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MRT Appeal - Cap and cease
Old 12th August 2010, 01:05 AM   #1
Robert K Chelliah
 
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Default MRT Appeal - Cap and cease

I am posting this outcome of an MRT appeal for a general skilled visa application that was made before September 2007.

A decision was made by the MINISTER that applications made before that date are to be returned to the applicants under section 39(1) and deemed as if the applications were never made. This case, however, was processed, refused, and permitted to appeal to the MRT and the MRT decided that the applicant meets the particular clause upon which it was refused.

The Minister, during the appeal process, had formally advised the MRT the existence of section 39(1).

The MRT has taken the instructions from the Minister to implement section 39(1) on behalf of the Minister. I am not a lawyer, but based on my simple common sense I protested that it is not the duty of the MRT to act on the cap and return provision of the Act.

As there may be other visa applicants in similar circumstances, with the approval of the MH administrators, I am posting this here as I have done in the MIA forum.

I invite comments from fellow agents and those visa applicants affected by such a finding.


My posting in the MIA Forum is as follows:

" The visa application for a subclass 138 was refused by the delegate on 24 June 2008 for not satisfying clause 138.216(1). Soon thereafter the client lodged an appealed to the MRT. The first MRT hearing was held in September 2009. The hearing was suspended to receive further documents to support the assertions that emerged at that hearing. These additional documents were submitted in October 2009.

The MRT member reconvened a hearing on the 3rd August 2010. At this hearing the Member first announced that she finds the visa applicant has met clause 138.216 (1), but then she continued that the Minister has written to the Tribunal advising it of the application of Section 39(1) – the cap and cease provisions brought in by the Minister- and accordingly, with a great deal of sympathy for my client, she announces that she was not permitted to grant of visa.

I protested and suggested that, with due respect, the Tribunal’s power is limited to the consideration of meeting or not meeting the clause under which the visa application was refused, that is to affirm, set aside or remit the visa application. I asserted that my understanding is that it is the DIAC that has the function to approve, refuse or apply section 39(1) or any other section of the law or the criteria. My response was that MRT is not to be seen as executing those functions that seemingly is not that of the MRT.

The member listened to me and ruled that she "is bound to obey the instruction". I retorted that I am not legally qualified and would discuss with my client to seek the opinion of a Barrister on the constitutionality of the outcome. The MRT member said Barristers are expensive and the visa applicant may wish to rather consider re applying under the new post July 1 rules.

My understanding is that the MRT is not the delegate of the Minister to undertake his bidding. I further understand that the MRT, as an independent body operating under the principle of substantial natural justice, should distance itself from irrelevantly straying into other sections of the law for which my client and I were unprepared.

Today I received the written MRT findings which says:"
"The Tribunal sets aside the delegate’s decision refusing to grant a Skilled - Australian Sponsored (Migrant) (Class BQ) visa and substitutes a decision that the visa application is taken not to have been made."

I am in the process of discussing the outcome with my client.

One leading Barrister is advising that visa applications affected by section 39(1) can be challenged in the courts for its lawfulness, while the MIA is warning agents and clients the futility of challenging it. I am as much confused as fellow agents are on the opposing views.

Robert K Chelliah
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Old 12th August 2010, 09:38 PM   #2
Sheelagh Blanckenberg
 
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Thanks Robert - a very interesting conundrum. Please report back to the forum on the outcome of this.
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May be tough even for lawyer agents
Old 14th August 2010, 04:21 PM   #3
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Default May be tough even for lawyer agents

Hi Sheelagh

I posted the same in the Migration Institute of Australia (MIA) Forum where highly learned Lawyer-Agents profess advise on complex issues. I am disappointed not a single response was given. Either I am too off the mark to bother about, or lawyers themselves are not clear on the possible jurisdictional error, if any, committed by the MRT.


Life aint meant to be easy (for a migration agent )


Cheers

Robert K Chelliah
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Old 14th August 2010, 08:24 PM   #4
Sheelagh Blanckenberg
 
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At least you went in to fight for your client without just giving up, Robert!

It is a very complex issue and one that I doubt many lawyers have got their heads around.
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Old 26th September 2010, 01:25 AM   #5
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Originally Posted by Sheelagh Blanckenberg View Post
At least you went in to fight for your client without just giving up, Robert!

It is a very complex issue and one that I doubt many lawyers have got their heads around.
Hi Robert

I completely agree with Sheelagh. At least you fought for your client, which is more than many would have bothered to do and I doff my hat to you for that.

