Followers of this blog will recall that Migration Alliance posted an article this past Tuesday (22 September 2015) concerning two recent cases mentioned in Peter Bollard’s newsletter involving Public Interest Criterion 4020. 

That post by Migration Alliance (entitled: “Be very afraid” (in other words, of the possible obstacle that         PIC 4020 might present to successful visa applications)) piqued my curiousity about what happened in those cases, and about how serious a problem PIC 4020 really is. 

This post provides details about one of the cases mentioned in Peter Bollard’s newsletter, Katragadda v Minister for Immigration & Anor, (2015) FCCA 2478 (11 September 2015). 

This is a sample of what to expect if you or your client is caught in the Cap and Cease pool of persons.  Below is a sample email and attachment from the DIBP with client identifiers removed:

"This email regarding your application is automatically generated.

As this email is an automated notification we are unable to receive replies. Please do not respond to this email address.

The long awaited work and holiday visa program with China has started and applications for the first tranche of the subclass 462 visas were filled within minutes of being made available, according to a news release from the office of the immigration minister, Peter Dutton.

An initial 1500 visas will be available under a new arrangement with China which came into effect this week. The arrangement will eventually allow 5000 young Chinese people to enjoy an extended holiday in Australia with the opportunity to engage in short term work or study.

The Work and Holiday visa agreement with China Subclass 462 is for young, educated, Chinese nationals aged between 18 and 30 years. It will be capped at the 5000 visa places each year.

"These 5000 young Chinese people will join the ranks of around 240,000 young people from around the world each year who enjoy a working holiday in Australia," Mr Dutton said.

"China will be joining a host of other countries given access to the Work and Holiday programme."

Regular readers of this blog will be aware that cases exploring the boundaries of the Department’s/Minister’s powers to cancel visas on character grounds probably are the “flavour of the year”: there have been a lot of cases that have addressed this subject!!

On a certain level, it makes “perfect sense” why these kinds of cases keep showing up on Austlii. If you have had your visa cancelled on character grounds, are being held in immigration detention, and are facing the prospect of removal/deportation – in many cases to a country where you haven’t lived since your childhood – then what do you have to lose by seeking review of a cancellation decision on the grounds of alleged jurisdictional error?

After all, the worst thing that can happen to you with this kind of case is that you will “lose”, with the consequence that you will still be facing removal/deportation and with the added possibility that you may have a “costs order” made against you (and is the Australian government really going to pursue an action to collect those costs from you once you have been “shipped” back overseas – and even if it does try to recover its costs, what are the chances that it will ever really see that money? I would venture: “Probably pretty slim!!”)

All visa applicants who have been patiently waiting in a queue for the Skilled Independent subclass 175, Skilled Sponsored subclass 176 and Skilled Regional Sponsored subclass 475 are now subject to cap and cease.

Cap and Cease starts today 22 September 2015 and the total has already been reached.

Any applications for these visas which were not finalised before today are taken not to have been made.