The DIAC refund the VAC for invalid applications and ceased applications.

[wrussell]

The DIAC refund the VAC for invalid applications and ceased applications.

 

Acceptance of a 'cap and cease' VAC refund offer would constitute a withdrawal of the visa application and would create an estoppel. Affected parties might want to Consult a Top Gun migration lawyer.

 

The Ombudsman (paper tiger) has no powers and can only make suggestions. If an issue has not attracted the attention of the press, as in: deporting Australian citizens, imprisoning permanent residents of Asian appearance and children, there are unlikely to be any suggestions to the DIAC.

 

The Ombudsman can do nothing about a ministerial decision, notwithstanding that the minister is not mentioned in a complaint.

[Guest Gollywobbler]

The DIAC refund the VAC for invalid applications and ceased applications.

 

Acceptance of a 'cap and cease' VAC refund offer would constitute a withdrawal of the visa application and would create an estoppel. Affected parties might want to Consult a Top Gun migration lawyer.

 

 

Hi Westly

 

Thank you, from the bottom of my heart, for the information above. I've been saying, ever since Feb 2010, that taking the money might give rise to an argument about estoppel but I have not been able to find an Aussie solicitor who has been willing to comment about my question one way or the other.

 

Only today I told Virtual Bajwa that since I have not been able to find an Aussie solicitor who is willing to comment about whether or not estoppel is what the Minister hopes to create with his idea of refunds, I have been coming to the conclusion that it is something that the Aussie courts will have to decide.

 

I've been asking several of the Top Gun Migration Lawyers in Oz about this for several months. The reply - invariably - has been that they don't know which way a court would jump about this question but they think that sorting it out would involve making new Law via the Courts and the case-law.

 

Who is the source of your own information, please?

 

Many thanks :notworthy:

 

Gill

[electrical guy]

I have been coming to the conclusion that it is something that the Aussie courts will have to decide

 

thanks gill,if this will referred to a judiciary body(assuming fair one) than it might be hard to scrap these helpless poor applicants in such shameful way

[virtual_bajwa]

I will try to stop myself from posting anything related to this matter as I had written enough of this now. So wait and watch. On other thread somebody was writting that her BF from U.K. got the visa after 8 year sometimes back due to continuous changes with DIAC. I think that is too much..

[Guest stillwaiting79]

got the visa after 8 year sometimes back due to continuous changes with DIAC...

 

hahhaa...so there's hope?

 

hahhahah

[Kokki]

hahhaa...so there's hope?

 

hahhahah

 

hehehehe

That's really funny:biglaugh:

[mlsdq]

so, cap and cease to get the refund or wait 8 years? madness!

[Guest zzzsianzzz]

8 years? 8 years confinement?! I will be out of Australia, they can keep my VAC. I don't want to earn money and use my annual leave only limited to spending my holidays in Australia only. 8 annual leave here? Where's my freedom of choice?! The skills Australia can add one vacancies to their crap results and I will be telling my employer sorry I can't get PR n if u want to blame, pls blame it on those morons who create this ****.

[Guest Gollywobbler]

Hi All

 

I think it is unlikely that Westly will identify the lawyer on here. However Westly has provided his own e-mail address. If you e-mail him, he might say who the lawyer is so that you can then ask the lawyer to explain more.

 

Those of you who have contacted Nigel Dobbie know that he is very non-committal about whether the Government's actions can be attacked. He thinks that the best route is to ask a senior barrister about the whole thing, and to see what the barrister says and thinks. I've had exactly the same reaction from others besides Nigel Dobbie.

 

I am not certain but I think that I have heard that it is not possible to launch a Class action in an Immi Law matter. I vaguely understand that a provision in the Migration Act 1958 prevents a Class action. However I have not read the Act and I don't know which part of it would contain the provision.

