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2002 – 2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
(MIGRATION AGENTS INTEGRITY MEASURES) BILL
2003
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Citizenship and Multicultural Affairs,
The Hon. Gary
Hardgrave MP)
MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS INTEGRITY MEASURES) BILL
2003
OUTLINE
1. This Bill implements various
recommendations of the 2001-02 Review of Statutory Self- Regulation of the
Migration Advice Industry (the Review) to strengthen and improve the regulation
of migration agents.
2. These amendments are necessary to ensure that the Migration Agents
Registration Authority (MARA) has adequate powers to protect consumers and that
migration agents operate ethically, professionally and competently when
assisting people to come to or stay in Australia.
3. The Bill also
contains amendments viewed as necessary to ensure the effective implementation
of the review recommendation.
4. The measures contained in the Bill to
improve consumer protection are important because clients who use migration
agents are often a particularly vulnerable group. Many are from non-English
speaking backgrounds with limited experience of the Australian legal system,
which makes it difficult to make informed decisions about the professional
conduct of migration agents.
5. In broad terms, this Bill amends the
Migration Act 1958 (the Act) to:
• clarify and strengthen
requirements to be registered as a migration agent;
• strengthen
the offence provisions against providing unregistered immigration
assistance;
• clarify and strengthen the powers of the MARA and the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’ or ‘Department’) to investigate complaints against registered agents and allegations of unregistered practice respectively;
• provide the MARA with new powers to sanction migration agents,
particularly those agents who lodge a high number of vexatious, unfounded or
incomplete applications;
• provide for agents to be fined or
prosecuted if they fail to declare their involvement in visa applications or
review applications;
• clarify and strengthen requirements for
migration agents to produce documents and information to the
MARA;
• ensure civil proceedings cannot be taken against people
who refer information about unregistered or registered agents to DIMIA or the
MARA respectively;
• facilitate the investigation of complaints by allowing information to
be disclosed between the MARA, DIMIA, the Migration Review Tribunal (MRT) and
the Refugees Review Tribunal (RRT);
• clarify when details about
disciplinary action taken against a migration agent or former agent may be
disclosed and to whom;
• allow the MARA to delegate its power and
functions and establish committees; and
• make minor amendments of
a technical or consequential nature necessary to ensure the effective
implementation of the Review recommendations.
FINANCIAL IMPACT
STATEMENT
1. The amendments contained in the Bill will have a minimal
financial impact.
The following Regulation Impact Statement was approved by the Office of Regulatory Review in September 2002.
1.1 Background
7.4.1 Following the Commonwealth
government-commissioned review of the Migration Agents Registration Scheme
(MARS) in 1996, the government decided that the migration advice industry should
move towards self-regulation. In light of concerns regarding consumer
protection and the competitive impacts of such a significant change, it was
decided that this would be best achieved through a transitional two-year period
of statutory self-regulation.
7.4.2 On 21 March 1998, Part 3 (Migration
Agents and Immigration Assistance, s.275-s.333 of the Migration Act 1958
(the Act) commenced, allowing statutory self-regulation for a period of two
years until 21 March 2000. The Minister appointed the Migration Institute of
Australia (MIA) as the Migration Agents Registration Authority (MARA) to act as
the industry regulator. It was stipulated that a review of the industry would
be undertaken within this transitional period.
7.4.3 The Department of
Immigration and Multicultural Affairs (DIMA) undertook that review in 1999,
again with the assistance of an external reference group. DIMA found that
whilst statutory self-regulation had achieved its objectives, the industry was
not yet ready to move to full self-regulation. The review concluded that the
current period of statutory self-regulation be extended for a further three
years until 21 March 2003, with a further review to be conducted within that
time.
7.4.4 This further review, the 2001-02 Review of Statutory Self-Regulation
of the Migration Advice Industry (the Review), has now been undertaken and
has assessed the effectiveness of the current statutory self-regulation
framework.
7.4.5 This Regulation Impact Statement (RIS) has been produced
to assist the government in deciding on the most appropriate regulatory
arrangements for the migration advice industry when the current legislation
ceases in March 2003. It is based on the findings and the report of the Review,
and has been prepared in accordance with A Guide to Regulation, a
December 1998 publication of the Commonwealth Office of Regulation Review
(ORR).
7.5 What is the problem being
addressed?
7.5.1 The migration advice industry in Australia was
largely unregulated until 1992, at which point government regulation was
introduced by means of the establishment of MARS. This scheme was introduced in
response to increasing consumer complaints concerning incompetent and
unscrupulous agents operating in the industry. Since the implementation of
industry regulation, only registered agents have been permitted by law to
provide ‘immigration assistance’ as defined in the
Act.
7.5.2 In June 1996, the Commonwealth government commissioned a
review of MARS. This was the first regulatory arrangement to be reviewed by the
Commonwealth as a party to the Competition Principles Agreement. Following the
findings of this review, statutory self-regulation was introduced in 1998. The
aim was to move the industry towards full (voluntary) self-regulation while
maintaining the consumer protection elements of the government (i.e. statutory)
regulation scheme.
7.5.3 A review was conducted in 1999 of the regulatory
arrangements set up under the MARA. Like the current review it assessed the
effectiveness of the statutory self-regulation framework and the capacity of the
migration advice industry to move to full self-regulation. The 1999 Review
of Statutory Self-Regulation of the Migration Advice Industry found that as
statutory self-regulation had been in place for only a little over a year, the
industry was not yet ready for voluntary self-regulation. The review
recommended that the framework be continued for at least three years until March
2003 and be the subject of a further review within that time.
7.5.4 In
assessing whether or not the migration advice industry will still need to be
regulated after March 2003, the 2001-02 Review conducted by the Department of
Immigration and Multicultural and Indigenous Affairs (DIMIA) also considered the
advice provided in the ORR’s A Guide to Regulation. This Review
found that the industry is not yet ready to move towards voluntary
self-regulation. Further, it found that regulatory intervention is still
necessary to alleviate a number of concerns, such as the:
• quality of
service being provided by some agents;
• level of professionalism
within the industry;
• level of client service standards offered by the
MARA to their stakeholders;
• need to continue the Commonwealth
indemnity currently offered to MARA board members; and
• continuing
vulnerability of client groups using migration agents including those
overseas.
7.6.1 Complaints about the migration advice industry are a significant
indicator of the level of consumer protection provided to clients of the
migration advice industry, whether they concern practice by registered migration
agents or unregistered operators. The MARA is responsible for investigating
complaints concerning the former and DIMIA is responsible for investigating
complaints concerning the latter.
7.6.2 The Review found that the total
number of complaints received against registered and unregistered agents showed
only a slight decrease from 177 in 1999-2000 to 168 in 2000-2001. However, only
4.8 percent of agents in the industry were the subject of these complaints, of
which 80-85 percent related to standards of professional
conduct.
7.6.3 The Review reported that 24 cases of unregistered practice
were reported to DIMIA in 2000-01, down from 38 in 1999-2000. Unregistered
practice, which is illegal, continues to cast a shadow over the migration advice
industry. DIMIA has taken a proactive role in the investigation of unregistered
practice but it remains a difficult sector to monitor, due to its underground
nature, the problem of evidentiary issues and spurious allegations. DIMIA
understands the importance of eliminating unregistered practice and continues to
place priority on investigations and prosecution of such practitioners.
Unregistered practice continues to undermine the migration advice industry and
creates the perception, albeit inaccurate, that the industry has large numbers
of unscrupulous operators.
7.6.4 Incompetent and unethical practice can
also impact substantially on individual consumers, the community and the
government, notwithstanding that only a minority of agents are the subject of
complaints. The current statutory underpinning of the industry provides strong
tools in the form of administrative and criminal sanctions to regulate the
industry. There is considerable risk that under a voluntary regulation scheme
the MARA would not have the tools it needs to effectively modify the
professional conduct of agents, or where appropriate, to remove them completely
from the industry.
7.6.5 For example, unethical practice may include
consumers being encouraged to apply for visas in circumstances when there is
little or no evidence that they satisfy requirements. This has the effect of
undermining the integrity of the government’s migration and humanitarian
programs. It increases DIMIA’s workload through handling applications
that are fraudulent or have little hope of success. This can lead to
substantial administrative and legal costs for the government as well as
administrative and judicial review
bodies.
2 OBJECTIVES
2.1 What are the objectives of
government action?
7.4.1 Prior to the introduction of regulation to
the migration advice industry in 1992 there was a high level of consumer
complaints against migration agents. The market was open to exploitation by
some operators and it was perceived that clients of the industry were vulnerable
and not adequately protected. Consumer vulnerability was seen largely as a
function of the inability of consumers to inform themselves about the quality of
the migration advice they were purchasing and thus to make an informed choice of
agent. Consequently, in introducing the Migration Legislation Amendment
(Migration Agents) Bill 1997 incorporating statutory self-regulation
arrangements to Parliament, the Minister for Immigration and Multicultural
Affairs stated that the objectives of the scheme were to:
• maintain
and strengthen consumer protection; and
• contribute to the integrity
of the migration and humanitarian programs by promoting an ethical and competent
migration advice industry.
7.5.1 Statutory self-regulation of the migration advice industry
commenced on 21 March 1998. The Minister for Immigration and Multicultural
Affairs appointed the Migration Institute of Australia (MIA) as the Migration
Agents Registration Authority (MARA) to undertake the role as industry
regulator. The regulatory framework is contained in Part 3 of the Migration
Act 1958 (the Act), the Migration Agents Regulations 1998, the
Migration Agents Registration Renewal Charge Act and the Migration
Agents Registration Application Charge Act 1997. These set out the
industry’s Code of Conduct and Continuing Professional Development (CPD)
requirements, and issues relating to matters such as business management, the
setting of fees and sound knowledge and other requirements for entry to the
profession.
7.5.2 As already outlined, this transitional arrangement was
implemented as a step towards full self-regulation, hence the inclusion of a
sunset clause which came into effect on 21 March 2000.
7.5.3 The shift
from government regulation involved a fundamental change to the way the
migration advice industry would be regulated. A rigorous and publicly
defensible set of procedures needed to be developed and implemented in a short
time frame. On 1 April 1998, regulations came into effect providing
for:
• publication of notice of intention to apply for registration as
a migration agent;
• prescribed qualifications for initial registration
as a migration agent;
• CPD for migration agents;
• persons
who may make complaints;
• publication of notice of cancellation or
suspension of registration;
• a Code of Conduct for migration agents;
and
• the gazettal of specified newspapers for the purpose of
publication of notices of intention to apply for registration as a migration
agent, notices of cancellation or suspension of registration, and gazettal of
approved activities for CPD purposes.
7.5.4 Detailed policy and
procedures including the relationship between the MARA and DIMIA are set out in
a Deed of Agreement (the Deed). The Deed outlines the support to be provided by
DIMIA to the MARA in areas such as legal advice and assistance with litigation.
It also sets out the operating procedures for the MARA and their reporting
requirements.
7.5.5 MARA’s role under statutory self-regulation
includes:
• assessing, approving or refusing new registrations and
re-registrations;
• monitoring the conduct of registered
agents;
• investigating complaints against registered agents, applying
sanctions where appropriate; and
• administering CPD
requirements.
7.5.6 DIMIA has responsibility for investigating criminal
allegations of offences under the Act, including unregistered practice. DIMIA
may also investigate related allegations concerning other offences under the
Act, such as people trafficking and presentation of false
documents.
7.5.7 The current arrangements have been working effectively
to date. The 2001-02 Review has highlighted that statutory self-regulation is
continuing to achieve its objectives of improving consumer protection,
competence and ethical standards in the migration advice industry.
7.4 Three options were considered during the Review: a continuation of
statutory self-regulation (co-regulation), a move to voluntary self-regulation,
and a return to statutory (government) regulation.
7.5 Whilst the government is concerned that vulnerable consumers of the
migration advice industry are suitably protected, the risks to the community are
not sufficiently high or widespread as to warrant direct government regulation.
7.6 The efforts of the MIA/MARA as the industry association and
regulator have brought about considerable improvements to the level of
professionalism and consumer protection in the industry. Notwithstanding the
acknowledged improvements, none of the submissions to the Review considered that
the industry was ready for voluntary self-regulation.
7.7 Given the
public interest in the government continuing to have some involvement in the
regulation of the industry the continuation of statutory self-regulation was the
option examined in more detail by the Review.
4.1 Who is affected by the problem and who is likely to be affected
by the solution?
4.1.1 Those involved in some way in the migration advice industry who are
affected by its problems and possible solutions include migration agents,
consumers of migration advice, a range of regulatory and review bodies,
government and the community.
7.4.1 As at 30 June 2002, a total of 2,773 registered migration agents
operated within two sectors in the migration advice industry:
• the
commercial (‘for profit’) sector – 2,503 migration agents
(90.3 percent of all agents) operate in this sector, within which are two
groups:
- migration agents without legal qualifications, but who had to
complete sound knowledge entry requirements. There are 1,899 such agents (58.5
percent of all agents); and
- migration agents with legal qualifications.
There are 874 such agents (31.5 percent of all agents).
• the
non-commercial (‘not for profit’) sector – 270 migration
agents currently operate in this sector (9.7 percent of all registered migration
agents).
7.4.2 During the 2001-02 year, 703 new registration applications
were received (634 commercial, 69 non-commercial) and 677 applicants became
registered migration agents (605 commercial, 72 non-commercial). The average
number of years of experience in the profession is only 3.3
years.
7.4.3 The Office of Small Business defines ‘small
business’ as one employing fewer than 20 employees or where a person is
self-employed running his or her business. The MARA has advised that between 90
and 95 percent of all registered agents are working in businesses employing
fewer than twenty staff (about one half to two-thirds of whom may be agents).
The remaining five to ten percent of agents are working in a very small number
of businesses employing twenty or more staff, but the vast majority of these
large businesses are community (not for profit) organisations.
7.4.1 Consumers of migration advice would include visa applicants, review
applicants and applicant sponsors or nominators. However, it is very difficult
to get an accurate snapshot of the overall number and breakdown of types of
consumers utilising migration agents. To date, DIMIA has not been able to
provide statistical reports on the relationship between visa applicants and
migration agents, but work is now being done to provide this link and to produce
comprehensive statistical data on the use of migration agents. Evidence to date
suggests that the usage of migration agents by applicants for business visa
categories is high; however, the ‘ability to pay’ of people in this
group does not render them invulnerable to exploitation.
7.4.1 As discussed at paragraph 2.2.1 above, in March 1998 the MIA was
appointed as the MARA to be the industry regulator. The MARA has invested much
energy in the migration advice industry to eliminate unscrupulous practice. The
MARA has leased premises and appointed staff, and has been operating
successfully for the last four years. The MIA has shown a committed dedication
to the industry as its peak body and there would be a substantial loss of
expertise if it were to cease regulating the industry.
7.4.1 If changes were made to the regulatory framework, DIMIA could be
affected by:
• increases to its processing workload if there were a
reduction in the availability of competent and ethical advice provided
externally;
• a need to increase staff numbers to process a potentially
larger number of incomplete applications, leading to a greater burden on the
taxpayer;
• a need for additional investigation of malpractice if
fraudulent behaviour by agents increased; and
• a lessening of its
investigation responsibilities if unregistered practice were no longer an
offence.
4.6 How will each proposed option affect existing regulations
and the roles of existing regulatory authorities?
7.4.1 After an analysis of the industry, the Review found that the
migration advice industry would not be ready for full (i.e. voluntary)
self-regulation at the expiry of the sunset clause on 21 March 2003. The
reasons for this finding included that:
• the client base is vulnerable
- Many clients lack English
language skills and thus cannot access, or do not know how to readily access,
information concerning the industry and administrative decision-making
processes, or having accessed this information cannot understand it, and
therefore it difficult to make informed decisions about the professionalism of
migration agents;
• the handling of complaints and the
professionalism and integrity of the industry are critical to the credibility of
the regulatory framework
- A number of submissions expressed concern
over the way in which the MARA handles complaints, the extent of their
disciplinary powers and how they utilise these powers. It was clear that more
work would need to be done to improve their image, if any move toward
self-regulation could be considered;
• the competence of some
agents is of concern;
- The Review highlighted a number of serious
concerns in relation to the level of knowledge and continuing education of
migration agents; a large number (80-85 percent) of complaints relate to
professional conduct. It is considered that before the industry can be ready to
move towards voluntary self-regulation a number of fundamental changes need to
be made in relation to an enhanced CPD regime and higher entry standards;
and
• there are continuing concerns about customer service
- The Review found that public accessibility to the MARA is critical to its
credibility and, indirectly, to the continued health of the industry. There
have been a number of complaints from migration agents and visa applicants who
have found it difficult to contact a MARA officer on matters ranging from
general enquiries to complaints:
. on the general inquiry number it is
possible to leave a message and await a return call;
. on the information
service line (for initial applicants), direct access to a MARA officer is only
possible between 12.30pm and 2.30pm, for a fee of $4.95 per minute. The average
minimum call time is five minutes; thus an average minimum cost to a caller is
$25.00. More complex matters would take longer and thus be more
costly;
. similarly, due to the way in which the Authority Secretariat is
structured, the front desk is not staffed; and
. concerns were raised about
the absence of the Authority’s street address on both their letterhead and
website.
• The accessibility of the Authority is inconsistent with
contemporary customer service philosophies and practices in both public and
private administration.
- It is essential that the Authority improve
its access and communication channels. The Review, in concluding that the
industry is not yet ready to move to voluntary self-regulation, took into
account that the Authority will need to take a more proactive role in the
migration advice industry.
7.4.2 The Review concluded that if the
industry were to move to voluntary self-regulation, the MIA should have sole
responsibility for regulating the migration advice industry. Overall, the MIA
is seen as representative of the migration advice industry. Some community
organisations have suggested that because the MIA membership only accounts for
just over a third of the industry, the MIA is not necessarily representative of
it. In response, the MIA stated that the number of cases handled by individual
migration agents varies considerably - some agents handle only one or two cases
a year, while some larger practices may handle over a thousand a year. As its
membership includes most of the larger practices, MIA members are likely to
account for a much larger percent of all applications handled by migration
agents.
7.4.3 A return to government regulation of the industry was rejected on
the grounds it offered no advantages over the current statutory self-regulation
arrangements.
7.4.4 The Review then examined the existing co-regulatory arrangements.
The recommendations resulting from this examination relate to the future of
statutory self-regulation, sound knowledge, continuing professional development,
discipline and ethics, and overseas practice.
7.5
Recommendations
Future of Statutory
Self-Regulation
Recommendations 1 and 2
7.5.1 To
provide ongoing consumer protection, statutory self-regulation should be
extended and reviewed again at an appropriate juncture to determine whether the
industry has improved to the extent that consumer protection and agent
competence could be assured without a regulatory framework. The Review
concluded that the MIA’s position as regulator should be embedded more
fundamentally in the legislation. To give effect to the sense of security the
MIA has in its role as the regulator, it was decided that the current framework
should no longer be subject to a sunset clause.
7.5.2 It was further
recommended that the MIA and DIMIA should immediately commence consultations to
identify specific milestones to be agreed between DIMIA and the MARA in the
development of the industry and in the effectiveness of the MIA as the
regulator. The Review considered that the industry should focus on achieving a
number of key milestones and that a move to full self-regulation would be
evaluated in light of these key milestones being achieved. They would relate to
the MARA’s effectiveness in its core roles of registration, CPD,
complaints handling, discipline and industry monitoring and ensuring that
consumers have the necessary information – e.g. on price and quality of
services – to allow them to take decisions in their best interests. Key
milestones should thus include a further significant decrease in complaints and
a manifest increase in the level of satisfaction on the part of both clients of
migration agents and of migration agents as clients of the
MARA.
7.5.3 The Review has also recommended that to ensure that the MARA
is fully representative of the migration advice industry, the MARA should be
enabled to include community representatives or other non-MIA representatives in
its decision-making processes in a manner to be agreed with DIMIA.
Recommendations 3 and 4
7.5.4 Entry-level knowledge requirements are fundamental to maintaining
acceptable standards of competence and professionalism within the industry. The
Review has recognised that there is concern that the current sound knowledge
course is not sufficiently rigorous or comprehensive. The current course
involves only three to five days of training and does not provide sufficient of
the necessary information to work in such a changing and complicated industry.
This view is shared by many migration agents, members of the Migration Review
and Refugee Review Tribunals and DIMIA officers. It was an issue that was
raised in a significant proportion of the submissions.
7.5.5 To improve
competence within the industry the Review has recommended that the current sound
knowledge course and examination be lengthened and made more comprehensive, and
that an alternative means of entry should be introduced whereby individuals
could complete a period of supervised practice followed by an entrance
examination. The Review also agreed that the prescribed qualification for sound
knowledge purposes, for people with a law degree, should be a practising
certificate.
7.5.6 The Review found that the current legislation does not
make it clear that satisfactory completion of the sound knowledge course and
examination or other relevant qualifications should be mandatory for initial
registration. To rectify this the MARA should be given the power to refuse to
register a person seeking initial registration unless they have sound knowledge
of migration procedure or other relevant qualifications.
7.5.7 The Review
recognised the need to maintain participation levels in the industry of
non-commercial (i.e. ‘not for profit’) agents and also recognised
the impact the cost of initial registration has on persons wishing to enter this
sector. To provide some assistance to this sector, the Review recommended that
bulk publishing be permitted of community organisation employees’ details
in the one newspaper notice where more than one employee of the organisation is
making an initial registration application. The Office of Small Business
suggested there was no reason why persons wishing to enter the commercial sector
should not also be able to decrease their costs by bulk-publishing and that
individual notification served no beneficial purpose to the migration advice
industry or to consumers, to which the Review agreed. Accordingly it is
recommended in the submission to be considered by Cabinet that those employees
within a business or organisation (i.e. both the commercial and non-commercial
sectors) who intend to register as migration agents, be permitted to advertise
their intention together in the one newspaper notice.
Recommendations 5 to 10
7.5.8 Whilst the Review recognised that migration agents have little
difficulty in completing the CPD requirement, the majority of complaints against
agents in fact refer to competence. There is also anecdotal evidence from other
parties that the knowledge of many migration agents is inadequate. To improve
ongoing knowledge and competence within the industry across the full scope of
immigration assistance, the Review has recommended that certain CPD activities
be made mandatory in the first year of registration and periodically thereafter,
and that the differentiation between ‘core’ and
‘elective’ activities be reassessed. The Review, recognising that
migration agents operate in a statutory environment which is constantly
changing, also recommended that amendments to portfolio legislation should be
the subject of a mandatory assessable annual activity.
7.5.9 The
recommendations support existing arrangements to reduce the burden of CPD
activities on those migration agents who are also legal practitioners. Other
recommendations enhance the MARA’s powers in relation to requiring agents
to meet CPD requirements within an appropriate time-frame prior to lodging an
application for re-registration (i.e. both repeat and late registration). This
will require defining the requirements for all agents applying to register,
whether at an initial stage, or whether making a repeat or late
application.
7.5.10 The Review noted that currently the only measure of
consumer satisfaction in the industry is via the level of complaints. It
concluded that it was advisable to obtain a more objective understanding of the
level of consumer satisfaction with the conduct of agents, through DIMIA and the
MARA conducting regular client surveys.
7.5.11 Arising from recent
litigation, the Review found that there was uncertainty about the MARA’s
powers to apply a ‘fit and proper person’ test at the stage of
renewal of a registration. It recommended that the MARA be given the power to
apply a ‘fit and proper person’ test to applicants for
re-registration. To further ensure that agents can be better prepared to meet
these tests at the time of re-registration, it also recommended that the MARA
adopt a proactive approach and develop an education strategy to better explain
these requirements to agents.
Recommendation 11
7.5.12 Currently there is only one level
of registered migration agent. In its submission, the MIA proposed a second,
higher category of registered migration agent, the Certified Migration Agent
(CMA). The introduction of such a category is designed to foster the pursuit of
high professional standards and the attendant market advantages within the
industry. Some of the contrary views argued that CMAs were unnecessary, would
not reward agents specialising in one area, would favour the large operators,
may be confusing to clients and would not necessarily lead to better consumer
protection.
