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 No inquiry into Visa Capping Bill 2010 Update – 26/07/2010
BREAKING NEWS(updated on 08/08/2010 @ 10.10am) - There is a text msg circulating among international students which relates to this Bill. We note that this is not law at this stage and only a Bill. (explanatory note - On 26 May 2010 the Senate referred the Migration Amendment (Visa Capping) Bill 2010 for inquiry and report.The referral of the Bill was due to a Senate resolution on 13 May 2010.The original reporting date was 15 June 2010. However, the reporting date has been extended to 11 August 2010.) Read - Visa capping retrospectively a crime against humanity
 SIGN THE PETITION FOR OUR VOICE TO BE HEARD AGAINST THE (Visa Capping) Bill 2010
Go to(Preamble) - http://www.gopetition.com/online/37136.html
To sign go to - http://www.gopetition.com/online/37136/sign.html
Migration Amendment (Visa Capping) Bill 2010
Visa capping retrospectively a crime against humanity
Migration Amendment (Visa Capping) Bill 2010 [Provisions]
On 26 May the bill was referred to the Senate. The Senate has referred the “Visa Capping” Bill 2010 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 15 June 2010 and once it moves to get passed during the winter session of Parliament it could become a new law before the federal election.
The purpose of the bill is to amend the Migration Act 1958 to enable the Minister for Immigration and Citizenship to cap visa grants and terminate visa applications based on the class or classes of applicant applying for the visa.
In particular, the bill would enable the Minister to make a legislative instrument to determine the maximum number of visas of a specified class or classes that may be granted in a financial year to visa applicants with specified characteristics, and treat outstanding applications for the capped visa as having never been made.
The proposed amendments are intended to address issues relating to the General Skilled Migration (GSM) visa program.
This bill will presumably activate the proposed capping and cessation of offshore GSM visas announced by the Minister on 8 February 2010.
The bill would also give the Minister power to cap and cease by “specified characteristics” such as occupation.
What is the meaning of the above note: this MAY mean that for eg: if the minister decides that a particular number of accountants are required for the year 2010(e.g. only 1000 accountants for 2010 - this will be the cap), all applications lodged after reaching this limit may be ceased and application fee may be refunded) Note by Dinesh Weerakkody on07/06/2010.
The proposed legislation - Effect of visa cap
Further information about the enquiry can be found on the Senate website here.
Click to read the Bill, Explanatory Memorandum and Second Reading Speech.
The committee has invited written submissions to its inquiry by Friday 4 June 2010.
Below is the Ministers comment - “the reporting on the new bill was a bit hysterical and inflammatory". "This is just about making sure that we have the ability to manage the program with a policy in relation to students and management of their issues"."This is just about making sure that we have the ability to manage the program with a policy in relation to students and management of their issues" – Source ABC Radio
But the writer does not necessarily agree with the minister. Students and applicants who have all ready lodged applications have a well founded fear for their future. They have invested in lots of money to come to Australia and paid money for applications for PR , TR and for student visas and for other related matters. The government has accepted the money for applications. People have altered their life style and sometimes resigned from good jobs or sold their properties to come to Australia. These are matters that should not be taken lightly, as such the minister’s comments “hysterical and inflammatory” is absurd and incongruous.
While we accept that changes are needed in number of related areas in relation migration such draconian legislation is not acceptable.
Visa capping bill – any considerations?
The SENATE committee has very little time to consider the ramifications of the visa-capping bill. It seems unlikely that it will be blocked by the Coalition, which means it could pass into law before the parliament is prorogued for a federal election. This bill deserves more rigorous scrutiny as people’s lives and future is at stake. The writer notes that there are important questions of legal and constitutional principles are at stake and important human and moral issues needs to be considered.
Can the minister’s decision be reviewed?
Unlike a visa refusal, a visa termination cannot be challenged before the Migration Review Tribunal or may not be possible to challenge in any court. This is because technically, the minister will not have made any decision, and without a decision there is nothing to review or contest.
If the minister were to cap and terminate the applications for permanent residency then the associated bridging visas would also “cease to be in effect” after 28 days. Most of these applicants would have been in Australia for 4 -7 years and waiting for a decision after lodging valid applications for PR. They will have four weeks to wind up their affairs and leave.
More than a quarter of the migrants waiting in the general skilled pipeline – 38,990 applicants as of 31 March – are former international students who have graduated from Australian universities and colleges. In total there are 147,000 applicants for general skilled migration already waiting on a visa decision.
Retrospective legislation – how unfair it is
Once the Bill becomes law and if the minister makes a decision it will have a retrospective effect.
Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.