An issue that springs to my mind is this:

If the MRT can turn round and say that the application is taken not to have been made then the MRT appeal must be taken not to have been made either. Have the MRT offered to refund however much the applicant paid them in order to launch the MRT appeal?

If the MRT has not offered a refund, how can they claim to have been advised fully, impartially and accurately by the Minister?

Cheers

Gill

Last edited by Poms In Oz; 26th September 2010 at 01:26 AM. Reason: typo
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Old 26th September 2010, 03:05 PM   #6
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Hi Gill and Sheelagh

The MRT refunded only the $1400 MRT lodgement fees, and not the other costs incurred. We were informed only during the later stages of the appeal in a most general manner drawing our attention to the existence of Sec 39, which we all knew existed soon after the Minister’s announcement of the policy, but it was on the day of the second hearing I felt we were "ambushed" unexpectedly and unprepared. I was not expecting the MRT to implement section 39.

I have forwarded to the client the name of the Barrister, CL, to pursue further if she so wishes.

Cheers


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Old 27th September 2010, 06:50 AM   #7
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Originally Posted by Robert K Chelliah View Post
Hi Gill and Sheelagh

The MRT refunded only the $1400 MRT lodgement fees, and not the other costs incurred. We were informed only during the later stages of the appeal in a most general manner drawing our attention to the existence of Sec 39, which we all knew existed soon after the Minister’s announcement of the policy, but it was on the day of the second hearing I felt we were "ambushed" unexpectedly and unprepared. I was not expecting the MRT to implement section 39.

I have forwarded to the client the name of the Barrister, CL, to pursue further if she so wishes.

Cheers


Robert K Chelliah
rkc@austmigration.com.sg
Hi Robert

Thank you very much for the additional information.

Personally, I think that to use S39 in the way that he has purported to do is an abuse of S39 and of the Minister for Immigration's powers.

I read loads of the Submissions to the Public Inquiry about the Cap & Kill Bill during the summer in the UK. One of them was written by an Aussie lawyer though I can't remember which lawyer.

Whoever wrote it, the author knew about the parliamentary debate that went on prior to the decision to insert S39 into the Act. Apparently Parliament specifically told the Minister for Immi at the time that the proposed S39 could be used in the event of a humanitarian crisis in another country suddenly causing loads of people to apply for Refugee/Asylum Seeker visas for Oz. They said that it could also be used for things like Working Holiday visas if necessary. However they specifically said that S39 could not be used by the Minister to make any changes to the Skilled or the Family Stream programmes. If the Minister wanted to alter the effect of the Act in either of those Streams then he must go back to Parliament, explain the perceived problem there and then Parliament itself would make a collective decision about how best to deal with the perceived problem.

As you know, the Cap & Kill Bill proposed to repeal S39 altogether. In my own Submission to the Inquiry (made before the one by the lawyer was published) I asked a rhetorical question about whether the Committee knew the details of why and when S39 was inserted? What was the reasoning behind it? I remarked that I think it is pretty unwise to recommend repealing a provision in a statute unless you know why the provision was inserted in the first place.

I'm sure that it is possible to do a search of the old Hansards in such a way that the debate(s) prior to the introduction of S39 would be revealed. However, it would require somebody who undestands a lot more than I do about how to do such a search than I know! I had a vague stab at finding the stuff, got nowhere and gave up! The Inquiry Committee was never going to take any notice of anything I said anyway, so it wasn't worh lots of head-banging and time-wasting by me to try to work out how to make a proper search of Hansard, either in the UK or anywhere else.

Nonetheless I remain persuaded by the lawyer's words subsequently.

There is no need for a form. DIAC would ruddy well know how much each of the visa applicants paid. If they could manage to send him a purported Notice, why couldn't they send a crossed cheque, in the visa applicant's own currency, made payable to the main visa applicant, at the same time? The idea that an unscrupulous migration agent might nick a paltry amount of money and then vanish seems highly fanciful to me! Indeed, a feeble excuse for hiding some nefarious antics by the Minister seems like a far more likely explanation to me.

Ever since Feb 2010 I have been trying to find out whether or not an estoppel would apply if the visa applicants accepted the money offered for the refunds.