7.5.13 The Review examined the registration practices of
comparable industry groups and found that the legal and accountancy professions
were prime examples where practitioners had an opportunity to obtain a higher
level of registration. The creation of a high level practitioner can help to
improve consumer protection standards by giving clients a high level of
assurance, as well as imposing more onerous responsibilities on the professional
who wishes to be recognised at this higher level. An important requirement was
that a CMA would hold a specified level of professional indemnity insurance.
The Review noted that protection of client interests, as well as those of
agents, is desirable for the industry as a whole, not just for those seeking to
be registered at a higher level.
7.5.14 The Review noted that the
accountancy profession’s CPA scheme is widely well regarded and has been a
positive influence in improving professional accountancy standards. It also
places a focus on consumer protection issues.
7.5.15 Whilst a CMA scheme
is no guarantee of improved standards or better consumer protection the Review
concluded that this was an option deserving of further investigation and
recommended that the MIA/MARA and DIMIA should consult further on options for
the possible development of a CMA scheme.
7.5.16 The Review also
recommended exploring the feasibility of requiring migration agents, either as
part of the CMA scheme or within the existing arrangements, to hold professional
indemnity insurance at a specified minimum level, to better protect clients from
professional negligence.
Recommendations 12 to 19
7.5.17 The ability of the MARA to
discipline agents is crucial to the credibility and improvement of the migration
advice industry. These recommendations provide the MARA with greater scope in
relation to disciplining agents and strengthening the current arrangements. For
example, the MARA will be given the power to increase the penalties for inactive
agents who fail to comply with requests to provide or return client documents
and information.
7.5.18 The existing sanction to caution migration agents
will be strengthened to allow for conditions to be attached. The onus will then
be on the migration agent to demonstrate that he or she has complied with the
conditions before the cautionary sanction can be lifted. The MARA will be also
be provided with strengthened powers to publish, on its Register of Migration
Agents and elsewhere on its website, for a specified period, the names of
all agents who have been sanctioned and the reasons for the
sanction.
7.5.19 Some agents who have been sanctioned then
inappropriately seek to stay within the industry using a variety of business
structures or employment relationships. In order for the MARA to be able to
pursue these unscrupulous agents the definition of ‘relationship by
employment’ will be strengthened.
7.5.20 Vexatious applications
have a considerable negative impact on the workloads of DIMIA and on the
integrity of the migration and humanitarian programs. DIMIA, through enhancing
its Integrated Client Service Environment (ICSE) system, and the MARA will
together improve the monitoring of agents and develop a more effective means of
sanctioning those agents who lodge high numbers of vexatious or incomplete
applications.
7.5.21 The Code of Conduct will also be strengthened to
require migration agents to provide their clients with detailed and clear
information on the industry in general, on its regulation and the complaints
handling mechanism and what they can expect from migration agents and the
MARA.
Recommendation 20
7.5.22 The unscrupulous behaviour of some
individuals operating offshore as migration agents, whether registered or not,
continues to cloud the credibility of the migration advice industry. While
DIMIA and the MARA promote the use of Australia-registered agents offshore,
their ability to address offshore consumer protection issues generally and to
address the conduct of unscrupulous agents offshore is severely limited, because
so few offshore agents are registered under the current onshore scheme. The
Review has recommended that the legislation be amended to extend registration to
foreign nationals who wish to provide advice to visa applicants in relatino to
temporarily entering or permanently migrating to Australia. This would include
a measure limiting the categories of people who can be appointed as
representatives or agents of a visa applicant.
Decision-making, client
services, MARA efficiency, fraud, unregistered practice, fees and the
DIMIA-agent relationship
Recommendations 21 to
27
7.5.23 These recommendations cover a wide variety of topics such
as decision-making, client services, efficiency of the MARA, fraud and
unregistered practice and the relationship between migration agents and DIMIA.
These recommendations include that MARA produce a client service charter,
develop community education information, including about the average fees
charged within the industry, review its public access arrangements and fully
implement the recommendations of Ernst and Young’s September 2000
Review of the Migration Agents Registration Authority. The Review
also recommended that DIMIA give, where other priorities allow, a higher
priority to investigating and facilitating convictions for unregistered practice
and of migration agents engaged in fraudulent activities.
7.5.24 These
recommendations are expected to result in better client service and improved
efficiencies in the MARA’s operations, and thus a more ethical and robust
migration advice industry.
7.6 Identification of expected impacts of
the review’s proposed options as likely benefits and costs and effects on
particular groups
7.6.1 Compliance costs vary between agents but are
estimated to be around $6,500 per annum per fee-charging re-registering agent
currently. These costs include re-registration, CPD, maintenance of library and
insurance. Compliance costs for persons wishing to enter the industry as
fee-charging agents are around $6,950 currently, and include entry costs (the
cost of obtaining sound knowledge or other qualifications and passing the entry
examination), advertising, initial registration and library). Non-commercial
(‘not for profit’) agents’ costs are lower as their
registration fees are considerably less than their commercial (‘for
profit’) counterparts. Given that the Review is recommending a
continuation of the present arrangements, it is anticipated that these
compliance costs will continue to apply, and at the same level, apart from any
increases in the cost of e.g. CPD, insurance etc. that may be imposed by
providers of these products in the future.
7.6.2 Whilst the impact of
compliance costs – in any industry – is likely to be somewhat
greater on small businesses than on larger businesses, and greatest on those who
operate one-person businesses, this is largely due to the fact that the smaller
a business, the fewer possible economies of scale are available to it. This is
also true for the migration advice industry; where an agent works in a
partnership or company with one or more other agents, economies of scale may
operate to reduce each agent’s costs. However, such cost-reducing
opportunities in the migration advice industry are in reality limited to the
sharing of a professional library and perhaps the costs of non-CPD and in-house
training, and an agent working in a smaller business may not enjoy, to the same
degree, the financial advantage accrued from these limited opportunities as an
agent in a larger business. Overall, it is anticipated that the Review’s
recommendations will not increase the costs on small business to a significantly
greater degree than on medium to large businesses, as virtually all of the costs
apply to each agent, not to each business.
7.6.3 The Review in making a
recommendation to allow bulk publishing for initial registration (refer to
paragraph 4.7.7 above) provides the potential for further cost saving for both
the commercial (fee-charging) and non-commercial (non-fee-charging) sectors of
the industry. Together with members of the industry body, the Migration
Industry Association, all non-fee-charging agents are also eligible for
reductions in fees charged for training (e.g. for CPD activities) by the
industry body.
7.6.4 Table 1 (following paragraph 4.9.3 below) summarises
the costs and benefits of statutory self-regulation, and is based on a more
detailed analysis provided in the report of the Review. The only sector
significantly adversely affected by the charging arrangements under the current
regime is the non-commercial (‘not for profit’) sector.
7.7
Identify the data sources and assumptions used in making these
assessments
7.7.1 The information used in this table was gathered
from the MARA Secretariat and the Board of the MARA.
7.7.2 To gather
accurate data on the costs passed onto consumers by agents, a comprehensive
survey would need to be conducted across all sectors of the migration advice
industry. It is difficult to predict costs in relation to agents and their
clients as they would vary greatly from agent to agent. Some agents have
hundreds of clients while others may have only one or two. Their areas of
speciality vary too, as does the degree of complexity in assisting with certain
visa subclasses, which may be reflected in higher fees.
7.7.3 Statutory
self-regulation provides the benefit of protection to consumers and to the
community in relation to the integrity of the migration and humanitarian
programs. DIMIA benefits from improved information to clients and assistance
with processing. With the MARA paying DIMIA $150,000 annually towards the costs
associated with this environment, the cost to the taxpayers is minimal. The
regulatory environment is stable with government regulation able to provide a
check on the industry and ensure that the MIA is fulfilling its role as industry
regulator.
|
|
Benefits
|
Costs
|
||
|
|
Description
|
Estimate ($)
|
Description
|
Estimate ($pa)
|
Consumers |
Greater protection for consumers through mandatory registration, minimum
training requirements and established complaints mechanisms.
|
Main financial benefit is protection from paying exorbitant fees:
significantly higher than average fees of $2,500 to $4,000.
|
Costs of registration and ongoing compliance costs may be passed on to
clients by registered agents.
|
If passed on these direct costs are estimated at $8 to $14 per
client.
|
|
Business – including small business
|
Industry codes provide framework for ethical practice.
Improved public perception of the industry. Registered agents participate in development of industry policies. |
Not readily quantifiable.
|
Up-front compliance costs for each person entering industry include
qualifications, initital registration fee, advertising of intention to apply and
library.
Ongoing costs for each agent include registration fee, CPD, library and insurance. |
$6,950
$6,500 |
Government |
DIMIA establishes and oversees regulatory settings and takes action against
unregistered agents.
|
|
Cost of the provision of policy advice and litigation.
|
Costs to DIMA are estimated to vary between $300,000 and $500,000
pa.
Of this, $150,000 pa is recovered from the industry. |
5 CONSULTATION
7.4 Who are the main affected
parties?
7.4.1 Affected parties include consumers, registered migration agents (an
estimated 90-95 percent of whom work in a small business environment; refer
paragraph 4.2.3 above), the MIA, some government departments and other
regulatory, review and professional bodies.
7.4.2 The review process
commenced with the development and dissemination by DIMIA of a Discussion Paper
in September 2001. This Discussion Paper invited stakeholders to make
submissions on the operation of the current arrangements and options for future
industry regulation. The stakeholders included ethnic community organisations,
peak bodies, the MIA, the MARA and statutory review bodies such as the Refugee
Review Tribunal and Migration Review Tribunal (see RIS: Attachment A for
a complete list of organisations invited to comment). The discussion paper was
also posted on the DIMIA and the MARA websites.
7.5 What are the views of these
parties?
7.5.1 Stakeholders were asked a number of questions on key
issues raised in the Discussion Paper. Seventeen submissions were received from
various sectors, migration agents and the general public (see RIS: Attachment
B for a list of submissions received).
7.5.2 In relation to the issue of future regulation of the migration advice
industry, the majority of submissions held the view that the industry should
continue to operate in the same manner. The main reasons cited were that the
MARA needs to:
• increase the level of professionalism in the
industry;
• increase consumer protection; and
• improve
ethical standards.
7.5.3 The MIA indicated that it was ready to assume
the role as industry regulator but that the industry was not yet ready for
self-regulation. The MIA argued for greater powers, such as responsibility for
the gazettal of CPD courses. The MIA also requested that a greater emphasis be
placed on the industry moving towards voluntary self-regulation, with itself as
the industry regulator.
7.5.4 Submissions generally expressed support for
the MARA’s performance as the industry regulator. A majority of
submissions commented on the need for greater consumer protection, greater
transparency in the MARA’s processes and greater access by the public to
Secretariat staff. There was also considerable support for improving academic
entrance requirements for entry into the industry and enhancing the CPD
scheme.
7.5.5 The MIA in their submission suggested the concept of a
higher level of registered migration agent or Certified Migration Agent (CMA).
A number of submissions raised concerns about this concept while others offered
variations on it. The Review examined in considerable detail the registration
regimes of comparable industry groups and concluded that there was merit in the
MIA/MARA and DIMIA consulting further on options for a CMA
scheme.
7.5.6 The issue of extending regulation to include overseas
practice also raised concerns relating to the costs of such a scheme, the
potential for limiting choice for clients and the potential for there to be an
adverse impact on humanitarian and refugee visa applicants. Having considered
the arguments supporting this proposition, the Review found sufficient grounds
for this idea to be developed further.
7.5.7 Both the CMA concept and the
regulation of overseas practice will be the subject of separate consultations
with stakeholders.
7.4 The 2001-02 Review found that the migration advice industry is not
ready for voluntary self-regulation in March 2003 in view of:
• the low
rate of membership of the industry association, the MIA, and the lack of
homogeneity in the industry, which would threaten the viability of voluntary
regulation by any industry body;
• the vulnerability of consumers and
the significant consumer protection and national interest issues;
and
• concerns of the department and of consumers of existing levels of
client service and client access to the MARA.
7.5 All submissions to
the Review supported the continuation of statutory self-regulation on the basis
of the need to curtail the impact on the industry of the activities of
unscrupulous agents and the continuing need to raise professional standards. In
view of these industry characteristics and the very real risks associated with
introducing voluntary self-regulation prematurely, this RIS recommends that
statutory self-regulation should be extended. In order to provide the MIA with
more certainty and the necessary time to achieve the key measures towards
self-regulation, the sunset clause will be removed.
7.6 The Deed of
Agreement between the Minister and the MIA should be renegotiated to reflect the
government’s recommendations arising from the Review. The renegotiated
Deed of Agreement should include key milestones relating to enhancements in the
MARA’s effectiveness in its core roles of registration, CPD, complaints
handling, discipline, industry monitoring and consumer education. An ongoing
review process will assess the industry’s progress towards achieving the
standards of consumer protection and agent competence necessary for voluntary
self-regulation.
7.4.1 The preferred option requires an extension of the current statutory
framework, by removing the current sunset clause and instead developing key
milestones to be achieved by the industry as a step towards its achieving
self-regulation.
7.4.2 This Review recommended enhancements to the
existing statutory self-regulation framework. This will require changes to the
Migration Act 1958, to the Migration Agents Regulations 1998 and to the
Deed of Agreement between the MIA and the Minister for Immigration and
Multicultural and Indigenous Affairs.
7.4.3 The extension of the current
arrangements will have no impact on other agencies.
7.2 Is the
preferred option clear, consistent, comprehensible and accessible to
users?
7.4.1 The proposed option is supported by all of the
stakeholders who made submissions to the Review. This preferred option is
clear, consistent and easily understood by consumers and
agents.
7.4.2 The Review suggests targeting certain areas for the
development of policies and procedures by the industry body, which will improve
access to information for consumers, agents and others. This includes more
transparent decision-making and more stringent education requirements for agents
entering the industry.
7.3 What is the impact on business, including
small business, and how will compliance and paper burden costs be
minimised?
7.4.1 As stated previously the costs of compliance varies
between agents. As discussed at paragraphs 4.8.1 and 4.8.2 above, there are
ways in which agents, commercial or non-commercial, where two or more are
working in the same business, can share resources (e.g. by sharing the holding
and maintenance of a professional library) and thus minimise compliance costs.
The proposal to allow ‘bulk publishing’ for persons intending to
enter the industry (see paragraphs 4.7.7 and 4.8.3 above) also aims to reduce
compliance costs for all agents, and is one which will be of particular interest
and benefit to the smaller, non-commercial (‘not for profit’) sector
as it will ease their financial burden and recognises the importance of this
sector’s continued participation in the industry.
7.4.2 Continued
cross-accreditation by the MARA with legal professional bodies will ensure that
the current CPD requirements do not overburden those migration agents who are
also practising lawyers.
7.4.3 All agents must meet the ‘fit and
proper person’ and ‘person of integrity’ tests at initial
registration and again at the time of re-registration. Those who do not meet
the requirements run the risk of not having their initial or re-registration
application approved and possibly losing their livelihood. Many agents also
seek a review by the Administrative Appeals Tribunal or the Federal Court of any
refusal by the MARA to register them. This can be expensive for all concerned.
The aim of a proposed education campaign to be run by the MARA is to encourage
agents to more responsibly manage their professional development. This will
give agents the benefit of increased certainty, that the time and cost expended
on meeting their sound knowledge and CPD requirements, will lead to a positive
decision on their initial and re-registration application. The industry as a
whole will also benefit from improved levels of knowledge and competence across
all aspects of immigration assistance.
7.4.4 There are a number of
recommendations made by the Review, which go to providing greater certainty
about the MARA’s powers relating to registration and sanctions. While the
primary aim is to enhance consumer protection these recommendations have not
been made without due consideration of the impact on a migration agent’s
business. For example, strengthening the provisions relating to a caution will
provide the MARA with the capacity to intervene at an early stage to remedy an
agent’s conduct, while still allowing the agent to continue to
practise.
7.4.5 Whilst the proposed regulation of offshore practice and
examination of the feasisbility of establishing a Certified Migration Agent
scheme are key recommendations of the Review, they are currently at the
conceptual stage only. Another RIS will not be required in respect of the
regulation of offshore practice as practice by foreign nationals will not impact
on small business in Australia. However, the CMA concept will need to be the
subject of a separate RIS when it has been further developed.
7.4.6 The
Review recommends exploring the feasibility of requiring migration agents to
hold a specified minimum level of professional indemnity insurance cover, either
within the current scheme or as part of the CMA scheme. Currently, there is no
definitive information available on the number of migration agents who hold
professional indemnity insurance, or the level of coverage purchased. It is
estimated that of the 2,773 registered migration agents as at 30 June 2002, some
400 would hold professional indemnity insurance and a further 500 who are also
legal practitioners are covered under their legal insurance. A more
comprehensive examination of the impact on business would need to take place in
conjunction with the feasibility study.
7.4 How will the effectiveness
of the preferred option be assessed? How frequently? Is there a built-in
provision to review or revoke the regulation after it has been in place for a
certain length of time?
7.4.1 The Review recommended that the existing regulatory framework be
extended and reviewed again at an appropriate juncture and that the current
framework should no longer be subject to a sunset clause.
7.4.2 A system
of performance milestones set by DIMIA and agreed to by the co-regulator, the
MARA, will be introduced. These performance indicators will address, among
other matters, the development of the industry in relation to:
• competence and sound knowledge of migration agents;
• MIA
coverage and performance in a regulatory role;
• client service and
public access to the MARA;
• agent discipline and ethics; and
• appropriate protection for consumers.
7.4.3 The Minister will
retain the right to conduct a further review at a time of his choosing to assess
if statutory self-regulation is continuing to achieve its
objectives.
7.4.4 Finally the Review proposed that the need for continued
legislative underpinning should be considered in any future review of industry
regulation. It was noted that despite significant gains in protection available
to consumers, the nature of the migration advice industry and of visa
application and other migration advice transactions, could mean that there would
always be an argument for a strong regulatory framework. The Review recognises
that it may be impossible for even a committed and capable industry body to
effectively regulate the industry without some statutory support.
RIS: ATTACHMENT A
ACCC
Australian Chamber of Commerce and Industry
Australian Council
of Social Services
Australian Section of the International Commission of
Jurists
Baulkham Hills/Holroyd/Parramatta Migrant Resource
Centre
Commonwealth Director of Public Prosecutions
Deakin
Australia
Department of the Treasury, Consumer Affairs Division
Each
member of the Business Advisory Panel
ECC of Illawarra
ECC of Loddon
Campaspe
ECC of Newcastle & Hunter Region
ECC of Northern
Tasmania
ECC of Shepparton
ECC of Sunraysia
ECC of WA
ECC of Wagga
Wagga
ECC/MRC Albury-Wodonga
Ethic Communities Council of NSW
Ethnic
Communities Council of Qld
Ethnic Communities Council of
Victoria
Fairfield Migrant Resource Centre
Federation of Ethnic Community
Councils
Immigration Advice and Rights Centre
Inner Western Region
(Footscray) Migrant Resource Centre
Law Council of Australia
Law Society
of NSW
Law Society of Victoria
Legal Aid Commission NSW
Legal Aid
Western Australia
MC of ACT
MC of NT
MC of Tasmania
MCC of Gold
Coast
MCC of Griffith
MCC of SA
MCC of Sunshine Coast
Migration
Agents Registration Authority
Migration Institute of Australia
Migration
Review Tribunal
MRC of Geelong
MRC of Gippsland
MRC of
Townsville
Multicultural Access and Resource Service, Coffs
Harbour
Multicultural Society, Northern Rivers
National Council of
Churches in Australia
Refugee and Immigration Legal Centre
Refugee Council
of Australia
Refugee Review Tribunal
Regional MRC of Ballarat
The
Victorian Foundation for the Survivors of Torture
Transcultural Community
Council, Lightning Ridge
UNHCR
RIS: ATTACHMENT B
ACOSS
Business Skills Section, DIMA
Commonwealth Director of Public Prosecutions
Geelong Migrant Resource Centre
Harvey Wade, Consumer
Immigration Rights and Advice Centre
John Gillespie, Migration Agent
Law Council of Australia
Law Society of New South Wales
Legal Aid Commission of New South Wales
Mervyn Rothstein, Lawyer and Migration Agent
Michael Hutchinson, DIMA
Migration Agents Registration Authority
Migration Institute of Australia
Paul Vilips, Migration Agent
Refugee Review Tribunal
Springvale Community Aid and
Advice
Measures to Improve Professional Standards in the Migration
Advice Industry
The following Regulation Impact Statement was approved by the Office of
Regulatory Review in June 2003.
Current regulatory system
In Australia, subject to certain exemptions, only registered migration agents
are permitted to provide ‘immigration assistance’, as defined in the
Migration Act 1958 (the Act), for a fee or reward.
The Migration
Agents Registration Authority (MARA) regulates the conduct of these agents in
accordance with the provisions of Part 3 of the Act.
The MARA’s
role under the current system of statutory self-regulation includes:
• assessing, approving or refusing new and repeat registration applications in accordance with entry requirements;
• monitoring the conduct of registered agents against the requirements of the migration agents Code of Conduct (the Code);
• investigating complaints against registered agents, applying sanctions where appropriate; and
• administering Continuing Professional Development (CPD)
requirements.
The Government monitors the MARA’s performance as the
regulator of the migration advice industry and maintains the statutory framework
within which the MARA operates.
The Deed of Agreement (the Deed) between
the Commonwealth of Australia and the MIA formally defines the relationship
between the Commonwealth and the MIA, acting in its capacity as the MARA. It
outlines the support to be provided by DIMIA to the MARA in areas such as legal
advice and assistance with litigation, as well as MARA’s reporting
requirements and performance targets.
The objectives of the regulatory
scheme are to:
• maintain and strengthen consumer protection; and
• contribute to the integrity of the migration and humanitarian
programs by promoting an ethical and competent migration advice
industry.
Review of the industry and proposed changes to the regulatory
framework
In 2001-02, a review of the migration advice industry was
carried out. The subsequent report entitled 2001-2002 Review of Statutory
Self-Regulation of the Migration Advice Industry (Review), made twenty-seven
recommendations for strengthening the industry.
This Review found that the industry was not yet ready to move towards complete self-regulation. It considered that regulatory intervention was still necessary to alleviate a number of concerns, such as:
• the quality of service being provided by some agents;
• the level of professionalism within the industry; and
• the continuing vulnerability of client groups.
Since that time, the Government and the MARA have been working cooperatively on implementing all twenty seven recommendations of the Review, the majority of which involve a significant amount of legislative changes. These changes, if passed by Parliament, will help improve agent competence, reduce unscrupulous behaviour by agents and protect the integrity of the migration program.
A Regulatory Impact Statement (RIS) was prepared in 2002 when the Government considered and endorsed the implementation of all the recommendations of the Review.
The Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (the Bill) is being prepared to be introduced into Parliament in Spring 2003. This Bill, if passed, will provide for the implementation of the majority of the Review recommendations.
It is expected that consequential changes to the Migration Agents Regulations 1998 (the Regulations) will be made in March 2004.
This RIS addresses proposed legislative changes to implement two
significant Review recommendations – ie. Recommendations Three and Sixteen
respectively.
As outlined below, the proposed changes aim to address two
significant problem areas, within the industry, that were highlighted by the
Review, ie. :
• the inadequate entry standards for the industry; and
• the submission of “vexatious” applications by unscrupulous migration agents.
.. Only lawyers with a current practising certificate would be
exempt from [current] initial entry requirements.
The MARA
should be given the power to refuse to register a person seeking initial
registration unless they have sound knowledge of migration procedure or other
relevant qualifications.
Entry requirements are fundamental to maintaining acceptable standards of
competence and professionalism within the migration advice industry. The Review
specifically addressed the issue of whether the requirements for entry into the
industry were sufficient.