 

Even if a Class action would be impossible in formal litigation, the drill seems to be that the solicitor and barrister choose one client between them, where the facts represent those of a majority of visa applicants. They bring the proceedings in the name of their "guinea pig" client. The idea seems to be that if the guinea pig wins the litigation, DIAC will recognise that it is not worth it for thousands of writs to be issued against the Minister, so DIAC then treat all of the affected applicants in the same way.

 

That said, there is nothing to stop hundreds of people from instructing the same solicitor, so that everybody shares the costs of the litigation between them. I've never worked for a Law firm in the UK where this has happened so I don't know how the lawyers organise all of the affected clients but it seems that they do so, somehow.

 

I stress that I am not encouraging anybody to leap into litigation about this. I think that many, many people will take the view that since Australia doesn't want them, they will migrate to a different country instead and that they will forget about Australia for good. I would clap loudly for those people.

 

However it does seem that some people are willing to consider hauling the Minister into Court and letting the Courts in Oz decide whether the termination is a valid use of S39 or not. In effect, I think that a lot of visa applicants will sue the Minister even though it is done by means of a test case in the name of one of the visa applicants only.

 

I think that people whose applications have been capped and ceased should talk to Westly Russell since he seems to be spearheading the matter. A Registered Migration Agent cannot represent anybody in a matter involving litigation in the courts in Oz. Only a solicitor can represent them. However if an RMA is the first port of call, I can't see anything wrong with the idea. The RMA simply passes the affected clients on to a solicitor. If the solicitor and the RMA agree that the solicitor will pay the RMA a referral fee for each client sent on by the RMA, I can't see anything wrong with that either as long as there is full disclosure to the client.

 

Westly Russell is very beady, hence I am taking what he says seriously. I gather that he acts for a lot of people from the Philippines and I would guess that he already has several clients who have been caught up in S39. I understand that Westly does a lot of pro bono work in order to help people, which makes him a Good Man in my eyes.

 

Cheers

 

Gill

[Guest Gollywobbler]

I will try to stop myself from posting anything related to this matter as I had written enough of this now. So wait and watch. On other thread somebody was writting that her BF from U.K. got the visa after 8 year sometimes back due to continuous changes with DIAC. I think that is too much..

 

Hi VB

 

Was this an application for a Partner visa that had to go through the Migration Tribunal and then perhaps via a Court as well later on?

 

Cheers

 

Gill

[Guest Gollywobbler]

8 years? 8 years confinement?! I will be out of Australia, they can keep my VAC. I don't want to earn money and use my annual leave only limited to spending my holidays in Australia only. 8 annual leave here? Where's my freedom of choice?! The skills Australia can add one vacancies to their crap results and I will be telling my employer sorry I can't get PR n if u want to blame, pls blame it on those morons who create this ****.

 

Hi zzzsianzzz

 

Welcome to Poms in Oz.

 

I gather that DIAC have been boasting that many innocent people and their employers will be prejudiced unfairly as a result of the Minister's decision to use S39.

 

If the employers are Aussie Citizens, they have a choice. They can decline to vote for Labor in the General Election in a couple of weeks' time. They can also complain to their Trades Unions or other professional bodies. I think that the Minister for Immi and his Government are likely to find that Aussie employers will not simply put up with allowing the Government to disrupt their businesses.

 

What is your own situation, please? Has your visa application been Capped & Ceased under S39?

 

Cheers

 

Gill

[Guest zzzsianzzz]

Hi Gill,

 

I'm on 886 Computing Prof. But at cat 4, its most probably getting cap n kill at this rate. just a matter of time before it happens. But I definitely wouldnt stay here for 8 years on a BVA they can keep my VAC and I will move to other countries with local experience. they can try training another professional then. As I understand that we are not allowed to apply for another similar visa without being on 485 or student,etc, and its not within our control now. But what I can control is I wouldnt sit here and wait 8 years for that thing to be processed, thats one thing for sure. I can get a citizenship at elsewhere with that number of years. Australia is not the only country in the world that lacks IT professionals. :rolleyes:

[Guest Tanner]

Sorry to seem like a wowser, but I don't want to see any of PIO members spending thousands of dollars pursuing an unsuccessful litigation.

