Minister said:

 

It seems impossible to me to make any clearer claim that allegedly, what the Minister claims has already been done.

 

Section 39 of the Migration Act 1958 is the only existing power via which the Minister could have done as he claims. S39 says:

 

As you can see, there is no power to pay any refunds. The court will not import words, phrases and meanings that are not stated in the legislation. The money paid to DIAC is money that goes into Consolidated Funds, therefore the money became the property of the Aussie tax-payer and he is the man who would have to find the money via which to pay refunds, which payment would be contrary to S39 of the Act.

 

There has been no capping Instrument either, so how has the Minister already done that which he told Mr Mares he had already done?

 

Considering that DIAC's staff had contradicted the Minister's subsequent claims only 5 working days earlier, on 31st May 2010, I don't think that anything has actually been done as yet.

 

In which case I tend to wonder whether the 52 year old Minister is suffering from signs of premature senility....

 

The more likely explanation, though, strikes me as being political spin doctoring of the variety which is also known as trying to mislead the general public via lying.

 

Cheers

 

Gill

 

Gill

 

Do you really think parliament will not back this bill. I doubt it. Immigrants are one of the most unpopular groups in Australia today. By the time the public realise what Evans has achieved, he will have engineered the collapse of the education industry. But I do think Evans will get his bill passed.

 

Let us see.

 

Rahul

[Guest Gollywobbler]

Gill

 

Do you really think parliament will not back this bill. I doubt it. Immigrants are one of the most unpopular groups in Australia today. By the time the public realise what Evans has achieved, he will have engineered the collapse of the education industry. But I do think Evans will get his bill passed.

 

Let us see.

 

Rahul

 

Hi Rahul

 

I think that if the new Bill becomes Law then the Minister will not use the powers as sparingly as he claims he intends to do so. I think that if he gets the powers, his subsequent use of them will resemble the actions of a Crusader defending Jerusalem, frankly.

 

I agree with you that immigration is not popular with the Aussie public at the moment but they are fed up about the costs of keeping the "unuauthorised maritime arrivals" in detention. I don't think they are particularly upset about anything else or even interested in anything else.

 

In any case, whether or not the new Bill becomes Law is not something that Parliament needs to discuss with the oridinary Aussie. The ordinary Aussie might not understand all the several different issues surrounding Immigration to Oz. He pays his MPs to know all the different details on his behalf and he (theoretically, anyway) trusts them to reach sensible conclusions on his behalf.

 

I don't know whether Australian history has ever included any retroactive legislation since the time when the formal Constitution was adopted in about 1905. The effect of the new Bill would undoubtedly be to introduce the principle of Law that works retroactively . I don't know whether that has ever been done before in Australia.

 

However if I were the average Aussie voter, it would not take me long to work out that a Government which could even think of introducing retroactively-operating legislation with one group of people could easily do the same thing to me about something else next and if they tried that, I would not like it.....

 

If I were the average Aussie, I would criticise previous Governments heavily for having allowed the mess to occur in the first place. However I would criticise the Krudd Government even more for its own failure in not having the imagination to solve the problem via something other than retroactively-operating legislation. To that idea, I would say, "No, Krudd. We took these people's money some time ago. They have acted with the utmost good faith in obeying all of the Roolz. Giving them their money back would not solve the problem that you are trying to behave disgracefully badly and that you are also trying to subvert the age-old principle that new legislation must never have a retroactive effect. Sorry, Krudd, but your ideas amount to going too far and you can't have this Bill. Find some other way of managing the problem that you say you have inherited."

 

The members of the relevant Senate Inquiry Committee will very soon get themselves across every possible issue that is relevant to this new Bill.

 

I am told that tradition in Oz is that Parliament tends to pass any legislation that the sitting Government wants to enact in the run-up to a General Election. Whilst I hear the people who are telling me that, has any previous Government waited until the last minute before trying to introduce such sweeping, draconian, retroactive legislation before and has it ever done so whilst trying to suppress any proper debate about the implications that are inherent in its proposals?

 

If the answer to my question is "No" then I think that the Senate might block the proposed Visa Capping Bill 2010.

 

Cheers

 

Gill

[rahulpatel1969]

Hi Rahul

 

I think that if the new Bill becomes Law then the Minister will not use the powers as sparingly as he claims he intends to do so. I think that if he gets the powers, his subsequemt use of them will resemble those of a Crusader defending Jerusalem, frankly.

 

I agree with you that immigration is not popular with the Aussie public at the moment but they are fed up about the costs of keeping the "unuauthorised maritime arrivals" in detention. I don't think they are particularly upset about anything else or even interested in anything else.

 

In any case, whether or not the new Bill becomes Law is not something that Parliament needs to discuss with the oridinary Aussie. The ordinary Aussie might not understand all the several different issues surrounding Immigration to Oz. He pays his MPs to know all the different details on his behalf and he (theoretically, anyway) trusts them to reach sensible conclusions on his behalf.