The Review found that entry requirements
should be strengthened in order to improve competence within the industry. Two
particular problem areas were recognised.
The Review considered it
inappropriate that:
• holding a law degree (which may have been
obtained some years before) was considered sufficient to satisfy the MARA that
an applicant is a fit and proper person to become a registered migration agent;
and
- In 2002-03, complaints were received about three hundred and ten agents (ten percent of all agents). Ninety-six of these (ie. thirty-one percent) related to the conduct of a legally qualified agents.
- Of complaints against legally qualified agents, sixty-six related to the conduct of agents with a practising certificate (nine percent of such agents) and seven related to the conduct of agents admitted to practice (but who did not hold a practising certificate) (nine percent of such agents). However, it is notable that twenty-three complaints related to the conduct of agents holding only a law degree, which was seventeen percent of agents with only a law degree.
- The MARA has advised that complaints often arise against agents who hold a
law degree only as they do not have the necessary business skills to operate
effectively within the industry.
• the Act does not clearly state
that satisfactory completion of the sound knowledge course and examination, or
other relevant qualifications, is mandatory for initial registration.
- When considering whether an applicant for registration is fit and proper to become a registered migration agent, currently the MARA is only required to “take into account” whether the applicant has a qualification prescribed by the Regulations or a knowledge of migration procedure that the MARA considers to be sound (see s290(2)(b).
- Nor does the Act clearly define what the MARA should consider to be a
“sound knowledge” in cases where an agent does not hold
“prescribed qualifications”.
To support the integrity of the migration and humanitarian
programs, improve the monitoring of agents and develop more effective means of
sanctioning agents who lodge high numbers of vexatious, unfounded or incomplete
applications.
The Review also directly addressed the issue of
agents who readily assist clients to apply for visas for which they are clearly
not eligible. It recognised that such behaviour abuses the migration and
humanitarian programs and wastes DIMIA’s resources.
Further
research has revealed the extent of this problem:
• The Department
has analysed Protection visa application rates for the period 1/11/01 to
30/6/02.
- Of the 8,677 primary applications lodged during this period,
2,222 were lodged by the applicant themselves and 6,455 (approximately
seventy-four percent) were presented by five hundred and twenty two migration
agents. Notably, three hundred and four of these agents had a refusal rate for
their applications of ninety to one hundred percent, accounting for 3729
(approximately fifty-eight percent) of the 6,455 applications lodged by
migration agents.
- In total, forty-three percent of all Protection
visa applications in the period were lodged by migration agents who had between
a ninety and one hundred percent refusal rate. Their activities have a clear
adverse impact on the humanitarian program.
• Of the three hundred
and ten complaints received by the MARA in 2002-03, four percent of these
related to an agent misleading a client about the prospects of success of their
application and two percent concerned agents encouraging the lodgement of
grossly unfounded applications. Clearly, few complaints are being made by the
clients of such agents, as the applicant has gained valuable extra time in
Australia.
The Review recognised that the current provisions in the Code
relating to unfounded applications are simply insufficient to deal with such
problems. The Code currently provides that an agent:
• should be
frank and candid about prospects of success when assessing a client's request
for assistance in preparing a case or making an application (Clause 2.6);
• should not hold out unsubstantiated or unjustified prospects of
success, when asked by a client to give his or her opinion about the probability
of a successful outcome for the client's application (Clause 2.7);
• must not engage in false or misleading advertising, including
advertising in relation to guaranteeing the success of an application (Clause
2.10); and
• must not encourage the client to lodge an application
under the Migration Act or the Migration Regulations which is vexatious or
grossly unfounded (for example, an application [that] has no hope of success);
and must advise the client that, in the agent's opinion, the application is
vexatious or grossly unfounded; and if the client still wishes to lodge the
application, the agent must obtain written acknowledgment from the client of
that advice (Clause 2.17).
Under section 303(h) of the Act the MARA,
using its discretionary powers, can then cancel or suspend the registration of
an agent who breaches the Code, including through encouraging vexatious
applications.
Whilst some action has been taken by the MARA against such
agents, under these provisions, it is clear that they are inadequate to redress
the lodging of vexatious applications. A stronger message needs to be sent to
registered migration agents that they should not engage in “vexatious
activity”.
The broad aims of proposed legislative changes are to:
• raise standards of professionalism and skills in the migration advice industry;
• further protect vulnerable consumers from unscrupulous and unprofessional agents; and
• to effectively sanction agents making vexatious
applications.
The purpose of this RIS is to discuss in more detail the
impact of legislative changes to implement Recommendations Three and Sixteen of
the Review. As policy approval has already been given, and a RIS was presented
to the Government at the time of seeking that approval, the purpose of this RIS
is not to present alternative options in relation to the two recommendations. It
will however provide more detailed information about the benefits and
disadvantages of implementing each recommendation for key stakeholders and the
results of related consultations.
The Government proposes to amend the Act to make it clear that satisfactory
completion of the sound knowledge course and examination, or holding of other
relevant qualifications, is mandatory for initial registration.
• The MARA will be given the power to refuse to register a person
seeking initial registration unless they have sound knowledge of migration
procedure, as evidenced by completing a sound knowledge course and examination,
or by holding prescribed qualifications.
• Applicants will be
required to possess a current legal practising certificate (or equivalent) in
order to meet the prescribed qualification requirement.
Thus, applicants who possess a law degree, but do not hold a current
practising certificate, will now be required to undertake a sound knowledge
course and pass an entry examination in order to have their application for
initial registration considered by the MARA.
• Applicants will be
required to complete a prescribed course and the entry examination within twelve
months, prior to submitting their application for registration.
- A
prescribed course will be one approved by the MARA and listed on its web site.
- A prescribed exam will be the “Migration Advice Profession Knowledge
Entry Examination”, as listed on the MARA’s web site.
The Government is proposing a new scheme to improve the monitoring of
agents suspected of engaging in vexatious activity, and to more effectively
sanction those agents. The outline of the scheme is as follows:
• “Vexatious activity” will be defined as activity by a registered migration agent, characterised by the lodgement of visa and review applications, whose refusal rate meets, or exceeds, a prescribed threshold.
- There will be two refusal rate thresholds: ninety percent for Protection visa applications, and seventy five percent for all other visa classes.
- The minimum period to be examined will be one hundred and eighty calendar days and the minimum number of applications lodged in this period before an agent’s refusal rate can be examined will be four applications of the same visa class.
• DIMIA will identify agents for sanctioning if their refusal rate for applications in a particular visa class (after review, where review is requested) is at, or above, a prescribed threshold.
- DIMIA will analyse migration agent application data on departmental systems to identify these agents.
- All applications made by registered migration agents providing immigration assistance under the Immigration Advice and Application Assistance Scheme will be exempt from the vexatious activity sanctioning scheme.
• DIMIA will issue notices to agents who meet the threshold, advising that they may be referred to the MARA for mandatory sanctioning.
- The agent will have fourteen days (with provision for a fourteen day extension) in which to respond to the notice with any “relevant considerations”, which might lead DIMIA to decide not to make a referral to the MARA. These may include situations beyond an agent’s control, for example, a failure in their client’s ability to satisfy time-of-decision criteria despite satisfying time-of-application criteria.
• DIMIA will have the power to make a decision to refer the agent’s name to the MARA and reason(s) for the referral, if after it has considered the agent’s response, DIMIA reaches the conclusion that the agent meets the threshold for referral.
- DIMIA will have the discretion not to refer agents to MARA when, for example, the broader circumstances indicate that malpractice is not involved or no profit motive is evident.
- DIMIA will also have the power to recall and reconsider any of its referrals, if it is in the public interest to do so.
- DIMIA will be required to notify the MARA of its decision to make a referral.
• The referral mechanism, if triggered, will lead to a mandatory suspension of registration for a year for a first occurrence and a mandatory cancellation of registration for five years for a subsequent occurrence.
- The MARA will be required to make the appropriate mandatory decision as soon as possible or within seven days;
• The agent will have the right to appeal DIMIA’s referral decision to the AAT within 14 days of being given notice of the decision.
- An agent appealing to the AAT will be permitted to seek a stay of the operation of DIMIA’s referral decision and the MARA’s subsequent mandatory decision. However, an agent who is granted a stay order will be required to be supervised by an experienced registered migration agent, whose professionalism is not in question and who agrees to undertake this role.
For the vexatious scheme to operate effectively, it will be necessary to ensure that agents do not evade the new sanctions by failing to declare their role as an agent. Consequently, legislative changes are also proposed to ensure that:
• agents declare their involvement with visa or review applications (ie. by completing the relevant forms or by letter); and
• disciplinary action can be taken against agents who fail to declare their role.
- Mandatory sanctions, which will mirror the vexatious provisions, may apply.
The Department also considered alternative thresholds for determining
that an agent is engaging in vexatious activity. The advantages and
disadvantages of these options in contrast to the proposed amendments are
discussed on pages 13-15.
Alternative 1 proposed setting a single refusal threshold at seventy-five percent.
Under this proposal a range of refusal rate thresholds for Protection
visa applications would be established, each rate aligned to the nationality of
the applicant to reflect each country’s differing circumstances.
This approach would entirely exclude Protection visa applications from
the vexatious activity scheme.
Those who may be affected by the proposed changes include migration
agents, consumers of migration advice, a range of regulatory and review bodies,
government and the community.
As at 30 June 2003, a total of 3,084 registered migration agents operated
within two sectors in the migration advice industry:
• the commercial (‘for profit’) sector – 2,813 migration agents (91.2 percent)
• the non-commercial (‘not for profit’) sector – 271 migration (8.8 percent)
Of all migration agents:
• 2,132 (69.1 percent) do not have legal qualifications and had to complete sound knowledge entry requirements.
• 952 (30.9 percent) have legal qualifications, and of these:
- 739 have a current practising certificate (24.0%);
- 81 have admission to practice (but do not hold a practising certificate) (2.6%); and
- 132 have a law degree only (4.3%).
The MARA has advised that between
ninety and ninety-five percent of all registered agents are working in
businesses employing fewer than twenty staff (about one half to two-thirds of
whom may be agents).
The remaining five to ten percent of agents are
working in a very small number of businesses employing twenty or more staff. The
majority of these large businesses are community (not for profit)
organisations.
Seventy-two percent of migration agents work in a business
where they are the only person registered as an agent.
While analysis of
vexatious activity is still in its early phases, it is anticipated that less
than five percent of agents are likely to be affected by the proposed vexatious
activity sanctions.
Consumers of migration advice include visa applicants, cancellation
review applicants, review applicants, sponsors and nominators.
The
degree to which consumers employ migration agents varies. Whilst agents lodge
about seventy-five percent of all Protection visa applications, they are less
active with other visa class applications. For example, about twenty-five
percent of 457 temporary employment visa applications (including nominations and
sponsorships) are lodged by agents.
Given the large numbers of
applications handled by some agents who appear to be engaged in vexatious
activity, it is anticipated that some several thousands of applicants may be
saved from being involved in such applications.
The MARA is funded almost exclusively from the agent registration fees it
collects.
The MARA will be required to make mandatory decisions in a
short time-frame where agents are referred by DIMIA. Given the relatively small
number of agents likely to be affected by the proposed new sanction powers, they
are not expected to negatively affect the functions of the MARA.
The work of unprofessional or unscrupulous migration agents directly
impacts on the DIMIA, the Migration Review Tribunal (MRT) and the Refugee Review
Tribunal (RRT). Changes to the regulatory framework may affect these bodies
by:
• increasing their processing workloads if there is a reduction in the availability of competent and ethical advice provided externally;
• a need to increase staff numbers to process a potentially larger number of incomplete applications, leading to a greater burden on the taxpayer; or
• decreasing their processing workload if there were a reduction in the
number of vexatious applications being lodged.
Community organisations and concerned individuals have strong views about
the activities of unprofessional and unscrupulous migration agents. Such
organisations and individuals have regularly criticised the Government for not
forcing such migration agents to act professionally, or leave the industry.
If the proposed changes are implemented:
• consumers will be
further protected from unprofessional conduct by registered migration agents;
- Where agents have a poor knowledge of migration law and procedure, they can
seriously disadvantage their clients by:
♦ lodging applications out of
time;
♦ not advising their client of their review
rights;
♦ applying for a visa where they have no right to
apply;
♦ lodging an incomplete application which DIMIA may lawfully
refuse to accept or refuse to grant the visa; or
♦ making applications
on their client’s behalf which will lead them to be barred from making
further applications.
The consumer may have paid the agent large sums of money to make these applications.
• the MARA will have clear legislative power to refuse to register an applicant for initial registration whose knowledge of migration procedure is not considered to be sound;
• consumers of migration advice will benefit from greater certainty
that registered migration agents have a current knowledge of applicable laws.
- Entry-level knowledge requirements are fundamental to maintaining
acceptable standards of competence and professionalism within the industry.
- This recommendation addresses serious concerns in relation to the
level of knowledge of migration agents highlighted by the Review. In 2002-03,
the MARA confirmed that the greatest number of complaints about professional
conduct relate to competence (48%).
• the number of complaints against individuals who have entered the industry through the “prescribed qualifications” alternative to passing the sound knowledge exam, should be reduced.
- This will enhance consumer protection from unskilled agents.
the resources expended by DIMIA, the MRT and RRT to respond to ill-prepared applications and questions arising from an agent’s poor knowledge of migration law and procedure should be reduced; and
• litigation arising due to a lack of legislative clarity in relation to unclear sound knowledge requirements should be reduced, as will related costs which are bourne by DIMIA.
• If 2002-03 registration figures are used, costs of entering the
profession will increase for about seven percent of intending migration agents,
ie. those who have a law degree but do not hold a current practicing
certificate. These people will have to complete a sound knowledge course and
examination. These are the costs currently faced by the majority of migration
agents.
It is estimated that the full costs attributable to the
regulatory scheme for a migration agent without a law degree to operate their
business are:
- Up-front compliance costs for each person entering
industry including qualifications, initial registration fee, advertising of
intention to apply and library: $9,070
- Ongoing costs for each agent
including registration fee, Continuing Professional Development, library and
insurance: $6,600
• Any increase in registration costs for this
small group of agents may be passed on to consumers. However, given that the
migration advice industry is highly competitive and the subset of agents that
are affected is quite small, it is likely that the degree to which costs will be
passed on is comparatively small.
Implementation of this recommendation as proposed will:
• reduce incompetent and unethical practice by migration agents;
- Such conduct impacts substantially on individual consumers, the community and the government.
- For example, consumers may be encouraged to apply for visas in circumstances when there is little or no evidence that they satisfy requirements. This has the effect of undermining the integrity of the government’s migration and humanitarian programs and significantly increasing the workloads of DIMIA, the review tribunals and the Courts.
• overcome the limitations of the current provisions of the Code, relating to vexatious applications lodged by agents;
- Under current provisions, unscrupulous agents can not be stopped from engaging in vexatious activity.
- The very high application refusal rates of some agents indicate that a number of them continue to assist with the lodgement of vexatious applications, despite the current provisions of the Code and the possibility of sanctions being applied against them by the MARA.
• limit the extent to which unscrupulous agents can take financial advantage of vulnerable clients by encouraging them to make vexatious applications;
- In DIMIA’s view, many of these applications are instigated by agents and their associates, rather than their clients.
• strengthen the MARA’s credibility as a regulator:
- The ability of the MARA to discipline agents involved in such vexatious activity is crucial to its credibility and the improvement of the migration advice industry.
• ensure that the new sanctions will be imposed in a timely and effective manner;
- DIMIA is best placed to identify such agents from its databases. It will be assessing and the referring those agents whose activities need to be sanctioned.
- The use of an arbitrary, but clear, threshold will ensure that action is taken against such agents in a timely manner.
• address the activities of some agents lodging vexatious Protection visa applications, who may also be involved in the trafficking of women for prostitution and enabling those arriving in Australia on tourist visas to overstay their visa and obtain permission to work;
• provide an effective means to limit an agent’s ability to continue to practise unprofessionally, after having been sanctioned; and
- If the agent appeals a MARA sanction and obtains a stay order, the agent will only be able to practice while under supervision.
• oblige agents under law to declare their involvement in applications lodged with DIMIA/MRT/RRT/AAT on behalf of their clients.
- Unless this is done, once legislation is introduced to define “vexatious activity”, to provide that agents should not engage in such activity, and to penalise those who are found to have done so, agents will have an even greater incentive to avoid identifying themselves as having assisted with applications identified as being indicative of their vexatious activity;
By setting a different threshold refusal rate for Protection visa applications at ninety percent, the implementation of this recommendation will:
• clearly acknowledge Australia’s ongoing international responsibility to provide protection for genuine refugees;
• better ensure that genuine Protection visa applicants can still avail themselves of an agent’s services; and
- The vast majority will have refusal rates well under the proposed threshold and thus will be able to continue to accept Protection visa applicants as clients without fear of sanction.
- There is nothing to prevent a client from going elsewhere to receive immigration assistance if their chosen agent is not prepared to act for them, for fear of falling within the scope of the disciplinary sanctions. It is very unlikely that counter staff will face any increase in the number of unrepresented applicants seeking advice, or an increase in invalid applications.
• attract less criticism from refugee advocacy groups than setting different thresholds for Protection visa applicants by nationality (see Option 2).
• A referral indicating that an agent has engaged in vexatious activity and a subsequent MARA decision to sanction an agent will have a serious detrimental effect on the livelihood of that agent. For this reason, the proposed amendments ensure that:
- the threshold rates are set much higher than the average failure rates in the Protection visa class and other visa classes, so that only agents demonstrating the most serious of vexatious activity will be affected;
- an application will be considered to be vexatious only where all the review rights (if accessed) have been exhausted;
- DIMIA must comply with appropriate procedural fairness requirements in making a decision to refer an agent;
- the agent may appeal to the AAT against DIMIA’s referral decision and seek a stay order; and
- DIMIA may reconsider its decision to refer an agent if it is in the public interest to do so.
• Some agents may monitor the outcomes of the applications they assist with in order to stay below the threshold.
• There is a concern that this proposal may dissuade migration agents from legitimately making applications, which they are aware may be refused, in order to access ministerial intervention. These may be cases where there are genuinely compassionate reasons for granting the applicant permission to stay, even though they do not meet the exact visa criteria. However, the thresholds will allow some scope for such cases to be tested.
• The additional monitoring of, and reporting on, the performance of agents against the new code of conduct will place additional demands on DIMIA's resources.
- The proposal to discipline agents for unacceptably high refusal rates will require the Department to collect detailed and accurate information on the approval/refusal rate of agents by visa class. It will be essential that where a registered migration agent is authorised to act for a visa applicant their details are recorded against the relevant visa application details on ICSE. The ICSE system has recently been modified to make this process as efficient as possible for staff.
• there may be an increase in litigation from migration agents appealing to the AAT against sanction decisions imposed by the MARA for engaging in vexatious activity.
• The proposed options may have the effect of reducing the numbers of migration agents who are prepared to act for certain applicants, thus making it difficult for some applicants, particularly protection visa applicants, to obtain the assistance of migration agents in relation to their matters.
- AGS has also advised that any such reduction could be held to amount to a fetter on the freedom to communicate about immigration matters. However, they believe that the proposed scheme would be held to be constitutionally valid, as any restriction on the freedom to communicate would be held to be appropriate and adapted to achieving legitimate ends as long as the percentage refusal rate is set relatively high – thereby capturing only those agents seeking to exploit the visa application system.
• Setting a refusal rate threshold of ninety percent could be portrayed as insufficiently firm action by the Government against vexatious agents acting for Protection Visa applicants.
- As recently as 16 May 2003, the Shadow Minister for Citizenship and Multicultural Affairs Laurie Ferguson MP issued a Media Release criticising current legislation in relation to the sanctioning of agents who encourage clients to lodge vexatious applications. Mr Ferguson stated that the Opposition expects the MARA to “demonstrate a firm commitment to weed out the rip-off merchants and the bent operators.”
This option was considered to have the following advantages.
• A seventy-five percent refusal rate threshold for all visa classes may be more likely to be perceived as more appropriate than a ninety percent threshold, as:
- many may consider it to be just as unacceptable for a supposedly trained and knowledgable agent to achieve visa grants for only twenty-five percent of their clients at most, let alone grants for only ten percent or less; and
- a seventy-five percent refusal rate threshold would ensure consistency of treatment with all other visa classes and would uniformly apply the expectation for agents to deliver approval outcomes for at least twenty-five percent of their clients.
• The lower refusal threshold of seventy-five percent is more likely to
ensure agents carefully consider the consequences of lodging vexatious
applications.
And the following disadvantages:
• In the case
of Protection visa applications, it is possible that a refusal rate threshold of
seventy-five percent, after review, may be too low.
- It may appear to be targeting agents who are not blatantly abusing the humanitarian program and result in too many agents being unwilling to assist those with genuine cases, making it more difficult for genuine Protection visa applicants to be assisted by an agent.
- There are more agents with refusal rates of around seventy five percent than agents with rates of ninety percent, and so more agents may be reluctant to continue to accept Protection visa applicants as clients because of the increased likelihood of being sanctioned.
• There are greater difficulties in the Protection visa caseload for agents to be able to discern which persons have a genuine case whose applications are likely to result in a grant, and those whose applications are likely to result in a refusal, and accept clients accordingly.
• Considerable care is needed to deal sensitively with the greater number of agents providing pro-bono assistance in the Protection Visa caseload.
• A uniform refusal rate threshold for all visa classes may also be perceived by some as an unfair toughening by Government of its attitude towards asylum seekers, less clearly acknowledging Australia’s ongoing international responsibility to provide protection for genuine refugees.
- Given the vulnerability of some Protection visa applicants, this alternative proposal may attract more criticism from refugee advocacy groups than the proposed option.
- Furthermore, it may result in little practical advantage, as the number of agents who may be liable for sanction would not be greatly increased by setting a lower refusal threshold of seventy-five percent for Protection visa applications, because the most abusive agents have high volumes of applications and extremely high refusal rates (ie. above ninety percent).
- DIMIA may be portrayed as attempting to prevent vulnerable persons from being able to obtain assistance in seeking protection in Australia by raising a threat to the livelihood of agents wishing to act in this area.
As the disadvantages of Alternative 1 were considered to outweigh the advantages, it was not adopted.
This approach had certain advantages in that
it:
• acknowledged that some Protection visa applicant countries
have produced very high numbers of refugees in recent years while others have
produced very low numbers.
And the following
disadvantages:
• it is counter to Australia’s
non-discriminatory immigration policy and would almost certainly attract
complaints from various ethnic and community groups that Australia discriminates
against applicants of their own ethnicity or (former) citizenship;
and
• the setting of different thresholds by country groupings
would be complex and would require continual adjustment in response to changing
conditions in those countries, and thus be very difficult to
administer.
This option was not pursued further because it became
apparent that it would be unworkable and unacceptable.
This approach would be open to strong criticism
because:
• it is the Protection visa caseload which appears to be
most open to exploitation by agents and includes some of the most vulnerable of
DIMIA’s applicants; and
• it would prevent the removal from
the migration advice industry (the Industry) of a small group of unscrupulous
agents who prey on the most vulnerable applicants.
This option was not
pursued further because it would not be effective at reducing vexatious activity
by agents.
Figures in this RIS have been taken from:
• 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry;
• 2001-02 Annual Report, the Migration Agents Registration Authority;
• 2002-03 Preliminary annual registration and complaints handling reports from the Migration Agents Registration Authority; and
• Data extracted from the ICSE system which records onshore visa applications, provided by Outcomes Reporting Section.
The review process commenced with the development and dissemination by
DIMIA of a Discussion Paper in September 2001. This Discussion Paper invited
stakeholders to make submissions on the operation of the current arrangements
and options for future industry regulation. The stakeholders included ethnic
community organisations, peak bodies, the MIA, the MARA and statutory review
bodies such as the RRT and the MRT. The discussion paper was also posted on the
DIMIA and the MARA web sites. DIMIA received submissions from the MIA, the MARA
and a range of stakeholders and members of the public.