Luckily, one of the RMAs did have the brains to ask about this and he sent me a couple of PMs on the PiO forum. Including a copy of a letter drafted by CL on behalf of one of the visa applicants (presumably a client of the RMA.) In this draft letter, CL simply said:

"Dear ...

I refute your purported use of S39. I demand instead that the Minister processes my visa application in accordance with S65 and that he does so without further delay.

Yours...."


I think that is brilliant. Apparently CL says that accepting refunds is inconsistent with demanding that the Minister obeys S65 instead of mucking about with S39. That idea makes perfect sense to me. (And I've probably been asking the wrong question by wondering about a possible estoppel. After years of land law in the UK - where the principle is that the tenant must find and pay his landlord - I can't count the number of times that I have told aggrieved tenants, "An estoppel will arise if you don't pay your landlord" and in other circumstances I've told aggrieved landlords, "Whatever you do, be seen to reject the rent when it arrives! You can't grab his money if you are complaining about your tenant!" I think I've got the idea of estoppel on the brain purely because of the Land Law principle!)

My impression is that as yet the legal fraternity have not worked out what legal arguments they would use if they are instructed to litigate. It seems that they are still considering that bit - which I imagine would take many months to work out.

However, demanding that the Minister obeys S65 strikes me as a very astute first step and it will give the Minister something to worry about when people don't simply accept a shekel that I reckon is tainted. (Ie, the refund - because my instinct is that there is a legal taint on the shekel being offered. And/or accepting the shekel is inconsistent with demanding compliance with S65. The legal nicety about a possible estoppel is probably irrelevant in the context of the Migration Act 1958.)

Somebody the other day said that DIAC are saying that they have sent out 5,400 Notices of termination and that they have received about 2,500 forms requesting a refund. Well, well! I wonder why they haven't had 5,400 forms requesting refunds if they are so sure that their advice to the Minister will stick to the walls in a few of the courts in Oz?! LOL!!!

Cheers

Gill

Last edited by Poms In Oz; 27th September 2010 at 07:00 AM. Reason: typos
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Old 27th September 2010, 02:23 PM   #8
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Hi Gill

Thank you for your valuable thoughts. I was referring to Christopher Livingstone as CL. Of all the eagles he seems to be the most visible and proactive on the application of s39. The application and constitutionality of s39 can only be fought out in a judicial process at the higher courts and ordinary non-lawyer agents have their limits, unable to move on to judiciary processes. I would have thought the MIA as the professional body would have shown greater leadership, including pro client-agent activism publicly on this particular issue.

Those applicants who opted to quietly accept the refund must have felt powerless with no other options. Some of them may well qualify for a fresh application, especially those under s/c 176, and once again MIA could have organised a process to accommodate them on a much reduced scale of fees through its willing members.

In most court cases I hardly see discussions on the putative intentions of legislation in the outcome of court decisions.


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Old 30th September 2010, 02:38 PM   #9
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Thanks Gill and Robert for the interesting commentary on this situation. I am greatly looking forward to what eventuates if the matter does go to court.
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Old 2nd October 2010, 08:08 PM   #10
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Thanks Gill and Robert for the interesting commentary on this situation. I am greatly looking forward to what eventuates if the matter does go to court.
Hi Sheelagh

A very warm welcome back, hon. Hopefully you are fine again now?

Sheelagh & Robert, I have a question, please.

I read today that the Cap & Cease Instrument of 24th June was "introduced" to the House of Reps and the Senate on 28th September 2010. I say "introduced" in inverted commas because I don't know what has actually happened or why.

Do all legislative instruments have to be produced to both Houses of Parliament in some way, do you know?

I am probably being overly optimistic about this, I know! However, I am just wondering whether the Minister's lawyers have decided that it would be prudent to get Parliament to ratify/approve the Instrument in some way because it relates to the Skilled Stream of visas?

The guy who posted the information did not provide the link to the source where he found it, so I am not sure how to find the information on the APH website (I imagine) in order to see whether I can work out what it all means.

So far, I have only managed to find a Digest of the 2010 Visa Capping Bill, which is not the same thing but the Digest makes quite interesting reading:

http://www.aph.gov.au/library/pubs/b...11/11bd003.pdf

If the conclusions in the Digest are correct, I suspect that the new make-up of Parliament would not alter the conclusions predicted.

Meanwhile, I shall try to do some more sleuthing to see whether I can find out why the Instrument of 24th June has been offered to Parliament in some way....

Any clues would be appreciated with great gratitude!

Cheers

Gill
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