 

According to an MIA's notice to members on 23 July 2010:

 

Legal Challenges to Cap and Cease Letters

 

Some MIA Members have received letters from the Department of Immigration and Citizenship (DIAC) indicating that some of their clients’ applications have been capped and ceased.There is some speculation within the profession that the letters from DIAC can be challenged on the basis that applicants might be able to enforce the processing of their applications because of a "legitimate expectation" arising from section 65 of the Migration Act 1958that the Minister would determine their application.The MIA has sought legal advice in relation to this argument, with preliminary assessment suggesting that a challenge to the legislation on the above premise would be difficult and that case law demonstrates that appeals on the basis of this argument have, in the past, been unsuccessful.The MIA reminds Members of their obligations under the Code of Conduct, particularly with respect to advising clients of the costs associated with pursuing a particular course of action pursuant to Clause 5.3 of the Code.Further, Part 8B of the Act provides that costs may be awarded against third parties, such as Registered Migration Agents (RMAs), who contravene section 486E, which provides that a person must not encourage another person to engage in migration litigation that has no reasonable prospects of success.An extract of the legal advice in relation to potential arguments in a challenge to the cap and cease letters has been provided for Members below.

 

Legitimate Expectation

 

There is a principle that no cause of action arises from a valid change in the law that causes disadvantage to an affected person.In Health Insurance Commission v Peverill (1994) 179 CLR 226, at 261, McHugh J quoted with approval the observation of Pitney J in New York Central RR Co v White (1917) 243 US 188 at 198 that:No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit.

The above principle was applied in several cases that challenged Migration Amendment Regulations 2006 (No 4), which introduced a new requirement for outstanding skilled visa applications that an applicant’s qualification leading to a positive skills assessment must have been obtained as a result of full time study in a "registered course" as defined in Regulation 1.03 . The effect of this amendment was that applicants who had already obtained a positive skills assessment, but not in a "registered course", were no longer eligible for a visa.There were a number of simultaneous challenges to the amendments in the Federal Magistrates Court. The issue was eventually resolved in favour of the Minister, and no doubt at great expense to the applicant, by the decision on appeal of Sundberg J in Quarm v Minister for Immigration and Citizenship (2008) 171 FCR 307, which was handed down on 22 August 2008.

 

Estoppel

 

Some have further speculated that the letters from DIAC can be challenged on the basis that the Minister may be estopped from refusing to process the applications.There is a well-established rule of law that, where the Parliament, within the Constitution, has provided in legislation that a particular circumstance has a particular consequence, nothing a public servant does can override the legislation.For example, in Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 Kitto J said, at 117:No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act....See also Minister of Immigration and Ethnic Affairs v Sabri Polat (1995) 37 ALD 394.Assessment of this argument also suggests that a challenge would be difficult, and the MIA again reminds Members of their obligations to advise clients of the costs associated with pursuing a particular course of action and that a person must not encourage another person to engage in migration litigation that has no reasonable prospects of success.

[Guest Gollywobbler]

Sorry to seem like a wowser, but I don't want to see any of PIO members spending thousands of dollars pursuing an unsuccessful litigation.

 

According to an MIA's notice to members on 23 July 2010:

 

Legal Challenges to Cap and Cease Letters

 

Some MIA Members have received letters from the Department of Immigration and Citizenship (DIAC) indicating that some of their clients’ applications have been capped and ceased.There is some speculation within the profession that the letters from DIAC can be challenged on the basis that applicants might be able to enforce the processing of their applications because of a "legitimate expectation" arising from section 65 of the Migration Act 1958that the Minister would determine their application.The MIA has sought legal advice in relation to this argument, with preliminary assessment suggesting that a challenge to the legislation on the above premise would be difficult and that case law demonstrates that appeals on the basis of this argument have, in the past, been unsuccessful.The MIA reminds Members of their obligations under the Code of Conduct, particularly with respect to advising clients of the costs associated with pursuing a particular course of action pursuant to Clause 5.3 of the Code.Further, Part 8B of the Act provides that costs may be awarded against third parties, such as Registered Migration Agents (RMAs), who contravene section 486E, which provides that a person must not encourage another person to engage in migration litigation that has no reasonable prospects of success.An extract of the legal advice in relation to potential arguments in a challenge to the cap and cease letters has been provided for Members below.