On 26 July 2002,
the Review’s External Reference Group, having formally endorsed the Review
recommendations, presented the Minister with the report of the Review: the
2001-02 Review of Statutory Self-Regulation of the Migration Advice
Industry. On 25 September 2002, the Minister released this report.
Submissions generally expressed support for the MARA’s performance
as the industry regulator. A majority of submissions commented on the need for
greater consumer protection and to increase the level of professionalism in the
industry. There was also considerable support for improving academic entrance
requirements for entry into the industry. For this reason, the implementation
of Recommendation Three has not raised any concerns during further policy
development processes.
During the debate on 5 June 2002 of the Migration Legislation Amendment
(Migration Agents) Bill 2002, members from both sides of Parliament expressed
concern about unprofessional conduct of migration agents.
The Shadow
Minister for Citizenship and Multicultural Affairs, Mr Laurie Ferguson, in a
Media Statement issued on 25 September 2002, in response to the release that day
of the Review, stated that he welcomed the Review recommendations and the
strengthening of the regulation of the industry to protect consumers
generally.
Ms Laurette Chao, in her capacity as the Chairman of the MARA, advised
that the MARA had significant concerns about the proposed way of implementing
Recommendation Sixteen.
Whilst the MARA supported the underlying intent
of the proposal to lessen the flow of vexatious applications, it did not support
the means chosen to achieve it for the following reasons:
• it was regarded as being a significant step backward from the measured progress towards industry self-regulation that the MARA understood underpinned Government policy leading towards eventual self-regulation;
- the proposal provided no discretion to the MARA in “deciding” to sanction an agent referred by DIMIA, as DIMIA, not the MARA, would in fact be making all the relevant decisions in identifying agents and considering their responses.
• the scheme could curtail access to Ministerial intervention as agents become disinclined to assist with cases;
• the current provisions to sanction agents engaging in vexatious activity are adequate;
• the triggering formula (the prescribed threshold) was arbitrary;
• there needs to be greater clarity about the categories of visas which will trigger the sanction mechanism and the relevant time frames, and about what constitutes “vexatious, unfounded or incomplete” applications;
• the scheme places the burden of proof on the agent to argue ‘innocence’ against the mandatory sanctions being applied, and only limited considerations will be regarded as “relevant” to this defence; and
• elements of the proposal imply that the ethics and conduct of
migration agents in general are to be characterised by the malfeasance of a
few.
In addressing the MARA’s views, the Department is of the view
that:
• the lodgement of vexatious applications by registered migration agents is a serious matter requiring strong action. The clear finding of the Review was that the existing legislation dealing with vexatious applications was insufficient;
• unscrupulous migration agents are abusing the Ministerial intervention arrangements as a device to allow their clients further stay in Australia and are charging their clients significant sums for doing so. If the proposed sanctions cause agents to think more carefully before lodging abusive Ministerial intervention requests, this would be a good result;
• while it is agreed that the triggering formula is arbitrary, the threshold has been set very high. Most agents have success rates in excess of seventy five percent and therefore only the most unscrupulous agents will be affected by the proposed sanctions. Furthermore, the proposed arrangements, will give even those agents the chance to provide good reasons for their high failure rate to avoid sanction; and
• no discretion has been proposed for the MARA to take a decision
because in the four and half years of the MARA’s existence, its has used
its sanction powers sparingly. The number of agents known to be lodging very
high numbers of vexatious applications clearly requires a firmer
approach.
In relation to the approved proposal to require agents to
declare their role when assisting their clients to lodge an application, Ms Chao
advised that the MARA had no in-principle concerns.
The Department has liaised closely with the AGD on the development of
Recommendation 16.
Although the recommendation that agents who do not hold current
practicing certificates be required to complete a sound knowledge course and
examination will increase entry costs for a small group of agents, these are
agents who are attracting a proportionately higher level of complaints than all
other agents. It is clearly inappropriate that people who have obtained a law
degree at some time in their past are considered to have a sound knowledge of
migration law and procedure. The need to protect consumers from unprofessional
and unqualified migration agents is paramount and it is therefore recommended
that entry standards be raised as proposed in Recommendation
Three.
Furthermore, it is important that the MARA be able to refuse
registration to agents who have not demonstrated that they hold a sound
knowledge, by either having a prescribed qualification or by having completed a
sound knowledge course and examination. There should be no doubt about sound
knowledge requirements at initial registration.
The Review found high
levels of concern about the entry standards for migration agents and the
unprofessional and unscrupulous actions of agents who lodge high numbers of
vexatious applications.
If legislation to sanction agents lodging
vexatious applications is not introduced, unscrupulous agents will continue,
with impunity, to engage in vexatious activity, characterised by lodgement of an
unacceptably high proportion of ultimately refused applications. Such activity
is:
• used to prolong the stay of people who have no legitimate
grounds for remaining in Australia;
• a useful mechanism for some
agents with suspected criminal or prostitution links to prolong the stay of
their clients; and
• used to obtain substantial fees, for lodging
applications which they know will be refused, from unsuspecting
clients.
The proposed mechanism for addressing vexatious activity is well
balanced, in that it:
• considers the whole application process an
agent may be involved in and thereby recognises that at review or ministerial
intervention stage an application may be shown to be well
founded;
• sets a higher threshold rate for Protection visa
applications in recognition of Australia’s commitment to assisting
refugees;
• gives an agent natural justice and appeal rights and the
ability to obtain a stay order to continue working under supervision.
It
is therefore recommended that the proposed scheme to implement Recommendation 16
be introduced.
Implementing these two recommendations will require changes to both the
Act and the Regulations.
The changes will not be retrospective. Those
persons considering applying for registration as an agent will be advised of the
changed entry requirements well in advance of the changes coming in to force by
the MARA.
The Department and the MARA will also provide information to
agents on the new sanctions for vexatious applications and the requirement to
declare their interest, which are expected to come into force in March 2004
following required regulations amendments. DIMIA staff have already been
advised of the changes via information sessions, and these will also be offered
to tribunal staff.
After the first year of operation of the vexatious
applications scheme, there will be a Departmental review of the appropriateness
of the thresholds and the general operation of the scheme.
The entire
regulatory scheme will be reviewed again in 2008. This was agreed by the
Government in February 2003, when the sunset clause on the operation of the MARA
was removed.
It is expected that the 2008 review will look closely at
the option of allowing the migration advice industry to become fully self
regulating. The progress of the MARA in removing unscrupulous agents from the
industry, raising professional competence and protecting consumers will be
evaluated.
The performance of the MARA against performance measures in
the Deed will be reviewed. If the Review finds that the MARA has performed
well, the outcome would be that government involvement in regulation would cease
and the sanctioning regime for vexatious application lodgement would be handled
entirely by the MARA.
MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS INTEGRITY MEASURES) BILL
2003
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
1. Clause 1 is a formal provision specifying
the short title of the Bill.
Clause
2 Commencement
2. Sections 1 to 3 of the Bill will commence
on the day it receives royal assent.
3. Schedule 1 to the Bill will
commence on a day to be fixed by proclamation, or 6 months from the date that
the Act receives royal assent, whichever occurs first.
Clause
3 Schedule(s)
4. The Migration Act 1958 is amended or
repealed as set out in Schedule 1 to the Bill.
Item 1 Section 275
1. This item inserts in section 275
a definition of “high visa refusal rate” in relation to a
visa
of a particular class.
2. It has the meaning given by new subsection
306AC(2), inserted by item 18 of this Schedule, which provides a method for
determining whether a migration agent has a high visa refusal rate in relation
to a visa of a particular class.
3. This is a minor amendment consequential to the insertion of a
definition of “registered migration agent” by item 3 of this
Schedule.
4. This item inserts a definition of “registered migration
agent” in section 275 of the Act to mean an individual registered as a
migration agent under section 286.
5. The purpose of this amendment is
to clarify that the term “registered agent” in Part 3 of the Act is
intended to refer to a person who is registered as a migration agent by the
MARA. This item results in consequential amendments to the following sections to
refer to “registered migration agents” rather than “migration
agents”:
• subsection 280(1) – item
11;
• subsection 281(1) – item 20;
• subsection 281(2)
– item 21;
• subsection 282(1) – item
23;
• subsection 282(2) – item 24;
• subsection 283(1)
– item 26;
• subsection 283(2) – item
27;
• subsection 284(1) – item 28;
• subsection 285(1)
– item 32;
• subsection 287(2) – item
36;
• section 290A – item 53;
• paragraph 292A(a)
– item 58;
• subsection 299(1) – item
61;
• subsection 299(3) – item 62;
• paragraph 300(1)(a)
– item 63;
• section 301 – item 65;
• subsection
302(1) – item 66;
• paragraph 303(a) – item
67;
• subsection 304(1) – item 70;
• paragraph 306B(a)
– item 83;
• subparagraph 306B(a)(ii) – item
86;
• subparagraph 306B(b)(ii) – item 89;
• paragraph
306B(e) – item 96;
• paragraph 306D(1)(a) – item
102;
• paragraph 306E(1)(a) – item 107;
• subsection
306F(1) – item 111;
• paragraph 306K(1)(d) – item
120;
• subparagraph 306K(2)(a)(ii) – item
123;
• paragraph 306K(2)(d) – item 126;
• subsection
308(1) – item 127;
• subsection 308(3) – item
130;
• subsection 308(4) –item 131;
• subsection 311A(1)
– item 135;
• subsection 311A(1) note – item
136;
• subsection 311D(1) – item 138;
• paragraph
311D(4)(b) – item 140;
• subsection 312(1) – item
144;
• subsection 313(1 – item 151;
• paragraph
313(3)(a) – item 153;
• subsection 314(2) – item
155;
• subsection 316(1) – item 156;
• subsection
316(1A) – item 157;
• subsection 316(1B) – item
158;
• section 318 – item 159;
• subsection 319(1)
– item 160;
• subsection 319(2) – item
161;
• subsection 319(2) (note) – item 162;
• subsection
319(3) – item 163; and
• subsection 319(3)(note) – item
164.
Item 4 Section 275 (definition of registration application
fee)
2. This item amends the definition of “registration
application fee” in section 275 of the Act to ensure that
“registration application fee” only means a charge imposed by
section 4 of the Migration Agents Registration Application Charge Act
1997 (the MARAC Act).
3. This amendment is necessary as a
consequence of new Part 3 of the MARAC Act, proposed to be inserted by item 5 of
Schedule 1 to the Migration Agents Registration Application Charge Amendment
Bill 1997 (the MARACA Bill), which provides for a charge to be imposed if a
registered migration agent, who paid the non-commercial application fee for the
agent’s current registration period, gives immigration assistance on a
commercial basis at any time during that period (“registration status
charge”).
4. This item inserts a definition of “registration status
charge” in section 275 of the Act to mean a charge imposed by section 10
of the MARAC Act.
Item 6 After subsection 276(2)
5.
This item inserts new subsection 276(2A) after subsection 276(2) of the
Act.
6. New subsection 276(2A) expands the definition of
“immigration assistance” to include circumstances where a person
uses his or her knowledge or experience in migration procedure to assist another
person by preparing, or helping to prepare, or advising the other person about,
a request to the Minister to exercise his or her power under section 351, 391,
417, 454 or 501J in respect of a decision (whether or not the decision relates
to the other person) (“Ministerial intervention”).
Item 7
Subsection 276(3)
7. This item makes a minor technical amendment
to subsection 276(3) consequential to the insertion of new subsection 276(2A) by
item 6 of this Schedule.
8. This item inserts new subsection 277(4) after subsection 277(3) of
the Act consequential to the insertion of new subsection 276(2A) contained in
item 6 of this Schedule.
9. In broad terms, section 277 provides that a
lawyer gives immigration legal assistance in giving advice to, representing or
acting for, a visa applicant, cancellation review applicant, or a sponsor or
nominator of a visa applicant, in relation to court proceedings. Immigration
legal assistance is distinguished from immigration assistance (defined in
section 276 of the Act) because it does not include advice for the purpose of
lodging or preparing a visa application, cancellation review application, or an
application to sponsor or nominate a visa applicant, or advice given in relation
to proceedings before a review authority relating to such applications.
10. New subsection 277(4) further limits the definition of immigration
legal assistance to provide that a lawyer does not give “immigration legal
assistance” in giving advice in relation to requests for Ministerial
intervention. The purpose of this provision is to make it clear that a lawyer
cannot rely on the exemption to giving immigration assistance contained in
subsection 280(3).
Item 9 Paragraph 278(a)
11. This
item makes a minor amendment to paragraph 278(a) consequential to the insertion
of new subsection 278(3) by item 10 of this Schedule.
12. This item inserts new subsections 278(2) and (3) after subsection
278(1) of the Act.
13. Subsection 278(1) sets out the circumstances in
which a person will be considered to
be “related by employment”
to another person for the purposes of section 290 of the Act.
14. New
subsection 278(2) provides that, for the purpose of Part 3 of the Act, the
regulations may prescribe additional circumstances where an individual will be
considered to be related by employment to another individual.
15. New
subsection 278(2) provides a flexible mechanism to deal with additional
circumstances where an applicant for registration as a migration agent is
working closely with a person who is not a person of integrity.
16. New
subsection 278(3) provides that, for the purposes of section 278,
“employee” includes a person engaged as a consultant or as an
independent contractor.
17. The effect of new subsection 278(3) is that
an individual will be related by employment to another individual if he or she
is engaged as a consultant or as an independent contractor of the other
individual or of a corporation or partnership.
Item 11 Subsection
280(1)
18. This item makes a minor technical amendment to clarify
that subsection 280(1) applies to a person who is registered as a migration
agent by the MARA.
Item 12 Subsection 280(1)(penalty)
19.
Subsection 280(1) provides that a person who is not a registered migration
agent must not give immigration assistance, unless the person satisfies one of
the exceptions under subsections 280(2) to (6).
20. This item amends
subsection 280(1) of the Act to increase the penalty for contravening subsection
280(1) from 50 penalty units to 60 penalty units.
21. The penalty has
been increased to deter commission and to protect consumers from receiving and
paying for ill informed immigration assistance.
Item 13 At the end of
subsection 280(1)
22. This item inserts a note at the end of
subsection 280(1) of the Act to point out that paragraph 504(1)(ja), inserted by
item 171 of this Schedule, provides that a person may pay a penalty as an
alternative to prosecution.
Item 14 At the end of subsection
280(2)
Item 15 At the end of subsection 280(3)
Item 16 At
the end of subsection 280(4)
23. These items insert a note at the
end of these subsections to clarify that a defendant
bears an evidential
burden if he or she wishes to rely on any of the exemptions to giving
immigration assistance whilst not registered as a migration agent. This is
because current sections 280(2), (3), (4), (5) and (6) were always intended to
operate as exceptions to, rather than elements of, the offence sent out in
subsection 280(1).
24. The same note is also inserted at the end of the
following sections:
• subsections 280(5), (5A), (5B) and (5C)
– item 17;
• subsection 280(6) – item
18;
• subsection 281(3) – item 22;
• subsections 284(2),
(3) and (4) – items 29, 30 and 31; and
• subsections 285(2), (3)
and (4) – items 33, 34 and 35.
2. In relation to all these
sections a defendant is required to bear the onus of pointing to
evidence
that suggests a reasonable possibility that he or she is a person who falls
within one of the exemptions to the offence of providing immigration assistance
whilst unregistered. The reason for this is to avoid problems experienced by
DIMIA in the past. For example, in relation to existing section 280(5), DIMIA
has experienced significant difficulty obtaining evidence that a fee or reward
has been received, particularly if it was not monetary in nature.
Item
17 Subsection 280(5)
3. This item repeals subsection 280(5) of the
Act and substitutes new subsections
280(5), (5A), (5B) and (5C).
4.
The general rule under existing subsection 280(1) is that a person who is not a
registered migration agent must not give immigration assistance. New subsections
280(5), (5A), (5B) and (5C) detail further exceptions to this general rule.
5. New subsection 280(5) provides that an individual is not prevented
from giving immigration assistance if the assistance is of a kind covered by new
subsection 276(2A) and is not given for a fee or other reward.
6. New
subsection 276(2A), inserted by item 6 of this Schedule, expands the definition
of “immigration assistance” to include circumstances where a person
uses his or her knowledge or experience in migration procedure to provide advice
about and assist with requests for Ministerial intervention. This amendment will
clarify that the MARA is able to regulate the conduct of registered migration
agents in their provision of assistance with requests for Ministerial
intervention and ensure that action can be taken against agents who consistently
lodge such requests in situations where the Minister has no power to
intervene.
7. The purpose of new subsection 280(5) is to ensure that
any person (ie not only registered migration agents) may assist another person
to make a request for the Minister to exercise his or her power under section
351, 391, 417, 454 or 501J of the Act, provided that the assistance is not given
for a fee or other reward. This amendment will ensure that people who currently
assist others with Ministerial intervention requests, such as community leaders,
can continue to do so without being required to register as a migration
agent.
8. New subsection 280(5A) provides that a close family member of
a person is not prevented from giving immigration assistance to the person.
9. “Close family member” is defined in new subsection
280(7), contained in item 19 of this Schedule, to have the meaning given by the
regulations.
10. New subsection (5B) provides that a person nominating a visa applicant for the purposes of the regulations is not prevented from giving immigration assistance to the applicant.
11. New subsection (5C) provides that a person sponsoring a visa
applicant for the purposes of the regulations is not prevented from giving
immigration assistance to the applicant.
12. For the reasons outlined
in the explanation for items 14, 15 and 16 above, the notes at
the end of
new subsections 280(5), (5A), (5B) and (5C) point out that a defendant bears an
evidential burden in relation to relying on further exemptions set out in those
subsections.
Item 18 At the end of subsection 280(6)
13.
For the reasons outlined in the explanation for items 14, 15 and 16 above, this
item
inserts a note at the end of subsection 280(6) to clarify that a
defendant bears an evidential burden in relation to the matter in subsection
280(6).
14. Subsection 280(6) provides that section 280 does not
prohibit an individual from
giving immigration assistance in his or her
capacity as a member of a diplomatic mission, consular post or an office of an
international organisation.
Item 19 Subsection 280(7)
15.
This item inserts a definition of “close family member” in
subsection 280(7) of the Act, consequential to the insertion of new subsection
280(5A) by item 17 of this Schedule. This definition provides that “close
family member” has the meaning given by the regulations.
16. It is envisaged that the regulations will define “close family
member” to include
family members such as spouse, parent, sibling or
child. The current definition of “Member of a Family Unit” in the
Migration Regulations 1994 was considered too wide to ensure that the exemptions
to the unregistered practice provisions do not continue to be abused.
Item 21 Subsection 281(2)
17. These items make minor
technical amendments to clarify that the reference to “registered
agent” in subsections 281(1) and (2) is intended to mean a person who is
registered as a migration agent by the MARA.
Item 22 At the end of
subsection 281(3)
18. For the reasons outlined in the explanation
for items 14, 15 and 16 above, this item
inserts a note at the end of
subsection 281(3) of the Act to clarify that a defendant bears an evidential
burden in relation to the matter in subsection 281(3).
19. The general
rule under existing subsections 281(1) and (2) is that a person who is not
a
registered migration agent must not ask for or receive any fee or other reward
for giving immigration assistance, or the giving of immigration assistance by
another person who is not a registered migration agent. Subsection 281(3)
provides exceptions to subsections 281(1) and (2).
Item
23 Subsection 282(1)
Item 24 Subsection 282(2)
20.
These items make minor technical amendments to clarify that the reference to
“registered agent” in subsections 282(1) and (2) is intended to mean
a person who is registered as a migration agent by the MARA.
Item
25 At the end of subsection 282(4)
21. This item inserts new
paragraph 282(4)(e) at the end of subsection 282(4) of the Act.
22.
The general rule under section 282 is that a person who is not a registered
agent must not ask for or receive any fee or other reward for making immigration
representations, or the making of immigration representations by another person
who is not a registered agent.
23. New paragraph 282(4)(e) expands the
definition of “immigration representations” in subsection 282(4) to
include circumstances where a person makes representations to, or otherwise
communicates with, the Minister, a member of the Minister’s staff, or the
Department on behalf of a person who has made (or is proposing to make) a
request for Ministerial intervention.
24. New paragraph 282(4)(e) is
consequential to new subsection 276(2A) contained in item 6 of this Schedule,
which amends the definition of immigration assistance to include the giving of
advice about and assistance with requests for Ministerial
intervention.
Item 26 Subsection 283(1)
Item 27 Subsection
283(2)
Item 28 Subsection 284(1)
25. These items make
minor technical amendments to clarify that the reference to “registered
agent” in the heading to section 283 and to subsections 283(1) and (2) and
284(1) is intended to mean a person who is registered as a migration agent by
the MARA.
Item 29 At the end of subsection 284(2)
Item
30 At the end of subsection 284(3)
Item 31 At the end of subsection
284(4)
26. For the reasons outlined in the explanation for items
14, 15 and 16 above, these items
insert notes at the end of subsections
284(2), (3) and (4) of the Act to clarify that a defendant bears an evidential
burden in relation to the matters in subsections 284(2), (3) and
(4).
27. The general rule under subsection 284(1) is that a person who
is not a registered agent
must not advertise that he or she gives
immigration assistance. Subsections 284(2), (3) and (4) detail exceptions to
this general rule.
Item 32 Subsection 285(1)
28. This
item makes a minor technical amendment to subsection 285(1) to clarify that the
reference to “registered agent” in subsection 285(1) is intended to
mean a person who is registered as a migration agent by the MARA.
Item
33 At the end of subsection 285(2)
Item 34 At the end of subsection
285(3)
Item 35 At the end of subsection 285(4)
29. For
the reasons outlined in the explanation for items 14, 15 and 16 above, these
items
insert notes at the end of subsections 285(2), (3) and (4) of the Act
to clarify that a defendant bears an evidential burden in relation to the
matters in subsections 285(2), (3) and (4).
30. The general rule under
section 285 is that a person must not directly or indirectly
advertise that
another person who is not a registered agent gives immigration assistance.
Subsections 285(2), (3) and (4) provide exceptions to this general
rule.
Item 36 Subsection 287(2)
31. This item
makes a minor technical amendment to subsection 287(2) to clarify that the
reference to “registered agent’ in subsection 287(2) is intended to
mean a person who is registered as a migration agent by the MARA.
Item
37 At the end of subsection 287(2)
32. This item inserts new
paragraph 287(2)(i) at the end of subsection 287(2) of the Act.
33.
Subsection 287(2) requires the Register of Migration Agents (the Register) to
show certain information in respect of each registered migration agent. For
example, the Register is to show a migration agent’s business address,
telephone number and date of most recent registration.
34. New
paragraph 287(2)(i) provides that the Register must also show particulars of any
other prescribed matter.
35. It is envisaged that regulations made
under new paragraph 287(2)(i) will require the Register to show information such
as a migration agent’s facsimile number, postal address, website and email
address (if applicable).
Item 38 Paragraph 287(3)(b)
36. This item repeals paragraph 287(3)(b) and substitutes new paragraph
287(3)(b).
37. In broad terms, subsection 287(3) requires the MARA to
keep records of certain information.
38. New paragraph 287(3)(b)
expands the MARA’s current duty to keep records to show particulars of any
cancellation of a registration, to also require the MARA to keep records to show
particulars of any suspension of a registered migration agent’s
registration or any caution given to such an agent.
39. The
MARA’s obligation to keep records is being expanded as a consequence of
new subsection 287(5), inserted by item 39 of this Schedule, requiring the MARA
to remove details of disciplinary action taken against an agent from the
Register. This is necessary so that the MARA always has a complete set of
records regarding a migration agent.
Item 39 At the end of section
287
40. This item adds new subsections 287(5), (6) and (7) at the
end of section 287 of the
Act.
41. New subsection 287(5) provides
that the MARA must remove the following details
from the
Register:
• particulars of any suspension of a registered migration
agent’s registration;
• particulars of any caution given to such
an agent.