There may be circumstances when retrospective legislation is warranted. History suggests and has accepted such retrospective law particularly in war crimes where the wrongdoer has transgressed the "natural law" and in tax cases where an un-foreseen loophole needs to be closed immediately.
Deprivation of Merits Review
If the minister were to cap and terminate the applications, the applicants may only have 28 days to wind up their affairs and leave (there will be no review rights). These applicants would have been in Australia for years after lodging a valid application for PR. They may have found good jobs and well settled in Australia. Some may have married and have children, purchased property etc;
People and their families already in Australia will have to find jobs and start life again from the beginning if they are forced to go. It will take years for these adjustments and to be financially stable. Children will have difficulties getting adjusted to the new life and will have language problems and adjustment issues in their parents countries which may affect their educational advancement and the repercussions may be felt throughout their life. As such we consider certain aspects and affect of the retrospective legislation to be inhumane. Visa capping retrospectively is a crime against humanity.
No parliamentary oversight is undemocratic
The proposed amendments are a challenge to our law-making system; giving expansive, unfettered powers to the Minister for Immigration to make retrospective changes based on arbitrary criteria with no parliamentary oversight. This is both dangerous and undemocratic.
The proposed Bill may breach aspects of administrative law, by failing to afford affected visa applicants procedural fairness and allowing the Minister’s delegates to make decisions inconsistent with the legitimate expectations created by the acceptance of visa applications.
The Department of Immigration is therefore under an obligation, pursuant to established principles of administrative law. Further the General Skilled Migration pathway for students has been quite clearly flagged, by the establishment of the onshore GSM visa subclasses for which overseas students are eligible, and DIAC’s own policy, states that there are initiatives to encourage access students to permanent residency.
In overseas expos for international students the relevant government affiliated bodies in the past has clearly indicated that students will have pathways for PR once the studies are over.
We question the logic behind such a move when Australia faces its greatest skills shortage in history. We doubt that the government has undertaken any impact assessment on the effect for Australians and the Australian economy as a result of these changes.
What can be done?
We have made submissions to the senate Legal and Constitutional Committee and the last date was 18 June 2010. This legislation is about to be approved but it is still not too late.
PETITION to the Federal Parliament
OUR VOICES MUST BE HEARD BEFORE ANY CATASTROPHIC EVENT
We have created a petition which will be submitted to the Parliament. (You will have no repercussions by signing this even if you are temporary residents).
Please go to www.dlegal.com.au and sign and forward this petition to all your friends ALL OVER the world to sign.
Go to(Preamble) - http://www.gopetition.com/online/37136.html
To sign go to - http://www.gopetition.com/online/37136/sign.html
The right of a petition to the parliament
A petition is basically a request for action. The right to petition Federal Parliament has been one of the rights of citizens since federation, and it is the only way an individual can directly place grievances before the Parliament.
The Standing Committee on Petitions has been tasked with receiving and processing petitions on behalf of the House. The Committee may choose to forward the petition to the relevant Minister. If this is the case, it is expected that the Ministers will respond within 90 days. Details of ministerial responses will be tabled in Hansard.
If I have substantial amount of signatures from all over the world it will add more power to the petition. The petition will also be submitted to the Prime Minister, Deputy Prime Minister, and Minister and to the Leader of Opposition. We will submit the same to any interested party.
Australia’s reputation as a “fair go’’ country would suffer and will badly damage our reputation overseas and call into question our moral values. Any reasonable right minded person would consider such a law to be simply unfair and inhumane.
Based on the reasoning set out above, we request that the minister and the government not to make hasty decisions that would be effective in retrospect and with complete disregard for human life.
We further urge the government to provide more generous transitional provisions than has already provided to international students who has been on a student visa at least as at 8 February 2010.
A well targeted immigration program over the next fifty years is needed for labour force growth and addressing the demographic cliff. Note: research has been commissioned on interactions between Australia’s population levels and the natural and built environment. Please see = Longer Term Outlook on Australian Migration
We will provide a further explanation in due course.
The writer Dinesh Iriyagolle Weerakkody is practicing as an Australian Solicitor & a Barrister at Oates Rennick & Associates. He was the former head of the Asia Pacific Forum of Environmental Journalists facilitated by UNEP & UN-ESCAP. He has a keen interest in Social, environmental sustainable development issues.
Dinesh Weerakkody LLB; PDLP
Solicitor & Barrister (An Australian Legal Practitioner)
An Australian Migration Agent (0742843)
C/O Oates Rennick & Associates, 4 Burwood H’way Burwood, VIC 3125, Australia
MOB +61 425725570 TEL +61 3 98086367 FAX +61 3 98082243 DX 32503 BURWOOD
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