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Visa capping and termination bill: ministerial power to control and “kill” applications

The contents of this article are correct as at 21 June 2010.

The Migration Amendment (Visa Capping) Bill 2010 has been introduced to give the Minister for Immigration and Citizenship power to cap and terminate visa applications on the basis of certain characteristics.

If this Bill becomes law, the Minister will have significant power to control the General Skilled Migration program. In particular, the Bill will allow the Minister to determine the maximum number of visas of a specified class or classes that may be granted in a financial year. The amendments proposed in this Bill not only provide a power to cap and terminate general skilled migration visa applications but are broad enough to apply to all subclasses (ie it could possibly apply to non GSM visas).

When capping and terminating certain class of visas the characteristics that may be specified could include:

  • The occupation nominated by the applicant
  • Age
  • English language ability

For example, the Minister might decide that 1000 “hairdressers” are needed for the year 2011. The number of visas granted to “hairdressers” in 2011 would be capped at 1000. (It is important to note that the cap could conceivably be set at zero). Once the designated annual cap is reached all outstanding visa applications with the same characteristics (“hairdressers”) will be terminated. Further applications from “hairdressers” would not be permitted at least until the commencement of a new financial year.

To cap and terminate a visa application is different to a decision to refuse a visa application. When an application is terminated it is taken not to have been made and applicants who are affected by a cap will have their visa application charge refunded to them. Therefore, unlike a visa refusal, a visa termination cannot be challenged before the Migration Review Tribunal.

Another consequence of having a visa capped and terminated is that if an applicant holds a bridging visa linked to the capped visa application, the bridging visa will cease 28 days after the application is capped. This means that the applicant would need to depart Australia before the expiry of their bridging visa (assuming they are unable to apply for another visa from within Australia).

In conclusion, if the Bill is passed it will give the Minister unfettered discretion. It will also reinforce the legal reality that applicants may have excellent chances of obtaining their visas at the time of lodging their visa applications, but that those chances may be reduced to zero if the Minister exercises their power and caps and terminates the revelant visa applications.

If you have questions concerning the proposed Bill, please click this link to contact Visa Lawyers Australia.