2. New subsections 287(6) and (7) provide when MARA must
remove disciplinary
details from the Register.
3. New subsection
287(6) provides that MARA must remove the details within the
period worked
out in accordance with the regulations.
4. New subsection 287(7)
provides that the regulations may prescribe different periods in relation to
details about suspensions or cautions. This to provide flexibility to the MARA
to reflect different levels of seriousness and to respond to particular problems
in the industry. For example, the regulations may prescribe that details about a
caution must remain on the Register for 1 year, whilst details about a
suspension must remain on the Register for a period of 5 years.
Item
40 Section 288
5. This item repeals section 288 of the Act and
substitutes new sections 288, 288A and 288B.
6. Section 288 sets out the requirements for applying to the MARA for
registration as a migration agent.
7. New subsection 288(1) provides
that an individual may apply to MARA to be registered as a registered migration
agent. New subsection 288(1) is similar to repealed subsection 288(1), however
the reference to a “registered agent” is replaced with a reference
to a “registered migration agent”.
8. New subsection 288(2)
provides that an individual who makes an application for
registration as a
migration agent must satisfy 1 of 2 publishing options set out in new section
288A. However, an individual who has been registered at some time in the 12
months immediately before making the registration application is exempt from
this requirement.
9. New subsection 288(3) provides that a registration
application is to be in a form
approved in writing by MARA and must contain
such information relevant to the application as is required by the
form.
10. New subsection 288(3) is similar to repealed subsection
288(2). However, the
reference to “the approved form” in
existing subsection 288(2) is replaced with a reference to “a form
approved in writing by the Migration Agents Registration Authority”. This
is because subsection 5(1) of the Act defines “approved form” to
mean a form approved by the Minister in writing.
11. This item inserts
a note at the end of new subsection 288(3) of the Act. The note
refers to
new section 288B, and points out that an applicant may be required to make a
statutory declaration, or to answer questions, in relation to the
application.
12. New subsection 288(4) provides that a registration
application is taken to have been
made on the day worked out in accordance
with the regulations.
13. The purpose of new subsection 288(4) is to
clarify when a registration application is
made for the purposes of section
300 of the Act. Section 300 provides for automatic continuation of registration
if a registered migration agent makes a registration application and pays the
registration fee (if any) before the end of his or her current registration
period and the MARA has not decided the application before the end of the
current registration period.
14. New subsection 288(5) is similar to
repealed subsection 288(4), and provides that the
MARA must not consider a
registration application unless the applicant has paid the registration
application fee (if any) on the application.
15. New subsection 288(6)
is similar to repealed subsection 288(5), and provides that if
an applicant
is required to satisfy 1 of the 2 publishing options set out in new subsections
288A(2) and (3), the MARA must not consider the application unless the applicant
has:
• satisfied one of the publishing options;
and
• given the MARA evidence of the publication concerned.
2.
New subsection 288(7) allows an applicant to withdraw an application by giving
notice in writing to the MARA. However, an applicant who withdraws his or
her application will not be entitled to a refund of the registration application
fee paid in relation to the application.
3. The purpose of new
subsection 288(7) is to give an applicant the opportunity to
remedy any
defects in his or her application and prevent the operation of section 291,
which provides that an applicant must not be registered if he or she has been
refused registration as a migration agent within the 12 months before
application. For example, new subsection 288(7) allows an applicant to withdraw
his or her application in order to complete the continuing professional
development points necessary for re-registration.
4. New subsection 288A(1) provides that for the purposes of new
subsection
288(2), the section sets out an individual’s 2 publishing
options.
5. The first publishing option is set out in new subsection
288A(2), and requires an individual to publish in the prescribed way a notice
stating his or her intention to apply for registration and stating that anyone
may give MARA a written objection to his or her registration within a certain
period.
6. New subsection 288A(3) introduces an alternative publishing
option for individuals who are all employees of the same employer and who all
intend to apply for registration. It allows an individual to publish the same
information in a single notice, together with one or more other individuals.
7. The purpose of new section 288A is to provide a more
cost-effective means of
publishing a notice of intention to apply for
registration for individuals who are employees of the same employer.
8. New section 288B allows the MARA to require an applicant for
registration as a
migration agent, who is not currently registered as a
migration agent, to provide certain information in relation to his or her
application.
9. New paragraph 288B(1)(a) provides that the MARA may
require an applicant to
provide a statutory declaration in relation to
information or documents provided by the applicant in relation to the
application.
10. New paragraph 288B(1)(b) provides that MARA may
require an applicant to appear
before one or more individuals as specified
by MARA, and to answer questions in relation to the application.
11.
New subsection 288B(2) provides that if an applicant is required under this
section to
make a statutory declaration or to answer questions, the
Authority must not further consider the application until the applicant does
so.
12. The purpose of the new section is to improve consumer
protection by enabling MARA to seek further information to determine whether an
applicant for initial registration is a person of integrity and fit and proper
to be registered.
13. New section 288B is similar to existing section
308, which enables the MARA to require registered migration agents to make
statutory declarations, answer questions or provide the MARA with specified
documents or records, regardless of whether the information or documents may
tend to incriminate the agent.
14. New section 288B has been inserted
to bring the initial registration process and requirements in line with the
process and requirements for re-registration. The intended effect is to prevent
unscrupulous agents from entering the industry from the outset, as opposed to
later relying on the disciplinary process to remove unscrupulous
agents.
Item 41 Subsection 289(1)
15. This item makes a
minor technical amendment to subsection 289(1) consequential to
the
insertion of new sections 289A and 290B by items 47 and 54 of this Schedule.
Item 42 Subsection 289(1) (note)
16. This item makes a
minor technical amendment to the note under subsection 289(1)
consequential
to the amendment made by item 41 of this Schedule.
Item 43 Subsection
289(2)
17. This item makes a minor technical amendment to
subsection 289(2).
Item 44 Subsection 289(3)
18. This
item makes a minor technical amendment to subsection 289(3) of the Act
consequential to the insertion of new subsection 288(2) and new section 288A
contained in item 40 of this Schedule.
Item 45 Paragraph
289(3)(a)
19. This item makes a minor technical amendment to
paragraph 289(3)(a) of the
Act consequential to the insertion of new
subsection 288(2) and new section 288A contained in item 40 of this
Schedule.
Item 46 Paragraph 289(3)(b)
20. This item makes
a minor technical amendment to paragraph 289(3)(b) consequential
to the
insertion of new sections 289A and 290B contained in items 47 and 54 of this
Schedule.
21. This item inserts new section 289A after section 289 of the
Act.
Section 289A Applicant must not be registered if does not
satisfy registration
requirements
22. New section 289A
sets out requirements for registration as a migration agent for an
applicant:
• who has never been registered; or
• who
is applying to be registered more than 12 months after the end of his or her
previous registration.
2. New section 289A provides that such an
applicant must not be registered unless the
MARA is satisfied that he or
she:
• has completed a prescribed course within the prescribed
period and has passed a prescribed exam within the prescribed period;
or
• holds the prescribed qualifications.
2. New section 289A
does not apply to an applicant who has been registered at some
time in the
12 months before he or she makes the application.
Item 48 Paragraph
290(2)(b)
3. This item repeals paragraph 290(2)(b), consequential to
the insertion of new section
289A by item 47 of this Schedule.
Item
49 Paragraph 290(2)(f)
4. Subsection 290(2) of the Act lists several
factors that the MARA must take into
account in considering whether it is
satisfied that an applicant for registration is a not fit and proper person, or
not a person of integrity.
5. This item amends paragraph 290(2)(f) to
provide that the MARA must take into
account any disciplinary action that is
being taken, or has been taken, against the applicant that MARA considers
relevant to his or her application.
6. The effect of this amendment is to
expand existing paragraph 290(2)(f) to ensure that
the MARA can take into
account any disciplinary action that is being taken, or has been taken, against
an applicant, not just disciplinary action taken by a professional association
against the applicant. For example, this item ensures that the MARA may take
into account any action taken by a regulatory body or any Ombudsman against an
individual.
7. Subsection 290(3) of the Act sets out certain matters that the MARA
must take into
account in considering whether it is satisfied that an
individual to whom the applicant is related by employment is not a person of
integrity.
8. This item amends paragraph 290(3)(d) to provide that the
MARA must take into
account any disciplinary action that is being taken, or
has been taken, against an individual to whom the applicant is related by
employment that the MARA considers relevant to his or her
application.
9. The effect of this amendment is to expand existing
paragraph 290(2)(f) to ensure that
the MARA can take into account any
disciplinary action that is being taken, or has been taken, against an
individual to whom the applicant is related by employment, not just disciplinary
action taken by a professional association against an individual to whom the
applicant is related by employment. For example, this item ensures that the MARA
may take into account any action taken by a regulatory body or any Ombudsman
against. For example, this item ensures that the MARA may take into account any
action taken by a regulatory body or any Ombudsman against an individual
10. This item inserts new subsection 290(4) at the end of section 290 of
the Act.
11. New subsection 290(4) puts it beyond doubt that section 290
applies to all applicants,
not just first time applicants.
12. In
other words, new subsection 290(4) clarifies that section 290 applies to an
applicant:
• who is applying for registration for the first
time;
• who is applying to be registered more than 12 months after the
end of his or her previous registration; or
• who has been registered
at some time in the 12 months before making the application.
2. In broad terms, section 290A of the Act requires an applicant, who has
been registered
at some time in the 12 months before making the application
for registration, to meet the requirements for continuing professional
development prescribed in the regulations.
3. This item amends section
290A of the Act to clarify that such an applicant must meet
the requirements
for continuing professional development within a prescribed period.
4. It is envisaged that regulations will be made to require such
applicants to meet their
continuing professional development requirements
within the 12 month period before making an application for registration (with a
qualification that if an agent is applying before his or her registration ends,
only the current registration period is to qualify). This will ensure that
applicants for re-registration have knowledge of migration law and procedure
that is current and up-to-date.
5. This item makes a minor technical amendment to section 290A to clarify
that the reference to “registered agents” in section 290A is
intended to mean persons registered as a migration agent by the MARA.
6. This item inserts new section 290B after section 290A of the Act.
7. New section 290B provides that an applicant must not be registered if
any registration
status charge payable by him or her remains unpaid after
the time when it becomes due for payment.
8. A definition of
“registration status charge” is inserted into section 275 of the Act
by item 5 of this Schedule to mean to mean a charge imposed by section 10 of the
MARAC Act.
9. New subsection 332A(1), inserted by item 168 of this
Schedule, provides that
registration status charge is due and payable at
the time worked out in accordance with the regulations.
10. This item inserts new subsection 291(2) at the end of section 291 of
the Act.
11. Section 291 provides that an applicant must not be
registered if he or she has been
refused registration within 12 months
before making the application for registration.
12. New subsection 291(2) puts it beyond doubt that section 291 applies to
all applicants,
not just first time applicants (see item 51).
13. This item makes a minor technical amendment to section 292 of the Act
consequential
to the insertion of new section 306AG contained in item 75 of
this Schedule.
14. In broad terms, existing section 292 provides that an
applicant must not be registered
if his or her registration as a migration
agent has been cancelled in the past 5 years.
15. The effect of this amendment is that an agent must not be registered if
his or her
registration has been cancelled under section 303 or under
section 306AG within 5 years before the application.
16. This item makes a minor technical amendment to section 292A of the
Act
consequential to the insertion of new subsection 311L(1) contained in
item 142 of this Schedule.
Item 58 Paragraph
292A(a)
17. This item makes a minor technical amendment to paragraph
292A(a) to clarify that
the reference to “registered agent” in
paragraph 292A(a) is intended to mean a person who is registered as a migration
agent by the MARA.
18. This item inserts new subsection 294(2) at the end of section 294 of
the Act.
19. New subsection 294(2) puts it beyond doubt that section 294
applies to all applicants,
not just first time applicants (see item 51).
Item 60 Subsection 299(1)
20. This item makes a minor
technical amendment to subsection 299(1) consequential to the insertion of new
section 306AG contained in item 75 of this Schedule.
21. New section
306AG requires the MARA to make a mandatory decision in relation to
an
agent’s registration if the Minister refers a registered migration agent
to the MARA for having a high visa refusal rate.
22. The effect of the
amendment is that an agent’s registration lasts for a period of 12
months, subject to sections 300, 302, 303 or new section 306AG.
Item 61 Subsection 299(1)
Item 62 Subsection
299(3)
Item 63 Paragraph 300(1)(a)
23. These items make
minor technical amendments to subsections 299(1) and (3) and paragraph 300(1)(a)
of the Act to clarify that a reference to “registered agent” in
subsections 299(1) and (3) and paragraph 300(1)(a) is intended to mean a
migration agent who is registered by the MARA.
24. This item makes a minor technical amendment to section 301 of the Act
to replace the
reference to “One month” with a reference to
“At least 30 days”.
Item 66 Subsection 302(1)
25. These items make minor technical
amendments to section 301 and subsection 302(1) to clarify that a reference to
“registered agent” in section 301 and subsection 302(1) is intended
to mean a migration agent who is registered by the MARA.
Item
67 Paragraph 303(a)
26. This item makes a minor technical amendment
to clarify that a reference to “registered agent” in paragraph
303(a) is intended to mean a person who is registered as a migration agent by
the MARA.
27. The note at the end of this item replaces the existing
heading to section 303 with new heading “Disciplining registered migration
agents” because the existing heading only mentions the cancellation or
suspension of registration. The new heading clarifies that section 303 also
relates to the MARA’s power to caution a migration agent.
28. This item repeals the note at the end of section 303 and inserts new
note 1 and 2.
29. New note 1 makes it clear that the MARA is required to
cancel or suspend a registered migration agent’s registration in certain
circumstances.
30. New note 2 points out that if the MARA is considering
making a decision under section 303, it must invite the registered migration
agent to make a submission under sections 309 and 310 of the Act.
31. This item inserts new subsection 303(2) at the end of section 303 of
the Act.
32. New subsection 303(2) enables the MARA to suspend a
migration agent’s registration if any registration status charge (see item
5) payable by the agent remains unpaid after the time when it becomes due for
payment.
33. New section 290B, inserted by item 54 of this Schedule,
provides that an applicant must not be registered if any registration status
charge payable remains unpaid.
34. The purpose of this item is to ensure
migration agents pay any registration charge payable under section 10 of the
MARAC Act, proposed to be inserted by item 5 of Schedule 1 to the MARACA Bill.
Item 70 Subsection 304(1)
35. This item makes a minor
technical amendment to clarify that a reference to “registered
agent” in subsection 304(1) is intended to mean a person who is registered
as a migration agent by the MARA.
36. This item inserts new section 304A after section 304 of the
Act.
37. New section 304A provides that the MARA may set one or more
conditions for the lifting of a caution it gives to a registered migration
agent. New section 304A is similar to existing paragraph 304(1)(b) of the Act,
which deals with setting conditions for the lifting of a suspension.
38. For example, the MARA may set a condition that the caution is to
apply for a certain period of time or that an agent is to complete a particular
course before the caution may be lifted.
39. This item also inserts a
note at the end of new section 304A to point out that particulars of cautions
are shown on the Register under section 287.
40. This item repeals sections 305 and 305A and substitutes new sections
305 and 305A.
41. New section 305 is similar to new subsection 311B, inserted by item
137, which deals with notifying former agents about any discretionary decision
made under section 311A to bar the agent from being a registered migration
agent.
42. New subsection 305(1) provides that the MARA must give a
registered migration agent written notice of a disciplinary decision made under
section 303 to cancel or suspend the agent’s registration or to caution
the agent.
43. New subsections 305(2) and (3) provide that the notice
must set out the reasons for
the decision and that the decision takes effect
at the time the agent is given written notice of the decision.
44. This
item also inserts a note at the end of new section 305 to point out that new
section 332H, inserted by item 170 of this Schedule, sets out the time at
which a person is taken to have been given a notice by the MARA under Part 3 of
the Act.
45. New section 305A provides when the MARA is required to publish
details about discretionary disciplinary action taken under section 303 against
a registered migration agent.
46. New section 305A is similar to new
section 306AL contained in item 75 of this Schedule, which relates to the
publication of mandatory disciplinary action taken against current registered
migration agents. It is also similar to new sections 311C and 311P contained in
items 137 and 142, which relate to former registered migration
agents.
47. The purpose of publishing disciplinary details about a
migration agent is to advise the community at large that the migration
agent’s registration has been cancelled or suspended, or the agent has
been cautioned. Publication of disciplinary details also demonstrates the
professional standards and conduct that is expected of migration
agents.
48. In broad terms, new subsection 305A(1) sets out when the MARA
may publish
disciplinary details about a registered migration agent who does
not apply for review of a disciplinary decision, and new subsection 305A(2) sets
out when the MARA may publish
disciplinary details about a registered
migration agent who applies for review of a disciplinary decision.
49. New subsection 305A(2) provides that if, at the end of all
proceedings (including any
appeals) resulting from the review application,
there is a decision to cancel or suspend the agent’s registration or to
caution the agent:
• the MARA must as soon as possible make
available in the prescribed way a statement that sets out the final decision and
specifies the grounds for the final decision; and
• the MARA may
prepare a statement about the final decision and make it available to one or
more groups of persons, or to one or more persons, in any way the MARA thinks
fit.
2. The purpose of new section 305A is to clarify existing
publication provisions under section 305 and 305A, and enable the MARA to
publish a statement about a decision to cancel, suspend as well as caution an
agent. Further, existing publication provisions only allow the MARA to publish a
decision “if the decision stands” at the end of all appeal
proceedings resulting from review of the decision. The purpose of the references
to the “initial decision” and the “final decision” in
new section 305A is to enable the MARA to also publish a statement about a
decision of the AAT or a court if the MARA’s decision is varied on
review.
3. New subsection 305A(3) provides that a statement made under
new section 305A
need not set out the findings on material questions of fact
and need not refer to the evidence or other material on which those findings
were based. New subsection 305A(3) is similar in effect to repealed subsection
305(4), which provided that section 25D of the Acts Interpretation Act
1901 does not apply to a requirement to publish a statement setting out the
decision and grounds for the decision.
4. New subsection 305A(4)
provides protection from civil proceedings for a person who,
in good faith,
publishes a copy of, an extract from or a summary of a statement made under new
section 305A. New subsection 305A(4) is similar to repealed subsection 305A(5),
however, it does not provide protection from criminal proceedings.
5. This item inserts new sections 305B and 305C before section 306 of the
Act.
6. In broad terms, new section 305B allows the MARA or the Secretary to
provide
information about any disciplinary action that has been taken under
section 303 of the Act against a migration agent to clients of the
agent.
7. New subsection 305B(2) provides that new section 305B has
effect despite new
section 305A. In other words, the MARA and the Secretary
are not required to wait for 28 days, or until the end of all review
proceedings, before informing one or more clients of disciplinary action that
has been taken against their agent.
8. New subsection 305B(3) provides
that, for the purposes of new section 305B, “client”
has the
meaning given by section 306C (as amended by item 540 of this Schedule).
9. The purpose of new section 305B is to improve consumer protection by
allowing the
MARA and the Secretary to inform the client immediately of
disciplinary action taken under section 303, even if the migration agent has
applied for review of the MARA’s decision to take such action. the
amendments allow clients to choose whether to appoint another agent to act for
them whose ethics or competence has not been found lacking or to represent
themselves
10. In broad terms, new section 305C allows the MARA to require
registered migration
agents to give information or documents if the MARA is
considering refusing a registration application from a registered migration
agent or making a decision under section 303 to cancel or suspend an
agent’s registration or to caution an agent.
11. It is similar to
new section 311EA, inserted by item 141 of this Schedule, which
relates to
former registered agents.
12. New subsection 305C(2) provides that the
MARA may, by written notice, require a
migration agent to provide the MARA
with prescribed information or prescribed documents. If the MARA gives such a
written notice to an agent, the agent must provide the MARA with the documents
or information within the specified period and in the specified
manner.
13. The purpose of new subsection 305C(2) is to provide a
flexible mechanism to deal
with specific kinds of information or documents
that may be required by the MARA. The main purpose of the new section 305C is to
ensure that the clients of migration agents against whom the MARA is considering
taking sanction action, or whose registration the MARA is considering refusing,
are not disadvantaged when their agent becomes deregistered. The types of
information that may be prescribed to ensure that such clients are not
disadvantaged, includes lists of clients, clients files, ledgers or lists of
money owing to clients.
14. New subsection 305C(3) provides that a period specified in a notice under
new
subsection 305C(2) must end at least 14 days after the notice was
given.
15. This item inserts a note at the end of new subsection 305C(3)
to point out that new
section 332H, inserted by item 170 of this Schedule,
sets out when the agent is taken to have been given the notice.
16. New
subsections 305C(4) and (5) make it an offence of strict liability if a person
is subject to a requirement under new section 305C and the person contravenes
the requirement. The penalty applying to such an offence is 60 penalty
units.
17. This has been made an offence of strict liability under new subsection
305C(5) to enable a penalty to be imposed without proof of fault. In the past
some agents that the MARA has been concerned about have been uncooperative. It
is very important that MARA receives documents and information that it requires
from agents so that it can properly investigate agents and apply sanctions
accordingly.
18. New subsection 305C(6) provides that a person is not excused from giving
information or providing a document on the ground that the information or
provision of the document may tend to incriminate the person.
19. New
subsections 305C(6) is consistent with section 308(3) which provides that the
MARA may require a registered migration agent to give information or provide
documents and that an agent is not excused from providing such information on
the ground that the information or documents may tend to incriminate the
agent.
20. New subsection 305C(7) is also consistent with section 308(4)
and provides that:
• any information or document provided in
response to a requirement under new subsection 305C(2); and
• any
information or thing (including any document) obtained as a direct or indirect
result of information or a document provided in response to a requirement under
subsection 305C(2);
is not admissible in evidence against the applicant
in any criminal proceedings (except proceedings for an offence against section
137.1 or 137.2 of the Criminal Code that relates to this Act or the
regulations).
2. New section 305C is broader than the MARA’s power
to require documents or
records under existing paragraph 308(1)(c) because
that power is limited to documents or records relevant to the agent’s
continued registration. New section 305C allows the MARA to require prescribed
information or documents, which may include a list of the agent’s clients.
This will assist the MARA to protect the interests of a visa applicant. For
example, if the MARA is considering sanctioning an agent it can request a list
of clients for the affected agent. It can then work out which of those clients
have applications before DIMIA which are at a critical stage (ie. are affected
by deadlines) and ensure that their interests are not ignored because their
agent is unable to practice for a limited or ongoing period.
3. New subsections 305C(6) and (7), are necessary to prevent a key purpose of
the Bill,
namely the protection of consumers, from being undermined. It
would be unfortunate if an unscrupulous agent that the MARA was considering
sanctioning could refuse to produce information and documents to the MARA on the
basis that the production of such information would tend to incriminate the
agent. New subsections 305C(6) and (7) protect the interests of a visa applicant
and to ensure that the withholding of documents or information does not cause
serious detriment to the applicant in the visa application process.
4. This item inserts new section 306AA at the end of Division 3 of Part 3
of the Act.
5. New section 306AA provides that if the AAT or a court orders a stay of
a decision
under section 303 to cancel or suspend a registered migration
agent’s registration, it is taken to be a condition of the order that the
prescribed supervisory arrangements apply in relation to the agent during the
period of the order.
6. New section 306AA has been inserted to protect
clients if the AAT or a court grants
an order staying the effect of a
disciplinary decision. The intended effect of new section 305AA is to prevent
migration agents from being able to continue to practise during the period of a
stay order as though no decision had been made under section 303. Rather, agents
who pose a potential professional risk to the community will only be able to
continue to practise if they are supervised. A supervisor, who has no prior
history of complaints or disciplinary action taken by the MARA, will need to be
appointed and undertake certain responsibilities in relation to the sanctioned
agent. For example, the supervisor will need to meet any new clients on at least
one occasion and check any visa or review application before it is lodged.
