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Skilled Visas

Challenging “Cap and Cease” Letters

The contents of this article are correct as at 23 July 2010.

Recently, some applicants for certain skilled migration visas (for example, subclasses 136, 138 and 139) have received “cap and cease” letters from DIAC, stating that their particular visa category has been capped and that consideration of their applications will cease.

If legally correct, the consequence of this practice is that the visa application is taken to have never been lodged.

While the applicant is entitled to a refund of their visa application fee, the “termination” of their application means that it cannot be challenged before the Migration Review Tribunal.

There has been some suggestion that the legality of the “cap and cease” letters could be challenged, based on the legal principles of legitimate expectation or estoppel.

Some argue that section 65 of the Migration Act creates a legitimate expectation regarding how DIAC will exercise their powers. That is, visa applicants are led to expect that once they have lodged a valid visa application, the Minister or DIAC will consider and determine their application. Since the “cap and cease” practice precludes this from happening, there may the possibility of legally challenging this decision. However, it is not clear that such a challenge would be successful. This is because the High Court of Australia has previously said that a validly changed law will not give rise to a legal claim, even for a person disadvantaged by that change (Peverill’s case).

A possible alternative challenge could be based on the principle of estoppel which sets out that if legislation (such as the Migration Act) provides that a particular circumstance has a particular consequence, nothing a public servant does can override the legislation. If argued successfully, the Minister may be estopped from ceasing to process the applications. However, this challenge is also likely to be a difficult and drawn-out process.

In our view, any challenge against the legality of “cap and cease” letters will be extremely difficult and is likely to be quite expensive.

If you have any questions concerning “cap and cease” letters, please click this link to contact Visa Lawyers Australia.