 

Legitimate Expectation

 

There is a principle that no cause of action arises from a valid change in the law that causes disadvantage to an affected person.In Health Insurance Commission v Peverill (1994) 179 CLR 226, at 261, McHugh J quoted with approval the observation of Pitney J in New York Central RR Co v White (1917) 243 US 188 at 198 that:No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit.

The above principle was applied in several cases that challenged Migration Amendment Regulations 2006 (No 4), which introduced a new requirement for outstanding skilled visa applications that an applicant’s qualification leading to a positive skills assessment must have been obtained as a result of full time study in a "registered course" as defined in Regulation 1.03 . The effect of this amendment was that applicants who had already obtained a positive skills assessment, but not in a "registered course", were no longer eligible for a visa.There were a number of simultaneous challenges to the amendments in the Federal Magistrates Court. The issue was eventually resolved in favour of the Minister, and no doubt at great expense to the applicant, by the decision on appeal of Sundberg J in Quarm v Minister for Immigration and Citizenship (2008) 171 FCR 307, which was handed down on 22 August 2008.

 

Estoppel

 

Some have further speculated that the letters from DIAC can be challenged on the basis that the Minister may be estopped from refusing to process the applications.There is a well-established rule of law that, where the Parliament, within the Constitution, has provided in legislation that a particular circumstance has a particular consequence, nothing a public servant does can override the legislation.For example, in Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 Kitto J said, at 117:No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act....See also Minister of Immigration and Ethnic Affairs v Sabri Polat (1995) 37 ALD 394.Assessment of this argument also suggests that a challenge would be difficult, and the MIA again reminds Members of their obligations to advise clients of the costs associated with pursuing a particular course of action and that a person must not encourage another person to engage in migration litigation that has no reasonable prospects of success.

 

Hi Tanner

 

Many thanks for this information - which I had not seen before, so I am very grateful to you.

 

My own point about possible estoppel is not the same point that the MIA have made. The MIA say that their lawyers are talking about the idea that the Minister might be estopped from using Section 39.

 

I'm saying that if the visa applicant accepts the refund then the visa applicant may be estopped from applying to the court for redress. I am not even trying to address the question of whether a visa applicant might win any litigation.

 

My own question is the bit that I have been trying to find out about, viz, "Is it safe for a visa applicant to accept the offer of a refund or does that offer contain the hidden trap of estoppel?" If you can't even ask the court for redress because you have accepted the Government's shekel, you don't have a viable argument about anything else, plainly.

 

All the "Top Gun Migration Lawyers" whom I have asked about my own question have told me that they do not know which way a court would jump about it. I'm qualified in England and Wales. In E&W, the risk of an estoppel arising jumps off the page. It doesn't really seem to impinge on the consciousness of an Aussie lawyer, so I suspect that it could be a concept that Aussie Law does not know about. Aussie Law knows of lots of ideas which were either never a part of English Law or the concept has become obsolete and irrelevant in the UK - where I think that the concept in question has been scrapped.

 

Westly Russell seems to think that a "Top Gun Mgration Lawyer" has said that if the visa applicant takes the refund then s/he will be estopped from raising any other arguments. If the lawyer is right then anybody who,might be thnking of trying to sue the Minister needs to be very careful about accepting the refund.

 

As for the other issues, I'm not interested in what the MIA thinks. The MIA is a private members' club for Registered Migration Agents and their cronies. It is not a "professional organisation" in any known sense of the term. RMAs can't be compelled to join the MIA and only about 50% of RMAs belong to it.