7. This item inserts new Division 3AA after Division 3 of Part 3 of the
Act. New
Division 3AA relates to disciplining registered migration agents
who have a high visa refusal rate.
Division 3AA- Disciplining
registered migration agents for engaging in vexatious
activity
Subdivision A – Definitions
Section
306AB Definitions
8. New section 306AB inserts definitions of
“mandatory decision” and “referral
decision” for the
purposes of new Division 3AA.
9. “Mandatory decision” is
defined to mean a decision of the MARA under section
306AG.
10. “Referral decision” is defined to mean a
decision of the Minister under section
306AC.
disciplinary action
11. New subsection 306AC(1) provides that
the Minister has a discretion to refer a
registered migration agent to the
MARA for disciplinary action if the agent has a high visa refusal rate in
relation to a visa of a particular class.
12. This item inserts three
notes at the end of new subsection 306AC(1).
13. The first note points
out that if the Minister is considering referring an agent to the
MARA, the
Minister must invite the agent to make a submission on the matter under new
section 306AE and must consider any submission that is made.
14. The
second note points out that if the Minister refers an agent to the MARA under
this section, the MARA is under an obligation to discipline the agent under
new section 306AG.
15. The third note points out that the
Minister’s decision to refer is reviewable by the
AAT under new
section 306AJ.
16. New subsection 306AC(2) sets out a step by step method
for working out whether an
agent has a high visa refusal rate in relation to
a visa of a particular class.
17. Step 1 is to work out the number of
:
• valid applications for a visa of a particular class; and
• applications for review by a review authority of a decision to
refuse to grant a visa of that class;
made during a period determined by
the Minister in respect of which the agent has given immigration assistance to
the applicants concerned.
2. An agent gives immigration assistance in the
circumstances set out in section 276 of
the Act.
3. The note at the
end of step 1 points out that new subsections 305AC(3) and (4)
provide for
certain applications not to be counted.
4. Step 2 is to work out if the
number at step 1 is equal to or greater than the number
determined by the
Minister under this Division. The number determined by the Minister for the
purposes of step 2 is the minimum number of applications in respect of which the
agent has given immigration assistance that is required before Division 3AA will
apply. For example, an agent may be required to have given immigration
assistance in relation to four applications before his or her visa refusal rate
can be calculated.
5. If the number at step 1 is equal to or greater than
the number determined by the
Minister for the purposes of step 2, then step
3 is to work out, in respect of the applications covered by step 1, the number
of decisions to refuse to grant a visa that are standing at the end of all the
proceedings (including any appeals) resulting from such decisions.
6. In
other words, step 3 is to work out how many of the applications referred to in
step
1 resulted in a decision to refuse to grant a visa that is standing at
the end of all proceedings. For example, if an agent gave immigration assistance
in relation to 20 applications for a particular visa class, and 15 of those
applications were refused and the decision was not overturned on appeal, the
agent has a 75 percent refusal rate.
7. Step 4 provides that the agent
has a high visa refusal rate in relation to a visa of that
class once the
number at step 3 expressed as a percentage of the number at step 1 is equal to
or greater than the percentage determined by the Minister under this Division in
relation to that class of visa.
8. It is envisaged that the percentage
determined by the Minister for the purposes of Step
4 may vary between visa
classes. For example, the percentage specified in relation to protection visas
may be 90% whereas the percentage for all other visa applications may be
75%.
9. New subsection 305AC(3) provides that certain applications are
not to be counted for
the purposes of step 1 of the method statement.
Specifically, if an agent:
• gives immigration assistance to a
person in respect of a valid application by the person for a visa of a
particular class; and
• later gives immigration assistance to the
person in respect of an application for review by a review authority of a
decision to refuse to grant that visa;
then the application for review is
not to be counted for the purposes of step 1 of the method
statement.
2. For example, a migration agent who assists a visa applicant
with both his or her visa
application and review application, in relation to
a particular visa class, will only have the visa application counted in the
number at step 1 of the method statement.
3. New subsection 305AC(4)
provides that an application referred to in step 1 is not to
be counted if
the agent gave the immigration assistance in a prescribed capacity. This enables
certain applications to be exempt from Division 3AA. For example, the
regulations may prescribe that registered migration agents providing immigration
assistance in relation to applications under the Immigration Advice and
Application Assistance Scheme are exempt from Division 3AA.
4. New section 306AD provides that the Minister may, by writing,
determine:
• a period for the purposes of step 1 of the method
statement in section 306AC (for example 6 months);
• a number for the
purposes of step 2 of the method statement in section 306AC (for example 4
applications); and
• a percentage for a specified class of visa for the
purposes of step 4 of the method statement in section 306AC (for example 90% for
protection visas applications and 75% for all other visa
applications).
2. New subsection 306AD(4) provides that a determination
under new section 306AD is
a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
3. New section 306AE ensures that procedural fairness is accorded to a
registered agent
who may be subject to disciplinary action under new
Division 3AA.
4. New subsection 306AE(1) provides that if the Minister is
considering referring a
registered migration agent to the MARA for
disciplinary action, the Minister must give the agent a written
notice:
• stating that the Minister is considering making such a
decision and the reasons for it; and
• inviting the agent to make a
written submission to the Minister within 14 days of the notice being given,
giving reasons for the high visa refusal rate or in relation to any other matter
the agent considers relevant.
2. New subsection 306AE(2) provides that
before the end of the objection period, the
agent may, by notice in writing,
request an extension of that period.
3. New subsection 306AE(3) provides
that the Minister must grant an extension of 14
days if the notice contains
reasons for the request. This means that an agent may have a maximum of 28 days
to make a written submission to the Minister.
4. New subsection 306AE(4)
requires the Minister to consider any written submission
received within the
objection period (or that period as extended under new subsection 306AE(3)).
Agents will be able to make submissions about why applications should not be
counted as vexatious. In particular, where there has been a change in
circumstances beyond the agent’s control, the agent will be able to
explain those circumstances. For example, where a client failed to the meet the
criteria at the time of decision for the grant of a visa despite having met the
criteria at the time of application, the end of a repressive regime in a country
which had a high approval rate for protection visas where the application was
lodged before the regime changed, or a change in the applicant’s ability
to meet the health criteria at the time of decision due to a deterioration in
health.
5. New subsection 306AF(1) provides that the Minister must give the MARA
written
notice of the referral decision by one of the methods specified in
section 494B, and the notice must specify the grounds for the
referral.
6. New subsection 306AF(2) requires the Minister to give the
registered migration agent
written notice of the decision to refer him or
her to the MARA for disciplinary action.
7. New subsections 306AF(3) and
(4) provide that the notice must set out reasons for the
referral and be
given to the agent on the same day that notice of the referral is given to the
MARA.
8. If the Minister refers a registered migration agent to the MARA, new
subsection
306AG(1) requires the MARA to make a mandatory decision in
relation to disciplining the agent.
9. New subsection 306AG(1) provides
that the MARA must:
• in the case of a first referral –
suspend the agent’s registration for 12 months;
• in the case of
any later referral – cancel the agent’s registration.
2. New
subsection 306AG(2) provides that the MARA must make its decision as soon as
possible, however it must not make its decision any later than 7 days after
receiving notice of the referral from the Minister.
3. The note at the
end of new subsection 306AG(2) points out that the MARA is taken to
have
received notice of the referral in accordance with section 494C of the
Act.
4. New subsection 306AG(3) requires the MARA to give the agent
written notice of its
decision.
5. New subsection 306AG(4) provides
that the mandatory decision takes effect at the
time the agent is given
written notice of it. The note at the end of new subsection 306AG(4) points out
that the agent is taken to have been given the notice in accordance with new
section 332H.
6. New subsection 306AG(5) provides that new section 306AG
is subject to new
section 306AI, which allows the Minister to revoke a
referral decision and direct the MARA to take further action, and new section
306AK, which allows the AAT or a court to make stay orders in relation to the
mandatory decision.
Authority to revoke mandatory decision
7. New subsection
306AH(1) provides that the Minister may direct the MARA to revoke
a
mandatory decision made in relation to a registered migration agent if the
Minister thinks that it is appropriate to do so.
8. The purpose of this
section is to avoid the effect of an agent being sanctioned under
new
section 306AG mistakenly. For example, if a mistake was made calculating whether
an agent had a high visa refusal rate in relation to a visa of a particular
class.
9. New subsection 306AH(3) provides that the Minister may, in the
notice, also direct
the MARA to take further specified action after it
revokes the mandatory decision.
10. New subsection 306AH(4) provides that
the Minister’s power to direct the MARA to
revoke a mandatory decision
may only be exercised by the Minister personally.
11. New subsection
306AH(5) provides that the Minister does not have a duty to consider
whether
to exercise the power to direct the MARA to revoke a mandatory decision in any
other circumstances. The purpose of this subsection is to avoid the
Minister’s decision not to revoke a mandatory decision, or not to consider
making such a decision, being the subject of review.
12. In broad terms, new section 306AI describes the effect of the
Minister directing the
MARA to revoke a mandatory decision under section
306AH.
13. New subsections 306AI(1) and (2) provide that if the Minister
directs the MARA to
revoke a mandatory decision made in relation to a
registered migration agent, the MARA must do so, as soon as possible, but not
later than 7 days, after receiving notice of the Minister’s
direction.
14. New subsection 306AI(3) provides that the MARA must give
the agent written notice
of its decision.
15. New subsection 306AI(4)
provides that if a mandatory decision is revoked under this
section, it is
taken to never have been made. The purpose of this section is to make it clear
that any consequence of a mandatory decision, such as supervision or
cancellation, will not have any effect.
16. New subsection 306AI(5)
provides that if the Minister directs the MARA to take
further action after
it revokes the mandatory decision, it must take the action as soon as possible
after the revocation.
Section 306AJ Review by the Administrative Appeals
Tribunal
17. New section 306AJ provides that an application may be
made to the AAT for review
of a referral decision (see new section 306AB for
definition of referral decision).
Section 306AK Effect of review of
referral decision on the Migration
Agents Registration
Authority’s mandatory decision
18. Section 306AK sets out the
effect of review of a referral decision on the MARA’s
mandatory
decision.
19. In broad terms, if an application is made for review of a
referral decision, new section
306AK allows a Tribunal or court to make such
orders (including stay orders) as it thinks fit in relation to the mandatory
decision that was made as a result of the referral decision.
20. For
reasons outlined in item 74 above in relation to new section 306AA, new
subsection 306AK(3) provides that if the tribunal or a court orders a stay
of a mandatory decision made in relation to a registered migration agent, it is
taken to be a condition of the order that the prescribed supervisory
requirements apply in relation to the agent during the period of the
order.
21. New subsection 306AK(4) provides that new subsection 306AK(3)
applies whether or
not the stay order is made under this section. This will
ensure that even if a tribunal or court makes a stay order pursuant to its
powers under other legislation, it will still be a condition of the order that
prescribed supervisory arrangements apply.
Section 306AL Making disciplinary details publicly
available
22. New section 306AL provides when the MARA is required to
publish details about mandatory disciplinary action taken against a current
registered migration agent for vexatious activity.
23. New section 306AL
is similar to new section, 305A which provides when the MARA may publish details
about discretionary disciplinary action taken under section 303 against a
current registered migration agent. The purpose of new section 306AL is similar
to the purpose of new section 305A (see item 72 of this Schedule).
24. In
broad terms, new subsection 306AL(1) sets out when the MARA may publish
disciplinary details about a registered migration agent who does not apply
for review of a referral decision, and also sets out when the MARA may publish
disciplinary details about a registered migration agent who applies for review
of a referral decision.
25. New subsection 306AL(2) provides that if, at
the end of all proceedings (including
any appeals) resulting from the review
application, there is a decision to cancel or suspend the agent’s
registration:
• the MARA must as soon as possible make available in
the prescribed way a statement that:
- sets out the referral decision and
specifies the grounds for the referral decision; and
- sets out the final
decision; and
• the MARA may prepare a statement about the referral
decision and the final decision and make it available to one or more groups of
persons, or to one or more persons, in any way the MARA thinks
fit.
2. However, under paragraphs 287(2)(g) and (h) of the Act, the
Register is required to
show details of any suspension of an agent’s
registration, or of a caution given to an agent.
3. New subsection
306AL(4) provides protection from civil proceedings for a person
who, in
good faith, publishes a copy of, an extract from or a summary of a statement
made under new section 306AL.
4. In broad terms, new section 306AM allows the MARA or the Secretary to
provide information about a mandatory decision that has been taken against a
current registered migration agent to clients of the agent.
5. New
section 306AM is similar to new section 305B, which relates to disciplinary
action taken against migration agents under section 303. The purpose of new
section 306AM is similar to the purpose of new section 305B (see item 73 of this
Schedule).
6. New subsection 306AM(1) provides that if the MARA makes a
mandatory decision in
relation to a registered migration agent, the MARA or
the Secretary may inform one or more of the clients of the agent about one or
more of the following:
• the making of the mandatory
decision;
• the making of the referral decision that has resulted in
the making of the mandatory decision;
• whether or not the agent has
applied for review of the referral decision; and
• the status of any
such review.
2. New subsection 306AM(2) provides that new section 306AM
has effect despite new
section 306AL. In other words, the MARA and the
Secretary are not required to wait for 28 days, or until the end of all review
proceedings, before informing one or more clients of disciplinary action that
has been taken against their agent.
Item 76 Division 3A of Part 3
(heading)
3. This item repeals the heading to Division and
substitutes the new heading “Division
3A – Documents relating to
clients of inactive migration agents and deceased migration agents”.
4. The purpose of these amendments is to clarify that Division 3A applies to inactive migration agents and deceased migration agents, but not to other types of agents such as education agents.
Item 77 Paragraph 306A(a)
Item 78 Paragraph
306A(b)
5. These items make minor technical amendments to paragraphs
306A(a) and (b) to clarify that references to an “inactive agent”
and “deceased agent” are intended to mean an inactive migration
agent or a deceased registered migration agent who was previously registered as
a migration agent by the MARA.
Item 79 Paragraph
306A(c)
6. This item makes a minor technical amendment to paragraph
306A(c) consequential to amendments made by items 104, 108 and 112 of this
Schedule. These items amend Division 3A to allow the MARA to request original
documents from an inactive migration agent, or the legal personal representative
of a deceased registered migration agent or deceased inactive migration
agent.
Item 80 Paragraph 306A(c)
Item 81 Paragraph
306A(c)
7. These items make minor technical amendments to clarify
that the reference to “inactive agent” and “deceased
agent” in paragraph 306A(c) is intended to mean an inactive migration
agent or a deceased registered migration agent who was previously registered as
a migration agent by the MARA.
Item 82 Paragraph
306A(d)
8. This item makes a minor technical amendment to paragraph
306A(d) consequential to amendments made by items 104, 108 and 112 of this
Schedule. These items amend Division 3A to allow the MARA to request original
documents from an inactive migration agent, or the legal personal representative
of a deceased registered migration agent or deceased inactive migration
agent.
Item 83 Paragraph 306B(a)
9. This item makes a
minor technical amendment to paragraph 306B(a) to clarify that the reference to
“registered agent” in paragraph 306B(a) is intended to mean a person
who is registered as a migration agent by the MARA.
10. The note at the
end of this item amends the heading to section 306B by replacing the reference
to “Inactive agents” with a reference to “Inactive migration
agents” for the same reason.
Item 84 Subparagraph
306B(a)(i)
Item 85 Subparagraph 306B(a)(ii)
11. These
items make minor technical amendments to subparagraphs 306B(a)(i) and (ii) to
clarify that references to “inactive agent” are intended to mean an
inactive migration agent who has previously been registered as a migration agent
by the MARA.
Item 86 Subparagraph 306B(a)(ii)
12. This item makes a minor technical amendment to clarify that the
reference to “registered agent” in subparagraph 306B(a)(ii) is
intended to mean a migration agent who is registered by the MARA.
Item
87 Subparagraph 306B(b)(i)
Item 88 Subparagraph
306B(b)(ii)
13. These items make minor technical amendments to
clarify that references to “inactive agent” in subparagraphs
306B(b)(i) and (ii) are intended to mean an inactive migration agent who has
previously been registered as a migration agent by the MARA.
Item
89 Subparagraph 306B(b)(ii)
14. This item makes a minor technical
amendment to clarify that the reference to “registered agent” in
subparagraph 306B(b)(ii) is intended to mean a migration agent who is registered
by the MARA.
Item 90 Paragraph 306B(c)
15. This item makes
a minor technical amendment to paragraph 306B(c) consequential to the insertion
of new section 306AG inserted by item 75 of this Schedule, which relates to
mandatory disciplinary action taken against a current registered migration agent
for vexatious activity.
16. The effect of the amendment is to clarify
that, if the MARA cancels a person’s
registration under section 303 or
new section 306AG, the person becomes an inactive agent.
Item 92 Subparagraph 306B(c)(ii)
17. These items make minor
technical amendments to clarify that references to “inactive agent”
in subparagraphs 306B(c)(i) and (ii) are intended to mean an inactive migration
agent who has previously been registered as a migration agent by the
MARA.
Item 93 Paragraph 306B(d)
18. This item makes a
minor technical amendment to paragraph 306B(d) consequential to
the
insertion of new section 306AG inserted by item 75 to clarify that, if the MARA
cancels a person’s registration under section 303 or new section 306AG,
the person becomes an inactive agent.
Item 94 Subparagraph
306B(d)(i)
Item 95 Subparagraph 306B(d)(ii)
19. These
items make minor technical amendments to subparagraphs 306B(d)(i) and (ii) to
clarify that references to “inactive agent” are intended to mean an
inactive migration agent who has previously been registered as a migration agent
by the MARA.
Item 96 Paragraph 306B(e)
20. This item makes
a minor technical amendment to paragraph 306B(e) to clarify that the reference
to “registered agent” is intended to mean a migration agent who is,
or has been, registered by the MARA.
Item 97 Subparagraph
306B(e)(i)
Item 98 Subparagraph 306B(e)(ii)
21. These
items make minor technical amendments to subparagraphs 306B(e)(i) and (ii) to
clarify that references to “inactive agent” are intended to mean an
inactive migration agent who has previously been registered as a migration agent
by the MARA.
22. This item repeals section 306C and substitutes new section
306C.
23. New section 306C inserts a definition of “client” for the
purposes of Division 3A of the Act and provides that, if a registered migration
agent gave, or anticipated giving, immigration assistance to another
person:
• the other person is a “client” of the registered
migration agent; and
• if the agent dies, the person remains a
“client” of the deceased registered migration agent;
and
• if the agent becomes an inactive registered migration agent, the
person remains a “client” of the agent; and
• if the agent
becomes an inactive registered migration agent and dies, the person remains a
“client” of the agent.
2. This amendment is consequential to new subsection 276(2A), which
expands the definition of “immigration assistance” to include advice
about and assistance with requests for Ministerial intervention (see item
6).
Item 100 Subsection 306D(1)
Item 101 Paragraph
306D(1)(a)
3. This item makes minor technical amendments to
subsection 306D(1) and paragraph 306D(1)(a) to clarify that references to
“inactive agents” are intended to mean an inactive migration agent
who has previously been registered as a migration agent by the
MARA.
4. The note at the end of item 101 replaces the heading to section
306D with the heading “Power to obtain documents from inactive migration
agent” for similar reasons.
Item 102 Paragraph
306D(1)(a)
5. This item makes a minor technical amendment to
paragraph 306D(1)(a) to clarify that the reference to “registered
agent” is intended to mean a migration agent who is, or has been,
registered by the MARA.
Item 103 Paragraph
306D(1)(b)
6. This item makes a minor technical amendment to
paragraph 306D(1)(b) to clarify that the reference to “inactive
agent” is intended to mean an inactive migration agent who has previously
been registered as a migration agent by the MARA.
Item 104 Subsection
306D(2)
7. This item repeals subsection 306D(2) and substitutes new
subsection 306D(2) to allow the MARA to request original documents, as well as
copies of client documents, from inactive migration agents.
8. New
subsection 306D(2) is similar to new paragraphs 306E(2)(a) and (b) and new
paragraphs 306F(2)(a) and (b) inserted by items 108 and 112 of this Schedule,
which relate to requesting documents from the legal personal representative of a
deceased inactive agent or a deceased registered migration
agent.
9. Section 306D applies to an inactive migration agent who the
MARA has reason to believe has documents that:
• are or were
connected with the giving, or anticipated giving, of immigration assistance to a
client; and
• relate to the affairs of the client.
2. New
paragraph 306D(2)(a) is similar to existing subsection 306D(2). It allows the
MARA to require an inactive migration agent to:
• make copies of
any documents connected with the giving of immigration assistance to a client
and which relate to the affairs of the client; and
• produce those
copies to the MARA within the specified period and in the specified
manner.
2. New paragraph 306D(2)(b) allows the MARA to require an
inactive migration agent to produce to the MARA any documents that are owned by
a client or that were provided to the registered migration agent by, or on
behalf of, the client. That is, an inactive agent may be required to not only
produce documents given to the agent by the client, but also documents that were
provided by another person on the client’s behalf.
3. The purpose
of new subsection 306D(2) is to ensure that the MARA can return documents to
clients of inactive agents so that they are not unduly disadvantaged if an agent
becomes inactive.
4. The note at the end of new subsection 306D(2)
provides that an example of a document that is provided to a registered
migration agent under subsection 306D(2) is a client’s passport.
5. This item inserts a note at the end of section 306D to point out that
section 332H (inserted by item 170 of this Schedule) sets out when the inactive
migration agent is taken to have been given a notice to produce documents under
new subsection 306D(2).
Item 106 Subsection
306E(1)
6. This item makes a minor technical amendment to subsection
306E(1) to clarify that the reference to “inactive agent” is
intended to mean an inactive migration agent who has previously been registered
as a migration agent by the MARA.
7. This item also replaces the heading
to section 306E with the new heading “Power to obtain documents from
representative of deceased inactive migration agent”.
Item
107 Paragraph 306E(1)(a)
8. This item makes a minor technical
amendment to subsection 306E(a) to clarify that the reference to
“registered agent” is intended to mean a migration agent who is, or
has been, registered by the MARA.
Item 108 Paragraph 306E(2)(a) and
(b)
9. This item repeals paragraphs 306E(2)(a) and (b) and
substitutes new paragraphs 306E(2)(a) and (b) to allow the MARA to request
original documents, as well as copies of client documents, from the legal
personal representative of a deceased inactive migration agent.
10. New
paragraphs 306E(2)(a) and (b) are similar to new subsection 306D(2) and new
paragraphs 306F(2)(a) and (b) inserted by items 104 and 112 of this Schedule.
The paragraphs are inserted for the same purpose.
11. Section 306E
applies to the legal personal representative of an inactive migration agent whom
the MARA has reason to believe has documents that:
• are or were
connected with the giving, or anticipated giving, of immigration assistance to a
client; and
• relate to the affairs of the client.
2. New
paragraph 306E(2)(a) is similar to existing subsection 306E(2). It allows the
MARA to require the legal personal representative of an inactive migration agent
to:
• make copies of any documents connected with the giving of
immigration assistance to a client and which relate to the affairs of the
client; and
• produce those copies to the MARA within the specified
period and in the specified manner.
2. New paragraph 306E(2)(b) allows
the MARA to require the legal personal representative of an inactive migration
agent to produce to the MARA any documents that are owned by a client or that
were provided to the registered migration agent by, or on behalf of, the
client.
Item 109 At the end of subsection 306E(2)
3. This
item inserts a note at the end of subsection 306E(2) to provide that an example
of a document that may be provided to a registered migration agent under
subsection 306E(2) is a client’s passport.
4. This item inserts a note at the end of section 306E to point out that
section 332H (inserted by item 170 of this Schedule) sets out when the legal
personal representative of an inactive migration agent is taken to have been
given a notice to produce documents under subsection 306E(2).
Item
111 Subsection 306F(1)
5. This item makes a minor technical
amendment to subsection 306F(1) to clarify that the reference to
“registered agent” is intended to mean a migration agent who is
registered by the MARA.