 

I don't know whether Australian history has ever included any retroactive legislation since the time when the formal Constitution was adopted in about 1905. The effect of the new Bill would undoubtedly be to introduce the principle of Law that works retroactively . I don't know whether that has ever been done before in Australia.

 

However if I were the average Aussie voter, it would not take me long to work out that a Government which could even think of introducing retroactively-operating legislation with one group of people could easily do the same thing to me about something else next and if they tried that, I would not like it.....

 

If I were the average Aussie, I would criticise previous Governments heavily for having allowed the mess to occur in the first place. However I would criticise the Krudd Government even more for its own failure in not having the imagination to solve the problem via something other than retroactively-operating legislation. To that idea, I would say, "No, Krudd. We took these people's money some time ago. They have acted with the utmost good faith in obeying all of the Roolz. Giving them their money back would not solve the problem that you are trying to behave disgracefully badly and that you are also trying to subvert the age-old principle that new legislation must never have a retroactive effect. Sorry, Krudd, but your ideas amount to going too far and you can't have this Bill. Find some other way of managing the problem that you say you have inherited."

 

The members of the relevant Senate Inquiry Committee will very soon get themselves across every possible issue that is relevant to this new Bill.

 

I am told that tradition in Oz is that Parliament tends to pass ay legislation that the sitting Government wants to enact in the run-up to a General Election. Whilst I hear the people who are telling me that, has any previous Government waited until the last minute before trying to introduce such sweeping, draconian, retroactive legislation before and has it ever done so whilst trying to suppress any proper debate about the implications that are inherent in its proposals?

 

If the answer to my question is "No" then I think that the Senate might block the proposed Visa Capping Bill 2010.

 

Cheers

 

Gill

 

Gill my friend

 

I really wish to belive and hope all this will work out the way you put it. I know you are trying to put a positive spin to a very bad sittuation. Thanks for trying.

 

I just wish this all ends anywhich way it has to but quickly.

 

Again thanks for trying to keep all our spirits up.

 

 

Regards

Rahul

[Guest Gollywobbler]

Gill my friend

 

I really wish to belive and hope all this will work out the way you put it. I know you are trying to put a positive spin to a very bad sittuation. Thanks for trying.

 

I just wish this all ends anywhich way it has to but quickly.

 

Again thanks for trying to keep all our spirits up.

 

 

Regards

Rahul

 

Hi Rahul

 

I am not an Indian so I don't believe in a fatalistic philosophy. I have told the Senate Inquiry Committee that I think:

 

1. The Bil itself is rubbish; it is very badly drafted and it contains no safeguards whatsoever to ensure the protection of visa applicant groups who should be protected from unnecessary stress and worry (eg the applicants for non-contributory Parent and Aged Parent visas.)

 

2. The principle of legislation that works retroactively is social and legal anathema in any supposedly "civilised" country. If Australia could treat its foreign visa applicants in this fashion, what would stop the Aussie Government (whether the present Government or a new Government at some later date) from treating Australia's foeign trading partners equally badly about something else at some future date? If Australia accepts the principle of retroactive legislation than nobody who deals with Australia in any capacity would feel safe from what an Australian Government might get up to with the foreign trading partners next. Would that fear encourage them to do business with Australia?

 

3. It is open to the Senate to reject the Visa Capping Bill in its entirety and I believe that the Inquiry Committee should recommend this course of action in its Report to the Senate.

 

The Committee is not going to take any notice of l'il ole me, obviously. However I reckon that a large number of Aussie education institutions etc are probably preparing submissions or have sent them to the Committee. I am certain that they will call for the Senate to scrap the wretched Bill and be done with it. If any phrase that I might use might support the Aussie "big-hitters" who will undoubtedly demand that the Senate should reject the Bill then my own tiny effort will have been worth it.

 

I will only believe that such a dreadful piece of proposed legislation would ever be enacted by a supposedly civilised regime on the day that it actually happens. Until then, I will continue to hope that it will not happen.

 

Hugs:hug:

 

Gill

[ranjith47]

Gill

 

Do you really think parliament will not back this bill. I doubt it. Immigrants are one of the most unpopular groups in Australia today. By the time the public realise what Evans has achieved, he will have engineered the collapse of the education industry. But I do think Evans will get his bill passed.

 

Let us see.

