Australian Immigration Daily News

The following email is a perfect example of what applicants under sc176 are facing after 'Cap and Cease'"

"Dear AGENT [name removed to protect privacy]

I came across your post and thought to ask you for some advice. I will be very grateful to you because right now I and many others like me are totally devastated but not broken.

I am a GSM 176 family sponsored, category 5 applicant whose visa application has been affected by the cap and cease ministerial order (https://www.comlaw.gov.au/Details/F2015L01455).

I am a print journalist from Pakistan who has been sponsored by my only sibling, my brother in Sydney. He has been in Australia since 1989, married to an Australian-born lady, both our parents have passed away so we are each other’s only remaining relative.

I am 46 years old, married with two children and my husband is a finance/marketing professional.  I can’t file another application because of age and my job is not on the required SOL.

I and my brother want to fight against this injustice and are ready to take the appeal/case anywhere to reverse the decision. I know it is difficult to get the government to reverse their decision for the whole class but do you think individual cases, according to their circumstances, might have a chance of being successful?

Frankly I didn’t understand most of the things in your post in the migration forum because there were a lot of legal jargon in it, but I did understand that you have a client affected by cap and cease and he wanted to appeal, though he eventually filed a new application. I want to know that if there has been an instance where someone has appealed against the cap and cease ruling or something similar done to them, and what has been the outcome?

And do you think we have a fighting chance here if we decide to take the fight somewhere,

1.      As a group where both applicants and their Australian sponsors are willing to participate?

2.      Or I have a better chance if I attempt it on my own?

Lastly, can I, under any other visa class apply for migration to Australia?

Here is a bit about our 176 and 475 visa history that I had put together to send if needed, it might help you, though I know that you must be well aware of it

History/Case details

Waiting since 2007, the applicants affected are Offshore Family Sponsored General Skilled Migrants 176 and 475, and few Offshore Independent GSM 175 who were all pushed into Category 5 in July 2011, through priority processing arrangements for Skilled Migration applications. Only 36 GSM176 visas will be processed and all the others are asked to get a refund and forget that they ever wasted precious time, money and energy collecting documents, getting assessment of skill and sitting for IELTS to finally lodge an application that was valid and meeting all criteria for General Skilled Migration at the time of application!

When the applications were lodged, the processing time was stated to be 12-18 months, but since 2011 a system of priority processing started and applicants like myself, were pushed into Category 5, and not given any processing time, just told that “It is therefore anticipated that many priority group 5 applicants will still have a long wait for visa processing.”

For some reason that made sense only to them, family sponsored applicants were given the lowest priority even among the Category 5 – preferring to process independent applicants of GSM885 (onshore) and 175 (offshore), than GSM886 (family sponsored, onshore) and 176 (family sponsored, offshore).

At the time I applied in September 2009, nowhere did they specify that Family Sponsored applicants were in any way less eligible or least suitable than all other classes of applicants. How can migrants with skills and family to sponsor and support them in settling in Australia be in any way not eligible enough to become productive and contributing members of the Australian society? All over the world and according to all logical perceptions, family sponsorship is considered a stronger base for application for migration and resettlement.

Based on this I applied under GSM 176 Family Sponsored visa class, thinking that coupling my skill with family sponsorship will add to my chances and speed up the process! If I had known this was going to happen, and I am sure many other family sponsored immigrants too, I would have not opted for this. It only added 5 points to my overall score and 5 points were not so difficult to obtain through some other option.

According to a letter received in July 2012 when the new SkillSelect system was introduced, “As at 1 July 2012, there were approximately 15,500 family sponsored skilled migration cases representing approximately 31,010 applicants in Priority Group 5 awaiting allocation.”

Since priority processing started in 2011, each year, about 4-5 months before the end of the financial year in July, the Immigration department starts the processing of some Category 5 cases and grants PRs to fill the extra places they have in the Skilled Migrant Programme leftover from the processing of current higher priority applicants.  Processing thousands of Category 5 applicants each year, they cleared all independent onshore GSM 885, then most independent offshore 175 and now onshore family sponsored 886 are being granted PR, leaving just offshore family sponsored 176 and 475.

If, according to their figures,  there were 31,010 applicants in Priority Group 5 in July 2012, and 1510 were independent ones who are mostly cleared, and out of the remaining 15,500 family sponsored, more than half were onshore applicants, so that leaves roughly less than 7000 applicants in GSM176 &475, who are now affect by this ‘Cap and Cease’ order. The actual number of applications affected by this ‘cap and cease’ has not been disclosed officially.

If they could process almost 23510 cases in four years, they could have processed the remaining offshore family sponsored 176 &475 in a year or at the most two. And if they had enough leftover places each year from fresh SkillSelect applicants to give to these 23510 processed Cat 5 cases, they will have enough in the coming years.

A few points about fresh applications being made each year under SkillSelect make the total number of Skilled people applying not so overwhelming, in fact lower than in the past. These points are

·        Many occupations have been removed from the SOL list

·        The requirement for English language competency is higher.

·        A person can only apply when they receive an EOI from DIBP.

·        Application fee is much higher now.

So DIBP is not so overwhelmed by fresh skilled applicants that it had to cancel all Family Sponsored 176 and 475. They could easy have cleared us in a year or two. And if we have waited for 7 years, accepting changes – priority processing in 2011 and then SkillSelect in 2012 –  we can wait some more.

It should also be noted that Michaelia Cash, the Ex-Assistant Minister for Immigration and Border Protection, registered the order for cap and cease on Sept 18, 2015, made public but not posted on DIBP site on Sept 29, to be brought into effect on Sept 22, 2015 – giving hardly any notice and just three days before she moved on to a new portfolio. Rules are made to apply retrospectively but implemented with such a short notice between announcement and implementation, leaving the affected with no time to even digest the injustice that has been done to them! Granted that the government has the right to set rule for their own country but to cancel the application of eligible applicants who have waited for 7 years and who have family – Australian citizens and voters – waiting for them, is gross injustice! If this is not Unconscionable Conduct by the Australian government than what else is it?

I have waited for 6 years, wasted so much money, time and energy, thinking that the Australian government can’t be unfair and will eventually process my application. Had I known that this would happen, I would have looked at other options and applied under any other visa class or even tried immigration to any other place.

Thanks for reading this long story. Please can you give me your input on my options and chances and whatever else you might like to share.

Regards and good day,

AAAAAAAAAAA BBBBBBB [name removed for privacy reasons]