 

To paraphrase Meav, who is a member of PiO and who understands Aussie Migraton Law inside out, "If the MIA get the Law right it is a miracle and it is also an accident!"

 

I agree with Meav, who is accustomed to quoting section numbers etc and explaining what the provisions actually mean, somebody like me then goes and reads these provisions in the legislation. The fact that Meav's interpretation is the correct one leaps off the page.

 

You don't need this type of in-depth understanding of the relevant Law in order to do somebody's visa application for them. The same is true with domestic conveyancing in tE&W. An in=depth knowledge of Land Law is hardly ever required, so a clerk can do 95% of the work. The solicitor merely hangs about and reads the file "just in case...." Ocasionally there is a problem with the Title to the land. I am far more likely to spot the problem than a clerk is and if there is a problem, I also know how to deal with it, which a clerk would not know.

 

The MIA have also changed their tune lately. Back in Feb 2010, the MIA told the visa applicants whose applications were about to be terminated that these people would have "certainty." The rest of us roared, "WHAT????!!!!"

 

Then in May 2010 the Minister for Immi - flanked by DIAC's Top Brass - all appeared vefore the Senate Estimates Committee - where the proceedings are recorded verbatim in Hansard. It transpired that DIAC and the MIA are at loggerheads over $290,000 AUD. Apparently - according to Hansard - the MIA say that they are entitled to hang on to this money because it is a "golden goobye" to the former CEO of the MIA, apparently. The head honchos from DIAC said that it is Commonwealth money and that if the MIA does not hand it over to DIAC pretty soon, DIAC are serious about the idea that they will sue the MIA for the money, apparently.

 

The DIAC officiials were not joking. If this cannot be resolved swiftly and amicably, I think that they reallly do intend to sie the MIA, as they have threatened. The kid gloves came off the MIA immediately. Instead of pandering to DIAC and toadying up to the Government, they have realised that there is no love lost between the Government and the MIA. How on earth a "professional organisation" did not realise that DIAC are threatening litigation and that they mean it is completely beyond me..

 

So the MIA seem to be realising that their job is to look after their members, not to kiss the bluddy Government Protecting the visa applicant who has paid an RMA in the first place is a wholly secondary and largely irrelevant issue as far as the MIA are concerned.

 

Westly Russell is an independent thinker. If a lawyer told Westly that it might well be risky if a visa applicant takes the money, then I am inclined to take that warning very seriously indeed. The visa applicant might still be told that it woud not be worth suing, but if he can't even ask the Court to consider his argument because he has taken the shekel, plenty of visa applicants will get their RMAs by the throat, I expect!

 

Somebody will definitely sue the Minister for Immi about this. Definitely. Whether the Plaintiff wins or not is something for the Aussie Court to decide. It is not up to the MIA's lawyers to tell a visa applicant what to think, after all

 

Cheers

 

Gill

[electrical guy]

yet i have no basics in law and power of aus sys.but one thing i must point out is how we can assume negative result of a law process that has occurred in such circumstances which was never previously faced by any applicant(now 20,000 in numbers) in that particular way only coz of single ministerial power.this is not a single one affected and wants law to be flexible for his personal benefits only as tanner exampled in prev post.if a fair examine has been introduced then basic reasons of implementing cap and cease will be proved an act of short sighting and failures of plans imposed by immi minister

[wrussell]

I have posted the name of the lawyer on the original thread.