6. This item also replaces the heading to section
306F with the new heading “Power to obtain documents from representative
of deceased registered migration agent”.
Item 112 Paragraphs
306F(2)(a) and (b)
7. This item repeals paragraphs 306F(2)(a) and (b)
and substitutes new paragraphs 306F(2)(a) and (b) to allow the MARA to request
original documents, as well as copies of client documents, from the legal
personal representative of a deceased registered migration agent.
8. New
paragraphs 306F(2)(a) and (b) are similar to new subsection 306D(2) and new
paragraphs 306E(2)(a) and (b) inserted by items 104 and 108 of this Schedule.
These sections were inserted for the same purpose (see item
104).
9. Section 306F applies to the legal personal representative of a
registered migration agent whom the MARA has reason to believe has documents
that:
• are or were connected with the giving, or anticipated
giving, of immigration assistance to a client; and
• relate to the
affairs of the client.
2. New paragraph 306F(2)(a) is similar to existing
subsection 306F(2). It allows the MARA to require the legal personal
representative of a deceased migration agent to make copies of documents and
produce those copies to the MARA within the specified period and in the
specified manner.
3. New paragraph 306F(2)(b) allows the MARA to require
the legal personal representative of a registered migration agent to produce to
the MARA any documents that are owned by a client or that were provided to the
registered migration agent by, or on behalf of, the client.
Item
113 At the end of subsection 306F(2)
4. This item inserts as a note
an example of a document to be returned to a client under subsection
306F(2).
5. This item inserts a note at the end of section 306E to point out that
section 332H (inserted by item 170 of this Schedule) sets out when the legal
personal representative of a registered migration agent is taken to have been
given a notice to produce documents under subsection 306F(2).
Item
115 Subsection 306H(1)(penalty)
6. This item increases the penalty
for failing to comply with a notice to produce documents under section 306D,
306E or 306F from 30 penalty units to 60 penalty units.
7. The penalty has been increased to deter commission of the offence and to reflect the seriousness of the offence. In the past, some agents or their legal representatives have refused to return documents to clients. To improve consumer protection the MARA needs to be able to ensure that client documents, including important original documents such as a client’s passport or birth certificate, are returned to a client of an inactive, deceased registered migration agent or deceased inactive migration agent.
8. This item repeals section 306J of the Act and substitutes new section
306J.
9. In broad terms, section 308 enables the MARA to require
registered migration agents
to make a statutory declaration, answer
questions or provide the MARA with specified documents or records, regardless of
whether the information may tend to incriminate the agent.
10. New
section 306J reverses the existing provision in section 306J to make it
consistent with section 308 by providing that an individual is not excused from
producing a document under section 306D, 306E or 306F on the ground that
production of the document might tend to incriminate the individual or expose
the individual to a penalty.
11. Similarly, new subsection 306J(2)
provides that any document or information produced under section 306D, 306E or
306F is not admissible in evidence against the individual in any criminal
proceedings (except proceedings for an offence against section 137.1 or 137.2 of
the Criminal Code that relates to this Act or the regulations).
12. New section 306J is necessary to prevent a key purpose of the Bill,
namely the
protection of consumers, from being undermined. It would be wrong
if an unscrupulous agent could legitimately rely on the excuse in existing
section 306J to refuse to produce documents or information to the MARA. New
section 306J protects the interests of a visa applicant and ensures that the
withholding of documents or information does not cause serious detriment to the
applicant in the visa application process.
13. This item makes a minor technical amendment to paragraph 306K(1)(a)
consequential to amendments made by items 104, 108 and 112 of this Schedule to
allow the MARA to request original documents from an inactive migration agent,
or the legal personal representative of a deceased registered migration agent or
deceased inactive migration agent.
14. This item also amends the heading
to section 306K to make it clear that the section relates to both copies and
originals of client documents.
Item 118 Paragraphs 306K(1)(a) and
(b)
15. This item makes a minor technical amendment to paragraphs
306K(1)(a) and (b) to clarify that the reference to “inactive agent”
is intended to mean an inactive migration agent who has previously been
registered as a migration agent by the MARA.
Item 119 Paragraph
306K(1)(c)
16. This item repeals paragraph 306K(1)(c) and substitutes
new paragraph 306K(1)(c).
17. This amendment is consequential to
amendments made by items 104, 108 and 112 of this Schedule.
18. In broad
terms, new subsection 306K(1) requires the MARA to give copies or originals of
client documents provided under section 306D to the client.
19. New
subparagraph 306K(1)(c)(ii) provides that, if the client has, by written notice,
nominated a person to receive such documents, the MARA may give copies or
originals of client documents to that person instead.
Item
120 Paragraph 306K(1)(d)
20. This item makes a minor technical
amendment to paragraph 306K(1)(d) to clarify that the reference to
“registered agent” is intended to mean a migration agent who is
registered by the MARA.
Item 121 Paragraph
306K(2)(a)
21. This item makes a minor technical amendment to
paragraph 306K(2)(a) consequential to amendments made by items 104, 108 and 112
of this Schedule to allow the MARA to also request original client documents.
Item 122 Subparagraph 306K(2)(a)(i)
22. This item makes a
minor technical amendment to subparagraph 306K(2)(a)(i) to clarify that the
reference to “inactive agent” is intended to mean an inactive
migration agent who has previously been registered as a migration agent by the
MARA.
Item 123 Subparagraph 306K(2)(a)(ii)
23. This item
makes a minor technical amendment to subparagraph 306K(2)(a)(ii) to clarify that
the reference to “registered agent” is intended to mean a migration
agent who is registered by the MARA.
Item 124 Paragraph
306K(2)(c)
24. This item makes a minor technical amendment to
paragraph 306K(2)(c) to clarify that the reference to “deceased
agent” is intended to mean a deceased registered migration agent who was
registered as a migration agent by the MARA.
Item 125 Paragraph
306K(2)(c)
25. This item repeals paragraph 306K(2)(c) and substitutes
new paragraph 306K(2)(c).
26. This amendment is consequential to
amendments made by items 104, 108 and 112 of this Schedule.
27. In broad
terms, subsection 306K(2) requires the MARA to give copies or originals of
client documents provided under section 306E or 306F to the
client.
28. New subparagraph 306K(2)(c)(ii) provides that, if the client
has, by written notice, nominated a person to receive such documents, the MARA
may give copies or originals of client documents to that person
instead.
Item 126 Paragraph 306K(2)(d)
Item 127 Subsection
308(1)
29. These items make minor technical amendments to paragraph
306K(2)(d) and subsection 308(1) to clarify that references to “registered
agent” are intended to mean a migration agent who is registered by the
MARA.
30. Item 127 also amends the heading to section 308 to replace the
reference to “registered agents” with a reference to
“registered migration agents”.
31. This item makes a minor amendment to paragraph 308(1)(b) to clarify
that the MARA may require a registered migration agent to appear before one or
more individuals specified by the authority and to answer
questions.
Item 129 Subsection 308(2)
32. This item
repeals subsection 308(2) and substitutes new subsections 308(2) and (2A)
consequential to the amendment made by item 128 of this Schedule.
33. New
subsections 308(2) and (2A) set out the procedure for recording questions and
answers for the purpose of new paragraph 308(1)(b), which allows the MARA to
require a registered migration agent to appear before one or more individuals
and to answer questions
34. In broad terms the new subsections provide
that if a registered migration agent is required to appear before someone to
answer questions, a record of the questions and answers must be taken and given
to the MARA.
Item 130 Subsection 308(3)
Item
131 Subsection 308(4)
35. These items make minor technical
amendments to subsections 308(3) and (4) to clarify that references to
“registered agent” are intended to mean a migration agent who is
registered by the MARA.
Item 132 Subsection
309(1)
36. This item makes a minor technical amendment to subsection
309(1) to replace a reference to “the Board” with a reference to
“it”. This amendment is necessary because there is no definition of
“the Board” contained in the Act.
Item 133 Subsection
309(2)
37. This item makes a minor technical amendment to subsection
309(2) consequential to the insertion of new section 306AG by item 75 of this
Schedule.
38. This item makes it clear that subsection 309(2) only
applies to a discretionary decision to discipline an agent under section 303 of
the Act and not to any decision to discipline an agent, such as under new
section 306AG for vexatious activity.
Item 134 Division 4A of Part 3
(heading)
39. This item repeals the heading to Division 4A of Part 3
and substitutes new heading
“Division 4A – Disciplining former
registered migration agents”.
40. This amendment is to clarify that
the reference to “former registered agent” in the heading to
Division 4A is intended to mean a person who was formerly registered as a
migration agent by the MARA.
41. This item also inserts a new
subdivision heading into Division 4A of Part 3 of
the Act. New subdivision A
relates to complaints about the provision of immigration assistance by former
registered migration agents.
Item 135 Subsection 311A(1)
Item 136 Subsection 311A(1)
(note)
42. These items make minor technical amendments to subsection
311A(1), the note at the end of subsection 311A(1) and the heading to section
311A to clarify that a reference to “former registered agent” is
intended to mean a person who was formerly registered as a migration agent by
the MARA.
Item 137 Sections 311B and 311C
43. This item
repeals sections 311B and 311C and substitutes new sections 311B and
311C.
44. New subsection 311B(1) provides that the MARA must give a former
registered migration agent written notice of a discretionary decision made under
section 311A to bar the former agent from being a registered migration agent for
a certain period. The new subsection is similar to new subsection 305(1) (see
item 72).
45. New subsection 311B(2) provides that the notice must set
out the reasons for the
decision and the period that the former agent is
barred from being a registered migration agent.
46. New subsection 311(3)
provides that the decision takes effect at the time the former
agent is
given written notice of the decision.
47. New section 332H, inserted by
item 170 of this Schedule, sets out the time at which a
person is taken to
have been given a notice by the MARA under Part 3 of the Act.
48. New section 311C provides when the MARA may publish details about
discretionary disciplinary action taken to bar a former registered migration
agent from being a registered agent.
49. New section 311C is similar to
new sections 305A, 306AL and 311P contained in items 72, 75 and 142 of this
Schedule. The purpose of these new sections are the same (see item
72).
50. In broad terms, new subsection 311C(1) sets out when the MARA
may publish
disciplinary details about a former registered migration agent
who does not apply for review of a disciplinary decision, and new subsection
311C(2) sets out when the MARA may publish
disciplinary details about a
former registered migration agent who applies for review of a disciplinary
decision.
51. New subsection 311C(2) provides that if, at the end of all
proceedings (including any
appeals) resulting from the review application,
there is a decision to cancel or suspend the agent’s registration or to
caution the former agent:
• the MARA must as soon as possible make
available in the prescribed way a statement that sets out the final decision and
specifies the grounds for the final decision; and
• the MARA may
prepare a statement about the final decision and make it available to one or
more groups of persons, or to one or more persons, in any way the MARA thinks
fit.
2. New subsection 311C(4) provides protection from civil proceedings
for a
person who, in good faith, publishes a copy of, an extract from or a
summary of a statement made under new section 311C. New subsection 311C(4) is
similar to repealed subsection 311C(5), however, it does not provide protection
from criminal proceedings.
Item 138 Subsection
311D(1)
3. This item makes minor technical amendments to subsection
311D(1) and the heading to section 311D to clarify that a reference to
“former registered agent” is intended to mean a person who was
formerly registered as a migration agent by the MARA.
Item 139 At the
end of subsection 311D(1)
4. This item inserts a note at the end of
subsection 311D(1) to point out that section 332H sets out when the former agent
is taken to have been given a notice under subsection 311D(1).
Item
140 Paragraph 311D(4)(b)
5. This item makes a minor technical
amendment to paragraph 311D(4)(b) to clarify that a reference to “former
registered agent” is intended to mean a person who was formerly registered
as a migration agent by the MARA.
6. This item inserts new section 311EA after section 311E of the Act.
information or documents
7. In broad terms, new section 311EA
allows the MARA to require former registered
migration agents to give
information or documents if the MARA is considering barring a former registered
migration agent from being a registered migration agent for a certain
period.
8. New section 311EA is similar to new section 305C, inserted by item 73 of
this Schedule, which relates to current registered agents. The purpose of new
section 311EA is similar to the purpose of new section 305C.
9. New subsection 311EA(2) provides that the MARA may, by written notice,
require a
former migration agent to provide the MARA with prescribed
information or prescribed documents. If the MARA gives such a written notice to
a former agent, the agent must provide the MARA with the documents or
information within the specified period and in the specified
manner.
10. New subsection 311EA(3) provides that a period specified in a
notice under new
subsection 311EA(2) must end at least 14 days after the
notice was given.
11. This item inserts a note at the end of new
subsection 311EA(3) to point out that new
section 332H, inserted by item 170
of this Schedule, sets out when the agent is taken to have been given the
notice.
12. New subsection 311EA(4) makes it an offence if a person is
subject to a requirement
under new section 311EA and the person contravenes
the requirement. The penalty applying to such an offence is 60 penalty units and
it is an offence of strict liability for the reasons outlined in item 73
regarding new section 305C.
13. New subsection 311EA(6) provides that a
person is not excused from giving
information or providing a document on the
ground that the information or provision of the document may tend to incriminate
the person. The reason for this is outlined in item 73 in relation to new
section 305C.
14. This item inserts new Subdivision B at the end of Division 4A of Part 3
of the Act.
New Subdivision B relates to disciplining former registered
migration agents who had a high visa refusal rate during the period of their
registration.
15. New Subdivision B is similar to new Division 3AA,
inserted by item 75 of this
Schedule, however new Subdivision B relates to
former registered migration agents.
16. New Subdivision B will ensure
that agents cannot avoid disciplinary action for having
a high visa refusal
rate by simply deregistering and leaving the industry.
Subdivision B – Engaging in vexatious
activity
Section 311G Definitions
17. New section 311G inserts definitions of “mandatory decision”
and “referral decision”
for the purposes of new Subdivision B of
Division 4A.
18. “Mandatory decision” is defined to mean a
decision of the MARA under section
311L (see
below).
19. “Referral decision” is defined to mean a decision
of the Minister under section 311H
(see below).
disciplinary action
20. New subsection 311H(1) provides that
the Minister may refer a former registered
migration agent to the MARA for
disciplinary action if the agent has a high visa refusal rate in relation to a
visa of a particular class during his or her period of registration.
21. This new subsection is similar to new subsection 306AC(1) (inserted
by item 75 of
this Schedule) which relates to current registered migration
agents.
22. This item inserts three notes at the end of new subsection
311H(1).
23. The first note points out that if the Minister is
considering referring a former agent to
the MARA, the Minister must invite
the former agent to make a submission on the matter under new section 311J and
must consider any submission that is made.
24. The second note points
out that if the Minister refers a former agent to the MARA
under this
section, the MARA must discipline the former agent under new section
311L.
25. The third note points out that the Minister’s decision to
refer is reviewable by the
AAT under new section 311M.
26. In order
to determine whether a former registered migration agent has a high visa
refusal rate, it is necessary to refer to new subsection 306AC(2), inserted
by item 75 of this Schedule.
27. New subsection 306AC(2) sets out a step
by step method for working out whether an
agent has a high visa refusal rate
in relation to a visa of a particular class (see item 75).
28. New section 311J ensures that procedural fairness is accorded to
former agents who
may be subject to a decision under new section 311L barring
their re-entry into the industry for a certain period.
29. New section
311J is similar to new section 306AE (inserted by item 75 of this
Schedule)
which relates to current registered agents.
30. New subsection 311J(1)
provides that if the Minister is considering referring a former
registered
migration agent to the MARA for disciplinary action, the Minister must give the
former agent a written notice stating that the Minister proposes to make such a
decision and the reasons for it and inviting the former agent to make a written
submission to the Minister within 14 days after the notice is given (the
objection period).
31. New subsection 311J(2) provides that before the
end of the objection period, the
former agent may, by notice in writing,
request an extension of that period.
32. New subsection 311J(3) provides
that the Minister must grant an extension of 14 days
if the notice contains
reasons for the request. This means that an agent may have a maximum of 28 days
to make a written submission to the Minister.
33. New subsection 311J(4)
requires the Minister to consider any written submission
received within the
objection period (or that period as extended under new subsection 311J(3)). For
examples of the type of submissions that an agent may make, see item 75, in
relation to section 306AE.
34. New subsection 311K(1) is similar to new section 306AF (inserted by
item 75 of this
Schedule, which relates to current registered migration
agents) and provides that the
Minister must give the MARA written notice of
the decision to refer a former registered migration agent by one of the methods
specified in section 494B, and the notice must specify the grounds for the
referral.
35. New subsection 311K(2) requires the Minister to give the
former registered migration
agent written notice of the decision to refer
him or her to the MARA for disciplinary action.
36. New subsections
311K(3) and (4) provide that the notice must be given to the former
agent on
the same day that notice of the referral is given to the MARA and set out the
reasons for the referral.
37. If the Minister refers a former registered migration agent to the
MARA, new
subsection 311L requires the MARA to make a mandatory
decision.
38. New subsection 311L(1) provides that the MARA
must:
• if while the former agent was a registered migration agent,
his or her registration was not suspended under new section 306AG– bar the
former agent from being registered as a migration agent for 12 months starting
on the day the MARA’s decision takes effect; or
• if while the
former agent was a registered migration agent, his or her registration was
suspended under new section 306AG– bar the former agent from being
registered as a migration agent for 5 years starting on the day the MARA’s
decision takes effect; or
2. New subsections 311L(2), (3) and (5) are
similar to new subsections 306AG(2), (3)
and (4). They provide that the MARA
must make its decision as soon as possible but no later than 7 days after
receiving notice of the referral and give the former agent written notice of its
decision.
3. New subsection 311L(4) provides that the mandatory decision
takes effect at the time
the former agent is given written notice of it
according to new section 332H.
4. New subsection 311L(5) provides that
new section 311L is subject to new section
311N, which allows the AAT or a
court to make orders in relation to the mandatory decision.
Section
311M Review by the Administrative Appeals Tribunal
5. New section
311M provides that an application may be made by a former registered
migration agent to the AAT for review of a referral decision.
6. New
section 311M is similar to new section 306AJ, which relates to current
registered
migration agents.
Section 311N Effect of review of
referral decision on the Migration
Agents Registration
Authority’s mandatory decision
7. Section 311N sets out the
effect of review of a referral decision on the MARA’s
mandatory
decision in relation to a former registered agent.
8. New subsections
311N(1) and (2) are similar to sections 306AK(1) and (2) which
relate to
current registered agents. These subsections have been included for the same
purpose.
9. In broad terms, if an application is made for review of a
referral decision, new section
311N allows a Tribunal or court to make such
orders (including stay orders) as it thinks fit in relation to the mandatory
decision that was made as a result of the referral decision.
10. However,
new subsection 311N(2) provides that the Tribunal or a court cannot make
an
order binding the MARA unless the MARA has been accorded procedural fairness in
relation to the making of the order. The reasons for this are outlined in
relation to new section 306AK, inserted by item 75 of this
Schedule.
Section 311P Making disciplinary details publicly
available
11. New section 311P provides when the MARA is required to
publish details about mandatory disciplinary action taken against a former
registered migration agent for vexatious activity.
12. New section 311P
is similar to new sections 305A, 306AL and 311C contained in items 72, 75 and
137 of this Schedule). The purpose of these new sections are the same (see item
72).
13. In broad terms, new subsection 311P(1) sets out when the MARA
may publish
disciplinary details about a former registered migration agent
who does not apply for review of a referral decision, and new subsection 311P(2)
sets out when the MARA may publish
disciplinary details about a former
registered migration agent who applies for review of a referral decision.
14. New subsection 311P(2) provides that if, at the end of all
proceedings (including
any appeals) resulting from the review application,
there is a decision to bar the former agent from being registered as a migration
agent for a certain period:
• the MARA must as soon as possible
make available in the prescribed way a statement that:
- sets out the
referral decision and specifies the grounds for the referral decision;
and
- sets out the final decision; and
• the MARA may prepare a
statement about the referral decision and the final decision and make it
available to one or more groups of persons, or to one or more persons, in any
way the MARA thinks fit.
2. New subsection 311P(4) provides protection
from civil proceedings for a person who,
in good faith, publishes a copy of,
an extract from or a summary of a statement made under new section 311P.
3. This item repeals the heading to Division 5 of Part 3 of the Act and
substitutes new
heading “Division 5 – Obligations of registered
migration agents”. This amendment is to clarify that Division 5 applies to
registered migration agents, but not to other types of agents such as education
agents.
Item 144 Subsection 312(1)
4. This item makes a minor
technical amendment to subsection 312(1) to clarify that the reference to
“registered agent” is intended to mean a migration agent who is
registered by the MARA.
Item 145 Subsection 312(1)
5. This
item makes a minor technical amendment to subsection 312(1) of the Act to
replace “as soon as is reasonably possible” with “in writing
within 14 days”.
6. Section 312 of the Act requires a registered
migration agent to notify the MARA “as
soon as is reasonably
possible” of certain events, for example, if the agent becomes bankrupt or
is convicted of an offence.
7. The purpose of this amendment is to
provide a fixed period within which a migration
agent is required to notify
the MARA of the events listed in section 312. This amendment also provides that
a migration agent must notify the MARA in writing.
Item 146 After
paragraph 312(1)(e)
8. This item inserts new paragraph 312(1)(ea)
after paragraph 312(1)(e) of the Act consequential to new section 10 of the
MARAC Act (see item 5 of this Schedule).
9. Section 312 of the Act
requires a registered migration agent to notify the MARA of
certain events,
for example, if the agent becomes bankrupt or is convicted of an offence. The
penalty for failing to comply with a requirement under section 312 is 100
penalty units.
10. New paragraph 312(1)(ea) requires an agent, who is
registered on a non-commercial
basis, to also notify the MARA if he or she gives immigration assistance on a commercial basis.
Item 147 After paragraph 312(1)(f)
11. This item inserts
new paragraph 312(1)(fa) after paragraph 312(1)(e) of the Act.
12. New
paragraph 312(1)(fa) requires a migration agent to also notify the MARA if he or
she becomes a member of a partnership and will give immigration assistance
in that capacity.
13. The purpose of new paragraph 312(1)(fa) is to
prevent former registered migration
agents, who have had their registration
cancelled or suspended, from continuing to operate in the migration advice
industry through association with registered migration agents.
14. This item inserts new subsection 312(3) at the end of section 312 of
the Act
consequential to new paragraph 312(1)(ea) contained in item 146 of
this Schedule.
15. New paragraph 312(1)(ea) requires an agent, who is
registered on a non-commercial
basis, to notify the MARA if he or she gives
immigration assistance on a commercial basis.
16. New subsection 312(3) provides that the day on which an agent begins
to give
immigration assistance on a commercial basis is to be worked out in
accordance with the Migration Agents Registration Application Charge
Regulations 1998 (the MARAC Regulations) (see item 5).
Item
149 After section 312
17. This item inserts new section 312A after section 312 of the Act.
18. In broad terms, new section 312A requires a registered migration
agent to notify the
Department if he or she gives immigration assistance to
a visa applicant in relation to the visa application.
19. This new
section is similar to new section 312B which relates to requiring an agent to
notify the relevant review tribunal if the agent gives immigration
assistance in relation to a review application.
20. The purpose of new
sections 312A and 312B is to enable the Department to calculate
an
agent’s visa refusal rates under new Division 3AA (contained in item 75 of
this Schedule).
21. New subsection 312A(1) provides that a migration
agent must notify the Department
in accordance with the regulations and
within the period worked out in accordance with the regulations. It is envisaged
that the regulations will prescribe that a migration agent must notify the
Department in writing by either completing the relevant form or the appropriate
sections of a visa application form, or by writing a letter.
22. New
subsections 312A(2) and (3) make it an offence of strict liability if a person
contravenes the requirements of new section 312A. The penalty applying to
such an offence is 60 penalty units.
