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Immigration Daily News Does DIBP owe priority 5 applicants a moral obligation to process their applications?
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Does DIBP owe priority 5 applicants a moral obligation to process their applications?
DIBPs priority processing arrangements generally categorise skilled migration applications into 5 groups giving regional employer sponsored visas the highest processing priority. While the top groups can have the visas processed within months, those in group 5 can wait well over 5 years without any indication of a time-frame as to when their applications may be processed.
It almost looks like after accepting valid applications and the visa charges, DIBP has just about simply forgotten about processing the applications categorised in group 5. Is DIBP hoping that if they make these applicants wait long enough the applicants will simply give up and go away allowing DIBP to pocket the application fee for doing nothing?
Legislation allows the Minister several mechanisms to ensure visa grants are managed in line with the annual planning level. These mechanisms can either restrict or increase the level of visa grants. This excuse is often cited when the issue is queried. A recent response on the issue from DIBP stated outright, “The Department is unable to give specific timeframes for when individual applications will be finalised,…” [http://migrationalliance.com.au/immigration-daily-news/entry/2014-09-priority-group-5-applications-for-886-and-176-visas-dibp-update.html]
Upon receipt of a valid application, DIBP surely must have an obligation to process an application within a reasonable time-frame or inform the applicants of the likely time-frame. In the alternative, DIBP should at least allow applicants who wish to withdraw their applications to do so with a full refund. Perhaps this may help speed things up for those who choose to wait.
Some estimates (unverified) state that there are over 40,000 applicants in the priority 5 group, with some applicants still waiting after 5 years with no indication of when their applications will be processed.
Does DIBP not owe these applicants a duty of care or at least a moral obligation to process their applications within a reasonable time-frame or at least to provide them with an indication of when their application will be processed? Does DIBP not realise that that many of these applicants especially those onshore have put their life on hold, marriage on hold, family on hold, career on hold….in anticipation of some kind of reasonable response in order that they may plan ahead.
Given that DIBPs responses have been far from satisfactory some applicants have recently taken their fight to change.org with a petition to the minister to start processing their applications. MA supports the petition. But the petition needs as many supporters as it can get to whip the beast into some kind of movement.
If you wish to crack your whip and support the petition please follow this link:
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Comments
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Wednesday, 19 November 2014If an Agent were to take a client’s money and then do nothing for 5 years, we would be dragged over the coals by OMARA.
This is a shameful state of affairs which has been allowed to continue by successive Governments. -
Wednesday, 19 November 2014If section 65 requires the Minister to grant a visa at what point is it wedensbury unreasonable for applicants for a visa to have to wait for a formal decision?
My personal view is that the Group 4 and 5 applicants may well have a cause of action in the High Court to seek a writ of mandamus. This delay is unconscionable and wedensbury unreasonable. Candidates who want to have this matter resolved can in effect fund litigation whereby the perfect candidate seeks the relevant legal remedy in the High Court but is indemnified by the balance of the cohort for an adverse finding. Funds can be held in trust as against that possibility. The relevant fee agreement would permit the instructing of and the retaining of Counsel with the persons making up the litigation "group' providing the relevant funding along with the person actually fronting the litigation. I would have thought that each candidate would have an expense of about $5K with the risk being spread by the group. A realistic budget would be about $150K.
I think the time for fighting this is upon us. -
Saturday, 22 November 2014
Dear Christopher, please tell what is the chance of wining if we go to court to meet our demand. and what is the potential threat if we force the department to face court.
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Wednesday, 19 November 2014
Thanks Jerry,
for you support. cat 5 application........... -
Wednesday, 19 November 2014
Yes Chris, the Department appear to be acting unlawfully.
Section 65 of the Act creates a definite right of the applicant that their application be decided by the Minister, see Quarm v MIMA (2008). Further, Part 2, Div 3, Sub-div AB of the Act provides for a Code of procedure for dealing fairly, efficiently and quickly with visa applications.
