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It is a MIRACLE!
My colleague Adrian Joel has informed me that because of a failure of DIBP to register a legislative instrument in more or less the same manner as they failed to do in the case of Singh v. Minister for immigration & Anor [2012] FMCA 145 and subsequently followed in Sharma v. Minister for Immigration and Multicultural Affairs & Citizenship [2014] FCCA 2821; that all applications lodged between 10/1999 and 16 March 2016 are INVALID.
The relevant legal problems turns on the failure of DIBP to in effect record all of its Forms as "Approved Forms" via the mechanism of a legislative instrument in the period from 10/1999 to 16 March 2016.
That being the case if Schedule 1 requires an applicant to lodge an application on an approved form then absent any approved form during the relevant period, that defect would render the application INVALID.
You may wish to consider the position of any of your clients who may have been refused a visa in the period from 10/1999 to 16 March 2016 and consider the implications concerning the operation of Section 48, and Section 48B of the Migration Act 1958.
For most of my clients this is nothing short of a MIRACLE.
Comments
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Saturday, 09 July 2016Hi Christopher, could you please clarify whether this applies to any visa application in that period or it is ainly pplicable for certain subclasses. Would you please provide more details on that particular legislative instrument. If our clients are affected what actions can we take? Thank you.
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Saturday, 09 July 2016
Who will got benefits
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Monday, 11 July 2016
The point was developed by barrister, Oliver Jones at Selborne Chambers. It is highly technical in nature and of course will be vigorously challenged by the Department. What I find particularly interesting is that the point may not need not be restricted to the Immigration arena but may have the capacity to challenge so many other areas of State and Federal Government (possibly even with respect to Greyhounds!). I am happy to discuss the issue with any of your readers. Adrian Joel adrianjoelco@bigpond.com
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Monday, 11 July 2016
Hi Christopher, would you please clarify if this affects all refused visa application from any visa subclass or just certain subclasses lodged within that timeframe. Are protection visas included as well? Thanks
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Monday, 11 July 2016
In Punjabi language we would say "Chamakar"
Harry Nindra JP ADLaw MMIA CMA -
Monday, 11 July 2016
Yes, it is a shock to think that all applications might be invalid for the period of 17 years, that will number more than a million of cancellations! Is this a legal cause of action to remove the bar of s48?
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Monday, 11 July 2016
Section 495 of the Act provides:
Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used.
Reg 1.18 provides:
The Minister may, in writing, approve forms for:
(a) use in making an application for a visa; or
(b) any other purpose authorised or required by these Regulations.
This 'approval in writing' is done satisfactorily through Schedule 1. -
Tuesday, 12 July 2016
Would appreciate fuller and better particulars .Is this going to be a case of a Class Action?
Harry Nindra JP ADLaw MMIA CMA -
Tuesday, 12 July 2016
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/1032.html?stem=0&synonyms=0&query=SZVKH
if this is the case, then this article makes no sense.. -
Tuesday, 12 July 2016
OMG! Repercussions unimaginable!
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Tuesday, 12 July 2016
Hi Chris - what was the name of the case?
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Wednesday, 13 July 2016
Dear Hassan and Ann,
Just to clarify....if during the relevant period it was a requirement of Schedule 1 that the application be made on either a prescribed or approved form then from 1999 up until 16 March
2016 ; the failure to use the approved or prescribed form, renders that application INVALID. If the application was invalid then it never existed so that all of the section 48 problems associated with a prior visa refusal all fall away. -
Wednesday, 13 July 2016
Ha, Ha. One of my clients is now being investigated for an allegation that he married for a visa. Interestingly, the Investigator's letter states that the alleged conduct is contrary to s.243 of the Migration Act. This section states that a person must not apply for a visa on the basis of satisfying a criterion for the visa because of being the spouse of another person if at the time of application the applicant does not intend to live permanently with the other person in a married relationship within the meaning of 5F(2). This section does not say 'attempt to apply'. If his application was invalid can DIBP still argue and prove beyond reasonable doubt that he has 'applied'? Soo interesting. A corresponding offence is created for a sponsor but I understand that the sponsor's form has not been a prescribed form. Does it mean that the applicant could possibly resist prosecution but the sponsor could not?
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Thursday, 14 July 2016
Does that mean that if I was previously deviousness a visa, now I can argue that my application was invalid And apply again?
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Thursday, 14 July 2016
*previously refused
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Monday, 18 July 2016
Harry,
I cannot see this being a class action.
My advice is that where a clients has no other options what do they have to lose by asserting that the previous application was invalid and on that basis the foreshadowed application is not infected by section 48.
What choice do they have? I guess they could always say that they give up and will go home.
In the alternative they can elect to do nothing which of course is completely free.
If neither of those options suit them and given that this matter is unresolved, notwithstanding the very strongly articulated reservations by a variety of people including Anon ( who seems very well informed...but shy) then an applicant may decide to bite the bullet rather than sit on their hands and take advice from armchair generals. The simple fact is this, an application which is made and which is subsequently determined as invalid will, on appeal to the FCC, generate a Bridging Visa until the matter is finally resolved.
All clients can do is act in their own best interests.
We provide the options, they choose.
If a client wants guarantees then they are in the wrong game. This is, as they say in the classics, a SWAG ( Scientific Wild Arsed Guess).
My experience tells me that if we sit around waiting for DIBP to clear the air or we listen to the opinions of our friends, colleagues and the nay sayers then nothing would ever happen. Immigration law is not a science it is an art. Imagination and guts go a long way. -
Monday, 18 July 2016
Chris
Brilliant ! We cannot sit with folded hands and pray for divine intervention
Harry -
Monday, 18 July 2016
Dear Jim,
The case at first instance was unsuccessful and is now on appeal. I am sure Adrian can help you.
However, you may wish to consider that if the case is won by the applicant at the Federal Court on appeal then DIBP will appeal it to the High Court. -
Monday, 18 July 2016
All of the above have nothing to do with the case. As previously said, it is highly technical law and not directly referable to the Migration Act. Asserting such claim is certainly not a formality. The Government will throw everything into defending such claims, and as we know Mr. Markus and the AGS are highly capable!
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