23. The offence is one of strict
liability to enable a penalty to be imposed for conduct
without proof of
fault. This is necessary because it could be very difficult for DIMIA to prove
an agent’s involvement if they chose to conceal it. One of the primary
reasons of the Bill is to ensure that unscrupulous agents are sanctioned. This
provision and corresponding penalty is necessary to enable this to occur.
24. In broad terms, new section 312B requires a registered migration
agent to notify the
review authority concerned if he or she gives
immigration assistance to a person in respect of a review application made by
the person.
423. This section is similar to new section 312A, which
relates to requiring an agent to notify DIMIA if the agent gives immigration
assistance in relation to a visa application. It was inserted for the same
purpose.
424. “Review authority” is defined by section 275 of
the Act to mean the MRT or RRT.
425. New subsection 312B(1) provides that
a migration agent must notify the review
authority in accordance with the
regulations and within the period worked out in accordance with the
regulations.
426. New subsections 312B(2) and (3) make it an offence of
strict liability if a person
contravenes the requirements of new section
312B. The penalty applying to such an offence is 60 penalty
units.
427. The offence is one of strict liability for reasons outlined
above in relation to new
section 312A.
Item 150 Subsection
313(1A)
428. This item repeals subsection 313(1A) of the
Act.
429. In general terms, section 313 currently requires a migration
agent to give a statement
of services if the agent gives immigration
assistance to a visa applicant, cancellation review applicant, or sponsor or
nominator of a visa applicant.
430. The effect of repealing subsection
313(1A) is to widen section 313 to require a
migration agent to give a
statement of services to any person to whom he or she gives immigration
assistance.
431. This amendment is consequential to new subsection
276(2A), inserted by item 6 of
this Schedule, which expands the definition
of “immigration assistance” to include advice about and assistance
with requests for Ministerial intervention.
Item 151 Subsection
313(1)
432. This item makes a minor technical amendment to subsection
313(1) to clarify that the reference to “registered agent” is
intended to mean a migration agent who is registered by the MARA.
433. This item makes a minor technical amendment to subsection 313(1) to
replace the reference to “an assisted person” with a reference to
“another person (the assisted person)”. This amendment
is consequential to item 150, which repeals subsection 313(1A).
Item
153 Paragraph 313(3)(a)
434. This item makes a minor technical
amendment to paragraph 313(3)(a) to clarify that the reference to
“registered agent” is intended to mean a migration agent who is
registered by the MARA.
Item 154 Paragraph
313(3)(c)
435. This item amends paragraph 313(3)(c) of the Act to
replace the reference to “28 days after a final decision is made about the
visa application, cancellation review application, nomination or sponsorship
that the immigration assistance related to” with a reference to “the
period worked out in accordance with the regulations”.
436. This
amendment is consequential to new subsection 276(2A), which expands the
definition of “immigration assistance” to include advice about and
assistance with requests for Ministerial intervention (see item
6).
Item 155 Subsection 314(2)
Item 156 Subsection
316(1)
Item 157 Subsection 316(1A)
Item 158 Subsection
316(1B)
Item 159 Section 318
Item 160 Subsection
319(1)
Item 161 Subsection 319(2)
Item 162 Subsection
319(2) (note)
Item 163 Subsection 319(3)
Item
164 Subsection 319(3) (note)
437. These items make minor technical
amendments to sections 314, 316, 318 and 319 of the Act to clarify that a
reference to “registered agent” is intended to mean a migration
agent who is registered by the MARA.
438. This item inserts new section 319A after section 319 of the
Act.
439. New section 319A enables the Migration Institute of Australia (MIA)
to delegate its
powers and functions under Part 3 of the
Act.
440. New subsection 319A(1) provides that the MIA may, by writing,
delegate any or all
of its functions or powers under Part 3
to:
• a committee of MIA;
• an officer of MIA; or
• an employee of MIA.
424. New subsection 319A(2) provides that
in performing a delegated function or
exercising a delegated power, a
delegate must comply with any written directions given by MIA.
425. New
subsection 319A(3) provides that a function or power delegated to a committee
may only be performed or exercised by a majority of the members of the
committee.
426. The note at the end of this item amends the heading to
section 320 to replace the reference to “Delegation of” with a
reference to “Minister may delegate”.
427. The purpose of
new section 319 is to enable the MARA to carry out its functions and powers
under the Act efficiently and effectively. The amendment will allow the MARA to
authorise officers to take routine decisions and recommend a course of action to
the MARA board in respect of more complex decisions.
428. This item inserts new section 321A after section 321 of the
Act.
Section 321A Disclosure of personal information by the Migration
Agents
Registration Authority
429. New section 321A allows
the MARA to disclose personal information about a registered migration agent or
an inactive migration agent to the Department, an authorised officer or a review
authority in certain circumstances.
430. “Authorised officer”
is defined by subsection 5(1) of the Act to mean an officer authorised in
writing by the Minister or the Secretary for the purposes of that provision. In
practice, an authorised officer may be employees of the Department, including
officers responsible for assessing whether an agent has a high visa refusal
rate.
431. “Review authority” is defined by section 275 of
the Act to mean the MRT or RRT.
432. New subsection 321A(3) provides that
the regulations may prescribe circumstances in which the Secretary, an
authorised officer, the MRT or RRT may use or disclose personal information
disclosed under new subsection 321A(1).
433. For example, the Department
may use information disclosed by the MARA when considering whether to make a
complaint to the MARA about an agent or for reporting purposes.
434. New
subsection 321A(4) provides that “inactive migration agent” has the
meaning given by section 306B of the Act, and “personal information”
has the same meaning as in the Privacy Act 1988.
435. Currently,
the Act contains limited powers in section 321 for DIMIA to disclose
personal information to the MARA for the purpose of facilitating or
expediting the exercise of the powers, or performance of the functions of the
MARA.
436. The main purpose of new section 321A is to enable
investigations against registered migration agents and other persons to be
carried out effectively and to ensure unscrupulous agents are sanctioned
accordingly.
Item 167 Division 6A of Part 3
(heading)
437. This item repeals the heading to Division 6A of Part 3
of the Act and substitutes new heading “Division 6A – Registration
application fees and registration status charges”.
438. This
amendment is consequential to new section 10 of the MARAC Act, proposed to be
inserted by item 5 of Schedule 1 to the MARACA Bill (see item 5).
439. This item repeals section 332A and substitutes new section 332A.
440. New subsection 332A(1) provides that registration status charge is
due and payable at the time worked out in accordance with a written
determination made by the MARA.
441. A definition of “registration
status charge” is inserted into section 275 of the Act by item 5 of this
Schedule to mean to mean a charge imposed by section 10 of the MARAC Act.
442. New subsection 332A(2) provides that a determination made under new
subsection 332A(1) is a disallowable instrument for the purposes of section 46A
of the Acts Interpretation Act 1901.
443. New subsection 332A(3)
provides that the MARA may, on behalf of the Commonwealth, recover any
registration status charge that has become due for payment, as a debt due to the
Commonwealth.
Item 169 After subsection 332B(1)
444. This
item inserts new subsection 332B(1A) after subsection 332B(1) of the
Act.
445. New subsection 332B(1A) provides that there is payable to MIA
out of the Consolidated Revenue Fund an amount equal to the sum of registration
status charges collected (including amounts recovered under section 332A) while
an instrument under section 315 appointing the MIA is in force.
446. This item inserts new Division 7 at the end of Part 3 of the
Act.
447. New section 332C provides that the MARA must remove details of
disciplinary action that has been taken against migration agents that is made
available by electronic means within a certain period.
448. The purpose
of this new section is to balance the publication requirements under new
sections 305A, 306AL, 311C and 311P. It is also intended to be consistent with
subsection 287(5), which relates to removing details placed on the
Register.
449. New subsection 332C(1) provides that the MARA must
remove:
• any statement relating to the cancellation or suspension
of a registered migration agent’s registration; and
• any
statement about the cautioning of an agent.
424. New subsections 332C(2)
and (3) provide that the MARA must remove the disciplinary details within the
period worked out in accordance with the regulations and that the regulations
may prescribe different periods in relation to details about cancellations,
suspensions or cautions.
425. For example, the regulations may prescribe
that information about caution decisions may remain on the MARA website for a
maximum period of 12 months after the caution is lifted or the agent’s
current registration expires, whilst details about a suspension decision may
remain on the website for up to 5 years after the decision was made. As another
example, the regulations may prescribe that details about a cancellation
decision may remain on the website for up to 10 years after the decision was
made.
migration agents
426. New section 332D relates to the removal
of details about disciplinary action that has been taken against former
registered migration agents.
427. New section 332D is similar to new
section 332C, which relates to current registered migration
agents.
428. New subsection 332D(1) provides that the MARA must remove
any statement that is made available under new section 311C or 311P by
electronic means.
429. New subsection 332D(2) provides that the MARA must
remove the statement within 28 days after the period worked out in accordance
with the regulations.
430. For example, the regulations may prescribe
that information about a decision to bar an agent from being registered may
remain on the MARA website for a period not exceeding 10 years.
431. In broad terms, new section 332E provides protection from civil
proceedings for
certain persons in relation to the making of a complaint
about a registered migration agent or a person who is acting as a registered
migration agent, or the investigation of such a complaint.
432. New
subsection 332E(1) provides protection for a person who makes a complaint
about a registered migration agent. New subsection 332E(1) provides that no
action or other proceeding for damages lies against a person in respect of loss,
damage or injury of any kind suffered by another person because of any of the
following acts done in good faith:
• the making of a complaint to
the MARA in relation to the provision of immigration assistance by a registered
migration agent;
• the making of a statement to, or the giving of a
document or information to, the MARA in connection with the investigation of
such a complaint.
424. New subsection 332E(2) provides similar protection
for a person who makes a
complaint about a person who is giving immigration
assistance while not a registered migration agent.
425. New subsection
332E(3) provides protection for the MIA, or an officer or employee
of the
MIA, in relation to carrying out the MARA’s functions and powers under
Part 3 of the Act. New subsection 332E(3) provides that the MIA, or an officer
or employee of the MIA, is not liable to an action or other proceeding for
damages for or in relation to any of the following acts done in good
faith:
• the performance or purported performance of any function
conferred on the MARA under Part 3; or
• the exercise or purported
exercise of any power conferred on the MARA under Part 3.
424. New
subsection 332E(4) provides protection for the Commonwealth, the Minister or
any other person in relation to carrying out any function or power conferred
on the Minister under Part 3 of the Act.
425. The purpose of new section
332E is to ensure that all parties, especially consumers,
but also MARA
staff and board members and Departmental officers, are protected from civil
proceedings, providing that they are acting in good faith. It will remove any
concern that persons who make complaints to the MARA or the Department may have
legal action taken against them, which will encourage such persons to make a
complaint about a migration agent who is acting in an unprofessional manner.
426. New section 332F allows the Secretary of the Department to disclose
personal
information about a registered migration agent or an inactive
migration agent to a review authority in certain circumstances.
427. This
new section is similar to new sections 321A and 332G, and was inserted for a
similar purpose.
428. “Review authority” is defined by
section 275 of the Act to mean the MRT or RRT.
429. New subsection
332F(3) provides that the regulations may prescribe circumstances in which the
MRT or RRT may use or disclose personal information disclosed under new
subsection 332F(1). That is when the review authority may make a subsequent
disclosure of personal information. For example, the MRT or RRT may refer
information relating to a complaint against an agent directly to the
MARA.
430. New subsection 332F(4) provides that “inactive migration
agent” has the meaning given by section 306B of the Act, and
“personal information” has the same meaning as in the Privacy Act
1988.
431. New section 332G allows a review authority to disclose personal
information about a
registered migration agent or an inactive migration
agent to the Secretary or an authorised officer in certain
circumstances.
432. This new section is similar to new sections 321A and
332F and was inserted for a similar purpose.
434. “Review authority” is defined by section 275 of the Act
to mean the MRT or RRT.
435. New subsection 332G(3) provides that the
regulations may prescribe circumstances in which the Secretary or an authorised
officer may subsequently use or disclose personal information disclosed under
new subsection 332G(1). For example, it may be necessary for DIMIA to refer
information it has received from the MARA or a review authority to another
professional body for appropriate action, such as the relevant Law Society or
the Psychologists Registration Board, or to a legal ombudsman.
436. New
subsection 332G(4) provides that a review authority must notify the Department
if an agent notifies the review authority that he or she has given immigration
assistance in respect of a review application. The purpose of requiring a review
authority to notify the Department in these circumstances is to effectively
implement new Division 3AA and new Subdivision B of Division 4A (contained in
items 75 and 142 of this Schedule), which relate to an agent or former agent who
has a high visa refusal rate.
437. New section 312B, inserted by item 149
of this Schedule, requires a registered
migration agent to notify the review
authority concerned if he or she gives immigration assistance to a person in
respect of a review application made by the person.
438. New subsection
332G(5) provides that “inactive migration agent” has the meaning
given by section 306B of the Act, and “personal information” has the
same meaning as in the Privacy Act 1988.
439. New section 332H sets out the methods by which the MARA must give a
notice to a person under Part 3 of the Act and when the person will be taken to
have been given the notice.
440. Subclause 332H(1) contains a table
setting out the giving of notices under Part 3.
Each method of giving a
notice specified in column 1 of the table is taken to have been given at the
time specified in column 2 of the table.
441. The effect of item 1 of
the table is that if a notice is handed to the recipient, the notice
will
take effect at the time it is handed to the recipient.
442. The effect of
item 2 of the table is that if the notice is handed to another person
who:
• is at the last residential or business address provided to
the MARA for the purposes of receiving notices; and
• appears to live
or work there; and
• appears to be at least 16 years old;
then
the notice will take effect at the time it is handed to that
person.
424. The effect of item 3 of the table is that if the notice is
dated and dispatched within 3 working days by prepaid post or by other prepaid
means to:
• the last address for service provided to the MARA by
the recipient for the purposes of receiving notices; or
• the last
residential or business address provided to the MARA by the recipient for the
purposes of receiving notices;
then, the notice will take effect 7
working days after the date of the notice (if dispatched from a place in
Australia to an address in Australia) or 21 days after the date of the notice in
any other case.
424. The effect of item 4 of the table is that if the
notice is transmitted by fax, e-mail or other electronic means to the last fax
number, e-mail address or other electronic address provided to the MARA by the
recipient for the purposes of receiving notices, then the notice will take
effect at the end of the day on which the notice is transmitted.
425. New
subsection 332H(2) provides that new section 332H has effect despite any
provision in the Electronic Transactions Act 1999.
426. This item inserts new paragraph 504(1)(ja) after paragraph 504(1)(j)
of the Act.
427. New paragraph 504(1)(ja) introduces an administrative
penalty as an alternative to prosecution for an offence committed against
subsection 280(1). New paragraph 504(1)(ja) provides that regulations may be
made to enable a person who is alleged to have committed an offence against
subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution,
a penalty of 12 penalty units.
428. Subsection 280(1) provides that a
person who is not a registered migration agent must not give immigration
assistance unless the person satisfies one of the exceptions under subsections
280(2) to (6). The penalty for contravening subsection 280(1) is 60 penalty
units (as amended by item 12 of this Schedule).
Item 172 Application – relation by
employment
430. This provision makes it clear that the amendments to
section 278 (contained in items
9 and 10 of this Schedule) apply in relation
to the consideration of registration applications made after the commencement of
those items, regardless of whether the engagements as a consultant or as an
independent contractor occurred before or after that
commencement.
431. For example, if a registration application is
considered after the commencement of
items 9 and 10, and the applicant for
registration is engaged as a consultant of another person who is not a person of
integrity, then the MARA may decide that the applicant should not be registered,
whether or not he or she was engaged as a consultant before or after
commencement of those items.
432. This provision makes it clear that new paragraph 504(1)(ja),
inserted by item 171 of
this Schedule, applies to all offences, whether
alleged to have been committed before or after items 13 and 171 commence,
provided that no penalty has been imposed at the time of
commencement.
433. The effect of this provision is that if a person is
alleged to have committed an offence
against subsection 280(1), either
before or after commencement of items 13 and 171, then an administrative penalty
may be imposed on that person as an alternative to criminal prosecution.
434. This item provides that the MARA must remove disciplinary details
from the Register
in accordance with new subsections 287(5), (6) and (7),
inserted by item 39 of this Schedule, whether or not the details were entered on
the Register before or after the commencement of item 39.
435. For
example, if particulars of a caution given to an agent was entered on the
Register
before commencement of item 39, the MARA must remove the
particulars of the caution from the Register in accordance with new subsections
287(5), (6) and (7).
436. This item requires the MARA to remove particulars of a caution or a
suspension from
the Register within 28 days of commencement of this item
if:
• the particulars of the caution have been on the Register for
at least 12 months before the commencement of this item; or
• the
particulars of the suspension of a migration agent’s registration have
been on the Register for at least 5 years before the commencement of this
item.
424. For example, if particulars of a caution and suspension were
entered on the Register 2
years prior to the commencement of this item, then
the MARA must remove the particulars of the caution within 28 days of
commencement of this item, but need not remove details of the
suspension.
425. This item ensures a consistent approach to removing
disciplinary details from the
Register, whether or not the details were
entered on the Register before or after commencement of new subsections 287(5),
(6) and (7).
426. This item provides that new subsection 288(7), inserted by item 40
of this Schedule,
applies in relation to registration applications made
either before or after the commencement of item 40.
427. The effect of
this item is that an applicant for registration may withdraw his or her
application for registration by giving notice in writing to the MARA,
whether or not the applicant lodged the application before or after commencement
of item 40.
of questions
428. This item provides that new section 288B,
inserted by item 40 of this Schedule, only
applies in relation to
registration applications made after the commencement of that
item.
429. The effect of this item is that the MARA may only require an
applicant, to whom
new section 288B applies, to make a statutory declaration
or answer questions in relation to his or her application if the application was
made after the commencement of item 40.
430. This item provides that the amendments made by items 47 and 48 apply
in relation to
registration applications made after the commencement of
those items, regardless of whether the previous registration occurred before or
after that commencement.
431. The effect of this item is that an
applicant who is entering or re-entering the industry
(ie he or she has
never been registered, or is applying to be registered more than 12 months after
the end of his or her previous registration), is only required to meet the new
registration requirements under new section 289A if the registration application
is made after the commencement of items 47 and 48.
432. This item provides that the amendments made by items 49 and 50 apply
in relation to
the consideration of registration applications made either
before or after the commencement of those items, regardless of whether the
disciplinary action occurred before or after that commencement.
433. The
effect of this item is that irrespective of when the disciplinary action
occurred or the application was made (as opposed to when it was considered), the
amendments apply provided the application is considered after commencement. As a
result the MARA may take into account any disciplinary action that is
being taken, or has been taken, against an applicant (or a person to whom the
applicant is related by employment) in considering an application for
registration after commencement of items 49 and 50. In contrast when considering
an application for registration prior to commencement of those items, the MARA
may only take into account disciplinary action that a professional
association is taking, or has taken against the applicant, or a person to
whom the applicant is related by employment.
434. This item provides that new section 304A, inserted by item 71 of
this Schedule, only
applies in relation to cautions given after the
commencement of that item.
435. The effect of this item is that the MARA
may only set one or more conditions for the
lifting of a caution in relation
to a caution given to an agent after commencement of item 71.
436. This item provides that the amendments made by new sections 305,
305A, 306AA,
311B and 311C, inserted by items 72, 74 and 137, apply in
relation to decisions made after commencement of those items.
437. The
effect of this item is that the publication of a suspension or cancellation
decision,
or a decision to bar a former agent from being registered, made
prior to commencement of those items must be in accordance with existing
sections 305, 305A, 311B and 311C.
438. In addition, the condition that
prescribed supervisory requirements apply to a stay
order given by the AAT
or a court in relation to a disciplinary decision will only apply to decisions
made by the MARA after the commencement of item 74.
439. This item provides that new section 305B, inserted by item 73,
applies in relation to
decisions made either before or after the
commencement of that item. This is in contrast to sections 305 and 305A, which
only apply to decisions made after commencement.
440. The effect of this
item is that the MARA or the Secretary may inform one or more
clients of an
agent about a disciplinary decision taken against the agent that was made either
before or after commencement of item 73.
441. This item provides that new Division 3AA and new Subdivision B of
Division 4A,
inserted by items 75 and 142, apply in relation to applications
for visas, or applications for review, made after the commencement of those
items.
442. The effect of this item is that, for the purpose of the
proposed provisions in relation to
an agent or a former agent who has a high
visa refusal rate, the visa refusal rate will be calculated on the basis of visa
applications or review applications made after commencement of items 75 and
142.
443. This item provides that the amendments made by items 104, 108, 109,
112, 113, 116,
117, 119, 121 and 125 apply in relation to documents created
either before or after the commencement of those items.
444. The effect
of this item is that the new provisions inserted by this Schedule relating to
the production of any documents owned by a client or provided to an agent by
a client, apply whether or not the document was created before or after the
commencement of those items. For example, the new provisions will apply to a
passport or birth certificate that was created before the commencement of the
provisions.
445. This item provides that the amendments made by items 115 and 116 of
this Schedule
apply in relation to notices given after the commencement of
those items.
446. The effect of this item is that the increased penalty
for failing to comply with a notice
given under section 306D, 306E or 306F
only applies to a notice given after the commencement of item
115.
447. In addition, new section 306J, which provides that an
individual will not be excused
from producing a document under section 306D,
306E or 306F on the ground of self-incrimination, will only apply to a notice to
produce documents given after the commencement of item 116.
448. This item provides that the amendment to subsection 312(1), made by
item 145 of this
Schedule, only applies in relation to events occurring
after the commencement of that item.
449. The effect of this item is
that, if an agent is required to notify the MARA of certain
events listed in
section 312, such as if the agent becomes bankrupt or is convicted of an
offence, the agent is only required to notify the MARA in writing and within 14
days, if the event occurs after the commencement of item 145. If the event
occurs before the commencement of item 145, the agent is required to notify the
MARA as soon as is reasonably possible.
assistance
450. This item provides that new subsections 312A
and 312B, inserted by item 149 of this
Schedule, only apply in relation to
applications for visas, or applications for review, made after the commencement
of that item.
451. The effect of this item is that a migration agent is only required to
notify DIMIA or
the relevant review tribunal, in accordance with the
regulations, if the agent gives immigration assistance in relation to a visa
application or review application made after the commencement of item 149.
Item 188 Application – disclosure of personal
information
452. This item provides that new section 321A, inserted
by item 166 of this Schedule,
applies in relation to information obtained
either before or after the commencement of that item. This means that the MARA
may disclose personal information about a migration agent to the Secretary, an
authorised officer, the MRT or RRT, in accordance with the regulations, whether
or not the information was obtained before or after commencement of item
166.
453. This item also provides that new sections 332F and 332G,
inserted by item 170 of this
Schedule, apply in relation to information
obtained either before or after the commencement of that item. This means that
personal information about migration agents may be disclosed between DIMIA and
the MRT or RRT, whether or not the information was obtained before or after
commencement of item 170.
Item 189 Application – removal of
disciplinary details
454. This item provides that new sections 332C
and 332D, inserted by item 170 of this
Schedule, apply in relation to
details made available by electronic means either before or after the
commencement of that item.
455. The effect of this item is that the MARA must remove, in accordance with
the
regulations, any statement made available electronically about a
disciplinary decision taken against an agent or a former agent, whether or not
the statement was made available before or after the commencement of item 170.
456. This item provides that new section 332E, inserted by item 170 of
this Schedule, only
applies in relation to acts done after the commencement
of that item.
457. The effect of this item is that a person will only be
protected from civil proceedings,
in the circumstances set out in new
section 332E, in relation to the making or a complaint, or an investigation of a
complaint, done after the commencement of item 170.
458. For example, a
person who makes, or investigates, a complaint before the
commencement of
item 170 will not receive the protection from civil proceedings in new section
332E.
459. This item provides that new section 332H, inserted by item 170 of
this Schedule,
applies in relation to notices given after the commencement
of that item.
460. For example, if the MARA gives a notice to a person by
fax after the commencement