In one of her final acts as assistant immigration minister, Michaelia Cash struck her pen through the aspirations of thousands of migrants to settle in Australia. Her decision affects people overseas who met the criteria for permanent skilled migration to Australia under three visa subclasses that have since been discontinued. Although their applications remained valid, they were deemed low-priority by the government and consigned to a bureaucratic backwater while more recently lodged applications were processed.

Close to 18,000 of these “priority five” applicants have waited four years or more for a decision, watching in frustration while other migrants jump ahead of them in the queue. All along, the government refused to give any indication of when the visas might be granted. Now the wait is over, and it has ended in disappointment.

Cash used little-known provisions in the Migration Act to “cap and cease” the 175 (skilled independent), 176 (skilled sponsored) and 475 (skilled regional sponsored) visa subclasses. Her ministerial determination, which came into effect on 22 September, fixes the maximum number of visas that can be issued in each subclass in the current financial year. Because the cap has already been reached, any other applications in the subclasses are null and void.

The pro forma letters sent out to inform applicants of the change use language reminiscent of Orwell’s 1984. Just as Winston Smith’s role in the Ministry of Truth was to rewrite history so that certain events never happened, recipients are told their visa application is “now taken to have never been made.” The determination draws on sections 85 and 39 of the Migration Act. Section 85 empowers the minister to set a limit on the number of any specified visas that can be issued in a financial year, while section 39 requires that once a cap has been reached outstanding applications “are taken not to have been made.”

A spokesperson for the Department of Immigration and Border Protection told Inside Story that about 16,000 people would have their visa applications “ceased” and that most had “occupations that are not currently in demand on the skilled occupation list” (the federal government’s schedule of occupations in demand in the Australian economy). This meant “that they would be less likely to get a job if they migrate to Australia permanently” and so the government “has determined that it is unfair to keep them waiting in the queue for many more years without being resolved.” The spokesperson added that affected applicants could apply for “other visas for which they may be eligible.”

The federal government will refund visa application charges paid up front, but many applicants will still be left significantly out of pocket. They may have run up thousands of dollars in migration advice, medical checks, skills assessments, validation of documents and other costs.

The immigration department says the decision to cap and cease the visas was a necessary consequence of changes in the way Australia’s skilled migrants are chosen. Since 1 July 2012, the SkillSelect system has become the dominant route to permanent residency. Under SkillSelect, prospective migrants don’t lodge an application for permanent residency or pay an upfront visa charge; instead, they lodge an expression of interest including all of their details – occupation, qualifications, work experience, age, language skills, family status and so on. SkillSelect then allocates them a score under the skilled migration points test.

If prospective candidates meet SkillSelect’s pass mark, they will receive an invitation to apply for a substantive visa. Invitations are issued in monthly batches, both by the federal government and by state and territory governments, and go to the highest-ranked candidates first. A migrant with a score of seventy on the points test, for instance, will receive an invitation before a candidate with a score of sixty-five. When candidates’ scores are equal, the invitation goes to the one whose expression of interest was lodged first. Employers can also use SkillSelect like a labour brokerage by trawling the talent pool for the skills they are seeking and then offering to sponsor the applicant’s visa.

Before SkillSelect was rolled out, anyone who reached the pass mark in the points test could lodge a valid application for a visa. That contributed to a dramatic blowout in application numbers, which was exacerbated by the Howard government’s injudicious decision to link study in Australia directly to permanent residence.

In 2009, when Australia’s annual skilled migration intake was capped at 108,000 places, 170,000 people lodged valid applications for permanent residency. At one stage, the backlog awaiting processing grew to 145,000. Under SkillSelect, blowouts like that can’t happen. The government limits the number of applications it receives for points-based skilled migration by controlling the numbers of invitations it issues in response to expressions of interest. If demand for places grows, the minister can raise the pass mark and knock out lower-ranked candidates.

The government also imposes occupational ceilings under SkillSelect, restricting the number of invitations that will be issued in specific sectors. In 2015–16, for example, there is a ceiling of 2525 invitations for accountants and a ceiling of 2475 invitations for chefs.

In its explanation of the cap-and-cease decision, the immigration department says that SkillSelect limited the number of skilled migration places available for applications lodged before 1 July 2012. “Consequently,” it says, “the time taken to process affected applications has continued to increase as the demand for GSM [general skilled migration] places continues to exceed the available supply.”

In an attempt to present its decision as in some way beneficial for disappointed migrants – some of whom have been waiting more than seven years – the department says the government “has decided to end the ongoing uncertainty” for those who have been permanently stuck at the end of the queue.

Such a gloss is only likely to sharpen the anger and disappointment of those whose applications have been culled. On a Facebook page for members of priority group 5, prospective Pakistani migrant Rehana Khan vented her frustration, saying Australian authorities “have not just done injustice with offshore applicants by taking our money, making us wait and then cancelling our application but they have also taken our sponsors, who are Australian citizens, voters and taxpayers, for a ride.” (Applicants for the 176 and 475 subclass visa were sponsored by an Australian relative or a state or territory government agency). Kahn demanded compensation on top of the refunded visa charge, but maintained that “no compensation can make up for our lost chances and time.” She also called on applicants to unite in legal action in the hope of having their visas processed.

Their chances of success are limited. The cap-and-cease provisions have been used before, and provided the minister’s determination in this case was carried out properly, it is likely to be lawful. The Migration Alliance has condemned the government’s actions; writing on the organisation’s blog, migration agent Robert Chelliah described the cap-and-cease determination as an “unjust, inequitable, abuse of ministerial power.” He demanded that the professional body representing migration agents, the Migration Institute of Australia, lodge a protest, seek redress for affected clients, and “explore how the minister can be called not to abuse his [sic] power by hiding behind lawful power to gazette.”

If there is anything positive to come out of the minister’s determination, it is that it did not affect onshore visa applicants in priority group 5. These people, mostly international student graduates, have been living in limbo at the wrong end of the queue, despite already having established their lives in Australia over a period of several years. While the government is using its cap-and-cease powers to cull unwanted offshore migrants from its books, it does at last seem to be moving to clear the much smaller backlog of onshore applicants by processing and granting their applications for permanent residency. •

After this article was published, the Migration Institute of Australia contacted Inside Story to say that it has obtained expert legal opinion that the legislative power Senator Cash used to cease and refund the visa applications is not valid. According to this opinion, Section 85 of the Migration Act 1958 only allows the minister to determine the number of visas that will be granted in a financial year. Remaining applications are usually “queued” for allocation in later years. The Explanatory Statement to the Minister’s Determination attempts to convert the unallocated applications to the status of “never being made” using section 39(2) of the Act. The legislative authority under section 85 does not have the power to “kill” outstanding applications. To have this effect, the section 39 power to “cap and cease” needed to be expressly stated in the Ministerial Determination (which it was not). As a result, the MIA believes that the minister will have to make a new legislative instrument if the government wants to cease outstanding visa applications in the affected subclasses.