At what point does the policy in priority 5 processing make section 65 inoperable? At what point does this policy control the Migration Act. I would say 5 years delay makes section 65 inoperable, and therefore the policy is an impermissible use of executive power.
The Parliament would never intend the Migration Act to work is such a dysfunctional way. -
Friday, 21 November 2014
Hi Chris & David,
A very good constitutional insight shared. But what next ? who will take this further with DIBP and compel them to act & process cat 5 or atleast provide proper timelines according to law and constitution ?
Regards,
Abhay -
Saturday, 22 November 2014
In my opinion, the main problem is difficult to invite 30 people to pay 5K.
Or that is easier if we can Invite more people like 100 person @ 1.5K? -
Tuesday, 25 November 2014
I think that the High Court is the obvious place to go for this remedy as in effect there has been no "decision' other than the decision to do nothing.
What I propose to do is to engage the best and brightest at the NSW bar to give me the strategic and tactical advice to run the matter for and on behalf of the relevant candidate.
I did see the suggestion about getting 100 plus people together to cover off on the cost and the risk of an adverse judgement but the administration of such a large group is problematic. The need for certainty and accountability for each candidate and their funds in trust and the management and disbursement of those funds requires significant resources.
Could I ask my Colleagues to give me a broad indicator as to who they might have on their books that might be interested in participating in this litigation so that I can formulate an "offer" -
Tuesday, 25 November 2014
Abdul said:
"Dear Christopher, please tell what is the chance of wining if we go to court to meet our demand. and what is the potential threat if we force the department to face court."
Abdul,
I am personally of the view that the group 4 and 5 candidates are now well placed to seek the intervention of the courts. although the legal remedy of "unreasonable" delay was extinguished in the Migration Act, the section 65 "duty" and the delay has all the hallmarks of being "wedensbury unreasonable" which as a doctrine of administrative law has recently been revived in a case involving the MRT called Li's case.
i think this points to a receptive full bench of the High Court and represents a unique opportunity to get this problem solved.
Although it is manifestly unfair that applicants have had their lives on hold for years and DIBP has falsely committed to deciding these cases, all points to the need for those who are waiting to in effect "invest" in the resolution of their cases.
The alternative is to simply sit and complain and expect everyone else to do the heavy lifting for them.
The consequences of failing in the substantive application is not likely to lead to some defacto penalty other than an award of costs as against the individual who has the courage to stand up and say 'enough is enough".
I seek to protect that individual against that potential detriment and cover off on the cost of engaging Senior and Junior Counsel in proceedings in the High Court.
What I am looking for are motivated litigants who are prepared to fund this litigation. The individual contribution amount should decrease with the number of individuals participating in the " group".
I do not intend, at this stage, to run a class action. -
Wednesday, 26 November 2014
hello Chris,
if we fight then how much cost we have to bear could you please assist to us..thanks -
Wednesday, 26 November 2014
i am ready for pay 1.5 k......add my name on list.
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Tuesday, 14 April 2015
Hi,
Any progress on this? did you or any one in group initiated this ?
regards,
abhay -
Wednesday, 26 November 2014
I'm also ready to pay for it. Just need few individuals to join with us
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Wednesday, 26 November 2014
I will join as well
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Tuesday, 14 April 2015
Hello Chris , could you please advice if we go to high court taking this matter . then how much cost would be incurred so according to we make a plan . thanks
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Saturday, 18 April 2015
M in and happy to pay and let take this matter to high court !!!@
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Saturday, 18 April 2015
If this action include offshore applications SC 496 or SC 475, I may not be able to contribute the entire amt at one go but in 3or 4 phases.
Immigration blog
YES. 'People, our business' my rear end. These bastards don't give a crap what these people are going through. Just like the infamous applications lodge before Nov 2007 (or was it Sep 2007) they take these guys for a ride then kick them to the ground when they're done.
They talk about complaints against agents. What about complaints against DIBP. Who will hold them accountable??
They say we should be acting ethically yet do not know the meaning of the word.