This week the Federal Government announced they have deemed thousands of skilled migration applications “not to have been made”. Most of these applicants have been waiting seven years for their applications to be decided. These applicants made legally valid applications. The Government action is unfair, unreasonable, and it is questionable as to whether they have legal authority to make that determination.

 

The Minister’s determination is made under s85. Then s39 is the cap-and-cease provision. However, s39 should not be used to cap-and-cease an application in processing. That was never the intention of the provision when it was first introduced by the Migration Amendment Act 1991. It was intended to be a provision that allows some control of visa grants – it is not intended to be used as a wholesale wiping out of a visa class.  Section 39 specifically states “any outstanding applications for the grant in that year …are taken not to have been made. ” The applications ceased were NOT applications for grant in this year.

 

The High Court recently looked at a similar determination in M150 v MIBP [2014] HCA 25. The Court stated “It may readily be supposed that, in some cases, processing of an application for a particular class of visa may continue during a financial year in which the grant of that visa would exceed the limit with a view to its speedy grant in the next financial year.” [65]. And that s 88 permits further application processing after a deteermination. There is space in the provision that allows further application processing for visa applications that have a s 85 determination made.

This implies that the Minister does not have authority to “cease” outstanding applications that are not ready for grant. These applications were not yet processed to grant stage. There is no legal authority for the Minister to cease applications if they are not for grant in this year.