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Old 2nd October 2010, 09:27 PM   #11
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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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Hi Robert

I agree with you. I have been following the whole thing with great interest. I don't know exactly how it would be possible to challenge the Minister's actions in court but my instinct is that there should be a way to do it. Otherwise it puts a Minister above the Court and a Minister can interpret a provision of statute law in whatever way he chooses. I don't think that the law and parliamentary democracy work together in such a way that the judiciary is muzzled, in effect.

I've read the MIA Notice, which seemed to me to have been written by a bunch of lawyers who simply seem to want to lie down and die instead of putting forward an optimistic opinion as well as their own very negative opinion. I don't do divorce but every divorce lawyer knows that, "There are two sides to every story - yours and sh*thead's.....!"

I agree with you that it is very confusing when two groups of lawyers say two different things that oppose one another completely. Both arguments sound persuasive when I read them, though I haven't bothered to read any of the cases cited by the lawyers instructed by the MIA. I suspect that simplicity is the key to the whole thing.

However it is very vexing when one cannot work out which way is "up" with this thing!

Cheers

Gill
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Old 4th October 2010, 08:18 PM   #12
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Hi Sheelagh

A very warm welcome back, hon. Hopefully you are fine again now?
Thanks Gill. Getting stronger by the day. Not out of the woods yet though.

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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.
It has been reintroduced by the Minister for Immigration as it did not pass through the last Parliament. On 26 May 2010, the cap & cease bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 15 June 2010. The Senate subsequently agreed to extend the reporting date to 11 August 2010.

On 19 July 2010, the Governor-General prorogued the 42nd Parliament and dissolved the House of Representatives. The committee resolved not to continue its inquiry into the provisions of the Bill during the elections and agreed that should the Bill be reintroduced in the new parliament, the Senate can again refer it to the committee for inquiry.

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Do all legislative instruments have to be produced to both Houses of Parliament in some way, do you know?
Yes, under our law I understand all regulations (which extends to legislative instruments) have to be brought before both Houses of Parliament. After tabling any member may, during the next ensuing 15 sitting day period, move a motion that the legislation be disallowed.

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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?
I think it's reintroduction is quite ominous actually.

When it was first introduced back in May, the Senate were concerned about its imposition and referred it to a committee of enquiry. I have read a selection of the feedback the committee received. Most so utterly against the imposition of the Bill that I believe that should we not have gone to an early election, the Bill would likely have been shot down and disallowed. Unless of course there is true bipartisan party support for solving this immigration 'problem' in this way. This may be the case as both major parties have been calling for a reduction in immigration and both major parties have had a hand in allowing the current 'mess' to occur and proliferate.
The fact the Minister is pushing for its introduction again makes it seem to me there is a belief in the Gillard government that, with Green support (and possible Lib party concurrence), the Bill will get through this time round. I hope I am wrong.

Quote:
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.
Perhaps he found this - Tabled Papers Register

Cheers

Sheelagh

PS If you are interested in finding out more about Australia's delegated legislation and its scrutiny which has led to most, if not all legislation having to go through both Houses of Parliament, have a read of Emeritus Professor Dennis Pearce's paper.
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Old 4th October 2010, 09:37 PM   #13
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I agree with you that it is very confusing when two groups of lawyers say two different things that oppose one another completely.
Totally agree! And you're a lawyer, and Robert and I have many years migration experience. So where does that leave the ordinary visa applicant? Puzzled, dumbfounded, angry and feeling very cheated I would think.
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Old 5th October 2010, 12:03 AM   #14
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Thanks Gill. Getting stronger by the day. Not out of the woods yet though.



It has been reintroduced by the Minister for Immigration as it did not pass through the last Parliament. On 26 May 2010, the cap & cease bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 15 June 2010. The Senate subsequently agreed to extend the reporting date to 11 August 2010.

On 19 July 2010, the Governor-General prorogued the 42nd Parliament and dissolved the House of Representatives. The committee resolved not to continue its inquiry into the provisions of the Bill during the elections and agreed that should the Bill be reintroduced in the new parliament, the Senate can again refer it to the committee for inquiry.



Yes, under our law I understand all regulations (which extends to legislative instruments) have to be brought before both Houses of Parliament. After tabling any member may, during the next ensuing 15 sitting day period, move a motion that the legislation be disallowed.

I think it's reintroduction is quite ominous actually.