[Guest gsm886]

Hi Gill,

 

I'm on 886 Computing Prof. But at cat 4, its most probably getting cap n kill at this rate. just a matter of time before it happens. But I definitely wouldnt stay here for 8 years on a BVA they can keep my VAC and I will move to other countries with local experience. they can try training another professional then. As I understand that we are not allowed to apply for another similar visa without being on 485 or student,etc, and its not within our control now. But what I can control is I wouldnt sit here and wait 8 years for that thing to be processed, thats one thing for sure. I can get a citizenship at elsewhere with that number of years. Australia is not the only country in the world that lacks IT professionals. :rolleyes:

 

Hey when did you apply? Im on same 886 visa sponsered by my sister, my occuptation is cookery and back whne i was studying(07-09) mine was on csl list and sol list, they have changed it many times and once just before i was going to apply for my visa, so ive waited a year and expected it to be finalised in a year (sep 2011) however these new changes made me in group 4 and it doesnt matter if im sponsered by my sister. I called up last week and they told me MAYBE another 2-3 years from 2011!!! that would be 5 years for pr, in the meantime i have to pay for my daughters fees for school and recently had another child.,,, I didnt know it would take this long otherwise i would of studied something eles...

[Guest Gollywobbler]

Hi All

 

Westly Russell has very kindly confirmed that the lawyer referred to in the first post on this thread is Christopher Levingston. Here is what Westly has said in the original thread:

Christopher Levingston

 

Christopher Hugh Levingston

 

Migration Agent Registration Number: 9356987

 

Business Name Christopher Levingston & Associates Pty Ltd

Phone 02 9290 2633

Facsimile 02 9290 2191

Email Address clevingston@levingston.com.au

Web Address www.levingston.com.au

Business Address Level 3

36 Carrington Street

SYDNEY NSW 2000

AUSTRALIA

 

List other agents in this area

Relation to Business Director

Postal Address GPO Box 2502

SYDNEY NSW 2001

AUSTRALIA

 

Chris is a Top Gun accredited migration specialist lawyer and he has won many unlikely cases, recently: Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (23 June 2010) "S B Lloyd SC with L J Karp for the appellant (instructed by Christopher Levingston & Associates)..." Full report at:

Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (23 June 2010)

That is about as good as you can be. Here is the text of a recent email to Chris:

Dear Chris

 

I followed your suggestion and sent this to the unidentified Acting Manager:

 

Acting Manager

 

Business Support Section

 

Adelaide Skilled Processing Centre

 

Dear Acting Manager

 

I refer to you correspondence of 2 July 2010.

 

I have been instructed to inform you that my client rejects your assertion that you have the power to cap and cease her visa application.

 

My client will not accept your invitation to claim a refund of the visa application charge, because this would constitute a withdrawal of the application and would create an estoppel.

 

The delay in processing this application, which has been in place for almost three years, is entirely unreasonable and I now call upon you to decide the application according to law, as required by Section 65 of the Act.

Westly Russell

 

 

 

 

 

[Guest Gollywobbler]

I have posted the name of the lawyer on the original thread.

 

Hi Westly

 

Thank you very much indeed for identifying the lawyer in question.

 

I completely agree with you that nothing said by Chris Levingston should be taken lightly or dismissed. He is one of the most able, serious and successful heavyweight solicitors in the Immigration Law game in Australia.

 

I note, too. that Chris has taken a very simple line by telling DIAC. "We will not accept your offered refund because the visa application is valid, lawful and it is up to you to process it in accordance with the relevant Law."

 

Personally I think that the clear, simple, unequivocal line that Chris is taking is much better than the waffle pushed out by the MIA recently.

 

I know Chris very slightly but he is one of the lawyers whom I didn't ask about whether the visa applicant will be taking a risk if he takes the shekel that the Minister is offering, ostensibly in the spirit of goodwill and fair play.

 

I have long suspected that this supposedly "kind and generous" offer might contain a hidden legal trap. If so then the trap could only be that the sinister Minister hopes that if he can get the visa applicant to take the shekel, the applicant would later be estopped from taking his complaint to the Court and demanding genuinely fair play from the judiciary in Oz.

 

Personally I simply don't believe the yarn that the Minister is supposedly such a good-hearted bloke that he would have told the Aussie Cabinet, "I want $14 million out of you lot because I've suddenly decided that I'm Santa Claus - in the middle of the year, too." I've always thought, "Oh yes? What are you really up to behind this fairy story and what have your lawyers really been telling you, cobber, given that I don't believe a word of your Santa Claus story?"