 

Rahul

 

There are issues about boat people and dodgy colleges bringing in a lot of people in an uncontrolled manner and these could relate to Immigration but there's nothing else the Australian people or the Govt are Against in terms of Skilled Immigration.!!! Australia was populated and has been successful through Immigrants from the early times.!! Only now, Immigration is much focused on Skilled Migration and such ,,, and the latest aspect in the spotlight being the Cap and Cease action (Which probbly will come into effect or may not) on such immigrants - Onshore and Offshore! . . . Gotta wait and See.:GEEK:

[ranjith47]

and Gill

 

You have actually given a BIG Lead towards getting a lot of ppl to give in Submissions to the Senate Committee and now with a lot of submissions or whatever, they have extended their review time and a big Hi5 goes to you and to others who have contributed to this cause.!! Just another example of If we all stick together , we can make a lot of things happen for the better!!!

 

Cheers

[rahulpatel1969]

Hi Rahul

 

I am not an Indian so I don't believe in a fatalistic philosophy. I have told the Senate Inquiry Committee that I think:

 

1. The Bil itself is rubbish; it is very badly drafted and it contains no safeguards whatsoever to ensure the protection of visa applicant groups who should be protected from unnecessary stress and worry (eg the applicants for non-contributory Parent and Aged Parent visas.)

 

2. The principle of legislation that works retroactively is social and legal anathema in any supposedly "civilised" country. If Australia could treat its foreign visa applicants in this fashion, what would stop the Aussie Government (whether the present Government or a new Government at some later date) from treating Australia's foeign trading partners equally badly about something else at some future date? If Australia accepts the principle of retroactive legislation than nobody who deals with Australia in any capacity would feel safe from what an Australian Government might get up to with the foreign trading partners next. Would that fear encourage them to do business with Australia?

 

3. It is open to the Senate to reject the Visa Capping Bill in its entirety and I believe that the Inquiry Committee should recommend this course of action in its Report to the Senate.

 

The Committee is not going to take any notice of l'il ole me, obviously. However I reckon that a large number of Aussie education institutions etc are probably preparing submissions or have sent them to the Committee. I am certain that they will call for the Senate to scrap the wretched Bill and be done with it. If any phrase that I might use might support the Aussie "big-hitters" who will undoubtedly demand that the Senate should reject the Bill then my own tiny effort will have been worth it.

 

I will only believe that such a dreadful piece of proposed legislation would ever be enacted by a supposedly civilised regime on the day that it actually happens. Until then, I will continue to hope that it will not happen.

 

Hugs:hug:

 

Gill

 

Gill

 

the buzzword is the word u used "civilised"

 

 

Rahul:wink:

[Guest beersheer]

Does anyone know if the community welfare workers with 7 bands each who have already filed their onshore PR in 2010 are sailing the same boat with chefs and hairdressers?

 

many thnx

[Guest vanaxel]

If abolishing the TPV deeming claiming that they were inhumane, I don't see how capping and ceasing a visa and givin 28 days to leave is any less inhumane.. Double standards? No offence to the refugees but I think we are treated no better than a prisoner. On bridging VISA's you cant leave the country and need to apply for permission for exit and re-entry.. for how long? 2 years...3 years... 20 years?

[Jeffster]

 

If abolishing the TPV deeming claiming that they were inhumane, I don't see how capping and ceasing a visa and givin 28 days to leave is any less inhumane.. Double standards? No offence to the refugees but I think we are treated no better than a prisoner. On bridging VISA's you cant leave the country and need to apply for permission for exit and re-entry.. for how long? 2 years...3 years... 20 years?

 

Very well pointed out.

 

Perhaps when I go home or to another country I should claim asylum as I have been held captive by Australia for the past 2 years, now that would be funny!

[Guest sc138]

hi ,

 

correct me if i m wrong

according to this S39 minister has to set cap first that can give him power for number of visa grants in one financial yr ...and once he reach that number then he able to cease rest of the applications.....

 

but he didn't set cap yet,,,,so what he talking abt on radio he started cap and cease pre sept 07 application......

[virtual_bajwa]

hi ,

 

correct me if i m wrong

according to this S39 minister has to set cap first that can give him power for number of visa grants in one financial yr ...and once he reach that number then he able to cease rest of the applications.....

 

but he didn't set cap yet,,,,so what he talking abt on radio he started cap and cease pre sept 07 application......

 

Well matey,

Well, I have an opinion that nothing is going to happen in regard to Cap and Cease. This is just a false rumour spread by Minister to tighten the grip on visa factories in Australia. And upto some extent he got success as many of the visa factories put their shutters down after these few rumors. It has been six months this cap and cease has been announced and nothing has been done on the ground. I am regularily checking the DIAC website thrice in a day to get some update on Implementation of Cap and Cease on Pre September applicants.It seems Minster is backing up on cap and Cease issue after a long thinking and chat with the senior solicitors.

[yc1ten]

Have a look at the submission number 208 from the UNION. They SUPPORT THE BILL!

 

They support to cap and kill by occupation particularly COOKS, HAIRDRESSERS, and IT. Also arguing that 100,000 jobs for Australian young people disappeared during the GFC.

 

Well.....they also want the govt to start thinking of capping INTERNATIONAL STUDENTS.