When it was first introduced back in May, the Senate were concerned about its imposition and referred it to a committee of enquiry. I have read a selection of the feedback the committee received. Most so utterly against the imposition of the Bill that I believe that should we not have gone to an early election, the Bill would likely have been shot down and disallowed. Unless of course there is true bipartisan party support for solving this immigration 'problem' in this way. This may be the case as both major parties have been calling for a reduction in immigration and both major parties have had a hand in allowing the current 'mess' to occur and proliferate.
The fact the Minister is pushing for its introduction again makes it seem to me there is a belief in the Gillard government that, with Green support (and possible Lib party concurrence), the Bill will get through this time round. I hope I am wrong.

Perhaps he found this - Tabled Papers Register

Cheers

Sheelagh

PS If you are interested in finding out more about Australia's delegated legislation and its scrutiny which has led to most, if not all legislation having to go through both Houses of Parliament, have a read of Emeritus Professor Dennis Pearce's paper.
Hi Sheelagh

Very many thanks for your reply.

I have skimmed through Professor Pearce's paper to get the general gist. I now understand the general gist, so thank you very much for the link. I have saved the Paper and I plan to print it and then study it in detail - I'm not brainy enough to understand something so complicated properly in just one, quick skim-through.

The link to the APH Tables Register doesn't work because something is wrong with the technical end at the APH website's end of the proceedings. I'll try again tomorrow and if it is not fixed by then, I will ask the APH webmaster to mend it. I don't think the error is at your end. The APH website is talking about a technical error at their end, I think.

The guy who told me about what turns out to be a disallowable Instrument made pursuant to S39 of the Act is a General Electrician who applied for a GSM visa prior to 1st September 2007. He has formal qualifications from India and had done a proper apprenticeship, so TRA did not approve him under Pathway D, he told me. Luckily he is only 33 at the moment. He and his RMA have checked everything and he would be able to make a new application under sc 176. He seems to have been caught out solely because he applied for a GSM visa prior to 1st September 2007, when his agent had been assured that waiting until after 1st September 2007 would not make any difference. The visa applicant is upset, bewildered & angry and his RMA is not thrilled either.

As the applicant says, when he qualifies for a sc 176 visa anyway, what on earth is the purpose of making him jump through completely pointless and expensive hoops? In one way, he would be the ideal person to be a guinea pig for Chris Levingston. In another way, CL would probably be the first person to advise him to accept the refund, make a new visa application and be done with it.

So the Electrician was asking me about the disallowable Instrument made pursuant to S39. He was not talking about the Cap & Kill Bill 2010. Has that Bill been revived as well??? If so, I agree with you that it is ominous.

Many thanks

Gill
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Old 5th October 2010, 02:20 PM   #15
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Hi Gill

Just to be clear, by dis-allowable Instrument, I presume you are referring to Legislative Instrument - F2010L01599 (IMMI 10/023) Determination under paragraphs 134.228(b), 136.231(b), 137.230(b), 138.233(b) and 139.234(b) of Schedule 2 - Maximum Number of Certain Skilled Visas That May Be Granted In The 2009-10 Financial Year - June 2010?

Not sure why you are referring to it as dis-allowable as it has certainly not be tabled as such (try the first link here to the Tabled Papers Register - not sure why my link in the above post does not work). But then my understanding of parliamentary processes is pitiful indeed (other than I wish we could do away with all politicians).

The Migration Amendment (Visa Capping) Bill 2010 is still alive and well unfortunately - at the first meeting of the Senate under the new Parliament on 28 Sept the visa capping bill was still on the table and Senator McEwan called for the Legal and Constitutional Affairs Legislation Committee Report to be printed and disseminated in order to move the Bill further along. Hopefully in order to knock it on its head once and for all and to consign it to file 13 - but then I am not holding my breath as I think it will, subject to a few tweaks and amendments, receive bi-partisan support from both major parties.

S
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The S39 Instrument
Old 5th October 2010, 10:21 PM   #16
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Hi Gill

Just to be clear, by dis-allowable Instrument, I presume you are referring to Legislative Instrument - F2010L01599 (IMMI 10/023) Determination under paragraphs 134.228(b), 136.231(b), 137.230(b), 138.233(b) and 139.234(b) of Schedule 2 - Maximum Number of Certain Skilled Visas That May Be Granted In The 2009-10 Financial Year - June 2010?

Not sure why you are referring to it as dis-allowable as it has certainly not be tabled as such (try the first link here to the Tabled Papers Register - not sure why my link in the above post does not work). But then my understanding of parliamentary processes is pitiful indeed (other than I wish we could do away with all politicians).

