New Minister for Immigration??

Replies to This Discussion

Permalink Reply by kazi ullah on August 27, 2010 at 5:54

hey chris,

Whts the point of changing Minister if the Labor party don't change their policy?I mean policy will remain same right?

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Permalink Reply by Christopher McGrath on August 27, 2010 at 5:56

I think Labor has been awakned from its slumber, so maybe we can expect changes to enhance to migration program. A new Minister, maybe with new ideas

Cheers

Chris

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Permalink Reply by handagalage aruna rangalal handa on August 27, 2010 at 14:45

Dear chris

is there any posibility to revise their decision that ceased the application lodged before sep 2007?

rangalal handagala

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Permalink Reply by Christopher McGrath on August 27, 2010 at 21:47

Dear Rangalal,

Unfortunatelly, I doubt they would do that. If Labor gets in, and if my information is correct and we get a new Minister, he/she is unlikelly to make such a change in my opinion. If the Libs get in, its completelly unknownwhat they might do, ut again i would doubt they would bother.

But, this is just my opinion, anything could happen. In my 28 years as an Immiration lawyer I have seen a great many changes, some predictable, many surprising.

Best regards

Chris

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Permalink Reply by guljinder on August 31, 2010 at 16:25

so all pre-sept well wishes coming into reality and converting bad luck evan forever in life

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Permalink Reply by Gollywobbler on September 3, 2010 at 16:24

Hi Chris

Irrespective of whether a new Minister for Immi (of whichever hue) might want to revoke the S39 actions or not, would a new Minister have the legal power to reverse the S39 decision?

S39 says something about an "irrevocable Instrument" but I don't know what that means, exactly, so I've been puzzling about the legal possibilities with this for some time.

Many thanks

Gill

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Permalink Reply by guljinder on September 4, 2010 at 17:22

this s39 will cause more disaster to people lives than h1n1. so it will be good for Australian history if they get rid of this s39 virus and dumped it to hell

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Permalink Reply by Christopher McGrath on September 4, 2010 at 23:49

MIGRATION ACT 1958 - SECT 39
Criterion limiting number of visas
(1) In spite of section 14 of the Legislative Instruments Act 2003 , a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).

(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.


I reed this to be that UNLESS a perscribed criterion includes a comment regarding the above in a particular visa class, it will not be used. This is not an overall power to cap and cease, it must be written into either Scheduale 1 or 2 of a particular visa. It could be sonmething like this "Subject to Sec 30 ....

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Permalink Reply by Christopher McGrath on September 4, 2010 at 23:55

Hi Gill

I cant see where the words "irrevocable Instrumenr" appears in Sec 39.

Can you tell me where you see it.

Cheers
Chris.

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Permalink Reply by Gollywobbler on September 5, 2010 at 7:04

Hi Chris

No - you are right. The word "irrevocable" is not used so I can stop worrying about it! I had gotten it into my head that this word is used and I was wondering whether it is really possible to fetter a future Parliament or a future Minister for Immi by telling him that he does not have the legal power to undo a S39 Notice.

I don't have any Aussie legal qualifications and I've only studied bits and pieces of Aussie Immi Law for my own, academic interest. I can't claim to have done more than to satisfy my own dilettante interest here and there and I was wrong about the wording of S39.

However my gut-instinct says that Evans has tried to use S39 inappropriately. I don't believe that Parliament ever intended to let him hang about for 3 years with a visa application and then suddenly kill it off retrospectively purely to satisfy his own, private ideological and administrative convenience.

It feels like a misuse of power to me to say, "I was happy enough with the law relating to the pre-September 2007 visas until 2010 when I suddenly decided that I didn't like those visas any more...." I feel that the average Judge would think, "Oh really, Minister? You decided that a previous Parliament did its job wrongly, did you? Well I'll tell you what. Whether or not you think that a previous Government was right ot wrong, it is what they did and it is not open to you to undo that via an inappropriate attempt to use S39. I am going to chuck every legal principle that I can think of at finding in favour of the visa applicant on this occasion because he did nothing wrong. It is not right to punish him just because you think that a previous Government made a mistake."

I don't think Evans should be allowed to get away with this so I am hoping that one of the disgruntled visa applicants will sue him, so that the Courts can decide whether Evans has acted correctly or not.

That said, Chris Levingston has been consulted. He is warning people not to accept the offered refund because he thinks that doing so might create an estoppel. He is warning that litigation would be uncertain, very expensive and would take ages to complete but he does seem to think that the Courts should be asked what they think about the man's sudden and arbitrary decision to use S39 solely in order to get rid of a bunch of visa applicants whom Evans has suddenly decided are not required in Australia after all.

I suspect that there is no political will to undo Evans' use of S39 but I hope that the Courts will undo it instead.

Thanks very much for resolving my confusion about how to construe S39(1).

Cheers

Gill

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Permalink Reply by guljinder on September 5, 2010 at 8:49

hi gill
probability of interference of court is now on maximum which is must for end this mess coz political instability and minor govt have fear of breakdown for every single decision without taking hands of independents who likely seems in favor of regional migration and wants more skilled people.hoping Australia also wants to be free from all bloody solutions that chris evil has in his experimental evil brain, and to retain his lost reputation more genuinely

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Permalink Reply by Gollywobbler on September 5, 2010 at 10:19

Hi Gulinder

I['m wondering whether the Three Amigos will actually solve the current political impasse (and if so, when) or whether somebody in Oz will show the statesmanship to insist on another General Election. I live in the UK and know very little about the Aussie Constitution etc but I imagine that the Governor General would be the only person who could insist on another Election instead of a limping lame duck of a Government.

With regard to S39, I would dearly like somebody to take it to Court. The Judges in Oz are genuinely independent of the Government and they seem to me to be very fair-minded according to the cases that I have read (not many, admittedly, but enough to have a reasonable opinion, I reckon.)

As for Evans, it is hard to believe that whoever succeeds him could be worse than him......

I was told by a senior person working for DIAC that if Abbott forms the new Government, Abbott is said to intend to offer the Immigration portfolio to either Philip Ruddock or Kevin Andrews, Both of them have had the Minister for Immi job before. Andrews had the job during 2007. I know that Ruddock has had the job as well but I am not sure when or what he did.

I didn't become interested in immigration to Oz until 2006, when Amanda Vanstone was the Minister. I thought she was strident, noisy and not very clever. I think she was succeeded by Andrews and the only thing I remember about him is that he seemed to be very quiet (which I thought was a relief after Vanstone!)

I don't know anything about Ruddock and the DIAC chap who told me said that he didn't know which Labor pollie might accept the Immi portfolio in succession to Evans. I got the feeling that none of the Labor pollies really want the Immi job and that Gillard would have to be nice to one of them to get them to accept the responsibility.

Cheers

Gill

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