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Guest babboo

Appeal -- stop VAC refund Pre Sept 07 applicants

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Guest babboo

Dear Pre September 2007 applicants,


I have asked DIAC to stop processing my VAC refund on the Cap n Cease bill. I request all pre September applicants who have asked for a refund to write a email and also send your request by registered post as well.


This advise was rendered to me by a migration agent and also by a Accredited Migration Lawyer. So, please come together. The bill of Cap and Cease has been lapsed in the parliament.



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Guest Gollywobbler

Hi Babboo


I think your post might come across as being a little confused.


The Cap & Kill Bill 2010 has lapsed in Parliament and it will not come back unless Minister Bowen decides to re-introduce the original Bill or something similar to it. With the 2010 Bill, Minister Evans decided to try to rush it into Law without allowing enough time for any proper Parliamentary debate about it. The Senate referred it to the Legal & Constitutional Affairs Committee but they decided to stop considering it when the Election was called and so the 2010 Bill lapsed anyway.


Minister Evans' attempt to use S39 of the Migration Act 1958 in order to Cap & Cease all the offshore GSM applications that were made before 1st September 2007 has not lapsed. It was made under existing law and it survives the Election.


Christopher Levingston, at least, has advised his clients to reject the offered refund. He believes that accepting the refund might mean that a disgruntled visa applicant might be estopped from suing the Minister for Immi. Somebody who has accepted his/her VAC back cannot demand that the Minister should continue to process his/her visa application for free, after all.


Have you heard of DIAC actually paying the offered refund to anybody as yet? It is the height of poor Public Relations for them to drag their feet about paying the promised refunds. Also, the more DIAC delay making the payments, the more the visa applicants involved are going to consult solicitors such as Christopher Levingston. That is not clever from the Minister's point of view.


CL is saying to everybody, "Working out whether we can sue the Minister, and if so on what grounds we can sue the Minister, will take quite a long time and it would also be very expensive to do. However if you want to say that S65 of the Act overrides S39 on this occasion - and whatever other arguments the lawyers acting for the visa applicants can devise - then reject the offer of a refund because accepting the refund might well cut the legal high ground from under your feet."


As far as I know, CL has not yet said that he thinks he could sue the Minister successfully. For the moment, he seems to be more concerned with protecting the visa applicants' right to sue if litigation turns out to be possible.


There is always the risk that the lawyers will eventually say that it is not possible to sue the Minister successfully about this matter. If the lawyers give up then people who have rejected the refunds still won't get their visas and they won't get their VACs back either.


I am not qualified in Australian Law so it would be crazy for anybody to expect me to do the sort of work that CL - and maybe other lawyers as well - is/are doing with this. I understand that CL has said that any litigation would be very expensive because there would be appeals and counter-appeals, probably all the way to the High Court of Australia, before the Court eventually makes a ruling which will bind all the parties concerned.


Also, I understand that suing the Minister in this situation would not necessarily result in the visa application being put back on track. If people ended up having to make new visa applications, is it possible to make a visa application pursuant to law that no longer exists?


Equity's Darling is likely to be the person like Electrical Guy, who is only about 33 so his age is not a problem and he is a General Electrician, who complies with all the eligibility criteria for the new law as well as for the old law.


The result could be a damp squib, in as much as the Court eventually says that it was unlawful for the Minister to have terminated Electrical Guy's original visa application. In that situation, DIAC would offer a compromise - they would tell Electrical Guy to make a new visa application pursuant to the law applicable at the time when DIAC offer the compromise and then DIAC would process his new visa application within a week. They would see for themselves that fairness demands that the Minister should make this sort of compromise with Electrical Guy. DIAC would bust a gut to ensure that Electrical Guy would get a visa for Oz without any further delay in this possible situation.


However this type of litigation usually takes several years before the situation is eventually resolved. I would think that it would take at least 5 years from the date when the intial proceedings commence and it might then take longer than 5 years to resolve the matter eventually. It definitely wouldn't be a case of any of the disgruntled visa applicants receiving their visas next year unless Minister Bowen decides to change the whole of the Ministerial Game Plan.


Personally, I think it is unlikely that Bowen will decide to un-do what Evans has done.


According to DIAC, they sent Cap & Cease notices to about 5,400 visa applicants. I think DIAC told some MIA members that they have received requests for about 2,500 refunds. If so then it looks like a significant proportion of the affected visa applicants have either decided not to fight the Cap & Cease Notices or they have been drawn into a Ministerial honey trap by saying that they want their money back, without having been warned by the Minister that they should seek independent legal advice before they do anything. I think the Courts would frown on any attempt by the Minister to argue estoppel when he did not suggest to the visa applicants that he might be trying to create an estoppel. I think that a sceptical, impartial Judge would be likely to tell the Minister, "You can't claim an estoppel now when you said nothing about it in the first place, Guv."


However I want to stress that rejecting the refund is NOT the first step towards securing a visa for Oz. In rejecting the offer of a refund, there is a significant risk that the visa applicant will turn out to have decided to make a gift of the money to the Australian Government when there is nothing in it for the visa applicant at the end of the day.





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