The Migration Amendment (Visa Capping) Bill 2010 is still alive and well unfortunately - at the first meeting of the Senate under the new Parliament on 28 Sept the visa capping bill was still on the table and Senator McEwan called for the Legal and Constitutional Affairs Legislation Committee Report to be printed and disseminated in order to move the Bill further along. Hopefully in order to knock it on its head once and for all and to consign it to file 13 - but then I am not holding my breath as I think it will, subject to a few tweaks and amendments, receive bi-partisan support from both major parties.

S
Hi Sheelagh

Many thanks for your help. Yes, we are talking about the same Instrument - ie the one that was produced pursuant to S39 of the Act. My vague understanding of this Instrument (gleaned from a combination of what George Lombard said and what Professor Pearce explains in great & scholarly detail - most of it beyond me) is that this Instrument would be disallowable.

It would be disallowable because it reflects a departure from the Government's policies which were in force until the introduction of the Instrument. Right up until June 2010, the Government's policy has always been that if you made a visa application in accordance with the details of a subclass of visa that has since been scrapped, DIAC and the MRT will both apply the rules that prevailed at the time when you made the visa application in order to determine which way is "up."

Evans has tried to use his own policies here, not the Government's historical, tried and tested Policy. Therefore Parliament should scrutinise his decision. They might agree with it in the end. According to Prof Pearce, Parliament is not entitled to oversee Government Policy once that Policy has been set, but where is the hard evidence that anybody apart from Evans & Rudd actually altered Government Policy in 2010? Did Parliament agree to such a radical alteration in the Government's historical Policy of fair play?

My personal view is that, with the connivance of Kevin Rudd, Chris Evans abused long-standing Government Policy and that he also abused his own powers as the Minister for Immi. I think he simply went too far, fuelled by a megalomanic belief that he could somehow sideline Parliament in this matter.

The Aussie Parliament is a million times better than the British Parliament has become. In the UK, the Cabinet decides what to do, tells Parliament what the Cabinet has decided and the MPs just rubber stamp whatever the Cabinet has said. They get paid a heck of a lot for acting as clerical rubber stamps imho.

My impression is that the Aussie Parliament is miles better and that the MPs do actually earn their salaries, at least most of the time and on most issues. They are vociferous if they think something is not right, and so forth. Which is what the tax-payer pays them to be.

All that said, whether or not an enfeebled Parliament really has the political will to knock an obvious injustice on the head, when doing so would not win any votes for the MPs or their parties, is another matter..... Perhaps naively, I do have the impression that the very weak Parliament is the problem, though, not the individual beliefs of the MPs.

My feeling is that nobody is likely to step in and get enough MPs on side in order to vote that the S39 Instrument should be disallowed and that Bowen should take the whole idea back to the drawing board. There was a suggestion that Senator Xenophon and another MP (Senator Fielding or a similar name but I can't remember the name of the other one) might lead a campaign to get these iniquitous actions of Evans & Rudd stopped.

Nick Xenophon got one of his minions to start replying to the many e-mails last week. The minion says that Senator Xenophon has received many complaints and that he will "bear them in mind when voting." That is not exactly leading a campaign of any sort, it seems to me! As far as I know, the other MP has not responded at all.

Looking at Senator Xenophon's website yesterday, he does not seem to have led a campaign involving Immigration issues at any time. He seems to have been involved with campaigns such as Aged Care, to help the people who already live in Australia rather than any Aged people (or any other people, including Boat People) who might want to move to Oz. My impression is that Immigration is simply not one of this man's personal political babies.

I can understand why all the visa applicants who face being chopped off at the knees by S39 are hoping against hope that Parliament might put a stop to the situation which they have been living with since Feb 2010 and that Parliament will put a stop to it by disallowing the S39 Instrument.

I suspect that it is a forlorn hope but it is human nature to hope for the best in your heart even though you fear the worst in your head.

For myself, in order to help the guy who asked about all this on another forum, I felt that I needed to find out exactly what the whole thing is about before I could say anything useful to him. Having discovered the little that I now know, I suspect that his own best hope will be a new visa application once the SMPs have been published and, hopefully, he manages to secure State sponsorship from a State that has General Electrician on its SMP.

For hundreds if not thousands of less lucky visa applicants, though, I think that the only possible solution will lie in the hands of the judiciary - provided that the legal fraternity eventually decide that there is enough legal meat on the bone to make some litigation worthwhile. There is no guarantee that the Judges would not side with Senator Evans but I can understand that for as long as there is a chance, there is also a faint spark of hope.

It is a dreadful situation and the Australian Government should be thoroughly ashamed of itself for Evans' brutality and inhumanity towards other people, in my view.