 

This is certainly a risk that is very familiar in E&W, where clients are continually told, "Whatever you do, do not accept the money because the money is tainted and accepting it would scupper your chances of obtaining redress from the court later."

 

However, since I could not find an Australian-qualified solicitor who was willing to comment on this point, I was beginning to think that maybe Australian law does not know about this aspect of the principle of estoppel.

 

Whether or not a visa applicant would win any subsequent litigation, I don't know. My own worry has always been whether or not the visa applicant could even get into a court if he takes the Government's shekel first.

 

Very many thanks again, Westly. :notworthy:

 

Cheers

 

Gill

[electrical guy]

thanks gill for ur support ,its like holding a straw to a drowning one.i have not filled that suicide form yet .my application was lodged by unregistered migration agent so what suggession u have for me about neglecting their refund offer(sure one) and from whom i could get help

[Guest Gollywobbler]

thanks gill for ur support ,its like holding a straw to a drowning one.i have not filled that suicide form yet .my application was lodged by unregistered migration agent so what suggession u have for me about neglecting their refund offer(sure one) and from whom i could get help

 

Hi Electrical Guy

 

I think that the first thing to understand is this:

 

1. If you take the shekel that the Minister is offering, you might be estopped from complaining about the alleged termination of your application later

 

BUT

 

2. If there is no realistic likelihood that you would win a later complaint anyway, then is there any sense in not taking the money and salvaging what little financial compensation that you can?

 

Therefore I think that many, many people in your situation need to obtain very careful legal advice before deciding anything.

 

In this situation, first of all I would suggest considering your own position first:

 

A. How old are you, please? It seems from your earlier posts that you are probably only around 33 or 34? If I am right about your age, your occupation is General Electrician, which is on the new SOL and it might well be in at least one of the new Sttae Migation Plans. I suspect that in your particular situation, grabbing the Government's shekal and putting the money towards another visa attempt could be cheaper and less uncertain than running the risks (and costs) of litigation.

 

B. You have said in an earlier post that you are applying from India. I do suspect the Minister of private racism against visa applicants who are not native English speakers, vut he would never dare to say or do anything publicly which might prove my suspicion. Therefore he would never dare to attack you simply because you are Indian- in which case there is no point in worrying about this bit.

 

C. Using the IELTS as an excuse is a good way of weeding out applicants who are not native English speakers without mentioning racism specifically. If they were to change the criteria so as to say that you must score not less than 7.0 in all 4 mpdules of the General IELTS, do you reckon that you would be able to get that score without too much difficulty?

 

D. You say that you already have State sponsorship from VIC. Let us suppose that VIC decide not to include General Electrician in the SMP from VIC but one of the other States does include this occupation. Would you be prepared to move to anywhere in Oz in order to get into Oz or are you only keen on the idea if you can move to VIC?

 

It might turn out that a good lawyer would suggest to you personally that your own best bet would simply be a new application, whereas the same lawyer might tell Client B that Client B really has no option other than to try to litigate against S39.

 

I think it is very important for all the affected applicants to realise that they are not sheep, so it is very unlikely that only one possible solution would suit all of them. I think it is more likely that groups of the affected applicants will be given differing advice about what would be best for that particular group.

 

I think it is also very important to note that Chris Levingston, Westly Russell and I are only talking about one very small, narrow, preliminary point with the idea of estoppel. Chris Levingston is only saying, "Don't accept the refund if you are thinking about going to Court over this." That statement is VERY far short of him saying that he thinks that any litigation would necessarily lead to the visa applicant winning in court.

 

I think that any affected visa applicant who wants to explore the whole thing in more detail and depth should consult Westly Russell in the first instance. Westly's contact details are in his posts above.