Cheers

Gill
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The Migration Amendment (Visa Capping) Bill 2010
Old 5th October 2010, 11:02 PM   #17
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Hi again, Sheelagh
Quote:
The Migration Amendment (Visa Capping) Bill 2010 is still alive and well unfortunately - at the first meeting of the Senate under the new Parliament on 28 Sept the visa capping bill was still on the table and Senator McEwan called for the Legal and Constitutional Affairs Legislation Committee Report to be printed and disseminated in order to move the Bill further along. Hopefully in order to knock it on its head once and for all and to consign it to file 13 - but then I am not holding my breath as I think it will, subject to a few tweaks and amendments, receive bi-partisan support from both major parties.
Oh dear. I was not aware that this wretched Bill has been revived.

I share your pessimism about this Bill. I fear that it will become law, though I think that it will do immense harm to Australia's prospects of increasing its workforce via immigration in future years.

Senator Evans always relied on his own belief that Australia is such an attractive destination that it will always be able to attract as many skilled migrants as it wishes to attract, irrespective of the cost, hassle and uncertainty of the hoops that prospective immigrants will be required to jump through.

If Evans' belief proves to have been mistaken, Industry in Oz predicts economic Queer Street for Australia in 5 years' time.

History will prove who was right about this one.

As I understand it, the Legal & Constitutional Affairs Committee did not get as far as writing a Report for anybody to scrutinise. They simply said that they were downing tools:

http://www.aph.gov.au/senate/committ...ort/report.pdf

Maybe more will be revealed during the MIA Conference later this week and/or at the Senate Estimates Committee hearing on Tuesday 19th October 2010:

http://www.aph.gov.au/senate/estimates/schedule.pdf

The agenda for the meeting has not been published as yet.

I suspect that the new Bill will become Law. It will then be impossible for anybody to say with any certainty that any visa application will be safe. At one point, Evans did say that he intended that the Bill should only be a temporary measure, in effect. He hinted that he only intended to use it for the purpose of getting the several current backlogs reduced and back under proper control.

His idea seems to have been that the Government would use the proposed new legislation in order to decimate the size of the GSM pipeline, offering nothing but a very stingy, interest-free pittance by way of compensation to those whose visa applications would suddenly be chopped off at the knees.

That is bad enough but his successor could extend it to the Queues for Parent 103 and Aged Parent 804 applications as well - with absolutely no possible redress of any sort for the visa applicants caught out by new, unexpected, retrospectively-acting legislation. I majored on the Parents in my own submission about this one because nobody else bothered to stick up for this sizeable group and everybody else was already far more eloquent than I am in their many defences of GSM visa applicants.

Some groups of visa applicants should be ring-fenced and protected in my opinion.

I suppose that all I can do is to live in hope that Parilament might have the decency to insist on some proper safeguards with this.

Cheers

Gill
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Old 5th October 2010, 11:13 PM   #18
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Hi Sheelagh

Many thanks for your help. Yes, we are talking about the same Instrument - ie the one that was produced pursuant to S39 of the Act. My vague understanding of this Instrument (gleaned from a combination of what George Lombard said and what Professor Pearce explains in great & scholarly detail - most of it beyond me) is that this Instrument would be disallowable.

It would be disallowable because it reflects a departure from the Government's policies which were in force until the introduction of the Instrument. Right up until June 2010, the Government's policy has always been that if you made a visa application in accordance with the details of a subclass of visa that has since been scrapped, DIAC and the MRT will both apply the rules that prevailed at the time when you made the visa application in order to determine which way is "up."

Evans has tried to use his own policies here, not the Government's historical, tried and tested Policy. Therefore Parliament should scrutinise his decision. They might agree with it in the end. According to Prof Pearce, Parliament is not entitled to oversee Government Policy once that Policy has been set, but where is the hard evidence that anybody apart from Evans & Rudd actually altered Government Policy in 2010? Did Parliament agree to such a radical alteration in the Government's historical Policy of fair play?

My personal view is that, with the connivance of Kevin Rudd, Chris Evans abused long-standing Government Policy and that he also abused his own powers as the Minister for Immi. I think he simply went too far, fuelled by a megalomanic belief that he could somehow sideline Parliament in this matter.

The Aussie Parliament is a million times better than the British Parliament has become. In the UK, the Cabinet decides what to do, tells Parliament what the Cabinet has decided and the MPs just rubber stamp whatever the Cabinet has said. They get paid a heck of a lot for acting as clerical rubber stamps imho.

My impression is that the Aussie Parliament is miles better and that the MPs do actually earn their salaries, at least most of the time and on most issues. They are vociferous if they think something is not right, and so forth. Which is what the tax-payer pays them to be.

All that said, whether or not an enfeebled Parliament really has the political will to knock an obvious injustice on the head, when doing so would not win any votes for the MPs or their parties, is another matter..... Perhaps naively, I do have the impression that the very weak Parliament is the problem, though, not the individual beliefs of the MPs.

My feeling is that nobody is likely to step in and get enough MPs on side in order to vote that the S39 Instrument should be disallowed and that Bowen should take the whole idea back to the drawing board. There was a suggestion that Senator Xenophon and another MP (Senator Fielding or a similar name but I can't remember the name of the other one) might lead a campaign to get these iniquitous actions of Evans & Rudd stopped.

Nick Xenophon got one of his minions to start replying to the many e-mails last week. The minion says that Senator Xenophon has received many complaints and that he will "bear them in mind when voting." That is not exactly leading a campaign of any sort, it seems to me! As far as I know, the other MP has not responded at all.

Looking at Senator Xenophon's website yesterday, he does not seem to have led a campaign involving Immigration issues at any time. He seems to have been involved with campaigns such as Aged Care, to help the people who already live in Australia rather than any Aged people (or any other people, including Boat People) who might want to move to Oz. My impression is that Immigration is simply not one of this man's personal political babies.

I can understand why all the visa applicants who face being chopped off at the knees by S39 are hoping against hope that Parliament might put a stop to the situation which they have been living with since Feb 2010 and that Parliament will put a stop to it by disallowing the S39 Instrument.

I suspect that it is a forlorn hope but it is human nature to hope for the best in your heart even though you fear the worst in your head.

For myself, in order to help the guy who asked about all this on another forum, I felt that I needed to find out exactly what the whole thing is about before I could say anything useful to him. Having discovered the little that I now know, I suspect that his own best hope will be a new visa application once the SMPs have been published and, hopefully, he manages to secure State sponsorship from a State that has General Electrician on its SMP.

For hundreds if not thousands of less lucky visa applicants, though, I think that the only possible solution will lie in the hands of the judiciary - provided that the legal fraternity eventually decide that there is enough legal meat on the bone to make some litigation worthwhile. There is no guarantee that the Judges would not side with Senator Evans but I can understand that for as long as there is a chance, there is also a faint spark of hope.

It is a dreadful situation and the Australian Government should be thoroughly ashamed of itself for Evans' brutality and inhumanity towards other people, in my view.

Cheers

Gill
Hi Gill

OK, I understand where you are coming from now. Yes, all legislation which passes through our Parliament can be disallowed if enough votes against are made. I thought you meant it had already been disallowed and your electrician (and others) are just hanging on, waiting to find out what the Minister does next.

In my honest opinion, there is buckley's chance of this being voted down! It will slip through with barely a ripple I would suggest as our pollies turn their minds to more 'meaningful' stuff. Have you seen some of the other legislation hanging over from the previous Parliament? They've got a lot of old stuff to get through and then of course there is all the new!

As to the damage it has done to Australia, individually I am sure some of our MPs may have a passing moment of concern. Collectively? Not a chance. I think it will pass unanimously. The 'damage' has already been done and they can blame the previous Minister if necessary! Good on Xenophon though but only if he does seriously give some thought to the disaffected visa applicants if/when the passing of the legislation comes to a vote.

Cheers
Sheelagh
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Old 21st October 2010, 03:15 PM   #19
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Hi Sheelagh...

I never knew that the visa capping bill is on the verge to be reintroduced...
I applied residency as welfare worker on 15may10, 885 , 7 bands each...
Well I thought that chefs and hairdressers are in the limelight but now I've realised that all in the Cat4 are going to be eliminated....

I cant apply for SMP and ENS in the welfare work as I dont Have the necessary experience and if you dont have permanent visa, then its always a struggle to find a job and certainly no ENS option in community welfare.

What do you reckon I do it from here...
If some marketing company sponsors me(I wish), can it....?, given that I'm on 885 bridging visa...?
I applied the residency myself so I'm all lost...

If you can throw some light, if there's any, I'd be very grateful..
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Old 30th October 2010, 03:07 AM   #20
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Hi Robert,

Would you be able to tell me where do I stand with my case under this Visa Capping bill.

I applied as Welfare Worker in October 2009 under category 886. My brother sponsored me. Since last 2 years, I am also working in the welfare industry and at the moment, I am doing permanent job with good package though I don't have employer sponsorship. I have already send lots of documents to DIAC regarding my work experience.

When DIAC do visa capping, are they going to look at particular specifications about applications or they are going to reject all category 4 applications. I have been here since 6 years, my brother and sister families are settled here and I got permanent job. Any idea where my case or cases like mine will be standing at the moment??

Thanks

G
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