 

Cheers

 

Gill

[electrical guy]

thanks gill again for your valuable support.your guess about my age is prefect one,i am 33rs old.i was applied as general electrician with 6.00 overall and with 13yrs experience and still in same trade.also it would be not impossible for me to score 7.00 each if deamanded.Victoria was only my first choice becoz i have to pay no sponsorship fees and one of my friend having citizenship residing there for 7 yrs. as u said i have a further good and cheaper chance to apply again but how they deal with humans in past has binding my feet to participating for another emotional and confidence break down drama and now it look likes a mirage which has already gave sickness to my thoughts.they have chose a easy and cunning acts to defend their immoral deeds.so what we can expect from in future.i will try too last resource .i am waiting for next step after coming elections.till then i try to judge on all possibilities .

 

thanks:notworthy:

[wrussell]

Check your email for Christopher's opinion.

 

If someone decides to seek a judicial ruling the costs could be very high.

 

If the minister were to lose he would almost certainly appeal to the full court, the high court, the full high court - Christopher Evans is saying his prayers.

 

The courts can order a lawyer who brings a completely hopeless case to pay the costs, so this unlikely to happen. The courts can also order than money be paid in advance to cover prospective costs. Not a good 'scenario' as our American friends might say.

 

I am not a lawyer and I have run only one federal court case - Russell v the Minister for Immigration, G75 of 1993 (unreported). A vastly amusing exercise, undertaken because I was writing a book about the department of racialism and I needed another chapter. I might not have run it had my wife whose visa had been illegally cancelled not been an Australian citizen by the time the case was heard.

 

Gill, if you want a copy of the work, let me have an email address that will accept a 1.5MB pdf file.

[Guest Gollywobbler]

Check your email for Christopher's opinion.

 

If someone decides to seek a judicial ruling the costs could be very high.

 

If the minister were to lose he would almost certainly appeal to the full court, the high court, the full high court - Christopher Evans is saying his prayers.

 

The courts can order a lawyer who brings a completely hopeless case to pay the costs, so this unlikely to happen. The courts can also order than money be paid in advance to cover prospective costs. Not a good 'scenario' as our American friends might say.

 

I am not a lawyer and I have run only one federal court case - Russell v the Minister for Immigration, G75 of 1993 (unreported). A vastly amusing exercise, undertaken because I was writing a book about the department of racialism and I needed another chapter. I might not have run it had my wife whose visa had been illegally cancelled not been an Australian citizen by the time the case was heard.

 

Gill, if you want a copy of the work, let me have an email address that will accept a 1.5MB pdf file.

 

Hi Westly

 

Thanks very much for your new post, above. I have sent you a second PM today, with my e-mail address and I confirm that the e-mail can accept any size of pdf file, so I am very interested in your work and what it says, and I would very much like to read it if you would be kind enough to e-mail a copy.

 

If the minister were to lose he would almost certainly appeal to the full court, the high court, the full high court - Christopher Evans is saying his prayers.

Hehehehehe. He deserves to be saying his prayers but is anyone's god listening to him, I wonder? Apparently the opinion polls (and maybe the Aussie Voters) have turned against the Lady In White.... If I were Evans, I'd be praying about winning the next Election at teh minute, or he might not have to worry about anything except how to enjoy an early retirement from the front line, I suspect.

 

Are you or Chris Levingston able to provide a rough estimate of the size of any fighting fund that would be neededm please? Are we talking about $500,000 AUD for both sides' legal costs or would it be more like $1m AUD? (Or maybe more?) A very rough, 'ball park' figure is all that anyone needs for the moment, I reckon.

 

For the moment, I reckon that there are genuine issues here that ought to be heard and tried by the judiciary in Oz. My own feeling is that attempting to use S39 purely in order to make a mere fleabite of an impact on a purely Government-inspired and caused administrative problem is right off the wall. The whole idea is grossly unfair.

 

Cheers

 

Gill

[electrical guy]

is it possible for new elected party could change decisions on international relating issues like migration made/implemented by previous govt